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EXHIBIT 1
CCA PRISON REALTY TRUST
__% SERIES A PREFERRED SHARES
UNDERWRITING AGREEMENT
January __, 1998
X.X. XXXXXXXX & CO., L.L.C.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
PAINEWEBBER INCORPORATED
XXXXXXXX INC.
WHEAT FIRST SECURITIES
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") __________ shares (collectively, the "Firm Shares"),
of the _______% Series A Cumulative Preferred Shares, $.01 par value per share
(the "Preferred 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 _____________
additional Preferred 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 registration statement on Form S-11
and a registration statement on Form S-3 (Registration Nos.
333-_________ and 333-____________), including the related preliminary
prospectus relating to the Shares. Copies of such registration
statements on Form S-11 and S-3 and any amendments, including any
post-effective amendments, and all forms of the related prospectuses
contained therein and any supplements thereto,
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have been delivered to you. Such registration statements on Form S-11
and S-3, including the prospectus, Part II, all financial schedules and
exhibits thereto, all information deemed to be a part of such
registration statements 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.
(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
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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, except Prison Realty Management, Inc., a Tennessee corporation
(the "Subsidiary"), which is duly incorporated and in good standing
under the Laws of the State of Tennessee, with corporate 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 Subsidiary holds all licenses, certificates,
permits, franchises and authorizations from governmental authorities
necessary for the conduct of its business. The Company owns all the
outstanding capital stock of the Subsidiary.
(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 capital 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 capital 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 capital shares or any other
securities of the Company. The Underwriters will receive good and
marketable title to the Shares
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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
Preferred 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 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
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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) 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")
has been duly and validly authorized, executed and delivered by the
Company and are valid and binding agreements of the Company enforceable
in accordance with their respective terms. The Purchase Agreement, the
Option Agreements, the Right to Purchase Agreement, the Trade Name Use
Agreement, the Leases, the Master Lease, and the Employment 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 do not 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.
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(j) Subsequent to April 23, 1997, neither the Company nor the
Subsidiary has 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 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) neither the Company nor the Subsidiary has 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
or the Subsidiary, 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 the Subsidiary or any
of their respective officers, directors or trustees is a party, or to
which the property of the Company or the Subsidiary 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
Underwriters or their counsel prior to the date hereof, to the
knowledge of the Company, the 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 Facilities.
(iii) Except as has been disclosed in writing to the
Underwriters or their counsel prior to the date hereof, (A) no notices
of any violation or alleged violation of any Environmental Laws
relating to the 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 Facilities, and (B) there are no writs, injunctions, decrees,
orders or judgments outstanding, or any actions, suits, claims,
proceedings or investigations pending, or to
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the knowledge of the Company threatened, relating to the ownership,
use, maintenance or operation of the Facilities.
(iv) Except as has been disclosed in writing to the
Underwriters 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 Facilities have been obtained, and the
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 Facilities have been disclosed to the
Underwriters 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
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(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.)
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 Facilities; or
(D) the presence of which on any of the
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
Facilities; or
(E) the presence of which on adjacent
properties constitutes a trespass by any owner or
operator of the 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
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 Facilities at the Closing Date (A)
shall remain in full force and effect and (B) permit the 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 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
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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 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 time, or both, constitute such a
violation; and (vi) the improvements comprising any portion of the
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) The Company is 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 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. The
Subsidiary constitutes a "qualified reit subsidiary" within the meaning
of Section 856(i) of the Code.
(o) _____________ Preferred 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
Facilities and such title insurance is in full force and effect.
(q) Neither the Company, the Subsidiary, nor any of their
respective trustees, directors, 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 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.
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(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 or the Subsidiary is a party have been duly
authorized, executed and delivered by the Company or the Subsidiary,
constitute valid and binding agreements of the Company or the
Subsidiary and are enforceable against the Company or the Subsidiary in
accordance with the terms thereof. Each of the Company and the
Subsidiary has performed all material 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 and the Subsidiary have 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 or the Subsidiary, which if
determined adversely could materially and adversely affect the
earnings, assets, affairs, business prospects or condition (financial
or other) of the Company.
(v) Each of the Company and the Subsidiary operates its
business in conformity in all material respects with all applicable
statutes, common laws, ordinances, decrees, orders, rules and
regulations of governmental bodies. Each of the Company and the
Subsidiary 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 and the Subsidiary have 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
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respect to such filings or submissions. The Company and the Subsidiary
have 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
and the Subsidiary have not received any notice of violation of or been
threatened with a charge of violating and are 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 the Subsidiary or otherwise which could
materially adversely affect the Company. The Company is not aware of
any existing or imminent labor disturbance by employees of the Company,
the Subsidiary 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 and the Subsidiary are 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) Each of the Company and the Subsidiary 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
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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 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
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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 Bradford 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 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 Bradford, 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 Bradford 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
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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 Underwriters
promptly (in writing, if requested) of all such filings. The Company
shall notify the Underwriters 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 Underwriters' request, any amendments of or
supplements to the Registration Statement, the Effective Prospectus or
the Final Prospectus which, in the Underwriters' 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 Underwriters after reasonable
notice thereof. The Company shall advise the Underwriters promptly of
the issuance by the 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 Underwriters 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
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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
Underwriters 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
Underwriters 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 Underwriters at such
office or offices as the Underwriters may designate as many copies of
the Preliminary Prospectus and Final Prospectus as the Underwriters 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 as the Underwriters 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 Underwriters 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 Underwriters
may reasonably request, the Company will furnish to the Underwriters
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
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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 Underwriters 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) Neither the Company, the Subsidiary nor any of their
respective officers, trustees, directors 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 or the Preferred
Shares.
(k) 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.
(l) The Company will use its best efforts to effect the
listing of the Preferred Shares, subject to notice of issuance, on the
NYSE on or before the effective date of the Registration Statement.
(m) 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.
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), 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
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connection therewith, (v) filing fees paid or incurred by the Underwriters in
connection with filings with the NASD, (vi) expenses of listing the Preferred
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
Underwriters 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 Underwriters 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 Underwriters' 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.
(b) No Underwriters 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
Underwriters' reasonable judgment, is material, or omits to state a
fact which, in the Underwriters' reasonable judgment, is material and
is required to be stated therein or necessary to make the statements
therein not misleading.
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(c) The Underwriters 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, Ohio, Tennessee 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, except Prison Realty Management, Inc., a
Tennessee corporation (the "Subsidiary"), which is duly
incorporated and in good standing under the laws of the State
of Tennessee, 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
Subsidiary is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of the
States of Arizona, Kansas, Ohio, Tennessee and Texas. The
Subsidiary holds all licenses, certificates, permits,
franchises and authorizations from governmental authorities
necessary for the conduct of its business. The Company owns
all the outstanding capital stock of the Subsidiary.
(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,
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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 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 Preferred 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, Ohio,
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
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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.
(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 does not and 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 and perform 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,
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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.
(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.
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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).
(d) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxxxx & Xxxxxxxxxxx, P.A., tax counsel to the
Company, reasonably acceptable to the Underwriters that, the Company is
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 Underwriters shall be entitled to rely on the opinions
rendered by Xxxxxxxx & Xxx, PLC, counsel to the Company, pursuant to
the Operative Documents and on the opinion rendered by Miles &
Stockbridge, a Professional Corporation, as to matters of Maryland law.
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 Underwriters 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 Underwriters, 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
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underwriters with respect to the financial statements and certain
financial information of the Company contained in the Registration
Statement and the Prospectus.
(h) The Underwriters 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 Underwriters, 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 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 CCA contained in the Registration
Statement and the Prospectus.
(i) There shall have been furnished to the Underwriters a
certificate, dated the Closing Date and addressed to you, signed by the
President 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.
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(j) The Company shall have filed Articles Supplementary with
the State of Maryland.
(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 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 Underwriters' 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.
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 Underwriters and their counsel. The Company
shall furnish to the Underwriters such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Underwriters 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
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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 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
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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.
(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
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hand and the Underwriters on the other from the offering of the Shares
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 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.
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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 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 Underwriters 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 Underwriters 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 Underwriters of telegrams offering the Firm Shares
for sale to securities dealers, whichever may occur first.
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12. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Underwriters (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 Underwriters 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 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 Underwriters 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
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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 Underwriters, and any action
hereunder taken by Bradford 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:
--------------------------------------
Title:
-----------------------------------
Confirmed and accepted as of the
date first above written.
X.X. XXXXXXXX & CO., L.L.C.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
PAINEWEBBER INCORPORATED
XXXXXXXX INC.
WHEAT FIRST SECURITIES
By:
------------------------------
Partner
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SCHEDULE I
UNDERWRITERS
Number of Firm
Underwriter Shares to be Purchased
X.X. Xxxxxxxx & Co............................................
NationsBanc Xxxxxxxxxx Securities LLC.........................
PaineWebber Incorporated......................................
Xxxxxxxx Inc..................................................
Wheat First Securities........................................
