1
EXHIBIT 10.8
GUARANTY AGREEMENT
FOR VALUE RECEIVED, and in consideration of that certain Promissory
Note dated December 31, 1998 (the "Note") executed by Correctional Management
Services Corporation, a Tennessee corporation, as Maker, in favor of Corrections
Corporation of America, a Tennessee corporation, and its successors and assigns
(collectively, "CCA"), the undersigned, for himself and his heirs and assigns,
hereby guarantees the full and prompt payment to CCA when due, whether by
acceleration or otherwise, and at all times thereafter, of ten percent (10%) of
the outstanding principal amount due under the Note (the "Indebtedness").
THIS GUARANTY SHALL BE CONTINUING, ABSOLUTE AND UNCONDITIONAL.
The undersigned hereby expressly waives all applicable statutes of limitation
which may exist at any time in favor of undersigned, as well as presentment,
diligence in collection, and all other notices or demands whatsoever with
respect to this Guaranty Agreement and the enforcement hereof, and all rights of
setoff undersigned may have against CCA. Any claims against Maker accruing to
the undersigned by reason of payments made hereunder shall be subordinate to the
Indebtedness.
CCA is hereby expressly authorized to make from time to time, without
notice to anyone, any extensions, renewals, sales, pledges, surrenders,
compromises, settlements, releases, indulgences, alterations, substitutions,
exchanges, modifications, or other dispositions, of or to all or any part of the
Indebtedness, or any contracts or instruments evidencing any thereof, or any
security or collateral therefor, and to take any security for or other
guarantees of any of the Indebtedness, and the liability of the undersigned
hereunder shall not be in any manner affected, diminished or impaired thereby,
or by any lack of diligence, failure, neglect or omission by CCA to make any
demand or protest, or give any notice of dishonor or default, or to realize upon
or protect any of the Indebtedness, or any collateral or security therefor, or
to exercise any lien upon or right of appropriation or set-off against any
moneys, accounts, credits, or property of Maker, possessed by CCA, towards the
liquidation of the Indebtedness, or by any application of payments or credits
thereon. CCA shall have the exclusive right to determine how, when and what
application of payments and credits, if any, shall be made on the Indebtedness,
or any part thereof, and shall be under no obligation, at any time, to first
resort to, make demand on, file claim against, or exhaust its remedies against
Maker, the undersigned, or other persons or corporations, their properties or
estates, or to resort to or exhaust its remedies against any collateral,
security, property, liens or other rights whatsoever. CCA may at any time make
demand for payment on, or bring suit against, the undersigned, and may
compromise with the undersigned for such sums or on such terms as it may see fit
and release the undersigned from all further liability to CCA hereunder, without
thereby impairing CCA's rights in any respect to demand, xxx for and collect the
balance of the Indebtedness from any other entity liable thereon.
In the event of insolvency (however evidenced) of, or the institution
of bankruptcy or receivership proceedings by or against, Maker, all of the
Indebtedness shall, for the purposes hereof and at CCA's option, become
immediately due and payable from the undersigned. In such event, any and all
sums or payments of any nature which may be or become due and payable by Maker
to the undersigned are hereby assigned to CCA, and shall be collectible by CCA,
without necessity for other authority than this instrument, until all of the
Indebtedness shall be fully paid and discharged,
2
but such collection by CCA shall not in any respect affect, impair or diminish
any other rights of CCA hereunder.
CCA may, without any notice whatsoever to anyone, sell, assign or
transfer all or any part of the Indebtedness, and in that event each and every
immediate and successive assignee, transferee or holder of all or any part of
the Indebtedness shall have the right to enforce this Guaranty Agreement, by
suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as though such assignee, transferee or holder were herein by name given
such rights, powers and benefits; provided, however, that CCA shall have an
unimpaired right, prior and superior to that of any assignee, transferee or
holder, to enforce this Guaranty Agreement for its benefit as to so much of the
Indebtedness as CCA has not sold, assigned or transferred.
This Guaranty Agreement shall remain in full force and effect until
written notice of its discontinuance, addressed to Corrections Corporation of
America, 00 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, shall actually
be received by CCA (the burden of proof of receipt being upon undersigned), and
also until all Indebtedness existing before receipt of such notice, and interest
and expenses in connection therewith, shall be fully paid.
The death of the undersigned shall not terminate this Guaranty
Agreement until notice of such death, given as above provided, shall actually be
received by CCA (the burden of proof of receipt being upon the representatives
of undersigned), nor until all Indebtedness existing before receipt of such
notice, and interest and expenses in connection therewith, shall be fully paid.
No act of commission or omission of any kind, or at any time, on the
part of CCA in respect to any matter whatsoever shall in any way affect or
impair this Guaranty Agreement. This Guaranty Agreement is in addition to and
not in substitution for or discharge of any other guaranty held by CCA.
In the event CCA is required at any time to refund or repay to any
person for any reason any sums collected by it on account of the obligations
subject to this Guaranty Agreement, undersigned agrees that all such sums shall
be subject to the terms of this Guaranty Agreement, and that CCA shall be
entitled to recover such sums from undersigned notwithstanding the fact that
this Guaranty Agreement may have previously been returned to undersigned or that
undersigned may have previously been discharged from further liability under
this Guaranty Agreement. The undersigned further agrees to indemnify and hold
CCA harmless from and against any and all liability, loss, actions, claims,
costs and expenses arising from or in connection with any action taken by a
trustee or debtor-in-possession, under the bankruptcy laws, against CCA to
recover, as a preferential or post-petition transfer, payments by or on behalf
of Maker to CCA. This indemnity shall also survive return of this Guaranty
Agreement or discharge of the undersigned hereunder.
This Guaranty Agreement has been negotiated, made, executed and
delivered in Nashville, Tennessee. The validity and construction hereof shall be
determined in all respects in accordance with the laws of the State of
Tennessee. All disputes or controversies which may arise from or in
2
3
connection with this Guaranty Agreement, its construction, interpretation,
effect, performance or the consequences thereof, shall be determined exclusively
by the courts of the State of Tennessee and the federal courts sitting in the
State of Tennessee.
[remainder of page intentionally left blank]
3
4
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty Agreement as of the 31st day of December, 1998.
/s/ Doctor X. Xxxxxx
-----------------------------------
Doctor X. Xxxxxx
STATE OF TENNESSEE
COUNTY OF DAVIDSON
Personally appeared before me, Doctor X. Xxxxxx, a Notary Public in and
for said County and State, the within named bargainor, with whom I am personally
acquainted (or proved to me on the basis of satisfactory evidence), and who
acknowledged that he executed the within instrument for the purposes therein
contained.
WITNESS my hand and official seal at Nashville, Davidson County,
Tennessee, this 31st day of December, 1998.
/s/ Xxxx X. Xxxxxxxx
--------------------------------
Notary Public
My Commission Expires: 9/29/01
------------
4
