Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CORRECTIONS CORPORATION OF AMERICA
(Exact name of Registrantregistrant as Specifiedspecified in Its Charter)
SEE TABLE OF ADDITIONAL REGISTRANT GUARANTORS
| Maryland | 8744 | 62-1763875 | ||
(State or other jurisdiction of incorporation or organization) | ||||
(Primary Standard Industrial Classification Code Number) | (I.R.S. Identification Number) |
10 Burton Hills Boulevard
Nashville, Tennessee 37215
(615) 263-3000
(Address, Including Zip Code,including zip code, and Telephone Number,
Damon T. Hininger
President and Chief Executive Offices)Officer
10 Burton Hills Boulevard
Nashville, Tennessee 37215
(615) 263-3000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
F. Mitchell Walker, Jr., Esq.
Bass, Berry & Sims PLC
150 Third Avenue South, Suite 2800
Nashville, Tennessee 37201
(615) 742-6200
Approximate date of commencement of proposed sale of the securities to the public:public: As soon as practicable after the effective date of this Registration Statement.
If the securities being registered on this formForm are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. o¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o¨
| Proposed Maximum | Proposed Maximum | |||||||
| Title of Each Class of | Amount to be | Aggregate Offering | Aggregate Offering | Amount of | ||||
| Securities to be Registered | Registered | Price per Unit(1) | Price | Registration Fee | ||||
| 6.25% Senior Notes Due 2013 | $375,000,000 | 100% | $375,000,000 | $44,137.50 | ||||
| Guarantee of 6.25% Senior Notes Due 2013 | $375,000,000 | 100% | $375,000,000 | —(2) | ||||
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer þ | Accelerated filer ¨ | Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company ¨ |
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issue Tender Offer) ¨
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ¨
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Title of Each Class of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Note | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee | ||||||
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4.125% Senior Notes due 2020 | $325,000,000 | 100% | $325,000,000 | $44,330 | ||||||
Guarantees of 4.125% Senior Notes due 2020(2) | N/A | N/A | N/A | N/A(3) | ||||||
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| (1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(f) |
| (2) | See inside facing page for table of additional registrant guarantors. |
| (3) | Pursuant to Rule 457(n) under the Securities Act, no separate |
The registrantregistrants hereby amendsamend this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the registrantregistrants shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statementregistration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Exact Name of Registrant Guarantor as Specified in its Charter(1) | State or Other Jurisdiction | of Incorporation or Organization | I.R.S. | Employer Identification Number | ||||||||
CCA | Tennessee | 90-0432377 | ||||||||||
CCA International, LLC | 62-1310460 | |||||||||||
CCA of Tennessee, LLC | Tennessee | 62-1806755 | ||||||||||
CCA TRS, LLC | 46-1705695 | |||||||||||
Prison Realty Management, LLC | Tennessee | 62-1696286 | ||||||||||
Technical and Business Institute of America, | LLC | Tennessee | 38-2999108 | |||||||||
TransCor America, LLC | Tennessee | 62-1806099 | ||||||||||
(1) The address and telephone number of principal executive offices of each additional registrant guarantor is the same as Corrections Corporation of America, except for TransCor America, LLC, which principal executive offices address is 646 Melrose Avenue, Nashville, Tennessee 37211 and telephone number is (615) 251-7008. The name, address and telephone number of the agent for service of each additional registrant guarantor is the same as Corrections Corporation of America.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission relating to these securities is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where such offer or sale is not permitted.
Subject to Completion, dated June 3, 2013
CORRECTIONS CORPORATION OF AMERICA
Offer to Exchange
4.125% Senior Notes due 2013
($325,000,000 aggregate principal amount)
which have been registered under the Securities Act of 1933
for
any and all outstanding unregistered 4.125% Senior Notes due 2020
($325,000,000 aggregate principal amount outstanding)
We are offering, upon the terms and subject to the conditions set forth in this prospectus and the accompanying letter of transmittal, to exchange up to $325,000,000 aggregate principal amount of registered 4.125% senior notes due 2020 (the “exchange notes”) for any and all of our $325,000,000 aggregate principal amount of unregistered 4.125% senior notes due 2020 that were issued in a private placement on April 4, 2013 (the “initial notes”). The exchange notes are substantially identical to the initial notes, except the exchange notes are registered under the Securities Act of 1933, as amended (the “Securities Act”), and the transfer restrictions and additional interest provisions applicable to the initial notes will not apply to the exchange notes. The exchange notes will represent the same debt as the initial notes and we will issue the exchange notes under the same indenture under which the initial notes were issued. As with the initial notes, the exchange notes will be guaranteed on a senior unsecured basis by substantially all of our existing and future domestic subsidiaries that guarantee our revolving credit facility or other specified indebtedness.
We refer to the initial notes and the exchange notes collectively in this prospectus as the “notes.” We refer to this exchange as the “exchange offer.”
The initial notes sold pursuant to Rule 144A under the Securities Act bear the CUSIP number 22025YAL4, and the initial notes sold pursuant to Regulation S under the Securities Act bear the CUSIP number U22008AD5.
Terms of the Exchange Offer
The exchange offer:offer expires at 5:00 p.m., New York City time, on , 2013, unless we extend it.
We will exchange all initial notes | |
You may withdraw your tender of initial notes at any time prior to the expiration of the exchange offer.
If you fail to tender your initial notes, your initial notes will continue to be subject to restrictions on transfer.
We believe the exchange of initial notes for exchange notes will not be a taxable transaction for U.S. federal income tax purposes, but you should see the discussion under the caption “Certain United States Federal Income Tax Considerations” for more information.
We will not receive any proceeds from the exchange offer.
Each broker-dealer who holds unregisteredthat receives exchange notes acquired for its own account as a result of market-making activities or other trading activities, and who receives the new notes in exchange for the unregistered notes in the exchange offer, may be deemed a statutory underwriter. Additionally, a broker-dealer:
There is no established trading market for the exchange notes or the initial notes.
See “Risk Factors” beginning on page 7 for a resale.
We are not asking you for a proxy and you are requested not to send us a proxy.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2013.
This prospectus is part of a registration statement we filed with the Securities and Exchange Commission. In making your investment decision, you should rely only on the information contained or incorporated by reference in this prospectus and in the accompanying letter of transmittal. We have not authorized anyone to provide you with any other information. We are not making an offer to sell these securities or soliciting an offer to buy these securities in any jurisdiction where an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone whom it is unlawful to make an offer or solicitation. You should not assume that the information contained in this prospectus, as well as the information we previously filed with the Securities and Exchange Commission that is incorporated by reference herein, is accurate as of any date other than its respective date.
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This prospectus incorporates by reference important business and financial information about us that is not included or delivered with this prospectus. Copies of this information are available without charge to any person to whom this prospectus is delivered, upon written or oral request. Written requests should be directed to:
Corrections Corporation of America
10 Burton Hills Boulevard
Nashville, Tennessee 37215
Attention: Investor Relations
Oral requests should be made by calling our Investor Relations Department at (615) 263-3000.
In order to ensure timely delivery of the documents, you must make your request to us no later than , 2013. In the event that we extend the exchange offer, you must submit your request at least five business days before the expiration date of the exchange offer, as extended.
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We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Accordingly, we file current, quarterly and annual reports, proxy statements and other information with the Securities and Exchange Commission or the “Commission”(the “SEC”). Our filings with the Commission are available on the Internet at the Commission’s EDGAR website at http://www.sec.gov. You may read and copy any document that we file with the Commissionthese reports, proxy statements and other information at the Commission’sSEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information on the operation of the SEC’s Public Reference Room. Our SEC filings also are available to the public reference room at the following address:
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This prospectus “incorporates by reference” the information that we filehave filed with the Commission. ThisSEC under the Exchange Act, which means that we can discloseare disclosing important business and financial information to you by referring you to information and documents that we have filed with the Commission.those documents. Any information that we refer tostatement contained in this mannerprospectus or in any document incorporated or deemed to be incorporated by reference into this prospectus will be deemed modified or superseded for the purposes of this prospectus to the extent that a statement contained in this prospectus or any subsequently filed document which also is, consideredor is deemed to be, incorporated by reference into this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Any informationAccordingly, we incorporate by reference the specific documents listed below as well as any additional documents that we file with the Commission after the date of this prospectus will automatically update and supersede the corresponding information contained in this prospectus.
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed with the Commission beSEC on February 27, 2013;
Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed with the SEC on May 9, 2013;
The portion of our Definitive Proxy Statement filed with the SEC on April 5, 2013 that is incorporated by reference into or otherwise included in, this prospectus. Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2012, as supplemented by the Definitive Additional Materials on Schedule 14A, filed with the SEC on May 11, 2013; and
Our Current Reports on Form 8-K filed with the SEC on March 21, 2013, March 25, 2013, April 8, 2013, April 9, 2013, April 19, 2013, April 22, 2013 and May 20, 2013.
You may request a free copycan obtain copies of any documents referred to above, including exhibits specifically incorporated by reference through the SEC’s website athttp://www.sec.gov or from us, excluding all exhibits (unless an exhibit has been specifically incorporated herein by reference), free of charge, by requesting them in those documents,writing or by contactingcalling us at the following address andor telephone number:
Corrections Corporation of America
10 Burton Hills Boulevard
Nashville, Tennessee 37215
Attention: Investor Relations
(615) 263-3000
Our filings with the SEC are also available free of charge on the investor relations page of our website athttp://www.cca.com. Except for the documents beforedescribed above, information included or referred to on, or otherwise accessible through, our website is not incorporated by reference into this exchange offer expires on , 2005.
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The information in this prospectus, theincluding information in documents incorporated by reference, hereinincludes forward-looking statements that involve risks and uncertainties. These forward-looking statements include statements relating to our anticipated financial performance and business prospects and/or statements preceded by, followed by or that include the exhibits hereto contain forward-looking statements. Forward-looking statements address our beliefs and expectations of the outcome of future events that are forward-looking in nature, including, without limitation, the statements under “Summary” and “Risk Factors.words “believe,” All statements other than statements of current or historical fact contained in this prospectus are forward-looking statements. The words “anticipate,” “believe,” “continue,“intend,” “estimate,” “expect,” “intend,“project,” “plan,“could,” “may,“plans,” “projects,” “will,”“seeks” and similar expressions, as they relate to us, are intended to identify these forward-looking statements.expressions. These statements are based on our current plans and actual future activities, and our results of operations may be materially different from those set forth in the forward-looking statements. In particular, these include, among other things, statements relating to:
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general economic and market conditions, including the impact governmental budgets can have on our per diem rates and occupancy;
fluctuations in operating results because of, among other things, changes in occupancy levels, competition, increases in cost of operations, fluctuations in interest rates, and risks of operations;
changes in the privatization of the New Notes” for further information regardingcorrections and detention industry and the new notes.public acceptance of our services;
our ability to obtain and you will have the same rights under the indenturemaintain correctional facility management contracts, including as the holdersresult of sufficient governmental appropriations, inmate disturbances, and the timing of the unregistered notes. See “Descriptionopening of new facilities and the commencement of new management contracts as well as our ability to utilize current available beds and new capacity as development and expansion projects are completed;
increases in costs to develop or expand correctional facilities that exceed original estimates, or the inability to complete such projects on schedule as a result of various factors, many of which are beyond our control, such as weather, labor conditions, and material shortages, resulting in increased construction costs;
changes in government policy and in legislation and regulation of the New Notes.”
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our ability to meet and maintain qualification for taxation as a real estate investment trust (“REIT”); and
the new notesavailability of debt and equity financing on terms that are favorable to us.
We caution you not to place undue reliance on these forward-looking statements. In evaluating these forward-looking statements, you should carefully consider the risks outlined in “Item 1A. Risk Factors” in our Annual Report on Form 10–K for the year ended December 31, 2012, which is incorporated by reference into this prospectus, and the unregistered notes.
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This summary contains basichighlights some of the information about the new notes. Itcontained in this prospectus and does not contain all of the information that ismay be important to you. For a more complete understandingYou should read this entire prospectus and the documents incorporated by reference and to which we refer you before making an investment decision. You should carefully consider the information set forth under “Risk Factors” beginning on page 7 of this prospectus, the new notes, seeother cautionary statements described in this prospectus, and the risk factors and other cautionary statements, including those outlined in “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2012, which are incorporated by reference in this prospectus, and, to the extent applicable, any subsequently filed reports. In addition, certain statements include forward-looking information that involves risks and uncertainties. See “Forward-Looking Statements.”
In this prospectus, other than in “Description of the New Notes.Exchange Notes” and unless the context requires otherwise, “CCA,”
5Corrections Corporation of America
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Our services address a total U.S. market that we believe exceeds $50 billion, of which only approximately 6.5% is currently outsourced to the private sector. We believe that the U.S. market will demonstrate consistent growth over the next decade as a result of increased focus and resources by the Department of Homeland Security dedicated to illegal immigration, generally longer prison sentences, as well as the growing demographic of the 18 to 24 year-old at-risk population. We also expect the size of the private market to grow as a result of governments’ demonstrated need to augment their overcrowded and aging facilities, reduce costs, increase accountability and improve overall quality of service.
Summary of the Exchange Offer
Purpose of the Exchange Offer | We and the guarantors entered into a registration rights agreement with the initial purchasers with respect to the initial notes on the original issue date of such notes. In the registration rights agreement, we agreed for the benefit of the holders of the initial notes that we would file with the SEC and use commercially reasonable efforts to cause to become effective a registration statement relating to an offer to exchange the initial notes for the exchange notes having terms substantially identical in all material respects to the initial notes (except for provisions relating to transfer restrictions and payment of additional interest). | |
The Exchange Offer | We are offering to exchange: • Up to $325,000,000 aggregate principal amount of our 4.125% senior notes due 2020 registered under the Securities Act, which we refer to as exchange notes, for • Up to $325,000,000 aggregate principal amount of our unregistered 4.125% senior notes due 2020 issued on April 4, 2013 in a private offering (CUSIP Numbers 22025YAL4, U22008AD5), which we refer to as initial notes. | |
Resale | Based on an interpretation by the SEC set forth in no-action letters issued to third parties, we believe that the exchange notes issued pursuant to the exchange offer in exchange for the initial notes may be offered for resale, resold and otherwise transferred by you (unless you are our “affiliate” within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that: • you are acquiring the exchange notes in the ordinary course of your business; and • you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the exchange notes. | |
If you are a broker-dealer and receive exchange notes for your own account in exchange for initial notes that you acquired as a result of market-making activities or other trading activities, you must acknowledge that you will deliver this prospectus in connection with any resale of the exchange notes. See “Plan of Distribution.” Any holder of initial notes who: • is our affiliate; • does not acquire exchange notes in the ordinary course of its business; or • tenders its initial notes in the exchange offer with the intention to participate, or for the purpose of participating, in a distribution of exchange notes cannot rely on the position of the staff of the SEC enunciated inMorgan Stanley & Co. Incorporated (available June 5, 1991) andExxon Capital Holdings Corporation (available May 13, 1988), as interpreted inShearman & Sterling (available July 2, 1993), or similar no-action letters and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes. | ||
| Expiration Date | The exchange offer will expire at 5:00 p.m., New York City time, on , 2013 (the 21st business day following commencement of the exchange offer), unless extended by us. | |
| Withdrawal | You may withdraw the tender of your initial notes at any time prior to the expiration of the exchange offer. We will return to you any of your initial notes that are not accepted for any reason for exchange, without expense to you, promptly after the expiration or termination of the exchange offer. | |
| Conditions to the Exchange Offer | We are not required to accept the initial notes for exchange if the exchange offer would violate any applicable law or interpretation of the staff of the SEC. The exchange offer is not conditioned upon any minimum aggregate principal amount of initial notes being tendered for exchange. See “The Exchange Offer—Terms of the Exchange Offer” and “The Exchange Offer—Conditions to the Exchange Offer.” | |
| Procedures for Tendering Initial Notes | If you wish to participate in the exchange offer, you must complete, sign and date the accompanying letter of transmittal, or a facsimile of such letter of transmittal, according to the instructions contained in this prospectus and the letter of transmittal. You must then mail or otherwise deliver the letter of transmittal, or a facsimile of such letter of transmittal, together with your initial notes and any other required documents, to the exchange agent at the address set forth on the cover page of the letter of transmittal. | |
If you hold outstanding notes through The Depository Trust Company (“DTC”) and wish to participate in the exchange offer, you must comply with the Automated Tender Offer Program procedures of DTC by which you will agree to be bound by the letter of transmittal. By signing, or agreeing to be bound by, the letter of transmittal, you will represent to us that, among other things: • you are not our “affiliate” within the meaning of Rule 405 under the Securities Act; • you do not have an arrangement or understanding with any person or entity to participate in the distribution of the exchange notes; • you are acquiring the exchange notes in the ordinary course of your business; and • if you are a broker-dealer that will receive exchange notes for your own account in exchange for outstanding notes that were acquired as a result of market-making activities, you will deliver a prospectus, as required by law, in connection with any resale of such exchange notes. | ||
| Special Procedures for Beneficial Owners | If you are a beneficial owner of initial notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, and you wish to tender those initial notes in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender those initial notes on your behalf. If you wish to tender on your own behalf, you must, prior to completing and executing the letter of transmittal and delivering your initial notes, either make appropriate arrangements to register ownership of the initial notes in your name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration date. | |
| Guaranteed Delivery Procedures | If you wish to tender your initial notes and your initial notes are not immediately available, or you cannot deliver your initial notes, the letter of transmittal or any other required documents, or you cannot comply with the procedures under DTC’s Automated Tender Offer Program for transfer of book-entry interests prior to the expiration date, you must tender your initial notes according to the guaranteed delivery procedures set forth in this prospectus under “The Exchange Offer—Guaranteed Delivery Procedures.” | |
| Withdrawal Rights | You may withdraw the tender of your initial notes at any time prior to the expiration date, by complying with the procedures for withdrawal described in “The Exchange Offer—Withdrawal Rights.” We will return to you any of your initial notes that are not accepted for any reason for exchange, without expense to you, promptly after the expiration or termination of the exchange offer. | |
| Accounting Treatment | We will not recognize a gain or loss for accounting purposes as a result of the exchange offer. | |
| Certain Federal Income Tax Consequences | The exchange of initial notes for exchange notes should not be a taxable transaction for United States federal income tax purposes. You should not have to pay federal income tax as a result of your participation in the exchange offer. See “Certain United States Federal Income Tax Considerations.” | |
| Regulatory Approvals | Other than compliance with the Securities Act and qualification of the indenture governing the notes under the Trust Indenture Act of 1939 (the “Trust Indenture Act”), there are no federal or state regulatory requirements that must be complied with or approvals that must be obtained in connection with the exchange offer. | |
| Exchange Agent | U.S. Bank National Association is the exchange agent for the exchange offer. The addresses and telephone numbers of the exchange agent are listed under the heading “The Exchange Offer—Exchange Agent.” | |
| Consequences of Failure to Exchange | All untendered initial notes will continue to be subject to the existing restrictions on transfer of the initial notes. In general, the initial notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the initial notes under the Securities Act. | |
Summary of the Exchange Notes
The summary below describes the principal terms of the exchange notes. Certain of the terms and conditions described below are subject to important limitations and exceptions. The “Description of the Exchange Notes” section of this prospectus.prospectus contains a more detailed description of the terms and conditions of the exchange notes.
| Issuer | Corrections Corporation of America | |
| Notes Offered | $325,000,000 aggregate principal amount of 4.125% senior notes due 2020 and registered under the Securities Act. | |
| Maturity Date | April 1, 2020 | |
| Interest | Interest on the exchange notes will accrue at a rate of 4.125% per annum from April 4, 2013 and will be payable semi-annually in cash in arrears on April 1 and October 1 of each year, commencing October 1, 2013. | |
| Ranking | The exchange notes will be our general unsecured senior obligations and will: | |
• rank equally in right of payment to all our existing and future senior indebtedness; | ||
• rank senior in right of payment to our future indebtedness that is expressly subordinated in right of payment to the notes; | ||
• be effectively subordinated to our existing and future secured indebtedness, including indebtedness under our revolving credit facility, to the extent of the value of the collateral securing such indebtedness; and | ||
• be structurally subordinated to all of the existing and future indebtedness and liabilities, including trade payables, of our non-guarantor subsidiaries. | ||
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| As of March 31, 2013, after giving effect to the issuance of the initial notes and the 2023 notes and the use of proceeds therefrom, we would have had total consolidated indebtedness of approximately $1.2 billion, including approximately $560.0 million of secured indebtedness under our revolving credit facility, and an additional approximately $25.7 million of outstanding letters of credit. See “Description of Other Indebtedness.” | ||
| Guarantees | The exchange notes initially will be jointly and severally guaranteed on a senior unsecured basis by substantially all of our subsidiaries. In the future, the guarantees may be released or terminated under certain circumstances. Each subsidiary guarantee will: | |
• rank equally in right of payment to all existing and future senior unsecured indebtedness of such guarantor subsidiary; | ||
• rank senior in right of payment to all existing and future indebtedness of such guarantor subsidiary that is expressly subordinated in right of payment to the notes; | ||
• be effectively subordinated to all existing and future secured indebtedness of such guarantor subsidiary, including its guarantee of indebtedness under our revolving credit facility, to the extent of the collateral securing such indebtedness; and | ||
• be structurally subordinated to all of the existing and future indebtedness and liabilities, including trade payables, of our non-guarantor subsidiaries. | ||
| As of March 31, 2013, our guarantor subsidiaries had no indebtedness outstanding that would have been structurally senior to the exchange notes and the related guarantees. Not all of our subsidiaries will guarantee the exchange notes. The non-guarantor subsidiaries generated none of our consolidated revenues for the year ended December 31, 2012 or for the quarter ended March 31, 2013 and owned none of our consolidated assets at all times throughout such periods. | ||
| Optional Redemption for the Exchange Notes | At any time prior to January 1, 2020, we may redeem all or part of the exchange notes at a “make whole” redemption price. At any time thereafter we may redeem all or part of the exchange notes at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the redemption date. See “Description of the Exchange Notes—Optional Redemption.” | |
| Change of Control | If we experience certain kinds of changes of control, we must offer to purchase the exchange notes at 101% of their principal amount, plus accrued and unpaid interest. For more details, see the section “Description of the Exchange Notes—Repurchase at the Option of Holders Upon a Change of Control.” | |
| Certain Covenants | The indenture governing the exchange notes contains covenants that limit, among other things, our ability and the ability of some of our subsidiaries to: | |
• incur liens; and | ||
• consolidate, merge or transfer all or substantially all of our assets. | ||
| These covenants are subject to a number of important exceptions and qualifications. For more detailed description on covenants contained in the indenture, see “Description of the Exchange Notes—Certain Covenants.” | ||
| Absence of an Established Market | The exchange notes will be a new class of securities for which there is currently no market. | |
| Use of Proceeds | We will not receive any proceeds from the issuance of the exchange notes. | |
| Risk Factors | See “Risk Factors” and other information in this prospectus for a discussion of factors you should carefully consider before deciding to participate in the exchange offer. | |
Consolidated Ratio of Earnings to Fixed Charges
The following selected financial datatable sets forth our historical consolidated ratios of earnings to fixed charges on a consolidated basis for the five years ended December 31, 2004, was derived from our consolidated financial statements and the related notes thereto. This dataperiods indicated. You should be read these ratios of earnings to fixed charges in conjunctionconnection with our audited consolidated financial statements, including the related notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2004to those statements, incorporated by reference intoin this prospectus. In accordance with Statement of Financial Accounting Standards No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets”, all prior years presented have been reclassified to reflect discontinued operations.
| For the Years Ended December 31, | |||||||||||||||||||||
| 2000 | 2001 | 2002 | 2003 | 2004 | |||||||||||||||||
| (In thousands) | |||||||||||||||||||||
Statement of Operations: | |||||||||||||||||||||
| Revenue: | |||||||||||||||||||||
| Management and other | $ | 231,764 | $ | 898,072 | $ | 925,820 | $ | 1,025,493 | $ | 1,144,413 | |||||||||||
| Rental | 40,232 | 5,718 | 3,701 | 3,742 | 3,845 | ||||||||||||||||
| Licensing fees from affiliates | 7,566 | — | — | — | — | ||||||||||||||||
| Total revenue | 279,562 | 903,790 | 929,521 | 1,029,235 | 1,148,258 | ||||||||||||||||
| Expenses: | |||||||||||||||||||||
| Operating | 189,936 | 689,793 | 712,738 | 766,468 | 870,572 | ||||||||||||||||
| General and administrative | 45,463 | 34,568 | 36,907 | 40,467 | 48,186 | ||||||||||||||||
| Depreciation and amortization | 58,812 | 52,639 | 51,291 | 52,930 | 54,511 | ||||||||||||||||
| Fees paid to a company acquired in 2000 | 1,401 | — | — | — | — | ||||||||||||||||
| Write-off of amounts under lease arrangements | 11,920 | — | — | — | — | ||||||||||||||||
| Impairment losses | 527,842 | — | — | — | — | ||||||||||||||||
| Total expenses | 835,374 | 777,000 | 800,936 | 859,865 | 973,269 | ||||||||||||||||
| Operating income (loss) | (555,812 | ) | 126,790 | 128,585 | 169,370 | 174,989 | |||||||||||||||
| Other (income) expense: | |||||||||||||||||||||
| Interest expense, net | 131,545 | 126,242 | 87,478 | 74,446 | 69,177 | ||||||||||||||||
| Expenses associated with debt refinancing and recapitalization transactions | — | — | 36,670 | 6,687 | 101 | ||||||||||||||||
| Change in fair value of derivative instruments | — | (14,554 | ) | (2,206 | ) | (2,900 | ) | — | |||||||||||||
| Stockholder litigation settlements | 75,406 | — | — | — | — | ||||||||||||||||
| Other (income) expense | 18,419 | 483 | (359 | ) | (414 | ) | 943 | ||||||||||||||
| Income (loss) from continuing operations before income taxes, minority interest, and cumulative effect of accounting change | (781,182 | ) | 14,619 | 7,002 | 91,551 | 104,768 | |||||||||||||||
| Income tax (expense) benefit | 48,738 | 3,358 | 63,284 | 52,352 | (42,126 | ) | |||||||||||||||
| Income (loss) from continuing operations before minority interest and cumulative effect of accounting change | (732,444 | ) | 17,977 | 70,286 | 143,903 | 62,642 | |||||||||||||||
| Minority interest | 254 | — | — | — | — | ||||||||||||||||
| Income (loss) from continuing operations before cumulative effect of accounting change | (732,190 | ) | 17,977 | 70,286 | 143,903 | 62,642 | |||||||||||||||
| Income (loss) from discontinued operations, net of taxes | 1,408 | 7,717 | 2,074 | (2,120 | ) | (99 | ) | ||||||||||||||
| Cumulative effect of accounting change | — | — | (80,276 | ) | — | — | |||||||||||||||
| Net income (loss) | (730,782 | ) | 25,694 | (7,916 | ) | 141,783 | 62,543 | ||||||||||||||
| Distributions to preferred stockholders | (13,526 | ) | (20,024 | ) | (20,959 | ) | (15,262 | ) | (1,462 | ) | |||||||||||
| Net income (loss) available to common stockholders | $ | (744,308 | ) | $ | 5,670 | $ | (28,875 | ) | $ | 126,521 | $ | 61,081 | |||||||||
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| Years ended December 31, | Three Months Ended March 31, | |||||||||||||||||||||||||||||||||
| 2008 | 2009 | 2010 | 2011 | 2012 | 2012 | 2013 | ||||||||||||||||||||||||||||
Consolidated ratio of earnings to fixed charges(1) | 3.9x | 4.0x | 4.2x | 4.4x | 5.0x | 3.8x | 4.5x | |||||||||||||||||||||||||||
| For the Years Ended December 31, | ||||||||||||||||||||||
| 2000 | 2001 | 2002 | 2003 | 2004 | ||||||||||||||||||
| (In thousands) | ||||||||||||||||||||||
| Basic earnings (loss) per share: | ||||||||||||||||||||||
| Income (loss) from continuing operations before cumulative effect of accounting change | $ | (56.79 | ) | $ | (0.08 | ) | $ | 1.78 | $ | 3.99 | $ | 1.74 | ||||||||||
| Income (loss) from discontinued operations, net of taxes | 0.11 | 0.31 | 0.08 | (0.07 | ) | — | ||||||||||||||||
| Cumulative effect of accounting change | — | — | (2.90 | ) | — | — | ||||||||||||||||
| Net income (loss) available to common stockholders | $ | (56.68 | ) | $ | 0.23 | $ | (1.04 | ) | $ | 3.92 | $ | 1.74 | ||||||||||
| Diluted earnings (loss) per share: | ||||||||||||||||||||||
| Income (loss) from continuing operations before cumulative effect of accounting change | $ | (56.79 | ) | $ | (0.08 | ) | $ | 1.61 | $ | 3.50 | $ | 1.55 | ||||||||||
| Income (loss) from discontinued operations, net of taxes | 0.11 | 0.31 | 0.06 | (0.06 | ) | — | ||||||||||||||||
| Cumulative effect of accounting change | — | — | (2.49 | ) | — | — | ||||||||||||||||
| Net income (loss) available to common stockholders | $ | (56.68 | ) | $ | 0.23 | $ | (0.82 | ) | $ | 3.44 | $ | 1.55 | ||||||||||
| Weighted average common shares outstanding: | ||||||||||||||||||||||
| Basic | 13,132 | 24,380 | 27,669 | 32,245 | 35,059 | |||||||||||||||||
| Diluted | 13,132 | 24,380 | 32,208 | 38,049 | 39,780 | |||||||||||||||||
| For the Years Ended December 31, | ||||||||||||||||||||
| 2000 | 2001 | 2002 | 2003 | 2004 | ||||||||||||||||
| OTHER FINANCIAL DATA: | ||||||||||||||||||||
| Ratio of Earnings to Fixed Charges(1) | N/A | 1.1x | 1.1x | 2.1x | 2.3x | |||||||||||||||
| December 31, | ||||||||||||||||||||
| 2000 | 2001 | 2002 | 2003 | 2004 | ||||||||||||||||
| (In thousands) | ||||||||||||||||||||
| BALANCE SHEET DATA: | ||||||||||||||||||||
| Total assets | $ | 2,176,992 | $ | 1,971,280 | $ | 1,874,071 | $ | 1,959,028 | $ | 2,023,078 | ||||||||||
| Total debt | 1,152,570 | 963,600 | 955,959 | 1,003,428 | 1,002,295 | |||||||||||||||
| Total liabilities | 1,488,977 | 1,224,119 | 1,140,073 | 1,183,563 | 1,207,084 | |||||||||||||||
| Stockholders’ equity | 688,015 | 747,161 | 733,998 | 775,465 | 815,994 | |||||||||||||||
| (1) | For the purpose of computing the ratio of earnings to fixed charges, earnings consist of income (loss) from continuing operations before income taxes plus fixed charges, excluding capitalized interest, and fixed charges consist of interest, whether expensed or capitalized, and amortization of loan costs. |
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You should carefully consider the risks described below and the risk factors set forth belowincorporated by reference herein, as well as the other information containedincluded or incorporated by reference in this prospectus, including the financial statements and related notes incorporated herein by reference into this prospectus, before making a decision regarding participation in thedeciding to exchange your initial notes for exchange notes pursuant to this exchange offer. TheCertain risks described belowrelated to us and our business are notoutlined in “Item 1A. Risk Factors” and elsewhere in our Annual Report on Form 10-K for the onlyfiscal year ended December 31, 2012, which is incorporated by reference in this prospectus (and in any of our Annual or Quarterly Reports for a subsequent year or quarter that we file with the SEC and that are so incorporated). See the sections titled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” for information about how to obtain copies of these documents. If any of these risks facing us.actually occur, our business, financial condition, operating results, or cash flow could be materially and adversely affected. Additional risks andor uncertainties not currentlypresently known to us, or that we currently deem to be immaterial, also may also materially and adversely affectimpair our business operations. AnyWe cannot assure you that any of these events will not occur and if such events do occur, the value of the following risksexchange notes could materially adversely affect our business, financial condition or results of operations.decline substantially.
Risks Related to the Offering
There may be adverse consequences if you do not |
If you do not exchange your unregisteredinitial notes for newexchange notes pursuant toin the exchange offer, the unregistered notes you hold will continue to be subject to the existingrestrictions on transfer restrictions.of your initial notes. In general, youthe initial notes may not offerbe offered or sell the unregistered notes exceptsold unless they are registered or exempt from registration under an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. WeExcept as required by the registration rights agreement, we do not planintend to register unregisteredresales of the initial notes under the Securities Act unless our registration rights agreementAct. You should refer to the section titled “The Exchange Offer” for information about how to tender your initial notes.
The tender of initial notes under the exchange offer will reduce the outstanding amount of the initial notes, which may have an adverse effect upon, and increase the volatility of, the market prices of the initial notes due to a reduction in liquidity.
Certain persons who participate in the exchange offer must deliver a prospectus in connection with resales of the exchange notes.
Based on interpretations of the staff of the SEC contained inExxon Capital Holdings Corp., SEC no-action letter (April 13, 1988),Morgan Stanley & Co. Inc., SEC no-action letter (June 5, 1991) andShearman & Sterling, SEC no-action letter (July 2, 1983), we believe that you may offer for resale, resell or otherwise transfer the exchange notes without compliance with the initial purchasersregistration and prospectus delivery requirements of the unregisteredSecurities Act. However, in some instances described in this prospectus under “Plan of Distribution,” certain holders of exchange notes requires uswill remain obligated to comply with the registration and prospectus delivery requirements of the Securities Act to transfer the exchange notes. If such a holder transfers any exchange notes without delivering a prospectus meeting the requirements of the Securities Act or without an applicable exemption from registration under the Securities Act, such a holder may incur liability under the Securities Act. We do so. Further, ifnot and will not assume, or indemnify such a holder against, this liability.
If you wish to tender your initial notes for exchange, you must comply with the requirements described in this prospectus.
You will receive exchange notes in exchange for initial notes only after the exchange agent receives such initial notes, a properly completed and duly executed letter of transmittal and all other required documentation within the time limits described in this prospectus. If you wish to tender your initial notes in exchange for exchange notes, you should allow sufficient time for delivery. Neither the exchange agent nor CCA has any duty to give you notice of defects or irregularities with respect to tenders of initial notes for exchange. Initial notes that are not tendered or are tendered but not accepted will, following consummation of the exchange offer, continue to hold any unregistered notes afterbe subject to the existing restrictions upon transfer relating to the initial notes.
The consummation of the exchange offer may not occur.
We are not obligated to complete the exchange offer under certain circumstances. See “The Exchange Offer—Conditions to the Exchange Offer.” Even if the exchange offer is consummated, youcompleted, it may not be completed on the schedule described in this prospectus. Accordingly, holders participating in the exchange offer may have to wait longer than expected to receive their exchange notes. You may be unablerequired to sell them because there will be fewer of these notes outstanding.
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The following risks apply to the initial notes and will apply equally to the exchange notes.
Our Leveraged Capital Structureindebtedness could adversely affect our financial health and prevent us from fulfilling our obligations under our debt securities.
We have a significant amount of indebtedness. As of DecemberMarch 31, 2004,2013, after giving effect to the issuance of the initial notes and the 2023 notes and the use of proceeds therefrom, we would have had total consolidated indebtedness of $1.0approximately $1.2 billion. See “Description of Other Indebtedness.” Our substantial indebtedness could have important consequences to you.consequences. For example, it could:
make it more difficult for us to satisfy our obligations with respect to our indebtedness, including the | |||
increase our vulnerability to general adverse economic and industry conditions; | |||
require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, and other general corporate purposes; |
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limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; | |||
place us at a competitive disadvantage compared to our competitors that have less debt; and | |||
limit our ability to borrow additional funds or refinance existing indebtedness on favorable terms. |
Our revolving credit facility and other debt instruments, including the notes, have restrictive covenants that could limit our financial flexibility.
The indentureindentures related to our senior notes, including the notes, offered hereby, and our senior securedrevolving credit facility contain financial and other restrictive covenants that limit our ability to engage in activities that may be in our long-term best interests. Our ability to borrow under our senior securedrevolving credit facility is subject to compliance with certain financial covenants, including leverage interest rate and fixed charge coverage ratios. Our senior securedrevolving credit facility limitsincludes other restrictions that, among other things, limit our ability to effectincur indebtedness; grant liens; engage in mergers, consolidations and liquidations; make asset salesdispositions, restricted payments and changeinvestments; enter into transactions with affiliates; and amend, modify or prepay certain indebtedness. See “Description of control events. These covenants also contain restrictions regarding our ability to make certain capital expenditures in the future.Other Indebtedness—Senior Secured Revolving Credit Facility.” The indentures related to our senior notes, including the notes, contain limitations on our ability to effect mergers and change of control events, as well as other limitations, including:
Our failure to comply with these covenants could result in an event of default which,that, if not cured or waived, could result in the acceleration of all of our debts. We do not have sufficient working capital to satisfy our debt obligations in the event of an acceleration of all or a significant portion of our outstanding indebtedness.
The indenture for the notes may not provide protection against events or developments that may affect our ability to repay the notes or the trading prices for the notes.
The indenture governing the notes contains a covenant limiting the ability of CCA and the guarantors to incur liens on their assets to secure indebtedness, subject to certain exceptions, without equally and ratably securing the notes. This limitation is subject to a number of important exceptions.
The indenture governing the notes does not:
| — | require us to maintain any financial ratios or specific levels of net worth, revenues, income, cash flow or liquidity and, accordingly, does not protect holders of the notes in the event that we experience material adverse changes in our financial condition or results of operations; |
limit our |
| — | restrict our |
| — | restrict our ability to engage in any acquisition or other transaction, other than our ability to merge or consolidate with, or sell all or substantially all of our assets to, another person without the surviving or transferring person (if other than CCA) assuming the obligations under the notes. |
For these reasons, you should not consider the covenants in the indenture governing the notes as a significant factor in evaluating whether to invest in the notes. In addition, we are subject to periodic review by independent credit rating agencies. An increase in the level of our outstanding indebtedness, or other events that could have an adverse impact on our business, properties, financial condition, results of operations or prospects, may cause the rating agencies to downgrade our credit ratings generally, and the ratings on the notes, which could adversely impact the trading prices for, or the liquidity of, the notes. Any such downgrade could also adversely affect our cost of borrowing, limit our access to the capital markets or result in more restrictive covenants in future debt agreements.
Variable rate indebtedness subjects us to interest rate risk, which could cause our debt service obligations to increase significantly.
Borrowings under our revolving credit facility are at variable rates of interest and expose us to interest rate risk. As such, our results of operations are sensitive to movements in interest rates. There are many economic factors outside our control that have in the past and may, in the future, impact rates of interest including publicly announced indices that underlie the interest obligations related to a certain portion of our debt. Factors that impact interest rates include governmental monetary policies, inflation, recession, changes in unemployment, the money supply, international disorder and instability in domestic and foreign financial markets. If interest rates increase, our debt service obligations on the variable rate indebtedness would increase even though the amount borrowed remained the same, and our results of operations would be adversely impacted. Such increases in interest rates could have a material adverse effect on our financial condition and results of operations.
Servicing our indebtedness will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control.
Our ability to make payments on and to refinance our indebtedness and to fund planned capital expenditures will depend on our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive, legislative, regulatory, and other factors that are beyond our control.
The risk exists that our business will be unable to generate sufficient cash flow from operations or that future borrowings will not be available to us under our senior securedrevolving credit facility in an amount sufficient to enable us to pay our indebtedness, including our existing seniorthe notes, notes to be issued in this notes offering, orany new debt securities we issue, or to fund our other liquidity needs. We may need to refinance all or a portion of our indebtedness, including our senior notes, or new debt securities, on or before maturity. We may not, however, be able to refinance any of our indebtedness, including our senior securedrevolving credit facility and including our senior notes, to be issued in this notes offering, or new debt securities on commercially reasonable terms or at all.
We are required to repurchase all or a variable rate. Toportion of the extent our exposure to increases in interest rates is not eliminated through interest rate protection agreements, such increases will adversely affect our cash flows. We do not currently have any interest rate protection agreements in place to protect against interest rate fluctuations related to our senior secured credit facility. See “Management’s Discussion and Analysisnotes upon a change of Financial Condition and Results of Operations — Quantitative and Qualitative
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There is uncertainty about the meaning of the phrase “all or substantially all” under applicable laws in connection with determining whether a change of control has occurred.
One of the events that triggers our obligation to repurchase the notes upon a change in control is the sale of all or substantially all of our assets. The phrase “all or substantially all” as used in the indenture governing the notes varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under the law that governs the indenture and is subject to judicial interpretation. In certain circumstances, there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of “all or substantially all” of our assets, and therefore, it may be unclear as to whether a change of control has occurred and whether you have the right to require us to repurchase the notes.
Despite current indebtedness levels, we may still incur more debt.
The terms of the indentures for our senior notes and our senior securedrevolving credit facility restrict our ability to incur significant additional indebtedness in the future.indebtedness. However, in the future we may refinance all or a portion of our indebtedness, including our senior securedrevolving credit facility, and may incur more indebtedness as a result. We currently have $68.3additional indebtedness. As of March 31, 2013, we had $314.3 million of additional borrowing capacity available under our $125.0 million revolving credit facility. See “Description of Other Indebtedness—Senior Secured Revolving Credit Facility.”
In addition, we have an effective “shelf” registration statement under which we may issue up to approximately $280.0 million in equity oran indeterminate amount of debt securities preferred stockfrom time to time when we determine that market conditions and warrants.the opportunity to utilize the proceeds from the issuance of such debt securities are favorable. If new debt is added to our and our subsidiaries’ current debt levels, the related risks that we and they now face could intensify.
Risks RelatedOur access to capital may be affected by general macroeconomic conditions.
Credit markets may tighten significantly such that our ability to obtain new capital will be more challenging and more expensive. We can provide no assurance that the banks that have made commitments under our revolving credit facility will continue to operate as a going concern in the future. If any of the banks in the lending group were to fail, it is possible that the capacity under the revolving credit facility would be reduced. In the event that the availability under the revolving credit facility was reduced significantly, we could be required to obtain capital from alternate sources in order to continue with our business and capital strategies. Our Businessoptions for addressing such capital constraints would include, but not be limited to (i) delaying certain capital expenditure projects, (ii) obtaining commitments from the remaining banks in the lending group or from new banks to fund
increased amounts under the terms of the revolving credit facility, or (iii) accessing the public capital markets. Such alternatives could be on terms less favorable than under existing terms, which could have a material effect on our consolidated financial position, results of operations, or cash flows.
The notes are effectively subordinated to our secured indebtedness and Industrystructurally subordinated to any future indebtedness of any non-guarantor subsidiaries.
The notes are unsecured and therefore are effectively subordinated to any of our secured indebtedness to the extent of the value of the collateral securing such indebtedness. As of March 31, 2013, our total secured indebtedness was $560.0 million. The indenture governing the notes permits us to incur additional secured indebtedness provided certain conditions are met. See “Description of the Exchange Notes—Certain Covenants—Limitations on Liens.” Consequently, in the event we are the subject of a bankruptcy, liquidation, dissolution, reorganization or similar proceeding, the holders of any secured indebtedness will be entitled to the benefits of the collateral that secures the secured indebtedness, and the collateral will not be available for satisfaction of any amounts owed under our unsecured indebtedness, including the notes.
The notes will not be guaranteed by all of our subsidiaries. Accordingly, claims of holders of the notes will be structurally subordinate to the claims of creditors of these non-guarantor subsidiaries, including trade creditors. All obligations of our non-guarantor subsidiaries will have to be satisfied before any of the assets of such subsidiaries would be available for distribution, upon a liquidation or otherwise, to us or a guarantor of the notes. As of March 31, 2013, our non-guarantor subsidiaries had no indebtedness outstanding.
There are circumstances other than repayment or discharge of the notes under which the guarantees of the notes will be released automatically, without your consent or the consent of the trustee under the indenture governing the notes, and you may not realize any payment upon release of such guarantees.
The guarantee of a guarantor of the notes will be automatically released in connection with a sale of such guarantor in a transaction not prohibited by the indenture governing the notes or if a guarantor is released from its guarantee under all of our other indebtedness. See “Description of the Exchange Notes—Subsidiary Guarantees.” In addition, the creditors of such subsidiary and its subsidiaries will have an effectively senior claim on the assets of such subsidiary and its subsidiaries.
Federal and state statutes may allow courts, under specific circumstances, to void the notes or the guarantees and/or require holders of the notes to return payments received from us.
Under federal bankruptcy laws and comparable provisions of state fraudulent transfer laws, the notes and the guarantees, could be voided, or claims in respect of the notes and the guarantees could be subordinated to all of our other debt, if the issuance of the notes or a guarantee was found to have been made for less than reasonable equivalent value and we, at the time we incurred the indebtedness evidenced by the notes:
| — | were insolvent or rendered insolvent by reason of |
| — | were engaged in, or about to engage in, a business or transaction for which our remaining assets constituted unreasonably small capital; or |
| — | intended to incur, or believed that we would incur, debts beyond our ability to repay such debts as they mature. |
A court might also void the issuance of the notes or a guarantee without regard to the above factors, if the court found that we issued the notes or the guarantors issued the guarantees with actual intent to hinder, delay or defraud our or their respective creditors.
A court would likely find that we or a guarantor did not receive reasonably equivalent value or fair consideration for the notes or the guarantees if we or a guarantor did not substantially benefit directly or indirectly from the issuance of the notes. If a court were to void the issuance of the notes or the guarantees, you would no
longer have a claim against us or the guarantors. Sufficient funds to repay the notes may not be available from other sources, including the remaining guarantors, if any. In addition, the court might direct you to repay any amounts that you already received from us or the guarantors or, with respect to the notes or any guarantee.
In addition, any payment by us pursuant to the notes made at a time when we were subsequently found to be insolvent could be voided and required to be returned to us or to a fund for the benefit of our creditors if such payment is made to an insider within a one-year period prior to a bankruptcy filing or within 90 days for any outside party and such payment would give the creditors more than such creditors would have received in a liquidation under Title 11 of the United States Code, as amended (the “Bankruptcy Code”).
The measures of insolvency for purposes of these fraudulent and preferential transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent or preferential transfer has occurred. Generally, however, we would be considered insolvent if:
| — | the sum of our debts, including contingent liabilities, were greater than the fair saleable value of all our assets; |
| — | the present fair saleable value of our assets were less than the amount that would be required to pay our probable liability on existing debts, including contingent liabilities, as they become absolute and mature; or |
| — | we could not pay our debts as they become due. |
On the basis of historical financial information, recent operating history and other factors, we believe that, after giving effect our sale of the initial notes and the exchange offer, we will not be insolvent, will not have unreasonably small capital for the business in which we are engaged and will not have incurred debts beyond our ability to pay such debts as they mature. There can be no assurance, however, as to what standard a court would apply in making such determinations or that a court would agree with our conclusions in this regard. The indenture governing the notes contains a “savings clause,” which limits the liability of each guarantor on its guarantee to the maximum amount that such guarantor can incur without risk that its guarantee will be subject to fluctuationsavoidance as a fraudulent transfer. We cannot assure you that this limitation will protect such guarantees from fraudulent transfer challenges or, if it does, that the remaining amount due and collectible under the guarantees would suffice, if necessary, to pay the notes in occupancy levels. Whilefull when due. Furthermore, in a substantial portionrecent case, Official Committee of Unsecured Creditors of TOUSA, Inc. v Citicorp North America, Inc., the U.S. Bankruptcy Court in the Southern District of Florida held that a savings clause similar to the savings clause that is included in the indenture governing the notes was unenforceable. As a result, the subsidiary guarantees were found to be fraudulent conveyances. The United States Court of Appeals for the Eleventh Circuit recently affirmed the liability findings of the Bankruptcy Court without ruling directly on the enforceability of savings clauses generally. If the TOUSA decision were followed by other courts, the risk that the guarantees would be deemed fraudulent conveyances would be significantly increased.
In addition, although each guarantee will contain a provision intended to limit that guarantor’s liability to the maximum amount that it could incur without causing the incurrence of obligations under its guarantee to be a fraudulent transfer, this provision may not be effective to protect those guarantees from being voided under fraudulent transfer law, or may reduce that guarantor’s obligation to an amount that effectively makes its guarantee worthless.
Finally, as a court of equity, the bankruptcy court may subordinate the claims in respect of the notes to other claims against us under the principle of equitable subordination, if the court determines that: (i) the holders of the notes engaged in some type of inequitable conduct; (ii) such inequitable conduct resulted in injury to our other creditors or conferred an unfair advantage upon the holder of the notes; and (iii) equitable subordination is not inconsistent with the provisions of the Bankruptcy Code.
If an active trading market does not develop for the notes, you may not be able to resell them.
There is no public market for the notes. If no active trading market develops, you may not be able to resell the notes at their fair market value or at all. Future trading prices of the notes will depend on many factors, including, among other things, prevailing interest rates, our operating results and the market for similar securities. We were informed by the initial purchasers in connection with the initial sale of the initial notes that they intended to make a market in the notes. However, such initial purchasers may cease their market-making at any time. We do not intend to apply for listing of the notes on any securities exchange. Moreover, if a market were to exist, the notes could trade at prices that may be lower than their initial offering price because of many factors, including, but not limited to:
| — | prevailing interest rates on the markets for similar securities; |
| — | general economic conditions; |
| — | our financial condition, performance or prospects; and |
| — | the prospects for other companies in the same industry. |
The exchange offer is intended to satisfy certain of our cost structure is fixed, a substantial portionobligations under the registration rights agreement. We will not receive any proceeds from the issuance of our revenuesthe exchange notes. In exchange for issuing the exchange notes as contemplated in this exchange offer, we will receive initial notes in the same principal amount. The form and terms of the exchange notes are generatedsubstantially identical in all material respects to the form and terms of the initial notes, except as described below under facility management contracts that specify per diem payments based upon occupancy. Under a per diem rate structure, a decreasethe heading “The Exchange Offer—Terms of the Exchange Offer.” The initial notes tendered in exchange for the exchange notes will be retired and cancelled and will not be reissued. Accordingly, issuance of the exchange notes will not result in any change in our occupancy rates could cause a decrease in revenue and profitability. Average compensated occupancy foroutstanding indebtedness.
SELECTED HISTORICAL FINANCIAL DATA
The following tables present our facilities in operation for 2004, 2003, and 2002 was 94.7%, 93.0%, and 89.1%, respectively. Occupancy rates may, however, decrease below these levels in the future.
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You should read the management of a facility we currently manage uponfollowing tables in conjunction with the termination offinancial statements, the corresponding management contract or, if such customers have capacity at their facilities, may take inmates currently housed in our facilities and transfer them to government run facilities. Since we are paid on a per diem basis with no minimum guaranteed occupancy under most of our contracts, the loss of such inmates and resulting decrease in occupancy would cause a decrease in our revenues and profitability. Further, many of our state customers are currently experiencing budget difficulties. These budget difficulties could result in decreases to our per diem rates, which could cause a decrease in our revenues and profitability.
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| For the Years Ended December 31, | Unaudited Three Months Ended March 31, | |||||||||||||||||||||||||||
| (in thousands, except per share data) | 2012 | 2011 | 2010 | 2009 | 2008 | 2013 | 2012 | |||||||||||||||||||||
Operating Statement Data: | ||||||||||||||||||||||||||||
Total revenue | $ | 1,759,885 | $ | 1,724,343 | $ | 1,663,317 | $ | 1,616,486 | $ | 1,528,666 | $ | 425,724 | $ | 435,305 | ||||||||||||||
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Expenses: | ||||||||||||||||||||||||||||
Operating | 1,252,184 | 1,190,873 | 1,151,163 | 1,122,414 | 1,065,220 | 307,530 | 315,534 | |||||||||||||||||||||
General and administrative | 88,935 | 91,227 | 84,148 | 86,537 | 80,308 | 31,232 | 21,840 | |||||||||||||||||||||
Depreciation and amortization | 113,933 | 108,216 | 103,710 | 99,747 | 89,548 | 27,630 | 28,387 | |||||||||||||||||||||
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Total expenses | 1,455,052 | 1,390,316 | 1,339,021 | 1,308,698 | 1,235,076 | 366,392 | 365,761 | |||||||||||||||||||||
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Operating income | 304,833 | 334,027 | 324,296 | 307,788 | 293,590 | 59,332 | 69,544 | |||||||||||||||||||||
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Other (income) expense: | ||||||||||||||||||||||||||||
Interest expense, net | 58,363 | 72,940 | 71,127 | 72,780 | 59,404 | 12,566 | 16,890 | |||||||||||||||||||||
Expenses associated with debt refinancing transactions | 2,099 | - | - | 3,838 | - | 225 | 1,541 | |||||||||||||||||||||
Other (income) expense | (338) | 304 | 41 | (139) | 294 | 101 | 12 | |||||||||||||||||||||
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| 60,124 | 73,244 | 71,168 | 76,479 | 59,698 | 12,892 | 18,443 | ||||||||||||||||||||||
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Income from continuing operations before income taxes | 244,709 | 260,783 | 253,128 | 231,309 | 233,892 | 46,440 | 51,101 | |||||||||||||||||||||
Income tax (expense) benefit | (87,586) | (97,017) | (94,765) | (79,688) | (88,277) | 134,652 | (19,059) | |||||||||||||||||||||
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Income from continuing operations | 157,123 | 163,766 | 158,363 | 151,621 | 145,615 | 181,092 | 32,042 | |||||||||||||||||||||
Income (loss) from discontinued operations, net of taxes | (362) | (1,256) | (1,170) | 3,333 | 5,326 | - | (362) | |||||||||||||||||||||
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Net income | $ | 156,761 | $ | 162,510 | $ | 157,193 | $ | 154,954 | $ | 150,941 | $ | 181,092 | $ | 31,680 | ||||||||||||||
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| For the Years Ended December 31, | Unaudited Three Months Ended March 31, | |||||||||||||||||||||||||||
| 2012 | 2011 | 2010 | 2009 | 2008 | 2013 | 2012 | ||||||||||||||||||||||
Basic earnings per share: | ||||||||||||||||||||||||||||
Income from continuing operations | $ | 1.58 | $ | 1.56 | $ | 1.41 | $ | 1.30 | $ | 1.17 | $ | 1.81 | $ | 0.32 | ||||||||||||||
Income (loss) from discontinued operations, net of taxes | - | (0.01) | (0.01) | 0.03 | 0.04 | - | - | |||||||||||||||||||||
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Net income | $ | 1.58 | $ | 1.55 | $ | 1.40 | $ | 1.33 | $ | 1.21 | $ | 1.81 | $ | 0.32 | ||||||||||||||
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Diluted earnings per share: | ||||||||||||||||||||||||||||
Income from continuing operations | $ | 1.56 | $ | 1.55 | $ | 1.40 | $ | 1.29 | $ | 1.16 | $ | 1.78 | $ | 0.32 | ||||||||||||||
Income (loss) from discontinued operations, net of taxes | - | (0.01) | (0.01) | 0.03 | 0.04 | - | - | |||||||||||||||||||||
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Net income | $ | 1.56 | $ | 1.54 | $ | 1.39 | $ | 1.32 | $ | 1.20 | $ | 1.78 | $ | 0.32 | ||||||||||||||
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Dividends declared per share: | $ | 0.60 | - | - | - | - | $ | 0.53 | - | |||||||||||||||||||
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Weighted average common shares outstanding: | ||||||||||||||||||||||||||||
Basic | 99,545 | 104,736 | 112,015 | 116,088 | 124,464 | 100,070 | 99,292 | |||||||||||||||||||||
Diluted | 100,623 | 105,535 | 112,977 | 117,290 | 126,250 | 101,835 | 100,086 | |||||||||||||||||||||
| As of December 31, | As of March 31, | |||||||||||||||||||||||||||
| (in thousands) | 2012 | 2011 | 2010 | 2009 | 2008 | 2013 | ||||||||||||||||||||||
Balance Sheet Data: | ||||||||||||||||||||||||||||
Total assets | $ | 2,974,742 | $ | 3,019,631 | $ | 2,983,228 | $ | 2,905,743 | $ | 2,871,374 | $ | 2,936,375 | ||||||||||||||||
Total debt | $ | 1,111,545 | $ | 1,245,014 | $ | 1,156,568 | $ | 1,149,099 | $ | 1,192,922 | $ | 1,106,948 | ||||||||||||||||
Total liabilities | $ | 1,453,122 | $ | 1,611,609 | $ | 1,512,357 | $ | 1,463,197 | $ | 1,491,015 | $ | 1,274,473 | ||||||||||||||||
Stockholders’ equity | $ | 1,521,620 | $ | 1,408,022 | $ | 1,470,871 | $ | 1,442,546 | $ | 1,380,359 | $ | 1,661,902 | ||||||||||||||||
21
Purpose and Effect of the Exchange Offer
We and the issuance of the unregistered notes, weguarantors entered into a registration rights agreement with the initial purchasers with respect to the initial notes on the original issue date of such notes (the “Closing Date”), pursuant to which we agreed, for the benefit of the unregistered notes on March 23, 2005. The following descriptionholders of the initial notes, that (i) we would use commercially reasonable efforts to file a registration rights agreementstatement (which we refer to as an exchange offer registration statement) with respect to a registered exchange offer (which we refer to as an exchange offer) to exchange the initial notes for new exchange notes having terms substantially identical in all material respects to the initial notes (except that the new exchange notes will not contain terms with respect to additional interest or transfer restrictions), (ii) we would use commercially reasonable efforts to cause the exchange offer registration statement to become effective, and (iii) we would use commercially reasonable efforts to consummate the exchange offer on or before the 270th day after the Closing Date.
Once the exchange offer registration statement has been declared effective, we will offer the exchange notes in exchange for surrender of the initial notes. We will keep the exchange offer open for at least 20 business days after the date that notice of the exchange offer is mailed to holders of the initial notes. For each initial note surrendered to us pursuant to the exchange offer, the holder who surrendered such initial note will receive an exchange note having a principal amount equal to that of the surrendered initial note. Interest on each exchange note will accrue from the last interest payment date on which interest was paid on the initial note surrendered in exchange therefor or, if no interest has been paid on such initial note, from the original issue date of such initial note.
In the event that: (1) applicable law or the applicable interpretations of the staff of the SEC do not permit us to effect the exchange offer, (2) for any other reason the exchange offer is not consummated within 270 days after the Closing Date, (3) under certain circumstances, certain holders of initial notes shall so request or (4) certain holders of initial notes are not eligible to participate in the exchange offer, we will, at our expense, (a) file with the SEC a shelf registration statement covering resales of the initial notes and use our commercially reasonable efforts to cause the shelf registration statement with respect to the initial notes to be declared effective and (b) use our commercially reasonable efforts to keep the shelf registration statement with respect to the initial notes effective until the earlier of the second anniversary of the effective date of such shelf registration statement and the date all initial notes covered by such shelf registration statement have been sold as contemplated in such shelf registration statement. We will, in the event of the filing of a shelf registration statement, provide to each holder of the initial notes with respect to which such shelf registration statement was filed copies of the prospectus which is a summary only. For more information, you should reviewpart of such shelf registration statement, notify each such holder when such shelf registration statement has become effective and take certain other actions as are required to permit unrestricted resales of such initial notes. A holder of initial notes that sells its initial notes pursuant to a shelf registration statement with respect to such initial notes generally (1) will be required to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, (2) will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and (3) will be bound by the provisions of the registration rights agreement that we filed with the Commission as an exhibitare applicable to the registration statement of which this prospectus issuch a part.
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In the event that we do not consummate the exchange offer of the initial notes on or before the 270th day after the Closing Date, that we fail to comply with our obligation to file a holdershelf registration statement with respect to the initial notes, if required by the registration rights agreement, or other registration defaults contemplated by the registration rights agreement occur (collectively, “Registration Defaults” and each individually, a “Registration Default”), the interest rate borne by the initial notes for which a Registration Default occurs will be deemedincreased by 0.25 percent per annum for the first 90 day period and thereafter it will be increased by an additional 0.25 percent per annum for each 90 day period that elapses, provided that the aggregate increase in such annual interest rate may in no event exceed 1.00 percent per annum, until the cure of such Registration Defaults. Upon the cure of all of the Registration Defaults with respect to have agreedthe initial notes for which a Registration Default occurs, the interest rate borne
by the initial notes will be reduced to the original interest rate of the initial notes if we are otherwise in compliance with this paragraph; provided, however, that if, after any such reduction in interest rate, certain events occur with respect to a different Registration Default, the interest rate may again be increased pursuant to the foregoing provisions.
The registration rights agreement provides that we and the guarantors (1) shall make available for a period of up to 90 days after the exchange offer registration statement is declared effective by the SEC the prospectus contained in the exchange offer registration statement, as it may be amended or supplemented from time to time, to any broker-dealer for use in connection with any resale of the exchange notes and (2) shall pay all expenses incident to our performance of or compliance with the registration rights agreement (including the reasonable fees and disbursements of one counsel to the holders of the notes) and will jointly and severally indemnify us and our subsidiary guarantorsthe holders of the notes against certain losses arising out of information furnished by such holderliabilities, including liabilities under the Securities Act.
If you wish to exchange your initial notes for exchange notes in writing for inclusion in any registration statement. Holders of unregistered notesthe exchange offer, you will also be required to suspend their usemake the following written representations:
you are not our affiliate within the meaning of Rule 405 of the prospectus includedSecurities Act;
you are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution (within the meaning of the Securities Act) of the exchange notes; and
you are acquiring the exchange notes in the shelfordinary course of your business.
Each broker-dealer that receives exchange notes for its own account in exchange for initial notes, where the broker-dealer acquired the initial notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. Please see “Plan of Distribution.”
This summary of certain provisions of the registration statement under certain circumstancesrights agreement does not purport to be complete and is subject to, and is qualified in its entirety by, the complete provisions of the registration rights agreement, a copy of which we will make available to holders of initial notes upon receipt of notice to that effect from us.
23
Based on no actioninterpretations by the SEC set forth in no-action letters of the Commission staff issued to third parties, we believe that newyou may resell or otherwise transfer exchange notes may be offered for resale, resold and otherwise transferred by youissued in the exchange offer without further compliancecomplying with the registration and prospectus delivery provisions of the Securities Act ifif:
you are not our affiliate within the meaning of Rule 405 of the Securities Act;
you do not have an arrangement or understanding with any person to participate | ||
you are not engaged in, and do not intend to engage in, a distribution of the exchange notes; and
you are acquiring the exchange notes in the ordinary course of your business.
If you are our affiliate, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the exchange notes, or otherwise doare not satisfyacquiring the foregoing criteria, exchange notes in the ordinary course of your business:
you cannot rely on the position of the SEC set forth in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling, dated July 2, 1993, or similar no-action letters; and
in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of |
This prospectus may be used for an offer to resell, resale or other transfer of newexchange notes only as specifically describedset forth in this prospectus. OnlyWith regard to broker-dealers, only broker-dealers that acquired the unregisteredinitial notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives newexchange notes for its own account in exchange for unregisteredinitial notes, where such unregisteredinitial notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge in the letter of transmittal that it will deliver a prospectus in connection with any resale of the newexchange notes. Please read the section captioned “Plan of Distribution” for more details regarding the transfer of newexchange notes.
Terms of the Exchange Offer
Subject to the terms and conditions described in this prospectus and in the letter of transmittal, we will acceptissue $1,000 principal amount of exchange notes in exchange for exchange any unregisteredeach $1,000 principal amount of outstanding initial notes properly tendered pursuant to the exchange offer and not withdrawn prior to 12:5:00 midnight,p.m., New York City time, on the expiration date. We will issue new notes in principal amount equal to the principal amount of unregistered notes surrendered in the exchange offer. UnregisteredInitial notes may be tendered only for new notesin minimum denominations of $2,000 and only in integral multiples of $1,000.
The form and terms of the exchange notes will be substantially identical in all material respects to the form and terms of the initial notes except the exchange notes will be issued in an offering registered under the Securities Act, will not bear legends restricting their transfer and will not provide for any additional interest upon the occurrence of a Registration Default contemplated by the registration rights agreement. The exchange notes will evidence the same debt as the initial notes. The exchange notes will be issued under and entitled to the benefits of the indenture that authorized the issuance of the initial notes. For a description of the indenture, see “Description of the Exchange Notes.”
The exchange offer is not conditioned upon any minimum aggregate principal amount of unregisteredinitial notes being tendered for exchange.
As of the date of this prospectus, $375.0 million$325,000,000 in aggregate principal amount of the unregistered4.125% senior notes aredue 2020 is outstanding. This prospectus and the letter of transmittal are being sent to all registered holders of unregisteredinitial notes. There will be no fixed record date for determining registered holders of unregisteredinitial notes entitled to participate in the exchange offer.
In connection with the exchange offer, neither the Maryland General Corporation Law nor the indenture governing the notes gives you any appraisal or dissenters’ rights nor any other right to seek monetary damages in court. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission. Unregistered notes that the holders thereof do not tender for exchange in
24
If you tender unregisteredinitial notes in the exchange offer, you will not be required to pay brokerage commissions or fees or,fees. In addition, subject to the instructions in the letter of transmittal, you will not have to pay transfer taxes with respect tofor the exchange of unregisteredinitial notes. We will pay all charges and expenses, in connection with the exchange offer. It is important that you read the section labeledother than certain applicable taxes described under “—Fees and Expenses” for more details regarding fees and expenses incurredbelow.
Expiration Date; Extensions; Amendments
As used in this prospectus, the exchange offer.
We expressly reserve the right at any time or at various times to extend the period of time during which the exchange offer is open. WeConsequently, we may delay acceptance of any unregisteredinitial notes by giving oral or written notice of such extension to their holders. DuringWe will return any such extensions, all unregisteredinitial notes previously tendered will remain subjectthat we do not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offer. To extend the period of time during which the exchange offer and we may accept them for exchange.
We expressly reserve the right to amend the terms ofor terminate the exchange offer inand to reject for exchange any manner.
Any such delay in acceptance, extension, termination or amendment will be promptly followed as promptly as practicable by orala press release or written notice thereofother public announcement describing the delay in acceptance, extension, termination or amendment and disclosing the aggregate principal amount of initial notes tendered, if any, to the registered holdersdate of unregistered notes.the press release. If we amend the exchange offer is amended in a manner that we determinedetermined by us to constitute a material change, we will promptly disclose such amendment by means of a prospectus supplement. The supplement will be distributed to the registered holders of the unregistered notes. In addition, if the amendment constitutes a material change, including the waiver of a material condition, we are generally requiredwill promptly disclose that amendment by means of a prospectus supplement that will be distributed to the holders. We will also extend the exchange offer to the extent necessary to provide that at least five business days fromremain in the dateexchange offer following notice of suchthe material amendment.
25
Despite any other term of the exchange offer, we will not be required to accept for exchange, or exchange any newthe exchange notes for, any unregisteredinitial notes, and we may terminate the exchange offer as provided in this prospectus before the acceptance of those initial notes if, as a resultin our judgment, the exchange offer or the making of any change inexchange by a holder of exchange notes would violate applicable law or any applicable interpretations thereof byinterpretation of the staff of the Commission, we determine upon advice of our outside counsel that we are not permitted to effect the exchange offer as described in this prospectus.
In addition, we will not be obligated to accept for exchange the unregisteredinitial notes of any holder that has not made to us the representations described under “—Purpose and Effect of the Exchange Offer,” “— Procedures for Tendering”Acceptance of Tendered Initial Notes” and “Plan of Distribution” and such other representations as may be reasonably necessary under applicable CommissionSEC rules, regulations or interpretations to allow us to use an appropriate form to register the newinitial notes under the Securities Act.
These conditions are for our sole benefit and except as provided below, we may assert them orthese rights regardless of the circumstances giving rise to any of these conditions. We may waive themthese conditions in our reasonable discretion in whole or in part at any time or at various times in our sole discretion. All such conditions, other than conditions relatedand from time to us obtaining regulatory approval for the exchange offer, will be satisfied or waived prior to expiration.time. If we fail at any time to exercise any of thesethe above rights, thisthe failure will not mean that we have waived our rights. Each such rightbe deemed a waiver of these rights, and these rights will be deemed an ongoing right that werights which may assertbe asserted at any time or at various times.
In addition, we will not accept for exchange any unregisteredinitial notes tendered, and will not issue newexchange notes in exchange for any such unregisteredinitial notes, if at such time any stop order has been threatened or is in effect with respect to the exchange offer registration statement of which this prospectus isconstitutes a part or the qualification of the indentureIndenture relating to the notes under the Trust Indenture Act of 1939.
Procedures for Tendering
To tender such unregisteredyour initial notes in the exchange offer. To tender inoffer, you must comply with either of the following:
complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal, have the signature(s) on the letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal or facsimile thereof to the exchange offer, a holder must:agent at the address set forth below under “— Exchange Agent” prior to the expiration date; or
comply with DTC’s Automated Tender Offer Program procedures described below.
In addition, either:
the exchange agent must receive any physical delivery ofcertificates for initial notes along with the letter of transmittal and other required documents at its address indicated onprior to the cover page of expiration date;
the letter of
26
you must comply with the guaranteed delivery procedures described below.
Your tender, by a holder that isif not withdrawn prior to 12:00 midnight, New York City time, on the expiration date, will constituteconstitutes an agreement between the holderus and us in accordance withyou upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.
The method of delivery of initial notes, the letter of transmittal and all other required documents to the exchange agent is at your election and risk. We recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. You should not send the letter of transmittal or certificates representing initial notes to us. You may request that your broker, dealer, commercial bank, trust company or nominee effect the above transactions for you.
If you beneficially own unregisteredare a beneficial owner whose initial notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender thoseyour initial notes, you should promptly contact the registered holder promptly and instruct itthe registered holder to tender on your behalf. If you are a beneficial owner and wish to tender on your own behalf,the initial notes yourself, you must, prior to completing and executing the letter of transmittal and delivering your unregisteredinitial notes, either:
make appropriate arrangements to register ownership of the initial notes in your name; or
obtain a properly completed bond power from the registered holder of initial notes.
The transfer of registered ownership if permitted under the indenture for the notes, may take considerable time and may not be able to be completed prior to the expiration date.
Signatures |
by a member of oneregistered holder of the recognized signature guarantee programs identified ininitial notes who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the letter of transmittal.transmittal; or
for the account of an eligible guarantor institution.
If the letter of transmittal is signed by a person other than the registered holder of any unregisteredinitial notes listed on the unregisteredinitial notes, such initial notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder’s name appears on the unregistered notes. A member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States, orinitial notes, and an eligible guarantor institution must guarantee the signature on the bond power.
If the letter of transmittal, or any unregisteredcertificates representing initial notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should soalso indicate when signing. Unlesssigning and, unless waived by us, they should also submit evidence satisfactory to us of their authority to deliver the letter of transmittal.
27
DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that is tendering initial notes that are the subject of the book-entry confirmation;
the participant has received and agrees to be bound by the terms of the letter of transmittal, or in the case of an agent’s message relating to guaranteed delivery, that such participant has received and agrees to be bound by the notice of guaranteed delivery; and
we may enforce that agreement against such participant. DTC is referred to herein as a “book-entry transfer facility.”
Acceptance of Tendered Initial Notes
In all cases, we will promptly issue exchange notes for initial notes that we have accepted for exchange under the exchange offer only after the exchange agent timely receives:
initial notes or a timely book-entry confirmation of such initial notes into the exchange agent’s account at the book-entry transfer facility; and
properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message.
By tendering initial notes pursuant to the effect that:
you are not our affiliate within the Exchange Offermeaning of Rule 405 of the Securities Act;
you are not engaged in, and do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution (within the meaning of the Securities Act) of the exchange notes; and
you are acquiring the exchange notes in the ordinary course of your business.
In addition, each broker-dealer that is to receive exchange notes for its own account in exchange for initial notes must represent that such initial notes were acquired by that broker-dealer as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the exchange notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. See “Plan of Distribution.”
We will determine in our sole discretion all questions as to the validity, form, eligibility, time of receipt, acceptance of tendered unregistered notes and withdrawal of tendered unregistered notes. Our determination will be final and binding. We reserve the absolute right to reject any unregistered notes not properly tendered or any unregistered notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defect, irregularities or conditions of tender as to particular unregistered notes. To the extent that we waive any condition of the offer, however, we will waive such condition for all holders of the unregistered notes. Our interpretation ofinterpret the terms and conditions of the exchange offer, including the letter of transmittal and the instructions into the letter of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt and acceptance of initial notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of any particular initial notes not properly tendered or to not accept any particular initial notes if the acceptance might, in our or our counsel’s judgment, be unlawful. We also reserve the absolute right to waive any defects or irregularities as to any particular initial notes prior to the expiration date.
Unless waived, allany defects or irregularities in connection with tenders of unregisteredinitial notes for exchange must be cured within suchthe time asperiod we shall determine. Although we intend to notify holders of defects or irregularities in connection with respect to tenders of unregisteredinitial notes, neither we, the exchange agent nor any other personanyone else will incur any liability for any failure to give such notification. Tenders of unregistered notes will not be deemed made until such defects or irregularities have been cured or waived.notice. Any unregisteredinitial notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, unless otherwise provided in the letter of transmittal, as soon as practicable following the expiration date.
28
Book-Entry Delivery Procedures
Promptly after the date of this prospectus, the exchange offer.
Holders of unregisteredinitial notes who are unable to deliver confirmation of the book entrybook-entry tender of their unregisteredinitial notes into the exchange agent’s account at DTCthe book-entry transfer facility or all other documents required by the letter of transmittal to the exchange agent on or prior to 12:00 midnight, New York City time, on the expiration date must tender their unregisteredinitial notes according to the guaranteed delivery procedures described below.
Guaranteed Delivery Procedures
If you wish to tender your unregisteredinitial notes but your unregisteredinitial notes are not immediately available or you cannot deliver your unregisteredinitial notes, the letter of transmittal or any other required documents to the exchange agent or comply with the applicable procedures under DTC’s automated tender offer programAutomatic Tender Offer Program in the case of initial notes, prior to the expiration date, you may still tender if:
the tender is made through an eligible guarantor institution;
prior to the expiration date, |
29
the exchange agent receives the properly completed and executed letter of transmittal or facsimile thereof, as well as certificate(s) representing all tendered initial notes in proper form for transfer or a book-entry confirmation of transfer of the initial notes into the exchange agent’s account at DTC and all other documents required by the letter of transmittal within three New York Stock Exchange trading days after the expiration date.
Upon request, the exchange agent will send to you a notice of guaranteed delivery will be sent you if you wish to tender your unregisteredinitial notes according to the guaranteed delivery procedures described above.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, you may withdraw your tender of initial notes at any time prior to 12:5:00 midnight,p.m., New York City time, on the expiration date.
For a withdrawal to be effective:
the exchange agent must receive a written notice, which may be by telegram, telex, facsimile or letter, of withdrawal at its address set forth below under “—Exchange Agent”; or
you must comply with the appropriate procedures of DTC’s Automated Tender Offer Program system.
Any notice of withdrawal must:
specify the name of the person who tendered the initial notes to be withdrawn;
identify the initial notes to be withdrawn, including the certificate numbers and principal amount of the initial notes; and
where certificates for initial notes have been transmitted, specify the name in which such initial notes were registered, if different from that of the withdrawing holder.
If unregisteredcertificates for initial notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, you must also submit:
the serial numbers of the particular certificates to be withdrawn; and
a signed notice of withdrawal with signatures guaranteed by an eligible institution unless you are an eligible guarantor institution.
If initial notes have been tendered underpursuant to the procedureprocedures for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTCthe book-entry transfer facility to be credited with the withdrawn unregisteredinitial notes and otherwise comply with the procedures of DTC.
Exchange Agent
U.S. Bank National Association has been appointed as the exchange agent for the exchange offer. You should direct all executed letters of transmittal and all questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery to the exchange agent addressed as follows:
| By Registered, Certified | By Facsimile | By Overnight Courier or | ||
| or Regular Mail: | (eligible institutions only): | Hand Delivery: | ||
| U.S. Bank National Association | 651-466-7372 | U.S. Bank | ||
| U.S. Bank | Corporate Trust Services | |||
| Corporate Trust Services | Telephone Inquiries: | 60 Livingston Avenue | ||
| 60 Livingston Avenue | 800-934-6802 | 1st Fl – Bond Drop Window | ||
| St. Paul, Minnesota 55107 | St. Paul, Minnesota 55107 | |||
| Attention: Specialized Finance |
If you deliver the letter of transmittal to an address other than the one set forth above or transmit instructions via facsimile to a number other than the one set forth above, that delivery or those instructions will not be effective.
Fees and Expenses
The registration rights agreement provides that we will bear all expenses in connection with the performance of our obligations relating to the registration of the exchange notes and the conduct of the exchange offer. These expenses include registration and filing fees, accounting and legal fees and printing costs, among others. We will bearpay the exchange agent reasonable and customary fees for its services and reasonable out-of-pocket expenses. We will also reimburse brokerage houses and other custodians, nominees and fiduciaries for customary mailing and handling expenses incurred by them in forwarding this prospectus and related documents to their clients that are holders of soliciting tenders. The principal solicitation is being made by mail; however, we may make additional solicitation by facsimile, telephone, electronic mailinitial notes and for handling or in person by our officers and regular employees and those of our affiliates.
We have not retained any dealer-manager in connection with the exchange offer and will not makepay any paymentsfee or commission to broker-dealersany broker, dealer, nominee or others soliciting acceptances of the exchange offer. We will, however, payother person, other than the exchange agent, reasonable and customary fees for its services and reimburse it for its related reasonable out-of-pocket expenses, including legal fees.
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Accounting Treatment
We will record the exchange notes at the same carrying value as the initial notes as reflected in our accounting records on the date of exchange. Therefore, we will not recognize a gain or loss for accounting purposes in connection with the exchange offer. They include:
Consequence of Failure to Exchange
If you do not exchange newyour initial notes for your unregisteredexchange notes underin the exchange offer, you will remain subject to the existing restrictions on transfer of the unregisteredinitial notes. In general, you may not offer or sell the unregisteredinitial notes unless they arethe offer or sale is either registered under the Securities Act or unless the offer or sale is exempt from the registration requirements under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the unregisteredinitial notes under the Securities Act.
Additionally, we expect that, following the consummation of the exchange offer, the trading market for the initial notes will recordbe negatively affected because of the new notes in our accounting records at the same carrying value as the unregistered notes. This carrying value is the aggregate principallimited amount of initial notes expected to remain outstanding. See “Risk Factors” for more information about the unregistered notes, as reflected in our accounting records on the daterisks of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offer.
Other
You do not have to participate in the exchange offer.You should carefully consider whether to accept. You are urgedaccept the terms and conditions of the exchange offer. We urge you to consult your financial and tax advisors in making your own decision ondeciding what action to take.
We may in the future seek to acquire untendered unregisteredinitial notes through redemptions, in open market or privately negotiated transactions, through a subsequent exchange offersoffer or otherwise. We have no present plans to acquire any unregisteredinitial notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered unregisteredinitial notes.
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DESCRIPTION OF OTHER INDEBTEDNESS
We maintain a senior secured revolving credit facility pursuant to that certain amended and restated credit agreement, by and among us, the banks and other financial institutions party thereto, Bank of America, N.A., as Administrative Agent, and certain other agents and arrangers, as amended from time to time (the “Revolving Credit Agreement”). The revolving credit facility provided pursuant to the Revolving Credit Agreement (the “Revolving Credit Facility”) has an aggregate principal capacity of $900.0 million and has an “accordion” feature that provides for uncommitted incremental extensions of credit in the form of increases in the revolving commitments or incremental term loans in an aggregate principal amount up to an additional $100.0 million. The Revolving Credit Facility matures on December 29, 2017.
The Revolving Credit Facility has a $30.0 million sublimit for swing line loans that enables us to borrow from Bank of America, N.A. on short notice at the exchange agent addressed as follows:
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The Revolving Credit Facility is secured by this prospectus, we will receive unregistered notes in a like principal amount. The form and termspledge of all of the new notes are identical in all respects to the form and termscapital stock of our domestic subsidiaries, 65% of the unregistered notes, except the new notes have been registered under the Securities Act and will not contain restrictions on transfer or registration rights. Unregistered notes surrendered in exchange for the new notes will be retired and canceled and will not be reissued. Accordingly, the issuancecapital stock of the new notes will not result in any change in our outstanding indebtedness.
The Revolving Credit Facility requires us to meet certain financial covenants, including, without limitation, a maximum total leverage ratio, a maximum secured leverage ratio, and a minimum fixed charge coverage ratio. As of March 31, 2013, we were in compliance with all such covenants. In addition, the Revolving Credit Facility contains certain covenants that, among other things, limit the incurrence of additional indebtedness, acquisitions and other investments, payment of dividends and other customary restricted payments, transactions with affiliates, asset sales, mergers and consolidations, liquidations, prepayments and modifications of other indebtedness, liens and other encumbrances and other matters customarily restricted in such agreements. The loans outstanding under the Revolving Credit Facility are subject to acceleration upon the occurrence of a change of control. In addition, the Revolving Credit Facility is subject to certain cross-default provisions with respect to our other indebtedness.
Other Unsecured Senior Notes
4.625% Senior Notes due 2023
Interest on the $350.0 million in aggregate principal amount of 9.875% senior notes due 2009 that were tendered in a tender offer, (ii) to prepay $110.0 million in aggregate principal amount of our existing term indebtedness under our senior secured credit facility, and (iii) to pay fees and expenses associated with these transactions.
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DESCRIPTION OF THE EXCHANGE NOTES
The initial notes were, and the newexchange notes offered hereby in exchange for the noteswill be, issued in the private placement.
The form and terms of the existing 6.25%exchange notes and the new notes to be issued in this exchange offer will be the same in all material respects.
You can find the definitions of determining whethercertain terms used in this description under the required percentagesubheading “—Certain Definitions.” In this description, the word “CCA” refers only to Corrections Corporation of Holders have given their approval or consentAmerica and not to an amendment or waiver or joinedany of its Subsidiaries and the word “Notes” refers to the initial notes issued on April 4, 2013 and the exchange notes to be issued in directing the trustee to take certain actions on behalf of all Holders.
The following description is a summary of the material provisions of the Indenture and the Registration Rights Agreement.Notes. It does not restate those agreementspurport to be complete and is qualified in their entirety.its entirety by reference to all of the provisions of the Indenture. We urge you to read the Indenture andbecause the Registration Rights Agreement because they,Indenture, and not this description, definedefines your rights as Holders of the Notes. Copies of the Indenture and the Registration Rights Agreement are available as set forth below under “— Additional Information.” Certain defined terms used in this description but not defined below under “—Certain Definitions” have the meanings assigned to them in the Indenture.
Anyone who receives this prospectus may obtain a copy of the Indenture or the Registration Rights Agreement.
Brief Description of the Notes and the Subsidiary Guarantees
The Notes
The Notes:
will be general unsecured obligations of CCA;
will be equal in right of payment with each other and with all existing and future unsecured senior Indebtedness of CCA;
will be senior in right of payment to any future subordinated Indebtedness of CCA; and
will be guaranteed by the Guarantors.
However, the Notes will be effectively subordinated to all secured indebtedness, including borrowings under CCA’s senior secured credit facility,the Credit Agreement, which is secured by liens on a substantial amountpledge of the assetsCapital Stock of CCA’s Domestic Subsidiaries and 65% of the Capital Stock of CCA’s “first-tier” foreign subsidiaries and all of the accounts receivable and deposit accounts of CCA and the Guarantors.
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The Subsidiary Guarantees
The Notes will be guaranteed by all of CCA’s existing Domestic Subsidiaries (as defined) and future subsidiaries that execute guarantees in accordance with the terms of the Indenture as described in “Certain Covenants — “—Certain Covenants—Additional Subsidiary Guarantees.”
Each Subsidiary Guarantee of the Notes:
will be a general senior unsecured obligation of such Guarantor;
will be equal in right of payment with each other and to all existing and future senior unsecured Indebtedness of that Guarantor;
will be senior in right of payment to any future subordinated Indebtedness of that Guarantor; and
will be effectively subordinate to any obligations of such Guarantor under any existing or future secured indebtedness (including obligations under our Credit Agreement), to the extent of the value of the collateral securing such obligations.
Not all of CCA’s existing Subsidiaries will guarantee the Notes. In the event of a bankruptcy, liquidation or reorganization of any of these non-guarantor Subsidiaries, the non-guarantor Subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute any of their assets to CCA. The non-guarantor Subsidiaries generated less than 1.0% of CCA’s consolidated revenues in 2004 and owned less than 1.0% of CCA’s consolidated assets at all times throughout such period. The non-guarantor Subsidiaries have no outstanding third-party debt.
Principal, Maturity and Interest
The Notes will issue $375.0 million in aggregate principal amount of Notes in this offering.mature on April 1, 2020. CCA may issue additional notesNotes under the Indenture from time to time after this offering in one or a series of transactions, subject towithout the covenant described below underconsent of Holders of the caption “— Certain Covenants — Incurrence of Indebtedness and Issuance of Preferred Stock.”Notes. The Notes and any additional notes of the same series subsequently issued under the Indenture will be treated as a single class for all purposes under the Indenture, including, without limitation, redemption of the Notes, offers to purchase the Notes and the percentage of Notes required to consent to waivers of provisions of, and amendments to, the Indenture. The Indenture provides that CCA will issue the Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes will mature on March 15, 2013.
Interest on the Notes will accrue at the rate of 6.25%4.125% per annum and will be payable semi-annually in arrears on March 15April 1 and September 15,October 1 of each year, commencing on September 15, 2005.October 1, 2013. We will make each interest payment to the holders of record with respect to the Notes on the close of business on the immediately preceding March 115 and September 1.
Interest on the Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
Methods of Receiving Payments on the Notes
If a holderHolder of Notes has given wire transfer instructions to CCA, CCA will pay all principal, interest and premium, and Liquidated Damages, if any, on that holder’sHolder’s Notes in accordance with those instructions. All other payments on the Notes will be made at the office or agency of the paying agent and registrar within the City and State of New York unless CCA elects to make interest payments by check mailed to the holdersHolders at their address set forth in the register of holders.
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The trustee will initially act as paying agent and registrar for the Notes. CCA may change the paying agent or registrar for the Notes without prior notice to the holdersHolders of the Notes, and CCA or any of its Subsidiaries may act as paying agent or registrar.
Transfer and Exchange
A Holder may transfer or exchange Notes in accordance with the Indenture. The registrar and the trustee may require a Holder to furnish appropriate endorsements and transfer documents in connection with a transfer of Notes. holdersHolders will be required to pay all taxes due on transfer. CCA will not be required to transfer or exchange any Note selected for redemption. Also, CCA will not be required to transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed.
Subsidiary Guarantees
The Notes will be guaranteed by each of CCA’s current and future Domestic Subsidiaries that are guarantors of a Credit Facility.Facility of CCA or any other Guarantor. These Subsidiary Guarantees will be joint and several obligations of the Guarantors. The obligations of each Guarantor under itsa Subsidiary Guarantee will be limited as necessary to prevent thatsuch Subsidiary Guarantee from constituting a fraudulent conveyance under applicable law.law or a violation of State law prohibiting shareholder distributions by an insolvent subsidiary. See “Risk Factors — Factors—Risks Related to the Offering — FederalExchange Notes—The notes are effectively subordinated to our secured indebtedness and state statutes allow courts, under specific circumstances,structurally subordinated to void guarantees and require holders to return payments received from guarantors.”
The Subsidiary Guarantee of a Guarantor will be released:
36(1) in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of CCA;
(3) with respect to the Notes upon Legal Defeasance or Covenant Defeasance of the Notes, as described in “—Legal Defeasance and Covenant Defeasance”; or
Optional Redemption
At any time onbefore January 1, 2020, the Notes are redeemable at our election, in whole or priorin part, at any time at a redemption price equal to March 15, 2008, CCA may on any one or more occasions redeem up to 35%the greater of:
(1) 100% of the aggregate principal amount of outstandingthe Notes issued underto be redeemed then outstanding; and
(2) as determined by an Independent Investment Banker, the Indenturesum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (not including any portion of such payments of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate for the Notes, plus 50 basis points;
plus, in either of the above cases, accrued and unpaid interest to the date of redemption on the notes to be redeemed.
On or after January 1, 2020, the Notes are redeemable at our election, in whole or in part, at a redemption price of 106.250%equal to 100% of the aggregate principal amount of Notes to be redeemed plusaccrued and unpaid interest and Liquidated Damages, if any,thereon to, but not including, the redemption date.
If the optional redemption date withis on or after an interest record date and on or before the net cash proceeds of one or more Equity Offerings;providedthat:
Unless CCA defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Notes or portions thereof called for redemption. Notes called for redemption become due on the date fixed for redemption.
Selection and Notice
If less than all of the Notes are to be redeemed at any time, the trustee will select Notes for redemption as follows:
(1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, on a pro rata basis unless otherwise required by law.
No Notes of $2,000 or less can be redeemed in part. Notices of redemption will be mailed by first class mail at least 30 but not more than 60 days before the redemption date to the applicableeach Holder of Notes to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if redeemed during the 12-month period beginning on March 15 of the years indicated below:
| Year | Percentage | |||
| 2009 | 103.125 | % | ||
| 2010 | 101.563 | % | ||
| 2011 and thereafter | 100.000 | % | ||
If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount of that Note that is to be redeemed. A new Note in principal amount equal to the provisionsunredeemed portion of the Indenture describedoriginal Note will be issued in this section, see “— Selectionthe name of the Holder of Notes upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and Notice.”
Mandatory Redemption
CCA is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
Repurchase at the Option of Holders
Upon the occurrence of a Change of Control, CCA will make an offer (a “Change of Control Offer”) to each Holder of Notes will have the right to require CCA to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant toat a Change of Control Offer on the terms set forth in the Indenture. In the Change of Control Offer, CCA will offer a Change of Control Paymentpurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchasedplusaccrued and unpaid interest, and Liquidated Damages, if any, on the Notes repurchased to the date of purchase.purchase (the “Change of Control Payment”). Within 10 business days following any Change of Control, CCA will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by the Indenture and described in such notice. CCA will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture, CCA will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of the Indenture by virtue of such conflict.
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(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the trustee the Notes properly accepted together with an officers’ certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by CCA.
The paying agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any;providedthat each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
CCA will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
Except as described above with respect to a Change of Control, the Indenture does not contain provisions that permit the holdersHolders of the Notes to require that CCA repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction.
CCA will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by CCA and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer.
The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the properties or assets of CCA and its Subsidiaries
taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of Notes to require CCA to repurchase its Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of CCA and its Subsidiaries taken as a whole to another Person or group may be uncertain.
The Credit Agreement contains, and other Indebtedness of CCA may contain, prohibitions on, or an event of default resultingarising from, the occurrence of events that would constitute a Change of Control or require that Indebtedness be repurchased upon a Change of Control. Moreover, the exercise by the holdersHolders of their right to require CCA to repurchase the Notes upon a Change of Control would cause a default under the Credit Agreement and may do so under other Indebtedness even if the Change of Control itself does not.
If a Change of Control Offer occurs, there can be no assurance that CCA will have available funds sufficient to make the Change of Control Payment for all of the Notes that might be delivered by holdersHolders seeking to accept the Change of Control Offer. In the event CCA is required to purchase outstanding Notes pursuant to a Change of Control Offer, CCA expects that it would seek third-party financing to the extent it does not have available funds to meet its purchase obligations and any other obligations in respect of its other indebtedness. However, there can be no assurance that CCA would be able to obtain necessary financing. See “Risk Factors — Factors—Risks Related to Our Leveraged Capital Structure — the Exchange Notes—We are required to repurchase all or a portion of our existing 7.5% notes and the notes to be issued in this offering upon a change of control.”
38Certain Covenants
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46Reports
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(1) all quarterly and annual financial and other information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if CCA were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by CCA’s certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if CCA were required to file such reports.
Notwithstanding the foregoing, CCA will be deemed to have furnished any information or reports specified in the immediately preceding paragraph, upon CCA’s filing with the SEC of its required reports within the time periods specified in the SEC’s rules and regulations and such information and or reports are publicly available.
In addition, whether or not required by the SEC, CCA will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the SEC’s rules and regulations (unless the SEC will not accept such a filing) and make such information available to prospective investors upon request. In addition, CCA and the Guarantors have agreed that, for so long as any Notes remain outstanding, they will furnish to the holdersHolders and to prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, if any such information is required to be delivered.
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Additional Subsidiary Guarantees
Merger, Consolidation or Sale of Assets
(1) either: (a) CCA or any Subsidiary is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than CCA or any Subsidiary) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the Unrestricted SubsidiariesUnited States, any state of CCA.
(2) the Person formed by or surviving any such consolidation or merger (if other than CCA or any Subsidiary) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of CCA under the Notes and the Indenture pursuant to agreements reasonably satisfactory to the trustee; and
(3) immediately after such transaction no Default or Event of Default exists.
The covenant described under this caption “Merger, Consolidation or Sale of Assets” will not apply to: (i) a sale, assignment, transfer, conveyance or other disposition of assets between or among CCA and any of its Subsidiaries; (ii) any merger of a Subsidiary into CCA or another Subsidiary; (iii) any merger of CCA into a wholly-owned Subsidiary created for the purpose of holding the Equity Interests of CCA; or (iv) a merger between CCA and a newly-created Affiliate incorporated solely for the purpose of reincorporating CCA in another State of the United States.
Events of Default and Remedies
The Indenture provides that any of the following iswill constitute an Event of Default:
(1) default for 30 days in the payment when due of interest on the Notes;
(2) default in payment when due of the principal of, or premium, if any, on the Notes;
(3) failure by CCA to comply with the provisions described under the captions “—Repurchase at the Option of Holders Upon a Change of Control,” or “—Certain Covenants—Merger, Consolidation or Sale of Assets” with respect to the Notes;
(4) failure by CCA or any Guarantor for 60 consecutive days after notice to comply with any of the other agreements in the Indenture;
(5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by CCA or any Guarantor (or the payment of which is guaranteed by CCA or any Guarantor) whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $25.0$50.0 million or more;
(6) failure by CCA or any Guarantor to pay final judgments aggregating in excess of $50.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;
(7) except as permitted by the Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee; and
(8) certain events of bankruptcy or insolvency described in the Indenture with respect to CCA or any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary.
In the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to CCA, or any Restricted Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default with respect to the Notes occurs and is continuing, the trustee or the holdersHolders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.
Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, holdersHolders of a majority in principal amount of the then outstanding
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The holdersHolders of a majority in aggregate principal amount of the Notes then outstanding by notice to the trustee may on behalf of the holdersHolders of all of the Notes waive any existing Default or Event of Default with respect to the Notes and its consequences under the Indenture governing the Notes except a continuing Default or Event of Default in the payment of interest or Liquidated Damages on, or the principal of or the premium on the Notes.
CCA is required to deliver to the trustee annually a written statement regarding compliance with the Indenture. Upon becoming aware of any Default or Event of Default, CCA is required to deliver to the trustee a written statement specifying such Default or Event of Default.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of CCA or any Guarantor, as such, will have any liability for any obligations of CCA or the Guarantors under the Notes, the Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Legal Defeasance and Covenant Defeasance
CCA may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding Notes and all obligations of the Guarantors discharged with respect to their Subsidiary Guarantees of the Notes (“Legal Defeasance”Defeasance”) except for:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on the Notes when such payments are due from the trust referred to below;
(2) CCA’s obligations with respect to the Notes concerning issuing temporary Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the trustee of the Notes, and CCA’s and the Guarantors’ obligations in connection therewith; and
(4) the Legal Defeasance provisions of the Indenture.
In addition, CCA may, at its option and at any time, elect to have the obligations of CCA and the Guarantors released with respect to certain covenants that are described in the Indenture (“Covenant Defeasance”Defeasance”) and thereafter any omission to comply with those covenants will not constitute a Default or Event of Default with respect to the Notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described belowabove under the caption “—Events of Default and Remedies” will no longer constitute an Event of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
52(1) CCA must irrevocably deposit with the trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, or interest and premium, if any, on the outstanding Notes on the stated maturity or on the applicable redemption date, as the case may be, and CCA must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(3) in the case of Covenant Defeasance, CCA has delivered to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Indenture) to which CCA or any of its Subsidiaries is a party or by which CCA or any of its Subsidiaries is bound;
(6) CCA must deliver to the trustee an officers’ certificate stating that the deposit was not made by CCA with the intent of preferring the Holders of Notes over the other creditors of CCA or with the intent of defeating, hindering, delaying or defrauding creditors of CCA or others; and
(7) CCA must deliver to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance with respect to the Notes under the Indenture have been complied with.
Amendment, Supplement and Waiver
Except as provided in the next two succeeding paragraphs, the Indenture or the Notes may be amended or supplemented with the consent of the holdersHolders of at least a majority in principal amount of thesuch Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of or tender offer for the Notes), and any existing default or compliance with any provision of the Indenture, the Notes or the NotesSubsidiary Guarantees may be waived with the consent of the holdersHolders of a majority in principal amount of the then outstanding Notes (including, without limitation, consents obtained in connection with a purchase of or tender offer for the Notes).
Without the consent of each Holder affected,of the Notes, an amendment or waiver may not (with respect to any Notes held by a non-consenting Holder)Holder of the Notes):
53(1) reduce the principal amount of the Notes whose Holders must consent to an amendment, supplement or waiver;
(3) reduce the rate of or change the time for payment of interest on any Note;
(5) make any Note payable in currency other than that stated in the Notes;
(6) make any change in the provisions of the Indenture relating to waivers of past Defaults with respect to the Notes or the rights of Holders of Notes to receive payments of principal of, or interest or premium, if any, on the Notes;
(7) waive a redemption payment with respect to any Note (other than a payment required by the covenant described above under the caption “—Repurchase at the Option of Holders Upon a Change of Control”);
(8) release any Guarantor from any of its obligations under its Subsidiary Guarantee of the Notes or the Indenture, except in accordance with the terms of the Indenture;
(9) modify or change any provision of the Indenture or the related definitions to affect the ranking of the Notes or any Subsidiary Guarantee of the Notes in a manner that adversely affects the Holders of the Notes;provided,however, that any modification of the provisions of the Indenture relating to the ability of CCA or any Subsidiary to create, incur, assume or otherwise suffer to exist or become effective any Lien securing Indebtedness shall not constitute a modification or change that affects the ranking of the Notes or any Subsidiary Guarantee of the Notes; or
(10) make any change in the preceding amendment and waiver provisions in the Indenture or the Notes.
Notwithstanding the preceding, without the consent of any Holder of the Notes, CCA, the Guarantors and the trustee may amend or supplement the Indenture, the Subsidiary Guarantees or the Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes of such series in addition to or in place of certificated Notes;
(3) to provide for the assumption of CCA’s obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of CCA’s assets;
(4) to make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under the Indenture of any Holder of the Notes;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;
(6) to conform the text of the Indenture, the Subsidiary Guarantees of the Notes or the Notes to any provision contained in this “Description of the Exchange Notes”;
(7) to provide for the issuance of additional Notes; or
(8) to allow a Subsidiary to execute a supplemental indenture with respect to the Indenture for the purpose of providing a Subsidiary Guarantee in accordance with the provisions of the Indenture.
Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect as to all Notes issued thereunder, when:
54(1) either:
(b) all Notes that have not been delivered to the trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year, and CCA or any Guarantor has irrevocably deposited or caused to be deposited with the trustee as trust funds in trust solely for the benefit of the Holders of Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on the Notes not delivered to the trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(3) CCA or any Guarantor has paid or caused to be paid all sums payable by it under the Indenture; and
(4) CCA has delivered irrevocable instructions to the trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
In addition, CCA must deliver an Officers’ Certificateofficers’ certificate and an Opinionopinion of Counselcounsel to the trustee stating that all conditions precedent to satisfaction and discharge with respect to the Notes have been satisfied.
Concerning the Trustee
If the trustee becomes a creditor of CCA or any Guarantor, the Indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or
otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest, as described in the Trust Indenture Act, it must eliminate such conflict within 90 days, apply to the SEC for permission to continue or resign.
The holdersHolders of a majority in principal amount of the then outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The Indenture provides that in case an Event of Default occurs and is continuing, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent manperson in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any Holder of Notes, unless such Holder has offered to the trustee security and indemnity satisfactory to it against any loss, liability or expense.
Certain Definitions
“Adjusted Total Assets” means the sum of:
(1) Total Assets of CCA as of the Indentureend of the of the most recent fiscal quarter as set forth on the most recent quarterly or annual consolidated balance sheet of CCA prepared in conformity with GAAP; and Registration Rights Agreement
(2) Any increase or decrease in Total Assets following the end of such quarter to the date for which Adjusted Total Assets is being calculated, determined on apro forma basis, including, without chargelimitation, giving anypro forma increase or decrease in Total Assets resulting from the transaction with respect to which Adjusted Total Assets is being calculated.
“Adjusted Treasury Rate” means, with respect to any redemption date:
(1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by writingthe Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to CCA’s Investor Relations Department at 10 Burton Hills Boulevard, Nashville, Tennessee 37215.
(2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
The new notes willAdjusted Treasury Rate shall be issuedcalculated on the third Business Day preceding the redemption date or, in registered, global form in minimum denominationsthe case of $2,000a satisfaction and integral multiples of $1,000 in excess of $2,000. Notes will be issueddischarge at the closingtime a redemption notice is delivered, two business days prior to the deposit of this exchange offer only pursuant to valid tenders of unregistered notes. The new notes initially will be represented by one or more notes in registered, global form without interest coupons (collectively, the “Global Notes”). The Global Notes will be deposited upon issuancefunds with the trustee as custodian for DTC in New York, New York, and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant in DTC as described below.
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Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.
““Board of Directors”Directors” means:
(1) with respect to a corporation, the board of directors of the corporation;
(2) with respect to a partnership, the board of directors of the general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such Person serving a similar function.
““Capital Lease Obligation”Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP.
““Capital Stock”Stock” means:
62(1) in the case of a corporation, corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
““Cash Equivalents”means:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of CCA and its | |
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(2) the approval by the holders of the Voting Stock of CCA of a plan relating to the liquidation or dissolution of CCA or if no such approval is required the adoption of a plan relating to the liquidation or dissolution of CCA by its Board of Directors;
(3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of CCA;
(4) CCA consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, CCA, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of CCA or such other Person is converted into or exchanged for cash, securities or other property, other than any period,such transaction where the Consolidated Net IncomeVoting Stock of CCA outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a 45% or more of the outstanding shares of such Voting Stock of such surviving or transferee Person for(immediately after giving effect to such periodplus:
| issuance); or (5) |
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the notes that would be utilized, at the time of selection and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP;providedthat:
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“Comparable Treasury Price” means, for any redemption date, (1) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the Indenture inhighest and lowest Reference Treasury Dealer Quotations, or (2) if the book valueIndependent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations the average of any asset (except anyall such intangible assets) owned by CCA or any of CCA’s Restricted Subsidiaries.
““Continuing Directors”Directors” means, as of any date of determination, any member of the Board of Directors of CCA who:
(1) was a member of such Board of Directors on the Issue Date; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election. “Credit Agreement” means the | |
““Credit Facilities”Facilities” means, one or more credit or debt facilities (including, without limitation, the Credit Agreement) or, financings, commercial paper facilities, in each case with banksnote purchase agreements or other institutional lendersdebt instruments, indentures or agreements providing for revolving credit loans, term loans, notes, securities, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or, letters of credit or issuances of debt securities or other Obligations, in each case, as amended (and/or amended and restated), restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.
““Default”Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
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““Domestic Subsidiary”Subsidiary” means any Restricted Subsidiary of CCA that was formed under the laws of the United States or any state of the United States (but not the laws of Puerto Rico) or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of CCA.
““Equity Interests”Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
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“Government Securities”means securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities).
“Guarantee”Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness, but not any Indebtedness of CCA under the Forward Delivery Deficits Agreement, dated as of September 25, 1997, by and between CCA and Wachovia Bank, National Association (formerly known as First Union National Bank), as trustee, or under the Debt Service Deficits Agreement, dated as of January 1, 1997, by and between CCA and Hardeman County Correctional Facilities Corporation, each as in effect on the date of the Indenture,Issue Date,providedthat and for so long as such Indebtedness is not required to be classified as debt of CCA or any Restricted Subsidiary pursuant to GAAP.
““Guarantors”Guarantors” means, with respect to the Notes, each of:
(1) the Guarantors described under the caption “—Subsidiary Guarantees” above; and
(2) any other subsidiary that executes a Subsidiary Guarantee in accordance with the provisions of the Indenture;
and their respective successors and assigns.
““Hedging Obligations”Obligations” means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
“Holder” means any Person in whose name a Note is registered.
“Indebtedness”Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
68(1) in respect of borrowed money;
(3) in respect of banker’s acceptances;
(5) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (2) the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness; and (3) |
“Independent Investment on the date of any such sale or disposition equal to the fair market valueBanker” means one of the Equity Interests of such Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of the covenant described above under the caption “— Certain Covenants — Restricted Payments.Reference Treasury Dealers appointed by CCA.
“Issue Date” The acquisition by CCA or any Subsidiary of CCA of a Person that holds an Investment in a third Person will be deemed to be an Investment by CCA or such Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of the covenant described above under the caption “— Certain Covenants — Restricted Payments.means April 4, 2013.
“Lien”
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““Permitted Business”Liensmeans” means:
(1) Liens on real or personal property of CCA and any Guarantor securing Indebtedness and other Obligations under Credit Facilities in an aggregate amount not to exceed (x) $1,000,000,000 plus (y) 2.5% of Adjusted Total Assets at any one time outstanding;
(2) Liens in favor of CCA or the Guarantors;
(3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with CCA or any Subsidiary of CCA or becomes a direct or indirect subsidiary of CCA;providedthat such Liens were in existence prior to the contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person merged into or consolidated with CCA or the Subsidiary;
(4) Liens on property existing at the time of acquisition of the property by CCA or any Subsidiary of CCA,providedthat such Liens were in existence prior to the contemplation of such acquisition;
(5) Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;
(6) Liens to secure Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred within 270 days of the related purchase, construction or improvement for the purpose of financing all or any part of the cost of purchase, construction or improvement of property, plant or equipment used in the business conducted byof CCA and its Restricted Subsidiariesor such Subsidiary, including all Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (6);
(7) Liens existing on the dateIssue Date;
(8) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded,providedthat any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;
(9) Attachment or judgment Liens not giving rise to a Default or an Event of Default;
(10) Liens with respect to Obligations that do not exceed 7.5% of Adjusted Total Assets at any one time outstanding;
(11) pledges or deposits under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which CCA or any Subsidiary is a party, or deposits to secure public or statutory obligations of CCA or any Subsidiary or deposits or cash or Government Securities to secure surety or appeal bonds to which CCA or any Subsidiary is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business;
(12) Liens imposed by law, including carriers’, warehousemen’s and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings if a reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made in respect thereof;
(13) encumbrances, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or liens incidental to the conduct of the Indenture and businesses reasonably related thereto or ancillary or incidental theretobusiness of CCA or a reasonable extension thereof, includingSubsidiary or to the privatizationownership of governmental services.
70(14) Liens securing Hedging Obligations;
| (15) |
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(16) normal customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(17) mortgages or other Liens securing Indebtedness or other Obligations issued in repayment of, exchange for,by or owed to the net proceeds of which are used to extend, refinance, renew, replace, repay, defease or refund other Indebtedness of CCAUnited States, any State thereof or any municipality, or any department, agency or instrumentality or political subdivision of its Restricted Subsidiaries (other than intercompany Indebtedness and Disqualified Stockany of CCAthe foregoing, or a Restricted Subsidiary);by any other country or any political subdivision thereof for the purpose of financing all or any part of the purchase price of, or, in the case of real property, the cost of construction of, relocation of, maintenance of, or improvement of, any property or assets subject to such mortgage or other lien or within the jurisdiction of such entity, or otherwise in connection with any geographic incentivization arrangements, including tax reduction or other economic subsidization arrangements pertaining to local employment.
“providedPersonthat:
““PMI Notes”Principal Property” means those certain 4.0% convertible subordinated notes due February 28, 2005 issued pursuant to(i) any Real Estate Assets with a net book value in excess of 1.0% of CCA’s Adjusted Total Assets or (ii) any Capital Stock of a Subsidiary that certain Note Purchase Agreement, datedowns Real Estate Assets described in clause (i) of this definition.
“Real Estate Assets” of a Person means, as of December 31, 1998, as amendedany date, the real estate assets of such Person and its Subsidiaries on June 30, 2000, March 5, 2001,such date, on a consolidated basis determined in accordance with GAAP.
“Reference Treasury Dealer” means any of the primary U.S. Government securities dealers in New York City.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and April 28, 2003 between CCAany redemption date (or, in the case of a satisfaction and PMI Mezzanine Fund, L.P.
business days prior to the sole purpose of, and which is limited by its charter or other organizational documents to conduct no business other than, issuing Qualified Trust Preferred Stock and lending the proceeds from such issuance to CCA.
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““Stated Maturity”Subsidiary means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a |
“Subsidiary Guarantee” means, individually, any Guarantee of payment of the Notes by a Guarantor pursuant to the terms of the Indenture, and, collectively, all such Guarantees. Each such Subsidiary Guarantee with respect to the Notes will be in the form proscribedprescribed by the Indenture.
““Unoccupied Facility”Total Assets” means, as of any prison facility owned bydate, the sum of (a) Undepreciated Real Estate Assets plus (b) the book value of all assets (excluding Real Estate Assets and intangibles).
“Undepreciated Real Estate Assets” means, as of any date, the cost (being the original cost to CCA or a Restricted Subsidiary which for the twelve month period ending on the dateits subsidiaries plus capital improvements) of measurement has had an average occupancy level of less than 15%.
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““Voting Stock”Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
General
The exchange notes, like the initial notes, will be represented by one or more global notes in registered form without interest coupons attached (the “Global Notes”). The Global Notes will be deposited with a custodian for The Depository Trust Company (“DTC”) and registered in the name of Cede & Co., as nominee of DTC.
Ownership of interests in the Global Notes (the “Book-Entry Interests”) will be limited to Maturity”persons that have accounts with DTC, or persons that hold interests through such participants.
Book-Entry Interests will be shown on, and transfers thereof will be done only through, records maintained in book-entry form by DTC and its participants. The laws of some jurisdictions, including certain states of the U.S., may require that certain purchasers of securities take physical delivery of such securities in definitive form. The foregoing limitations may impair your ability to own, transfer or pledge Book-Entry Interests. In addition, while the notes are in global form, holders of Book-Entry Interests are not considered the owners or “holders” of notes for any purpose.
So long as the notes are held in global form, DTC (or its nominees) will be considered the sole holders of Global Notes for all purposes under the indenture. In addition, participants in DTC must rely on the procedures of DTC and indirect participants must rely on the procedures of DTC and the participants through which they own Book-Entry Interests, to transfer their interests or to exercise any rights of holders under the indenture.
Redemption of the Global Notes
In the event any Global Note (or any portion thereof) is redeemed, DTC (or its nominees) will redeem an equal amount of the Book-Entry Interests in such Global Note from the amount received by it in respect of the redemption of such Global Note. The redemption price payable in connection with the redemption of such Book-Entry Interests will be equal to the amount received by DTC in connection with the redemption of such Global Note (or any portion thereof). CCA understands that, under existing practices of DTC, if fewer than all of the notes are to be redeemed at any time, DTC will credit its participants’ accounts with respect to such notes on a proportionate basis (with adjustments to prevent fractions) or by lot or on such other basis as it deems fair and appropriate; provided, however, that no Book-Entry Interest of $2,000 principal amount or less may be redeemed in part.
Payments on Global Notes
CCA will make payments of any amounts owing in respect of the Global Notes (including principal, premium, if any, and interest and all other amounts payable) to DTC or its nominee, which will distribute such payments to the applicable participants in accordance with its procedures. CCA will make payments of all such amounts without deduction or withholding for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature except as may be required by law. CCA expects that standing customer instructions and customary practices will govern payments by participants to owners of Book-Entry Interests held through such participants.
Under the terms of the indenture, CCA and the trustee will treat the registered holders of the Global Notes (e.g., DTC (or its nominees)) as the owners thereof for the purpose of receiving payments and for all other purposes. Consequently, none of CCA, the trustee or any of their respective agents has or will have any responsibility or liability for:
| — | any aspect of the records of DTC or any participant or indirect participant relating to payments made on account of a Book-Entry Interest or for maintaining, supervising or reviewing the records of DTC, or any participant or indirect participant relating to or payments made on account of a Book-Entry Interest; or |
| — | DTC or any participant or indirect participant. |
Payments by participants to owners of Book-Entry Interests held through participants are the responsibility of such participants.
Currency of Payment for the Global Notes means, when applied
Except as may otherwise be agreed between DTC and any holder, the principal of, premium, if any, and interest on, and all other amounts payable in respect of Global Notes will be paid to the applicable holders of interests in such notes (the “DTC Holders”) through DTC in U.S. dollars.
Payments will be subject in all cases to any Indebtednessfiscal or other laws and regulations (including any regulations of the applicable clearing system) applicable thereto. None of CCA, the trustee or any of their respective agents will be liable to any holder of a Global Note or any other person for any commissions, costs, losses or expenses in relation to or resulting from any currency conversion or rounding effected in connection with any such payment.
Action by Owners of Book-Entry Interests
DTC has advised CCA that it will take any action permitted to be taken by a holder of notes (including the presentation of notes for exchange as described below) only at the direction of one or more participants to whose account the Book-Entry Interests in the Global Notes are credited and only in respect of such portion of the aggregate principal amount of notes as to which such participant or participants has or have given such direction. DTC will not exercise any discretion in the granting of consents, waivers or the taking of any other action in respect of the Global Notes. However, if there is an event of default under the notes, DTC reserves the right to exchange the Global Notes for definitive registered notes in certificated form (the “Definitive Registered Notes”), and to distribute Definitive Registered Notes to its participants.
Transfers
Transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants, which rules and procedures may change from time to time.
Any Book-Entry Interest in one of the Global Notes that is transferred to a person who takes delivery in the form of a Book-Entry Interest in any other Global Note will, upon transfer, cease to be a Book-Entry Interest in the first-mentioned Global Note and become a Book-Entry Interest in such other Global Note, and accordingly will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to Book-Entry Interests in such other Global Note for as long as it remains such a Book-Entry Interest.
Definitive Registered Notes
Under the terms of the indenture, owners of the Book-Entry Interests will receive Definitive Registered Notes:
| — | if DTC notifies CCA that it is unwilling or unable to continue as depositary for the Global Note, or DTC ceases to be a clearing agency registered under the Exchange Act and, in either case, a qualified successor depositary is not appointed by CCA within 120 days; |
| — | if an event of default under the indenture occurred or is continuing and the owner of a Book-Entry Interest requests such exchange in writing delivered through DTC. |
In the case of the issuance of Definitive Registered Notes, the holder of a Definitive Registered Note may transfer such note by surrendering it to the registrar. In the event of a partial transfer or a partial redemption of a holding of Definitive Registered Notes represented by one Definitive Registered Note, a Definitive Registered Note shall be issued to the transferee in respect of the part transferred, and a new Definitive Registered Note in respect of the balance of the holding not transferred or redeemed shall be issued to the transferor or the holder, as applicable; provided that no Definitive Registered Note in a denomination less than $2,000 shall be issued. CCA will bear the cost of preparing, printing, packaging and delivering the Definitive Registered Notes.
CCA shall not be required to register the transfer or exchange of Definitive Registered Notes for a period of 15 calendar days preceding (a) the record date for any payment of interest on the notes, (b) any date fixed for redemption of the notes or (c) the date fixed for selection of the notes to be redeemed in part. Also, CCA is not required to register the transfer or exchange of any notes selected for redemption. In the event of the transfer of any Definitive Registered Note, the transfer agent may require a holder, among other things, to furnish appropriate endorsements and transfer documents as described in the indenture. CCA may require a holder to pay any taxes and fees required by law or permitted by the indenture.
If Definitive Registered Notes are issued and a holder thereof claims that such Definitive Registered Notes have been lost, destroyed or wrongfully taken or if such Definitive Registered Notes are mutilated and are surrendered to the registrar for the notes or at the office of a transfer agent for the notes, CCA shall issue and the trustee for the notes shall authenticate a replacement Definitive Registered Note if the trustee’s and CCA’s requirements are met. The trustee or CCA may require a holder requesting replacement of a Definitive Registered Note to furnish an indemnity bond sufficient in the judgment of both the trustee and CCA to protect CCA, the trustee or the paying agent for the notes appointed pursuant to the indenture from any loss which any of them may suffer if a Definitive Registered Note is replaced. CCA may charge such holder for its expenses in replacing a Definitive Registered Note.
In case any such mutilated, destroyed, lost or stolen Definitive Registered Note has become or is about to become due and payable, or is about to be redeemed or purchased by CCA pursuant to the provisions of the indenture, CCA in its discretion may, instead of issuing a new Definitive Registered Note, pay, redeem or purchase such Definitive Registered Note, as the case may be.
Definitive Registered Notes may be transferred and exchanged for Book-Entry Interests in a Global Note for the notes only in accordance with the indenture.
Information Concerning DTC
The following description of the operations and procedures of DTC is provided solely as a matter of convenience. These operations and procedures are solely within the control of DTC and are subject to changes by DTC. We take no responsibility for these operations and procedures and urge investors to contact DTC or its participants directly to discuss these matters.
CCA understands as follows with respect to DTC:
DTC is:
| — | a limited purpose trust company organized under the New York Banking Law; |
| — | a “banking organization” under New York Banking Law; |
| — | a member of the Federal Reserve System; |
| — | “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
| — | a “clearing agency” registered under Section 17A of the Exchange Act. |
DTC was created to hold securities for its participants and to facilitate the clearance and settlement of transactions among its participants. It does this through electronic book-entry changes in the accounts of securities participants, eliminating the need for physical movement of securities certificates. DTC participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC’s owners are the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the Financial Industry Regulatory Authority, Inc. and a number of its direct participants. Others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a direct participant, also have access to the DTC system and are known as indirect participants.
Because DTC can only act on behalf of participants, who in turn act on behalf of indirect participants and certain banks, the ability of an owner of a beneficial interest to pledge such interest to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interest, may be limited by the lack of a definitive certificate for that interest. The laws of some states require that certain persons take physical delivery of securities in definitive form. Consequently, the ability to transfer beneficial interests to such persons may be limited. In addition, owners of beneficial interests through the DTC system will receive distributions attributable to the Global Notes only through DTC participants.
Global Clearance and Settlement Under the Book-Entry System
The notes are expected to trade in DTC’s Same-Day Funds Settlement System and any permitted secondary market trading activity in the notes will, therefore, be required by DTC to be settled in immediately available funds. CCA expects that secondary trading in any certificated notes will also be settled in immediately available funds. Subject to compliance with the transfer restrictions applicable to the Global Notes, cross-market transfers of Book-Entry Interests in the notes between the participants in DTC will be done through DTC in accordance with DTC’s rules.
Although DTC is expected to follow the foregoing procedures in order to facilitate transfers of interests in the Global Notes among participants in DTC, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any date,time. None of CCA, the numbertrustee, the registrar, any transfer agent or any paying agent will have any responsibility for the performance by DTC or its participants or indirect participants, of years obtained by dividing:
75Secondary Market Trading
The following isexchange of initial notes for exchange notes should not be treated as a summary of the material U.S.taxable transaction for United States federal income tax considerations relating topurposes because the terms of the exchange notes should not be considered to differ materially in kind or in extent from the terms of the unregisteredinitial notes. Rather, the exchange notes received by ana holder of initial beneficial ownernotes should be treated as a continuation of such holder’s investment in the initial notes. As a result, a holder of the unregisteredinitial notes will not recognize gain or loss for United States federal income tax purposes in exchanging initial notes for exchange notes. The holding period of the exchange notes will be the same as the holding period for the initial notes, and the tax basis in the exchange notes will be the same as the adjusted tax basis in the initial notes determined immediately before the exchange. This summaryconclusion is based upon the provisions of the United States Internal Revenue Code of 1986, as amended, (the “Code”), existing and proposed Treasury Regulationsregulations promulgated thereunder, and judicial decisions and administrative interpretations thereunder,relevant authorities, as of the date hereof, all of which are subjecthereof. Those authorities may be changed, perhaps retroactively, so as to change or to differing interpretation, possibly with retroactive effect. Prospective investors should note that any such change or interpretation with retroactive effect could result in United States federal income tax consequences different from those discussed below. Thisabove.
TO ENSURE COMPLIANCE WITH U.S. TREASURY CIRCULAR 230, YOU ARE HEREBY NOTIFIED THAT THE DISCUSSION HEREIN IS FOR GENERAL INFORMATION ONLY AND MAY NOT ADDRESS ALL TAX CONSIDERATIONS THAT MAY BE SIGNIFICANT TO YOU. THE DISCUSSION WAS WRITTEN ON THE UNDERSTANDING THAT IT MAY BE USED IN PROMOTING, MARKETING, AND RECOMMENDING (WITHIN THE MEANING OF CIRCULAR 230) THE TRANSACTIONS DISCUSSED HEREIN. THE DISCUSSION WAS NOT WRITTEN, AND IS NOT INTENDED, TO BE USED BY ANY PERSON, AND CANNOT BE USED BY ANY PERSON, FOR PURPOSES OF AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH PROSPECTIVE INVESTOR IS ENCOURAGED TO CONSULT AN INDEPENDENT TAX ADVISOR AS TO THE TAX CONSEQUENCES OF PURCHASING, OWNING AND DISPOSING OF THE NOTES BASED ON THE INVESTOR’S PARTICULAR CIRCUMSTANCES.
If you are considering an exchange of your initial notes for the exchange notes, you are encouraged to consult your own tax advisor(s) concerning the tax consequences arising under state, local, or foreign laws of such an exchange.
The following is a summary does not purportof certain considerations associated with the notes and the exchange of initial notes for exchange notes by (i) “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) that are subject to address all tax considerationsERISA, (ii) “plans” which are subject to Section 4975 of the Code, (iii) entities deemed under ERISA to hold “plan assets” of any of the foregoing by reason of an employee benefit plan’s or plan’s investment in such entity or (iv) a governmental plan or church plan subject to applicable law that mayis similar in purpose or effect to the fiduciary responsibility or prohibited transaction provisions of ERISA or Section 4975 of the Code (“Similar Laws”) (each, a “Plan”).
General Fiduciary Matters
ERISA and the Code impose certain duties on persons who are fiduciaries of a Plan subject to Title I of ERISA or Section 4975 of the Code (an “ERISA Plan”), and prohibit certain transactions involving the assets of an ERISA Plan and its fiduciaries or other interested parties. Under ERISA and the Code, any person who exercises any discretionary authority or control over the administration of such an ERISA Plan or the management or disposition of the assets of such an ERISA Plan, or who renders investment advice for a fee or other compensation to such an ERISA Plan, is generally considered to be importanta fiduciary of the ERISA Plan.
In considering an investment in the notes (or the exchange of initial notes for exchange notes) of a portion of the assets of any Plan, a Plan fiduciary should determine whether the investment is in accordance with the documents and instruments governing the Plan and the applicable provisions of ERISA, the Code or any Similar Laws relating to a particular holder in lightfiduciary’s duties to the Plan including, without limitation, the prudence, diversification, delegation of control and prohibited transaction provisions of ERISA, the Code and any other applicable Similar Laws.
Prohibited Transaction Issues
Section 406 of ERISA and Section 4975 of the holder’s circumstancesCode prohibit ERISA Plans from engaging in specified transactions involving plan assets with persons or to certain categoriesentities who are “parties in interest,” within the meaning of investors (such as certain financial institutions, insurance companies, tax-exempt organizations, dealers in securitiesERISA, or foreign currency, controlled foreign corporations, passive foreign investment companies, foreign personal holding companies,“disqualified persons, who hold the unregistered notes through partnerships or other pass-through entities, U.S. expatriates, persons who hold the unregistered notes as part of a hedge, conversion, straddle or other risk reduction transaction or U.S. Holders (as defined below) that have a “functional currency” other than the U.S. dollar) that may be subject to special rules. This discussion also does not deal with purchasers of subsequent offerings under the same Indenture or subsequent holders of the unregistered notes. This summary assumes the holders hold the unregistered notes as “capital assets”” within the meaning of Section 1221 of the Code. This discussion does not address the tax considerations arising under the laws of any foreign, state or local jurisdiction or the applicability of U.S. federal gift or estate taxation.
Because of the United States federal income tax laws to their particular situations, as well asforegoing, the notes should not be acquired or held by any tax consequences arising under the federal estate or gift tax rules or under the lawsperson investing “plan assets” of any state, localPlan, unless such acquisition (including an exchange of initial notes for exchange notes) and holding will not constitute a non-exempt prohibited transaction under ERISA and the Code or foreign taxing jurisdictionsimilar violation of any applicable Similar Laws.
Representation
Accordingly, by acceptance of a note, or any interest therein, each purchaser and subsequent transferee will be deemed to have represented and warranted that either (i) no portion of the assets used by such purchaser or transferee to acquire or hold the notes constitutes assets of any Plan or (ii) the acquisition and holding of the notes by such purchaser or transferee will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a similar violation under any applicable tax treaty.
The foregoing discussion is general in nature and is not intended to be all-inclusive. Due to the term “U.S. Holder” means a beneficial ownercomplexity of an unregistered note who is:
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Each broker-dealer that receives exchange notes and the partners in that partnership should consult their tax advisors about the U.S. federal income tax consequences of participating in this exchange offer.
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We will not receive any proceeds from any sale of newexchange notes by broker-dealers. NewExchange notes received by broker-dealers in the exchange offer for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the counterover-the-counter market, in negotiated transactions, through the writing of options on the newexchange notes or a combination of thosesuch methods of resale, at market prices prevailing at the time of resale, at prices related to thesuch prevailing market prices or at negotiated prices. Such aAny such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such a broker-dealer and/or the purchasers of any of the newsuch exchange notes. Any broker-dealer that resells newexchange notes that were received by it in the exchange offer for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of thesuch exchange notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit onof any such a resale of theexchange notes and any commissions or concessions received by thoseany such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, meeting the requirements of the Securities Act, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 18090 days after the expiration of the exchange offer registration statement is declared effective, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests these documents in the letter of transmittal. We have agreed to pay all expenses incident toin connection with the exchange offer including the reasonable fees and expenses of counsel to the initial purchasers of the unregistered notes, other than commissions or concessions of any brokers or dealers,broker-dealers and will indemnify the holders of the notes including(including any broker-dealers,broker-dealers) against certain liabilities, including liabilities under the Securities Act.
The validity of the exchange notes and the guarantees thereof will be passed upon for us by Hodgson Russ LLP, New York, New York. Certain legal matters in connection with the exchange offerrelating to Tennessee and Delaware law will be passed upon for us by Bass, Berry & Sims PLC, Nashville, Tennessee. Bass, Berry & Sims PLCCertain legal matters relating to Maryland law will relybe passed upon for us by Miles & Stockbridge P.C., Baltimore, Maryland as to all matters of Maryland law.
The consolidated financial statements of Corrections Corporation of America and Subsidiariesits subsidiaries appearing in Corrections Corporation of America and Subsidiaries’America’s Annual Report (Form 10-K) for the year ended December 31, 2004,2012, and the effectiveness of Corrections Corporation of America and Subsidiaries management’s assessment of the effectiveness ofAmerica’s internal control over financial reporting as of December 31, 2004 included therein,2012, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements and management’s assessment are incorporated herein by reference in reliance upon such reports, given on the authority of such firm as experts in accounting and auditing.
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CORRECTIONS CORPORATION OF AMERICA
Offer to Exchange
4.125% Senior Notes due 2013
($325,000,000 aggregate principal amount)
which have been registered under the Securities Act of 1933
for
any and all outstanding unregistered 4.125% Senior Notes due 2020
($325,000,000 aggregate principal amount outstanding)
PROSPECTUS
, 2005
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification |
Registrants Incorporated or Organized in Maryland
Corrections Corporation of America
Corrections Corporation of America (“CCA”(the “Company”) is a corporation incorporated under the laws of the state of Maryland. The Maryland General Corporation Law (the “MGCL”) permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the “Company”)cause of action. The Company’s charter provides that, to the maximum extent that Maryland law in effect from time to time permits limitation of liability of directors or officers of corporations, no person who at any time was or is a director or officer of the Company shall be personally liable to the Company or its stockholders for money damages.
The MGCL requires a Maryland law,corporation (unless its charter provides otherwise, which the Company’s charter provision limitingdoes not) to indemnify a director or officer who has been successful, on the liabilitymerits or otherwise, in the defense of any proceeding to which he or she is made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may not limit their liability to the Company or its stockholders (i) to the extent it is proved that the person actually received an improper benefit or profit in money, property or services for the amount of the benefit of profit actually received, or (ii) to the extent that a judgment or other final adjudication adverse to the person is entered in a proceeding based on a finding that the person’s action, or failure to act, was the result of active and deliberate dishonesty.
The Company’s bylaws provide that, to the maximum extent permitted by Maryland law unless the corporation’s charter provides otherwise, officers shall be indemnifiedin effect from time to the extent directors are required or entitled to be indemnified.
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The bylaws of the Company may also provide to directors or officers additional indemnification or payment or reimbursement of expensesthat to the fullestmaximum extent permitted by Maryland law forthe Company shall indemnify any director or officer of the Company who serves at the express request of the Company as an officer of another corporation or other enterprise, subject to the limitations set forth in the bylaws of the Company as previously described.
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The Company has entered into indemnification agreements with its directors and certain of Maryland corporations.
The Company also maintains directors’ and officers’ liability insurance to insure against losses arising from claims made against its directors and certain of its officers, subject to the limitations and conditions set forth in such policies.
Tennessee RegistrantsCCA TRS, LLC
CCA TRS, LLC (“CCA TRS”) are corporations incorporatedis a limited liability company organized under the laws of the state of Tennessee.Maryland. The Tennessee Business CorporationMaryland Limited Liability Company Act (“TBCA”) provides, that, unless otherwise provided by law or unless otherwise agreed, a corporation maylimited liability company has the power to indemnify and hold harmless any of its directorsmember, agent, or employee from and officers against liability incurred in connection with a proceeding if: (a) such person acted in good faith; (b)any and all claims and demands, except in the case of conduct in an official capacity withaction or failure to act by the corporation, he reasonably believed such conduct wasmember, agent, or employee which constitutes willful misconduct or recklessness, and subject to the standards and restrictions, if any, set forth in the corporation’s best interests; (c) in all other cases, he reasonably believedlimited liability company’s articles of organization or operating agreement.
The limited liability company operating agreement of CCA TRS provides that his conduct was at least not opposed toCCA TRS shall indemnify and hold harmless the best interestsmember, any affiliate of the corporation;member, and (d) in connection with any criminal proceeding, such person had no reasonable cause to believe his conduct was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides that no indemnification may be made if theofficer, director, or officer was adjudged to be liable to the corporation. The TBCA also provides that in connection with any proceeding charging improper personal benefit to an officer or director, no indemnification may be made if such officer or director is adjudged liable on the basis that such personal benefit was improperly received. In cases where the director or officer is wholly successful, on the merits or otherwise, in the defense of any proceeding instigated because of his or her status as a director or officer of a corporation, the TBCA mandates that the corporation indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA provides that a court of competent jurisdiction, unless the corporation’s charter provides otherwise, upon application, may order that an officer or director be indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court determines that such individual is fairly and reasonably entitled to indemnification, notwithstanding the fact that (a) such officer or director was adjudged liable to the corporation in a proceeding by or in the right of the corporation; (b) such officer or director was adjudged liable on the basis that personal benefit was improperly received by him; or (c) such officer or director breached his duty of care to the corporation.
Registrants Organized in Tennessee Corporate Registrants for actions taken in such capacities, including liabilities under the Securities Act of 1933, as amended.
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The Company maintains policies insuring the officers and managers of the Tennessee Limited Liability Company Registrants for actions taken in such capacities, including liabilities under the Securities Act of 1933, as amended.
The Articlesarticles of Organizationorganization and/or the operating agreements of CCA Health Services, LLC, CCA of Tennessee LLC and the Operating Agreements of the Tennessee Limited Liability Company RegistrantsTransCor America, LLC generally provide that the Tennessee Limited Liability Company Registrantseach such entity shall indemnify its membermembers and all of its officers to the fullest extent ofpermitted by and in accordance with the Tennessee LLC Acts.
Registrant Organized in Delaware
CCA International, LLC (“CCA International”) is a limited liability company formed under the laws of the state of Delaware. The Delaware Limited Liability Act.
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limited liability company agreement for CCA International), a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
The bylaws of the Company also provide that to the maximum extent permitted by Maryland law the Company shall indemnify any director andor officer of the Company who serves at the express request of the Company as an officer or director of another corporation or other enterprise, subject to the limitations set forth in the bylaws of the Company as previously described.
Item 21. Exhibits and CCA Western Properties, Inc. (collectively, the “Delaware Corporate Registrants”) are corporations incorporated under the lawsFinancial Statement Schedules.
Exhibits
| (a) | The Exhibit Index, which follows the signature pages to this registration statement and is incorporated by reference herein, sets forth a list of exhibits to this report. |
| (b) | Financial Statement Schedules are omitted because they are either not required, are not applicable or because equivalent information has been incorporated herein by reference or included in the financial statements, the notes thereto or elsewhere herein. |
| (c) | There are no reports, opinions or appraisals included herein. |
Item 22. Undertakings.
Each of the state of Delaware. Section 145undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Delaware General Corporation Law,inter alia, empowers a Delaware corporation to indemnifySecurities Act of 1933;
(ii) To reflect in the prospectus any person who wasfacts or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action byevents arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the rightaggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the corporation) by reasonestimated maximum offering range may be reflected in the form of prospectus filed with the fact that such person is or wasCommission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a director, officer, employee or agent20 percent change in the maximum aggregate offering price set forth in the “Calculation of another corporation or other enterprise, against expenses (including attorneys’ fees), judgments, finesRegistration Fee” table in the effective registration statement; and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and,
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any criminal action or proceeding, had no reasonable causematerial change to believe his or her conduct was unlawful. Similar indemnity is authorizedsuch information in the registration statement.
(2) That, for such persons against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlementpurpose of
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(3) To remove from registration by means of a director (1) for a breach of the director’s duty of loyalty to the corporation or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law; (3) under Section 174 of the Delaware General Corporation Law (relating to the declaration of dividends and purchase or redemption of shares in violation of the Delaware General Corporation Law); or (4) for transactions from which the director derived an improper personal benefit.
(4) That, for the purpose of the partnership in its capacity as a partner thereof.
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offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the Company also providedate it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: each undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the maximum extent permittedpurchaser, if the securities are offered or sold to such purchaser by Maryland law the Company shall indemnifymeans of any director and officer of the Company who serves atfollowing communications, the express requestundersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the Company as an officer or director of another corporation or other enterprise, subjectundersigned registrant relating to the limitations set forthoffering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the bylaws ofoffering made by the Company as previously described.
| 3 | .1 | Article II of the Third Amended and Restated By-Laws (previously filed as Exhibit 3.3 to the Registration Statement on Form S-4/A (Commission File no. 333-96721), filed with the Commission on December 30, 2002 and incorporated herein by this reference) and Article V of the Amended and Restated Charter, as amended (previously filed as Exhibit 3.1 to the Company’s Form 10-K filed with the Commission on April 17, 2001 and incorporated herein by this reference) and Articles of Amendment (previously filed as Exhibit 3.1 to the Company’s Form 10-Q filed with the Commission on August 13, 2001 and incorporated herein by this reference). | ||
| 3 | .2 | Articles of Organization of CCA of Tennessee, LLC.* | ||
| 3 | .3 | Operating Agreement of CCA of Tennessee, LLC.* | ||
| 3 | .4 | Charter of Prison Realty Management, Inc. (incorporated by reference to Exhibit 3.6 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .5 | Bylaws of Prison Realty Management, Inc. (incorporated by reference to Exhibit 3.7 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .6 | Charter of Technical and Business Institute of America, Inc., as amended. (incorporated by reference to Exhibit 3.8 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .7 | Bylaws of Technical and Business Institute of America, Inc. (incorporated by reference to Exhibit 3.9 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .8 | Articles of Organization of TransCor America, LLC (incorporated by reference to Exhibit 3.10 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .9 | Operating Agreement of TransCor America, LLC (incorporated by reference to Exhibit 3.11 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .10 | Certificate of Incorporation of CCA International, Inc. (incorporated by reference to Exhibit 3.12 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .11 | Bylaws of CCA International, Inc. (incorporated by reference to Exhibit 3.13 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .12 | Articles of Organization of CCA Properties of America, LLC (incorporated by reference to Exhibit 3.14 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .13 | Operating Agreement of CCA Properties of America, LLC (incorporated by reference to Exhibit 3.15 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .14 | Articles of Organization of CCA Properties of Arizona, LLC (incorporated by reference to Exhibit 3.16 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). |
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| 3 | .15 | Operating Agreement of CCA Properties of Arizona, LLC (incorporated by reference to Exhibit 3.17 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .16 | Articles of Organization of CCA Properties of Tennessee, LLC (incorporated by reference to Exhibit 3.18 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .17 | Operating Agreement of CCA Properties of Tennessee, LLC (incorporated by reference to Exhibit 3.19 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .18 | Certificate of Limited Partnership of CCA Properties of Texas, L.P. (incorporated by reference to Exhibit 3.20 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .19 | Agreement of Limited Partnership of CCA Properties of Texas, L.P. (incorporated by reference to Exhibit 3.21 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .20 | Certificate of Incorporation of CCA Western Properties, Inc.* | ||
| 3 | .21 | Bylaws of CCA Western Properties, Inc.* | ||
| 4 | .1 | Indenture, dated as of March 23, 2005, by and between the Company, certain of its subsidiaries and U.S. Bank National Association, as Trustee (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (Commission File no. 001-16109), filed with the Commission on March 24, 2005 and incorporated herein by this reference). | ||
| 5 | .1 | Opinion of Bass, Berry & Sims PLC.* | ||
| 5 | .2 | Opinion of Miles & Stockbridge P.C.* | ||
| 8 | .1 | Tax Matters Opinion of Bass, Berry & Sims PLC.* | ||
| 10 | .1 | Registration Rights Agreement, dated as of March 23, 2005, by and among the Company, the Company’s subsidiary guarantors, and the Initial Purchasers (as defined therein) with respect to the 6.25% Notes due 2013 (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K (Commission File no. 001-16109), filed with the Commission on March 24, 2005 and incorporated herein by this reference). | ||
| 12 | .1 | Statement Regarding Computation of Ratios.* | ||
| 23 | .1 | Consent of Independent Registered Public Accounting Firm.* | ||
| 23 | .2 | Consent of Bass, Berry & Sims PLC (included in Exhibits 5.1 and 8.1). | ||
| 23 | .3 | Consent of Miles & Stockbridge P.C. (included in Exhibit 5.2). | ||
| 24 | .1 | Power of Attorney — Corrections Corporation of America and each of the Co-Registrants (contained on signature pages). | ||
| 25 | .1 | Statement of Eligibility of Trustee on Form T-1.* | ||
| 99 | .1 | Letter of Transmittal.* | ||
| 99 | .2 | Notice of Guaranteed Delivery.* | ||
| 99 | .3 | Letter to Registered Holders and Depository Trust Company Participants.* | ||
| 99 | .4 | Letter to Clients.* |
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(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants hereby undertake:
(8) To |
(9) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
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SIGNATURES
| CORRECTIONS CORPORATION OF AMERICA | ||||||||
/s/ DAMON T. HININGER | ||||||||
| Damon T. Hininger | ||||||||
| President and Chief Executive Officer | ||||||||
POWER OF ATTORNEY
KNOW ALL MENPERSONS BY THESE PRESENTS, that each personindividual whose signature appears below hereby constitutes and appoints John D. Ferguson and Irving E. Lingo, Jr. (with full power to each of them to act alone) asDamon T. Hininger and Todd J Mullenger, acting singly, his or her true and lawful attorney-in-factagent, proxy and agent,attorney-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to (i) act on, sign any or all amendments or post-effective amendments to this registration statement, including post-effective amendments filed pursuant to Rule 462(b) of the Securities Act of 1933 and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission to sign any and all applications, registration statements, notices or other document necessary or advisableamendments (including post-effective amendments) to comply with the applicable state securities laws, and to file the same,this Registration Statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, with(iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate state securities authorities,in connection therewith, granting unto saidsuch agents, proxies and attorneys-in-fact, and agents or anyeach of them, or their or his substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary or appropriate to be done, in and about the premises, as fully tofor all intents and purposes as he might or could do in person, therebyhereby approving, ratifying and confirming all that said attorney-in-factsuch agents, proxies and agentsattorneys-in-fact or any of them, or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statementRegistration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||||
| /s/ DAMON T. HININGER | President and Chief Executive Officer (Principal Executive Officer) and Director | June 3, 2013 | ||||
| Damon T. Hininger | ||||||
| /s/ TODD J MULLENGER | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| Todd J Mullenger | ||||||
| /s/ JOHN D. FERGUSON | Chairman of the Board of Directors and Director | |||||
| John D. Ferguson | ||||||
| /s/ WILLIAM F. ANDREWS | Director | |||||
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| William F. Andrews | ||||||
| /s/ DONNA M. ALVARADO | Director | |||||
| Donna M. Alvarado | ||||||
| /s/ CORRENTI | Director | |||||
| John D. Correnti | ||||||
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| Signature | Title | Date | ||||
| /s/ DENNIS W. DECONCINI | Director | |||||
| Dennis W. DeConcini | ||||||
| /s/ ROBERT J. DENNIS | Director | |||||
| Robert J. Dennis | ||||||
| /s/ JOHN R. HORNE | Director | |||||
| John R. Horne | ||||||
| /s/ C. MICHAEL JACOBI | Director | |||||
| C. Michael Jacobi | ||||||
| /s/ ANNE L. MARIUCCI | Director | June 3, 2013 | ||||
| Anne L. Mariucci | ||||||
| Director | June 3, 2013 | |||||
| Thurgood Marshall, Jr. | ||||||
| /s/ CHARLES L. OVERBY | Director | June 3, 2013 | ||||
| Charles L. Overby | ||||||
| /s/ JOHN R. PRANN, JR. | Director | June 3, 2013 | ||||
| John R. Prann, Jr. | ||||||
| /s/ RUSSELL | Director | |||||
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SIGNATURES
| CCA TRS, LLC | ||||||||
/s/ DAMON T. HININGER | ||||||||
| Damon T. Hininger | ||||||||
| President and Chief Executive Officer | ||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
Pursuant to the requirements of the Securities Act of 1933, this registration statementRegistration Statement has been signed by the following persons in the capacities and on the datedates indicated.
| Signature | Title | Date | ||||
/s/ DAMON T. HININGER | President and Chief Executive Officer (Principal | June 3, 2013 | ||||
| Damon T. Hininger | Executive Officer) and Director of Corrections Corporation of America | |||||
/s/ TODD J MULLENGER | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
| Todd J Mullenger | ||||||
/s/ | June 3, 2013 | |||||
| John D. Ferguson | ||||||
/s/ WILLIAM F. ANDREWS | Director of Corrections Corporation of America | June 3, 2013 | ||||
| William F. Andrews | ||||||
/s/ DONNA M. ALVARADO | Director of Corrections Corporation of America | June 3, 2013 | ||||
| Donna M. Alvarado | ||||||
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| Signature | Title | Date | ||
| /s/ JOHN D. CORRENTI | Director of Corrections Corporation of America | June 3, 2013 | ||
| John D. Correnti | ||||
| /s/ DENNIS W. DECONCINI | Director of Corrections Corporation of America | June 3, 2013 | ||
| Dennis W. DeConcini | ||||
| /s/ ROBERT J. DENNIS | Director of Corrections Corporation of America | June 3, 2013 | ||
| Robert J. Dennis | ||||
| /s/ JOHN R. HORNE | Director of Corrections Corporation of America | June 3, 2013 | ||
| John R. Horne | ||||
| /s/ C. MICHAEL JACOBI | Director of Corrections Corporation of America | June 3, 2013 | ||
| C. Michael Jacobi | ||||
| /s/ ANNE L. MARIUCCI | Director of Corrections Corporation of America | June 3, 2013 | ||
| Anne L. Mariucci | ||||
| /s/ THURGOOD MARSHALL, JR. | Director of Corrections Corporation of America | June 3, 2013 | ||
| Thurgood Marshall, Jr. | ||||
| /s/ CHARLES L. OVERBY | Director of Corrections Corporation of America | June 3, 2013 | ||
| Charles L. Overby | ||||
| /s/ JOHN R. PRANN, JR. | Director of Corrections Corporation of America | June 3, 2013 | ||
| John R. Prann, Jr. | ||||
| /s/ JOSEPH V. RUSSELL | Director of Corrections Corporation of America | June 3, 2013 | ||
| Joseph V. Russell | ||||
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Prison Realty Management, Inc.as amended, the registrant has duly caused this registration statementRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the cityCity of Nashville, stateState of Tennessee, on April 26, 2005.
| CCA OF TENNESSEE, LLC | ||||||||
/s/ DAMON T. HININGER | ||||||||
| Damon T. Hininger | ||||||||
| President and Chief Executive Officer | ||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
Pursuant to the requirements of the Securities Act of 1933, this registration statementRegistration Statement has been signed by the following persons in the capacities and on the datedates indicated.
| Signature | Title | Date | ||||
/s/ DAMON T. HININGER | President and Chief Executive Officer (Principal Executive Officer) | June 3, 2013 | ||||
| Damon T. Hininger | ||||||
/s/ TODD J MULLENGER | ||||||
| Chief Financial Officer | ||||||
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SIGNATURES
| CCA HEALTH SERVICES, LLC | ||||
| CCA INTERNATIONAL, LLC | ||||
| PRISON REALTY MANAGEMENT, LLC | ||||
| TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, LLC | ||||
| TRANSCOR AMERICA, LLC | ||||
By: CCA of sole member | ||||
| By: |
| |||
| Damon T. Hininger | |||
| President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
Pursuant to the requirements of the Securities Act of 1933, this registration statementRegistration Statement has been signed by the following persons in the capacities and on the datedates indicated.
| Signature | Title | Date | ||||
/s/ DAMON T. HININGER | ||||||
| President and Chief Executive Officer (Principal Executive Officer) | ||||||
| Damon T. Hininger | ||||||
/s/ | ||||||
| Executive Vice President and Chief Financial Officer | ||||||
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EXHIBIT INDEX
| 3.1 | Amended and Restated Charter of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (SEC File no. 001-16109) filed with the SEC on May 20, 2013) |
| 3.2 | Sixth Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (SEC File no. 001-16109) filed with the SEC on August 22, 2012) | |||
| 3.3 | Articles of Organization of CCA Health Services, LLC (incorporated by reference to Exhibit 3.3 to the Company’s Registration Statement on Form S-3ASR (Registration no. 333-159329) filed with the SEC on May 19, 2009) | |||||
| 3.4 | ||||||
| 3.5 | ||||||
| * | Certificate of Formation of CCA International, LLC | |||||
| 3.6 | ||||||
| 3.7 | ||||||
| Company’s Registration Statement on Form S-4 (Registration no. 333-124332) filed with the SEC on April 26, | ||||||
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| 3.8 | * | |||||
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| 3.9 | Articles of Organization of CCA TRS, LLC | |||
| 3.10 | * | Limited Liability Company Operating Agreement of CCA TRS, LLC | ||||
| 3.11 | ||||||
| 3.12 | ||||||
| * | Amended and Restated Operating Agreement of Prison Realty Management, LLC | |||||
| 3.13 | ||||||
| 3.14 | ||||||
| 3.15 | ||||||
| 3.16 | Operating Agreement of TransCor America, LLC (incorporated by reference to Exhibit 3.11 to Amendment No. 1 to the Company’s Registration Statement on Form S-4 (Registration no. 333-96721) filed with the SEC on September 4, 2002) | |||||
| 4.1 | Indenture (4.125% Senior Notes due 2020), dated as of April 4, 2013, among Corrections Corporation of America, the subsidiary guarantors named therein, and | |||||
| 4.2 | Registration Rights Agreement (4.125% Senior Notes due 2020), dated as of April 4, 2013, among Corrections Corporation of America, the subsidiary guarantors party thereto, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, for itself and as representative of the Initial Purchasers listed therein (incorporated by reference to Exhibit 4.6 of the Company’s Current Report on Form 8-K (SEC File no. 001-16109), filed with the SEC on April 8, 2013) | |||||
| 4.3 | Form of 4.125% Senior Note due 2020 (incorporated by reference to Exhibit A to Exhibit 4.1 hereof) | |||||
| 4.4 | Indenture (4.625% Senior Notes due 2023), dated as of April 4, 2013, among Corrections Corporation of America, the subsidiary guarantors named therein, and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K (SEC File no. 001-16109), filed with the SEC on April 8, 2013) | |||||
| 4.5 | Registration Rights Agreement (4.625% Senior Notes due 2023), dated as of April 4, 2013, among Corrections Corporation of America, the subsidiary guarantors party thereto, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, for itself and as representative of the Initial Purchasers listed therein (incorporated by reference to Exhibit 4.7 of the Company’s Current Report on Form 8-K (SEC File no. 001-16109), filed with the SEC on April 8, 2013) | |||||
| 4.6 | Form of 4.625% Senior Note due 2023 (incorporated by reference to Exhibit A to Exhibit 4.4 hereof) | |||||
| 5.1 | * | Opinion of Bass, Berry & Sims PLC | ||||
| 5.2 | * | Opinion of Hodgson Russ LLP with respect to New York law | ||||
| 5.3 | * | Opinion of Miles & Stockbridge P.C. with respect to Maryland law | ||||
| 12.1 | * | Statement of computation of ratios of earnings to fixed charges | ||||
| 21.1 | Subsidiaries of Corrections Corporation of America (incorporated by reference to Exhibit 21 of the | |||||
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| 23.1 | * | Consent of Bass, Berry & Sims PLC (included as part of its opinion filed as Exhibit 5.1 hereto) | ||||
II-16
| 23.2 | * | Consent of Hodgson Russ LLP (included as part of its opinion filed as Exhibit 5.2 hereto) | ||||
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| 23.3 | * | Consent of Miles & Stockbridge P.C. (included as part of its opinion filed as Exhibit 5.3 hereto) | ||||
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| 23.4 | Consent of Independent Registered Public Accounting Firm | |||
| 24.1 | * | Power of attorney (included on the signature pages of this registration statement) | ||||
II-19
| 3 | .1 | Article II of the Third Amended and Restated By-Laws (previously filed as Exhibit 3.3 to the Registration Statement on Form S-4/A (Commission File no. 333-96721), filed with the Commission on December 30, 2002 and incorporated herein by this reference) and Article V of the Amended and Restated Charter, as amended (previously filed as Exhibit 3.1 to the Company’s Form 10-K filed with the Commission on April 17, 2001 and incorporated herein by this reference) and Articles of Amendment (previously filed as Exhibit 3.1 to the Company’s Form 10-Q filed with the Commission on August 13, 2001 and incorporated herein by this reference). | ||
| 3 | .2 | Articles of Organization of CCA of Tennessee, LLC.* | ||
| 3 | .3 | Operating Agreement of CCA of Tennessee, LLC.* | ||
| 3 | .4 | Charter of Prison Realty Management, Inc. (incorporated by reference to Exhibit 3.6 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .5 | Bylaws of Prison Realty Management, Inc. (incorporated by reference to Exhibit 3.7 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .6 | Charter of Technical and Business Institute of America, Inc., as amended. (incorporated by reference to Exhibit 3.8 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .7 | Bylaws of Technical and Business Institute of America, Inc. (incorporated by reference to Exhibit 3.9 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .8 | Articles of Organization of TransCor America, LLC (incorporated by reference to Exhibit 3.10 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .9 | Operating Agreement of TransCor America, LLC (incorporated by reference to Exhibit 3.11 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .10 | Certificate of Incorporation of CCA International, Inc. (incorporated by reference to Exhibit 3.12 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .11 | Bylaws of CCA International, Inc. (incorporated by reference to Exhibit 3.13 to Amendment No. 2 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on September 25, 2002). | ||
| 3 | .12 | Articles of Organization of CCA Properties of America, LLC (incorporated by reference to Exhibit 3.14 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .13 | Operating Agreement of CCA Properties of America, LLC (incorporated by reference to Exhibit 3.15 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .14 | Articles of Organization of CCA Properties of Arizona, LLC (incorporated by reference to Exhibit 3.16 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .15 | Operating Agreement of CCA Properties of Arizona, LLC (incorporated by reference to Exhibit 3.17 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .16 | Articles of Organization of CCA Properties of Tennessee, LLC (incorporated by reference to Exhibit 3.18 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .17 | Operating Agreement of CCA Properties of Tennessee, LLC (incorporated by reference to Exhibit 3.19 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). |
| 3 | .18 | Certificate of Limited Partnership of CCA Properties of Texas, L.P. (incorporated by reference to Exhibit 3.20 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .19 | Agreement of Limited Partnership of CCA Properties of Texas, L.P. (incorporated by reference to Exhibit 3.21 to Amendment No. 3 to the Company’s Registration Statement on Form S-4 (Registration 333-96721) filed with the Commission on December 30, 2002). | ||
| 3 | .20 | Certificate of Incorporation of CCA Western Properties, Inc.* | ||
| 3 | .21 | Bylaws of CCA Western Properties, Inc.* | ||
| 4 | .1 | Indenture, dated as of March 23, 2005, by and between the Company, certain of its subsidiaries and U.S. Bank National Association, as Trustee (previously filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K (Commission File no. 001-16109), filed with the Commission on March 24, 2005 and incorporated herein by this reference). | ||
| 5 | .1 | Opinion of Bass, Berry & Sims PLC.* | ||
| 5 | .2 | Opinion of Miles & Stockbridge P.C.* | ||
| 8 | .1 | Tax Matters Opinion of Bass, Berry & Sims PLC.* | ||
| 10 | .1 | Registration Rights Agreement, dated as of March 23, 2005, by and among the Company, the Company’s subsidiary guarantors, and the Initial Purchasers (as defined therein) with respect to the 6.25% Notes due 2013 (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K (Commission File no. 001-16109), filed with the Commission on March 24, 2005 and incorporated herein by this reference). | ||
| 12 | .1 | Statement Regarding Computation of Ratios.* | ||
| 23 | .1 | Consent of Independent Registered Public Accounting Firm.* | ||
| 23 | .2 | Consent of Bass, Berry & Sims PLC (included in Exhibits 5.1 and 8.1). | ||
| 23 | .3 | Consent of Miles & Stockbridge P.C. (included in Exhibit 5.2). | ||
| 24 | .1 | Power of Attorney — Corrections Corporation of America and each of the Co-Registrants (contained on signature pages). | ||
| 25 | .1 | Statement of Eligibility of Trustee on Form T-1.* | ||
| 99 | .1 | Letter of Transmittal.* | ||
| 99 | .2 | Notice of Guaranteed Delivery.* | ||
| 99 | .3 | Letter to Registered Holders and Depository Trust Company Participants.* | ||
| 99 | .4 | Letter to Clients.* |
| * | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of U.S. Bank National Association with respect to the Indenture governing the 4.125% Senior Notes due 2020 | |||
| 99.1 | * | Form of Letter of Transmittal | ||
| 99.2 | * | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees | ||
| 99.3 | * | Form of Broker’s Letter to Clients | ||
| 99.4 | * | Form of Notice of Guaranteed Delivery | ||
| * | Filed herewith |