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Exhibit 10.5
FORM OF SERVICE XXXX AND TRADE NAME USE AGREEMENT
This SERVICE XXXX AND TRADE NAME USE AGREEMENT (the "Agreement"), dated
as of this _____ day of December, 1998, is by and between Correctional
Management Services Corporation, a Tennessee corporation (the "Grantor"), and
Prison Management Services, LLC, a Delaware limited liability company (the
"Grantee").
W I T N E S S E T H:
WHEREAS, Grantor is the owner of the non-exclusive right to use the
service xxxx and trade name "Corrections Corporation of America", its
abbreviation "CCA", and the logo and/or designs incorporating the same and
included on Exhibit A attached hereto (collectively, the "Service Xxxx and Trade
Name");
WHEREAS, Corrections Corporation of America, a Tennessee corporation
("CCA") is transferring all right, title and interest to and in certain
contracts and assets relating to the management and operation of correction and
detention facilities by CCA (the "Management Contracts") to the Grantee; and
WHEREAS, in connection with the performance of administrative services
by the Grantor for the Grantee relating to such Management Contracts, Grantor
desires to grant, and Grantee desires to obtain, the non-exclusive,
non-transferable right to use the Service Xxxx and Trade Name pursuant to the
terms and condition of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. Grant of Use of Service Xxxx and Trade Name. Grantor grants to
Grantee the non-exclusive, non-transferrable right to use the Service Xxxx and
Trade Name with respect to, and only with respect to, the correction and
detention facilities operated by Grantee pursuant to the Management Contracts.
2. Term. This Agreement shall commence on the date above written and
terminate on the earlier of (i) the date on which Grantee ceases to manage and
operate any correction or detention facility, and (ii) a date which is ten (10)
years from the date of this Agreement (the "Term"). This Agreement may be
renewed thereafter upon the agreement of the parties under such terms and
conditions as they may agree; provided, however, that no renewal of this
Agreement shall be valid unless in writing and signed by both parties.
3. Termination. This Agreement may be terminated by Grantor for any
reason upon ten (10) days' written notice from Grantor to Grantee.
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4. Reservation of Rights. Except for the limited rights herein
expressly granted to Grantee, all rights in the Service Xxxx and Trade Name are
reserved to CCA and Grantor throughout the world for the sale and exclusive use
or other disposition by CCA and Grantor at any time, and from time to time,
without any obligation to Grantee.
5. Maintenance of Quality Standards. Grantee agrees that the nature and
quality of all services rendered by Grantee hereunder, all goods sold by Grantee
hereunder, and all related advertising, promotional, and other related uses of
the Service Xxxx and Trade Name by Grantee shall conform to standards reasonably
set by CCA and Grantor. Grantee agrees to cooperate with Grantor in facilitating
CCA's and Grantor's control of such nature and quality, and to supply CCA and
Grantor with specimens of all uses of the Service Xxxx and Trade Name upon
request. Grantee represents, warrants, covenants, and agrees that it will
conduct its business in a manner designed to protect and enhance the reputation
and integrity of the Service Xxxx and Trade Name, and the goodwill associated
therewith, and Grantor reserves all rights of approval which are necessary to
achieve this result.
6. Transfer Prohibited. The Service Xxxx and Trade Name granted
hereunder shall not be assigned, sublicensed, or otherwise transferred without
the prior written consent of Grantor. In the event of a prohibited transfer,
Grantor shall have the right to terminate this Agreement forthwith by written
notice to Grantee.
7. Rights Upon Termination. Upon the termination (by expiration or
otherwise) of this Agreement, for any reason, all rights granted to Grantee
hereunder shall automatically revert to Grantor for its use or disposition. Upon
termination, Grantee shall promptly cease use of the Service Xxxx and Trade
Name, and shall promptly deliver to Grantor all materials previously supplied by
Grantor to Grantee and all copies thereof, in whole or in part, relating to or
containing the Service Xxxx and Trade Name. At Grantor's option, Grantor may, in
lieu of return, require that Grantee destroy said materials and copies and
provide to Grantor satisfactory evidence of destruction. Grantor shall not be
liable to Grantee for damages of any kind on account of the termination or
expiration of this Agreement. Without limiting the foregoing, upon termination
or expiration of this Agreement for any reason, Grantor shall have no liability
for reimbursement or for damages for loss of goodwill, or on account of any
expenditures, investments, leases, or other commitments made by Grantee. Grantee
acknowledges and agrees that Grantee has no expectation and has received no
assurances that its business relationship with Grantor will continue beyond the
stated term of this Agreement or its earlier termination, that any investment by
Grantee will be recovered or recouped, or that Grantee shall obtain any
anticipated amount of profits by virtue of this Agreement.
8. No Franchise or Joint Venture. The parties expressly acknowledge
that this Agreement shall not be deemed to create an agency, partnership,
franchise, employment, or joint venture relationship between Grantor and
Grantee. Nothing in this Agreement shall be construed as a grant of authority to
Grantee to waive any right, incur any obligation or liability, enter into any
agreement, grant any release or otherwise purport to act in the name of Grantor.
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9. Indemnification.
9.1 Grantee shall indemnify and hold harmless Grantor, its
affiliates, directors, officers, employees, representatives, agents, successors
and assigns from and against any and all losses, damages, costs and expenses,
including attorney's fees, resulting from or arising out of Grantee's breach of
the promises, covenants, representations and warranties made by it herein.
9.2 Grantor shall indemnify and hold harmless Grantee, its
affiliates, directors, officers, employees, representatives, agents, successors
and assigns from and against any and all losses, damages, costs and expenses,
including attorney's fees, resulting from or arising out of Grantor's breach of
the promises, covenants, representations and warranties made by it herein.
10. Representations and Warranties.
10.1 Grantee hereby represents and warrants that: (a) it is a
limited liability company duly organized and validly existing under the laws of
the State of Delaware; (b) the execution and delivery by the Grantee of this
Agreement, the performance by Grantee of all the terms and conditions thereof to
be performed by it and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action, and no other act or approval
of any person or entity is required to authorize such execution, delivery, and
performance; (c) the Agreement constitutes a valid and binding obligation of
Grantee, enforceable in accordance with its terms; (d) this Agreement and the
execution and delivery thereof by Grantee, does not, and the fulfillment and
compliance with the terms and conditions hereof and the consummation of the
transactions contemplated hereby will not, (i) conflict with any of, or require
the consent of any person or entity under, the terms, conditions or provisions
of the organizational documents of Grantee, (ii) violate any provision of, or
require any consent, authorization or approval under, any law or administrative
regulation or any judicial, administrative or arbitration order, award,
judgment, writ, injunction or decree applicable to Grantee, or (iii) conflict
with, result in a breach of, or constitute a default under, any material
agreement or obligation to which Grantee is a party.
10.2 Grantor hereby represents and warrants that (a) it is a
corporation duly organized and validly existing under the laws of the State of
Tennessee; (b) the execution and delivery by the Grantor of this Agreement, the
performance by Grantor of all the terms and conditions thereof to be performed
by it and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action, and no other act or approval of any
person or entity is required to authorize such execution, delivery, and
performance; (c) the Agreement constitutes a valid and binding obligation of
Grantor, enforceable in accordance with its terms; (d) this Agreement and the
execution and delivery thereof by Grantor, does not, and the fulfillment and
compliance with the terms and conditions hereof and the consummation of the
transactions contemplated hereby will not, (i) conflict with any of, or require
the consent of any person or entity under, the terms, conditions or provisions
of the organizational documents of Grantor, (ii) violate any provision of, or
require any consent, authorization or approval under, any law or administrative
regulation or any judicial, administrative or arbitration order, award,
judgment, writ, injunction or decree applicable to Grantor,
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or (iii) conflict with, result in a breach of, or constitute a default under,
any material agreement or obligation to which Grantor is a party; (e) to the
best of Grantor's knowledge, it is the owner of and has exclusive rights to the
use of the Service Xxxx and Trade Name and has the right to grant the right to
use the Service Xxxx and Trade Name to Grantee under the terms of this
Agreement; and (f) has not been subject to any third party claims for
infringement due to the use of the Service Xxxx and Trade Name.
11. Ownership; Form of Use. Grantee acknowledges that Grantor owns a
non-exclusive right to the use of the Service Xxxx and Trade Name and agrees
that it will do nothing inconsistent with such ownership. Grantee agrees that
nothing in this Agreement shall give Grantee any right, title, or interest in
the Service Xxxx and Trade Name other than the right to use it in accordance
with this Agreement, and Grantee agrees that it will not attack the title of
Grantor to the Service Xxxx and Trade Name or attack the validity of this
Agreement. Grantee agrees to use the Service Xxxx and Trade Name only in the
form and manner as prescribed from time to time by Grantor and agrees to use
such designations as may be requested by Grantor to indicate Grantor's exclusive
rights to the Service Xxxx and Trade Name. Grantee agrees that it shall not
adopt or use for any purpose any variation of the Service Xxxx and Trade Name
likely to be confused with the Service Xxxx and Trade Name.
12. Protection of Grantor's Proprietary Rights. Grantee agrees to
assist CCA and Grantor in the registration, renewal, and enforcement of
Grantor's rights in and to the Service Xxxx and Trade Name, including, but not
limited to, the prosecution of any pending or future applications for trade
and/or service xxxx registration with the United States Patent and Trademark
Office or other domestic or international government authority.
13. Confidentiality. Grantee agrees to keep strictly confidential all
information relating to Grantor that may be obtained by Grantee as the result of
the relationship between Grantor and Grantee under this Agreement other than
information which is publicly available or made known to Grantee by a third
party authorized to disclose such information.
14. Disclaimer of Warranties. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN
THIS AGREEMENT, GRANTOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
IN RESPECT OF THE SERVICE XXXX AND TRADE NAME, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF NON-INFRINGEMENT OR OF RESULTS TO BE OBTAINED FROM USE THEREOF.
15. Negation of Consequential Damages. IN NO EVENT SHALL GRANTOR BE
LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER HEREUNDER,
REGARDLESS OF WHETHER GRANTOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES.
16. Governmental Licenses, Permits and Approvals. Grantee, at its
expense, shall be responsible for obtaining and maintaining all licenses,
permits, approvals, authorizations, and
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clearances which are required by governmental authorities with respect to this
Agreement and for compliance with any requirements of governmental authorities
for the registration or recordation of this Agreement and for making any
payments required in connection therewith. Grantee shall furnish to Grantor,
promptly upon Grantor's request, written evidence from such governmental
authorities of the due issuance and continuing validity of any such licenses,
permits, clearances, authorizations, approvals, registration or recordation.
17. Notices.
17.1 Notices and other communications required or permitted to
be given under this Agreement shall be in writing and delivered by hand or
overnight delivery, or placed in certified or registered mail, return receipt
requested, at the addresses specified below or such other address as either
party may, by notice to the other, designate:
If to Grantor: Correctional Management Services Corporation
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Chief Financial Officer
with a copy to: Xxxxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
If to Grantee: Prison Management Services, LLC
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Chief Financial Officer
with a copy to: Xxxxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
17.2 Notices and other communications shall be deemed given
when delivered by hand or overnight delivery to the proper address or the date
of the return receipt, as provided above.
18. Governing Laws. This Agreement shall be construed in accordance
with the laws of Tennessee, excluding the choice of law provisions thereof. The
parties hereby submit to the jurisdiction of the courts of Tennessee in respect
to all disputes arising out of or in connection with this Agreement.
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19. Enforcement. It is expressly understood, acknowledged and agreed by
Grantee that: (a) the restrictions contained in this Agreement represent a
reasonable and necessary protection of the legitimate interests of Grantor and
CCA and their affiliates, and that Grantee's failure to observe and comply with
the covenants and agreements in this Agreement will cause irreparable harm to
Grantor and CCA and their affiliates; (b) it is and will continue to be
difficult to ascertain the nature, scope and extent of the harm; and (c) a
remedy at law for such failure by Grantee will be inadequate. Accordingly, it is
the intention of the parties that, in addition to any other rights and remedies
which Grantor and CCA and their affiliates may have in the event of any breach
or threatened breach of the Agreement, Grantor and CCA and their affiliates
shall be entitled, and are expressly and irrevocably authorized by Grantee, to
demand and obtain specific performance, including, without limitation, temporary
and permanent injunctive relief and all other appropriate equitable relief
against Grantee in order to enforce against Grantee the covenants and agreements
contained in this Agreement. Such right to obtain injunctive relief may be
exercised concurrently with, prior to, after, or in lieu of, any other rights
resulting from any such breach or threatened breach. Grantee shall account for
and pay over to Grantor all compensation, profits, and other benefits, after
taxes, enuring to Grantee's benefit, which are derived or received by Grantee or
any person or business entity controlled by Grantee resulting from any action or
transaction constituting breach of the Agreement.
20. Successors. This Agreement shall be binding upon each of the
parties and shall also be binding upon their respective successors and assigns,
including a transferee of all or substantially all of its assets.
21. Waiver; Modification. No waiver or modification of any of the terms
of this Agreement shall be valid unless in writing. No waiver by either party of
a breach hereof or a default hereunder shall be deemed a waiver by such party of
a subsequent breach or default of like or similar nature.
22. Severability. If any provision in this Agreement contravenes or is
otherwise invalid under the law of any jurisdiction, then such provision shall
be deemed eliminated from this Agreement and the Agreement shall, as so
modified, remain valid and binding on the parties hereto and in full force and
effect.
23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
24. Entire Agreement. This Agreement contains the entire understanding
of the parties. There are no representations, warranties, promises, covenants or
undertakings other than those contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed by their duly authorized officers on the date set forth above.
GRANTOR:
CORRECTIONAL MANAGEMENT SERVICES CORPORATION,
a Tennessee corporation
By:_______________________________________
Its:______________________________________
GRANTEE:
PRISON MANAGEMENT SERVICES, LLC,
a Delaware limited liability company
By:_______________________________________
Its:______________________________________
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EXHIBIT A
[CCA LOGO(S)]
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