Exhibit 10.2
FORM OF
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of _______ by and between ______________, a
_________ corporation having its principal place of business and chief executive
office at ________________________ (the "Pledgor"), and ____________________, a
national banking association with its head office at ________________________,
acting in its capacity as agent for the Banks under (and as defined in) the Loan
Agreement referred to below ("the Pledgee").
WHEREAS, the Pledgor has requested the Banks and the Administrative
Agent to enter into a certain Loan Agreement (as defined below) pursuant to
which the Banks will make loans to the Pledgor and certain of its Subsidiaries,
from time to time, upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Pledgor is the direct legal and beneficial owner of 100%
of the issued and outstanding shares of Stock (as hereinafter defined) of each
of the entities listed on Exhibit A, other than any director's qualifying shares
(individually, a "Scheduled Subsidiary" and collectively, the "Scheduled
Subsidiaries"); and
WHEREAS, the Banks and the Administrative Agent are unwilling to enter
into the Loan Agreement and to make any loans thereunder unless the Pledgor
shall execute and deliver this Pledge Agreement and pledge the Pledged Stock to
the Pledgee on the terms and conditions described herein to secure, INTER ALIA,
the Obligations under (and as defined in) the Loan Agreement.
NOW, THEREFORE, in order to induce the Banks and the Administrative
Agent to enter into the Loan Agreement and to make or extend to the Pledgor and
certain of its Subsidiaries, from time to time, one or more loans, advances, or
other extensions of credit, and in consideration thereof, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth
below. Terms not otherwise defined herein shall have the meanings ascribed to
them in that certain Revolving Credit and Term Loan Agreement among the Pledgor,
Mac-Gray Services, Inc., a Delaware corporation, Intirion Corporation, a
Delaware corporation, the Banks and the Pledgee dated as of the date hereof (as
the same may be amended, modified or supplemented from time to time, the "Loan
Agreement") or under the Uniform Commercial Code of the Commonwealth of
Massachusetts, as applicable, or any other applicable jurisdiction.
"AGREEMENTS" means the Loan Agreement, the Notes and the other
Loan Documents and Security Documents, as amended and in effect from time to
time.
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"CASH COLLATERAL" shall have the meaning set forth in
Section 3 hereof.
"CASH COLLATERAL ACCOUNT" shall have the meaning set forth in
Section 3 hereof.
"DEFAULT" means any Event of Default as defined in the Loan
Agreement.
"DOMESTIC SUBSIDIARY" means, at any time, each of the direct
and indirect Subsidiaries of the Pledgor that is incorporated or organized under
the laws of the United States of America, any state thereof or the District of
Columbia.
`FOREIGN SUBSIDIARY" means, at any time, each of the direct or
indirect Subsidiaries of the Pledgor that is not a Domestic Subsidiary at such
time.
"OBLIGATIONS" shall have the meaning ascribed to such term in
the Loan Agreement.
"PLEDGED STOCK" means all Stock at any time pledged or
required to be pledged hereunder, including, without limitation, (a) with
respect to any Domestic Subsidiary, all of the Stock of each such Domestic
Subsidiary of the Pledgor at any time owned by the Pledgor, and (b) with respect
to any Foreign Subsidiary, Stock representing not more than 65% of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote and not more than 65% of any other investment property and
other additional securities of such Foreign Subsidiary.
"STOCK" means all of the issued and outstanding shares of
capital stock, together with any other investment property and additional
securities, of the Scheduled Subsidiaries of the Pledgor at any time owned by
the Pledgor.
"STOCK COLLATERAL" means the Pledged Stock and all proceeds
thereof and dividends, distributions or other income relating thereto, including
without limitation that included in Cash Collateral, and all other securities,
financial assets, investment property and monies owned by the Pledgor and
relating to the Pledged Stock received and held by the Pledgee hereunder or in
substitution for any of the foregoing, but excluding any income, increases or
proceeds received by the Pledgor to the extent expressly permitted by Section 6
hereof.
"TIME DEPOSITS" shall have the meaning set forth in
Section 3 hereof.
2. PLEDGE; DELIVERY.
2.1 As security for the prompt and unconditional payment and
performance of the Obligations, the Pledgor hereby pledges, collaterally assigns
and transfers to the Pledgee and grants the Pledgee a security interest in the
Pledged Stock owned by the Pledgor on the date hereof as described in EXHIBIT A
attached hereto and in
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the Stock Collateral, whether now owned or hereafter acquired. In furtherance
thereof, the Pledgor hereby delivers to the Pledgee certificates for said
Pledged Stock listed on Exhibit A, accompanied by undated stock powers duly
executed in blank by the Pledgor and hereby collaterally assigns, transfers and
sets over to the Pledgee all of the Pledgor's right, title and interest in and
to such certificates to be held by the Pledgee upon the terms and conditions set
forth in this Pledge Agreement. In addition, the Pledgor shall, upon the request
of the Pledgee, deliver to the Pledgee the stock transfer books of each
Scheduled Subsidiary to be held by the Pledgee for the duration of the pledge
hereunder, PROVIDED that prior to the earlier to occur of the transfer of the
Pledged Stock of such Scheduled Subsidiary into the name of the Pledgee (or its
nominee or successor) or the occurrence and continuance of an Event of Default,
the Pledgor shall only be required to deliver copies of such stock transfer
books to the Pledgee. If the Pledgor shall acquire by purchase, stock dividend
or otherwise any additional shares in the capital stock of a Scheduled
Subsidiary at any time or from time to time after the date hereof, the Pledgor
will forthwith pledge and deposit the same with the Pledgee hereunder and
deliver to the Pledgee certificates therefor, accompanied by undated stock
powers duly executed in blank by the Pledgor. The Pledgor agrees that the
Pledgee may from time to time attach as EXHIBIT A hereto an updated list of the
shares of capital stock or securities (and the issuers thereof) at the time
pledged with the Pledgee hereunder. The Pledgor shall not be required at any
time to pledge hereunder any Stock which represents more than 65% of the total
combined voting power of all classes of capital stock of any Foreign Subsidiary
entitled to vote or more than 65% of any other investment property or other
securities of such Foreign Subsidiary. The foregoing pledges and deliveries are
made by the Pledgor to the Pledgee for the ratable benefit of the Banks and the
Administrative Agent.
2.2 The Pledgor also hereby pledges, assigns, grants a
security interest in and delivers to the Pledgee, for the benefit of the Banks
and the Administrative Agent, the Cash Collateral Account and all of the Cash
Collateral as such terms are defined herein.
2.3 The Pledgee may, upon the occurrence of an Event of
Default, cause the Pledged Stock and any other securities constituting Stock
Collateral to be transferred into its own name or the name or names of its
nominee or nominees or successor in interest on the books of the issuer of such
securities, and the Pledgor hereby constitutes and appoints the Pledgee, its
employees, agents, successors and assigns to be the attorney-in-fact of the
Pledgor to effect any such transfer.
2.4 Without limiting the generality of Section 2.2 above, the
Pledgee may, in its sole discretion and at any time or times whether or not a
Default shall have occurred, collect, receive and hold as Cash Collateral for
the Obligations (or apply the same to any Obligation) all dividends,
distributions and other income on the Pledged Stock and the other Stock
Collateral, except for Restricted Payments expressly permitted to be made
pursuant to Section 6.11 of the Loan Agreement.
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3. LIQUIDATION, RECAPITALIZATION, ETC..
3.1 Any sums or other property paid or distributed upon or
with respect to any of the Pledged Stock, whether by dividend or redemption or
upon the liquidation or dissolution of the issuer thereof or otherwise, shall,
except to the limited extent provided in Section 6 hereof, be paid over and
delivered to the Pledgee to be held by the Pledgee, for the benefit of the Banks
and the Administrative Agent, as security for the payment and performance in
full of all of the Obligations. In case, pursuant to the recapitalization or
reclassification of the capital of the issuer thereof or pursuant to the
reorganization thereof, any distribution of capital shall be made on or in
respect of any of the Pledged Stock or any property shall be distributed upon or
with respect to any of the Pledged Stock, the property so distributed shall be
delivered to the Pledgee, for the benefit of the Banks and the Administrative
Agent, to be held by it as security for the Obligations. Except to the limited
extent provided in Section 6 hereof, all sums of money and property paid or
distributed in respect of the Pledged Stock, whether as a dividend or upon such
a liquidation, dissolution, recapitalization or reclassification or otherwise,
that are received by the Pledgor shall, until paid or delivered to the Pledgee,
be held in trust for the Pledgee, for the benefit of the Banks and the
Administrative Agent, as security for the payment and performance in full of all
of the Obligations.
3.2 All sums of money that are delivered to the Pledgee
pursuant to this Section 3 shall be deposited into an interest bearing account
with the Pledgee (the "Cash Collateral Account"). Some or all of the funds from
time to time in the Cash Collateral Account may be invested in time deposits,
including, without limitation, certificates of deposit issued by the Pledgee
(such certificates of deposit or other time deposits being hereinafter referred
to, collectively, as "Time Deposits"), that are satisfactory to the Pledgee
after consultation with the Pledgor, PROVIDED, that, in each such case,
arrangements satisfactory to the Pledgee are made and are in place to perfect
and to ensure the first priority of the Pledgee's security interest therein.
Interest earned on the Cash Collateral Account and on the Time Deposits, and the
principal of the Time Deposits at maturity that is not invested in new Time
Deposits, shall be deposited in the Cash Collateral Account. The Cash Collateral
Account, all sums from time to time standing to the credit of the Cash
Collateral Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds of any thereof are
hereinafter referred to as the "Cash Collateral."
3.3 Except as otherwise expressly provided in Section 16
hereof, the Pledgor shall have no right to withdraw sums from the Cash
Collateral Account, to receive any of the Cash Collateral or to require the
Pledgee to part with the Pledgee's possession of any instruments or other
writings evidencing any Time Deposits.
4. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The Pledgor
represents and warrants to the Pledgee as follows:
4.1 The Pledgor has full power, authority and legal right to
execute, deliver and perform its obligations under this Pledge Agreement and to
pledge and grant a security interest in all of the Stock Collateral pursuant to
this Pledge Agreement, and the execution, delivery and performance thereof and
the pledge of and granting of a security
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interest in the Stock Collateral hereunder have been duly authorized by all
necessary corporate or other action and do not contravene any law, rule or
regulation or any provision of the Pledgor's charter documents or by-laws or of
any judgment, decree or order of any tribunal or of any agreement or instrument
to which the Pledgor is a party or by which it or any of its property is bound
or affected or constitute a default thereunder;
4.2 The Pledgor is the sole legal and beneficial owner of all
of the Pledged Stock;
4.3 EXHIBIT A attached hereto accurately sets forth as to each
Domestic Subsidiary and each Foreign Subsidiary in which Pledged Stock is
pledged hereunder (i) the total number of shares of each class of stock of such
Domestic Subsidiary or Foreign Subsidiary issued and outstanding and (ii) the
total number of shares of each such class of stock that have been pledged
hereunder. With respect to each Foreign Subsidiary whose capital stock is
pledged hereunder, the Pledgor has pledged stock representing 65% of the total
combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote;
4.4 All of the shares of the Pledged Stock have been duly and
validly issued, are fully paid and nonassessable, and are owned by the Pledgor
free of any pledge, mortgage, hypothecation, lien, charge, encumbrance or
security interest in such shares or the proceeds thereof, except for that
granted hereunder or permitted under the Loan Agreement; and
4.5 Upon delivery of the Pledged Stock and related
certificates to the Pledgee or its agent, this Pledge Agreement shall create a
valid first lien upon and perfected security interest in the Pledged Stock and
the proceeds thereof, subject to no prior security interest, lien, charge or
encumbrance, or to any agreement purporting to grant to any third party a
security interest in the property or assets of the Pledgor which would include
the Pledged Stock.
5. COVENANTS OF THE PLEDGOR. The Pledgor covenants that it will defend
the rights of the Banks and the Administrative Agent and the security interest
of the Pledgee, for the benefit of the Banks and the Administrative Agent, in
the Stock set forth in EXHIBIT A hereto against the claims and demands of all
other persons whomsoever. The Pledgor further covenants that it will have the
like title to and right to pledge and grant a security interest in the Stock
Collateral hereafter pledged or in which a security interest is granted to the
Pledgee hereunder and will likewise defend the rights, pledge and security
interest thereof and therein of the Banks and the Administrative Agent.
6. DIVIDENDS; VOTING. Unless a Default shall have occurred and be
continuing, the Pledgor shall be entitled to receive all cash dividends paid in
respect of the Pledged Stock, to vote and exercise any and all other voting and
consensual rights with respect to any and all shares of the Pledged Stock and to
give consents, waivers or ratifications in respect thereof, PROVIDED that no
vote shall be cast or consent, waiver or ratification given or action taken
which, in the reasonable judgment of the Majority
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Banks, would violate or be inconsistent with any of the terms of this Pledge
Agreement or the other Agreements or would have the effect of impairing the
position or interests of the Pledgee. The Pledgee shall execute and deliver to
the Pledgor all such proxies and other instruments as may be necessary to
exercise such rights. Upon the occurrence and during the continuance of a
Default, (i) all such rights of the Pledgor to receive cash dividends shall
cease and (ii) the Pledgee shall have the right to vote, and to give consents,
waivers and ratifications with respect to, the Pledged Stock, PROVIDED that if
the Pledgee elects not to exercise such rights at any time, the Pledgor may
continue to exercise such rights, PROVIDED that the Pledgor shall not take any
vote or other action with respect to such Pledged Stock that would have an
adverse effect on the Pledgee, and if so directed in writing, shall vote or take
any such action as directed by the Pledgee.
7. REMEDIES UPON DEFAULT.
7.1 In case a Default shall have occurred and be continuing,
the Pledgee shall be entitled to exercise all of its rights, powers and remedies
(whether vested in it by this Pledge Agreement, the other Agreements or by law)
for the protection and enforcement of its rights in respect of the Stock
Collateral, and the Pledgee shall be entitled, without limitation, to exercise
the following rights and remedies (in addition to the rights and remedies of a
secured party under the Uniform Commercial Code of Massachusetts or any other
applicable jurisdiction), which the Pledgor hereby agrees shall be commercially
reasonable, all such rights and remedies being cumulative, not exclusive, and
enforceable alternatively, successively or concurrently, at such time or times
as the Pledgee deems expedient:
(a) to vote all or any part of the Pledged Stock (whether or
not transferred into the name of the Pledgee) and give all consents, waivers and
ratifications in respect of the Stock Collateral and otherwise act with respect
thereto as though it were the outright owner thereof (the Pledgor hereby
irrevocably constituting and appointing the Pledgee, its employees, agents,
successors and assigns the proxy and attorney-in-fact of the Pledgor, with full
power of substitution to do so);
(b) to demand, xxx for, collect or make any compromise or
settlement the Pledgee deems suitable in respect of any Stock Collateral;
(c) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the Stock Collateral,
or any interest therein, at any public or private sale without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof, except as provided below or as required by
law, or to redeem or otherwise, all of which are hereby waived by the Pledgor,
for cash, on credit or for other property, for immediate or future delivery
without any assumption of credit risk, and for such price or prices and on such
terms as the Pledgee in its discretion may determine in accordance with Section
9-504 of the Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts, provided that at least ten (10) days' prior written notice of the
time and place of any such sale shall
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be given to the Pledgor (which such notice the Pledgor hereby acknowledges and
agrees is commercially reasonable);
(d) to cause all or any part of the Stock held by the Pledgee
to be transferred into its name or the name of its nominee or nominees; and
(e) to set off against the Obligations any and all sums
deposited with the Pledgee or held by it, including without limitation, any sums
standing to the credit of the Cash Collateral Account and any Time Deposits
issued by the Pledgee.
7.2 In the event of any disposition of the Stock Collateral as
provided in Section 7.1(c), the Pledgee shall give to the Pledgor at least ten
(10) days' prior written notice of the time and place of any public sale of the
Stock Collateral or of the time after which any private sale or any other
intended disposition is intended to be made. The Pledgor hereby acknowledges
that ten (10) days' prior written notice of such sale or sales shall be
reasonable notice. The Pledgee may enforce its rights hereunder without any
other notice and without compliance with any other condition precedent now or
hereafter imposed by statute, rule of law or otherwise (all of which are hereby
expressly waived by the Pledgor, to the fullest extent permitted by law). If any
of the Stock Collateral is sold by the Pledgee upon credit or for future
delivery, the Pledgee shall not be liable for the failure of the purchaser to
pay for the same and in such event the Pledgee may resell such Stock Collateral.
The Pledgee may buy any part or all of the Stock Collateral at any public sale
and if any part or all of the Stock Collateral is of a type customarily sold in
a recognized market or is of the type which is the subject of widely-distributed
standard price quotations, the Pledgee may buy at a private sale and may make
payment therefor by any means including, without limitation, cancellation of
indebtedness secured thereby and payment of any surplus to the Borrower or such
other party as may be required by the provisions of the Uniform Commercial Code
of Massachusetts or any other applicable jurisdiction. The Pledgee may apply the
cash proceeds actually received from any sale or other disposition to the
reasonable expenses of retaking, holding, preparing for sale, selling and the
like, to reasonable attorneys' fees, travel and all other expenses which may be
reasonably incurred by the Administrative Agent in attempting to collect the
obligations or to enforce this Pledge Agreement or in the prosecution or defense
of any action or proceeding related to the subject matter of this Pledge
Agreement, and then to the Obligations pursuant to Section 9.2 of the Loan
Agreement. To the extent that any of the Obligations are to be paid or performed
by a person other than the Pledgor, the Pledgor, to the fullest extent permitted
by law, waives and agrees not to assert any rights or privileges which it may
have under the Uniform Commercial Code of Massachusetts or of any other
applicable jurisdiction.
7.3 INTENTIONALLY OMITTED.
7.4 The Pledgor recognizes that the Pledgee may be unable to
effect a public sale of the Stock by reason of certain prohibitions contained in
the Securities Act of 1933, as amended (the "Securities Act"), federal banking
laws or other applicable laws, regulations, or agreements to which such Stock
may be subject, but may be
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compelled to resort to one or more private sales thereof to a restricted group
of purchasers. The Pledgor agrees that any such private sales may be at prices
and other terms less favorable to the seller than if sold at public sales and
that such private sales shall be deemed to have been made in a "commercially
reasonable" manner within the meaning of the Uniform Commercial Code of the
Commonwealth of Massachusetts, PROVIDED that the notice specified in Section 7.1
shall have been given to the Pledgor. The Pledgee shall be under no obligation
to delay a sale of any of the Stock for the period of time necessary to permit
the issuer of such securities to register such securities for public sale under
the Securities Act, or such other federal banking or applicable laws, even if
the issuer would agree to do so. Subject to the foregoing, the Pledgee agrees
that any sale of the Stock shall be made in a commercially reasonable manner to
Persons for whom, and in a manner in which, exemptions provided by the
Securities Act would be available, and the Pledgor agrees to use its best
efforts to cause the issuer or issuers of the Stock contemplated to be sold, to
execute and deliver, and cause the directors and officers of such issuer to
execute and deliver, all at the Pledgor's expense, all such instruments and
documents, and to do or cause to be done all such other acts and things as may
be necessary or, in the reasonable opinion of the Pledgee, advisable to exempt
such Stock from registration under the provisions of the Securities Act, and to
make all amendments to such instruments and documents which, in the opinion of
the Pledgee, are necessary or advisable, all in conformity with the requirements
of the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Pledgor further agrees to use its
best efforts to cause such issuer or issuers to comply with the provisions of
the securities or "Blue Sky" laws of any jurisdiction which the Pledgee shall
designate and, if required, to cause such issuer or issuers to make available to
its security holders, as soon as practicable, an earnings statement (which need
not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
7.5 The Pledgor further agrees to do or cause to be done all
such other acts and things, other than the filing of a Registration Statement
under the provisions of the Securities Act or otherwise registering the Stock to
be sold to the general public, as may be reasonably necessary to make any sales
of any portion or all of the Stock pursuant to this Section 7 valid and binding
and in compliance with any and all applicable laws (including, without
limitation, the Securities Act, the Securities Exchange Act of 1934, as amended,
the rules and regulations of the Securities and Exchange Commission applicable
thereto and all applicable state securities or "Blue Sky" laws), regulations,
orders, writs, injunctions, decrees or awards of any and all courts, arbitrators
or governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at the Pledgor's expense. The Pledgor further agrees
that a breach of any of the covenants contained in this Section 7 will cause
irreparable injury to the Pledgee and the Banks, that the Pledgee and the Banks
have no adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in this Section 7 shall be
specifically enforceable against the Pledgor by the Pledgee and the Pledgor
hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants.
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7.6 At any sale of Stock Collateral, unless prohibited by
applicable law, the Pledgee or any holder of the Obligations may bid for and
purchase all or any part of the Stock Collateral so sold free from any such
right or equity of redemption.
8. REMEDIES CUMULATIVE. Each right, power and remedy of the Pledgee or
any holder of the Obligations provided for in this Pledge Agreement, the other
Agreements or in any of the other documents, instruments or agreements securing
the Obligations or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any holder of the Obligations of any one or more of the rights, powers or
remedies provided for in this Pledge Agreement, the other Agreements or in any
such other document, instrument or agreement now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any holder of the Obligations of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
or any holder of the Obligations to exercise any such right, power or remedy
shall operate as a waiver thereof.
9. MARSHALLING. Neither the Pledgee nor any Bank shall be required to
marshal any present or future collateral security for (including but not limited
to this Pledge Agreement and the Stock Collateral), or other assurances of
payment of, the Obligations or any of them, or to resort to such collateral
security or other assurances of payment in any particular order. All of the
Pledgee's rights hereunder and of the Banks and the Administrative Agent in
respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that it lawfully may, the Pledgor hereby agrees that it will not
invoke any law relating to the marshalling of collateral that might cause delay
in or impede the enforcement of the Pledgee's rights under this Pledge Agreement
or under any other instrument evidencing any of the Obligations or under which
any of the Obligations is outstanding or by which any of the Obligations is
secured or payment thereof is otherwise assured, and to the extent that it
lawfully may the Pledgor hereby irrevocably waives the benefits of all such
laws.
10. APPLICATION OF MONEYS BY THE PLEDGEE. All moneys collected upon any
sale of the Stock Collateral hereunder, together with all other moneys received
by the Pledgee hereunder, shall be applied as follows (i) First, to the payment
of all reasonable costs and expenses incurred by the Pledgee in connection with
such sale, the delivery of the Stock Collateral or the collection of any such
moneys (including, without limitation, reasonable attorneys' fees and all other
expenses reasonably incurred); (ii) Second, to satisfy the Obligations in such
manner as the Pledgee shall determine in its sole discretion; and (iii) Third,
to the Pledgor, or to such other Person(s) as may be required by applicable law,
to the extent of any surplus proceeds.
11. TRANSFER BY THE PLEDGOR. Except as may be permitted by the Loan
Agreement, the Pledgor will not sell or otherwise dispose of, grant any option
with respect to, or mortgage, pledge (except pursuant to this Pledge Agreement)
or otherwise
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encumber any of the Stock Collateral, any shares in the capital stock of any
Subsidiary, or any interest therein. Except as may be permitted by the Loan
Agreement, the Pledgor will not consent to or approve the issuance of (i) any
additional shares of any class of capital stock of any Subsidiary; (ii) any
securities convertible voluntarily by the holder thereof or automatically upon
the occurrence or nonoccurrence of any event or condition into, or exchangeable
for, any such shares; or (iii) any warrants, options, rights, or other
commitments entitling any person to purchase or otherwise acquire any such
shares.
12. INTENTIONALLY OMITTED.
13. FURTHER ASSURANCES. The Pledgor at its expense will execute,
acknowledge and deliver all such instruments and take all such action as the
Pledgee from time to time may reasonably request in order to further effectuate
the purposes of this Pledge Agreement and to carry out the terms hereof. If the
Pledgee so elects, a photocopy of this Agreement may at any time and from time
to time be filed by the Pledgee as a financing statement in any recording office
in any jurisdiction.
14. THE PLEDGEE'S EXONERATION. Under no circumstances shall the Pledgee
be deemed to assume any responsibility for or obligation or duty with respect to
any part or all of the Stock Collateral of any nature or kind, or any matter or
proceedings arising out of or relating thereto, other than (i) to exercise
reasonable care in the safe custody of the Stock Collateral and (ii) after a
Default shall have occurred and be continuing, to act in a commercially
reasonable manner. The Pledgee shall not be required to take any action of any
kind to collect, preserve or protect its or the Pledgor's rights in the Stock
Collateral or against other parties thereto. The Pledgee's prior recourse to any
part or all of the Stock Collateral shall not constitute a condition of any
demand, suit or proceeding for payment or collection of the Obligations.
15. NO WAIVER, ETC. The Pledgee may exercise its rights with respect to
the Stock Collateral without resorting or regard to other collateral or sources
of reimbursement. The Pledgee shall not be deemed to have waived any of its
rights upon or under the Obligations or the Stock Collateral unless such waiver
be in writing and signed by the Pledgee. No delay or omission on the part of the
Pledgee in exercising any right under this Pledge Agreement shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right on any future occasion. All
rights and remedies of the Pledgee on the Obligations or the Stock Collateral,
whether evidenced hereby or by any other instrument or papers, shall be
cumulative and may be exercised separately or concurrently.
16. TERMINATION. When all Obligations have been paid, performed and
indefeasibly discharged in full, and if at such time the Banks are not committed
to extend any credit to the Pledgor under the Loan Agreement or any other Loan
Document, this Pledge Agreement shall terminate and the Pledgee shall, upon
request and at the Pledgor's expense, execute all such documentation necessary
to release its security interest hereunder. Without limiting the foregoing, upon
such termination, the Pledgee, at the request and expense of the Pledgor, will
duly assign, transfer and deliver to the
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Pledgor, or its successors or assigns, as the case may be, such of the Stock
Collateral (including stock powers and stock certificates) in the possession or
control of the Pledgee as has not theretofore been sold or otherwise applied or
released pursuant to this Pledge Agreement, together with any moneys and other
property at the time held by the Pledgee hereunder.
17. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the
Pledgor hereunder shall be a debt secured by the Stock Collateral and shall
bear, whether before or after judgment, interest at the rate of interest for
overdue principal set forth in the Loan Agreement.
18. MISCELLANEOUS.
18.1 SUCCESSORS AND ASSIGNS. This Pledge Agreement shall inure
to the benefit of and shall be binding upon the parties hereto and their
respective successors and assigns whether or not an express assignment of rights
hereunder is made, provided that the Pledgor may not assign this Pledge
Agreement without the consent of the Pledgee. No other person shall acquire or
have any right under or by virtue of this Pledge Agreement.
18.2 PROVISIONS TO SURVIVE. All representations, warranties,
covenants and agreements contained in this Pledge Agreement shall survive the
execution and delivery of the Agreements and shall continue until payment in
full of all Obligations.
18.3 SEVERABILITY. If any provision of this Pledge Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
that holding shall not invalidate or render unenforceable any other provision
hereof.
18.4 AMENDMENTS. This Pledge Agreement may be amended,
modified and supplemented only by written agreement of the parties hereto.
18.5 EXECUTION AND COUNTERPARTS. This Pledge Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute one and the same instrument.
18.6 CAPTIONS. Captions and headings in this Pledge Agreement
are for convenience only and in no way define, limit or describe the scope or
intent of the provisions hereof.
18.7 NOTICES. All notices, certificates or other
communications hereunder shall be in writing and shall be sufficiently given and
shall be deemed given when given in the manner prescribed in the Loan Agreement
and delivered to a party at its address set forth at the beginning of this
Pledge Agreement or to such other address as a party shall furnish by notice to
the other parties.
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18.8 GOVERNING LAW; CONSENT TO JURISDICTION. THIS PLEDGE
AGREEMENT AND ALL RIGHTS AND OBLIGATIONS HEREUNDER, INCLUDING MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS). THIS PLEDGE AGREEMENT IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT. The Pledgor agrees that any suit for the
enforcement of this Pledge Agreement may be brought in the courts of the
Commonwealth of Massachusetts or the United States of America for the District
of Massachusetts and consents to the non-exclusive jurisdiction of such court
and to service of process in any such suit being made upon the Pledgor by mail
at the address specified in the Loan Agreement. The Pledgor hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any
such court or that such suit is brought in an inconvenient court.
18.9 WAIVER OF JURY TRIAL. THE PLEDGOR AND THE PLEDGEE
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED
TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE PLEDGEE TO ENTER INTO THIS
PLEDGE AGREEMENT AND MAKE LOANS AND EXTEND CREDIT TO THE BORROWER. Except as
prohibited by law, the Pledgor waives any right which it may have to claim or
recover in any litigation referred to in the first sentence of this Section 18.9
any special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. The Pledgor (i) certifies that neither
the Pledgee, nor any Bank nor any representative, agent or attorney of the
Pledgee or any Bank has represented, expressly or otherwise, that the Pledgee or
any Bank would not, in the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that, in entering into the Loan Agreement and the
other Loan Documents to which the Pledgee is a party, the Pledgee and the Banks
are relying upon, among other things, the waivers and certifications contained
in this Section 18.9.
(Signatures on next page)
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IN WITNESS WHEREOF, the parties have caused this Pledge Agreement to be
duly executed and sealed by their duly authorized officers or representatives,
all as of the date first above written.
XXX-XXXX CORPORATION
By:__________________________________
Name: _______________________
Title: ________________________
____________________, as Administrative Agent
By_________________________________
Name: ______________________
Title: _______________________
The undersigned Subsidiaries consent and agree to this Pledge Agreement and
hereby join in the Pledge Agreement for the sole purpose of consenting to and
being bound by the provisions of Sections 3.1, 6 and 7 thereof, the undersigned
hereby agreeing to cooperate fully and in good faith with the Pledgee and the
Pledgor in carrying out such provisions.
XXX-XXXX SERVICES, INC.
By_________________________________
Name: ______________________
Title: _______________________
INTIRION CORPORATION
By_________________________________
Name: ______________________
Title: _______________________
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