Oklahoma-Holdenville Purchase and Sale Agreement - Holdenville Industrial Authority and Corrections Corporation of America
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") for the convenience
of the parties hereto dated as of November 18, 1997, but effective upon the
Closing Date, is entered into by and among the HOLDENVILLE INDUSTRIAL AUTHORITY,
an Oklahoma Public Trust (the "Authority"), and CORRECTIONS CORPORATION OF
AMERICA, a Tennessee corporation ("CCA").
W I T N E S S E T H:
WHEREAS, CCA desires to purchase the Facility, and the Authority
desires to sell the Facility to CCA and to use the proceeds therefrom in
furtherance of its government purposes; and,
WHEREAS, the parties desire to set forth in this Agreement the terms
and provisions relating to said purchase and sale.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) cash in hand
paid by CCA to the Authority, receipt thereof is hereby acknowledged by the
Authority, and for other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
In each and every place in and throughout this Agreement, whenever the
following terms, or any of them are used, unless the context shall clearly
indicate another or different meaning or intent, they shall have the following
meanings:
"Bonds" or "1995 Bonds" shall mean the Holdenville Industrial Authority
Correctional Facility Revenue Bonds, Series 1995 in the aggregate principal
amount of $33,700,000 issued by the Authority pursuant to the terms and
provisions of that certain Bond Indenture, dated as of June 1, 1995, between the
Authority and Liberty Bank and Trust Company of Oklahoma City, National
Association, as Trustee (the "Trustee"), as supplemented and modified by that
certain 1996 Supplementary Bond Indenture, dated as of September 1, 1996,
between the Authority and the Trustee (collectively, the "Indenture").
"Closing" or "Closing Date" shall mean the date that the consideration
under Section 2.3(i) and (ii) is paid by CCA and the Authority conveys the
Facility to CCA, but in no event later than December 1, 1997, unless otherwise
mutually agreed to by the parties.
"Facility" shall mean the real property, easements, fixtures, personal
property and incorporeal hereditaments located on the Land, and any additions or
improvements thereto, including the Davis Correctional Facility, a 500-cell
medium security correctional facility constructed and placed thereon.
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"Land" shall mean the real property comprising approximately 75 acres
and located in the City of Holdenville, Hughes County, Oklahoma, described on
Exhibit A, attached hereto and incorporated herein, and upon which the Facility
is constructed.
"Management Agreement" shall mean the Management Services Agreement
dated as of June 1, 1995, by and between CCA and the Authority pertaining to the
operation and management of the Facility by CCA, including any amendments or
supplements thereto.
"Training Services Agreement" means the Training Services Agreement
dated as of June 1, 1995, by and between CCA and the Authority pertaining to the
pretraining and preparation relating to the Facility, including any amendments
or supplements thereto.
ARTICLE II
CONVEYANCE OF FACILITY
2.1 Conveyance. (a) On the Closing Date, and upon payment by CCA to or
on behalf of the Authority of the consideration set out in Section 2.3(i) and
(ii) below, the Authority will convey to CCA the Land, buildings and
improvements comprising the Facility by Warranty Deed, in the same form attached
hereto as Exhibit B, and the machinery, equipment and other items of personal
property comprising the Facility by Bill of Sale and Assignment, in the same
form attached hereto as Exhibit C. The Bill of Sale and Assignment will include
an assignment of all right, title and interest of the Authority under (i) the
Monitor Agreement, dated as of June 1, 1995, between the Authority and Norris &
Associates, Inc., and (ii) the Marketing Services Agreement, dated as of August
1, 1995, between the Authority and Capitol Consultants relating to the Facility,
and an assumption by CCA of all obligations of the Authority under said
agreements from and after the Closing.
(b) CCA may obtain, at its option and at its expense, (i) an
owner's title insurance commitment from a title insurance company of its choice
to issue a title insurance policy insuring marketable fee simple title to the
Facility to CCA, which will contain only those title exceptions described in the
Warranty Deed attached hereto as Exhibit B, (ii) an as-built survey for the
Facility prepared by an Oklahoma registered land surveyor of its choice, which
will disclose no matters affecting the Facility other than those described in
the Warranty Deed attached hereto as Exhibit B, (iii) a Phase I environmental
site assessment report for the Facility from an environmental engineer of its
choice, which will disclose no adverse or material environmental matters
affecting the Facility other than those matters caused or created by CCA, and/or
(iv) a going concern appraisal. The Authority agrees to execute and deliver to
the title company issuing said title insurance policy on or before the Closing
such resolutions, consents, notices and title affidavits and certifications
reasonably requested or customarily required by the title company in order to
enable the title company to issue its title policy to CCA, upon payment of the
premium therefor, without title exceptions or requirements other than those
title exceptions contained in the Warranty Deed attached hereto as Exhibit B and
with the standard preprinted title exceptions deleted therefrom.
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2.2 Exclusions from Conveyance. It is specifically acknowledged and
agreed by the parties that CCA is not acquiring the rights to the Authority's
inmate pay telephone service agreement relating to the Facility, or to any
renewals or replacements thereof entered into by the Authority, as part of this
transaction. In consideration thereof, the Authority agrees to maintain the
grounds surrounding the Facility beyond the main security fence. CCA agrees to
allow the Authority and the vendor under the inmate pay telephone service
agreement with the Authority access to the inmate pay telephone equipment in the
Facility during normal business hours upon reasonable notice to operate,
maintain and repair the equipment.
2.3 Consideration. (i) On the Closing Date, CCA will pay to the
Authority the amount of One Million Five Hundred Thousand Dollars ($1,500,000)
by cashier's or certified check or wire transfer funds, subject to the
prorations set forth in Section 2.4.
(ii) As additional consideration to the Authority hereunder,
on the Closing Date, CCA will deposit in escrow with the Trustee an amount
sufficient to defease the 1995 Bonds as provided in the Indenture. The Trustee
shall hold, invest and disburse said funds as provided in the Indenture to
retire the 1995 Bonds on the earliest practicable date. On the Closing Date, the
Authority will provide written instructions to the Trustee directing the Trustee
to pay to CCA the amount of all surplus funds held by the Trustee under the
Indenture as an additional management fee to CCA under the Management Agreement.
(iii) The Authority and CCA each acknowledge and agree that
the consideration for the Facility set forth herein was negotiated by the
parties at arms length. CCA represents that the consideration for the Facility
is a fair price offered by CCA after examination of the cost of other like
facilities in the marketplace, and that CCA is under no obligation to purchase.
The Authority represents that the consideration for the Facility is a fair price
agreed to by the Authority after reasonable investigation and calculation, and
that the Authority is under no obligation to sell.
2.4 Prorations. Real estate taxes with respect to the Land shall be
prorated to the Closing Date. The Authority will pay any special assessments
maturing with respect to the Land to the date of Closing, and special
assessments, if any, maturing on or after the date of Closing shall be paid by
CCA.
2.5 Closing Costs. CCA will pay (i) the recording costs and transfer
taxes to record the Warranty Deed, (ii) the premium for the owner's title
insurance policy issued to CCA, (iii) the cost of the as-built survey, the Phase
I environmental site assessment report and the going concern appraisal obtained
by CCA, (iv) the legal expenses of J. Scott Brown, as counsel to the Authority
and as bond counsel, and (v) the expense to calculate as provided in the
Indenture the rebate amount of earnings, if any, due to the federal government,
and the rebate amount of earnings, if any, determined by such calculation to be
owed to the federal government.
2.6 Termination of Agreements. Upon and after the Closing, the
Management Agreement and the Training Services Agreement shall each terminate
and shall be of no further force or effect; provided, however, that (i) the fees
due to CCA under the Management Agreement for services provided by CCA prior to
the Closing shall be billed, collected and paid to CCA as provided in the
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Management Agreement and (ii) the indemnification provisions contained in the
Management Agreement shall continue in full force and effect with respect to any
act or cause of action occurring or accruing prior to the Closing. Prior to the
Closing, the Authority agrees to authorize and direct the Trustee under the
Indenture to disburse to CCA the entire sum (approximately $958,000.00) in the
Revenue Fund (as defined in the Indenture), representing a portion of the fees
due to CCA under the Management Agreement for services provided by CCA during
the month of September 1997 that have been paid to the Trustee but have not been
disbursed to CCA as provided for in Section 6.08(B)(3) of the Indenture, which
shall be paid to CCA prior to the payment of the surplus funds held by the
Trustee as provided in Section 2.3(ii) hereof. The Authority further agrees to
authorize and direct the Trustee under the Indenture to pay to CCA any amounts
received by the Trustee subsequent to the Closing from any Transferring Entities
(as defined in the Management Agreement) for services provided by the Authority
or CCA prior to the Closing. The Authority agrees to assist and to cooperate in
good faith with CCA in connection with the billing, collection and payment of
all such fees, and agrees to promptly remit to CCA any payments it receives for
such fees. Notwithstanding the foregoing, CCA acknowledges and agrees that the
obligation of the Authority to make any payments under the Management Agreement
shall be limited and special obligations of the Authority payable solely from
the amounts received from the Transferring Entities (as defined in the
Management Agreement) and shall never become a debt or obligation of any
trustee, employee or officer of the Authority.
2.7 Further Assurances/Cooperation. CCA and the Authority each agree to
cooperate in good faith with each other and to execute and deliver in connection
with the Closing such other and further agreements, documents and instruments as
may be reasonably necessary or required in order to fully consummate the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS
3.1 Representations and Covenants by CCA. CCA makes the following
representations as the basis for the undertakings on its part herein contained
and hereby covenants and agrees:
(a) CCA is a corporation duly incorporated under the laws of
Tennessee and is qualified to do business in and is in good standing in
Oklahoma.
(b) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement conflict with or
result in a breach of any of the terms, conditions or provisions of any
corporate restriction or any agreement or instrument to which CCA is now a party
or by which it is bound, or constitute a default under any of the foregoing, or
result in the creation or imposition of any prohibited lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of CCA
under the terms of any instrument or agreement.
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<PAGE> 5
(c) CCA has full power and authority to execute and deliver
this Agreement and upon such execution and delivery, said document shall be
valid and legally binding against CCA in accordance with its terms.
3.2 Representations by the Authority. The Authority has been duly
created and is existing under the laws of the State of Oklahoma and under the
Trust Indenture creating the Authority it has the power to enter into the
transactions contemplated by, and to carry out its obligations under, this
Agreement and will do or cause to be done all things necessary to keep the
Authority in existence and in good standing so long as necessary for the
purposes thereof. The Authority is not in default under any of the provisions
contained in its Trust Indenture or in the laws of Oklahoma or in any other
instrument by which it is bound. By proper action of its Trustees, the Authority
has been duly authorized to execute, deliver and perform this Agreement, the
Warranty Deed attached hereto as Exhibit B, and the Bill of Sale and Assignment
attached hereto as Exhibit C.
ARTICLE IV
MISCELLANEOUS
4.1 Successors and Assigns. All terms, provisions, conditions,
covenants, warranties and agreements contained herein shall be binding upon the
successors and assigns of both the Authority and CCA and all such terms,
provisions, conditions, covenants, warranties and agreements shall likewise
inure to the benefit of everyone who may at any time be a beneficiary hereunder.
4.2 Preservation and Inspection of Documents. All documents received by
CCA or the Authority under the provisions of this Agreement shall be retained in
its possession and shall be subject at all reasonable times to the inspection of
CCA and the Authority and their agents and their representatives, any of whom
may make copies thereof under such reasonable terms and regulations as the
holder of such documents may set out.
4.3 Parties Interested Herein. Nothing in this Agreement expressed or
implied is intended or shall be construed to confer upon, or to give to, any
person or corporation, other than the Authority or CCA, any right, remedy or
claim under or by reason of this Agreement or any covenant, condition or
stipulation thereon.
4.4 Severability of Invalid Provisions. If any one or more of the
covenants or agreements provided in this Agreement on the part of the parties
hereto to be performed should be contrary to law, then such covenant or
covenants or agreement or agreements shall be deemed severable from the
remaining covenants and agreements, and shall in no way affect the validity of
the other provisions of this Agreement.
4.5 Successors. Whenever in this Agreement the Authority is named or
referred to, it shall be deemed to include any public trust or other entity
organized and existing for the benefit of and on behalf of the City of
Holdenville, which succeeds to the principal functions and powers of the
Authority, and all the covenants and agreements contained in the Agreement by or
in behalf of the Authority shall bind and inure to the benefit of said successor
whether so expressed or not.
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4.6 Consents and Approvals. Whenever the written consent or approval of
any party hereto shall be required under the provisions of this Agreement, such
consent or approval shall not be unreasonably withheld or delayed.
4.7 Notices, Demands and Requests. All notices, demands and requests to
be given or made hereunder to or by the parties shall be in writing and shall be
properly made if delivered personally, or sent by registered or certified mail,
or by a nationally recognized express courier service, all charges prepaid, to
the other party at the address set forth below, or at such other address as may
hereafter be provided in writing. The date of personal delivery, or the date of
mailing or of delivery to such nationally recognized express courier service, as
the case may be, shall be the date of such notice, demand or request:
(a) AUTHORITY
Holdenville Industrial Authority
City Hall
Holdenville, Oklahoma 74848
Attn: Chairman
(b) CCA
Doctor R. Crants
Chairman and Chief Executive Officer
Corrections Corporation of America
10 Burton Hills Boulevard
Nashville, Tennessee 37215
4.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
4.9 Applicable Law. This Agreement shall be governed exclusively by
the applicable laws of the State of Oklahoma.
4.10 Section Headings Not Controlling. The headings of the several
sections of this Agreement have been prepared for convenience of reference only
and shall not control, affect the meaning of, or be taken as an interpretation
of any provision of this Agreement.
4.11 Amendment. This Agreement may only be amended by mutual agreement
in writing signed between the parties.
4.12 Entire Agreement. The foregoing represents the entire agreement
between the parties.
4.13 Survival. It is understood and agreed by the parties hereto that
whether or not it is specifically so provided herein, any term or provision of
this Agreement, which by its nature or effect is required to be kept, observed
or performed after the Closing and conveyance of title, shall
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<PAGE> 7
not be merged therein, but shall be and remain binding upon and for the benefit
of the parties hereto until fully kept, observed or performed.
4.14 Broker and Commission. CCA and the Authority each warrant to the
other than no broker has been involved in the transactions set forth in this
Agreement, and each will indemnify and hold the other party harmless from any
claims for broker commissions arising from such party's actions.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by its duly authorized officers all as of the day and year first above
written.
(SEAL) HOLDENVILLE INDUSTRIAL AUTHORITY
ATTEST:
/s/ Jack Barrett
--------------------------------
Jack Barrett, Chairman
/s/ Frenola Caver
------------------------------
Secretary
CORRECTIONS CORPORATION OF
AMERICA
By: /s/ Darrell K. Massengale
----------------------------
Title: CFO
-------------------------
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<PAGE> 8
STATE OF OKLAHOMA )
) SS
COUNTY OF OKLAHOMA )
The foregoing instrument was acknowledged before me this 19th day of
November, 1997, by Jack Barrett, Chairman of the Holdenville Industrial
Authority, a public trust, on behalf of said Authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Dana L. Gilchrist
------------------------------------
Notary Public
My Commission Expires:
3-25-98
----------------------
STATE OF TENNESSEE )
) SS
COUNTY OF DAVIDSON )
The foregoing instrument was acknowledged before me this 18th day of
November, 1997, by Darrell K. Massengale, the CFO of Corrections Corporation of
America, on behalf of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Carole M. Maxson
------------------------------------
Notary Public
My Commission Expires:
9/23/2000
----------------------
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EXHIBIT A
(Real Estate Description)
(Davis Correctional Facility)
A tract of land lying in the Southeast Quarter (SE/4) of Section 10, Township 7
North, Range 8 East, Indian Meridian, Hughes County, Oklahoma, further described
as a point of beginning at a point along the South line of said SE/4, S
89(degree)20'02" W, 469.25 feet from the Southeast corner of said SE/4; thence
along the South line of said SE/4, S 89(degree)20'02" W, 1030.75 feet; thence N
00(degree)57'37" W, 2323.20 feet and parallel to the East line of said SE/4;
thence N 89(degree)20'02" E, 1500.00 feet and parallel to the South line of said
SE/4; thence along said East line of the SE/4 S 00(degree)57'37" E, 1859.20
feet; thence S 89(degree)20'02" W, 469.25 feet; thence S 00(degree)57'37" E,
464.00 feet to the Point of Beginning, containing 75 acres, more or less.
<PAGE> 10
EXHIBIT B
WARRANTY DEED
THAT HOLDENVILLE INDUSTRIAL AUTHORITY, a duly formed Public Trust of
the State of Oklahoma, acting by and through its trustees, party of the first
part, in consideration of Ten Dollars ($10.00) and other valuable
considerations, in hand paid, the receipt which is hereby acknowledged, does
hereby grant, bargain, sell and convey unto CORRECTIONS CORPORATION OF AMERICA,
a Tennessee corporation, 10 Burton Hills Boulevard, Nashville, Tennessee 37215,
party of the second part, the following described real property and premises
situated in Hughes County, State of Oklahoma, to-wit:
A tract of land lying in the Southeast Quarter (SE/4) of Section 10,
Township 7 North, Range 8 East, Indian Meridian, Hughes County,
Oklahoma, further described as a point of beginning at a point along
the South line of said SE/4, S 89(degree)20'02" W, 469.25 feet from the
Southeast corner of said SE/4; thence along the South line of said
SE/4, S 89(degree)20'02" W, 1030.75 feet; thence N 00(degree)57'37" W,
2323.20 feet and parallel to the East line of said SE/4; thence N
89(degree)20'02" E, 1500.00 feet and parallel to the South line of said
SE/4; thence along said East line of the SE/4 S 00(degree)57'37" E,
1859.20 feet; thence S 89(degree)20'02" W, 469.25 feet; thence S
00(degree)57'37" E, 464.00 feet to the Point of Beginning, containing
75 acres, more or less.
RESTRICTION: Until March 31, 2013, no portion of the real property and
premises herein described shall be used for any purpose other than for
a private prison, correctional facility or work center. This covenant
shall run with the land and be binding upon the Grantee, and Grantee's
successors and assigns.
RIGHT OF USE: The party of the first part or the Oklahoma Department of
Corrections will have the right to use the lagoon located on said real
property until the work release center of the party of the first part
located adjacent to said real property is connected to the wastewater
treatment system of the City of Holdenville, Oklahoma.
together with all the improvements thereon and the appurtenances thereunto
belonging, and warrant the title to the same. SUBJECT TO: easements,
restrictions and rights-of-way of record as described on Exhibit A, attached
hereto and incorporated herein by reference.
TO HAVE AND TO HOLD said described premises unto the said party of the
second part, its successors and assigns forever, free and discharged of and from
all former grants, charges, taxes, judgments, mortgages and other liens and
encumbrances of whatsoever nature.
Exempt Documentary Stamp Tax 0S Title 68 Article 32 Section 3202, Paragraph 11.
Send Tax Statements:
Corrections Corporation of America
10 Burton Hills Boulevard
Nashville, Tennessee 37215
<PAGE> 11
Signed and delivered this _____ day of November, 1997.
HOLDENVILLE INDUSTRIAL AUTHORITY
--------------------------------
(SEAL) Jack Barrett, Chairman
ATTEST:
------------------------------
Secretary
STATE OF OKLAHOMA )
) SS
COUNTY OF ___________________ )
The foregoing instrument was acknowledge before me this _____ day of
November, 1997, by Jack Barrett, Chairman of the Holdenville Industrial
Authority, a public trust, on behalf of the trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year first above written.
(SEAL) ----------------------------------------
Notary Public
My Commission Expires:
----------------------
<PAGE> 12
EXHIBIT A
1. Taxes for the year 1997 and subsequent years, not yet due and payable.
2. Title to all minerals within and underlying the premises, together with all
mining rights, and other rights, privileges and immunities relating
thereto.
3. Right of Way in favor of General American Oil Company of Texas referred to
in Assignment of Pipe Lines recorded October 30, 1954 in Book 228 Misc.,
page 126. Assigned to Kerr-McGee Oil Industries, Inc. by Assignment
recorded June 4, 1956 in Book 255 Misc., page 160. Subsequently assigned to
BigHeart Pipe Line Corporation by Assignment and Bill of Sale recorded
January 17, 1973 in Book 462 Misc., page 115.
4. Right of Way in favor of Flow Production Company referred to in Assignment
and Bill of Sale recorded June 10, 1996 in Book 880 Misc., page 24.
5. Right of Way in favor of Oklahoma Gas and Electric Company recorded
November 19, 1980 in Book 588 Misc., page 533.
6. Right of Way in favor of Adams Petroleum Enterprises Corp. recorded March
18, 1981 in Book 597 Misc., page 559.
7. Easement for Public Highway in favor of County of Hughes recorded April 16,
1990 in Book 792 Misc., page 35.
8. Right of Way in favor of Oklahoma Natural Gas Company recorded September
18, 1995 in Book 870 Misc., page 702.
9. Right of Way in favor of Oklahoma Gas and Electric Company recorded July 1,
1996 in Book 880 Misc., page 568.
10. Lease and Operation Agreement, dated as of July 1, 1996, between
Holdenville Industrial Authority and Oklahoma Department of Corrections,
not shown of public record.
11. Restrictions and Right of Use contained in Warranty Deed recorded July 13,
1995 in Book 868 Misc., page 457.
12. Wewoka Creek Water and Soil Conservancy District No. 2 created by Judgment
recorded June 11, 1954 in Book 221 Misc., page 439.
13. Statutory Right of Way in favor of the State of Oklahoma 33 feet along all
section lines as shown on survey of James B. Marshall, dated July 12, 1995.
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14. Right of Way in favor of Sinclair Oil and Gas Company, recorded February 1,
1965, in Book 373 Misc., page 336. Assigned to Intersearch Gas Corporation
by Assignment and Bill of Sale recorded December 28, 1990 in Book 803
Misc., page 714. Subsequently assigned to Enerfin Resources I Limited
Partnership by Assignment recorded April 25, 1991 in Book 808 Misc., page
779.
15. Rights for Easement or claims of possession for 5" buried gas line as shown
on survey of James B. Marshall, dated July 12, 1995, not shown of public
record.
16. Rights for Easement or claims of possession for Arkla Gas Line as shown on
survey of James B. Marshall, dated July 12, 1995, not shown of public
record.
<PAGE> 14
EXHIBIT C
BILL OF SALE AND ASSIGNMENT
STATE OF OKLAHOMA ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________________ ss.
THAT, HOLDENVILLE INDUSTRIAL AUTHORITY, a duly formed Public Trust of the State
of Oklahoma, acting by and through its trustees ("Grantor" or "Seller"), for and
in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration to it in hand paid by CORRECTIONS CORPORATION OF
AMERICA, a Tennessee corporation ("Grantee" or "Purchaser"), to the extent
legally permissible, has GRANTED, SOLD, ASSIGNED, TRANSFERRED, CONVEYED, and
DELIVERED and does by these presents GRANT, SELL, ASSIGN, TRANSFER, CONVEY, and
DELIVER unto the said Purchaser, all of Seller's right, title and interest in
and to the following described properties, rights, and interests (the "Personal
Property"), located on or about that certain land described on Exhibit A,
attached hereto and incorporated herein for all purposes, or the buildings,
improvements, structures and fixtures thereon (the "Real Property"), or used in
connection with the operation thereof:
All permits, licenses (but excluding Seller's business and
operating licenses), approvals, entitlements and other government,
quasi-government and non-government authorizations including,
without limitation, certificates of use and occupancy, required in
connection with the ownership, planning, development, construction,
use, operation or maintenance of the Real Property, to the extent the
same are assignable by Seller, any leases, contract rights, loan
agreements, mortgages, easements, covenants, restrictions or other
agreements or instruments affecting all or a portion of the Real
Property or Personal Property, to the extent the same are assignable by
Seller, and other intangible property or any interest therein owned or
held by Seller in connection with the Real Property, including all
water rights and reservations, rights to use the trade name applicable
to the Real Property, and zoning rights related to the Real Property,
or any part thereof, and Seller's accounts receivable relating to the
Real Property, to the extent the same are assignable by Seller;
provided, however, such Personal Property shall not include the general
corporate trademarks, trade names (except as set forth above), service
marks, logos or insignia or the books and records of Seller, and
Seller's business and operating licenses for the facilities on the Real
Property.
All warranties and guaranties with respect to the Real
Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the
same are assignable by Seller.
All site plans, surveys, soil and substrata studies,
architectural drawings, plans and specifications, engineering plans and
studies, floor plans, landscape plans, Americans with Disabilities Act
compliance reports, environmental reports and studies, professional
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inspection reports, construction and/or architect's reports or
certificates, feasibility studies, appraisals, and other similar plans
and studies that relate to the Real Property, to the extent the same
are assignable by Seller.
That certain Monitor Agreement, dated as of June 1, 1995,
between the Seller and Norris & Associates, Inc., and that certain
Marketing Services Agreement, dated as of August 1, 1995, between the
Seller and Capitol Consultants.
All furnishings, equipment, tools, machinery, fixtures,
appliances, and all other tangible personal property located on or
about the Real Property or used in connection with the operation
thereof which is owned by Seller including, but not limited to, all
those items of tangible personal property described on Exhibit B,
attached hereto and incorporated herein for all purposes.
THERE IS EXPRESSLY EXCLUDED FROM THE PERSONAL PROPERTY THE
FOLLOWING: (i) all those items of tangible and intangible personal property
described on Exhibit C, attached hereto and incorporated herein for all
purposes, (ii) personal property owned by employees of Seller and personal
property owned by inmates housed at the Real Property, and (iii) except as
otherwise specifically provided herein, all management, service and operating
agreements and contracts entered into by Seller with respect to the Real
Property or the Personal Property, including, but not limited to, agreements and
contracts to house inmates at the Real Property, and the inmate pay telephone
service agreement relating to the Real Property, including any renewals or
replacements thereof entered into by the Seller.
TO HAVE AND TO HOLD the Personal Property unto the said Purchaser, its
successors and assigns, forever, and Seller does hereby bind itself and its
successors to warrant and forever defend, all and singular, title to the said
Personal Property unto the said Purchaser, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof by, through or under Seller, but not further or otherwise.
Seller and its successors hereby warrants, represents, covenants and
agrees with Purchaser as follows:
(i) That Seller is the owner of the Personal Property, which Personal
Property is free and clear of any and all liens, security interests, or other
encumbrances except the exceptions shown on the schedule attached hereto as
Schedule A and incorporated herein by reference for all purposes, and this sale
and assignment is made and accepted expressly subject to the matters set forth
on Schedule A attached hereto;
(ii) That Seller shall indemnify and hold harmless Purchaser from and
against any and all liability, loss, damage, cost or expense, including
reasonable attorneys' fees, which Purchaser may suffer or incur by reason of any
act or cause of action occurring or accruing prior to the effective date hereof
and arising out of the ownership and/or operation of the Real Property or the
Personal Property, except for any liability, loss, damage, cost or expense
arising out of the actions or omissions of the Purchaser.
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Purchaser and its successors and assigns hereby warrant, represent,
covenant and agree with Seller that Purchaser shall indemnify and hold harmless
Seller from and against any and all liability, loss, damage, cost or expense,
including reasonable attorneys' fees, which Seller may suffer or incur by reason
of any act or cause of action occurring or accruing subsequent to the effective
date hereof and arising out of the ownership and/or operation of the Real
Property or the Personal Property, except any liability, loss, damage, cost or
expense arising out of the actions or omissions of the Seller and except for any
matters which Purchaser has agreed to indemnify and hold the Seller harmless
from and against as set forth in that certain Management Services Agreement
dated as of June 1, 1995, between the Seller and Purchaser.
The agreements, covenants, warranties and representations herein set
forth shall be binding upon and shall inure to the benefit of Seller and
Purchaser and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale
and Assignment to be executed by its duly authorized officers effective as of
November ___, 1997.
SELLER:
HOLDENVILLE INDUSTRIAL AUTHORITY
---------------------------------------
(SEAL) Jack Barrett, Chairman
ATTEST:
--------------------------------
Secretary
PURCHASER:
CORRECTIONS CORPORATION OF AMERICA
By:
-----------------------------------
Title:
--------------------------------
<PAGE> 17
STATE OF OKLAHOMA )
) SS
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this _____ day of
November, 1997, by Jack Barrett, Chairman of the Holdenville Industrial
Authority, a public trust, on behalf of said Authority.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------------
Notary Public
My Commission Expires:
----------------------
STATE OF TENNESSEE )
) SS
COUNTY OF DAVIDSON )
The foregoing instrument was acknowledged before me this _____ day of
November, 1997, by ____________________________________, the
______________________________ of Corrections Corporation of America, on behalf
of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------------------
Notary Public
My Commission Expires:
---------------------
<PAGE> 18
Exhibit A to Bill of Sale and Assignment
Property Description
A tract of land lying in the Southeast Quarter (SE/4) of Section 10,
Township 7 North, Range 8 East, Indian Meridian, Hughes County,
Oklahoma, further described as a point of beginning at a point along
the South line of said SE/4, S 89(degree)20'02" W, 469.25 feet from the
Southeast corner of said SE/4; thence along the South line of said
SE/4, S 89(degree)20'02" W, 1030.75 feet; thence N 00(degree)57'37" W,
2323.20 feet and parallel to the East line of said SE/4; thence N
89(degree)20'02" E, 1500.00 feet and parallel to the South line of said
SE/4; thence along said East line of the SE/4 S 00(degree)57'37" E,
1859.20 feet; thence S 89(degree)20'02" W, 469.25 feet; thence S
00(degree)57'37" E, 464.00 feet to the Point of Beginning, containing
75 acres, more or less.
<PAGE> 19
Exhibit B to Bill of Sale and Assignment
Items of Personal Property
See Exhibit B-1 to Bill of Sale and Assignment, attached hereto and
incorporated herein. Seller and Purchaser agree to attach as Exhibit B to this
Bill of Sale and Assignment an updated schedule of the items of tangible
personal property as soon as the same is completed, and when so attached such
schedule shall be deemed a part of this Bill of Sale and Assignment.
<PAGE> 20
Exhibit B-1 to Bill of Sale and Assignment
Items of Personal Property
<PAGE> 21
Exhibit C to Bill of Sale and Assignment
Seller's Excluded Personal Property
Asset Number Vendor Description
------------ ------ -----------
NONE
<PAGE> 22
Schedule A to Bill of Sale and Assignment
Permitted Exceptions
1. Taxes for the year 1997 and subsequent years, not yet due and payable.
2. Title to all minerals within and underlying the premises, together with all
mining rights, and other rights, privileges and immunities relating
thereto.
3. Right of Way in favor of General American Oil Company of Texas referred to
in Assignment of Pipe Lines recorded October 30, 1954 in Book 228 Misc.,
page 126. Assigned to Kerr-McGee Oil Industries, Inc. by Assignment
recorded June 4, 1956 in Book 255 Misc., page 160. Subsequently assigned to
BigHeart Pipe Line Corporation by Assignment and Bill of Sale recorded
January 17, 1973 in Book 462 Misc., page 115.
4. Right of Way in favor of Flow Production Company referred to in Assignment
and Bill of Sale recorded June 10, 1996 in Book 880 Misc., page 24.
5. Right of Way in favor of Oklahoma Gas and Electric Company recorded
November 19, 1980 in Book 588 Misc., page 533.
6. Right of Way in favor of Adams Petroleum Enterprises Corp. recorded March
18, 1981 in Book 597 Misc., page 559.
7. Easement for Public Highway in favor of County of Hughes recorded April 16,
1990 in Book 792 Misc., page 35.
8. Right of Way in favor of Oklahoma Natural Gas Company recorded September
18, 1995 in Book 870 Misc., page 702.
9. Right of Way in favor of Oklahoma Gas and Electric Company recorded July 1,
1996 in Book 880 Misc., page 568.
10. Lease and Operation Agreement, dated as of July 1, 1996, between
Holdenville Industrial Authority and Oklahoma Department of Corrections,
not shown of public record.
11. Restrictions and Right of Use contained in Warranty Deed recorded July 13,
1995 in Book 868 Misc., page 457.
12. Wewoka Creek Water and Soil Conservancy District No. 2 created by Judgment
recorded June 11, 1954 in Book 221 Misc., page 439.
13. Statutory Right of Way in favor of the State of Oklahoma 33 feet along all
section lines as shown on survey of James B. Marshall, dated July 12, 1995.
<PAGE> 23
14. Right of Way in favor of Sinclair Oil and Gas Company, recorded February 1,
1965, in Book 373 Misc., page 336. Assigned to Intersearch Gas Corporation
by Assignment and Bill of Sale recorded December 28, 1990 in Book 803
Misc., page 714. Subsequently assigned to Enerfin Resources I Limited
Partnership by Assignment recorded April 25, 1991 in Book 808 Misc., page
779.
15. Rights for Easement or claims of possession for 5" buried gas line as shown
on survey of James B. Marshall, dated July 12, 1995, not shown of public
record.
16. Rights for Easement or claims of possession for Arkla Gas Line as shown on
survey of James B. Marshall, dated July 12, 1995, not shown of public
record.