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EXHIBIT 2
AGREEMENT OF SALE AND PURCHASE
BY AND BETWEEN
CORRECTIONS CORPORATION OF AMERICA,
a Delaware corporation
("SELLER")
AND
CCA PRISON REALTY TRUST
a Maryland real estate investment trust
("PURCHASER")
For the Sale and Purchase
of
______________________________
______________________________
_______________________, 1997
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TABLE OF CONTENTS
ARTICLE I Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II Agreements to Sell, Purchase and Lease . . . . . . . . . . . . . . . . . . . . .
2.1 Agreement to Sell and Purchase . . . . . . . . . . . . . . . . . . . . .
2.2 Agreement to Lease . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3 Agreement to Grant Option . . . . . . . . . . . . . . . . . . . . . . .
2.4 Right to Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE III Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.1 Payment of Purchase Price . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE IV Items to be Furnished to Purchaser by Seller . . . . . . . . . . . . . . . . . .
4.1 Due Diligence Materials . . . . . . . . . . . . . . . . . . . . . . . .
4.2 Due Diligence Review . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE V Representations, Warranties, Covenants and Agreements . . . . . . . . . . . . .
5.1 Representations and Warranties of Seller . . . . . . . . . . . . . . . .
5.2 Covenants and Agreements of Seller . . . . . . . . . . . . . . . . . . .
5.3 Representations and Warranties of Purchaser . . . . . . . . . . . . . .
ARTICLE VI Conditions to Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.1 Conditions to the Purchaser's Obligations . . . . . . . . . . . . . . .
6.2 Failure of Conditions to Purchaser's Obligations . . . . . . . . . . . .
6.3 Conditions to the Seller's Obligations . . . . . . . . . . . . . . . . .
6.4 Failure of Conditions to Seller's Obligations . . . . . . . . . . . . .
ARTICLE VII Provisions with Respect to the Closing . . . . . . . . . . . . . . . . . . . . .
7.1 Seller's Closing Obligations . . . . . . . . . . . . . . . . . . . . . .
7.2 Purchaser's Closing Obligations . . . . . . . . . . . . . . . . . . . .
ARTICLE VIII Expenses of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.1 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.2 Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.3 Commissions/Broker's Fees . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE IX Default and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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9.1 Seller's Default; Purchaser's Remedies . . . . . . . . . . . . . . . . .
9.2 Purchaser's Default; Seller's Remedies . . . . . . . . . . . . . . . . .
ARTICLE X Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.2 Right of Assignment . . . . . . . . . . . . . . . . . . . . . . . . . .
10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.4 Entire Agreement; Modifications . . . . . . . . . . . . . . . . . . . .
10.5 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.6 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.7 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.8 Time is of the Essence . . . . . . . . . . . . . . . . . . . . . . . . .
10.9 Waiver of Conditions . . . . . . . . . . . . . . . . . . . . . . . . . .
10.10 Joinder by Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . .
LIST OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") is made and
entered into by and between CORRECTIONS CORPORATION OF AMERICA, a Delaware
corporation (hereinafter referred to as "Seller"), and CCA PRISON REALTY TRUST,
a Maryland real estate investment trust (hereinafter referred to as
"Purchaser"). Seller and Purchaser are sometimes collectively referred to
herein as the "Parties" and each of the Parties is sometimes singularly
referred to herein as a "Party".
WHEREAS, Seller is the owner of the Property (as hereinafter defined),
consisting of certain real properties and improvements thereon being more
particularly described on Exhibits A-1 through A-9, attached hereto and made a
part hereof; and,
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall lease to Seller, and Seller shall lease from
Purchaser, the Property.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
ARTICLE I
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"Accreditations" shall mean any and all accreditations and/or
certifications from any non-governmental entities required in connection with
the current or contemplated operation of the Property.
"Applicable Notices" shall mean any reports, notices of violation, or
notices of compliance issued in connection with any Accreditations or Permits.
"▇▇▇▇ of Sale" shall mean a ▇▇▇▇ or bills of sale in substantially the
same form as Exhibit B, attached hereto, and sufficient to transfer to
Purchaser all Personal Property.
"Business Agreements" shall mean any leases, contract rights, loan
agreements, mortgages, easements, covenants, restrictions or other agreements
or instruments affecting all or a portion of the Property, to the extent the
same are assignable by Seller, but specifically excluding all of Seller's
Operating and Service Agreements.
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"Business Day(s)" shall mean calendar days other than Saturdays, Sundays
and legal holidays.
"Certificate of Non-Foreign Status" shall mean a certificate dated as of
the Closing Date, addressed to Purchaser and duly executed by Seller, in
substantially the same form as Exhibit C, attached hereto.
"Claim" shall mean any obligation, liability, lien, encumbrance, loss,
damage, cost, expense or claim, including, without limitation, any claim for
damage to property or injury to or death of any person or persons.
"Closing" shall mean the consummation of the sale and purchase provided
for herein, to be held at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other place as the Parties
may mutually agree.
"Closing Certificate" shall mean a certificate in substantially the same
form as Exhibit D, attached hereto, wherein Seller and Purchaser, respectively,
shall represent that the representations and warranties of Seller and
Purchaser, respectively, contained in this Agreement are true and correct in
all material respects as of the Closing Date as if made on and as of the
Closing Date.
"Closing Date" shall mean the actual day on which the transaction
contemplated hereby is closed with the transfer of title to the Property. The
Parties agree that the closing date shall be __________________, 1997, or such
earlier or later date as shall be hereafter mutually agreed upon by the
Parties.
"Deed" shall mean a deed in substantially the same form as Exhibit E,
attached hereto (as the same may be modified to comply with local law and
custom), executed by Seller, as grantor, in favor of Purchaser, as grantee,
conveying the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions.
"Due Diligence Materials" shall mean the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
"Effective Date" shall mean the later of the two (2) dates on which this
Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided, that in the event only one Party
dates its signature, then the date of its signature shall be the Effective
Date.
"Engineering Documents" shall mean all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans, Americans with
Disabilities Act compliance reports, environmental reports and studies,
professional inspection reports, construction and/or architect's reports or
certificates, feasibility studies, appraisals, and other similar plans and
studies that relate to the Real Property or the Personal Property, to the
extent the same are assignable by Seller.
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"Exception Documents" shall mean true, correct and legible copies of
each document listed as an exception to title in the Title Commitment.
"Excluded Personal Property" shall mean all those items of tangible and
intangible personal property described on Exhibit F.
"Fixtures" shall mean all equipment, machinery, fixtures, and other
items of real and/or personal property, including all components thereof, now
or on the Closing Date located in, on or used in connection with, and
permanently affixed to or incorporated into, the Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
electronic security equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus, sprinkler systems and
fire and theft protection equipment, and similar systems, all of which, to the
greatest extent permitted by law, are hereby deemed by the Parties to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but specifically excluding all items
included within the definition of Personal Property and Excluded Personal
Property.
"Hazardous Materials" shall mean any substance, including without
limitation, asbestos or any substance containing asbestos and deemed hazardous
under any Hazardous Materials Law, the group of organic compounds known as
polychlorinated biphenyls, petroleum products, flammable explosives, radioactive
materials, infectious wastes, biomedical and medical wastes, chemicals known to
cause cancer or reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the definition of
hazardous or toxic wastes, materials or substances under any Hazardous
Materials Law.
"Hazardous Materials Law" shall mean any local, state or federal law
relating to environmental conditions and industrial hygiene, including, without
limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("▇▇▇▇"), the Hazardous Materials Transportation Act, the Federal Waste
Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, and all similar federal,
state and local environmental statutes, ordinances and the regulations, orders,
or decrees now or hereafter promulgated thereunder.
"Improvements" shall mean all buildings, improvements, structures and
Fixtures now or on the Closing Date located on the Land, including, without
limitation, landscaping, parking lots and structures, roads, drainage and all
above ground and underground utility structures, equipment systems and other
so-called "infrastructure" improvements.
"Intangible Property" means all Permits, Business Agreements and other
intangible property or any interest therein now or on the Closing Date owned or
held by Seller in connection with the Real Property, including all water rights
and reservations, rights to use the trade name applicable to the Property, as
set forth on Exhibits A-1 through A-9 hereof, and zoning rights related to the
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Real Property, or any part thereof, to the extent the same are assignable by
Seller; provided, however, "Intangible Property" shall not include the general
corporate trademarks, trade names (except as set forth above), service marks,
logos or insignia or the books and records of Seller, Seller's accounts
receivable and Seller's business and operating licenses for the facilities on
the Real Property.
"Land" means the real property more particularly described on Exhibits
A-1 through A-9, attached hereto and made a part hereof, together with all of
Seller's rights, titles, appurtenant interests, covenants, licenses, privileges
and benefits thereto belonging, and Seller's right, title and interest in and
to any easements, rights-of-way, rights of ingress or egress or other interests
in, on, or to any land, highway, street, road or avenue, open or proposed, in,
on, across, in front of, abutting or adjoining such real property including,
without limitation, any strips and gores adjacent to or lying between such real
property and any adjacent real property.
"Laws" means all federal, state and local laws, moratoria, initiatives,
referenda, ordinances, rules, regulations, standards, orders and other
governmental requirements, including, without limitation, those relating to the
environment, health and safety, disabled or handicapped persons.
"Lease" shall mean the Master Agreement to Lease and the Lease Agreement
in substantially the same form as Exhibit H, attached hereto and made a part
hereof, which shall be executed and delivered by Seller (or an affiliate of
Seller) and Purchaser at the Closing, and pursuant to the terms of which
Purchaser shall lease the Property to Seller (or an affiliate of Seller)
following the Closing.
"Material" and "materially" shall mean a condition, noncompliance,
defect or other fact which would: (a) cost, with respect to any individual
Property, in the aggregate, in excess of Five Hundred Thousand Dollars
($500,000.00) and, with respect to any single defect or fact, would cost, with
respect to any individual Property, in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00), to correct or repair; or (b) in the aggregate, with
respect to any individual Property, result in a loss to Purchaser or a
reduction in the value of such Property in excess of Five Hundred Thousand
Dollars ($500,000.00) and, with respect to any single defect or fact, would,
with respect to any individual Property, result in a loss to Purchaser or a
reduction in the value of such Property in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00).
"Option Agreements" shall mean the Option Agreement or Agreements, in
substantially the same form as Exhibit I, attached hereto and made a part
hereof, which shall be executed and delivered by Seller and Purchaser at the
Closing, and pursuant to which Seller shall grant Purchaser the exclusive
option to acquire the Option Properties.
"Option Properties" shall mean the real property described on Exhibits
A-10 through A-14, attached hereto and made a part hereof, and all other
property of Seller as more particularly set forth in the Option Agreements.
"Permits" shall mean all permits, licenses (but excluding Seller's
business and operating licenses), approvals, entitlements and other
governmental, quasi-governmental and
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nongovernmental authorizations including, without limitation, certificates of
use and occupancy, required in connection with the ownership, planning,
development, construction, use, operation or maintenance of the Real Property,
to the extent the same are assignable by Seller. As used herein,
"quasi-governmental" shall include the providers of all utility services to the
Real Property.
"Permitted Exceptions" shall mean those title exceptions which have been
approved in writing by Purchaser, or are deemed to have been approved by
Purchaser upon the expiration of the Review Period.
"Personal Property" shall mean all Intangible Property, Warranties, and
Engineering Documents, and all those items of tangible personal property
described on Exhibit J, attached hereto, other than the Fixtures and the
Excluded Personal Property, now or on the Closing Date owned by Seller and
located on or about the Land or Improvements or used in connection with the
operation thereof (specifically excluding personal property owned by employees
of Seller and personal property owned by inmates housed at the Real Property).
"Property" shall mean, collectively, the Land, the Improvements, the
Fixtures, and the Personal Property.
"Purchase Price" shall mean the sum of $_____________________________,
which is allocated to each individual Property, as set forth on Schedule I
attached to this Agreement.
"Real Property" shall mean the Land, the Improvements and the Fixtures.
"Review Period" means a period commencing on the Effective Date and
ending thirty (30) days from the date of Purchaser's receipt of the last of the
Due Diligence Materials; provided, should the Effective Date be less than
thirty (30) days prior to the Closing Date, the Review Period shall terminate
on the date which is five (5) days prior to the Closing Date.
"Right to Purchase Agreement" shall mean the Right to Purchase Agreement
in substantially the same form as Exhibit G attached hereto and made a part
hereof, which shall be executed and delivered by the Parties at the Closing,
and pursuant to the terms of which Seller shall grant Purchaser a right of
first refusal for Purchaser to acquire certain property of Seller and to
provide certain financing to Seller, and an option to purchase certain property
of Seller.
"Search Reports" shall mean reports of searches made of the Uniform
Commercial Code Records of the County in which the Property is located, and of
the office of the Secretary of State of the State in which the Property is
located and in the State in which the principal office of Seller is located,
which searches shall reflect that none of the Property is encumbered by liens
or security interests which will remain on the Property after the Closing. The
Search Reports shall be updated, at Seller's expense, at or within fifteen (15)
days prior to Closing.
"Seller's Operating and Service Agreements" shall mean all management,
service and operating agreements and contracts entered into by Seller with
respect to the Property, including,
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but not limited to, agreements and contracts to house inmates at the Property,
food service and equipment agreements, inmate pay telephone service agreements,
medical and pharmaceutical service and supply agreements, drug testing service
agreements, public performance and licensing agreements for motion picture
video cassettes, inmate educational and instructional service agreements,
refuse service agreements, pest control service agreements and machinery,
equipment and uniform rental and service agreements.
"Survey" shall mean a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in
which the Land is located and reasonably acceptable to Purchaser, which shall:
(a) include a narrative legal description of the Land by metes and bounds
(which shall include a reference to the recorded plat, if any), and a
computation of the area comprising the Land in both acres and gross square feet
(to the nearest one-thousandth of said respective measurement); (b) accurately
show the location on the Land of all improvements (dimensions thereof at the
ground surface level and the distance therefrom to the facing exterior property
lines of the Land), building and set-back lines, parking spaces (including
number of spaces), fences, evidence of abandoned fences, ponds, creeks,
streams, rivers, officially designated 100-year flood plains and flood prone
areas, canals, ditches, easements, roads, rights-of-way and encroachments; (c)
location of encroachments, if any, upon adjoining property, or from adjoining
property, upon the Land; (d) state the zoning classification of the Land; (e)
be certified as of the date of the Survey to the Seller, the Purchaser, the
Title Company, and any third-party lender designated by Purchaser; (f) legibly
identify any and all recorded matters shown on said Survey by appropriate
volume and page recording references; (g) show the location and names of all
adjoining streets and the distance to the nearest streets intersecting the
streets that adjoin the Land; (h) be satisfactory to (and updated from time to
time as may be required by) the Title Company so as to permit it to delete the
standard exception for survey matters and replace it with an exception for the
matters shown on the Survey; and (i) include a written Surveyor's Certification
in substantially the same form as set forth on Exhibit K, attached hereto.
"Title Commitment" shall mean a current commitment or current
commitments issued by the Title Company to the Purchaser pursuant to the terms
of which the Title Company shall commit to issue the Title Policy to Purchaser
in accordance with the provisions of this Agreement, and reflecting all matters
which would be listed as exceptions to coverage on the Title Policy.
"Title Company" shall mean Lawyers Title Insurance Corporation or the
national service office of another title insurance company licensed in each
state in which the Property is located selected by Seller and reasonably
satisfactory to Purchaser.
"Title Policy" shall mean an ALTA Extended Coverage Owner's Policy (or
policies) of Title Insurance (10/17/92 Form), or comparable state promulgated
policies, with liability in the aggregate amount of the Purchase Price, dated
as of the Closing Date, issued by the Title Company, insuring title to the fee
interest in the Real Property in Purchaser, subject only to the Permitted
Exceptions and to the standard printed exceptions included in the ALTA standard
form owner's extended coverage policy of title insurance, with the following
modifications: (a) the exception for survey matters shall be deleted and
replaced by an exception for the matters shown
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on the Survey; (b) the exception for ad valorem taxes shall reflect only taxes
for the current and subsequent years; (c) any exception as to parties in
possession shall be limited to rights of Seller in possession, as lessee only,
pursuant to the Lease; and (d) there shall be no general exception for visible
and apparent easements or roads and highways or similar items (with any
exception for visible and apparent easements or roads and highways or similar
items to be specifically referenced to and shown on the Survey and also
identified by applicable recording information).
"Warranties" shall mean all warranties and guaranties with respect to
the Real Property or Personal Property, whether express or implied, which
Seller now holds or under which Seller is the beneficiary, to the extent the
same are assignable by Seller.
ARTICLE II
AGREEMENTS TO SELL, PURCHASE, LEASE AND OPTION AND
AGREEMENT REGARDING RIGHT TO PURCHASE
2.1 Agreement to Sell and Purchase. On the Closing Date, provided
Purchaser shall not have terminated this Agreement pursuant to the provisions
of Section 4.2 hereof, Seller shall sell, convey, assign, transfer and deliver
to Purchaser and Purchaser shall purchase, acquire and accept from Seller, the
Property, for the Purchase Price and subject to the terms and conditions of
this Agreement. Purchaser acknowledges that Seller may elect to transfer some
or all of the Property to one or more affiliates of Seller prior to the Closing
Date subject to the terms and conditions of this Agreement. In such event,
Seller shall cause such affiliates to sell, convey, assign, transfer and
deliver to Purchaser such portion(s) of the Property as may be transferred to
such affiliate(s). In the event of any such transfers of some or all of the
Property to any affiliate of Seller, Seller shall not be relieved of any of its
obligations or liability hereunder. From and after the date of any such
transfer, the term "Seller" as used herein shall refer to both Corrections
Corporation of America and the recipient of such transfer collectively, and to
each such party individually.
2.2 Agreement to Lease. On the Closing Date, and subject to
performance by the Parties of the terms and provisions of this Agreement,
Purchaser shall lease to Seller and Seller shall lease from Purchaser, the
Property at the rental and upon the terms and conditions set forth in the
Lease.
2.3 Agreement to Grant Option. On the Closing Date, and subject to
performance by the Parties of the terms and provisions of this Agreement,
Seller shall grant to Purchaser options to acquire the Option Properties at the
purchase price and upon the terms and conditions set forth in the Option
Agreements.
2.4 Right to Purchase. On the Closing Date, and subject to the
performance by the Parties of the terms and provisions of this Agreement,
Seller shall grant to Purchaser a right of first refusal to acquire certain
property of Seller and a right of first refusal to provide certain financing
for activities of Seller and an option to purchase certain property of Seller,
upon the terms and conditions set forth in the Right to Purchase Agreement.
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ARTICLE III
PURCHASE PRICE
3.1 Payment of Purchase Price. The Purchase Price shall be paid by
Purchaser delivering to the Seller at the Closing Federal Reserve wire transfer
funds or other immediately available collected funds payable to the order of
the Seller in the sum equal to the Purchase Price, subject to adjustment as
herein provided. On or before the Closing, the Parties shall agree on an
allocation of the Purchase Price as between the Real Property and the Personal
Property.
ARTICLE IV
ITEMS TO BE
FURNISHED TO PURCHASER BY SELLER
4.1 Due Diligence Materials. Seller previously has delivered to
Purchaser for its review, or, if not, within fifteen (15) days after the
Effective Date, Seller shall deliver to Purchaser for its review, the following
items:
a. True, correct, complete and legible copies of all
Business Agreements, Warranties, Permits, Accreditations, Applicable Notices,
Engineering Documents and Seller's Operating and Service Agreements (solely for
the purposes of this Section 4.1a., the terms Business Agreements, Warranties,
Permits, and Engineering Documents shall include all agreements, documents and
instruments otherwise included within such definitions, whether or not the same
are assignable by Seller);
b. True, correct, complete and legible copies of tax
statements or assessments for all real estate and personal property taxes
assessed against the Property for the current and the two prior calendar years,
if available;
c. True, correct, complete and legible listing of all
Fixtures, Personal Property and Excluded Property, including a current
depreciation schedule.
d. True, correct, complete and legible copies of all
existing fire and extended coverage insurance policies and any other insurance
policies pertaining to the Property, if any;
e. True, correct, complete and legible copies of all
instruments evidencing, governing or securing the payment of any loans secured
by the property or related thereto. Seller may make such instruments available
for inspection and copying by Purchaser at Seller's principal office;
f. True, correct, complete and legible copies of any and all
environmental studies or impact reports relating to the Property, if any, and
any approvals, conditions, orders or declarations issued by any governmental
authority relating thereto (such studies and reports shall include, but not be
limited to, reports indicating whether the Property is or has been contaminated
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by Hazardous Materials and whether the Property is in compliance with the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act of
1973, as applicable);
g. True, correct, complete and legible copies of any and all
litigation files with respect to any pending litigation and claim files for any
claims made or threatened, the outcome of which might materially affect the
Property or the use and operation of the Property, together with summaries and
such other more detailed information as Purchaser may reasonably request with
respect to any other pending litigation or claim the outcome of which might
materially affect Seller or materially affect the Property. Seller may make
such files available for inspection and copying by Purchaser at Seller's
principal office.
h. The Title Commitment, Exception Documents, Survey and
Search Reports.
4.2 Due Diligence Review. During the Review Period, Purchaser shall
be entitled to review the Due Diligence Materials delivered by Seller to
Purchaser pursuant to the provisions of Section 4.1 above. If Purchaser shall,
for any reason in Purchaser's sole discretion, judgment and opinion, disapprove
or be dissatisfied with any aspect of such information, or the Property, then
Purchaser shall be entitled to terminate this Agreement by giving written
notice thereof to Seller on or before the expiration of the Review Period,
whereupon this Agreement shall automatically be rendered null and void, all
moneys which have been delivered by Purchaser to Seller or the Title Company
shall be immediately returned to Purchaser and thereafter neither Party shall
have any further obligations or liabilities to the other hereunder.
Alternatively, Purchaser may give written notice setting forth any defect,
deficiency or encumbrance and specify a time within which Seller may remedy or
cure such matter prior to the expiration of the Review Period, but Seller shall
have no obligation to remedy or cure any such matters objected to by Purchaser.
If any defect, deficiency or encumbrance, so noticed, is not satisfied or
resolved to the satisfaction of Purchaser, in Purchaser's sole discretion,
within the time period specified in the written notice, this Agreement shall,
at the option of Purchaser, terminate as provided in this Section; said option
to terminate to be exercised, if at all, by Purchaser giving written notice
thereof to Seller and simultaneously paying Seller the sum of One Hundred
Dollars ($100.00) on the earlier of: (a) within three (3) Business Days after
the expiration of said specified time period, or (b) the Closing Date. In the
event Purchaser fails to exercise its option to terminate this Agreement within
the time and in the manner set forth in this Section 4.2, then Purchaser shall
be deemed to have accepted and approved the Due Diligence Materials and the
Property, and to have waived any such defect, deficiency or encumbrance, and to
have accepted all exceptions to title referenced in the Title Commitment and
all matters shown on the Survey. Such accepted title exceptions and survey
matters shall be included in the term "Permitted Exceptions" as used herein.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.1 Representations and Warranties of Seller. To induce Purchaser
to enter into this Agreement and to purchase the Property, Seller represents
and warrants to Purchaser as follows:
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a. Seller has and at the Closing will have, and will convey,
transfer and assign to Purchaser, good, indefeasible and insurable title to the
Land, free and clear of any deeds of trust, mortgages, liens, encumbrances,
leases, tenancies, licenses, chattel mortgages, conditional sales agreements,
security interests, covenants, conditions, restrictions, judgments,
rights-of-way, easements, encroachments, claims and any other matters affecting
title or use of the Property, except the Permitted Exceptions.
b. Seller has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority to enter into this
Agreement and to consummate the transactions provided for herein, and the
joinder of no person or entity will be necessary to convey the Property fully
and completely to Purchaser at Closing and to lease the Property from Purchaser
following Closing. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and is qualified
to do business in each state in which any of the Property is located. The
consummation of the transactions contemplated herein does not require the
approval of Seller's shareholders or any third party, except such third party
approvals as Seller has obtained or will obtain prior to the Closing Date. The
execution by Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby do not, and at the Closing will not, result in
a breach of any of the terms or provisions of, or constitute a default or a
condition which upon notice or lapse of time or both would ripen into a default
under, Seller's Bylaws or Certificate of Incorporation, any indenture,
agreement, instrument or obligation to which Seller is a party or by which the
Property or any portion thereof is bound; and does not constitute a violation
of any Laws, order, rule or regulation applicable to Seller or any portion of
the Property of any court or of any federal, state or municipal regulatory body
or administrative agency or other governmental body having jurisdiction over
Seller or any portion of the Property.
c. There are no adverse or other parties in possession of
the Property or of any part thereof. Seller has not granted to any party any
license, lease or other right relating to the use or possession of the
Property.
d. No notice has been received from any insurance company
that has issued a policy with respect to any portion of the Property or from
any board of fire underwriters (or other body exercising similar functions),
claiming any defects or deficiencies or requiring the performance of any
repairs, replacements, alterations or other work and as of the Closing no such
notice will have been received which shall not have been cured. No notice has
been received by Seller from any issuing insurance company that any of such
policies will not be renewed, or will be renewed only at a higher premium rate
than is presently payable therefor.
e. No pending condemnation, eminent domain, assessment or
similar proceeding or charge affecting the Property or any portion thereof
exists. Seller has not heretofore received any notice, and has no knowledge,
that any such proceeding or charge is contemplated. Seller has not received
any notice of a proposed increase in the assessed valuation of the Property.
f. All Improvements (including all utilities) have been, or
as of the Closing will be, substantially completed and installed in accordance
with the plans and specifications approved
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by the governmental authorities having jurisdiction to the extent applicable
and are transferable to Purchaser without additional cost. Permanent
certificates of occupancy, all licenses, permits, authorizations and approvals
required by all governmental authorities having jurisdiction, and the requisite
certificates of the local board of fire underwriters (or other body exercising
similar functions) have been, or as of the Closing will be, issued for the
Improvements, and, as of the Closing, where required, all of the same will be
in full force and effect. Except as may be set forth in any of the Due
Diligence Materials, the Improvements, as designed and constructed, comply or
will comply with all statutes, restrictions, regulations and ordinances
applicable thereto, including but not limited to the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act of 1973, as
applicable.
g. The existing water, sewer, gas and electricity lines,
storm sewer and other utility systems on the Land are adequate to serve the
current utility needs of the Property. All utilities required for the
operation of the Improvements enter the Land through adjoining public streets
or through adjoining private land in accordance with valid public or private
easements that will inure to the benefit of Purchaser. All approvals, licenses
and permits required for said utilities have been obtained and are in full
force and effect. All of said utilities are installed and operating, or will
be, and all installation and connection charges have been or will be paid in
full.
h. Except as may be set forth in any of the Due Diligence
Materials, the location, construction, occupancy, operation and use of the
Property (including the Improvements) do not violate any applicable law,
statute, ordinance, rule, regulation, order or determination of any
governmental authority or any board of fire underwriters (or other body
exercising similar functions), or any restrictive covenant or deed restriction
(recorded or otherwise) affecting the Property or the location, construction,
occupancy, operation or use thereof, including, without limitation, all
applicable zoning ordinances and building codes, flood disaster laws and health
and environmental laws and regulations, the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act of 1973, as applicable.
i. Except as may be set forth in any of the Due Diligence
Materials, there are not any structural defects in any of the buildings or
other Improvements constituting the Property. The Improvements, all heating,
electrical, plumbing and drainage at, or servicing, the Property and all
facilities and equipment relating thereto are and, as of the Closing, will be
in good condition and working order and adequate in quantity and quality for
the normal operation of the Property. No part of the Property has been
destroyed or damaged by fire or other casualty. To Seller's knowledge, there
are no unsatisfied requests for repairs, restorations or alterations with
regard to the Property from any person, entity or authority, including but not
limited to any lender, insurance provider or governmental authority.
j. Except as previously disclosed by Seller, no work has
been performed or is in progress at the Property, and no materials will have
been delivered to the Property that might provide the basis for a mechanic's,
materialmen's or other lien against the Property or any portion thereof, or
amounts due for such work and material shall have paid or discharged to
Purchaser's satisfaction as of Closing.
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k. There exist no service contracts, management or other
agreements applicable to the Property, to which Seller is a party or otherwise
known to Seller, other than Seller's Operating and Service Agreements and those
agreements furnished to Purchaser pursuant to Section 4.1.
l. Seller is not in default in any manner which would
result in a material adverse effect on Seller under any of the Business
Agreements, or Seller's Operating and Service Agreements or any of the
covenants, conditions, restrictions, rights-of-way or easements affecting the
Property or any portion thereof, and, to Seller's knowledge, no other party to
any of the foregoing is in default thereunder.
m. There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened against or affecting the Property or any portion
thereof, or relating to or arising out of the ownership or operation of the
Property, or by any federal, state, county or municipal department, commission,
board, bureau or agency or other governmental instrumentality, other than those
disclosed to Purchaser pursuant to Section 4.l. All judicial proceedings
concerning the Property will be finally dismissed and terminated prior to
Closing, excluding inmate lawsuits and other lawsuits in which Seller is
involved in its ordinary course of business.
n. The Property has free and unimpeded access to presently
existing public highways and/or roads (either directly or by way of perpetual
easements); and, to Seller's knowledge, all approvals necessary therefor have
been obtained. To Seller's knowledge, no fact or condition exists which would
result in the termination of the current access from the Property to any
presently existing public highways and/or roads adjoining or situated on the
Property.
o. There are no attachments, executions, assignments for the
benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or
under any other debtor relief laws contemplated by or, to Seller's knowledge,
pending or threatened against Seller or the Property.
p. Except as may be set forth in any of the Due Diligence
Materials, no Hazardous Materials have been installed, used, generated,
manufactured, treated, handled, refined, produced, processed, stored or
disposed of, or otherwise present in, on or under the Property by Seller or to
Seller's knowledge. No activity has been undertaken on the Property by Seller
or to Seller's knowledge which would cause (i) the Property to become a
hazardous waste treatment, storage or disposal facility within the meaning of,
or otherwise bring the Property within the ambit of RCRA or any Hazardous
Materials Law, (ii) a release or threatened release of Hazardous Materials from
the Property within the meaning of, or otherwise bring the Property within the
ambit of, CERCLA or ▇▇▇▇ or any Hazardous Materials Law or (iii) the discharge
of Hazardous Materials into any watercourse, body of surface or subsurface
water or wetland, or the discharge into the atmosphere of any Hazardous
Materials which would require a permit under any Hazardous Materials Law. No
activity has been undertaken with respect to the Property by Seller or to
Seller's knowledge which would cause a violation or support a claim under RCRA,
CERCLA, ▇▇▇▇ or any Hazardous Materials Law. No investigation, administrative
order, litigation or settlement with respect to any Hazardous Materials is in
existence with respect to the Property, nor, to Seller's knowledge, is any of
the foregoing threatened. No notice has been
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received by Seller from any entity, governmental body or individual claiming
any violation of any Hazardous Materials Law, or requiring compliance with any
Hazardous Materials Law, or demanding payment or contribution for environmental
damage or injury to natural resources. Seller has not obtained and, to
Seller's knowledge, is not required to obtain, and Seller has no knowledge of
any reason Purchaser will be required to obtain, any permits, licenses, or
similar authorizations to occupy, operate or use the Improvements or any part
of the Property by reason of any Hazardous Materials Law. Notwithstanding the
representations made herein, such representations are and shall be deemed to be
limited by the matters detailed in any Phase I Preliminary Site Assessment or
other Due Diligence Materials obtained by or provided to Purchaser in
connection herewith.
q. The Property includes all items of property, tangible and
intangible, currently used by Seller in connection with the operation of the
Property, other than the Excluded Personal Property, Seller's Operating and
Service Agreements, and property expressly excluded from the definition of the
Property.
r. To Seller's knowledge, the Due Diligence Materials
delivered to Purchaser are true, correct and complete in all material respects.
Seller hereby agrees to indemnify and defend, at its sole cost and
expense, and hold Purchaser, its successors and assigns, harmless from and
against and to reimburse Purchaser with respect to any and all claims, demands,
actions, causes of action, losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorney's fees and court costs)
actually incurred of any and every kind or character, known or unknown, fixed
or contingent, asserted against or incurred by Purchaser at any time and from
time to time by reason of or arising out of (a) the material breach of any
representation or warranty of Seller set forth in Section 5.1, (b) the failure
of Seller, in whole or in part, to perform any obligation required to be
performed by Seller pursuant to Section 5.1 or (c) the ownership, construction,
occupancy, operation, use and maintenance by Seller or its agents of the
Property prior to the Closing Date. This indemnity applies, without
limitation, to the violation on or before the Closing Date of any Hazardous
Materials Law in effect on or before the Closing Date and any and all matters
arising out of any act, omission, event or circumstance existing or occurring
on or prior to the Closing Date (including, without limitation, the presence on
the Property or release from the Property of Hazardous Materials disposed of or
otherwise released prior to the Closing Date), regardless of whether the act,
omission, event or circumstance constituted a violation of any Hazardous
Materials Law at the time of its existence or occurrence. Subject to the
provisions of Section 10.1, the provisions of this Section 5.1 shall survive
the Closing of the transaction contemplated by this Agreement and shall
continue thereafter in full force and effect for the benefit of Purchaser, its
successors and assigns. Notwithstanding any provision of this Agreement to the
contrary, Purchaser may exercise any right or remedy Purchaser may have at law
or in equity should Seller fail to meet, comply with or perform its indemnity
obligations required by this Section 5.1. In the event a defect, claim or
deficiency is discovered by Purchaser prior to Closing or is noticed in writing
by Seller to Purchaser prior to Closing, Purchaser shall either terminate the
Agreement as provided herein or waive the defect, claim or deficiency and
proceed to Closing.
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5.2 Covenants and Agreements of Seller. Seller covenants and agrees
with Purchaser, from the Effective Date until the Closing or earlier
termination of this Agreement:
a. Seller shall: (i) operate the Property in the ordinary
course of Seller's business and in the same manner as currently operated; and
(ii) fully maintain and repair the Improvements, the Fixtures, and the Personal
Property in good condition and repair.
b. Purchaser shall be entitled to make all inspections or
investigations desired by Purchaser with respect to the Property or any portion
thereof, and shall have complete physical access to the Property, which access
shall occur at such times and in such manner so as to not unreasonably
interfere with Seller's business operations or constitute a safety hazard, as
reasonably determined by Seller.
c. Seller shall cause to be maintained in full force and
effect fire and extended coverage insurance upon the Property and public
liability insurance with respect to damage or injury to persons or property
occurring on or relating to operation of the Property in commercially
reasonable amounts.
d. Seller shall pay when due all bills and expenses of the
Property. Seller shall not enter into or assume any new Business Agreements
with regard to the Property which are in addition to or different from those
furnished and disclosed to Purchaser and reviewed and approved pursuant to
Section 4.1.
e. Seller shall not create or permit to be created any
liens, easements or other conditions affecting any portion of the Property or
the uses thereof without the prior written consent of Purchaser.
f. Seller will pay, as and when due, all interest and
principal and all other charges payable under any indebtedness of Seller
secured by the Property from the date hereof until Closing, and will not suffer
or permit any default or amend or modify the documents evidencing or securing
any such indebtedness without the prior consent of Purchaser.
g. Seller will, subject to limitations provided by law with
respect to privacy rights of inmates, give to Purchaser, its attorneys,
accountants and other representatives, during normal business hours and as
often as may be reasonably requested, full access to all books, records and
files relating to the Property so long as the same does not unreasonably
interfere with Seller's business operations.
h. Seller shall not remove any Personal Property or Fixtures
from the Land or Improvements without replacing same with substantially similar
items of equal or greater value and repairing the damage, if any, to the
Property as a result of such removal.
i. During the pendency of this Agreement, Seller, its
corporate officers, directors, and agents shall not negotiate the sale or other
disposition of the Property with any person or entity other than Purchaser, and
shall not take any steps to initiate, consummate or document the
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sale or other disposition of the Property, or any portion thereof, to any
person or entity other than Purchaser.
j. Prior to the Closing Date, Seller agrees to notify
Purchaser in writing within three (3) Business Days of any offer received by,
delivered to or communicated to Seller for the purchase, sale, acquisition or
other disposition of the Property.
k. Seller shall provide representations, warranties and
consents as may be reasonably required in connection with any public offering
of stock or debt obligations by Purchaser, including, but not limited to,
inclusion of financial statements, summary financial information and other
required information concerning Seller, or Seller as lessee under the Lease, in
any Securities and Exchange Commission filings.
5.3 Representations and Warranties of Purchaser. To induce Seller
to enter into this Agreement and to sell the Property, Purchaser represents and
warrants to Seller as follows:
a. Purchaser has duly and validly authorized and executed
this Agreement, and has full right, title, power and authority to enter into
this Agreement and to consummate the transactions provided for herein, and the
joinder of no person or entity will be necessary to purchase the Property from
Seller at Closing, and to lease the Property to Seller following Closing.
b. The execution by Purchaser of this Agreement and the
consummation by Purchaser of the transactions contemplated hereby do not, and
at the Closing will not, result in a breach of any of the terms or provisions
of, or constitute a default or a condition which upon notice or lapse of time
or both would ripen into a default under, any indenture, agreement, instrument
or obligation to which Purchaser is a party; and does not, and at the Closing
will not, constitute a violation of any Laws, order, rule or regulation
applicable to Purchaser of any court or of any federal, state or municipal
regulatory body or administrative agency or other governmental body having
jurisdiction over Purchaser.
ARTICLE VI
CONDITIONS TO OBLIGATIONS
6.1 Conditions to the Purchaser's Obligations. The obligations of
Purchaser to purchase the Property from Seller and to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, at
all times prior to and as of the Closing (or such other time period specified
below), of each of the following conditions:
a. All of the representations and warranties of Seller set
forth in this Agreement shall be true at all times prior to, at and as of, the
Closing in all material respects and Seller shall deliver a Closing Certificate
in substantially the same form attached hereto as Exhibit D updating such
representations and warranties.
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b. Seller shall have delivered, performed, observed and
complied with, all of the items, instruments, documents, covenants, agreements
and conditions required by this Agreement to be delivered, performed, observed
and complied with by it prior to, or as of, the Closing.
c. Seller shall not be in receivership or dissolution or
have made any assignment for the benefit of creditors, or admitted in writing
its inability to pay its debts as they mature, or have been adjudicated a
bankrupt, or have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy law or any other similar law or statute of the United States
or any state and no such petition shall have been filed against it.
d. No material or substantial adverse change shall have
occurred with respect to the condition, financial or otherwise, of the Seller
or the Property.
e. Neither the Property nor any part thereof or interest
therein shall have been taken by execution or other process of law in any
action prior to Closing.
f. Seller shall have obtained and delivered to Purchaser a
current report, dated no more than ten (10) days prior to this Agreement, from
a licensed pest control company reasonably acceptable to Purchaser, and which
must show the Property to be free of all termite, or other destructive insect
and pest infestation.
g. During the Review Period, Purchaser shall have
satisfactorily completed an inspection of the Property with respect to the
physical condition thereof by agents or contractors selected by Purchaser.
h. During the Review Period, Purchaser shall have received,
in form acceptable to Purchaser, evidence of compliance by the Property with
all building codes, zoning ordinances and other governmental entitlements as
necessary for the operation of the Property for the current and intended use,
including, without limitation, certificates of occupancy and such other
permits, licenses, approvals, agreements and authorizations as are required for
the operation of the Property for the current and intended use.
i. During the Review Period, all necessary approvals,
consents and the like of third parties to the validity and effectiveness of the
transactions contemplated hereby have been obtained.
j. During the Review Period, Purchaser is reasonably
satisfied that the Property is sufficient and adequate for Seller to carry on
the business now being conducted thereon and the Property is in good condition
and repair as reasonably required for the proper operation and use thereof in
compliance with applicable laws.
k. During the Review Period, Purchaser has reviewed and
satisfied itself with respect to the Due Diligence Materials and shall not have
terminated this Agreement pursuant to the provisions of Section 4.2 hereof.
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l. No material portion of the Property shall have been
destroyed by fire or casualty.
m. No condemnation, eminent domain or similar proceedings
shall have been commenced or threatened with respect to any material portion of
the Property.
n. Purchaser shall have been successful in causing the
formation of a real estate investment trust whose interests have been sold to
the public and in connection therewith shall have raised capital in an amount
not less than $_______________________________________.
6.2 Failure of Conditions to Purchaser's Obligations. In the event
any one or more of the conditions to Purchaser's obligations are not satisfied
or waived in whole or in part at any time prior to or as of the Closing,
Purchaser, at Purchaser's option, shall be entitled to: (a) terminate this
Agreement by giving written notice thereof to Seller, whereupon all moneys, if
any, which have been delivered by Purchaser to Seller or the Title Company
shall be immediately refunded to Purchaser and Purchaser shall have no further
obligations or liabilities hereunder; or (b) proceed to Closing hereunder.
6.3 Conditions to the Seller's Obligations. The obligations of
Seller to sell the Property to Purchaser and to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at all times
prior to and as of the Closing (or such other time period specified below), of
each of the following conditions:
a. All of the representations and warranties of Purchaser
set forth in this Agreement shall be true at all times prior to, at and as of,
the Closing in all material respects and Purchaser shall deliver a Closing
Certificate in substantially the same form attached hereto as Exhibit D
updating such representations and warranties.
b. Purchaser shall have delivered, performed, observed and
complied with, all of the items, instruments, documents, covenants, agreements
and conditions required by this Agreement to be delivered, performed, observed
and complied with by it prior to, or as of, the Closing.
c. Purchaser shall not be in receivership or dissolution or
have made any assignment for the benefit of creditors, or admitted in writing
its inability to pay its debts as they mature, or have been adjudicated a
bankrupt, or have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the
federal bankruptcy law or any other similar law or statute of the United States
or any state and no such petition shall have been filed against it.
d. Purchaser shall have been successful in causing the
formation of a real estate investment trust whose interests have been sold to
the public and in connection therewith shall have raised capital in an amount
not less than $_______________________________________.
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6.4 Failure of Conditions to Seller's Obligations. In the event any
one or more of the conditions to Seller's obligations are not satisfied or
waived in whole or in part at any time prior to or as of the Closing, Seller,
at Seller's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereof to Purchaser, whereupon all moneys, if any, which
have been delivered by Seller to Purchaser or the Title Company shall be
immediately refunded to Seller and Seller shall have no further obligations or
liabilities hereunder; or (b) proceed to Closing hereunder.
ARTICLE VII
PROVISIONS WITH RESPECT TO THE CLOSING
7.1 Seller's Closing Obligations. At the Closing, Seller shall
furnish and deliver to the Purchaser, at Seller's expense, the following:
a. The Deed, Title Policy (or the Title Commitment marked-up
and initialed by the Title Company), ▇▇▇▇ of Sale, Certificate of Non-Foreign
Status, Closing Certificate, Right to Purchase Agreement, Lease and Option
Agreements, each duly executed and acknowledged by Seller and, as appropriate,
in recordable form acceptable in the state and county in which the Property is
located.
b. Certificates of casualty and fire insurance for the
Property and satisfactory evidence of all other insurance coverages as required
pursuant to the Lease showing Purchaser as additional insured and loss payee
thereunder, where appropriate, with appropriate provisions for prior notice to
Purchaser in the event of cancellation or termination of such policies and
otherwise in form and substance reasonably satisfactory to Purchaser.
c. Search Reports, dated not more than fifteen (15) days
prior to Closing, evidencing no UCC-1 Financing Statements or other filings in
the name of Seller with respect to the Property which will remain on the
Property after the Closing.
d. Such affidavits or letters of indemnity as the Title
Company shall require in order to omit from the Title Insurance Policy all
exceptions for unfiled mechanic's, materialman's or similar liens.
e. Any and all transfer declarations or disclosure
documents, duly executed by the appropriate parties, required in connection
with the Deed by any state, county or municipal agency having jurisdiction over
the Property or the transactions contemplated hereby.
f. An opinion of Seller's counsel, dated as of the Closing
Date, in the form of Exhibit L-1, attached hereto.
g. Such instruments or documents as are necessary, or
reasonably required by Purchaser or the Title Company, to evidence the status
and capacity of Seller and the authority
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of the person or persons who are executing the various documents on behalf of
Seller in connection with the purchase and sale transaction contemplated
hereby.
h. Such other documents as are reasonably required by
Purchaser to carry out the terms and provisions of this Agreement.
7.2 Purchaser's Closing Obligations. At the Closing, Purchaser
shall furnish and deliver to Seller, at Purchaser's expense, the following:
a. Federal Reserve, wire transfer funds or other immediately
available collected funds payable to the order of Seller representing the cash
portion of the Purchase Price due in accordance with Section 3.1 herein.
b. The Closing Certificate, Right to Purchase Agreement,
Lease and Option Agreements, duly executed and acknowledged by Purchaser.
c. Such instruments or documents as are necessary, or
reasonably required by Seller or the Title Company, to evidence the status and
capacity of Purchaser and the authority of the person or persons who are
executing the various documents on behalf of Purchaser in connection with the
purchase and sale transaction contemplated hereby.
d. An opinion of Purchaser's counsel, dated as of the
Closing Date, in the form of Exhibit L-2, attached hereto.
e. Such other documents as are reasonably required by Seller
to carry out the terms and provisions of this Agreement.
f. All necessary approvals, consents, certificates and the
like of third parties to the validity and effectiveness of the transaction
contemplated hereby.
ARTICLE VIII
EXPENSES OF CLOSING
8.1 Adjustments. There shall be no adjustment of taxes,
assessments, water or sewer charges, gas, electric, telephone or other
utilities, operating expenses, employment charges, premiums on insurance
policies, rents or other normally proratable items, it being agreed and
understood by the Parties that the Seller shall be obligated to pay such items
under the terms of the Lease.
8.2 Closing Costs. Seller shall pay (a) all title examination fees
and premiums for the Title Policy; (b) the cost of the Search Reports; (c) the
cost of the Survey; (d) Seller's legal, accounting and other professional fees
and expenses and the cost of all opinions, certificates, instruments, documents
and papers required to be delivered, or to cause to be delivered, by Seller
hereunder, including without limitation, the cost of performance by Seller of
its obligations
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hereunder; (e) all other costs and expenses which are required to be paid by
Seller pursuant to other provisions of this Agreement; (f) any and all state,
municipal or other documentary or transfer taxes payable in connection with the
delivery of any instrument or document provided in or contemplated by this
Agreement or any agreement or commitment described or referred to herein; and
(g) the charges for or in connection with the recording and/or filing of any
instrument or document provided herein or contemplated by this Agreement or any
agreement or document described or referred to herein. Purchaser shall pay (a)
Purchaser's legal, accounting and other professional fees and expenses and the
cost of all opinions, certificates, instruments, documents and papers required
to be delivered, or to cause to be delivered, by Purchaser hereunder,
including, without limitation, the cost of performance by Purchaser of its
obligations hereunder; and (b) all other costs and expenses which are required
to be paid by Purchaser pursuant to other provisions of this Agreement.
Purchaser and Seller shall each be responsible for other costs in the usual and
customary manner for this kind of transaction in the county where the Property
is located.
8.3 Commissions/Broker's Fees. Seller hereby represents and
warrants to Purchaser that it has not contacted any real estate broker, finder
or any other party in connection with this transaction, and that it has not
taken any action which would result in any real estate broker's, finder's or
other fees being due or payable to any party with respect to the transaction
contemplated hereby. Purchaser hereby represents and warrants to Seller that
Purchaser has not contacted any real estate broker, finder or any other party
in connection with this transaction, and that it has not taken any action which
would result in any real estate broker's, finder's or other fees being due or
payable to any party with respect to the transaction contemplated hereby. Each
Party hereby indemnifies and agrees to hold the other Party harmless from any
loss, liability, damage, cost or expenses (including reasonable attorneys'
fees) resulting to such other Party by reason of a breach of the
representation and warranty made by such Party herein.
ARTICLE IX
DEFAULT AND REMEDIES
9.1 Seller's Default; Purchaser's Remedies.
a. Seller's Default. Seller shall be deemed to be in
default hereunder upon the occurrence of one of the following events: (i) any
of Seller's warranties or representations set forth herein shall be untrue in
any material respect when made or at Closing; or (ii) Seller shall fail to
meet, comply with, or perform any covenant, agreement or obligation on its part
required within the time limits and in the manner required in this Agreement,
which, in either of such events, is not cured by Seller within ten (10) days
following receipt by Seller of written notice of default from Purchaser.
b. Purchaser's Remedies. In the event Seller shall be
deemed to be in default hereunder Purchaser may, at Purchaser's sole option, do
any one or more of the following: (i) terminate this Agreement by written
notice delivered to Seller on or before the Closing; and/or (ii) enforce
specific performance of this Agreement against Seller including Purchaser's
reasonable
20
24
costs and attorneys fees in connection therewith; and/or (iii) exercise any
other right or remedy Purchaser may have at law or in equity by reason of such
default including, but not limited to, the recovery of reasonable attorneys'
fees incurred by Purchaser in connection herewith.
9.2 Purchaser's Default; Seller's Remedies.
a. Purchaser's Default. Purchaser shall be deemed to be in
default hereunder upon the occurrence of one of the following events: (i) any
of Purchaser's warranties or representations set forth herein shall be untrue
in any material respect when made or at Closing; or (ii) Purchaser shall fail
to meet, comply with, or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner required in this
Agreement, which, in either of such events, is not cured by Purchaser within
ten (10) days following receipt by Purchaser of written notice of default from
Seller.
b. Seller's Remedies. In the event Purchaser shall be
deemed to be in default hereunder Seller may, at Seller's sole option, do any
one or more of the following: (i) terminate this Agreement by written notice
delivered to Purchaser on or before the Closing; and/or (ii) enforce specific
performance of this Agreement against Purchaser including Seller's reasonable
costs and attorneys fees in connection therewith; and/or (iii) exercise any
other right or remedy Seller may have at law or in equity by reason of such
default including, but not limited to, the recovery of reasonable attorneys'
fees incurred by Seller in connection herewith.
ARTICLE X
MISCELLANEOUS
10.1 Survival. All of the representations, warranties, covenants,
agreements and indemnities of Seller and Purchaser contained in this Agreement,
to the extent not performed at the Closing, shall survive the Closing for the
period of one (1) year after the Closing Date and shall not be deemed to merge
upon the acceptance of the Deed by Purchaser.
10.2 Right of Assignment. Neither this Agreement nor any interest
herein may be assigned or transferred by Purchaser to any person, firm,
corporation or other entity without the prior written consent of Seller, which
consent may be given or withheld in the sole discretion of Seller.
10.3 Notices. All notices, requests and other communications under
this Agreement shall be in writing and shall be either (a) delivered in person,
(b) sent by certified mail, return-receipt requested, (c) delivered by a
recognized delivery service or (d) sent by facsimile transmission and addressed
as follows:
21
25
If intended for Purchaser: CCA Prison Realty Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇, PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇
If intended for Seller: Corrections Corporation of America
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or by
a recognized delivery service, when delivered to the address of the recipient,
if sent by mail, on the date of receipt by the recipient as shown on the
return-receipt card, or if sent by facsimile, upon receipt by the sender of an
acknowledgment or transmission report generated by the machine from which the
facsimile was sent indicating that the facsimile was sent in its entirety to
the recipient's facsimile number; provided that if a notice, request or other
communication is served by hand or is received by facsimile on a day which is
not a Business Day, or after 5:00 P.M. on any Business Day at the addressee's
location, such notice or communication shall be deemed to be duly received by
the recipient at 9:00 a.m. on the first Business Day thereafter.
10.4 Entire Agreement; Modifications. This Agreement embodies and
constitutes the entire understanding between the Parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements (oral or written) are merged
into this Agreement. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged or terminated except by an instrument in
writing
22
26
signed by the Party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
10.5 Applicable Law. THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TENNESSEE. The Parties agree that jurisdiction and venue
for any litigation arising out of this Agreement shall be in the Courts of
Davidson County, Tennessee or the U.S. District Court for the Middle District
of Tennessee and, accordingly, consent thereto.
10.6 Captions. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the
scope or intent of this Agreement or any of the provisions hereof.
10.7 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors, and assigns.
10.8 Time is of the Essence. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is not
a Business Day, then, in such event, the time of such period shall be extended
to the next day which is a Business Day.
10.9 Waiver of Conditions. Any Party may at any time or times, at
its election, waive any of the conditions to its obligations hereunder, but any
such waiver shall be effective only if contained in a writing signed by such
Party. No waiver by a Party of any breach of this Agreement or of any warranty
or representation hereunder by the other Party shall be deemed to be a waiver
of any other breach by such other Party (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance of payment or
performance by a Party after any breach by the other Party shall be deemed to
be a waiver of any breach of this Agreement or of any representation or
warranty hereunder by such other Party, whether or not the first Party knows of
such breach at the time it accepts such payment or performance. No failure or
delay by a Party to exercise any right it may have by reason of the default of
the other Party shall operate as a waiver of default or modification of this
Agreement or shall prevent the exercise of any right by the first Party while
the other Party continues to be so in default.
10.10 Joinder by Subsidiary. (a) Purchaser acknowledges that (i) the
Bridgeport Pre-Parole Transfer Facility in Bridgeport, Texas (the "Bridgeport
Facility") comprising a portion of the Property is owned by Concept
Incorporated, a Delaware corporation ("Concept"), (ii) the Mineral ▇▇▇▇▇
Pre-Parole Transfer Facility in Mineral Wells, Texas (the "Mineral ▇▇▇▇▇
Facility") comprising a portion of the Property is owned by Mineral ▇▇▇▇▇ R.E.
Holding Corp., a Delaware corporation ("Mineral ▇▇▇▇▇"), and (iii) the ▇▇▇▇
Detention Center in Eloy, Arizona (the "Eloy Facility") comprising a portion of
the Property is owned by United-Concept Limited Partnership, an Arizona limited
partnership ("United-Concept").
23
27
(b) Concept joins in the execution of this Agreement for the
purposes of agreeing to all of the terms and provisions of this Agreement, and
making all of the covenants, representations and warranties under this
Agreement, with respect to the Bridgeport Facility. The term "Seller" as used
herein shall refer to both Corrections Corporation of America and Concept
collectively and to each such party individually, jointly and severally, with
respect to the Bridgeport Facility.
(c) Mineral ▇▇▇▇▇ joins in the execution of this Agreement of
the purposes of agreeing to all of the terms and provisions of this Agreement,
and making all of the covenants, representations and warranties under this
Agreement, with respect to the Mineral ▇▇▇▇▇ Facility. The term "Seller" as
used herein shall refer to both Corrections Corporation of America and Mineral
▇▇▇▇▇ collectively and to each such party individually, jointly and severally,
with respect to the Mineral ▇▇▇▇▇ Facility.
(d) United-Concept joins in the execution of this Agreement
of the purposes of agreeing to all of the terms and provisions of this
Agreement, and making all of the covenants, representations and warranties
under this Agreement, with respect to the Eloy Facility. The term "Seller" as
used herein shall refer to both Corrections Corporation of America and
United-Concept collectively and to each such party individually, jointly and
severally, with respect to the Eloy Facility.
24
28
EXECUTED to be effective as of the Effective Date.
SELLER: PURCHASER:
CORRECTIONS CORPORATION CCA PRISON REALTY TRUST
OF AMERICA
By:
-----------------------------------
By:
--------------------------------
Its:
----------------------------------
Its:
-------------------------------
Date:
---------------------------------
Date:
------------------------------
Purchaser's Tax Identification
Number:
-------------------------------
Seller's Tax Identification Number:
-----------------------------------
CONCEPT, INCORPORATED
By:
--------------------------------
Its:
-------------------------------
Date:
------------------------------
Tax Identification Number:
---------
MINERAL ▇▇▇▇▇ R.E. HOLDING CORP.
By:
--------------------------------
Its:
-------------------------------
Date:
------------------------------
Tax Identification Number:
---------
UNITED-CONCEPT LIMITED
PARTNERSHIP
By: ,
--------------------------------
General Partner
By:
-----------------------------
Its:
---------------------------
Date:
---------------------------
Tax Identification Number:
--------------------------------
25
29
AGREEMENT OF TITLE COMPANY
By its execution of this Agreement, the Title Company agrees to: (a)
timely file a return with the Internal Revenue Service on Form 1099-B, Form
1099-S and/or such other form or forms as the Internal Revenue Service may by
form or regulation require, and (b) furnish Purchaser with a written statement
showing the name and address of the Title Company and the information shown on
such form or forms with respect to Purchaser, and (c) comply with the
provisions of the Agreement which are applicable to the Title Company. Such
form or forms shall be filed in order that the parties to this transaction will
be in compliance with Section 6045 of the Internal Revenue Code of 1986, as
amended. Purchaser and Seller shall each provide their taxpayer identification
numbers to the Title Company so that such information may be included in the
form or forms filed by the Title Company.
LAWYERS TITLE INSURANCE CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
26
30
LIST OF SCHEDULES AND EXHIBITS
Schedule I - Purchase Price
Exhibit A - Real Property Descriptions
Exhibit B - ▇▇▇▇ of Sale and Assignment
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Closing Certificate
Exhibit E - Deed
Exhibit F - Excluded Personal Property
Exhibit G - Right to Purchase Agreement
Exhibit H - Master Agreement to Lease and Lease Agreement
Exhibit I - Option Agreements
Exhibit J - Personal Property
Exhibit K - Surveyor's Certificate
Exhibit L-1 - Opinion of Seller's Counsel
Exhibit L-2 - Opinion of Purchaser's Counsel
31
SCHEDULE I
PURCHASE PRICE
Houston Processing Center $
----------------
Laredo Processing Center $
----------------
Bridgeport Pre-Parole Transfer Facility $
----------------
Mineral ▇▇▇▇▇ Pre-Parole Transfer Facility $
----------------
West Tennessee Detention Facility $
----------------
Leavenworth Detention Facility $
----------------
Central Arizona Detention Facility $
----------------
T. ▇▇▇ ▇▇▇▇▇ Conventional Center $
----------------
▇▇▇▇ Detention Center $
----------------
32
EXHIBITS
TO
AGREEMENT OF SALE AND PURCHASE
BY AND BETWEEN
CORRECTIONS CORPORATION OF AMERICA,
a Delaware corporation
("SELLER")
AND
CCA PRISON REALTY TRUST,
a Maryland real estate investment trust
("PURCHASER")
33
EXHIBIT A
PROPERTY DESCRIPTION
34
EXHIBIT A-1
Bridgeport Pre-Parole Transfer Facility
Bridgeport, Texas
35
EXHIBIT A-2
Central Arizona Detention Center
Florence, Arizona
36
EXHIBIT A-3
Mineral ▇▇▇▇▇ Pre-Parole Transfer Facility
Mineral Wells, Texas
37
EXHIBIT A-4
Leavenworth Detention Center
Leavenworth, Kansas
38
EXHIBIT A-5
West Tennessee Detention Facility
Mason, Tennessee
39
EXHIBIT A-6
Houston Processing Center
Houston, Texas
40
EXHIBIT A-7
T. ▇▇▇ ▇▇▇▇▇ Correctional Facility
Taylor, Texas
41
EXHIBIT A-8
Laredo Processing Center
Laredo, Texas
42
EXHIBIT A-9
▇▇▇▇ Detention Center
Eloy, Arizona
43
EXHIBIT ▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
44
EXHIBIT ▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
45
EXHIBIT A-12
Southern Colorado Correctional Facility
Walsenburg, Colorado
46
EXHIBIT A-13
North Fork Correctional Facility
Sayre, Oklahoma
47
EXHIBIT A-14
Whiteville Correctional Center
Whiteville, Tennessee
48
EXHIBIT B
▇▇▇▇ OF SALE AND ASSIGNMENT
STATE OF
-------------------------- Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF Section
-------------------------
THAT, CORRECTIONS CORPORATION OF AMERICA, a Delaware corporation ("Grantor" or
"Seller"), for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration to it in hand paid by CCA
PRISON REALTY TRUST, a Maryland real estate investment trust ("Grantee" or
"Purchaser"), to the extent legally permissible, has GRANTED, SOLD, ASSIGNED,
TRANSFERRED, CONVEYED, and DELIVERED and does by these presents GRANT, SELL,
ASSIGN, TRANSFER, CONVEY, and DELIVER unto the said Purchaser, all of Seller's
right, title and interest in and to the following described properties, rights,
and interests (such properties, rights and interests being hereinafter
collectively referred to as the "Personal Property", as defined in that certain
Agreement of Sale and Purchase, dated as of ______________, 199___, by and
between Seller and Purchaser and being hereinafter referred to as the
"Agreement"), located on or about that certain land described on Exhibit A,
attached hereto and incorporated herein for all purposes, or the buildings,
improvements, structures and Fixtures (as defined in the Agreement) thereon
(such land, buildings, improvements, structures and Fixtures being hereinafter
collectively referred to as the "Real Property" as defined in the Agreement),
or used in connection with the operation thereof:
All permits, licenses (but excluding Seller's business and
operating licenses), approvals, entitlements and other governmental,
quasi-governmental and nongovernmental authorizations including, without
limitation, certificates of use and occupancy, required in connection
with the ownership, planning, development, construction, use, operation
or maintenance of the Real Property, to the extent the same are
assignable by Seller (the "Permits" as defined in the Agreement), any
leases, contract rights, loan agreements, mortgages, easements,
covenants, restrictions or other agreements or instruments affecting all
or a portion of the Real Property or Personal Property, to the extent
the same are assignable by Seller, but specifically excluding all of
Seller's Operating and Service Agreements (as defined in the Agreement)
(the "Business Agreements" as defined in the Agreement), and other
intangible property or any interest therein owned or held by Seller in
connection with the Real Property, including all water rights and
reservations, rights to use the trade name applicable to the Real
Property, and zoning rights related to the Real Property, or any part
thereof, to the extent the same are assignable by Seller; provided,
however, such Personal Property shall not include the general corporate
trademarks, trade names (except as set forth above), service marks,
logos or insignia or the books and records of Seller, Seller's accounts
receivable and Seller's business and operating licenses for the
facilities on the Real Property (the "Intangible Property" as defined in
the Agreement).
49
All warranties and guaranties with respect to the Real
Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the
same are assignable by Seller (the "Warranties" as defined in the
Agreement).
All site plans, surveys, soil and substrata studies,
architectural drawings, plans and specifications, engineering plans and
studies, floor plans, landscape plans, Americans with Disabilities Act
compliance reports, environmental reports and studies, professional
inspection reports, construction and/or architect's reports or
certificates, feasibility studies, appraisals, and other similar plans
and studies that relate to the Real Property, to the extent the same are
assignable by Seller or the Personal Property (the "Engineering
Documents" as defined in the Agreement).
All those items of tangible personal property described on
Exhibit B, attached hereto and incorporated herein for all purposes, now
or on the Closing Date owned by Seller.
THERE IS EXPRESSLY EXCLUDED FROM THE PERSONAL PROPERTY THE FOLLOWING:
(i) Excluded Personal Property as defined in the Agreement, (ii) Fixtures as
defined in the Agreement, (iii) personal property owned by employees of Seller
and personal property owned by inmates housed at the Real Property, and (iv)
Seller's Operating and Service Agreements as defined in the Agreement.
TO HAVE AND TO HOLD the Personal Property unto the said Purchaser, its
successors and assigns, forever, and Seller does hereby bind itself and its
successors to warrant and forever defend, all and singular, title to the said
Personal Property unto the said Purchaser, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof by, through or under Seller, but not further or otherwise.
Seller and its successors hereby warrants, represents, covenants and
agrees with Purchaser as follows:
(i) That Seller is the owner of the Personal Property, which
Personal Property is free and clear of any and all liens, security interests,
or other encumbrances except the Permitted Exceptions (as defined in the
Agreement) and attached hereto as Schedule A and incorporated herein by
reference for all purposes, and this sale and assignment is made and accepted
expressly subject to the matters set forth on Schedule A attached hereto;
(ii) That Seller shall indemnify and hold harmless Purchaser from
and against any and all liability, loss, damage, cost or expense, including
reasonable attorneys' fees, which Purchaser may suffer or incur by reason of
any act or cause of action occurring or accruing prior to the effective date
hereof and arising out of the ownership and/or operation of the Real Property
or the Personal Property, except for (a) any obligations expressly assumed
under the Agreement by the Purchaser; and (b) any liability, loss, damage, cost
or expense arising out of the actions or omissions of the Purchaser.
50
Purchaser and its successors and assigns hereby warrant, represent,
covenant and agree with Seller that Purchaser shall indemnify and hold harmless
Seller from and against any and all liability, loss, damage, cost or expense,
including reasonable attorneys' fees, which Seller may suffer or incur by
reason of any act or cause of action occurring or accruing subsequent to the
effective date hereof and arising out of the ownership and/or operation of the
Real Property or the Personal Property,except (i) any obligations which are
expressly retained by the Seller pursuant to the terms and provisions of a
written agreement with the Purchaser, and (ii) any liability, loss, damage,
cost or expense arising out of the actions or omissions of the Seller.
The agreements, covenants, warranties and representations herein set
forth shall be binding upon and shall inure to the benefit of Seller and
Purchaser and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this ▇▇▇▇ of Sale and
Assignment to be executed by its duly authorized officers effective as of the
day of _____________, 19___.
SELLER:
CORRECTIONS CORPORATION OF AMERICA
By:
----------------------------------------
Its:
---------------------------------------
PURCHASER:
CCA PRISON REALTY TRUST
By:
----------------------------------------
Its:
---------------------------------------
51
STATE OF
--------------------------- )
COUNTY OF
------------------------- )
Before me, the undersigned, a Notary Public of the State and County
aforesaid, personally appeared ________________________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged _____ self to be ___________________________
________________________________ of CORRECTIONS CORPORATION OF AMERICA, the
within named bargainor, a Delaware corporation, and that ____ he, as such
________________________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by ___ self as ________________________________.
WITNESS my hand, at office, this _______ day of ____________________,
1997.
--------------------------------------------
Notary Public
My Commission Expires:
------------------------------
STATE OF
--------------------------- )
COUNTY OF
------------------------- )
Before me, the undersigned, a Notary Public of the State and County
aforesaid, personally appeared ________________________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged _____ self to be ____________________________
________________________________ of CCA PRISON REALTY TRUST, the within named
bargainor, a Maryland real estate investment trust, and that ___ _he, as such
________________________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the real estate investment trust by ___ self as ______________________________
________________________________.
Witness my hand, at office, this _________ day of _______________________,
1997.
---------------------------------------------
Notary Public
My Commission Expires:
------------------------------
52
Exhibit A to ▇▇▇▇ of Sale and Assignment
Property Description
53
Exhibit B to ▇▇▇▇ of Sale and Assignment
Items of Personal Property
54
Schedule A to ▇▇▇▇ of Sale and Assignment
Permitted Exceptions
55
EXHIBIT C
CERTIFICATE OF NON-FOREIGN STATUS
STATE OF
-------------------------- Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF Section
-------------------------
BEFORE ME, the undersigned authority, on this day personally appeared
_______________________ ("Affiant"), of CORRECTIONS CORPORATION OF AMERICA
("Seller"), who after being duly sworn, upon Seller's oath did depose and state
under penalty of perjury that for purposes of Section 1445 of the Internal
Revenue Code of 1986, as amended, in connection with the sale, transfer and
conveyance of that certain property located and particularly described on
Exhibit A attached hereto and incorporated herein for all purposes (the
"Property"), and in order to inform CCA PRISON REALTY TRUST, a Maryland real
estate investment trust ("Purchaser"), that withholding of tax is not required
upon the disposition of the Property by Seller:
(i) that Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as these terms are defined
in the Internal Revenue Code and Income Tax Regulations);
(ii) that Seller's United States taxpayer identification number is
_________________________________________;
(iii) that Seller's mailing address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(iv) that Seller understands that this Affidavit may be disclosed
to the Internal Revenue Service by Purchaser and that any
false statement contained herein could be punishable by fine,
imprisonment or both.
Under penalties of perjury Affiant declares that he has examined this
Affidavit, that to the best of his knowledge and belief it is true, correct and
complete, and that Affiant has the authority to sign this Affidavit on behalf
of Seller.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------------
Its:
-----------------------------------------
56
STATE OF
-------------------------- )
COUNTY OF
------------------------- )
Before me, the undersigned, a Notary Public of the State and County
aforesaid, personally appeared ________________________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged _____ self to be _____________________________
________________________________ of CORRECTIONS CORPORATION OF AMERICA, the
within named bargainor, a Delaware corporation, and that ____ he, as such
________________________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by ___ self as ________________________________.
WITNESS my hand, at office, this _______ day of ____________________,
1997.
---------------------------------------------
Notary Public
My Commission Expires:
------------------------------
57
Exhibit A to Certificate of Non-Foreign Status
Property Description
58
EXHIBIT D
CLOSING CERTIFICATE
The undersigned hereby certifies that the representations and warranties
contained in Section [5.1/5.3] of that certain Agreement of Sale and Purchase
(the "Agreement") dated _______________________________, by and between
CORRECTIONS CORPORATION OF AMERICA, a Delaware corporation ("Seller"), and CCA
PRISON REALTY TRUST, a Maryland real estate investment trust ("Purchaser"),
which representations and warranties are incorporated herein as though set out
in full herein, are true and correct in all material respects as of the Closing
Date defined in the Agreement as if made on and as of the Closing Date, shall
survive the consummation of the purchase and sale transaction as contemplated
by and for the time period provided in the Agreement and shall not be deemed to
merge upon the acceptance of the deed by Purchaser delivered in connection with
the consummation of such purchase and sale transaction.
This certificate is given to [Seller/Purchaser] with the realization and
understanding that all matters referenced above are material to the decision of
[Seller/Purchaser] to close said sale and purchase on the Closing Date and
[Seller/Purchaser] is acting in reliance thereon.
Dated this ________ day of _______________________, 199___.
---------------------------------------------
By:
------------------------------------------
Its:
-----------------------------------------
59
STATE OF )
--------------------------
COUNTY OF )
-------------------------
Before me, the undersigned, a Notary Public of the State and County
aforesaid, personally appeared ________________________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged _____ self to be ___________________________
________________________________ of __________________________________, the
within named bargainor, a Delaware corporation, and that ____ he, as such
________________________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by ___ self as ________________________________.
WITNESS my hand, at office, this _______ day of ____________________,
1997.
---------------------------------------------
Notary Public
My Commission Expires:
------------------------------
60
EXHIBIT E
DEED
This Instrument prepared by:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ADDRESS NEW OWNER: SEND TAX ▇▇▇▇ TO: MAP-PARCEL
CCA Prison Realty Trust Parcel _______
------------------------------------
------------------------------------
SPECIAL WARRANTY DEED
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00), cash in
hand paid by the hereinafter named GRANTEE, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
CORRECTIONS CORPORATION OF AMERICA, a Delaware corporation (hereinafter the
"GRANTOR"), has bargained and sold, and by these presents does hereby transfer,
assign and convey unto CCA PRISON REALTY TRUST, a Maryland real estate
investment trust (hereinafter the "GRANTEE"), its successors and assigns, that
certain tract or parcel of land in ________________, _______________ County,
____________________________, described on Exhibit A, attached hereto and
incorporated herein by reference.
This is improved property known as _________________________________
_____________________________________________________________________________.
61
The conveyance of the property herein, and all covenants and
warranties of GRANTOR contained herein, are made expressly subject to those
matters set forth on Exhibit B, attached hereto and incorporated herein by
reference.
TO HAVE AND TO HOLD said property, with the appurtenances, estate,
title and interest thereto belonging to the said GRANTEE, and GRANTEE'S
successors and assigns, forever. GRANTOR covenants that the title to said
property is free from all encumbrances made or suffered by GRANTOR, except as
otherwise set forth herein; and GRANTOR further covenants and binds itself, and
its successors and assigns, to warrant specially and forever defend the title
to said property to the said GRANTEE, its successors and assigns, against the
lawful claims of all persons claiming by, through or under GRANTOR, but not
further or otherwise.
IN WITNESS WHEREOF, the GRANTOR has caused this Special Warranty Deed
to be executed as of this _____ day of ___________, 19__.
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------------
Its:
-----------------------------------------
62
STATE OF
------------------------- )
COUNTY OF
------------------------- )
Before me, the undersigned, a Notary Public of the State and County
aforesaid, personally appeared ________________________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged _____ self to be ___________________________
________________________________ of CORRECTIONS CORPORATION OF AMERICA, the
within named bargainor, a Delaware corporation, and that ____ he, as such
________________________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by ___ self as ________________________________.
WITNESS my hand, at office, this _______ day of ____________________, 1997.
----------------------------------------
Notary Public
My Commission Expires:
------------------------------
STATE OF
----------------------- )
COUNTY OF
---------------------- )
The actual consideration or value, whichever is greater, for this transfer
is $________________.
---------------------------------------
Affiant
Subscribed and sworn to before me this
________ day of ________________, 1997.
-------------------------------------
Notary Public
My Commission Expires:
----------------------------
63
Exhibit A to Special Warranty Deed
Property Description
64
Exhibit B to Special Warranty Deed
Permitted Exceptions
65
EXHIBIT F
EXCLUDED PERSONAL PROPERTY
66
EXHIBIT G
RIGHT TO PURCHASE AGREEMENT
67
EXHIBIT H
MASTER AGREEMENT TO LEASE
AND
LEASE AGREEMENT
68
EXHIBIT I
OPTION AGREEMENTS
69
EXHIBIT J
PERSONAL PROPERTY
70
EXHIBIT K
SURVEYOR'S CERTIFICATE
This is to certify to Corrections Corporation of America and CCA Prison
Realty Trust, and their respective successors and assigns, and ____________
__________________________________________ Title Insurance Company that this
map or plat of survey is based on a field survey of the property depicted
hereon (the "Property") made on __________________________, 199___, by me or
directly under my supervision in accordance with the current "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys", jointly established and
adopted by American Land Title Association and American Congress on Surveying
and Mapping, and to the best of my professional knowledge, information and
belief,
1. correctly represents the facts found at the time of survey;
2. except as shown on the survey map, there are no discrepancies between the
boundary lines of the Property as shown on the survey map and as
described in the legal description of record;
3. the boundary line dimensions as shown on the survey map form a
mathematically closed figure within + 0.01 foot;
4. except as shown on the survey map, the boundary lines of the Property are
contiguous with the boundary lines of all adjoining parcels, roads,
highways, streets or alleys as described in their most recent respective
legal descriptions of record;
5. the field survey meets the Accuracy Standards (as adopted by ALTA and
ACSM and in effect on the date of this certification) of an Urban survey
as defined therein;
6. all monuments shown hereon actually exist, and the location, size and
type of material thereof are correctly shown;
7. except as shown hereon, there are no visible encroachments onto the
Property, there are no visible easements or rights-of-way on the Property
and there are no visible discrepancies, conflicts, shortages in area or
boundary line conflicts;
8. the size, location and type of improvements are as shown hereon, and all
are located within the boundaries of the Property and with applicable
minimum building setback lines, as shown herein;
9. the distance from the nearest intersecting street or road is as shown;
10. all roadways shown on the survey map are dedicated public roads unless
otherwise indicated;
11. the boundaries, dimensions and other details shown hereon are accurate,
true and correct;
71
12. the Property is not located in a 100-Year Flood Plain or in an identified
"flood prone area", as defined by the U.S. Department of Housing and
Urban Development, pursuant to the Flood Disaster Protection Act of 1973,
as amended, as reflected by Flood Insurance Rate Map Panel #___________,
dated ____________________, which map panel covers the area in which the
Property is situated. Said map indicates that the Property is located in
Flood Zone __________ which means ______________________________________
______________________________; and,
13. this survey map shows all items described in Items 1, 2, 3, 4, 6, 7(a),
7(b)(1), 8, 9, 10, 11 and 13 of Table A of such ALTA/ACSM Standards.
---------------------------------------------
Surveyor or Engineer
Registered Land Surveyor No.
-----------------
72
EXHIBIT L-1
OPINION OF SELLER'S COUNSEL
73
EXHIBIT L-2
OPINION OF PURCHASER'S COUNSEL