1
EXHIBIT 10.160
UNCONDITIONAL GUARANTY AGREEMENT
THIS UNCONDITIONAL GUARANTY AGREEMENT (this "Guaranty"), dated as of
September 6, 1996, made by each of the Guarantors listed on the signature pages
hereto (the "Guarantors"), in favor of FIRST UNION NATIONAL BANK OF TENNESSEE,
a national banking association, as Administrative Agent (the "Administrative
Agent") for the ratable benefit of itself, the Lenders (the "Lenders") party to
the Credit Agreement of even date between Corrections Corporation of America, a
Delaware corporation, as Borrower, the Lenders, and the Administrative Agent
(as amended or supplemented from time to time, the "Credit Agreement"), the
Issuing Lender (as defined in the Credit Agreement) and any Affiliate of a
Lender party to a Hedging Agreement permitted pursuant to Section 10.1 of the
Credit Agreement.
STATEMENT OF PURPOSE
Pursuant to the terms of the Credit Agreement, the Lenders have agreed
to extend certain credit facilities to the Borrower in the aggregate principal
amount of up to $170,000,000. The Borrower and the Guarantors comprise one
integrated financial enterprise, and all Loans to the Borrower will inure,
directly or indirectly, to the benefit of each of the Guarantors.
In connection with the transactions contemplated by the Credit
Agreement, the Lenders have requested, and each of the Guarantors has agreed to
execute and deliver, this Guaranty.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, and to induce the Lenders to continue to make
available Loans pursuant to the Credit Agreement, it is agreed as follows:
SECTION 1. Definitions. Capitalized terms used herein (including the
preamble hereof) shall have the meanings assigned to them in the Credit
Agreement, unless the context otherwise requires or unless otherwise defined
herein. References in the Credit Agreement to a "Guaranty Agreement" or herein
to this "Guaranty" shall include and mean this Guaranty, including all
amendments and supplements hereto now or hereafter in effect.
SECTION 2. Guaranty of Obligations of Borrower. Each Guarantor
hereby, jointly and severally with the other Guarantors, unconditionally
guarantees to the Administrative Agent for the ratable benefit of itself, the
Lenders, the Issuing Lender and any Affiliate of a Lender party to a Hedging
Agreement permitted pursuant to Section 10.1 of the Credit Agreement, and their
respective successors, endorsees, transferees and assigns, the prompt payment
and performance of all Obligations of the Borrower,
2
whether primary or secondary (whether by way of endorsement or otherwise),
whether now existing or hereafter arising, whether or not from time to time
reduced or extinguished (except by payment thereof) or hereafter increased or
incurred, whether or not recovery may be or hereafter become barred by the
statute of limitations, whether enforceable or unenforceable as against the
Borrower, whether or not discharged, stayed or otherwise affected by any
bankruptcy, insolvency or other similar law or proceeding, whether created
directly with the Administrative Agent or any Lender or acquired by the
Administrative Agent or any Lender through assignment, endorsement or
otherwise, whether matured or unmatured, whether joint or several, as and when
the same become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms
of any such instruments evidencing any such obligations, including all
renewals, extensions or modifications thereof (all Obligations of the Borrower
to the Administrative Agent or any Lender, including all of the foregoing,
being hereinafter collectively referred to as the "Guaranteed Obligations");
provided, that notwithstanding anything to the contrary contained herein, it is
the intention of each Guarantor and the Lenders that, in any proceeding
involving the bankruptcy, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution or insolvency or any similar proceeding with
respect to any Guarantor or its assets or in any proceeding to determine
whether the execution and delivery of this Guaranty by any Guarantor
constitutes a dividend or distribution to the Borrower under Applicable Law,
the amount of such Guarantor's obligations with respect to the Guaranteed
Obligations shall be in, but not in excess of, the maximum amount thereof not
subject to avoidance or recovery by operation of applicable law governing
bankruptcy, reorganization, arrangement, adjustment of debts, relief of
debtors, dissolution, insolvency, fraudulent transfers or conveyances or other
similar laws (including, without limitation, 11 U.S.C. Section 547, Section
548, Section 550 and other "avoidance" provisions of Title 11 of the United
States Code) or governing the legality of dividends or distributions by a
corporation to its shareholders, applicable in any such proceeding to such
Guarantor and this Guaranty (collectively, "Applicable Insolvency Laws"). To
that end, but only in the event and to the extent that such Guarantor's
obligations with respect to the Guaranteed Obligations or any payment made
pursuant to the Guaranteed Obligations would, but for the operation of the
foregoing proviso, be subject to avoidance or recovery in any such proceeding
under Applicable Insolvency Laws, the amount of such Guarantor's obligations
with respect to the Guaranteed Obligations shall be limited to the largest
amount which, after giving effect thereto, would not, under Applicable
Insolvency Laws, render such Guarantor's obligations with respect to such
Guaranteed Obligations unenforceable or avoidable or otherwise subject to
recovery under Applicable Insolvency Laws. To the extent any payment actually
made pursuant to the Guaranteed Obligations exceeds the limitation of the
foregoing proviso and is otherwise subject to avoidance and
2
3
recovery in any such proceeding under Applicable Insolvency Laws, the amount
subject to avoidance shall in all events be limited to the amount by which such
actual payment exceeds such limitation and the Guaranteed Obligations as
limited by the foregoing proviso shall in all events remain in full force and
effect and be fully enforceable against such Guarantor. The foregoing proviso
is intended solely to preserve the rights of the Administrative Agent hereunder
against such Guarantor in such proceeding to the maximum extent permitted by
Applicable Insolvency Laws and neither such Guarantor, the Borrower, any other
Guarantor nor any other Person shall have any right or claim under such proviso
that would not otherwise be available under Applicable Insolvency Laws in such
proceeding.
SECTION 3. Nature of Guaranty. Each Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance and
not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability
or any future amendment of, or change in, the Credit Agreement or any
other Loan Document or any other agreement, document or instrument to
which the Borrower or any Subsidiary thereof is or may become a party;
(b) the absence of any action to enforce this Guaranty,
the Credit Agreement or any other Loan Document or the waiver or
consent by the Administrative Agent or any Lender with respect to any
of the provisions of this Guaranty, the Credit Agreement or any other
Loan Document;
(c) the existence, value or condition of, or failure to
perfect its Lien against, any security for or other guaranty of the
Guaranteed Obligations or any action, or the absence of any action, by
the Administrative Agent or any Lender in respect of such security or
guaranty (including, without limitation, the release of any such
security or guaranty); or
(d) any other action or circumstances which might
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor;
it being agreed by each Guarantor that, subject to the proviso in Section 2
hereof, its obligations under this Guaranty shall not be discharged until the
final and indefeasible payment and performance, in full, of the Guaranteed
Obligations and the termination of the Commitments. To the extent permitted by
law, each Guarantor expressly waives all rights it may now or in the future
have under any statute, or at law or in equity, or otherwise, to compel the
Administrative Agent or any Lender to proceed in respect of the Guaranteed
Obligations against the Borrower or any other party or
3
4
against any security for or other guaranty of the payment and performance of
the Guaranteed Obligations before proceeding against, or as a condition to
proceeding against, such Guarantor. To the extent permitted by law, each
Guarantor further expressly waives and agrees not to assert or take advantage
of any defense based upon the failure of the Administrative Agent or any Lender
to commence an action in respect of the Guaranteed Obligations against the
Borrower, such Guarantor, any other guarantor or any other party or any
security for the payment and performance of the Guaranteed Obligations. Each
Guarantor agrees that any notice or directive given at any time to the
Administrative Agent or any Lender which is inconsistent with the waivers in
the preceding two sentences shall be null and void and may be ignored by the
Administrative Agent or Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent and the Required
Lenders have specifically agreed otherwise in writing. The foregoing waivers
are of the essence of the transaction contemplated by the Loan Documents and,
but for this Guaranty and such waivers, the Administrative Agent and Lenders
would decline to enter into the Credit Agreement.
SECTION 4. Demand by the Administrative Agent. In addition to the
terms set forth in Section 3, and in no manner imposing any limitation on such
terms, if all or any portion of the then outstanding Guaranteed Obligations
under the Credit Agreement are declared to be immediately due and payable, then
the Guarantors shall, upon demand in writing therefor by the Administrative
Agent to the Guarantors, pay all or such portion of the outstanding Guaranteed
Obligations then declared due and payable. Payment by the Guarantors shall be
made to the Administrative Agent, to be credited and applied upon the
Guaranteed Obligations, in immediately available Dollars to an account
designated by the Administrative Agent or at the address referenced herein for
the giving of notice to the Administrative Agent or at any other address that
may be specified in writing from time to time by the Administrative Agent.
SECTION 5. Waivers. In addition to the waivers contained in Section
3, each Guarantor, to the extent permitted by law, waives and agrees that it
shall not at any time insist upon, plead or in any manner whatever claim or
take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by such Guarantor of its obligations under, or the enforcement by
the Administrative Agent or the Lenders of, this Guaranty. Each Guarantor
further hereby waives diligence, presentment, demand, protest and notice of
whatever kind or nature with respect to any of the Guaranteed Obligations and
waives the
4
5
benefit of all provisions of law which are or might be in conflict with the
terms of this Guaranty. Each Guarantor represents, warrants and agrees that
its obligations under this Guaranty are not and shall not be subject to any
counterclaims, offsets or defenses of any kind against the Administrative
Agent, the Lenders or the Borrower whether now existing or which may arise in
the future.
SECTION 6. Benefits of Guaranty. The provisions of this Guaranty are
for the benefit of the Administrative Agent, the Lenders, the Issuing Lender
and any Affiliate of a Lender party to a Hedging Agreement permitted pursuant
to Section 10.1 of the Credit Agreement, and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between the Borrower, the Administrative Agent and the Lenders, the
obligations of the Borrower under the Loan Documents. In the event all or any
part of the Guaranteed Obligations are transferred, endorsed or assigned by the
Administrative Agent or any Lender to any Person or Persons, any reference to
an "Administrative Agent", or "Lender" herein shall be deemed to refer equally
to such Person or Persons.
SECTION 7. Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without
the consent of, or notice to, the Guarantors:
(a) change or extend the manner, place or terms of
payment of, or renew or alter all or any portion of, the Guaranteed
Obligations;
(b) take any action under or in respect of the Loan
Documents in the exercise of any remedy, power or privilege contained
therein or available to it at law, in equity or otherwise, or waive or
refrain from exercising any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan
Documents;
(d) extend or waive the time for performance by any
Guarantor, any other guarantor, the Borrower or any other Person of,
or compliance with, any term, covenant or agreement on its part to be
performed or observed under a Loan Document (other than this
Guaranty), or waive such performance or compliance or consent to a
failure of, or departure from, such performance or compliance;
(e) take and hold security or collateral for the payment
of the Guaranteed Obligations or sell, exchange, release, dispose of,
or otherwise deal with, any property pledged, mortgaged or conveyed,
or in which the Administrative Agent or
5
6
the Lenders have been granted a Lien, to secure any Debt of any
Guarantor, any other guarantor or the Borrower to the Administrative
Agent or the Lenders;
(f) release anyone who may be liable in any manner for
the payment of any amounts owed by any Guarantor, any other guarantor
or the Borrower to the Administrative Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
any Guarantor, any other guarantor or the Borrower are subordinated to
the claims of the Administrative Agent or any Lender; or
(h) apply any sums by whomever paid or however realized
to any amounts owing by any Guarantor, any other guarantor or the
Borrower to the Administrative Agent or any Lender in such manner as
the Administrative Agent or any Lender shall determine in its
reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to any Guarantor as a result thereof, and no such action shall impair or
release the obligations of any Guarantor under this Guaranty.
SECTION 8. Reinstatement. Each Guarantor agrees that, if any payment
made by the Borrower or any other Person applied to the Obligations is at any
time annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid or the proceeds of
any collateral are required to be refunded by the Administrative Agent or any
Lender to the Borrower, its estate, trustee, receiver or any other party,
including, without limitation, any Guarantor, under any Applicable Law or
equitable cause, then, to the extent of such payment or repayment, each
Guarantor's liability hereunder (and any Lien securing such liability) shall be
and remain in full force and effect, as fully as if such payment had never been
made, and, if prior thereto, this Guaranty shall have been canceled or
surrendered (and if any Lien or collateral securing such Guarantor's liability
hereunder shall have been released or terminated by virtue of such cancellation
or surrender), this Guaranty (and such Lien) shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of such
Guarantor in respect of the amount of such payment (or any Lien securing such
obligation).
SECTION 9. Representations and Warranties. To induce the Lenders to
make any Loans, each Guarantor hereby represents and warrants that:
6
7
(a) such Guarantor has the corporate right, power and
authority to execute, deliver and perform this Guaranty and has taken
all necessary corporate action to authorize its execution, delivery
and performance of, this Guaranty;
(b) this Guaranty constitutes the legal, valid and
binding obligation of such Guarantor enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies;
(c) the execution, delivery and performance of this
Guaranty will not violate any provision of any Applicable Law or
material contractual obligation of such Guarantor and will not result
in the creation or imposition of any Lien upon or with respect to any
property or revenues of such Guarantor;
(d) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
stockholder or creditor of such Guarantor), is required in connection
with the execution, delivery, performance, validity or enforceability
of this Guaranty;
(e) no actions, suits or proceedings before any
arbitrator or Governmental Authority are pending or, to the knowledge
of such Guarantor, threatened by or against such Guarantor or against
any of its properties with respect to this Guaranty or any of the
transactions contemplated hereby;
(f) such Guarantor has such title to the real property
owned by it and a valid leasehold interest in the real property leased
by it, and has good and marketable title to all of its personal
property sufficient to carry on its business free of any and all Liens
of any type whatsoever, except those permitted by Section 10.3 of the
Credit Agreement; and
(g) as of the Closing Date, such Guarantor (a) has
capital sufficient to carry on its business and transactions and all
business and transactions in which it engages and is able to pay its
debts as they mature, (b) owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount
required to pay its probable liabilities (including contingencies) and
(c) does not believe that
7
8
it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature.
SECTION 10. Remedies.
(a) Upon the occurrence of any Event of Default, with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, enforce against the
Guarantors their respective obligations and liabilities hereunder and exercise
such other rights and remedies as may be available to the Administrative Agent
hereunder, under the Loan Documents or otherwise.
(b) No right or remedy herein conferred upon the Administrative Agent
is intended to be exclusive of any other right or remedy contained herein or in
any other Loan Document or otherwise, and every such right or remedy contained
herein and therein or now or hereafter existing at law, or in equity, or by
statute, or otherwise shall be cumulative. The Required Lenders may instruct
the Administrative Agent to pursue, or refrain from pursuing, any remedy
available to the Administrative Agent at such times and in such order as the
Required Lenders shall determine, and the Required Lenders' election as to such
remedies shall not impair any remedies against any Guarantor not then
exercised. In addition, any election of remedies which results in the denial
or impairment of the right of the Administrative Agent to seek a deficiency
judgment against the Borrower shall not impair any Guarantor's obligation to
pay the full amount of the Guaranteed Obligations.
SECTION 11. No Subrogation. Notwithstanding any payment or
payments by any of the Guarantors hereunder, or any set-off or application of
funds of any of the Guarantors by the Administrative Agent or any Lender, or
the receipt of any amounts by the Administrative Agent or any Lender with
respect to any of the Guaranteed Obligations, none of the Guarantors shall be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrower or the other Guarantors or against any
collateral security held by the Administrative Agent or any Lender for the
payment of the Guaranteed Obligations nor shall any of the Guarantors seek any
reimbursement from the Borrower or any of the other Guarantors in respect of
payments made by such Guarantor in connection with the Guaranteed Obligations,
until all amounts owing to the Administrative Agent and the Lenders on account
of the Guaranteed Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Guaranteed Obligations shall not
have been paid in full, such amount shall be held by such Guarantor in trust
for the Administrative Agent, segregated from other funds of such Guarantor,
and shall, forthwith upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received
8
9
by such Guarantor (duly endorsed by such Guarantor to the Administrative Agent,
if required) to be applied against the Guaranteed Obligations, whether matured
or unmatured, in such order as set forth in the Credit Agreement.
SECTION 12. Miscellaneous.
(a) Entire Agreement; Amendments. This Guaranty, together with
the other Loan Documents, constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
with respect to the subject matter hereof and may not be amended or
supplemented except by a writing signed by each Guarantor and the
Administrative Agent, consented to by such Lenders as required by Section 13.11
of the Credit Agreement.
(b) Headings. Titles and captions of sections and subsections in
this Guaranty are for convenience of reference only, and neither limit or
amplify the provisions of this Guaranty.
(c) Notices. All notices and communications hereunder shall be
given in accordance with Section 13.1 of the Credit Agreement.
(d) Binding Effect. This Guaranty shall bind each Guarantor and
shall inure to the benefit of the Administrative Agent, the Lenders, the
Issuing Lender and any Affiliate of a Lender party to a Hedging Agreement
permitted pursuant to Section 10.1 of the Credit Agreement, and their
respective successors and assigns. No Guarantor may assign this Guaranty or
delegate any of its duties hereunder, other than in connection with the merger
of such Guarantor into such other Person as permitted by Section 10.5 of the
Credit Agreement.
(e) Non-Waiver. The failure of the Administrative Agent or any
Lender to enforce any right or remedy hereunder, or promptly to enforce any
such right or remedy, shall not constitute a waiver thereof, nor give rise to
any estoppel against the Administrative Agent or any Lender, nor excuse any
Guarantor from its obligations hereunder. Any waiver of any such right or
remedy by the Lenders must be in writing and signed by the Required Lenders.
(f) Termination. This Guaranty shall terminate and be of no
further force or effect on the date when the Guaranteed Obligations have been
indefeasibly paid in full and the Commitments terminated.
(g) Governing Law. This Guaranty shall be governed by and
construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
(h) Consent to Jurisdiction. Each Guarantor hereby irrevocably
consents to the personal jurisdiction of the state and federal
9
10
courts located in Mecklenburg County, North Carolina, in any action, claim or
other proceeding arising out of any dispute in connection with this Guaranty,
any rights or obligations hereunder, or the performance of such rights and
obligations. Each Guarantor hereby irrevocably consents to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Guaranty, any rights or obligations hereunder, or the performance of such
rights and obligations, on behalf of itself or its property, in the manner
referenced in Section 12(c). Nothing in this Section 12(h) shall affect the
right of the Administrative Agent or any Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against
any Guarantor or its properties in the courts of any other jurisdictions.
(i) Binding Arbitration; Waiver of Jury Trial.
(i) Binding Arbitration. Upon demand of any party, whether
made before or after institution of any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or
relating to this Guaranty or any other Loan Documents ("Disputes"),
between or among parties to this Guaranty or any other Loan Document
shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the
right of that party to demand arbitration hereunder. Disputes may
include, without limitation, tort claims, counterclaims, claims
brought as class actions, claims arising from Loan Documents executed
in the future, or claims concerning any aspect of the past, present or
future relationships arising out or connected with the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Charlotte, North Carolina.
The expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall
be comprised of licensed attorneys. The single arbitrator selected
for expedited procedure shall be a retired judge from the highest
court of general jurisdiction, state or federal, of the state where
the hearing will be conducted.
(II) JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH GUARANTOR HEREBY
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT
TO ANY ACTION, CLAIM OR OTHER PROCEEDING
10
11
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY OR THE
OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(iii) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto and the
Loan Documents preserve, without diminution, certain remedies that
such Persons may employ or exercise freely, either alone, in
conjunction with or during a Dispute. Each such Person shall have and
hereby reserves the right to proceed in any court of proper
jurisdiction or by self help to exercise or prosecute the following
remedies: (A) all rights to foreclose against any real or personal
property or other security by exercising a power of sale granted in
the Loan Documents or under applicable law or by judicial foreclosure
and sale, (B) all rights of self help including peaceful occupation of
property and collection of rents, set off, and peaceful possession of
property, (C) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment
of receiver and in filing an involuntary bankruptcy proceeding, and
(D) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a party
in a Dispute.
(j) Limitation of Liability. Neither the Administrative Agent,
the Lenders nor any Affiliate thereof shall have any liability with respect to,
and each Guarantor hereby waives, releases and agrees not to xxx upon, any
claim for any special, indirect, punitive, exemplary or consequential damages
suffered by such Guarantor in connection with, arising out of, or in any way
related to this Guaranty and the other Loan Documents, the transactions
contemplated herein or therein, or any act, omission or event occurring in
connection herewith or therewith.
(k) Expenses. The Guarantors agree that they will reimburse the
Administrative Agent and each Lender for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and expenses) incurred by such
Administrative Agent or Lender in connection with the enforcement of the
obligations of the Guarantors under this Guaranty and any other Loan Documents
and all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and expenses) incurred by the Administrative Agent in connection with the
amendment or modification of this Guaranty.
(l) Indemnities. Each Guarantor agrees to hold the Administrative
Agent and the Lenders harmless from and against all losses suffered by the
Administrative Agent and the Lenders in
11
322970.4
12
connection with (i) the exercise by the Administrative Agent or the Lenders of
any right or remedy granted to them under this Guaranty, (ii) any claim, and
the prosecution or defense thereof, arising out of or in any way connected with
this Guaranty, and (iii) the collection or enforcement of the Obligations, the
Guaranteed Obligations or any of them; provided, that such Guarantor shall not
be obligated to reimburse the Administrative Agent or the Lenders for costs and
expenses, or indemnify the Administrative Agent or the Lenders for any loss,
resulting from the gross negligence or willful misconduct of the Administrative
Agent or the Lenders. Notwithstanding any termination of this Guaranty, the
indemnities to which the Administrative Agent and Lenders are entitled under
this Guaranty shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
12
13
IN WITNESS WHEREOF, each of the Guarantors has executed and delivered
this Guaranty under seal as of the date first above written.
[CORPORATE SEAL] CCA INTERNATIONAL, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL] TRANSCOR AMERICA, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL] CONCEPT INCORPORATED
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL] CORRECTION MANAGEMENT AFFILIATES,
INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL] CORRECTIONAL SERVICES GROUP, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
[CORPORATE SEAL] MINERAL XXXXX R.E. HOLDING CORP.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
13
14
[CORPORATE SEAL] CORRECTIONS PARTNERS, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
14
15
UNCONDITIONAL GUARANTY AGREEMENT SUPPLEMENT
UNCONDITIONAL GUARANTY AGREEMENT SUPPLEMENT, dated as of
_____________________, (the " Supplement"), made by [INSERT NAME OF NEW
SUBSIDIARY], a __________________ (the "New Guarantor"), in favor of First
Union National Bank of Tennessee, as agent (in such capacity, the
"Administrative Agent") under the Credit Agreement (as defined in the Guaranty
Agreement referred to below) for the ratable benefit of itself, the Lenders,
the Issuing Lender and any Affiliate of a Lender party to a Hedging Agreement
permitted pursuant to Section 10.1 of the Credit Agreement.
1. Reference is hereby made to the Guaranty Agreement dated as of
[___________], made by the certain Subsidiaries of Corrections Corporation of
America, party thereto (the "Guarantors") as guarantors, in favor of the
Administrative Agent (as amended, supplemented or otherwise modified as of the
date hereof, the "Guaranty Agreement"). This Supplement supplements the
Guaranty Agreement, forms a part thereof and is subject to the terms thereof.
Capitalized terms used and not defined herein shall have the meanings given
thereto or referenced in the Guaranty Agreement.
2. The New Guarantor hereby agrees to unconditionally guarantee
to the Administrative Agent for the ratable benefit of itself, the Lenders, the
Issuing Lender and any Affiliate of a Lender party to a Hedging Agreement
permitted pursuant to Section 10.1 of the Credit Agreement, and their
respective successors, endorsees, transferees and assigns, the prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of
all Obligations of the Borrower to the same extent and upon the same terms and
conditions as are contained in the Guaranty Agreement.
3. The New Guarantor hereby agrees that by executing this
Supplement it is a party to the Guaranty Agreement as if a signatory thereto on
the Closing Date of the Credit Agreement, and the New Guarantor shall comply
with all of the terms, covenants, conditions and agreements and hereby makes
each representation and warranty, in each case set forth therein. The New
Guarantor agrees that the "Guaranty Agreement" or "Guaranty" as used therein or
in any other Loan Documents shall mean the Guaranty Agreement as supplemented
hereby.
4. The New Grantor hereby acknowledges it has received a copy of
the Guaranty Agreement and that it has read and understands the terms thereof.
15
16
IN WITNESS WHEREOF, the undersigned hereby causes this Supplement to
be executed and delivered as of the date first above written.
[CORPORATE SEAL] [INSERT NAME OF NEW SUBSIDIARY]
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
16
