EXHIBIT 10.34
PLEDGE AGREEMENT
(Bank Deposits)
This PLEDGE AGREEMENT, dated this 14th day of March, 2000, is made by
XXXXXXX X. X'XXXXXX, an individual resident of the State of Michigan (the
"Pledgor"), with an address at 0 Xxxx Xxxx Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx
00000, in favor of PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as collateral and administrative agent for Lenders (as identified
below) (together with its successors in such capacity, the "Agent").
Recitals:
ELTRAX SYSTEMS, INC., a Minnesota corporation ("Eltrax"), various of its
subsidiaries (jointly and severally with Eltrax, the "Borrowers"), the various
financial institutions that are parties thereto from time to time as lenders
("Lenders"), and Agent have entered into a certain Revolving Credit and Security
Agreement dated of even date herewith (together with all amendments thereto, the
"Credit Agreement"), pursuant to which Lenders may from time to time make loans
or extend other financial accommodations to or for the benefit of Borrowers.
Pursuant to that certain Limited Guaranty Agreement dated the date hereof
of in favor of Agent and Lenders (as at any time amended, the "Guaranty"),
Pledgor has guaranteed the payment and performance to Agent and Lenders of the
Obligations (as hereinafter defined).
A condition to Lenders' willingness to fund any Loans is Pledgor's
execution and delivery of this Agreement. To induce Lenders to make loans and
otherwise extend credit pursuant to the Credit Agreement, Pledgor has agreed to
grant a continuing security interest in and to the Collateral (as hereinafter
defined) as security for the timely payment and performance of the Obligations
(as hereinafter defined).
NOW, THEREFORE, for Ten Dollars ($10.00) in hand paid to Pledgor and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to secure the timely payment and performance of the Secured
Obligations (as defined below), Pledgor agrees as follows:
1. Pledge. In order to induce the Lenders to extend the Obligations (as
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defined below), the Pledgor hereby grants a security interest in and pledges to
Agent, for its benefit and the ratable benefit of Lenders, and to all other
direct or indirect subsidiaries of PNC Bank Corp., all of the Pledgor's right,
title and interest in and to the accounts, deposits, deposit accounts, and
certificates of deposit, whether negotiable or nonnegotiable, and all security
entitlements of the Pledgor with respect thereto, whether now owned or hereafter
acquired, including those entries on the records of the issuing institution, and
any and all renewals, substitutions, replacements and proceeds and all income,
interest and other distributions thereon maintained in the name of the Pledgor
by the issuing institution, as more fully described on Exhibit A attached hereto
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and made a part hereof (the "Collateral").
The Pledgor agrees that (i) Agent shall have the sole and exclusive right
of withdrawal of the Collateral, (ii) until the release of the Guaranty and the
satisfaction of Guaranty Release Conditions (as defined in the Guaranty), the
Pledgor shall have no right of withdrawal of the Collateral, and (iii) Agent may
make appropriate notations in its books and records (electronic or otherwise) to
effectuate the foregoing.
2. Obligations Secured. The Collateral secures payment of all loans,
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advances, debts, liabilities, obligations, covenants and duties owing to the
Agent or any Lender or to any other direct or
indirect subsidiary of PNC Bank Corp. from the Pledgor and from any Borrower, of
any kind or nature, present or future (including any interest accruing thereon
after maturity, or after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding relating to
the Pledgor or any Borrower, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether or not evidenced by
any note, guaranty or other instrument, whether arising under any agreement,
instrument or document, whether or not for the payment of money, whether arising
by reason of an extension of credit, opening of a letter of credit, loan,
equipment lease or guarantee, under any interest or currency swap, future,
option or other interest rate protection or similar agreement, or in any other
manner, whether arising out of overdrafts on deposit or other accounts or
electronic funds transfers (whether through automated clearing houses or
otherwise) or out of Agent's non-receipt of or inability to collect funds or
otherwise not being made whole in connection with depository transfer check or
other similar arrangements, whether direct or indirect (including those acquired
by assignment or participation), absolute or contingent, joint or several, due
or to become due, now existing or hereafter arising, and any amendments,
extensions, renewals or increases and all costs and expenses of Agent incurred
in the documentation, negotiation, modification, enforcement, collection or
otherwise in connection with any of the foregoing, including reasonable
attorneys' fees and expenses (collectively, the "Obligations").
3. Representations and Warranties. The Pledgor represents and warrants
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to Agent that (a) no prior lien or encumbrance exists on the Collateral, and the
Pledgor will not grant or suffer to exist any such lien or encumbrance in the
future, and (b) the Pledgor is the legal owner of the Collateral and has the
right to pledge and grant a security interest in the Collateral without the
consent of any other party other than the issuing institution, which the Pledgor
has caused or will cause to execute the Acknowledgment in substantially the form
attached hereto.
4. Default.
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4.1. If any of the following occur (each an "Event of Default"): (i)
any Event of Default occurs under the Credit Agreement, (ii) any default under
any of the Obligations that does not have a defined set of "Events of Default"
and the lapse of any notice or cure period provided in such Obligations with
respect to such default, (iii) demand by the Agent or Lenders under any of the
Obligations that have a demand feature, (iv) the failure by the Pledgor to
perform any of its obligations hereunder, (v) the falsity, inaccuracy or
material breach by the Pledgor of any written warranty, representation or
statement made or furnished to Agent by or on behalf of the Pledgor, (vi) the
failure of Agent to have a perfected first priority security interest in the
Collateral, (vii) any restriction is imposed on the pledge or transfer of any of
the Collateral after the date of this Agreement without the prior written
consent of Agent, or (viii) the breach of the Control Agreement (referred to in
Section 6 below), or receipt of notice of termination of the Control Agreement
if no successor custodian acceptable to Agent has executed a Control Agreement
in form and substance acceptable to Agent on or before 10 days prior to the
effective date of the termination, then Agent is authorized in its discretion to
declare any or all of the Obligations to be immediately due and payable without
demand or notice, which are expressly waived, and may exercise any one or more
of the rights and remedies granted pursuant to this Pledge Agreement or given to
a secured party under the Uniform Commercial Code of the applicable state, as it
may be amended from time to time, or otherwise at law or in equity, including
without limitation the right to sell or otherwise dispose of any or all of the
Collateral at public or private sale, with or without advertisement thereof,
upon such terms and conditions as it may deem advisable and at such prices as it
may deem best.
4.2. Agent is authorized to draw the funds represented by the
Collateral, in whole or in part, and to do all acts necessary to draw such
funds, to apply to all Obligations secured hereby, whether declared immediately
due and payable or otherwise, and the officers of the issuing institution are
authorized and directed to pay the same to Agent on demand.
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4.3. The net proceeds arising from the disposition of the Collateral
after deducting expenses incurred by the Agent will be applied to the
Obligations in accordance with the Credit Agreement. If any excess remains after
the discharge of all of the Obligations, the same will be paid to the Pledgor.
If after exhausting all of the Collateral there is a deficiency, the Pledgor or,
if the Pledgor is not borrowing from Agent or Lenders or providing a guaranty of
the Borrowers' Obligations, the Borrowers will be liable therefor to Agent and
the Lenders; provided, however, that nothing contained herein will obligate
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Agent to proceed against any Borrower or any other party obligated under the
Obligations or against any other collateral for the Obligations prior to
proceeding against the Collateral.
4.4. If any demand is made at any time upon Agent or any Lender for
the repayment or recovery of any amount received by it in payment or on account
of any of the Obligations and if Agent or such Lender repays all or any part of
such amount by reason of any judgment, decree or order of any court or
administrative body or by reason of any settlement or compromise of any such
demand, the Pledgor will be and remain liable for the amounts so repaid or
recovered to the same extent as if such amount had never been originally
received by Agent. The provisions of this section will be and remain effective
notwithstanding the release of any of the Collateral by Agent in reliance upon
such payment (in which case the Pledgor's liability will be limited to an amount
equal to the fair market value of the Collateral determined as of the date such
Collateral was released) and any such release will be without prejudice to
Agent's rights hereunder and will be deemed to have been conditioned upon such
payment having become final and irrevocable. This Section shall survive the
termination of this Pledge Agreement.
5. Interest and Premiums. All interest and premiums declared or paid on
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the Collateral shall be the property of the Pledgor but shall remain as
Collateral, subject to the restrictions contained in this Agreement, unless
released by Agent, in its discretion, following a request from Pledgor. At any
time after the occurrence of an Event of Default, Agent shall be entitled to
apply all interest and premiums declared or paid on the Collateral in accordance
with the provisions of Section 4 above.
6. Securities Account. If the Collateral includes certificate(s) of
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deposit maintained in a securities account, then the Pledgor agrees to cause the
securities intermediary on whose books and records the ownership interest of the
Pledgor in the Collateral appears (the "Custodian") to execute and deliver,
contemporaneously herewith, a notification and control agreement or other
agreement satisfactory to Agent (the "Control Agreement") in order to perfect
and protect Agent's security interest in the Collateral.
7. Further Assurances. At any time and from time to time, upon demand of
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Agent, the Pledgor will give, execute, file and record any notice, financing
statement, continuation statement, instrument, document or agreement that Agent
may consider necessary or desirable to create, preserve, continue, perfect or
validate any security interest granted hereunder or to enable Agent to exercise
or enforce its rights hereunder with respect to such security interest. Without
limiting the generality of the foregoing, the Pledgor hereby irrevocably
appoints Agent as the Pledgor's attorney-in-fact to do all acts and things in
the Pledgor's name that Agent may deem necessary or desirable. This power of
attorney is coupled with an interest with full power of substitution and is
irrevocable. Agent is authorized to file financing statements, continuation
statements and other documents under the Uniform Commercial Code relating to the
Collateral without the Pledgor's signature, naming the Pledgor as debtor and
Agent as secured party.
8. Notices. All notices, demands, requests, consents, approvals and
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other communications required or permitted hereunder must be in writing and will
be effective upon receipt to the Pledgor or Agent. Such notices may be hand-
delivered, sent by facsimile transmission with confirmation of delivery and a
copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to a party's address
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set forth above or to such other address as either the Pledgor or Agent may give
to the other in writing for such purpose.
9. Preservation of Rights. (a) No delay or omission on Agent's part to
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exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will Agent's
action or inaction impair any such right or power. Agent's rights and remedies
hereunder are cumulative and not exclusive of any other rights or remedies which
Agent may have under other agreements, at law or in equity.
(b) Agent and Lenders may, at any time and from time to time, without
notice to or the consent of the Pledgor or any Borrower unless otherwise
expressly required pursuant to the terms of the Credit Agreement, and without
impairing or releasing, discharging or modifying the Pledgor's liabilities
hereunder, (i) change the manner, place, time or terms of payment or performance
of or interest rates on, or other terms relating to, any of the Obligations;
(ii) renew, substitute, modify, amend or alter, or grant consents or waivers
relating to any of the Obligations, any other pledge or security agreements, or
any security for any Obligations; (iii) apply any and all payments by whomever
paid or however realized including any proceeds of any collateral, to any
Obligations of the Pledgor or the Borrowers in such order, manner and amount as
Agent may determine in its sole discretion; (iv) deal with any other person with
respect to any Obligations in such manner as Agent deems appropriate in its sole
discretion; (v) substitute, exchange or release any security or guaranty; or
(vi) take such actions and exercise such remedies hereunder as provided herein.
The Pledgor and the Borrowers hereby waive (a) presentment, protest, notice of
dishonor and notice of non-payment, and (b) all defenses based on suretyship or
impairment of collateral.
10. Illegality. In case any one or more of the provisions contained in
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this Pledge Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
11. Changes in Writing. No modification, amendment or waiver of any
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provision of this Pledge Agreement nor consent to any departure by the Pledgor
therefrom will be effective unless made in a writing signed by Agent, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on the Pledgor in any case
will entitle the Pledgor to any other or further notice or demand in the same,
similar or other circumstance.
12. Entire Agreement. This Pledge Agreement (including the documents and
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instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the Pledgor and Agent with respect to the subject matter hereof.
13. Successors and Assigns. This Pledge Agreement will be binding upon
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and inure to the benefit of the Pledgor and Agent and their respective heirs,
executors, administrators, successors and assigns; provided, however, that the
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Pledgor may not assign this Pledge Agreement in whole or in part without Agent's
prior written consent and Agent at any time may assign this Pledge Agreement in
whole or in part.
14. Interpretation. In this Pledge Agreement, unless Agent and the
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Pledgor otherwise agree in writing, the singular includes the plural and the
plural the singular; references to statutes are to be construed as including all
statutory provisions consolidating, amending or replacing the statute referred
to; the word "or" shall be deemed to include "and/or", the words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation." Section headings in this Pledge Agreement are included for
convenience of reference only and shall not constitute a part of this Pledge
Agreement for any other purpose.
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If this Pledge Agreement is executed by more than one party as Pledgor, the
obligations of such persons or entities will be joint and several.
15. Indemnity. The Pledgor agrees to indemnify each of Agent, Lenders,
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their respective directors, officers and employees and each legal entity, if
any, who controls Agent or any Lender (the "Indemnified Parties") and to hold
each Indemnified Party harmless from and against any and all claims, damages,
losses, liabilities and expenses (including all fees of counsel with whom any
Indemnified Party may consult and all expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party as a result of the execution of or performance under this
Pledge Agreement and under any Control Agreement; provided, however, that the
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foregoing indemnity agreement shall not apply to claims, damages, losses,
liabilities and expenses solely attributable to an Indemnified Party's gross
negligence or willful misconduct. The indemnity agreement contained in this
Section shall survive the termination of this Pledge Agreement. The Pledgor may
participate at its expense in the defense of any such claim.
16. Governing Law and Jurisdiction. This Pledge Agreement has been
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delivered to and accepted by Agent and will be deemed to be made in the State of
Georgia. This Pledge Agreement will be interpreted and the rights and
liabilities of the Pledgor and Agent determined in accordance with the laws of
the State of Georgia. The Pledgor hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court in the in the County of Xxxx, State
of Georgia; provided that nothing contained in this Pledge Agreement will
prevent Agent from bringing any action, enforcing any award or judgment or
exercising any rights against the Pledgor individually, against any security or
against any property of the Pledgor within any other county, state or other
foreign or domestic jurisdiction. The Pledgor acknowledges and agrees that the
venue provided above is the most convenient forum for both Agent and the
Pledgor. The Pledgor waives any objection to venue and any objection based on a
more convenient forum in any action instituted under this Pledge Agreement.
17. WAIVER OF JURY TRIAL. THE PLEDGOR IRREVOCABLY WAIVES ANY AND ALL
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RIGHT THE PLEDGOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM
OF ANY NATURE RELATING TO THIS PLEDGE AGREEMENT, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS PLEDGE AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF
SUCH DOCUMENTS. THE PLEDGOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING
AND VOLUNTARY.
The Pledgor acknowledges that it has read and understood all the provisions of
this Pledge Agreement, including the waiver of jury trial, and has been advised
by counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above.
Witness:
/s/ Xxxxxxx X. X'Xxxxxx
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Xxxxxxx X. X'Xxxxxx (SEAL)
Print Name:______________________
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ACKNOWLEDGMENT
The issuing institution acknowledges notification of the foregoing Pledge
Agreement and represents that said assignment and security interest will be
recognized; that it has received no notice of, and has no knowledge of, any
other assignment of, or security interest in any or all of the Collateral that
are on the books and records of the undersigned and subject to the foregoing
Pledge Agreement; that it will not release the Collateral to the Pledgor until
notice of termination of the Pledge Agreement is received from Agent; and that
the Collateral is not subject to any claim for credits, allowance or adjustment
or any set off, defense or counterclaim. The issuing institution hereby waives,
as against Agent, all such claims for credit, allowance or adjustment, set offs,
defenses and counterclaims, whether now existing or hereafter arising, hereby
subordinates in favor of Agent any other liens or security interests the issuing
institution may have in the Collateral, whether now existing or hereafter
arising, and hereby waives any right to require a court order or indemnity bond
as a condition to the recognition of the Pledge Agreement and payment to Agent.
WITNESS the due execution and sealing hereof this 14th day of March, 2000 with
the intent to be legally bound hereby.
WITNESS/ATTEST: ISSUING INSTITUTION:
PNC BANK, NATIONAL ASSOCIATION
------------------------------------- By: /s/ Xxxx X. Xxxxxxxx
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Print Name: Print Name: Xxxx X. Xxxxxxxx
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Title: Vice President
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EXHIBIT A
TO PLEDGE AGREEMENT
Issuer Dollar Amount Account Title/Account No.
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PNC Bank, National $2,800,000 Certificate of Deposit
Association No. 31900181454
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