Exhibit 10.9
GUARANTEE
AGREEMENT
dated as of
April 1,
2008,
among
MAC-GRAY
CORPORATION,
MAC-GRAY SERVICES,
INC.,
INTIRION
CORPORATION,
THE SUBSIDIARIES OF THE
BORROWERS
IDENTIFIED HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent
TABLE OF
CONTENTS
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ARTICLE I
Definitions
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1
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SECTION 1.01.
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Credit
Agreement
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1
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SECTION 1.02.
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Other Defined
Terms
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1
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ARTICLE II
Guarantee
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2
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SECTION 2.01.
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Guarantee
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2
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SECTION 2.02.
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Guarantee of
Payment
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2
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SECTION 2.03.
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No
Limitations
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3
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SECTION 2.04.
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Reinstatement
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3
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SECTION 2.05.
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Agreement To Pay;
Subrogation
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4
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SECTION 2.06.
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Information
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4
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SECTION 2.07.
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Certain
Waivers
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4
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SECTION 2.08.
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Remedies
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4
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SECTION 2.09.
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Rights of
Contribution
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5
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ARTICLE III
[Reserved]
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5
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ARTICLE IV
[Reserved]
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5
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ARTICLE V
[Reserved]
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5
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ARTICLE VI Indemnity,
Subrogation and Subordination
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5
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SECTION 6.01
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Indemnity and
Subrogation
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5
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SECTION 6.02.
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Contribution and
Subrogation
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5
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SECTION 6.03.
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Subordination
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6
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ARTICLE VII
Miscellaneous
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6
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SECTION 7.01
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Notices
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6
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SECTION 7.02.
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Waivers;
Amendment
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6
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SECTION 7.03.
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Administrative
Agent’s Fees and Expenses; Indemnification
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6
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SECTION 7.04.
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Successors and
Assigns
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7
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SECTION 7.05.
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Survival of
Agreement
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7
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SECTION 7.06.
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Counterparts;
Effectiveness; Several Agreement
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7
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SECTION 7.07.
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Severability
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7
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SECTION 7.08.
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Right of
Set-Off
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8
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SECTION 7.09.
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Governing Law;
Jurisdiction; Consent to Service of Process
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8
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SECTION 7.10.
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WAIVER OF JURY
TRIAL
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9
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SECTION 7.11.
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Headings
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9
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SECTION 7.12.
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Guarantee
Absolute
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9
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SECTION 7.13.
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Termination or
Release
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9
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SECTION 7.14.
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Additional
Subsidiaries
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9
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SECTION 7.15.
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[Reserved]
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10
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SECTION 7.16.
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Joint and Several
Obligations of Guarantors
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10
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Schedules
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Schedule I
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Guarantors
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Exhibits
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Exhibit I
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Form of
Supplement
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GUARANTEE
AGREEMENT dated as of April 1, 2008 (as amended, restated,
supplemented and otherwise modified from time to time, this “
Agreement ”, among Mac-Gray Corporation (the “
Parent Borrower ”), Mac-Gray Services, Inc.
(“ Services ”), Intirion Corporation (together
with the Parent Borrower and Services, the “ Borrowers
”), the Subsidiaries of the Borrowers identified herein and
Bank of America, N.A., as Administrative Agent (together with its
successors in such capacity, the “ Administrative
Agent ”).
Reference is made
to the Senior Unsecured Credit Agreement dated as of April 1,
2008 (as amended, restated, supplemented or otherwise modified from
time to time, the “ Credit Agreement ”), among
the Borrowers, the Lenders party thereto and Bank of America, N.A.,
as Administrative Agent and Administrative Agent. The Lenders have
agreed to extend credit to the Borrowers subject to the terms and
conditions set forth in the Credit Agreement. The obligations of
the Lenders to extend such credit are conditioned upon, among other
things, the execution and delivery of this Agreement. The
Guarantors are subsidiaries and affiliates of the Borrowers, will
derive substantial benefits from the extension of credit to the
Borrowers pursuant to the Credit Agreement and are willing to
execute and deliver this Agreement in order to induce the Lenders
to extend such credit. Accordingly, the parties hereto agree as
follows:
ARTICLE I
Definitions
SECTION 1. 01
.
Credit
Agreement . (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings
specified in the Credit Agreement.
(b)
The rules of construction specified in Section 1.02 of
the Credit Agreement also apply to this Agreement.
SECTION 1.02.
Other Defined
Terms . As used in this Agreement, the following
terms have the meanings specified below:
“
Agreement ” has the meaning assigned to such term in
the preliminary statement of this Agreement.
“
Claiming Party ” has the meaning assigned to such term
in Section 6.02 .
“ Credit
Agreement ” has the meaning assigned to such term in the
preliminary statement of this Agreement.
“
Guaranteed Parties ” means (a) the Lenders (and
any Affiliate of any Lender to which any obligation referred to in
clause (c) of the definition of the term
“Obligations” is owed), (b) the Administrative
Agent, (c) each counterparty to any Swap Agreement with a Loan
Party the obligations under which constitute Obligations,
(f) the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document and
(g) the successors and assigns of each of the
foregoing.
“
Guarantors ” means (a) the Borrowers,
(b) the Subsidiaries identified on Schedule I and
(c) each other Subsidiary that becomes a party to this
Agreement as a Guarantor after the Closing Date.
“ Loan
Document Obligations ” means (a) the due and
punctual payment by the Borrowers of (i) the principal of and
interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such
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proceeding) on the
Loans, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise and (ii) all
other monetary obligations of any of the Borrowers to any of the
Guaranteed Parties under the Credit Agreement and each of the other
Loan Documents, including obligations to pay fees, expense
reimbursement obligations and indemnification obligations, whether
primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding),
(b) the due and punctual performance of all other obligations
of the Borrowers under or pursuant to the Credit Agreement and each
of the other Loan Documents and (c) the due and punctual
payment and performance of all the obligations of each other Loan
Party under or pursuant to this Agreement and each of the other
Loan Documents.
“
Obligations ” means (a) Loan Document
Obligations, (b) the due and punctual payment and performance
of all obligations of each Loan Party under or in connection with
each Swap Agreement that (i) is in effect on the Closing Date
with a counterparty that is a Lender or an Affiliate of a Lender as
of the Closing Date or (ii) is entered into after the Closing
Date with any counterparty that is a Lender or an Affiliate of a
Lender at the time such Swap Agreement is entered into (even if
that counterparty should subsequently cease to be a Lender (or an
Affiliate of a Lender)) and (c) the due and punctual payment
and performance of all obligations in respect of overdrafts and
related liabilities owed to the Administrative Agent (in its
individual capacity), any Lender or any of their respective
Affiliates and arising from treasury, depositary and cash
management services in connection with any automated clearinghouse
transfers of funds.
ARTICLE II
Guarantee
SECTION 2.01.
Guarantee
. Each Guarantor
unconditionally guarantees, jointly with the other Guarantors and
severally, as a primary obligor and not merely as a surety, the due
and punctual payment in full when due and performance of the
Obligations. Each of the Guarantors further agrees that the
Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will
remain bound upon its guarantee notwithstanding any extension or
renewal of any Obligation. Each of the Guarantors waives diligence,
presentment to, demand of payment from and protest to the Borrowers
or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for
nonpayment and any requirement that the Administrative Agent or any
Guaranteed Party exhaust any right, power or remedy or proceed
against any Person under any of the Loan Documents or any other
documents relating to the Obligations or any other agreement or
instrument referred to therein, or against any other Person under
any other guarantee of, or security for, any of the
Obligations.
SECTION 2.02.
Guarantee of
Payment . (a) Each of the
Guarantors further agrees that its guarantee hereunder constitutes
a continuing guarantee of payment in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof and not of collection, and waives
any right to require that any resort be had by the Administrative
Agent or any other Guaranteed Party to any security held for the
payment of the Obligations or to any balance of any deposit account
or credit on the books of the Administrative Agent or any other
Guaranteed Party in favor of the Borrowers or any other Person. The
Guarantors hereby further agree that if any of the Obligations are
not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the
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same will be promptly
paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization
or otherwise) in accordance with the terms of such extension or
renewal.
(b)
Notwithstanding any provision to the contrary contained herein, in
any other of the Loan Documents, Swap Agreements or other documents
relating to the Obligations, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited
to an aggregate amount equal to the largest amount that would not
render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state
law.
SECTION 2.03.
No Limitations
. (a) Except for termination of a Guarantor’s
obligations hereunder as expressly provided in
Section 7.13 , the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected
by (i) the failure of the Administrative Agent or any other
Guaranteed Party to assert any claim or demand or to enforce any
right or remedy under the provisions of any Loan Document or
otherwise; (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the
release of any security held by the Administrative Agent or any
other Guaranteed Party for the Obligations or any of them;
(iv) any default, failure or delay, willful or otherwise, in
the performance of the Obligations; (v) any Lien granted to,
or in favor of, the Administrative Agent or any Guaranteed Party as
security for any of the Obligations shall fail to attach or be
perfected; (vi) any of the Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit
of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor
of any Guarantor); or (vii) any other act or omission that may
or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of any Guarantor as a
matter of law or equity (other than the indefeasible payment in
full in cash of all the Obligations).
(b)
To the fullest extent permitted by applicable law, each Guarantor
waives any defense based on or arising out of any defense of the
Borrowers or any other Loan Party or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation
from any cause of the liability of the Borrowers or any other Loan
Party, other than the indefeasible payment in full (other than
contingent indemnification obligations that survive the termination
of the Loan Documents) in cash of all the Obligations, irrespective
of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 2.03
that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. The
Administrative Agent and the other Guaranteed Parties may, at their
election, compromise or adjust any part of the Obligations, make
any other accommodation with the Borrowers or any other Loan Party
or exercise any other right or remedy available to them against the
Borrowers or any other Loan Party, without affecting or impairing
in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully and indefeasibly paid in
full in cash. To the fullest extent permitted by applicable law,
each Guarantor waives any defense arising out of any such election
even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation
or other right or remedy of such Guarantor against the Borrowers or
any other Loan Party, as the case may be, or any security.
SECTION 2.04.
Reinstatement
. Each of the Guarantors agrees that its guarantee hereunder shall
continue to be effective or be reinstated, as the case may be, if
at any time payment, or
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any part thereof, of
any Obligation is rescinded or must otherwise be restored by the
Administrative Agent or any other Guaranteed Party upon the
bankruptcy or reorganization of the Borrowers, any other Loan Party
or otherwise. The obligations of the Guarantors under this
Article II shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of any
Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether
as a result of any proceedings pursuant to any Debtor Relief Law or
otherwise, and each Guarantor agrees that it will indemnify the
Administrative Agent and each Guaranteed Party on demand for all
reasonable costs and expenses (including all reasonable fees,
expenses and disbursements of one outside law firm and reasonably
necessary special and local counsel) incurred by the Administrative
Agent or such Guaranteed Party in connection with such rescission
or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted
a preference, fraudulent transfer or similar payment under any
Debtor Relief Law.
SECTION 2.05.
Agreement To Pay;
Subrogation . In furtherance of the foregoing and
not in limitation of any other right that the Administrative Agent
or any other Guaranteed Party has at law or in
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