EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 8, 2003
BY AND AMONG
CORRECTIONS CORPORATION OF AMERICA
AS ISSUER
CCA INTERNATIONAL, INC.
CCA OF TENNESSEE, INC.
PRISON REALTY MANAGEMENT, INC.
RONALD LEE SUTTLES TRI-COUNTY EXTRADITION, INC.
TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, INC.
CCA PROPERTIES OF AMERICA, LLC
CCA PROPERTIES OF ARIZONA, LLC
CCA PROPERTIES OF TENNESSEE, LLC
TRANSCOR AMERICA, LLC
CCA PROPERTIES OF TEXAS, L.P.
AS THE GUARANTORS
AND
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORPORATION
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC BB&T
CAPITAL MARKETS, A DIVISION OF SCOTT & STRINGFELLOW,
INC.
FIRST ANALYSIS SECURITIES CORPORATION
JEFFERIES & COMPANY, INC.
SouthTrust Securities, Inc.
as the Initial Purchasers
This Registration Rights Agreement (this "AGREEMENT") is made
and entered into as of August 8, 2003, by and among Corrections Corporation of
America, a Maryland corporation (the "COMPANY"), the subsidiaries listed on
Schedule A hereto (the "GUARANTORS"), and Lehman Brothers Inc., SG Cowen
Securities Corporation, UBS Securities LLC, Wachovia Capital Markets, LLC, BB&T
Capital Markets, a division of Scott & Stringfellow, Inc., First Analysis
Securities Corporation, Jefferies & Company, Inc., and SouthTrust Securities,
Inc. (each an "INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"),
each of whom has agreed to purchase the Company's 7 1/2% Senior Notes due 2011
(the "NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is entered into pursuant to the Purchase
Agreement, dated July 29, 2003 (the "PURCHASE AGREEMENT"), by and among the
Company, the Guarantors and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Notes, the Company and the Guarantors have
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers set forth in Section 7 of the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Indenture, dated May 7, 2003, as amended by the
Supplemental Indenture, dated May 7, 2003, the First Supplement, dated August 8,
2003 and the Second Supplement, dated August 8, 2003, among the Company, the
Guarantors and U.S. Bank National Association, as Trustee, relating to the Notes
and the Exchange Notes, and as further modified and/or supplemented from time to
time (the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of each of the following: (a)
the filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer, (b)
the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the minimum period required pursuant to Section 3(b) hereof and (c) the delivery
by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Notes validly
tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 7 1/2% Senior Notes due 2011,
registered under the Act, to be issued pursuant to the Indenture: (i) in the
Exchange Offer or (ii) as contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by such Holders in connection with such exchange and
issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the related Prospectus which
forms a part thereof.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, and in compliance
with Regulation S under the Act.
HOLDER: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(e) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Guarantors relating to (a) an offering of Exchange Notes and
related Subsidiary Guarantees pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
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SHELF EFFECTIVENESS DEADLINE: As defined in Section 4(a)
hereof.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SUSPENSION NOTICE: As defined in Section 6(e) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: (i) Each Note and the related
Subsidiary Guarantees, until the earliest to occur of (a) the date on which such
Note is exchanged in the Exchange Offer for an Exchange Note which is entitled
to be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such Note has
been disposed of in accordance with a Shelf Registration Statement, (c) the date
on which such Note is distributed to the public pursuant to Rule 144 under the
Act or (d) the date on which such Note is sold in any other manner that permits
the Company to remove the legend describing the transfer restrictions and (ii)
each Exchange Note and the related Subsidiary Guarantees acquired by a
Broker-Dealer in exchange for a Note acquired for its own account as a result of
market making activities or other trading activities until the date on which
such Exchange Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "HOLDER") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law or Commission policy (after the procedures set forth in
Section 6(a)(i) below have been complied with), the Company and the Guarantors
shall (i) cause the Exchange Offer Registration Statement to be filed with the
Commission on or before such date as would be sufficient to Consummate the
Exchange Offer by August 7, 2004 (such date being the "EXCHANGE OFFER FILING
DEADLINE"), (ii) use their commercially reasonable efforts to have such Exchange
Offer Registration Statement declared effective by the Commission at the
earliest possible time, but in no event later than such date as would be
sufficient to Consummate the Exchange Offer by August 7, 2004 (such date being
the "EXCHANGE OFFER EFFECTIVENESS DEADLINE"), (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) unless the Exchange Offer would not be permitted by applicable law or
Commission policy, promptly after the effectiveness of such Exchange Offer
Registration Statement, commence and use their commercially reasonable efforts
to Consummate the Exchange Offer in the time set forth in
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Section 3(b). The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Exchange Notes to be offered in exchange for the Notes that
are Transfer Restricted Securities and (ii) resales of Exchange Notes by
Broker-Dealers that tendered into the Exchange Offer Notes that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Notes acquired directly from
the Company or any of its Affiliates) as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their
respective commercially reasonable efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 business
days. The Company and the Guarantors shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Exchange Notes shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their respective
commercially reasonable efforts to cause the Exchange Offer to be Consummated on
the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than August 7, 2004 (the "EXCHANGE
OFFER CONSUMMATION DEADLINE").
(c) The Company shall include a "Plan of Distribution"
section in the Prospectus contained in the Exchange Offer Registration Statement
and indicate therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer as a result
of market-making activities or other trading activities (other than Notes
acquired directly from the Company or any Affiliate of the Company) may exchange
such Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan
of Distribution" section shall also contain all other information with respect
to such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
Because such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer,
the Company and the Guarantors shall permit the use of the Prospectus contained
in the Exchange Offer Registration Statement by such Broker-Dealer to satisfy
such prospectus delivery requirement. To the extent necessary to ensure that the
prospectus contained in the Exchange Offer Registration Statement is available
for sales of Exchange Notes by Broker-Dealers, the Company and the Guarantors
agree to use their respective commercially reasonable efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by and subject to the provisions of Section 6(a) and (c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the date on which the Exchange Offer is
Consummated or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have
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been sold pursuant thereto. The Company shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request,
and in no event later than two days after such request, at any time during such
period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law or Commission policy (after the Company and the
Guarantors have complied with the procedures set forth in Section 6(a)(i) below)
or (ii) if any Holder of Transfer Restricted Securities shall notify the Company
prior to the 20th day following the Consummation of the Exchange Offer that (A)
such Holder was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the Exchange Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Notes acquired directly from the Company or any of its
Affiliates, then the Company and the Guarantors shall:
(x) use their commercially reasonable efforts to cause to
be filed, on or prior to 30 days after the earlier of (i) the date on
which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii)
the date on which the Company receives the notice specified in clause
(a)(ii) above (such earlier date, the "SHELF FILING DEADLINE,") a shelf
registration statement pursuant to Rule 415 under the Act (which may be
an amendment to the Exchange Offer Registration Statement (the "SHELF
REGISTRATION STATEMENT")), relating to all Transfer Restricted
Securities; and
(y) use their commercially reasonable efforts to cause
such Shelf Registration Statement to become effective on or prior to 90
days after the Shelf Filing Deadline (such 90th day, the "SHELF
EFFECTIVENESS DEADLINE").
If, after the Company has and the Guarantors have filed an
Exchange Offer Registration Statement that satisfies the requirements of Section
3(a) above, the Company and the Guarantors are required to file and make
effective a Shelf Registration Statement solely because the Exchange Offer is
not permitted under applicable federal law or Commission policy (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company and the Guarantors shall remain obligated to meet the
Shelf Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their commercially reasonable
efforts to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented and amended as required by and subject to
the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resale of Notes by the Holders
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of Transfer Restricted Securities entitled to the benefits of this Section 4(a)
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period of at least two years (as extended pursuant to Section
6(c)(i)) following the Closing Date, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Act, or any successor rule
thereof); provided, however, that the Company and the Guarantors shall not be
obligated to keep the Shelf Registration Statement continuously effective to the
extent set forth above, or to keep the prospectus included therein usable for
offers and sales of Transfer Restricted Securities, if (i) the Company and the
Guarantors determine, in their reasonable judgment, after seeking the advice of
counsel, that the continued effectiveness of the Shelf Registration Statement or
usability of any prospectus included therein would (x) require the disclosure of
material information, which the Company has a bona fide business reason for
preserving as confidential, or (y) interfere with any financing, acquisition,
corporate reorganization or other material transaction or development involving
the Company or any of the Guarantors or the contemplated timing thereof, and
(ii) the Company promptly thereafter complies with the requirements of Section
6(e) hereof, if applicable. The number of days of any actual suspension period
shall be added on to the end of the two year period specified above. Any such
period during which the Company is excused from keeping the Shelf Registration
Statement effective in the prospectus included therein usable for offers and
sales of Exchange Notes is referred to herein as a "suspension period". A
suspension period shall commence on and include the date that the Company gives
notice that the Shelf Registration Statement is no longer effective or the
prospectus included therein is no longer usable for offers and sales of Exchange
Notes and shall end on the earlier to occur of (1) the date on which each seller
of Exchange Notes covered by the Shelf Registration Statement either receives
the copies of the supplemented or amended prospectus contemplated by Section
6(e) hereof or is advised in writing by the Company that the use of the
prospectus may be resumed, and (2) the occurrence of a Suspension Period Limit
(as defined below). There shall be no more than two (2) Suspension Periods in
any twelve month period, the aggregate number of days of such Suspension Periods
shall not exceed 90 days in such twelve month period and no Suspension Period
shall exceed 60 days. The Company shall be deemed not to have used their
reasonable efforts to keep the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action (other than an action
permitted by this Section 4(a)) that would result in Holders of Transfer
Restricted Securities/Exchange Notes covered thereby not being able to offer and
sell such securities during that period, unless such action is required by
applicable law.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
any Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 20 days after receipt of
a request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act or such other information as the Company may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. By its acceptance of Transfer Restricted Securities, each Holder
agrees to promptly
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furnish all additional information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) the Shelf Registration Statement required by this
Agreement is not filed with the Commission on or prior to the Shelf Filing
Deadline, (ii) the Shelf Registration Statement has not been declared effective
by the Commission on or prior to the Shelf Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Exchange Offer
Consummation Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose, except as provided
herein, without being succeeded within two business days by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective within five business days of filing such
post-effective amendment to such Registration Statement (each such event
referred to in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then the
Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Transfer Restricted Securities affected thereby liquidated damages in
an amount equal to $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of $.50 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Company and the
Guarantors shall in no event be required to pay liquidated damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Shelf Registration Statement,
in the case of (i) above, (2) upon the effectiveness of the Shelf Registration
Statement, in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes. Notwithstanding the fact that any securities for which
liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Company and the Guarantors to pay liquidated damages with
respect to securities shall survive until such time as such obligations with
respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Guarantors shall (x) comply with
all applicable provisions of
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Section 6(c) below, (y) use their respective commercially reasonable efforts to
effect such exchange and to permit the resale of Exchange Notes by any
Broker-Dealer that tendered Notes in the Exchange Offer that such Broker-Dealer
acquired for its own account as a result of its market making activities or
other trading activities (other than Notes acquired directly from the Company or
any of its Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof, there has been
announced a change in applicable law or Commission policy with respect
to exchange offers such as the Exchange Offer that in the reasonable
opinion of counsel to the Company raises a question as to whether the
Exchange Offer is permitted by applicable federal law, the Company and
the Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company and the Guarantors hereby agree to pursue the
issuance of such a decision to the Commission staff level, but shall
not be required to take commercially unreasonable action to effect a
change of Commission policy. In connection with the foregoing, the
Company and the Guarantors hereby agree to take all such other
reasonable actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission staff, (B) delivering to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is
a Broker Dealer) shall furnish, upon the request of the Company, prior
to the Consummation of the Exchange Offer, a written representation to
the Company and the Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an Affiliate of the Company, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer
and (C) it is acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations for
the Exchange Offer. Each Holder using the Exchange Offer to participate
in a distribution of the Exchange Notes will be required to acknowledge
and agree that, if the resales are of Exchange Notes obtained by such
Holder in exchange for Notes acquired directly from the Company or an
Affiliate thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc. (available June
5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements
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of the Act in connection with a secondary resale transaction and that
such a secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall provide a
supplemental letter to the Commission (A) stating that the Company and
the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has entered
into any arrangement or understanding with any person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the
best of the Company's and each Guarantor's information and belief, each
Holder participating in the Exchange Offer is acquiring the Exchange
Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
Exchange Notes received in the Exchange Offer and (C) any other
undertaking or representation required by the Commission as set forth
in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) and
6(d) below and use their respective commercially reasonable efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods
of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the
Company and the Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate
form under the Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method
or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof; and
(ii) issue, upon the request of any Holder or purchaser of
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount equal to
the aggregate principal amount of Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for cancellation;
the Company and the Guarantors shall register Exchange Notes and the
related Subsidiary Guarantees on the Shelf Registration Statement for
this purpose and issue the Exchange Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) General Provisions. In connection with any
Registration Statement and any related Prospectus required by this Agreement,
the Company and the Guarantors shall:
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(i) use their respective commercially reasonable efforts
to keep such Registration Statement continuously effective and provide
all requisite financial statements for the period specified in Section
3 or 4 of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain an untrue statement of
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement curing such
defect, and, if Commission review is required, use their respective
commercially reasonable efforts to cause such amendment to be declared
effective as soon as practicable; if at any time the Commission shall
issue any stop order suspending the effectiveness of any Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company and the Guarantors
shall use their respective commercially reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the applicable Registration Statement
as may be necessary to keep such Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as the case
may be, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, use commercially reasonable efforts to cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and to use commercially reasonable
efforts to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two business days prior to such sale of Transfer Restricted
Securities;
(iv) use their respective commercially reasonable efforts
to cause the disposition of the Transfer Restricted Securities covered
by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of
such Transfer Restricted Securities; provided, however, that neither
the Company nor any Guarantor shall be required to register or qualify
as a foreign corporation where it is not
10
now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(v) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with The
Depository Trust Company;
(vi) otherwise use their respective commercially
reasonable efforts to comply with all applicable rules and regulations
of the Commission, and make generally available to its security holders
as soon as practical with regard to any applicable Registration
Statement, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of
the Registration Statement (as such term is defined in paragraph (c) of
Rule 158 under the Act); and
(vii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA; and execute and use their respective
commercially reasonable efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
(d) Additional Provisions Applicable to Shelf
Registration Statements and Certain Exchange Offer Prospectuses. In connection
with each Shelf Registration Statement, and each Exchange Offer Registration
Statement if and to the extent that an Initial Purchaser has notified the
Company that it is a holder of Exchange Notes that are Transfer Restricted
Securities (for so long as such Exchange Notes are Transfer Restricted
Securities or for the period provided in Section 3, whichever is shorter), the
Company and the Guarantors shall:
(i) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by
11
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or that requires the making of any additions to
or changes in the Prospectus in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) if any fact or event contemplated by Section
6(d)(i)(D) above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(iii) furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein (except
the Prospectus included in the Exchange Offer Registration Statement at
the time it was declared effective) or any amendments or supplements to
any such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment
of such Holders in connection with such sale, if any, for a period of
at least five business days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders shall
reasonably object within five business days after the receipt thereof.
With respect this Section 6(d)(iii), a Holder shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of the
Act, except, in each case, where such untrue statement or omission of a
material fact is made in any proposed Registration Statement,
amendment, Prospectus or supplement, as applicable, in reliance upon
and in conformity with written information furnished to the Company or
any Guarantor by or on behalf of such Holder specifically for inclusion
therein and the Company and each Guarantor have otherwise complied with
this Section 6(d)(iii) with respect to such proposed Registration
Statement, amendment, Prospectus or supplement, as applicable;
(iv) promptly prior to the filing of any document that is
to be incorporated by reference into an Exchange Offer Registration
Statement or Prospectus contained therein, provide copies of such
document to each Holder that is an Initial Purchaser in connection with
such exchange or sale, if any, make the Company's and the Guarantors'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders that are Initial
Purchasers may reasonably request;
12
(v) subject to an express agreement of confidentiality,
make available, at reasonable times, for inspection by each Holder and
any attorney or accountant retained by such Holders, all financial and
other records, pertinent corporate documents of the Company and the
Guarantors and cause the Company's and the Guarantors' officers,
directors and employees to supply all information reasonably requested
by any such Holder, attorney or accountant in connection with such
Registration Statement or any pre-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vi) if requested by any Holders in connection with such
exchange or sale, promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including the "Plan of Distribution" of the
Transfer Restricted Securities; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
(vii) furnish to each Holder in connection with such
exchange or sale without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(viii) deliver to each Holder without charge, as many copies
of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company and the Guarantors hereby consent to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by
each selling Holder in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(ix) upon the request of any Holder, enter into such
agreements (including underwriting agreements in a form customary for
similar transactions) and make such representations and warranties and
take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any applicable Registration Statement
contemplated by this Agreement as may be reasonably requested by any
Holder in connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, the Company and the
Guarantors shall:
(A) upon request of any Holder, furnish (or in
the case of paragraphs (2) and (3), use their respective
commercially reasonable efforts to cause to be furnished) to
each Holder, upon Consummation of the Exchange Offer or upon
the effectiveness of the Shelf Registration Statement, as the
case may be:
(1) a certificate, dated such date,
signed on behalf of the Company and each Guarantor by
(x) the President or any Vice President and (y) a
principal financial or accounting officer of the
Company and
13
such Guarantor, confirming, as of the date thereof,
the matters set forth in Sections 2(h), 2(i) and 7(j)
of the Purchase Agreement and such other similar
matters as such Holders may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company and the
Guarantors covering matters similar to those set
forth in paragraph (c) of Section 7 of the Purchase
Agreement and such other matters as such Holder may
request as are commercially reasonable, and in any
event including a statement to the effect that such
counsel has participated in conferences with officers
and other representatives of the Company and the
Guarantors and has considered the matters required to
be stated therein and the statements contained
therein, although such counsel has not independently
verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that,
on the basis of the foregoing (relying as to
materiality upon facts provided to such counsel by
officers and other representatives of the Company and
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements, therein in light of the circumstances
under which they were made, not misleading, or that
the Prospectus contained in such Registration
Statement as of its date and, in the case of the
opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial and accounting data included in any
Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated
the date of Consummation of the Exchange Offer, or as
of the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the
Company's independent accountants at such time, in
the customary form and covering matters of the type
customarily covered in comfort letters to
underwriters in connection with underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7(e) of
the Purchase Agreement (provided, that if such a
letter is unable to be
14
delivered by Ernst & Young, LLP or another auditing
firm of national reputation, such a failure shall not
result in a violation of this Agreement if financial
due diligence with respect to the Company is
completed in the reasonable satisfaction of such
Holder); and
(B) deliver such other documents and
certificates as may be reasonably requested by the selling
Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained
in any agreement entered into by the Company and the
Guarantors pursuant to this clause (ix);
(x) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders that are Initial
Purchasers and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders may reasonably request and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither the
Company nor any Guarantor shall be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject; and
(xi) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(e) Restrictions on Holders. Each Holder's acquisition of
a Transfer Restricted Security constitutes such Holder's agreement that, upon
receipt of the notice referred to in Section 6(d)(i)(C) or any notice from the
Company of the existence of any fact of the kind described in Section 6(d)(i)(D)
hereof (in each case, a "SUSPENSION NOTICE"), such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until (i) such Holder has received copies of
the supplemented or amended Prospectus contemplated by Section 6(d)(ii) hereof,
or (ii) such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "RECOMMENCEMENT DATE"). Each Holder receiving a Suspension Notice
shall be required to either (i) destroy any Offering Memoranda, other than
permanent file copies, then in such Holder's possession which have been replaced
by the Company with more recently dated Offering Memoranda or (ii) deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Holder's possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the
Recommencement Date.
15
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will be borne by
the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including certificates
for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses, messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company, the Guarantors and as set forth in
subparagraph (b) below, one counsel for the Holders of Transfer Restricted
Securities which shall be Latham & Watkins LLP or such other counsel as may be
selected by a majority of such Holders; (v) all application and filing fees in
connection with listing the Exchange Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company and the Guarantors (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement
required by this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the Company and
the Guarantors will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities who are tendering Notes into in the Exchange Offer and/or
selling or reselling Notes or Exchange Notes pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Latham & Watkins LLP
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder, its directors, officers
and each Person, if any, who controls such Holder (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities, judgments, (including without limitation,
any reasonable legal or other expenses incurred in connection with investigating
or defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Exchange Notes or registered Notes, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, provided, however,
that the Company
16
and the Guarantors shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any such Registration Statement or any Prospectus forming part thereof
or in any such amendment or supplement in reliance upon and in conformity with
written information relating to any of the Holders furnished in writing to the
Company or any Guarantor by or on behalf of any Holder specifically for
inclusion therein.
(b) By its acquisition of Transfer Restricted Securities,
each Holder of Transfer Restricted Securities agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Guarantors, and their
respective directors and officers, and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company or the Guarantors to the same extent as the foregoing indemnity from the
Company and the Guarantors set forth in section (a) above, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder expressly for use in any Registration Statement. In no
event shall any Holder, its directors, officers or any Person who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages that such Holder, its directors, officers or any Person
who controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all
17
indemnified parties and all such fees and expenses shall be reimbursed as they
are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Company and the Guarantors, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if the
settlement is entered into more than 30 business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for
in this Section 8 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors on the one hand, and the Holders, on the other hand, from their
initial sale of Transfer Restricted Securities (or in the case of Exchange Notes
that are Transfer Restricted Securities, the sale of the Notes for which such
Exchange Notes were exchanged) or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Company and the Guarantors, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or such Guarantor, on the one hand, or by the Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
judgments referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Guarantors and, by its acquisition of
Transfer Restricted Securities, each Holder agree that it would not be just and
equitable if contribution pursuant to
18
this Section 8(d) were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Holder, its directors, its officers or any
Person, if any, who controls such Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of Transfer Restricted Securities pursuant
to a Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor (i) is not subject to Section 13
or 15(d) of the Exchange Act, to make available, upon request of any Holder, to
such Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to
Section 13 or 15(d) of the Exchange Act, to use its commercially reasonable
efforts to make all filings required thereby in a timely manner in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) No Inconsistent Agreements. The Company and the
Guarantors will not, on or after the date of this Agreement, enter into any
agreement with respect to its their respective securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof The Company and the Guarantors have not previously
entered into any agreement granting any registration rights with respect to
their respective securities to any Person that would require such securities to
be included in any Registration Statement filed hereunder. The rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's and the Guarantors'
securities under any agreement in effect on the date hereof.
(b) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the
19
provisions hereof may not be given unless (i) in the case of Section 5 hereof
and this Section 10(c)(i), the Company has obtained the written consent of
Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, the Company has obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities (excluding Transfer Restricted Securities held by the Company or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose Transfer Restricted Securities are being tendered pursuant to the Exchange
Offer, and that does not affect directly or indirectly the rights of other
Holders whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
(c) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights hereunder.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or any of the Guarantors:
Corrections Corporation of America
10 Burton Hills Boulevard
Nashville, Tennessee 37215
Attention: Irving E. Lingo, Jr.
Facsimile: (615) 263-3170
with a copy to
Bass, Berry & Sims PLC
315 Deaderick Street, Suite 2700
Nashville, Tennessee 37238
Attention: F. Mitchell Walker/ Howard H. Lamar III
Facsimile: (615) 742-2775/ (615) 742-2709
All such notices and communications shall be deemed to have
been duly given at the time delivered by hand; when receipt acknowledged, if
sent by mail; when receipt acknowledged, if telecopied; and on the next business
day, if timely delivered to an air courier guaranteeing overnight delivery.
20
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
CORRECTIONS CORPORATION OF AMERICA
By /s/ John D. Ferguson
--------------------------------------
Name: John D. Ferguson
Title: Chief Executive Officer
CCA OF TENNESSEE, INC.
PRISON REALTY MANAGEMENT, INC.
TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, INC.
CCA INTERNATIONAL, INC.
CCA PROPERTIES OF AMERICA, LLC
CCA PROPERTIES OF ARIZONA, LLC
CCA PROPERTIES OF TENNESSEE, LLC
By /s/ John D. Ferguson
-------------------------------------------------
Name: John D. Ferguson
Title: Chief Executive Officer
CCA PROPERTIES OF TEXAS, L.P.
By /s/ John D. Ferguson
-------------------------------------------------
Name: John D. Ferguson
Title: Chief Executive Officer, CCA Properties of
America, LLC, as General Partner
TRANSCOR AMERICA LLC
By /s/ Todd J. Mullenger
-------------------------------------------------
Name: Todd J. Mullenger
Title: Vice President, Treasurer
RONALD LEE SUTTLES TRI-COUNTY EXTRADITION, INC.
By /s/ Todd J. Mullenger
-------------------------------------------------
Name: Todd J. Mullenger
Title: Vice President, Treasurer
Accepted:
LEHMAN BROTHERS INC.
SG COWEN SECURITIES CORPORATION
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
BB&T CAPITAL MARKETS, a division of Scott & Stringfellow, Inc.
FIRST ANALYSIS SECURITIES CORPORATION
JEFFERIES & COMPANY, INC.
SOUTHTRUST SECURITIES, INC.
By LEHMAN BROTHERS INC., as Authorized Representative
By: /s/ Stephen Sleigh
--------------------------------------
Name: Stephen Sleigh
Title: Managing Director
SCHEDULE A
GUARANTORS
CCA International, Inc.
CCA of Tennessee, Inc.
Prison Realty Management, Inc.
Ronald Lee Suttles Tri-County Extradition, Inc.
Technical and Business Institute of America, Inc.
CCA Properties of America, LLC
CCA Properties of Arizona, LLC
CCA Properties of Tennessee, LLC
TransCor America, LLC
CCA Properties of Texas, L.P.