Trade Name Use Agreement - Corrections Corporation of America and CCA Prison Realty Trust
TRADE NAME USE AGREEMENT
THIS AGREEMENT (the "Agreement") dated this 18 day of July, 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.
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.
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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
the Grantee under the terms of this Agreement; and (f) has not been subject to
any third party claims for infringement due to the use of the 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.
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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
NON-INFRINGEMENT OR OF RESULTS TO BE OBTAINED FROM USE THEREOF.
15. Negation of Consequential Damages. IN NO EVENT SHALL GRANTOR BE LIABLE
FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER HEREUNDER, REGARDLESS OF
WHETHER GRANTOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Governmental Licenses, Permits and Approvals. Grantee, at its expense,
shall be responsible for obtaining and maintaining all licenses, permits,
approvals, authorizations, and clearances which are required by governmental
authorities with respect to this Agreement, and for compliance with any
requirements of governmental authorities for the registration or recordation of
this Agreement and for making any payments required in connection therewith.
Grantee shall furnish to Grantor, promptly upon Grantor's request, written
evidence from such governmental authorities of the due issuance and continuing
validity of any such licenses, permits, clearances, authorizations, approvals,
registration or recordation.
17. Notices.
17.1 Notices and other communications required or permitted to 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
102 Woodmont Blvd., Suite 800
Nashville, Tennessee 37205
Attn: Doctor R. Crants
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with a copy to: Elizabeth E. Moore, Esq.
Stokes & Bartholomew, P.A.
424 Church Street, Suite 2800
Nashville, Tennessee 37219
If to Grantee: CCA Prison Realty Trust
2200 Abbott Martin Road, Suite 201
Nashville, Tennessee 37215
Attn: D. Robert Crants, 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.
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.
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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: /s/ Doctor R. Crants
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Its: Chief Executive Officer
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GRANTEE:
CCA PRISON REALTY TRUST
By: /s/ D. Robert Crants, III
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Its: President
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