THIRD SUPPLEMENTAL INDENTURE
Exhibit
4.3
THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”), dated as of May 14, 2009,
among CCA Health Services, LLC (the “Guaranteeing Subsidiary”), a subsidiary of Corrections
Corporation of America (or its permitted successor), a Maryland corporation (the “Company”), the
Company, the other Guarantors (as defined in the Indenture referred to herein) and U.S. Bank
National Association, as trustee under the indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of May 7, 2003 (the “Base Indenture”), as amended and supplemented by the Supplemental
Indenture, dated as of May 7, 2003 (as amended and supplemented by a First Supplement, dated as of
August 8, 2003, to the Supplemental Indenture and a Second Supplement, dated as of August 8, 2003,
the “Supplemental Indenture”), and the Second Supplemental Indenture, dated as of December 31, 2004
(the “Second Supplemental Indenture” and, together with the Base Indenture and the Supplemental
Indenture, the “Indenture”) providing for the issuance of the Company’s 7 1/2% Senior Notes due
2011 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Third Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of, and premium and Liquidated Damages, if any, and interest
on the Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
(c) The following is hereby waived: diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and the Indenture, and the Guaranteeing Subsidiary
accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 6 of the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Holders
under the Note Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect to any maximum
amount and all other contingent and fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under Article 10 of the Indenture,
this new Note Guarantee shall be limited to the maximum amount permissible such that the
obligations of such Guarantor under this Note Guarantee will not constitute a fraudulent
transfer or conveyance.
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3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the Note Guarantees shall
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Note Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not sell or otherwise dispose of all substantially
all of its assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person, other than the Company or another
Guarantor unless:
(i) immediately after giving effect to such transaction, no Default or Event of
Default exists; and
(ii) either (A) subject to Sections 10.04 and 10.05 of the Indenture, the
Person acquiring the property in any such sale or disposition or the Person formed
by or surviving any such consolidation or merger unconditionally assumes all the
obligations of that Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Notes, the Indenture and
the Note Guarantee on the terms set forth herein or therein; or (B) the Net Proceeds
of such sale or other disposition are applied in accordance with the applicable
provisions of the Indenture, including without limitation, Section 4.10 thereof.
(b) In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the
Notes and the due and punctual performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable under the Indenture which
theretofore shall not have been signed by the Company and delivered to the Trustee. All the
Note Guarantees so issued shall in all respects have the same legal rank and benefit under
the Indenture as the Note Guarantees theretofore and thereafter issued in accordance with
the terms of the Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and Section 10.05 of Article 10 of the
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor, or shall prevent any sale or conveyance of the property of
a Guarantor as an entirety or substantially as an entirety to the Company or another
Guarantor.
5. RELEASES.
(a) In the event of any sale or other disposition of all or substantially all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, in each case to a Person that is
not (either before or after giving effect to such transaction) a Restricted Subsidiary of
the Company, then such Guarantor (in the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of
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the capital stock of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note Guarantee;
provided that the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of the Indenture, including without limitation Section 4.10
of the Indenture. Upon delivery by the Company to the Trustee of an Officers’ Certificate
and an Opinion of Counsel to the effect that such sale or other disposition was made by the
Company in accordance with the provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under its Note
Guarantee.
(b) Any Guarantor not released from its obligations under its Note Guarantee shall
remain liable for the full amount of principal of and interest on the Notes and for the
other obligations of any Guarantor under the Indenture as provided in Article 10 of the
Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any
liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Note Guarantees, the Indenture or this Third Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against
public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of this Third Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not
affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.
[The following page is the signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed and attested, all as of the date first above written.
| GUARANTEEING SUBSIDIARY: CCA HEALTH SERVICES, LLC |
||||
| By: | /s/ Xxxx X Xxxxxxxxx | |||
| Name: | Xxxx X Xxxxxxxxx | |||
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |||
| COMPANY: CORRECTIONS CORPORATION OF AMERICA |
||||
| By: | /s/ Xxxx X Xxxxxxxxx | |||
| Name: | Xxxx X Xxxxxxxxx | |||
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |||
| GUARANTORS: CCA OF TENNESSEE, LLC CCA INTERNATIONAL, INC. CCA PROPERTIES OF AMERICA, LLC CCA PROPERTIES OF ARIZONA, LLC CCA PROPERTIES OF TENNESSEE, LLC CCA WESTERN PROPERTIES, INC. PRISON REALTY MANAGEMENT, INC. TECHNICAL AND BUSINESS INSTITUTE OF AMERICA, INC.
TRANSCOR AMERICA, LLC |
||||
| By: | /s/ Xxxx X Xxxxxxxxx | |||
| Name: | Xxxx X Xxxxxxxxx | |||
| Title: | Executive Vice President, Chief Financial Officer and Treasurer | |||
| TRUSTEE: U.S. BANK NATIONAL ASSOCIATION as Trustee |
||||
| By: | /s/ Xxx Xxxxxxx | |||
| Name: | Xxx Xxxxxxx | |||
| Title: | Officer | |||
