Amended and Restated Pledge Agreement (Stocks, Bonds and Commercial Paper)
Exhibit 99.4
| Amended and Restated Pledge Agreement | ||
| (Stocks, Bonds and Commercial Paper) |  |
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (“Pledge Agreement”), dated as of this
19th day of November, 2008, is made by XXXXX FAMILY LIMITED PARTNERSHIP (the “Pledgor”),
with an address at 0000 Xxxxx Xxxx, Xxxx, XX 00000, in favor of PNC BANK, NATIONAL ASSOCIATION
(the “Secured Party”), with an address at 000 Xxxxx Xxxxxx, Xxxx, XX 00000, and amends and
restates in its entirety that certain Pledge Agreement dated as of June 25, 2007 (the “Existing
Pledge Agreement”). This Amended and Restated Pledge Agreement amends and restates and continues
the liens and security interests created under the Existing Pledge Agreement, and the execution and
delivery of this Amended and Restated Pledge Agreement shall not affect the perfection or priority
of the liens and security interests created under the Existing Pledge Agreement.
1. Pledge. In order to induce the Secured Party to extend the Obligations (as defined
below), the Pledgor hereby grants a security interest in and pledges to the Secured Party, and to
all other direct or indirect subsidiaries of The PNC Financial Services Group, Inc., all of the
Pledgor’s right, title and interest in and to the investment property and other assets described in
Exhibit A attached hereto and made a part hereof, and all security entitlements of the Pledgor with
respect thereto, whether now owned or hereafter acquired, together with all additions,
substitutions, replacements and proceeds thereof and all income, interest, dividends and other
distributions thereon (collectively, the “Collateral”). If the Collateral includes certificated
securities, documents or instruments, such certificates are herewith delivered to the Secured Party
accompanied by duly executed blank stock or bond powers or assignments as applicable. The Pledgor
hereby authorizes the transfer of possession of all certificates, instruments, documents and other
evidence of the Collateral to the Secured Party.
2. Obligations Secured. The Collateral secures payment of all loans, advances, debts,
liabilities, obligations, covenants and duties owing from the Pledgor (the “Borrower”) to the
Secured Party or to any other direct or indirect subsidiary of The PNC Financial Services Group,
Inc., 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 the Borrower, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding), 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, whether or not (i) evidenced
by any note, guaranty or other instrument, (ii) arising under any agreement, instrument or
document, (iii) for the payment of money, (iv) arising by reason of an extension of credit, opening
of a letter of credit, loan, equipment lease or guarantee, (v) under any interest or currency swap,
future, option or other interest rate protection or similar agreement, (vi) under or by reason of
any foreign currency transaction, forward, option or other similar transaction providing for the
purchase of one currency in exchange for the sale of another currency, or in any other manner, or
(vii) arising out of overdrafts on deposit or other accounts or out of electronic funds transfers
(whether by wire transfer or through automated clearing houses or otherwise) or out of the return
unpaid of, or other failure of the Secured Party to receive final payment for, any check, item,
instrument, payment order or other deposit or credit to a deposit or other account, or out of the
Secured Party’s non-receipt of or inability to collect funds or otherwise not being made whole in
connection with depository or other similar arrangements; and any amendments, extensions, renewals
and increases of or to any of the foregoing, and all costs and expenses of the Secured Party
incurred in the documentation, negotiation, modification, enforcement, collection and otherwise in
connection with any of the foregoing, including reasonable attorneys’ fees and expenses
(hereinafter referred to collectively as the “Obligations”).
3. Representations and Warranties. The Pledgor represents and warrants to the Secured
Party as follows:
Form 11A – Multistate Rev. 01/02
3.1 There are no restrictions on the pledge or transfer of any of the Collateral, other than
restrictions referenced on the face of any certificates evidencing the Collateral.
3.2 The Pledgor is the legal owner of the Collateral, which is registered in the name of the
Pledgor, the Custodian (as hereinafter defined) or a nominee.
3.3 The Collateral is free and clear of any security interests, pledges, liens, encumbrances,
charges, agreements, claims or other arrangements or restrictions of any kind, except as referenced
in Section 3.1 above; and the Pledgor will not incur, create, assume or permit to exist any pledge,
security interest, lien, charge or other encumbrance of any nature whatsoever on any of the
Collateral or assign, pledge or otherwise encumber any right to receive income from the Collateral,
other than in favor of the Secured Party.
3.4 The Pledgor has the right to transfer the Collateral free of any encumbrances and the
Pledgor will defend the Pledgor’s title to the Collateral against the claims of all persons, and
any registration with, or consent or approval of, or other action by, any federal, state or other
governmental authority or regulatory body which was or is necessary for the validity of the pledge
of and grant of the security interest in the Collateral has been obtained.
3.5 The pledge of and grant of the security interest in the Collateral is effective to vest in
the Secured Party a valid and perfected first priority security interest, superior to the rights of
any other person, in and to the Collateral as set forth herein.
4. Covenants.
4.1 Unless otherwise agreed in writing between the Pledgor and the Secured Party, the Pledgor
agrees to maintain at all times Collateral (of the type listed in Exhibit B attached hereto) having
a minimum Margin Value equal to at least the outstanding amount of the Obligations and to provide
additional Collateral (of the type listed in Exhibit B attached hereto) to the Secured Party
immediately upon the Secured Party’s request if the minimum Margin Value is not maintained.
“Margin Value” shall be calculated by multiplying the market value of the Collateral times the
Secured Party’s margin percentage requirements for the type of Collateral in effect from time to
time, or as otherwise agreed in writing. The margin requirements currently in effect are set forth
on Exhibit B, and the Secured Party will endeavor to promptly notify the Pledgor of any change in
the margin requirements.
4.2 If all or part of the Collateral constitutes “margin stock” within the meaning of
Regulation U of the Federal Reserve Board, the Pledgor agrees, or if the Pledgor is not the
Borrower, it shall cause the Borrower, to execute and deliver Form U-1 to the Secured Party and,
unless otherwise agreed in writing between the Borrower and the Secured Party, no part of the
proceeds of the Obligations may be used to purchase or carry margin stock.
4.3 Pledgor agrees not to invoke, and hereby waives its rights under, any statute under any
state or federal law which permits the recharacterization of any portion of the Collateral to be
interest or income.
5. Default.
5.1 If any of the following occur (each an “Event of Default”): (i) any Event of Default (as
defined in any of the Obligations), (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 Secured Party 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 the Secured Party by or on behalf of the
Pledgor, (vi) the failure of the Secured Party 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
Form 11A — Multistate Rev. 01/02
- 2 -
Agreement without the Secured Party’s prior written consent, or (viii) the breach of the Control
Agreement (referred to in Section 8 below), or receipt of notice of termination of the Control
Agreement if no successor custodian acceptable to the Secured Party has executed a Control
Agreement in form and substance acceptable to the Secured Party on or before 10 days prior to the
effective date of the termination, then the Secured Party 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 issue a Notice of Exclusive Control (as defined in the
Control Agreement) to the Custodian, and/or 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.
5.2 (a) At any bona fide public sale, and to the extent permitted by law, at any private sale,
the Secured Party shall be free to purchase all or any part of the Collateral, free of any right or
equity of redemption in the Pledgor or Borrower, which right or equity is hereby waived and
released. Any such sale may be on cash or credit. The Secured Party shall be authorized at any
such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to
persons who will represent and agree that they are purchasing the Collateral for their own account
in compliance with Regulation D of the Securities Act of 1933 (the “Act”) or any other applicable
exemption available under such Act. The Secured Party will not be obligated to make any sale if it
determines not to do so, regardless of the fact that notice of the sale may have been given. The
Secured Party may adjourn any sale and sell at the time and place to which the sale is adjourned.
If the Collateral is customarily sold on a recognized market or threatens to decline speedily in
value, the Secured Party may sell such Collateral at any time without giving prior notice to the
Pledgor. Whenever notice is otherwise required by law to be sent by the Secured Party to the
Pledgor of any sale or other disposition of the Collateral, ten (10) days written notice sent to
the Pledgor at its address specified above will be reasonable.
(b) The Pledgor recognizes that the Secured Party may be unable to effect or cause to be
effected a public sale of the Collateral by reason of certain prohibitions contained in the Act, so
that the Secured Party may be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obligated to agree, among other things, to acquire the Collateral
for their own account, for investment and without a view to the distribution or resale thereof.
The Pledgor understands that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral were sold at public sales, and agrees that the
Secured Party has no obligation to delay or agree to delay the sale of any of the Collateral for
the period of time necessary to permit the issuer of the securities which are part of the
Collateral (even if the issuer would agree), to register such securities for sale under the Act.
The Pledgor agrees that private sales made under the foregoing circumstances shall be deemed to
have been made in a commercially reasonable manner.
5.3 The net proceeds arising from the disposition of the Collateral after deducting expenses
incurred by the Secured Party will be applied to the Obligations in the order determined by the
Secured Party. 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 the Secured Party or providing a guaranty of the
Borrower’s obligations, the Borrower will be liable therefor to the Secured Party;
provided, however, that nothing contained herein will obligate the Secured Party to
proceed against the Pledgor, the Borrower or any other party obligated under the Obligations or
against any other collateral for the Obligations prior to proceeding against the Collateral.
5.4 If any demand is made at any time upon the Secured Party for the repayment or recovery of
any amount received by it in payment or on account of any of the Obligations and if the Secured
Party 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 the Secured Party. The provisions of this section
will be and remain effective notwithstanding the release of any of
Form 11A — Multistate Rev. 01/02
- 3 -
the Collateral by the Secured Party 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 the
Secured Party’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.
6. Voting Rights and Transfer. Prior to the occurrence of an Event of Default, the
Pledgor will have the right to exercise all voting rights with respect to the Collateral. At any
time after the occurrence of an Event of Default, the Secured Party may transfer any or all of the
Collateral into its name or that of its nominee and may exercise all voting rights with respect to
the Collateral, but no such transfer shall constitute a taking of such Collateral in satisfaction
of any or all of the Obligations unless the Secured Party expressly so indicates by written notice
to the Pledgor.
7. Dividends, Interest and Premiums. The Pledgor will have the right to receive all
cash dividends, interest and premiums declared and paid on the Collateral prior to the occurrence
of any Event of Default. In the event any additional shares are issued to the Pledgor as a stock
dividend or in lieu of interest on any of the Collateral, as a result of any split of any of the
Collateral, by reclassification or otherwise, any certificates evidencing any such additional
shares will be immediately delivered to the Secured Party and such shares will be subject to this
Pledge Agreement and a part of the Collateral to the same extent as the original Collateral. At
any time after the occurrence of an Event of Default, the Secured Party shall be entitled to
receive all cash or stock dividends, interest and premiums declared or paid on the Collateral, all
of which shall be subject to the Secured Party’s rights under Section 5 above.
8. Securities Account. If the Collateral includes securities or any other financial
or other asset 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 (the “Control Agreement”) satisfactory to the Secured Party in
order to perfect and protect the Secured Party’s security interest in the Collateral.
9. Further Assurances. By its signature hereon, the Pledgor hereby irrevocably
authorizes the Secured Party, at any time and from time to time, to execute (on behalf of the
Pledgor), file and record against the Pledgor any notice, financing statement, continuation
statement, amendment statement, instrument, document or agreement under the Uniform Commercial Code
that the Secured Party may consider necessary or desirable to create, preserve, continue, perfect
or validate any security interest granted hereunder or to enable the Secured Party 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 the Secured Party as the
Pledgor’s attorney-in-fact to do all acts and things in the Pledgor’s name that the Secured Party
may deem necessary or desirable. This power of attorney is coupled with an interest with full
power of substitution and is irrevocable. The Pledgor hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof.
10. Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder (“Notices”) must be in writing and will be effective
upon receipt. Notices may be given in any manner to which the parties may separately agree,
including electronic mail. Without limiting the foregoing, first-class mail, facsimile transmission
and commercial courier service are hereby agreed to as acceptable methods for giving Notices.
Regardless of the manner in which provided, Notices may be sent to a party’s address as set forth
above or to such other address as either the Pledgor or the Secured Party may give to the other for
such purpose in accordance with this section.
11. Preservation of Rights. No delay or omission on the Secured Party’s part to
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 the Secured Party’s action or inaction impair any
such right or power. The Secured Party’s rights
Form 11A — Multistate Rev. 01/02
- 4 -
and remedies hereunder are cumulative and not exclusive of any other rights or remedies which the
Secured Party may have under other agreements, at law or in equity.
12. Illegality. In case any one or more of the provisions contained in this Pledge
Agreement should be invalid, illegal or unenforceable in any respect, it shall not affect or impair
the validity, legality and enforceability of the remaining provisions in this Pledge Agreement.
13. Changes in Writing. No modification, amendment or waiver of, or consent to any
departure by the Pledgor from, any provision of this Pledge Agreement will be effective unless made
in a writing signed by the Secured Party, 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.
14. Entire Agreement. This Pledge Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the Pledgor and the Secured Party with respect to
the subject matter hereof.
15. Successors and Assigns. This Pledge Agreement will be binding upon and inure to
the benefit of the Pledgor and the Secured Party and their respective heirs, executors,
administrators, successors and assigns; provided, however, that the Pledgor may not
assign this Pledge Agreement in whole or in part without the Secured Party’s prior written consent
and the Secured Party at any time may assign this Pledge Agreement in whole or in part.
16. Interpretation. In this Pledge Agreement, unless the Secured Party and the
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”; and references to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications to such instruments, but only
to the extent such amendments and other modifications are not prohibited by the terms of this
Pledge Agreement. 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. 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.
17. Indemnity. The Pledgor agrees to indemnify each of the Secured Party, each legal
entity, if any, who controls, is controlled by or is under common control with the Secured Party,
and each of their respective directors, officers and employees (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 and charges of internal or external 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 by any person,
entity or governmental authority (including any person or entity claiming derivatively on behalf of
the Pledgor), in connection with or arising out of or relating to the matters referred to in this
Pledge Agreement or under any Control Agreement, whether (a) arising from or incurred in connection
with any breach of a representation, warranty or covenant by the Pledgor, or (b) arising out of or
resulting from any suit, action, claim, proceeding or governmental investigation, pending or
threatened, whether based on statute, regulation or order, or tort, or contract or otherwise,
before any court or governmental authority; provided, however, that the 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 action or claim.
18. Governing Law and Jurisdiction. This Pledge Agreement has been delivered to and
accepted by the Secured Party and will be deemed to be made in the State where the Secured Party’s
office indicated above
Form 11A — Multistate Rev. 01/02
- 5 -
is located. This Pledge Agreement will be interpreted and the rights and liabilities of the
Pledgor and the Secured Party determined in accordance with the laws of the State where the Secured
Party’s office indicated above is located, excluding its conflict of laws rules. The Pledgor
hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in the
county or judicial district where the Secured Party’s office indicated above is located; provided
that nothing contained in this Pledge Agreement will prevent the Secured Party 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 the Secured Party 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.
19. Authorization to Obtain Credit Reports. By signing below, each Pledgor who is an
individual provides written authorization to the Secured Party or its designee (and any assignee or
potential assignee hereof) to obtain the Pledgor’s personal credit profile from one or more
national credit bureaus. Such authorization shall extend to obtaining a credit profile in
considering this Pledge Agreement and subsequently for the purposes of update, renewal or extension
of such credit or additional credit and for reviewing or collecting the resulting account.
20. WAIVER OF JURY TRIAL. THE PLEDGOR IRREVOCABLY WAIVES ANY AND ALL 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, with
the intent to be legally bound hereby.
| WITNESS / ATTEST: | XXXXX FAMILY LIMITED PARTNERSHIP | |||||||||||
| By: | ||||||||||||
| Xxxxxx X. Xxxxx | (SEAL) | |||||||||||
Print Name:
|
General Partner | |||||||||||
Title: |
||||||||||||
Form 11A — Multistate Rev. 01/02
- 6 -
EXHIBIT A TO PLEDGE AGREEMENT
(UNCERTIFICATED SECURITIES)
(UNCERTIFICATED SECURITIES)
With respect to the following account:
| Title of the Securities Account: | Xxxxx Family Limited Partnership | |||
| Securities Account No.: | 55-55-101-0000000 | |||
| Custodian: | PNC Bank, National Association |
The specific assets listed below, which are in the securities account referred to above, are being
pledged as collateral and are restricted from trading and withdrawals:
| Quantity | Description of Securities | |
1,351,350 shares
|
Erie Indemnity Company Class A |
The Secured Party’s written approval is required prior to any trading or withdrawal of such assets.
Notwithstanding the foregoing, so long as the Pledgor is not in default of this Pledge Agreement
or any Obligation, upon the request of Pledgor, on or about November 30, 2009, and each
30th day of November thereafter, Secured Party shall release from this Pledge Agreement
all Collateral in excess of the amount having a market value 2.5 times the outstanding Obligations.
Form 11A — Multistate Rev. 01/02
A-1
EXHIBIT B TO PLEDGE AGREEMENT
Margin Percentage Requirements
(Check all categories that apply)
Margin Percentage Requirements
(Check all categories that apply)
| Certificates of Deposit, with waiver of set-off rights | 95 | % | ||||
| Money Market Funds rated “AA” or better with properly executed control agreement with PNC (such as Provident Institutional Funds) | 95 | % | ||||
| All other Money Market Funds with a properly executed control agreement with PNC | 90 | % | ||||
| Treasury bills / Short Term Funds | 90 | % | ||||
| Commercial Paper / Banker's Acceptances | 90 | % | ||||
| Federal Agency Discount Notes | 90 | % | ||||
| US Government Bonds/Notes with remaining maturity > 1 year | 80 | % | ||||
| US Federal Agency Bonds (e.g., GNMAs, FNLMCs, FNMAs) | 80 | % | ||||
| Quasi-Government Bonds (e.g., FHLB) | 80 | % | ||||
| Municipal Bonds of Investment Grade Rating (BBB Rated) | 80 | % | ||||
| Corporate Bonds (Convertible, Asset-Backed, Variable Rate, etc.) of Investment Grade Rating (BBB Rating) | 80 | % | ||||
| Mortgage-Backed Securities | 80 | % | ||||
| Treasury Inflation Securities | 80 | % | ||||
| Collateralized Mortgage Obligations (CMOs) — PACs and TACs only | 75 | % | ||||
| Preferred Stock / Convertible Preferred Stock | 75 | % | ||||
| Corporate Equities (listed securities valued at $5.00 or more per share) | 75 | % | ||||
| Margin stock subject to Regulation “U” (if any of the Obligations are “purpose credit”) | 50 | % | ||||
| Publicly Traded Mutual Funds | Various, maximum of 85%* | |||||
X |
Other: Erie Indemnity Company Stock having a value of more than $5.00 per share | 50 | % | |||
| All of the foregoing | ||||||
| * | If, as evidenced by its prospectus, a Mutual Fund consists of at least 90% of a single category listed above (for example, a “bond” fund), then the applicable margin for that category may be used, minus 5% (that is, the bond fund would have a maximum margin of 75%); otherwise, the maximum margin is 80%. |
Form 11A — Multistate Rev. 01/02
B-1
