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EXHIBIT 10.5
TRADE NAME USE AGREEMENT
THIS AGREEMENT (the "Agreement") dated this ______ day of _________,
1997, by and among Corrections Corporation of America ("Grantor"), a Delaware
corporation, and CCA Prison Realty Trust ("Grantee"), a Maryland real estate
investment trust.
W I T N E S S E T H:
WHEREAS, Grantor is the sole and exclusive owner of the corporate name
Corrections Corporation of America and its abbreviation "CCA" (the Trade Name).
NOW, THEREFORE, in consideration of the premises and the mutual
promises and undertakings herein contained, and for other good and valuable
consideration, the parties agree as follows:
1. Grant of Trade Name by Grantor. Grantor grants to Grantee the
non-exclusive, non-transferrable right to use the Trade Name in its corporate
name as follows: CCA Prison Realty Trust, subject to the provisions of this
Agreement.
2. Term. This Agreement shall commence on the date above written
and terminate on the date which Grantee ceases to own any correctional or
detention facility managed by Grantor (the "Term").
3. Termination. This Agreement may be terminated upon ten (10)
days' written notice from Grantor to Grantee upon occurrence of any of the
following events:
(a) A change in control of Grantee;
(b) Grantee goes into liquidation or bankruptcy or has a receiver
or trustee appointed to administer either its property or affairs, or makes a
general assignment of its property for the benefit of creditors or in any other
manner takes advantage of the laws of bankruptcy or insolvency or the like.
4. Reservation of Rights. Except for the limited rights herein
expressly granted to Grantee, all rights in the Trade Name are reserved to
Grantor throughout the world for the sale and exclusive use or other
disposition by Grantor at anytime, and from time to time, without any
obligation to Grantee.
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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 Trade Name by Grantee shall conform to standards reasonably
set by Grantor. Grantee agrees to cooperate with Grantor in facilitating
Grantor's control of such nature and quality, and to supply Grantor with
specimens of all uses of the Trade Name upon request.
6. Transfer Prohibited. The 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 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. 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 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 in the 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.
9. Indemnification.
9.1 The 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, arising out of
Grantee's breach of the promises, covenants, representations and warranties
made by it herein.
9.2 The 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, arising out of
Grantor's breach of the promises, covenants, representations and warranties
made by it herein.
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10. Representations and Warranties.
10.1 Grantee hereby represents and warrants that (a) it is a
real estate investment trust duly organized and validly existing under the laws
of Maryland; (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 Delaware; (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, 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 the Trade Name and has the right to grant the rights to use the Trade
Name to Grantee under the terms of this Agreement; and (f) it has not been
subject to any third party claims for infringment due to the use of the Trade
Name.
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for infringement due to the use of the Trade Name.
11. Ownership; Form of Use. Grantee acknowledges that Grantor
owns all right, title, and interest in and to the Trade Name, 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 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 Trade Name
or attack the validity of this Agreement. Grantee agrees to use the Trade Name
only in the form and manner as prescribed from time to time by Grantor.
12. Waiver; Modification. No wavier 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.
13. Separability. If any provision in this Agreement contravenes
or is otherwise invalid under the law of any country or subdivision thereof,
then such provision insofar as such country or subdivision is concerned 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.
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 TRADE NAME, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF NONINFRINGEMENT 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 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.
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17. Notices.
17.1 Notices and other communications required or
permitted to the 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: Corrections Corporation of America
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Doctor X. Xxxxxx
with a copy to: Xxxxxxxxx X. Xxxxx, Esq.
Xxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
If to Grantee: CCA Prison Realty Trust
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: D.Xxxxxx Xxxxxx, III
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.
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 its 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 its 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 its affiliates may have in the event of any breach or
threatened breach of the Agreement, Grantor and its 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.
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20. Entire Agreement. This Agreement contains the entire
understanding of the parties. There are no representations, warranties,
promises, covenants, or undertakings other than those hereinabove contained.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be signed by their duly authorized officers and their respective corporate
seals to be hereunto affixed on the date set forth above.
GRANTOR:
CORRECTIONS CORPORATION OF AMERICA
By:
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Its:
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GRANTEE:
CCA PRISON REALTY TRUST
By:
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Its:
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