EXHIBIT 10.5
STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT (as amended, amended and restated, supplemented
or otherwise modified from time to time, this "Agreement"), dated as of June 24,
2003, is made by ▇▇▇-▇▇▇▇ CORPORATION, a Delaware corporation, having a chief
executive office and principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Pledgor"), and CITIZENS BANK OF MASSACHUSETTS (the
"Pledgee"), having an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
administrative agent for itself and the other Banks.
WHEREAS, the Banks have agreed to make loans and advances and extend
certain credit facilities to the Pledgor pursuant to a Revolving Credit and Term
Loan Agreement among the Pledgor, the Pledgee and the other Banks named therein,
dated of even date herewith (as amended, amended and restated, supplemented,
extended or otherwise modified from time to time, the "Credit Agreement").
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Credit Agreement.
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement that the Pledgor shall pledge the outstanding capital stock of
Mac-Gray Services, Inc. ("Mac-Gray Services") and Intirion Corporation
("Intirion"), and any after acquired capital stock other than as expressly
provided in the Credit Agreement, to secure the payment and performance of the
Secured Obligations (as hereinafter defined).
WHEREAS, the Pledgor is currently the legal and beneficial owner of the
shares of capital stock of Mac-Gray Services and Intirion (the "Pledged Shares")
which shares constitute all of the Pledgor's right, title and interest in
Mac-Gray Services and Intirion.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. PLEDGE. The Pledgor hereby pledges and grants to the Pledgee a
continuing first priority security interest in all of the Pledgor's now existing
or hereafter arising right, title and interest in and to the following property
(collectively, the "Pledged Collateral") to secure all of the Secured
Obligations:
(i) the Pledged Shares (which to the extent permitted by law are,
and shall remain at all times until this Agreement terminates, certificated
securities) and any interest of the Pledgor in the entries on the books of
any financial intermediary pertaining to the Pledged Shares;
(ii) all additional shares of stock of the Pledgor from time to
time acquired by the Pledgor in any manner (which to the extent permitted
by law are, and shall remain at all times until this Agreement terminates,
certificated securities) (which shares shall be deemed to be part of the
Pledged Shares) and any interest of the Pledgor in the entries on the books
of any financial intermediary pertaining to such additional shares;
(iii) all dividends, cash, options, warrants, rights, instruments,
distributions, returns of capital, income, profits and other property,
interests or proceeds from time to time received, receivable or otherwise
distributed or owing to the Pledgor in respect of, or in exchange for, any
or all of the Pledged Shares (collectively, "Distributions"); and
(iv) all Proceeds (as defined under the UCC as in effect in any
relevant jurisdiction or under other relevant law) of any of the foregoing
(i)-(iii), including, without limitation, any and all (a) proceeds of any
insurance, indemnity, warranty or guarantee payable to the Pledgor at any
time with respect to any of the Pledged Collateral, (b) payments (in any
form whatsoever) made or due and payable to the Pledgor in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Pledged Collateral by any governmental authority (or any
person acting on behalf of a governmental authority), (c) instruments
representing obligations to pay amounts in respect of any Pledged Shares,
and (d) other amounts at any time paid or payable under or in connection
with any of the Pledged Collateral.
Section 2. SECURED OBLIGATIONS. This Agreement secures, and the Pledged
Collateral is collateral security for, the prompt payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code)
of (i) all obligations of the Pledgor now or hereafter existing under or in
respect of the Loan Documents (as defined in the Credit Agreement) and (ii) all
obligations of the Pledgor now or hereafter existing under or in respect of this
Agreement (the obligations described in clauses (i) and (ii) are collectively
referred to as the "Secured Obligations").
Section 3. NO RELEASE. Nothing set forth in this Agreement shall (i)
relieve the Pledgor from the performance of any term, covenant, condition or
agreement on the Pledgor's part to be performed or observed under or in respect
of any of the Pledged Collateral or from any liability to any person or entity
under or in respect of any of the Pledged Collateral, or (ii) impose any
obligation on the Pledgee to perform or observe any such term, covenant,
condition or agreement on the Pledgor's part to be so performed or observed, or
(iii) impose any liability on the Pledgee for any act or omission on the part of
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the Pledgor relating thereto or for any breach of any representation or warranty
on the part of the Pledgor contained in this Agreement or any other Loan
Document. The obligations of the Pledgor contained in this Section 3 shall
survive the termination of this Agreement and the discharge of the Pledgor's
other obligations hereunder and under the other Loan Documents.
Section 4. DELIVERY OF PLEDGED COLLATERAL.
(a) All certificates, agreements or instruments representing or evidencing
the Pledged Collateral, to the extent not previously delivered to the Pledgee,
shall immediately upon receipt thereof by the Pledgor be delivered to and held
by or on behalf of the Pledgee pursuant hereto. All Pledged Collateral shall be
in suitable form for transfer by delivery and shall be accompanied by duly
executed instruments of transfer or assignment in blank (with signatures
appropriately guaranteed), all in form and substance satisfactory to the
Pledgee. The Pledgee shall have the right, at any time after the occurrence and
during the continuance of an Event of Default and without notice to the Pledgor,
(i) to endorse, assign or otherwise transfer, or to register in the name of the
Pledgee or any of its nominees, any or all of the Pledged Collateral, and (ii)
to exchange certificates representing or evidencing Pledged Collateral for
certificates of smaller or larger denominations.
(b) If any entity in which the Pledgor acquires capital stock after the
date hereof is incorporated in a jurisdiction which does not permit the use of
certificates to evidence equity ownership, then the Pledgor shall, to the extent
permitted by applicable law, record such pledge on the stock register of the
issuer, execute any customary stock pledge forms or other documents necessary or
appropriate to complete the pledge contemplated by this Agreement (including the
right of the Pledgee to transfer such Pledged Shares under the terms hereof) and
shall provide an opinion of counsel, in form and substance satisfactory to the
Pledgee, confirming the validity, perfection and priority of such pledge.
Section 5. SUPPLEMENTS; FURTHER ASSURANCES.
(a) At any time and from time to time, at the expense of the Pledgor, the
Pledgor shall promptly execute and deliver all further instruments and
documents, including supplemental or additional UCC financing statements, and
take all further action that may be necessary or that the Pledgee may request,
in order to perfect and protect any pledge or security interest granted or
purported to be granted hereby or to enable the Pledgee to exercise and enforce
its rights and remedies hereunder with respect to any Pledged Collateral.
(b) The Pledgor shall, upon obtaining any new or additional equity or
stock ownership in any entity, including, without limitation, Pledged Shares in
Mac-Gray
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Services, promptly (and in any event within 5 Business Days) deliver to the
Pledgee a pledge amendment in substantially the form of SCHEDULE B hereto (each,
a "Pledge Amendment"), in respect of the additional Pledged Shares which are to
be pledged pursuant to this Agreement, and confirming the attachment of the lien
hereby created on and in respect of such Pledged Collateral. The Pledgor hereby
authorizes the Pledgee to attach each Pledge Amendment to this Agreement and
agrees that all Pledged Shares listed on any Pledge Amendment delivered to the
Pledgee shall for all purposes hereunder be considered Pledged Collateral.
Section 6. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(i) The Pledgor is, and at the time of any delivery of any
Pledged Collateral to the Pledgee will be, the sole legal and beneficial
owner of the Pledged Collateral. All Pledged Collateral is and will be
owned by the Pledgor free and clear of any lien or other encumbrance except
for the lien created by this Agreement or as otherwise permitted under the
Credit Agreement.
(ii) The Pledgor has full power, authority and legal right to
pledge all the Pledged Collateral pursuant to this Agreement.
(iii) No consent of any party, and no consent, authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority or other person or entity is required either (a) for
the pledge by the Pledgor of the Pledged Collateral pursuant to this
Agreement or for the execution, delivery or performance of this Agreement
by the Pledgor, (b) for the exercise by the Pledgee of the voting or other
rights provided for in this Agreement, or (c) for the exercise by the
Pledgee of the remedies in respect of the Pledged Collateral pursuant to
this Agreement.
(iv) All of the Pledged Shares have been, and to the extent
hereafter issued will be, duly authorized and validly issued and fully paid
and nonassessable.
(v) The Pledgor's residence address is as set forth in the first
paragraph of this Agreement.
(vi) As of the date hereof, other than the capital stock scheduled
on Schedule 11.06(e) of the Credit Agreement, the Pledged Shares of
Adirondack constitute all of the capital stock owned by the Pledgor.
(vii) The Pledgor has delivered to the Pledgee all certificates
representing the Pledged Shares and has caused to be filed with the
Secretary of
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State of the Commonwealth of Massachusetts UCC financing statements
evidencing the lien and pledge created by this Agreement, and such
delivery, filing and pledge of the Pledged Collateral pursuant to this
Agreement creates a valid and perfected first priority security interest in
the Pledged Collateral securing the payment of the Secured Obligations.
(viii) This Agreement constitutes the legal, valid and binding
obligation of the Pledgor, enforceable against the Pledgor in accordance
with its terms.
(ix) All information set forth herein relating to the Pledged
Collateral is accurate and complete in all respects.
(x) The pledge of the Pledged Collateral pursuant to this
Agreement does not violate Regulation T, U or X of the Federal Reserve
Board.
Section 7. VOTING RIGHTS; DISTRIBUTIONS: ETC.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Shares or any part
thereof for any purpose not inconsistent with the terms or purpose of this
Agreement or any of the other Loan Documents; PROVIDED, HOWEVER, that the
Pledgor shall not in any event exercise such rights in any manner which may
have an adverse effect on the value of the Pledged Collateral or the
security intended to be provided by this Agreement.
(ii) Except as otherwise provided in this Agreement, the Pledgor
shall be entitled to receive and retain, and to utilize free and clear of
the lien of this Agreement, any and all Distributions; PROVIDED, HOWEVER,
that any and all such Distributions consisting of rights or interests in
the form of stock or securities shall be, and shall be forthwith delivered
to the Pledgee to hold as, Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the benefit of the Pledgee, be segregated
from the other property or funds of the Pledgor, and be forthwith delivered
to the Pledgee as Pledged Collateral in the same form as so received (with
any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) All rights of the Pledgor to exercise the voting and other
consensual rights it would otherwise be entitled to exercise pursuant to
Section 7(a)(i) hereof shall immediately cease, and all such rights shall
thereupon become
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vested in the Pledgee, which shall have the sole right to exercise such
voting and other consensual rights.
(ii) All rights of the Pledgor to receive Distributions which it
would otherwise be authorized to receive and retain pursuant to Section
7(a)(ii) hereof shall cease, and all such rights shall thereupon become
vested in the Pledgee, which shall thereupon have the sole right to receive
and hold as Pledged Collateral such Distributions.
(c) The Pledgor shall, at the Pledgor's expense, from time to time,
execute and deliver to the Pledgee appropriate instruments as the Pledgee may
request in order to permit the Pledgee to exercise the voting and other rights
which it may be entitled to exercise pursuant to Section 7(b)(i) hereof and to
receive all Distributions which it may be entitled to receive under Section
7(b)(ii) hereof.
(d) All Distributions which are received by the Pledgor contrary to the
provisions of Section 7(b)(ii) hereof shall be received in trust for the benefit
of the Pledgee, shall be segregated from other funds of the Pledgor and shall
immediately be paid over to the Pledgee as Pledged Collateral in the same form
as so received (with any necessary endorsement).
Section 8. TRANSFERS AND OTHER LIENS; ADDITIONAL EQUITY INTERESTS;
PRINCIPAL OFFICE.
(a) The Pledgee does not authorize and the Pledgor agrees not to (i) sell,
convey, assign or otherwise dispose of, or grant any option, right or warrant
with respect to, any of the Pledged Collateral, (ii) create or permit to exist
any lien or other encumbrance upon or with respect to any Pledged Collateral
other than the lien and security interest granted to the Pledgee under this
Agreement, or (iii) permit Adirondack or any other entity acquired after the
date hereof to merge, consolidate or change its legal form, except as expressly
permitted by the Credit Agreement and unless all of the outstanding capital
stock of the surviving or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation.
(b) The Pledgor shall (i) not permit any issuer listed on SCHEDULE A or
any other entity acquired after the date hereof to issue any stock or securities
in addition to, or in substitution for, the Pledged Shares, except to the
Pledgor, and (ii) pledge hereunder, immediately upon its acquisition (directly
or indirectly) thereof, any and all additional stock or securities which are
required to be pledged hereunder.
(c) The Pledgor shall not change its jurisdiction of organization without
giving the Pledgee less than 45 days prior written notice of such change.
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Section 9. REASONABLE CARE. The Pledgee shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collateral is accorded treatment substantially
equivalent to that which the Pledgee, in its individual capacity, accords its
own property consisting of similar instruments or interests, it being understood
that the Pledgee shall not have responsibility for, among other things, (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to any Pledged Collateral, whether
or not the Pledgee has or is deemed to have knowledge of such matters, (ii)
taking any necessary steps to preserve rights against any person or entity with
respect to any Pledged Collateral, or (iii) selling, liquidating or disposing of
the Pledged Collateral, or agreeing to allow the Pledgor to do any of the same,
in order to preserve the value of the Pledged Collateral.
Section 10. REMEDIES UPON DEFAULT; DECISIONS RELATING TO EXERCISE OF
REMEDIES.
(a) If any Event of Default shall have occurred and be continuing, the
Pledgee shall have the right, in addition to other rights and remedies provided
for herein or otherwise available to it to be exercised from time to time, (i)
to retain and apply the Distributions to the Secured Obligations, and (ii) to
exercise all the rights and remedies of a Pledgee on default under the UCC in
effect in any applicable jurisdiction at that time, and the Pledgee may also in
its sole discretion, without notice except as specified below, sell the Pledged
Collateral or any part thereof (including, without limitation, any partial
interest in the Pledged Shares) in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Pledgee's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as the Pledgee may deem commercially
reasonable, irrespective of the impact of any such sales on the market price of
the Pledged Collateral. The Pledgee or any of its affiliates may be the
purchaser of any or all of the Pledged Collateral at any such public sale and to
the extent permitted by law, any private sale, and shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Pledged Collateral sold at such sale, to use and apply
any of the Secured Obligations as a credit on account of the purchase price of
any Pledged Collateral. Each purchaser at any such sale shall acquire the
property sold absolutely free from any claim or right on the part of the
Pledgor, and the Pledgor hereby waives (to the full extent permitted by law) all
rights of redemption, stay and/or appraisal which it now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted. The Pledgor acknowledges and agrees that, to the extent notice of sale
shall be required by law, 10 days' notice to the Pledgor of the time and place
of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Pledgee shall not be obligated to make
any sale of Pledged Collateral regardless of notice of sale having been given.
The Pledgee may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
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further notice, be made at the time and place to which it was so adjourned. The
Pledgor hereby waives any claims against the Pledgee arising by reason of the
fact that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if the Pledgee accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree.
(b) The Pledgor agrees that, by reason of certain prohibitions contained
in the Securities Act of 1933, as amended (the "Securities Act"), and applicable
state securities laws, the Pledgee may be compelled, with respect to any sale of
all or any part of the Pledged Collateral, to limit purchasers to Persons who
will agree, among other things, to acquire the Pledged Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges that any such private sales may be at prices
and on terms less favorable to the Pledgee than those obtainable through a
public sale without such restrictions (including, without limitation, a public
offering made pursuant to a registration statement under any securities laws)
and, notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that the
Pledgee shall have no obligation to engage in public sales and no obligation to
delay the sale of any Pledged Collateral for the period of time necessary to
permit the issuer thereof to register it under the Securities Act or under
applicable state securities laws, even if such issuer would agree to do so.
(c) If the Pledgee determines to exercise its right to sell any or all of
the Pledged Collateral, upon written request, the Pledgor shall from time to
time furnish to the Pledgee all such information as the Pledgee may request in
order to determine the number of Pledged Shares included in the Pledged
Collateral which may be sold by the Pledgee as exempt transactions under the
Securities Act and the rules of the Securities and Exchange Commission
thereunder, as the same are from time to time in effect.
(d) The Pledgor recognizes that, by reason of certain prohibitions
contained in laws, rules, regulations or orders of any foreign governmental
authority, the Pledgee may be compelled, with respect to any sale of all or any
part of the Pledged Collateral, to limit purchasers to those who meet the
requirements of such foreign governmental authority. The Pledgor acknowledges
that any such sales may be at prices and on terms less favorable to the Pledgee
than those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such restricted sale shall
be deemed to have been made in a commercially reasonable manner and that the
Pledgee shall have no obligation to engage in public sales.
(e) In addition to any of the other rights and remedies hereunder, the
Pledgee shall have the right to institute a proceeding seeking specific
performance in connection with any of the agreements or obligations hereunder.
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Section 11. APPLICATION OF PROCEEDS. All Distributions held from time to
time by the Pledgee and all cash proceeds received by the Pledgee in respect of
any sale of, collection from, or other realization upon all or any part of the
Pledged Collateral pursuant to the exercise by the Pledgee of its remedies as a
secured creditor as provided in Section 10 hereof shall be applied from time to
time by the Pledgee as follows:
FIRST, to the payment of all costs and expenses, fees, commissions and
taxes of such sale, collection or other realization, including, without
limitation, reasonable compensation to the Pledgee's agents and counsel;
SECOND, to the indefeasible payment in full in cash of the Secured
Obligations; and
THIRD, to the Pledgor, or its successors or assigns or to whomsoever
may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such proceeds.
Section 12. OBLIGATIONS ABSOLUTE. All obligations of the Pledgor hereunder
shall be absolute and unconditional irrespective of (i) any bankruptcy,
reorganization or the like of the Pledgor, (ii) any lack of validity or
enforceability of the Loan Documents, (iii) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of, or any consent to any
departure from the Loan Documents, (iv) any exchange, release or non-perfection
of any other collateral, or any release or amendment or waiver of or consent to
any departure from any guaranty, for all or any of the Secured Obligations; or
(v) any other circumstances which might otherwise constitute a defense available
to, or a discharge of, the Pledgor. The Pledgor hereby waives any and all surety
ship defenses.
Section 13. EXPENSES. Upon demand, the Pledgor will pay to the Pledgee the
amount of any and all reasonable out of pocket expenses, including the
reasonable fees and expenses of its counsel and the reasonable fees and expenses
of any experts and agents, which the Pledgee may incur in connection with (i)
the collection of the Secured Obligations, (ii) the custody or preservation of,
or the sale of, collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights of the
Pledgee hereunder, or (iv) the failure by the Pledgor to perform or observe any
of the provisions hereof. All amounts payable by the Pledgor under this Section
shall be due upon demand and shall be part of the Secured Obligations. The
Pledgor's obligations under this Section shall survive the termination of this
Agreement and the discharge of the Pledgor's other obligations hereunder.
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Section 14. NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure on the part of the Pledgee to exercise, no course of
dealing with respect to, and no delay on the part of the Pledgee in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein provided are cumulative and
are not exclusive of any remedies provided by law.
(b) In the event the Pledgee shall have instituted any proceeding to
enforce any right, power or remedy under this instrument by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason, then and in every such case, the Pledgor and the
Pledgee shall be restored to their respective former positions and rights
hereunder with respect to the Pledged Collateral, and all rights, remedies and
powers of the Pledgee shall continue as if no such proceeding had been
instituted.
Section 15. THE PLEDGEE MAY PERFORM. If the Pledgor shall fail to do any
act or thing that it has covenanted to do hereunder or any warranty on the part
of the Pledgor contained herein shall be breached, the Pledgee may (but shall
not be obligated to) do the same or cause it to be done or remedy any such
breach, and may expend funds for such purpose. Any and all amounts so expended
by the Pledgee shall be paid by the Pledgor promptly upon demand therefor, with
interest at the highest rate then in effect under the Loan Documents during the
period from and including the date so expended to the date of repayment. The
Pledgor's obligations under this Section shall survive the termination of this
Agreement and the discharge of the Secured Obligations.
Section 16. THE PLEDGEE APPOINTED ATTORNEY-IN-FACT. Upon the occurrence and
continuation of an Event of Default, the Pledgor appoints the Pledgee its
attorney-in-fact with an interest, with full authority in the place and stead of
the Pledgor and in the name of the Pledgor, or otherwise, from time to time in
the Pledgee's discretion, to take any action and to execute any instrument
consistent with the terms of this Agreement and the other Loan Documents which
the Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement. The foregoing grant of authority is a power of attorney coupled with
an interest and such appointment shall be irrevocable for the term of this
Agreement. The Pledgor hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof.
Section 17. INDEMNITY.
(a) The Pledgor agrees to indemnify, reimburse and hold the Pledgee and
its respective successors, assigns, employees, agents and servants
(collectively, "Indemnitees") harmless from and against any and all liabilities,
obligations, damages,
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injuries, penalties, claims, demands, actions, suits, judgments and any and all
reasonable out of pocket costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of whatsoever kind and nature imposed
on, asserted against, or incurred by any of the Indemnitees in any way relating
to or arising out of this Agreement or in any way connected with the
administration of the transactions contemplated hereby or the enforcement of any
of the terms hereof, or the preservation of any rights hereunder; PROVIDED that
the Pledgor shall have no obligation to an Indemnitee hereunder to the extent it
is finally judicially determined that such indemnified liabilities arise solely
from the gross negligence or willful misconduct of such Indemnitee. Upon written
notice by any Indemnitee of the assertion of an indemnified claim hereunder, the
Pledgor shall assume full responsibility for the defense thereof. If any action,
suit or proceeding arising from any of the foregoing is brought against any
Indemnitee, the Pledgor shall, if requested by such Indemnitee, resist and
defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel reasonably satisfactory to such Indemnitee. Each Indemnitee
shall, unless any other Indemnitee has made the request described in the
preceding sentence and such request has been complied with, have the right to
employ its own counsel (or internal counsel) to investigate and control the
defense of any matter covered by the indemnity set forth in this Section, and
the fees and expenses of such counsel shall be paid by the Pledgor; PROVIDED
that, only to the extent no conflict exists between or among the Indemnitees, as
reasonably determined by the Indemnitees, the Pledgor shall not be obligated to
pay the fees and expenses of more than one counsel for all Indemnitees as a
group with respect to any indemnified claim.
(b) If and to the extent that the obligations of the Pledgor under this
Section are unenforceable for any reason, the Pledgor hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations that is
permissible under applicable law.
(c) The obligations of the Pledgor contained in this Section shall survive
the termination of this Agreement and the discharge of the Secured Obligations.
(d) Any amounts paid by any Indemnitee as to which such Indemnitee has the
right to reimbursement shall constitute Secured Obligations secured by the
Pledged Collateral.
Section 18. MODIFICATION IN WRITING. No amendment, modification,
supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by the Pledgor therefrom, shall be effective unless the
same shall be in writing and signed by the Pledgee. Any such amendment,
modification, supplement, termination, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which made or given.
Except where notice is specifically required by this Agreement, no notice to or
demand on the Pledgor in any case shall entitle the Pledgor to any other or
further notice or demand in similar or other circumstances.
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Section 19. TERMINATION. When all the Secured Obligations (other than
Secured Obligations in the nature of continuing indemnities and expense
reimbursement obligations not yet due and payable) have been indefeasibly paid
in full in cash and have been terminated, this Agreement shall terminate. Upon
termination of this Agreement, the Pledgee shall, upon the written request and
at the expense of the Pledgor, forthwith assign, transfer and deliver to the
Pledgor, against receipt and without recourse to or warranty by the Pledgee,
such of the Pledged Collateral as may be in the possession of the Pledgee and as
shall not have been sold or otherwise applied pursuant to the terms hereof, and
shall execute UCC termination statements. The Pledgee shall have no
responsibility to undertake any other actions upon termination of this
Agreement.
Section 20. NOTICES. Except as otherwise provided herein, any notice or
other communication required or permitted to be given under this Agreement shall
be in writing and may be personally delivered, telecopied, or sent by overnight
courier service or United States mail to the respective party, addressed to it
at the address set forth in the preamble to this Agreement, or to such other
address as shall be designated by such party in a written notice to the other
party complying as to delivery with the terms of this Section. All such notices
and other communications shall be deemed to have been given when delivered in
person, or received by telecopy or overnight mail; or three Business Days after
deposit in the United States mail; PROVIDED that notices to the Pledgee shall
not be effective until received by the Pledgee.
Section 21. ASSIGNMENT. This Agreement shall be binding upon the Pledgor,
his/her successors, executors, heirs and assigns, and shall inure, together with
the rights and remedies of the Pledgee hereunder, to the benefit of the Pledgee
and each of its successors, transferees and assigns. No other Persons
(including, without limitation, any other creditor of the Pledgor) shall have
any interest herein or any right or benefit with respect hereto. The Pledgor may
not assign its rights or obligations under this Agreement to any other Person.
The Pledgee may assign or otherwise transfer its rights under this Agreement or
any indebtedness held by it secured by this Agreement to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Pledgee, subject however, to the provisions of the Loan
Documents.
Section 22. GOVERNING LAW. This Agreement shall be governed by, and shall
be construed and enforced in accordance with, the laws of the Commonwealth of
Massachusetts, without regard to principles of conflicts of laws.
Section 23. CONSENT TO JURISDICTION. All judicial proceedings brought
against the Pledgor with respect to this Agreement may be brought in any state
or federal court of competent jurisdiction in the Commonwealth of Massachusetts
and, by execution and delivery of this Agreement, the Pledgor accepts for itself
and in connection with its
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properties, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts.
SECTION 24. WAIVER OF TRIAL BY JURY. THE PARTIES HERETO IRREVOCABLY WAIVE
TRIAL BY JURY IN CONNECTION WITH ANY MATTER ARISING OUT OF THIS AGREEMENT.
Section 25. SEVERABILITY OF PROVISIONS. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 26. EXECUTION IN COUNTERPARTS. This Agreement and any amendments,
waivers, consents or supplements hereto may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original, but all
such counterparts together shall constitute one and the same agreement.
Section 27. HEADINGS. The Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered as of the date first above written.
▇▇▇-▇▇▇▇ CORPORATION
By:
------------------------
Name:
Title:
AGREED:
CITIZENS BANK OF MASSACHUSETTS
By:
---------------------------------
Name: ▇▇▇▇▇▇▇ St. ▇▇▇▇
Title: Vice President
14
SCHEDULE A
PERCENTAGE OF
OF ALL
CLASS NUMBER CAPITAL
ENTITY OF PAR CERTIFICATE OF STOCK OF
ISSUER STOCK VALUE NO(S). SHARES ISSUER
------- ----- ----- ------ ------ ------
Mac-Gray Common $ .01 100,000 100%
Services, Stock
Inc.
Intirion Common $ .01 1,000 100%
Corporation Stock
15
SCHEDULE B
PLEDGE AMENDMENT
This Pledge Amendment, dated __________ __, ____, is delivered pursuant to
Section 5(b) of the
Stock Pledge Agreement (the "Pledge Agreement"), dated as of
June __, 2003, made by ▇▇▇-▇▇▇▇ CORPORATION, a Delaware corporation, having a
chief executive office and principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in favor of CITIZENS BANK OF
MASSACHUSETTS,
national banking association, having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Pledgee"). Capitalized terms not defined herein shall
have the meanings given to them in the Pledge Agreement.
The undersigned hereby agrees that this Pledge Amendment may be attached to
the Pledge Agreement. The Pledged Shares listed on this Pledge Amendment shall
be deemed to be, and shall become part of, the Pledged Collateral and shall
secure all of the Secured Obligations. If such Pledged Shares are in the form of
certificates, the undersigned hereby delivers to the Pledgee such certificates
representing such Pledged Shares, together with instruments of transfer signed
or endorsed in blank.
▇▇▇-▇▇▇▇ CORPORATION
By:
------------------------
Name:
Title:
PERCENTAGE OF
OF ALL
CLASS NUMBER CAPITAL
ENTITY OF PAR CERTIFICATE OF STOCK OF
ISSUER STOCK VALUE NO(S). SHARES ISSUER
------- ----- ----- ------ ------ ------
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