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Exhibit 1
CCA PRISON REALTY TRUST
18,500,000 COMMON SHARES
UNDERWRITING AGREEMENT
July __, 1997
X.X. XXXXXXXX & CO., L.L.C.
A.G. XXXXXXX & SONS, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
XXXXXXXX INC.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
X.X. Xxxxxxxx Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
CCA Prison Realty Trust, a Maryland real estate investment trust (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters") for whom you are acting as the representatives (the
"Representatives") 18,500,000 shares (collectively, the "Firm Shares"), of the
Common Shares, $.01 par value per share (the "Common Shares"), of the Company.
The Firm Shares are to be sold to the Underwriters, acting severally and not
jointly, in such amounts as are set forth in Schedule I hereto opposite the name
of such Underwriter. The Company proposes to grant to the Underwriters an option
to purchase up to 2,775,000 additional Common Shares as provided for in Section
2 of this Agreement for the purpose of covering over-allotments (the "Option
Shares"). The Firm Shares and the Option Shares purchased pursuant to this
Agreement are herein called the "Shares."
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), a
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registration statement on Form S-11 (Registration No. 333-25727),
including the related preliminary prospectus relating to the Shares.
Copies of such registration statement and any amendments, including any
post-effective amendments, and all forms of the related prospectuses
contained therein and any supplements thereto, have been delivered to
you. Such registration statement, including the prospectus, Part II,
all financial schedules and exhibits thereto, all information deemed to
be a part of such registration statement pursuant to Rule 430A under
the Securities Act and any related registration statement filed
pursuant to Rule 462(b) under the Securities Act, at the time when they
shall become effective are herein referred to as the "Registration
Statement," and the prospectus included as part of the Registration
Statement on file with the Commission that discloses all the
information that was omitted from the prospectus on the effective date
pursuant to Rule 430A of the Rules and Regulations (as defined below)
and in the form filed pursuant to Rule 424(b) under the Securities Act
is herein referred to as the "Final Prospectus." The prospectus
included as part of the Registration Statement on the date when the
Registration Statement became effective is referred to herein as the
"Effective Prospectus." Any prospectus included in the Registration
Statement and in any amendment thereto prior to the effective date of
the Registration Statement is referred to herein as a "Preliminary
Prospectus." For purposes of this Agreement, "Rules and Regulations"
mean the rules and regulations promulgated by the Commission under
either the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Securities Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the foregoing does
not apply to statements or omissions made in reliance upon and in
conformity with written information relating to any Underwriter
furnished to the Company by any Underwriter specifically for use
therein. When the Registration Statement becomes effective and at all
times subsequent thereto up to and including the First Closing Date (as
hereinafter defined), (i) the Registration Statement, the Effective
Prospectus and Final Prospectus and any amendments or supplements
thereto will contain all statements which are required to be stated
therein in accordance with the Securities Act and the Rules and
Regulations and will comply with the requirements of the Securities Act
and the Rules and Regulations, and (ii) neither the Registration
Statement, the Effective Prospectus nor the Final Prospectus nor any
amendment or supplement thereto will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading; except that the
foregoing does not apply to statements or omissions made in reliance
upon and in conformity with written information relating to any
Underwriter furnished to the Company by any Underwriter specifically
for use therein.
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(c) The Company is duly formed and validly existing and in
good standing under the laws of the State of Maryland with full power
and authority to own its properties and conduct its business as now
conducted and is duly qualified or authorized to do business and is in
good standing in all jurisdictions where the failure to so qualify
could have a material adverse effect upon the conduct of business or
the ownership or leasing of property by the Company in such
jurisdiction. The Company holds all material licenses, consents and
approvals, and has satisfied all material eligibility and other similar
requirements imposed by federal and state regulatory bodies,
administrative agencies or other governmental bodies, agencies or
officials, in each case as required for the conduct of the business in
which it is engaged and is contemplated to be engaged in the Effective
Prospectus and the Final Prospectus. The Company does not have a direct
or indirect ownership interest in any corporation, joint venture,
partnership or other entity.
(d) The capitalization of the Company is as set forth under
the caption "Capitalization" in the Effective Prospectus and the Final
Prospectus, and the Company's capital shares conform to the description
thereof contained under the caption "Description of Capital Shares" in
the Effective Prospectus and the Final Prospectus. All the issued
capital shares of the Company have been duly authorized and validly
issued, are fully paid and nonassessable. None of the issued capital
shares of the Company have been issued in violation of, or are subject
to, any preemptive or similar rights. The Shares to be sold by the
Company hereunder have been duly and validly authorized and, upon
issuance and delivery and payment therefor in the manner herein
described, will be validly issued, fully paid and nonassessable and
will not be subject to preemptive rights or other rights to subscribe
for or to purchase. Except as set forth in the Effective Prospectus and
the Final Prospectus, (i) the Company does not have outstanding any
options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or
commitments to issue or sell, any Common Shares and (ii) there are no
preemptive rights or other rights to subscribe for or to purchase, or
any restriction upon the transfer of, any Common Shares pursuant to the
Company's declaration of trust, bylaws or any agreement or other
instrument to which the Company is a party or by which it may be bound.
Neither the filing of the Registration Statement nor the offer or sale
of the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or
relating to the registration of any Common Shares or any other
securities of the Company. The Underwriters will receive good and
marketable title to the Shares to be issued and delivered hereunder,
free and clear of all liens, encumbrances, claims, security interests,
restrictions, shareholders' agreements and voting trusts whatsoever.
(e) The form of share certificate to be used to evidence the
Common Shares will be in due and proper form and will comply with all
applicable legal requirements.
(f) All offers and sales by the Company of the Company's
securities prior to the date hereof were at all relevant times duly
registered or the subject of an available
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exemption from the registration requirements of the Securities Act, and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue
Sky laws.
(g) The Company has full legal right, power and authority to
enter into this Agreement and to sell and deliver the Shares to be sold
by it to the several Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms. No
consent, approval, authorization or order of any court or governmental
agency or body or third party is required for the performance of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained and
such as may be required by the National Association of Securities
Dealers, Inc. ("NASD") or under the Securities Act or state securities
or Blue Sky laws in connection with the purchase and distribution of
the Shares by the several Underwriters. The issue and sale of the
Shares by the Company, the Company's performance of this Agreement and
the consummation of the transactions contemplated hereby will not
result in a breach or violation of, or conflict with, any of the terms
and provisions of, or constitute a default by the Company under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company is a party or to which the
Company or any of its properties is subject, the declaration of trust,
bylaws or other governing instruments of the Company or any statute or
any judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to the Company or any of its
properties, except for such breach, violation or conflict which could
not, singly or in the aggregate, have a material adverse effect on the
Company or could not, singly or in the aggregate, materially impair the
performance by the Company of its obligations under this Agreement. The
Company is not in violation of its declaration of trust, bylaws or
other governing instruments or any law, administrative rule or
regulation or arbitrators' or administrative court decree, judgment or
order or in violation or default (there being no existing state of
facts which with notice or lapse of time or both would constitute a
default) in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
deed of trust, mortgage, loan agreement, note, lease, agreement or
other instrument or permit to which it is a party or by which it or any
of its properties is or may be bound, except for such violation or
conflict which could not, singly or in the aggregate, have a material
adverse effect on the Company or could not, singly or in the aggregate,
materially impair the performance by the Company of its obligations
under this Agreement.
(h) At the Closing Date, each of the Purchase Agreement, the
Option Agreements, the Right to Purchase Agreement, the Trade Name Use
Agreement, the Leases, the Master Lease (each as defined in the
Effective Prospectus), and the employment agreements with each of J.
Xxxxxxx Xxxxxxx, D. Xxxxxx Xxxxxx III and Xxxxxxx X. Xxxxxx
(collectively, the "Employment Agreements") will have been duly and
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validly authorized, executed and delivered by the Company and will be
valid and binding agreements of the Company enforceable in accordance
with their respective terms. At the Closing Date, the agreements
pursuant to which certain persons have agreed not to sell their Common
Shares for a specified period of time (the "Lockup Agreements") will
have been duly and validly authorized, executed and delivered by the
parties thereto and will be valid and binding agreements, enforceable
in accordance with their terms. The Purchase Agreement, the Option
Agreements, the Right to Purchase Agreement, the Trade Name Use
Agreement, the Leases, the Master Lease, the Employment Agreements and
the Lockup Agreements are sometimes hereinafter called the "Operative
Documents." The execution, delivery and performance of the Operative
Documents and the consummation of the transactions contemplated therein
and compliance by the Company with its obligations thereunder have been
duly authorized by all necessary action and will not contravene any
provision of applicable law or the declaration of trust or by-laws of
the Company or any agreement or other instrument binding upon the
Company, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company, and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under the Operative Documents, except (i)
such as may be required by the federal securities laws or the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares and (ii) to the extent that the
failure to obtain such would not, singly or in the aggregate, have a
material adverse effect on the Company.
(i) The historical and pro forma financial statements,
together with the related schedules and notes, of the Company, included
in the Registration Statement, the Effective Prospectus and the Final
Prospectus, conform to the requirements of the Securities Act and the
Rules and Regulations. Such historical financial statements fairly
present the financial position of the Company at the respective dates
indicated in accordance with generally accepted accounting principles
applied on a consistent basis for the periods indicated. Such pro forma
financial statements have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
present fairly the transactions reflected thereby as indicated in the
Prospectus. The financial and statistical data set forth in the
Effective Prospectus and the Final Prospectus fairly presents the
information set forth therein on the basis stated in the Effective
Prospectus and the Final Prospectus. Xxxxxx Xxxxxxxx LLP, whose report
is included in the Effective Prospectus and the Final Prospectus, are
independent accountants as required by the Securities Act and the Rules
and Regulations.
(j) Subsequent to April 23, 1997, the Company has not
sustained any material loss or interference with its business or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, which is not disclosed in the
Effective Prospectus
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and the Final Prospectus; and subsequent to the respective dates as of
which information is given in the Registration Statement, the Effective
Prospectus and the Final Prospectus, (i) the Company has not incurred
any material liabilities or obligations, direct or contingent, or
entered into any transactions not in the ordinary course of business,
and (ii) there has not been any issuance of options, warrants or rights
to purchase interests in, or the capital shares of, the Company, or any
adverse change, or any development involving a prospective adverse
change, in the general affairs, management, business, prospects,
financial position, net worth or results of operations of the Company,
except in each case as described in the Effective Prospectus and the
Final Prospectus.
(k) Except as described in the Effective Prospectus and the
Final Prospectus, there is not pending, or to the knowledge of the
Company threatened, any legal or governmental action, suit, proceeding,
inquiry or investigation, to which the Company or any of its officers
or trustees is a party, or to which the property of the Company is
subject, before or brought by any court or governmental agency or body,
wherein an unfavorable decision, ruling or finding could prevent or
materially hinder the consummation of this Agreement or the Operative
Documents or result in a material adverse change in the business
condition (financial or other), prospects, financial position, net
worth or results of operations of the Company.
(l) (i) Except as has been disclosed in writing to the
Representatives or their counsel prior to the date hereof, to the
knowledge of the Company, the Initial Facilities (as defined in the
Effective Prospectus) are presently operated in compliance in all
material respects with all Environmental Laws (as defined below).
(ii) Except as has been disclosed in the Effective
Prospectus and the Final Prospectus, there are no Environmental Laws
requiring any material remediation, clean up, repairs, constructions or
capital expenditures (other than normal maintenance) with respect to
the Initial Facilities.
(iii) Except as has been disclosed in writing to the
Representatives or their counsel prior to the date hereof, (A) no
notices of any violation or alleged violation of any Environmental Laws
relating to the Initial Facilities or their uses have been received by
the Company, or, to the best knowledge of the Company, by Corrections
Corporation of America ("CCA") or any prior owner, operator or occupant
of the Initial Facilities, and (B) there are no writs, injunctions,
decrees, orders or judgments outstanding, or any actions, suits,
claims, proceedings or investigations pending, or to the knowledge of
the Company threatened, relating to the ownership, use, maintenance or
operation of the Initial Facilities.
(iv) Except as has been disclosed in writing to the
Representatives or their counsel prior to the date hereof, all material
permits and licenses required under any Environmental Laws in respect
of the operations of the Initial Facilities have been
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obtained, and the Initial Facilities and CCA are in compliance, in all
material respects, with the terms and conditions of such permits and
licenses.
(v) All reports of environmental surveys, audits,
investigations and assessments in the possession or control of the
Company or CCA relating to the Initial Facilities have been disclosed
to the Representatives or their counsel.
(vi) "Environmental Law" means all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, demands, approvals, authorizations and similar items of all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial, administrative and
regulatory decrees, judgments and orders relating to the protection of
human health or the environment as in effect as of the date hereof,
including but not limited to those pertaining to reporting, licensing,
permitting, investigation and remediation of emissions, discharges,
releases or threatened releases of "Hazardous Materials," substances,
pollutants, contaminants or hazardous or toxic substances, materials or
wastes whether solid, liquid or gaseous in nature, into the air,
surface water, ground water or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of substances, pollutants, contaminants or hazardous or
toxic substances, materials or wastes, whether solid, liquid or gaseous
in nature, including by way of illustration and not by way of
limitation, (x) the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. xx.xx. 960111 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss.ss.69011 et seq.), the
Clean Air Act (42 U.S.C. xx.xx. 7401 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. xx.xx. 1251), the Safe Drinking Water
Act (42 U.S.C. xx.xx. 300f et seq.), the Toxic Substances Control Act
(15 U.S.C. xx.xx. 2601 et seq.), the Endangered Species Act (16 U.S.C.
xx.xx. 1531 et seq.), the Emergency Planning and Community
Right-to-Know Act of 1986 (42 U.S.C. xx.xx. 11001 et seq.) and (y)
analogous state and local provisions.
(vii) "Hazardous Material" means any chemical substance:
(A) the presence of which requires investigation
or remediation under any federal, state or local
statute, regulation, ordinance, order, action or policy,
administrative request or civil complaint under any of
the foregoing or under common law; or
(B) which is defined as a "hazardous waste" or
"hazardous substance" under any federal, state or local
statute, regulation or ordinance or amendments thereto
as in effect as of the date hereof, or as hereafter
amended, including, without limitation, the
Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et seq.)
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and or the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.); or
(C) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and is regulated by any
governmental authority, agency, department, commission,
board, agency or instrumentality of the United States,
or any state or any political subdivision thereof having
or asserting jurisdiction over any of the Initial
Facilities; or
(D) the presence of which on any of the Initial
Facilities causes a nuisance upon such facilities or to
adjacent properties or poses a hazard to the health or
safety of persons on or about any of the Initial
Facilities; or
(E) the presence of which on adjacent properties
constitutes a trespass by any owner or operator of the
Initial Facilities; or
(F) which contains gasoline, diesel fuel or other
petroleum hydrocarbons, polychlorinated biphenyls (PCBs)
or asbestos or asbestos-containing materials or urea
formaldehyde foam insulation; or
(G) radon gas.
(m) Except as disclosed in the Operative Documents, (i) on the
Closing Date, the Company will have good and marketable title to the
Initial Facilities and good and marketable title to all personal
property owned or proposed to be owned by it which is material to the
business of the Company, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Effective
Prospectus and Final Prospectus or in the title policies delivered to
the Company on such date or such as do not materially affect the value
of such property and do not interfere materially with the use made and
proposed to be made of such property by the Company; (ii) all permits
which are necessary for the operation of the Initial Facilities at the
Closing Date (A) shall remain in full force and effect and (B) permit
the Initial Facilities to be operated in compliance with all laws,
rules, codes and regulations; (iii) the operation of the buildings,
fixtures and other improvements located on the Initial Facilities as
presently conducted is not in violation of any applicable building
code, zoning ordinance or other law or regulation; (iv) neither the
Company nor, to the knowledge of the Company, CCA has received notice
of any proposed special assessment or any proposed material change in
any property tax, zoning or land use laws; (v) there do not exist any
material violations of any declaration of covenants, conditions and
restrictions with respect to any of the Initial Facilities, nor, to the
best of the Company's knowledge, is there any existing state of facts
or circumstances or condition or event which could, with the giving of
notice or passage of
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time, or both, constitute such a violation; and (vi) the improvements
comprising any portion of the Initial Facilities (the "Improvements")
are free of undue infestation and are free of any and all material
physical, mechanical, structural, design and construction defects; the
Improvements (including, without limitation, all water, electric,
sewer, plumbing, heating, ventilating, gas and air conditioning
servicing the Improvements) are in good condition and proper working
order and are free of material defects, except as disclosed in the
Operative Documents or except as is not material in the aggregate.
(n) At the Closing Date, the Company will be organized in
conformity with the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and its proposed method of
operation as described in the Registration Statement will enable it to
meet the requirements for taxation as a real estate investment trust
under the Code for the taxable period commencing with the year ending
December 31, 1997.
(o) __________ Common Shares, including the Shares, have been
approved for listing on the New York Stock Exchange (the "NYSE"),
subject to official notice of issuance.
(p) The Company has obtained title insurance on all of the
Initial Facilities and such title insurance is in full force and
effect.
(q) Neither the Company, nor any of its trustees, officers or
controlling persons, has taken or will take, directly or indirectly,
any action resulting in a violation of Regulation M under the Exchange
Act, or designed to cause or result under the Exchange Act or otherwise
in, or which has constituted or which reasonably might be expected to
constitute, the stabilization or manipulation of the price of any
securities of the Company or facilitation of the sale or resale of the
Shares.
(r) None of the entities that prepared environmental
inspection reports with respect to the Initial Facilities was employed
for such purpose on a contingent basis or has any substantial interest
in the Company or, to the knowledge of the Company, CCA, and none of
them nor any of their directors, officers or employees is connected
with the Company or, to the knowledge of the Company, CCA as a
promoter, selling agent, voting trustee, trustee, officer or employee.
(s) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final
Prospectus or to be filed as exhibits to the Registration Statement
which have not been described or filed as required. All such contracts
to which the Company is a party have been duly authorized, executed and
delivered by the Company, constitute valid and binding agreements of
the Company and are enforceable against the Company in accordance with
the terms thereof. The Company has performed all material
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obligations required to be performed by it, and is neither in default
in any material respect nor has it received notice of any default or
dispute under, any such contract or other material instrument to which
it is a party or by which its property is bound or affected. To the
best knowledge of the Company, no other party under any such contract
or other material instrument to which it is a party is in default in
any material respect thereunder.
(t) The Company's system of internal accounting controls is
sufficient to meet the broad objectives of internal accounting controls
insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation
to the Company's financial statements.
(u) The Company has filed all foreign, federal, state and
local income and franchise tax returns required to be filed through the
date hereof and has paid all taxes shown as due therefrom to the extent
such taxes have become due and are not being contested in good faith;
and there is no tax deficiency that has been, nor does the Company have
knowledge of any tax deficiency which is likely to be, asserted against
the Company, which if determined adversely could materially and
adversely affect the earnings, assets, affairs, business prospects or
condition (financial or other) of the Company.
(v) The Company operates its business in conformity in all
material respects with all applicable statutes, common laws,
ordinances, decrees, orders, rules and regulations of governmental
bodies. The Company has all licenses, approvals or consents to operate
its businesses in all locations in which such businesses are currently
being operated, and the Company is not aware of any existing or
imminent matter which may materially adversely impact its operations or
business prospects other than as specifically disclosed in the
Effective Prospectus and the Final Prospectus.
(w) The Company has not failed to file with the applicable
regulatory authorities any material statements, reports, information or
forms required by all applicable laws, regulations or orders; all such
filings or submissions were in material compliance with applicable laws
when filed, and no material deficiencies have been asserted by any
regulatory commission, agency or authority with respect to such filings
or submissions. The Company has not failed to maintain in full force
and effect any material licenses, registrations or permits necessary or
proper for the conduct of its business, or received any notification
that any revocation or limitation thereof is threatened or pending, and
there is not to the knowledge of the Company pending any change under
any law, regulation, license or permit which would materially adversely
affect the business, operations, property or business prospects of the
Company. The Company has not received any notice of violation of or
been threatened with a charge of violating and is not under
investigation with respect to a possible violation of any provision of
any law, regulation or order.
(x) No labor dispute exists or is imminent with any of the
employees of the Company or otherwise which could materially adversely
affect the Company. The
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Company is not aware of any existing or imminent labor disturbance by
employees of the Company or CCA which could be expected to materially
adversely affect the condition (financial or otherwise), results of
operations, properties, affairs, management, business affairs or
business prospects of the Company. The Company is in compliance with
all federal, state and local employment and labor laws, including, but
not limited to, laws relating to non-discrimination in hiring,
promotion and pay of employees.
(y) The Company owns or is in the process of obtaining or can
obtain on reasonable terms all material licenses, copyrights,
trademarks, service marks and trade names presently employed by it in
connection with the businesses proposed to be operated by it, and the
Company has not received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which,
alone or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company.
(z) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged and in
which it proposes to engage; and the Company has no reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business.
(aa) Neither the Company nor, to the knowledge of the Company,
any trustee, officer, agent, employee or other person acting on behalf
of the Company has (i) used, or authorized the use of, any corporate or
other funds for unlawful payments, contributions, gifts or
entertainment, (ii) made unlawful expenditures relating to political
activity to government officials or others, or (iii) established or
maintained any unlawful or unrecorded funds in violation of any
federal, state, local or foreign law or regulation, including Section
30A of the Exchange Act. Neither the Company nor, to the knowledge of
the Company, any trustee, officer, agent, employee or other person
acting on behalf of the Company has accepted or received any unlawful
contributions, payments, gifts or expenditures.
(bb) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company
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agrees to sell to the several Underwriters the Firm Shares, and each of
the Underwriters, severally and not jointly, agrees to purchase at a
purchase price of $______ per share, the number of Firm Shares set
forth opposite such Underwriter's name in Schedule I hereto. The
Underwriters agree to offer the Firm Shares to the public on the terms
set forth in the Final Prospectus under the caption "Underwriting."
(b) The Company hereby grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the
sale of Firm Shares, all or any portion of the Option Shares at the
purchase price per share set forth above. The option granted hereby may
be exercised as to all or any part of the Option Shares at any time
(but only once) within 30 days after the date of the Final Prospectus.
The Underwriters shall not be under any obligation to purchase any
Option Shares prior to the exercise of such option. The option granted
hereby may be exercised by the Underwriters by X.X. Xxxxxxxx & Co.
("Bradford") giving written notice to the Company setting forth the
number of Option Shares to be purchased and the date and time for
delivery of and payment for such Option Shares and stating that the
Option Shares referred to therein are to be used for the purpose of
covering over-allotments in connection with the distribution and sale
of the Firm Shares. If such notice is given prior to the First Closing
Date (as defined herein), the date set forth therein for such delivery
and payment shall not be earlier than two full business days thereafter
or the First Closing Date, whichever occurs later. If such notice is
given on or after the First Closing Date, the date set forth therein
for such delivery and payment shall not be earlier than three full
business days thereafter. In either event, the date so set forth shall
not be more than four full business days after the date of such notice.
The date and time set forth in such notice is herein called the "Option
Closing Date." Upon exercise of the option, the Company shall become
obligated to sell to the Underwriters, and, subject to the terms and
conditions herein set forth, the Underwriters shall become obligated to
purchase, for the account of each Underwriter, from the Company,
severally and not jointly, the number of Option Shares specified in
such notice. Option Shares shall be purchased for the accounts of the
Underwriters in proportion to the number of Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted
so that no Underwriter shall be obligated to purchase fractional Option
Shares.
(c) The Company shall not be obligated to deliver any of the
Shares to be delivered on the First Closing Date or on the Option
Closing Date, as the case may be, except upon payment for all the
Shares to be purchased on such Closing Date, as provided herein.
(d) Certificates in definitive form for the Firm Shares which
each Underwriter has agreed to purchase hereunder shall be delivered by
or on behalf of the Company to the Representatives for the account of
each Underwriter against payment by each such Underwriter or on its
behalf of the purchase price therefor by wire transfer of federal or
other immediately available funds to the order of the Company at an
account previously
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designated by the Company, at the offices of Bradford, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or at such other place as may be
agreed upon by Bradford and the Company, at 10:00 A.M., Nashville time,
on the third full business day after this Agreement becomes effective,
or, at the election of the Representatives, on the fourth full business
day after this Agreement becomes effective, if it becomes effective
after 4:30 P.M. Eastern time, or at such other time not later than the
seventh full business day thereafter as the Representatives and the
Company may determine, such time of delivery against payment being
herein referred to as the "First Closing Date." The First Closing Date
and the Option Closing Date are herein individually referred to as the
"Closing Date" and collectively referred to as the "Closing Dates."
Certificates in definitive form for the Option Shares which each
Underwriter shall have agreed to purchase hereunder shall be similarly
delivered by or on behalf of the Company on the Option Closing Date.
The certificates in definitive form for the Shares to be delivered will
be in good delivery form and in such denominations and registered in
such names as Xxxxxxxx xxx request not less than 48 hours prior to the
First Closing Date or the Option Closing Date, as the case may be. Such
certificates will be made available for checking and packaging at a
location in New York, New York as may be designated by Bradford, on a
business day at least 24 hours prior to the First Closing Date or the
Option Closing Date, as the case may be. It is understood that Xxxxxxxx
xxx (but shall not be obligated to) make payment on behalf of any
Underwriter or Underwriters for the Shares to be purchased by such
Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations
hereunder.
3. Offering by the Underwriters. After the Registration Statement
becomes effective, the several Underwriters propose to offer for sale to the
public the Firm Shares and any Option Shares which may be sold at the price and
upon the terms set forth in the Final Prospectus.
4. Covenants of the Company. The Company covenants and agrees with
each of the Underwriters that:
(a) The Company shall comply with the provisions of and make
all requisite filings with the Commission pursuant to Rules 424 and
430A of the Rules and Regulations and shall notify the Representatives
promptly (in writing, if requested) of all such filings. The Company
shall notify the Representatives promptly of any request by the
Commission for any amendment of or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus or for
additional information; the Company shall prepare and file with the
Commission, promptly upon the Representatives' request, any amendments
of or supplements to the Registration Statement, the Effective
Prospectus or the Final Prospectus which, in the Representatives'
opinion, may be necessary or advisable in connection with the
distribution of the Shares; and the Company shall not file any
amendment of or supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus which is not approved by the
Representatives after reasonable notice thereof. The Company shall
advise the Representatives promptly of the issuance by the
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Commission or any jurisdiction or other regulatory body of any stop
order or other order suspending the effectiveness of the Registration
Statement, suspending or preventing the use of any Preliminary
Prospectus, the Effective Prospectus or the Final Prospectus or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution of any proceedings for any such
purpose; and the Company shall use its best efforts to prevent the
issuance of any stop order or other such order and, should a stop order
or other such order be issued, to obtain as soon as possible the
lifting thereof.
(b) The Company will take or cause to be taken all necessary
action and furnish to whomever the Representatives direct such
information as may be reasonably required in qualifying the Shares for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will continue such
qualifications in effect for as long as may be reasonably necessary to
complete the distribution of the Shares.
(c) Within the time during which a Final Prospectus relating
to the Shares is required to be delivered under the Securities Act, the
Company shall comply with all requirements imposed upon it by the
Securities Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as is necessary to
permit the continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Final Prospectus. If
during such period any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Securities Act, the Company shall promptly notify the
Representatives and shall amend the Registration Statement or
supplement the Final Prospectus (at the expense of the Company) so as
to correct such statement or omission or effect such compliance.
(d) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies of the
Registration Statement (four of which shall be signed and shall be
accompanied by all exhibits, each Preliminary Prospectus, the Effective
Prospectus and the Final Prospectus, and all amendments and supplements
thereto, including any prospectus or supplement prepared after the
effective date of the Registration Statement, in each case as soon as
available and in such quantities as the Underwriters may reasonably
request.
(e) The Company will (A) deliver to the Representatives at
such office or offices as the Representatives may designate as many
copies of the Preliminary Prospectus and Final Prospectus as the
Representatives may reasonably request, (B) for a period of not more
than nine months after the Registration Statement becomes effective,
send to the Underwriters as many additional copies of the Final
Prospectus and any supplement thereto
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as the Representatives may reasonably request, and (C) following nine
months after the Registration Statement becomes effective, send to the
Underwriters at their expense as many additional copies of the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request.
(f) The Company shall make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the Securities
Act as promptly as practicable and in any event no later than 45 days
after the end of its fiscal quarter in which the first anniversary of
the effective date of the Registration Statement occurs, an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act covering a period of at least 12 consecutive months beginning after
the effective date of the Registration Statement.
(g) The Company will apply the net proceeds from the sale of
the Shares to be sold by it as set forth under the caption "Use of
Proceeds" in the Final Prospectus and will timely file reports on Form
SR with the Commission in accordance with Rule 463 of the Securities
Act or any successor provision.
(h) During a period of five years from the effective date of
the Registration Statement or such longer period as the Representatives
may reasonably request, the Company will furnish to the Representatives
copies of all reports and other communications (financial or other)
furnished by the Company to its shareholders and, as soon as available,
copies of any reports or financial statements furnished or filed by the
Company to or with the Commission or any national securities exchange
on which any class of securities of the Company may be listed.
(i) The Company will, from time to time, after the effective
date of the Registration Statement file with the Commission such
reports as are required by the Securities Act, the Exchange Act and the
Rules and Regulations, and shall also file with foreign, state and
other governmental securities commissions in jurisdictions where the
Shares have been sold by the Underwriters (as the Representatives shall
have advised the Company in writing) such reports as are required to be
filed by the securities acts and the regulations of those states.
(j) Except pursuant to this Agreement or with the
Representatives' written consent, for a period of 180 days from the
effective date of the Registration Statement, the Company will not, and
the Company has provided agreements executed by each of its officers
and trustees providing that for a period of 24 months from the
effective date of the Registration Statement, such person will not,
offer for sale, sell (other than the issuance by the Company of Common
Shares pursuant to the exercise of options granted pursuant to existing
employee benefit plans and agreements), grant any options (other than
pursuant to existing employee benefit plans and agreements), rights or
warrants with respect to any Common Shares, securities convertible into
Common Shares or any other capital shares
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of the Company, or otherwise dispose of, directly or indirectly, any
Common Shares or such other securities or capital shares.
(k) Neither the Company nor any of its officers, trustees or
affiliates will take, directly or indirectly, any action resulting in a
violation of Regulation M under the Exchange Act, or designed to cause
or result in, or which might constitute or be expected to constitute,
stabilization or manipulation of the price of the Common Shares.
(l) The Company will either conduct its business and
operations as described in the Final Prospectus or, if the Company
makes any material change to its business or operations as so
conducted, promptly disclose such change generally to the Company's
security holders.
(m) If at any time during the 25 day period after the
Registration Statement is declared effective, any rumor, publication or
event relating to or affecting the Company shall occur as a result of
which, in the Representatives' opinion, the market price for the Shares
has been or is likely to be materially affected (regardless of whether
such rumor, publication or event necessitates a supplement to or
amendment of the Final Prospectus), the Company will, after written
notice from the Representatives advising it as to the effect set forth
above, prepare, consult with the Representatives concerning the
substance of and, subject to the Rules and Regulations, disseminate a
press release or other public statement, reasonably satisfactory to the
Representatives, responding to or commenting on such rumor, publication
or event.
(n) The Company will use its best efforts to effect the
listing of the Common Shares, subject to notice of issuance, on the
NYSE on or before the effective date of the Registration Statement.
(o) The Company will use its best efforts to meet the
requirements to qualify, effective for the taxable period commencing
with the year ending December 31, 1997 and in each year thereafter, as
a real estate investment trust under the Code.
(p) Subject to the terms thereof, the Company will do and
perform its obligations under each of the Operative Documents to which
it is a party to the extent required to consummate the transactions set
forth therein and all things required to be done or performed prior to
the Closing Date pursuant to this Agreement.
5. Expenses. The Company agrees with the Underwriters that (a) whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated, the Company will pay all fees and
expenses incident to the performance of the obligations of the Company
hereunder, including, but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing (or reproduction) and distributing the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto),
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each Preliminary Prospectus, the Effective Prospectus, the Final Prospectus, any
amendments or supplements thereto, any Marketing Materials (as defined herein)
and this Agreement and other underwriting documents, including Underwriter's
Questionnaires, Underwriter's Powers of Attorney, Blue Sky Memoranda, Agreements
Among Underwriters and Selected Dealer Agreements, (iii) fees and expenses of
accountants and counsel for the Company, (iv) expenses of registration or
qualification of the Shares under state Blue Sky and securities laws, including
the fees and disbursements of counsel to the Underwriters in connection
therewith, (v) filing fees paid or incurred by the Underwriters in connection
with filings with the NASD, (vi) expenses of listing the outstanding Common
Shares on the NYSE, (vii) all travel, lodging and reasonable living expenses
incurred by the Company in connection with marketing, dealer and other meetings
attended by the Company and the Underwriters in marketing the Shares, (viii) the
costs and charges of the Company's transfer agent and registrar and the cost of
preparing the certificates for the Shares, and (ix) all other costs and expenses
incident to the performance of its obligations hereunder not otherwise provided
for in this Section; and (b) all out-of-pocket expenses, including counsel fees,
disbursements and expenses, incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this Agreement, will be borne and paid
by the Company if the sale of the Shares provided for herein is not consummated
(i) by reason of the termination of this Agreement by the Company pursuant to
Section 12(a)(i) or (ii) by reason of the termination of this Agreement by the
Representatives pursuant to Section 12(b)(ii), (iii), (iv) or (v) of this
Agreement.
6. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares shall be
subject to the accuracy of the representations and warranties of the Company
herein as of the date hereof and as of the Closing Date as if made on and as of
the Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company of all
of its covenants and agreements hereunder and to the following additional
conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30
P.M., Washington, D.C. time, on the day following the date of this
Agreement, or such later time and date as shall have been consented to
by the Representatives and all filings required by Rule 424 and Rule
430A of the Rules and Regulations shall have been made; no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission; any request of
the Commission for additional information (to be included in the
Registration Statement or the Final Prospectus or otherwise) shall have
been complied with to the Representatives' satisfaction; and the NASD,
upon review of the terms of the public offering of the Shares, shall
not have objected to such offering, such terms or the Underwriters'
participation in the same.
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(b) No Representative shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or any supplement
thereto, contains an untrue statement of fact which, in the
Representatives' reasonable judgment, is material, or omits to state a
fact which, in the Representatives' reasonable judgment, is material
and is required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Representatives shall have received opinions, dated
the Closing Date, from either Xxxxxx & Xxxxxxxxxxx, P.A., or Xxxxxxxx &
Xxx, PLC, counsel for the Company, to the effect that:
(i) The Company has been duly formed and is validly
existing as a real estate investment trust under the laws of
the State of Maryland, with corporate power and authority to
own its properties and conduct its business as now conducted,
and, based solely on certificates from public officials, the
Company is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of the
States of Arizona, Kansas and Texas. The Company holds all
licenses, certificates, permits, franchises and authorizations
from governmental authorities necessary for the conduct of its
business.
(ii) The Company does not have any interest, directly
or indirectly, in any corporation, joint venture, partnership
or other entity.
(iii) As of the dates specified therein, the Company
had authorized and issued capital stock as set forth under the
caption "Capitalization" in the Final Prospectus. All of the
outstanding Common Shares have been duly authorized and are
validly issued, fully paid and nonassessable, and the Shares
to be sold by the Company have been duly authorized, and upon
issuance thereof and payment therefor as provided herein, will
be validly issued, fully paid and nonassessable; none of the
issued shares have been issued in violation of or subject to
any preemptive rights provided for by law, agreement or the
Company's declaration of trust or bylaws. To the knowledge of
such counsel, the Company does not have outstanding any
options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell any capital shares,
and there are no preemptive rights or other rights to
subscribe for or purchase any capital shares of the Company,
or any restriction upon the transfer of, the Shares pursuant
to the Company's declaration of trust or bylaws or any
agreement or other instrument to which the Company is a party
or by which it may be bound, except as described in the
Effective Prospectus and Final Prospectus. Neither the filing
of the Registration Statement nor the offer or sale of the
Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied,
for or relating to the registration of any Common Shares or
any other securities of the Company. The Underwriters
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will receive valid title to the Shares to be issued and
delivered by the Company pursuant to this Agreement, free and
clear of all liens, encumbrances, claims, security interests,
restrictions, shareholders agreements and voting trusts
whatsoever. The capital shares of the Company and the Shares
conform in all material respects to the description thereof
contained in the Final Prospectus. All offers and sales of the
Company's interests and securities prior to the date hereof
were at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly
registered or the subject of an exemption from the
registration requirements of applicable state securities or
Blue Sky laws.
(iv) The form of shares certificate to be used to
evidence the Common Shares will be in due and proper form and
will comply with all applicable legal requirements under the
Maryland General Corporation Law.
(v) No consent, approval, authorization or order of
any court or federal, Arizona, Kansas, Maryland, Tennessee or
Texas governmental agency or body or third party is required
for the performance of this Agreement by the Company or the
consummation by the Company of the transactions contemplated
hereby, except such as have been obtained under the Securities
Act and such as may be required by the NASD and under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the several Underwriters, as
to which such counsel need not express an opinion. The
performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated
hereby will not conflict with or result in a breach or
violation by the Company of any of the terms or provisions of,
or constitute a default by the Company under, any material
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument known to such counsel to which
the Company is a party or to which the Company or its
properties is subject, the declaration of trust or bylaws of
the Company, any statute, or any judgment, decree, order, rule
or regulation of any court or governmental agency or body
known to such counsel to be applicable to the Company or its
properties.
(vi) The Company has full legal right, power and
authority to enter into this Agreement and to issue, sell and
deliver the Shares to be sold by it to the Underwriters as
provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws
relating to or affecting the rights of creditors.
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(vii) No consent, approval, authorization or order of
any court or governmental agency or body or third party is
required for the performance of the Operative Documents by the
Company or the consummation by the Company of the transactions
contemplated thereby, except such as have been obtained under
the Securities Act and such as may be required and under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the several Underwriters.
The performance of the Operative Documents by the Company and
the consummation by the Company of the transactions
contemplated thereby will not conflict with or result in a
breach or violation by the Company of any of the terms or
provisions of, or constitute a default by the Company under,
any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to
such counsel to which the Company is a party or to which the
Company or its properties is subject, the declaration of trust
or bylaws of the Company, any statute, or any judgment,
decree, order, rule or regulation of any court or governmental
agency or body known to such counsel to be applicable to the
Company or its properties.
(viii) The Company has full legal right, power and
authority to enter into each of the Operative Documents to
which it is a party, and each of the Operative Documents to
which it is a party has been duly authorized, executed and
delivered by the Company and constitutes the valid and legally
binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent conveyance, fraudulent transfer and
other similar laws relating to or affecting the rights of
creditors.
(ix) Except as described in the Final Prospectus,
there is not pending or, to the knowledge of such counsel,
threatened any action, suit, proceeding, inquiry or
investigation, to which the Company is a party, or to which
the property of the Company is subject, before or brought by
any court or governmental agency or body, which, if determined
adversely to the Company, could result in any material adverse
change in the business, financial position, net worth or
results of operations, or could materially adversely affect
the properties or assets, of the Company.
(x) To the knowledge of such counsel, no default
exists, and no event has occurred which with notice or after
the lapse of time to cure or both, would constitute a default,
in the due performance and observance of any term, covenant or
condition of any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument known
to such counsel to which the Company is a party or to which
its properties are subject, or of the declaration of trust or
bylaws of the Company.
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(xi) To the knowledge of such counsel, the Company is
not in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any decree of any court or governmental agency or body having
jurisdiction over the Company which would have a material
adverse effect on the Company.
(xii) To the knowledge of such counsel, there are no
contracts or documents of the Company which are required to be
filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not
been so filed.
(xiii) The Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended.
(xiv) The Registration Statement and all
post-effective amendments thereto have become effective under
the Securities Act, and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or, to the knowledge of such counsel, are
threatened, pending or contemplated by the Commission. All
filings required by Rule 424 and Rule 430A of the Rules and
Regulations have been made; the Registration Statement, the
Effective Prospectus and Final Prospectus, and any amendments
or supplements thereto, as of their respective effective or
issue dates, complied as to form in all material respects with
the applicable requirements of the Securities Act and the
Rules and Regulations; the descriptions in the Registration
Statement, the Effective Prospectus and the Final Prospectus
of statutes, regulations, legal and governmental proceedings,
and contracts and other documents are accurate in all material
respects and present fairly in all material respects the
information required to be stated; and such counsel does not
know of any pending or threatened legal or governmental
proceedings, statutes or regulations required to be described
in the Final Prospectus which are not described as required
nor of any contracts or documents of a character required to
be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made
(except that such counsel need express no view as to financial statements,
schedules and other financial or statistical information included therein).
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(d) The Representatives shall have received an opinion, dated
the Closing Date, of Xxxxxx & Xxxxxxxxxxx, P.A., tax counsel to the
Company, reasonably acceptable to the Representatives that, upon
completion of the Formation Transactions, the Company will be in
compliance with the requirements for qualification as a real estate
investment trust under the Code, and the proposed method of operation
of the Company as described in the Registration Statement and the Final
Prospectus and a certificate of a responsible officer of the Company
will enable the Company to meet the requirements for taxation as a real
estate investment trust under the Code beginning with the year ended
December 31, 1997.
(e) The Representatives shall be entitled to rely on the
opinions rendered by Xxxxxxxx & Xxx, PLC, counsel to the Company,
pursuant to the Operative Documents.
The opinions to be rendered pursuant to paragraphs (c), (d) and (e) may
be limited to federal law, and as to foreign and state law matters, to the laws
of the states or jurisdictions in which such counsel is admitted to practice. As
to matters of Maryland law, such counsel may rely upon the opinion of Miles &
Stockbridge, a Professional Corporation, and as to matters of fact, on
certificates of officers of the Company and public officials.
(f) The Underwriters shall have received an opinion or
opinions, dated the Closing Date, of Bass, Xxxxx & Xxxx PLC, counsel
for the Underwriters, with respect to the Registration Statement and
the Final Prospectus, and such other related matters as the
Underwriters may require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(g) The Representatives shall have received from Xxxxxx
Xxxxxxxx LLP, a letter dated the date hereof and, at the Closing Date,
a second letter dated the Closing Date, in form and substance
satisfactory to the Representatives, stating that they are independent
public accountants with respect to the Company within the meaning of
the Securities Act and the applicable Rules and Regulations, and
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information of the Company
contained in the Registration Statement and the Prospectus.
(h) The Representatives shall have received from Xxxxxx
Xxxxxxxx LLP, a letter dated the date hereof and, at the Closing Date,
a second letter dated the Closing Date, in form and substance
satisfactory to the Representatives, stating that they are independent
public accountants with respect to CCA within the meaning of the
Securities Act and the applicable Rules and Regulations, and to the
effect that:
(i) In their opinion, the consolidated financial
statements and schedules of CCA examined by them and included
in the Registration Statement comply as to form in all
material respects with the applicable accounting
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requirements of the Securities Act and the published Rules and
Regulations and are presented in accordance with generally
accepted accounting principles; and they have made a review in
accordance with standards established by the American
Institute of Certified Public Accountants of the interim
consolidated financial statements, selected financial data
and/or condensed financial statements derived from audited
financial statements of CCA;
(ii) The unaudited selected consolidated financial
information of CCA included in the Preliminary Prospectus and
the Final Prospectus under the caption "CORRECTIONS
CORPORATION OF AMERICA -- CERTAIN SELECTED FINANCIAL
INFORMATION" for the five years ended December 31, 1996,
agrees with the corresponding amounts in the audited
consolidated financial statements included in the Final
Prospectus or previously reported on by them;
(iii) On the basis of a reading of the latest
available interim financial statements (unaudited) of CCA and
its subsidiaries, a reading of the minute books of CCA and its
subsidiaries, inquiries of officials of CCA and its
subsidiaries responsible for financial and accounting matters
and other specified procedures, all of which have been agreed
to by the Representatives, nothing came to their attention
that caused them to believe that:
(A) The amounts included in the
Preliminary Prospectus and the Final Prospectus under
the caption "CORRECTIONS CORPORATION OF AMERICA --
CERTAIN SELECTED FINANCIAL INFORMATION" for the five
years ended December 31, 1996 do not agree with the
corresponding amounts in the audited consolidated
financial statements included in the Final Prospectus
or previously reported on by them;
(B) The unaudited pro forma financial
information included in the Registration Statement
does not comply as to form in all material respects
with the applicable accounting requirements of the
Securities Act and the Rules and Regulations or that
the pro forma adjustments have not been properly
applied to the historical amounts in the compilation
of the pro forma information.
(C) The unaudited consolidated financial
statements of CCA included in the Registration
Statement, including the amounts included under the
caption "CORRECTIONS CORPORATION OF AMERICA --
CERTAIN SELECTED FINANCIAL INFORMATION" do not comply
as to form in all material respects with the
accounting requirements of the federal securities
laws and the related published rules and regulations
thereunder or are not in conformity with generally
accepted accounting
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principles applied on a basis substantially
consistent with the basis for the audited financial
statements contained in the Registration Statement;
(D) Any other unaudited consolidated
financial statement data included in the Final
Prospectus do not agree with the corresponding items
in the audited consolidated financial statements from
which data was derived and any such unaudited data
were not determined on a basis substantially
consistent with the basis for the corresponding
amounts in the audited financial statements contained
in the Final Prospectus;
(E) at a specified date not more than
five days prior to the date of delivery of such
respective letter, there was any change in the
capital stock, decline in total assets or
stockholders' equity or increase in long-term debt of
CCA and its subsidiaries, in each case as compared
with amounts shown in the latest balance sheets
included in the Final Prospectus, except in each case
for changes, decreases or increases which are
described in such letters; and
(F) for the period from the closing date
of the latest statements of earnings included in the
Effective Prospectus and the Final Prospectus to a
specified date not more than five days prior to the
date of delivery of such respective letter, there
were any decreases in revenues, net income and net
income per share of CCA, in each case as compared
with the corresponding period of the preceding year,
except in each case for decreases which are described
in such letter.
(iv) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by
you which are derived from the general accounting records of
CCA and its subsidiaries, which appear in the Effective
Prospectus and the Final Prospectus and have compared and
agreed such amounts, percentages and financial information
with the accounting records of CCA and its subsidiaries or to
analyses and schedules prepared by CCA and its subsidiaries
from its detailed accounting records.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases, it shall be a further
condition to the obligations of the Underwriters that the Underwriters
shall have determined, after discussions with officers of CCA
responsible for financial and accounting matters and with Xxxxxx
Xxxxxxxx LLP, that such changes, decreases or increases as are set
forth in such letters do not reflect a material adverse change in the
total assets, stockholders' equity or long-term debt of CCA as compared
with the amounts shown in the latest balance sheets of CCA included in
the Final
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Prospectus, or a material adverse change in revenues or net income of
CCA, in each case as compared with the corresponding period of the
prior year.
(i) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and Chief Financial Officer of the Company, to
the effect that:
(i) the representations and warranties of the Company
in Section 1 of this Agreement are true and correct, as if
made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been initiated or are pending, or to
their knowledge, threatened under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A
of the Rules and Regulations have been made;
(iv) they have carefully examined the Registration
Statement, the Effective Prospectus and the Final Prospectus,
and any amendments or supplements thereto, and such documents
do not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances under which they were made; and
(v) since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus
which has not been so set forth.
(j) The Formation Transactions shall have been effected in
accordance with all the terms and conditions set forth in the Operative
Documents, subject only to the transfer of funds related thereto, or
shall occur simultaneously with the purchase and sale of the Firm
Shares hereunder.
(k) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, and
except as stated therein, the Company has not sustained any material
loss or interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or governmental
action, order or decree, or become a party to or the subject of any
litigation which is material to the Company, nor shall there have been
any material adverse change, or any development involving a prospective
material
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adverse change, in the business, properties, key personnel,
capitalization, prospects, net worth, results of operations or
condition (financial or other) of the Company, which loss,
interference, litigation or change, in the Representatives' reasonable
judgment shall render it unadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on
the cover page of the Prospectus or to proceed with the delivery of the
Shares.
(l) The Shares shall be approved for listing on the NYSE,
subject only to official notice of issuance and evidence of
satisfactory distribution.
(m) The Representatives shall have received the Lockup
Agreements.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Representatives and their counsel. The
Company shall furnish to the Representatives such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Representatives shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Shares shall be subject, in their discretion, to the conditions of
this Section 6, except that all references to the "Closing Date" shall be deemed
to refer to the Option Closing Date, if it shall be a date other than the
Closing Date.
7. Condition of the Company's Obligations. The obligations hereunder
of the Company are subject to the condition set forth in Section 6(a) hereof.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities to which such Underwriter or controlling person
may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon: (i) any
inaccuracy in the representations and warranties of the Company
contained herein; (ii) any failure of the Company to perform its
obligations hereunder or under law; (iii) any untrue statement or
alleged untrue statement of any material fact contained in (A) the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
(B) any audio or visual materials supplied by the Company expressly for
use in connection with the marketing of the Shares, including without
limitation, slides, videos, films and tape recordings (the "Marketing
Materials") or (C) in any Blue Sky application or other written
information prepared or executed by the Company filed in any state or
other jurisdiction in order to qualify any or all of the Shares under
the securities laws
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thereof (a "Blue Sky Application"); or (iv) the omission or alleged
omission to state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus or any
amendment or supplement thereto, any Marketing Materials or Blue Sky
Application a material fact required to be stated therein or necessary
to make the statements therein not misleading; and will reimburse each
Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, or liability arises
out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, the Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or supplement thereto, or any
Marketing Materials or Blue Sky Application in reliance upon and in
conformity with written information relating to any Underwriter
furnished to the Company by any Underwriter specifically for use
therein; and, provided, further, that the foregoing indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased Shares if a copy of the Final Prospectus
(or any Preliminary Prospectus as supplemented) was not sent or given
by or on behalf of such Underwriter to such person at or prior to the
written confirmation of the sale of such Shares to such person in any
case where such delivery is required by the Securities Act and the
Final Prospectus would have cured the defect giving rise to such loss,
claim, damage or liability.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its trustees, each of the Company's officers who
signed the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act against any
losses, claims, damages or liabilities to which the Company or any such
trustee, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or supplement thereto, a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information relating to any Underwriter
furnished to the Company by any Underwriter specifically for use
therein; and will reimburse any legal or other expenses reasonably
incurred by the Company and each such controlling person in connection
with investigating or defending any such loss, claim, damage, liability
or action as such expenses are incurred.
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(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 8 notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
hereunder except to the extent the indemnifying party hereunder has
been materially prejudiced thereby and in any event shall not relieve
it from liability otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party; and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation except that the indemnified
party shall have the right to employ separate counsel if, in the
indemnified party's reasonable judgment, it is advisable for the
indemnified party to be represented by separate counsel, and in that
event the fees and expenses of separate counsel shall be paid by the
indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 8 is for any reason held to be
unavailable to the Underwriters or the Company or is insufficient to
hold harmless an indemnified party, then the Company shall contribute
to the damages paid by the Underwriters, and the Underwriters shall
contribute to the damages paid by the Company; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The amount of such contribution shall (i) be in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Shares and the consummation of the
Formation Transactions or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, be in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement
(before deducting expenses) received by the Company, in the case of the
Company, and the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this
Agreement, in the case
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of the Underwriters, bear to the total gross proceeds from the offering
of the Shares under this Agreement, in each case as set forth in the
Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity
for such purpose). Notwithstanding the foregoing, no Underwriter or
person controlling such Underwriter shall be obligated to make
contribution hereunder which in the aggregate exceeds the underwriting
discount applicable to the Shares purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been required to
pay in respect of the same or any similar claim. The Underwriters'
obligations to contribute hereunder are several in proportion to their
respective obligations and not joint. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act shall have the same rights to
contribution as such Underwriter, and each trustee of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section
15 of the Securities Act, shall have the same rights to contribution as
the Company.
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is a party or is (or would be, if a claim were to be
made against such indemnified party) entitled to indemnity hereunder,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
9. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or less
of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each
non-defaulting Underwriter in Schedule I hereto bears to the total number of
Shares set forth opposite the names of all the non-defaulting Underwriters), all
the Shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter so defaults and the total number of Shares with
respect to which such default or defaults occur is more than ten percent of the
total number of Shares to be sold hereunder, and arrangements satisfactory to
the other Underwriters and the Company for the purchase of such Shares by other
persons (who may include the non-defaulting Underwriters) are not made within 36
hours after such default, this Agreement, insofar as it relates to the sale of
the Shares, will terminate without liability on the part of the non-defaulting
Underwriters or the Company except for (i) the provisions of Section 8 hereof,
and (ii) the expenses to be paid or
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reimbursed by the Company pursuant to Section 5. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the Underwriters set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (a) any investigation made by or on behalf of
the Company, any of its officers, directors or trustees, any Underwriter or any
controlling person, (b) any termination of this Agreement and (c) delivery of
and payment for the Shares.
11. Effective Date. This Agreement shall become effective at whichever
of the following times shall first occur: (i) at 11:30 A.M., Washington, D.C.
time, on the next full business day following the date on which the Registration
Statement becomes effective or (ii) at such time after the Registration
Statement has become effective as the Representatives shall release the Firm
Shares for sale to the public; provided, however, that the provisions of
Sections 5, 8, 10 and 11 hereof shall at all times be effective. For purposes of
this Section 11, the Firm Shares shall be deemed to have been so released upon
the release by the Representatives for publication, at any time after the
Registration Statement has become effective, of any newspaper advertisement
relating to the Firm Shares or upon the release by the Representatives of
telegrams offering the Firm Shares for sale to securities dealers, whichever may
occur first.
12. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives (i) at any
time before it becomes effective in accordance with Section 11 hereof,
or (ii) in the event that the condition set forth in Section 7 shall
not have been satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 11 hereof; (ii) in the event that at or prior
to the First Closing Date the Company shall have failed, refused or
been unable to perform any agreement on the part of the Company to be
performed hereunder or any other condition to the obligations of the
Underwriters hereunder is not fulfilled; (iii) if at or prior to the
Closing Date trading in securities on the NYSE, the American Stock
Exchange or the over-the-counter market shall have been suspended or
materially limited or minimum or maximum prices shall have been
established on either of such exchanges or such market, or a banking
moratorium shall have been declared by Federal or state authorities;
(iv) if at or prior to the Closing Date trading in securities of the
Company shall have been suspended; or (v) if there shall have been such
a material adverse change in general economic, political or financial
conditions or if the effect of international conditions on the
financial markets in the United States shall be such as, in your
reasonable judgment, makes it inadvisable to commence or continue
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the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to proceed with the
delivery of the Shares.
(c) Termination of this Agreement pursuant to this Section 12
shall be without liability of any party to any other party other than
as provided in Sections 5 and 8 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed or delivered or telegraphed and
confirmed in writing to the Representatives in care of X. X. Xxxxxxxx & Co., X.
X. Xxxxxxxx Financial Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxxxxx Xxxxxxx-Xxxxx, or if sent to the Company shall be mailed,
delivered or telegraphed and confirmed in writing to the Company at 0000 Xxxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: J. Xxxxxxx
Xxxxxxx.
14. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Company and the several Underwriters and for
the benefit of no other person except that (a) the representations and
warranties and indemnities of the Company contained in this Agreement shall also
be for the benefit of any person or persons who control any Underwriter within
the meaning of Section 15 of the Securities Act, and (b) the indemnities by the
Underwriters shall also be for the benefit of the trustees of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act. No purchaser of Shares from any Underwriter will be deemed a
successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Bradford hereby represents and warrants to the Company that it has
authority to act hereunder on behalf of the several Representatives and
Underwriters, and any action hereunder taken by the Representatives will be
binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of
our agreement, please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among the Company and each of the several Underwriters.
Very truly yours,
CCA PRISON REALTY TRUST
By:______________________________
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Title:_____________________________
Confirmed and accepted as of the date first above written.
X.X. XXXXXXXX & CO., L.L.C.
A.G. XXXXXXX & SONS, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
XXXXXXXX INC.
For themselves and as
Representatives of the Several
Underwriters
By:____________________________
Partner
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SCHEDULE I
UNDERWRITERS
Number of
Firm Shares to
Underwriter be Purchased
----------- ------------
X.X. Xxxxxxxx & Co........................................
X.X. Xxxxxxx & Sons, Inc..................................
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated......................
Xxxxxx Brothers Inc.......................................
PaineWebber Incorporated..................................
Xxxxxxxx Inc..............................................
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Total..................................................... 18,500,000
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