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GUARANTEE AGREEMENT

Guarantee Agreement

GUARANTEE AGREEMENT | Document Parties: MAC-GRAY CORP | BANK OF AMERICA, N.A. | INTIRION CORPORATION | MAC-GRAY CORPORATION | Mac-Gray Services, Inc You are currently viewing:
This Guarantee Agreement involves

MAC-GRAY CORP | BANK OF AMERICA, N.A. | INTIRION CORPORATION | MAC-GRAY CORPORATION | Mac-Gray Services, Inc

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Title: GUARANTEE AGREEMENT
Governing Law: New York     Date: 4/7/2008
Industry: Personal Services     Sector: Services

GUARANTEE AGREEMENT, Parties: mac-gray corp , bank of america  n.a. , intirion corporation , mac-gray corporation , mac-gray services  inc
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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

 

ARTICLE I Definitions

 

 

1

SECTION 1.01.

 

Credit Agreement

1

SECTION 1.02.

 

Other Defined Terms

1

ARTICLE II Guarantee

 

 

2

SECTION 2.01.

 

Guarantee

2

SECTION 2.02.

 

Guarantee of Payment

2

SECTION 2.03.

 

No Limitations

3

SECTION 2.04.

 

Reinstatement

3

SECTION 2.05.

 

Agreement To Pay; Subrogation

4

SECTION 2.06.

 

Information

4

SECTION 2.07.

 

Certain Waivers

4

SECTION 2.08.

 

Remedies

4

SECTION 2.09.

 

Rights of Contribution

5

ARTICLE III [Reserved]

 

 

5

ARTICLE IV [Reserved]

 

 

5

ARTICLE V [Reserved]

 

 

5

ARTICLE VI Indemnity, Subrogation and Subordination

5

SECTION 6.01

 

Indemnity and Subrogation

5

SECTION 6.02.

 

Contribution and Subrogation

5

SECTION 6.03.

 

Subordination

6

ARTICLE VII Miscellaneous

 

6

SECTION 7.01

 

Notices

6

SECTION 7.02.

 

Waivers; Amendment

6

SECTION 7.03.

 

Administrative Agent’s Fees and Expenses; Indemnification

6

SECTION 7.04.

 

Successors and Assigns

7

SECTION 7.05.

 

Survival of Agreement

7

SECTION 7.06.

 

Counterparts; Effectiveness; Several Agreement

7

SECTION 7.07.

 

Severability

7

SECTION 7.08.

 

Right of Set-Off

8

SECTION 7.09.

 

Governing Law; Jurisdiction; Consent to Service of Process

8

SECTION 7.10.

 

WAIVER OF JURY TRIAL

9

SECTION 7.11.

 

Headings

9

SECTION 7.12.

 

Guarantee Absolute

9

SECTION 7.13.

 

Termination or Release

9

SECTION 7.14.

 

Additional Subsidiaries

9

SECTION 7.15.

 

[Reserved]

10

SECTION 7.16.

 

Joint and Several Obligations of Guarantors

10

 



 

Schedules

 

 

 

 

 

Schedule I

 

Guarantors

 

 

 

Exhibits

 

 

 

 

 

Exhibit I

 

Form of Supplement

 



 

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

 

1



 

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

 

2



 

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

 

3



 

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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