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EXHIBIT 2.6
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made and entered into as of June 30, 1999 (this
"Agreement") by and between DMR FINANCIAL SERVICES, INC., a Michigan corporation
("DMRFS"), and XXXXXXX FINANCIAL SERVICES CORPORATION, a Michigan corporation
("Xxxxxxx").
WHEREAS, DMRFS, Xxxxxxx, DETROIT MORTGAGE AND REALTY COMPANY, a Michigan
corporation ("DMR") and XXXXXXX & XXXXXXX MORTGAGE ASSOCIATES, Inc., a Michigan
corporation ("H&W") have executed a certain Reorganization Agreement of even
date ("H&W Reorganization Agreement") pursuant to which Xxxxxxx has delivered
66,667 shares of Xxxxxxx common stock, without par value ("Xxxxxxx Common
Stock") to DMRFS; and
WHEREAS, DMRFS has separately requested that Xxxxxxx make a loan ("Loan") to DMR
in the amount of $1,500,000 as evidenced by a Promissory Note of even date
herewith ("Note"); and
WHEREAS, as a condition of making the Loan to DMRFS, Xxxxxxx has required that
DMR guaranty the Note pursuant to a Guaranty of even date ("Guaranty") and DMRFS
xxxxx Xxxxxxx a security interest in the Xxxxxxx Common Stock. The Note, the
Guaranty, this Agreement and all other documents executed in connection
therewith are collectively referred to as the "Loan Documents".
NOW, THEREFORE, in consideration of the premises and to induce Xxxxxxx to extend
the Loan, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, DMRFS and Xxxxxxx hereby agree as
follows:
1. DEFINED TERMS. The term "Pledged Shares" shall be defined herein as the
Xxxxxxx Common Stock evidenced by certificate no. B-0152 and any additional
shares of stock or other property hereafter delivered to, or in the possession
or custody of, Xxxxxxx, together with all certificates, options, rights or other
distributions issued as an addition to, in substitution or exchange for, or on
account of, any such shares, and all proceeds of the foregoing, now or hereafter
owned or acquired by DMRFS. The terms "Liabilities" and "Event of Default" shall
have the meaning ascribed thereto in the Note.
2. PLEDGE. DMRFS hereby pledges, assigns, hypothecates, transfers and
delivers to Xxxxxxx, and grants to Xxxxxxx, a continuing first lien on and first
security interest in all of the Pledged Shares, as collateral security for (i)
the prompt and complete performance and payment of its obligations under the
Note, and (ii) the due and punctual payment and performance by DMRFS of its
obligations and liabilities under and arising out of this Pledge Agreement (all
of the foregoing referred to herein collectively as the "Liabilities"). All of
the stock certificates for the Pledged Shares together with stock powers duly
executed by DMRFS, have been delivered to Xxxxxxx. Xxxxxxx shall maintain
possession and custody of such stock certificates.
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3. INDUCING REPRESENTATIONS OF DMRFS. DMRFS represents and warrants to
Xxxxxxx, that:
(a) The Recitals set forth the identity and number of shares that are
included in the Pledged Shares as of the date hereof. DMRFS has good title to
the Pledged Shares and such shares are and will remain free and clear of all
pledges, liens, security interests and other encumbrances and restrictions
whatsoever, except the lien and security interest created by this Agreement;
(b) DMRFS has full power and authority to execute, deliver and perform
its obligations under this Pledge Agreement and to pledge the Pledged Shares
hereunder;
(c) This Agreement has been duly authorized, executed and delivered by
DMRFS and constitutes the legal, valid and binding obligation of DMRFS,
enforceable in accordance with its terms;
(d) There are no outstanding options, warrants or other agreements
with respect to the Pledged Shares (other than the H & W Reorganization
Agreement and a letter of even date from Xxxxxxx);
(e) No consent, approval or authorization of or designation or filing
with any authority on the part of DMRFS is required in connection with the
pledge and security interest granted under this Agreement;
(f) The execution, delivery and performance of this Agreement will not
violate any provision of (a) any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or governmental
authority, domestic or foreign, (b) the Articles of Incorporation and Bylaws of
DMRFS,(c) any securities issued by the DMRFS, or (d) any mortgage, indenture,
lease, contract, or other agreement, instrument or undertaking to which DMRFS is
a party or which purports to be binding upon DMRFS or upon any of its assets,
and will not result in the creation or imposition of any lien, charge or
encumbrance on or security interest in any of the assets of DMRFS except as
contemplated by this Agreement; and
(g) The pledge, assignment and delivery of the Pledged Shares owned by
DMRFS pursuant to this Agreement creates a valid first lien on and a first
perfected security interest in such Pledged Shares and the proceeds thereof in
favor of Xxxxxxx, subject to no prior pledge, lien, mortgage, hypothecation,
security interest, charge, option or encumbrance or to any agreement purporting
to grant to any third party a security interest in the property or assets of
DMRFS which would include such Pledged Shares. DMRFS covenants and agrees that
it will defend Xxxxxxx'x right, title and security interest in and to such
Pledged Shares and the proceeds thereof against the claims and demands of all
persons whosoever.
4. STOCK DIVIDENDS, DISTRIBUTIONS, ETC. If, while this Agreement is in
effect, DMRFS shall become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a stock
or share dividend or a stock or share distribution in connection with any
reclassification, increase or reduction of capital, or issued in connection with
any reorganization), option or rights, whether as an addition to, in
substitution for, or in
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exchange for any of the Pledged Shares, or otherwise relating to the Pledged
Shares, DMRFS agrees to accept the same as Xxxxxxx'x agent and to hold the same
in trust for Xxxxxxx, and to deliver the same forthwith to Xxxxxxx in the exact
form received, with the endorsement of DMRFS and, when necessary or appropriate,
undated stock powers or stock transfer forms duly executed in blank, to be held
by Xxxxxxx subject to the terms hereof, as additional collateral security for
the Liabilities. In case any dividend or distribution of any sort shall be made
on or in respect of any of the Pledged Shares, including any property
distributed upon or with respect to any of the Pledged Shares pursuant to a
dividend, to the recapitalization or reclassification of the capital of the
issuer thereof or pursuant to the reorganization thereof or for any other
reason, such dividends or distributions shall be delivered to Xxxxxxx to be held
by Xxxxxxx as additional collateral security for the Liabilities. All such
dividends or distributions in respect of the Pledged Shares which is received by
DMRFS shall, until paid or delivered to Xxxxxxx, be held by DMRFS in trust as
additional collateral security for the Liabilities.
5. ADMINISTRATION OF SECURITY. The following provisions shall govern
the administration of the Pledged Shares:
(a) So long as no Event of Default has occurred, DMRFS shall
be entitled (i) to vote or consent with respect to the Pledged Shares in any
manner not inconsistent with this Agreement, the H & W Reorganization Agreement
or the Loan Documents; and (ii) to receive cash dividends or other distributions
in the ordinary course made in respect of such Pledged Shares. DMRFS hereby
grants to Xxxxxxx or its nominee an irrevocable proxy to exercise all voting and
corporate rights relating to the Pledged Shares in any instance, which proxy
shall be effective immediately upon the occurrence of an Event of Default. After
the occurrence of an Event of Default and upon request of Xxxxxxx, DMRFS agrees
to deliver to Xxxxxxx such further evidence of such irrevocable proxy or such
further irrevocable proxies to vote the Pledged Shares as Xxxxxxx may request.
(b) Upon the occurrence and continuation of an Event of Default, in
the event that DMRFS as record and beneficial owner of the Pledged Shares shall
have received or shall have become entitled to receive, any cash dividends or
other distributions in the ordinary course, DMRFS shall deliver to Xxxxxxx, and
Xxxxxxx shall be entitled to receive and retain, all such cash or other
distributions as additional security hereunder or applied toward satisfaction of
the Liabilities.
(c) Subject to any sale or other disposition by Xxxxxxx of the
Pledged Shares or other property pursuant to this Agreement, the Pledged Shares
and any other property then held as part of such Pledged Shares in accordance
with the provisions of this Agreement shall be returned to DMRFS upon full
payment, satisfaction and termination of all of the Liabilities which shall
operate to terminate the lien and security interest hereby granted.
(d) Beyond the exercise of reasonable care to assure the safe
custody of the Pledged Shares while held hereunder, Xxxxxxx shall have no duty
or liability to preserve any rights pertaining to the Pledged Shares.
6. RIGHTS OF XXXXXXX. Xxxxxxx shall not be liable for failure to collect
or realize upon the Liabilities or any collateral security or guarantee
therefor, or any part thereof, or for any
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delay in so doing, nor shall it be under any obligation to take any action
whatsoever with regard thereto. Any or all of the Pledged Shares held by Xxxxxxx
hereunder may, at any time be registered in the name of Xxxxxxx or its nominee,
and DMRFS hereby covenants that, upon Xxxxxxx'x request, DMRFS will cause the
issuer transfer agent or registrar of the Pledged Shares to effect such
registration. If the foregoing shall be done prior to the occurrence of an Event
of Default, DMRFS shall nevertheless retain all voting rights with respect to
the Pledged Shares, and, for that purpose, Xxxxxxx shall execute and deliver all
necessary proxies (which proxies shall in any event expire automatically upon
the occurrence of an Event of Default). Immediately and without further notice,
upon the occurrence of an Event of Default, whether or not the Pledged Shares
shall have been registered in the name of Xxxxxxx or its nominee, Xxxxxxx, or
its nominee, may thereafter without notice exercise all voting and corporate
rights at any meeting with respect to the Pledged Shares and exercise any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Shares as if it were the absolute
owner thereof, including, without limitation, the right to exchange at its
discretion, any and all of the Pledged Shares upon the merger, consolidation,
reorganization, recapitalization or other readjustment with respect to the
Pledged Shares or upon the exercise of any right, privilege or option pertaining
to any of the Pledged Shares, and in connection therewith, to deposit and
deliver any and all of the Pledged Shares with any committee, depository,
transfer agent, registrar or other designated agency upon such terms and
conditions as Xxxxxxx may determine, all without liability except to account for
property actually received by Xxxxxxx, but Xxxxxxx shall have no duty to
exercise any of the aforesaid rights, privileges or options and shall not be
responsible for any failure to do so or delay in so doing.
7. REMEDIES. Upon the occurrence of an Event of Default, Xxxxxxx, without
demand of performance or other demand, advertisement or notice of any kind
(except the notice specified below of time and place of public or private sale)
to or upon DMRFS or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Pledged Shares, or any part
thereof, and/or may forthwith sell, assign, give option or options to purchase,
contract to sell or otherwise dispose of and deliver said Pledged Shares, or any
part thereof, in one or more portions at public or private sale or sales or
dispositions, at any exchange, broker's board or at any of Xxxxxxx'x offices or
elsewhere upon such terms and conditions as Xxxxxxx may deem advisable and at
such prices as Xxxxxxx may xxxx best, for any combination of cash or credit or
for future delivery without assumption of any credit risk, with the right to
Xxxxxxx upon any such sale or sales or dispositions, public or private, to
purchase the whole or any part of said Pledged Shares so sold, free of any right
or equity of redemption in DMRFS, which right or equity is hereby expressly
waived or released. Xxxxxxx shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the safekeeping or otherwise of any and all of the Pledged Shares or in any way
relating to the rights of Xxxxxxx hereunder, including reasonable attorney's
fees and legal expenses, to the payment, in whole or in part, of the Liabilities
in such order as Xxxxxxx may elect, and only after so paying over such net
proceeds and after the payment by Xxxxxxx of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the
Uniform Commercial Code, need Xxxxxxx account for the surplus, if any, to DMRFS.
Except as may otherwise be expressly required by applicable law, Xxxxxxx need
not give more than five (5) days notice of the time and place of any public sale
or the time after which a private sale may take place,
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which notice DMRFS hereby deems reasonable; provided, however, that Xxxxxxx, at
any time, without notice to DMRFS or any other party, may sell any shares of the
Pledged Shares for which a market exists at the market price for such Shares. No
notification need be given to DMRFS, if after the occurrence of an Event of
Default, DMRFS has signed a statement renouncing or modifying any right to
notification of sale or other intended disposition. In addition to the rights
and remedies granted to Xxxxxxx in this Agreement, Xxxxxxx shall have all the
rights and remedies of a secured party under the Uniform Commercial Code of the
State of Michigan ("UCC") and under any other applicable law. DMRFS further
agrees to waive and agrees not to assert any rights or privileges which DMRFS
may acquire under Section 9-112 of the UCC and DMRFS shall be liable for any
deficiency if the proceeds of the sale or other disposition of the Pledged
Shares are not sufficient to pay all of the Liabilities, including costs of
collection (including reasonable attorneys fees) to collect such deficiency and
any other costs and expenses of Xxxxxxx in connection with this Agreement.
8. SALE OF PLEDGED SHARES. (a) DMRFS recognizes that Xxxxxxx may be
unable to effect a public sale or disposition of any or all the Pledged Shares
by reason of certain prohibitions contained in the Securities Act of 1933, as
amended (the "Act"), and other applicable securities laws, but may be compelled
to resort to one or more private sales or dispositions thereof to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such securities for their own account for investment and not with a view to the
distribution or resale thereof. DMRFS acknowledges and agrees that any such
private sale or disposition may result in prices and other terms (including the
terms of any securities or other property received in connection therewith) less
favorable to the seller than if such sale or disposition were a public sale or
disposition. Xxxxxxx shall be under no obligation to delay a sale or disposition
of any of the Pledged Shares to permit the issuer of the Pledged Shares to
register such securities (or trust certificates representing such securities)
for public sale under the Act, or under applicable state securities laws.
(b) DMRFS further agrees to do or cause to be done all such other
acts and things as may be reasonably necessary to make such sale or sales or
dispositions of any portion or all of the Pledged Shares valid and binding and
in compliance with any and all applicable 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 or dispositions, all at DMRFS's expense. DMRFS further
agrees that a breach of any of the covenants contained in this Section 8 will
cause irreparable injury to, that Xxxxxxx has no adequate remedy at law in
respect of such breach and, as a consequence, DMRFS agrees that each and every
covenant contained in this Section 8 shall be specifically enforceable against
DMRFS, and DMRFS hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants, except for a defense that no
Event of Default has occurred.
(c) DMRFS hereby agrees to indemnify and hold harmless Xxxxxxx,
its successors and assigns, and Xxxxxxx'x officers, directors, employees and
agents, from and against any loss, liability, claim, damage and expense,
including, without limitation, attorneys fees (in this paragraph collectively
called the "Indemnified Liabilities"),under federal and state securities laws or
otherwise insofar as such loss, liability, claim, damage or expense (i) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, prospectus or offering
memorandum or in any preliminary prospectus or
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preliminary offering memorandum or in any amendment or supplement to any thereof
or in any other writing prepared in connection with the offer, sale or resale of
all or any portion of the Pledged Shares unless such untrue statement of
material fact was provided by Xxxxxxx specifically for inclusion therein, or
(ii) arises out of or is based upon any omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein not misleading, such indemnification to remain operative
regardless of any investigation made by or on behalf of Xxxxxxx or any successor
thereof. In connection with a public sale or other distribution, DMRFS will
provide customary indemnification to any underwriters, their respective
successors and assigns, their respective officers and directors and each person
or entity who controls any such underwriter (within the meaning of the Act). If
and to the extent that the foregoing undertakings in this paragraph (c) may be
unenforceable for any reason, DMRFS agrees to make maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligations of DMRFS under this paragraph
(c) shall survive any termination of this Agreement.
9. NO DISPOSITION, ETC. DMRFS agrees that DMRFS will not, without the
prior written consent of Xxxxxxx, sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any of the Pledged Shares owned
by DMRFS, nor will DMRFS without such consent create, incur or permit to exist
any pledge, lien, mortgage, hypothecation, security interest, charge, option or
any other encumbrance with respect to any of the Pledged Shares owned by DMRFS,
or any interest therein, or any proceeds thereof, except for the lien and
security interest provided for by this Agreement. DMRFS agrees that DMRFS will
not, without the prior written consent of Xxxxxxx, vote to enable the issuer of
the Pledged Shares to issue any stock or other securities of any nature in
addition to or in exchange or substitution for, any of the Pledged Shares.
10. ATTORNEY-IN-FACT. DMRFS hereby irrevocably appoints Xxxxxxx as
DMRFS's attorney-in-fact, with full authority in the place and stead of DMRFS
and in the name of DMRFS or otherwise, from time to time in Xxxxxxx'x
discretion, to take any action and to execute any instrument that Xxxxxxx deems
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to receive, endorse and collect all instruments made payable
to DMRFS representing any dividend, interest payment or other distribution in
respect of the Pledged Shares or any part thereof and to give full discharge for
the same, when and to the extent permitted by this Agreement.
11. FURTHER ASSURANCES. DMRFS agrees, upon the written request of Xxxxxxx,
to execute and deliver all such further instruments and documents and do all
such further acts and things as Xxxxxxx may reasonably request consistent with
the provisions hereof to effect the purposes of this Agreement and to give
Xxxxxxx the intended benefits hereof.
12. NO WAIVER; CUMULATIVE REMEDIES. Xxxxxxx shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver by Xxxxxxx shall be valid unless in writing,
signed by Xxxxxxx, and then only to the extent therein set forth. A waiver by
Xxxxxxx of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which Xxxxxxx would otherwise have on
any further occasion. No failure to exercise, nor any delay in exercising on the
part of Xxxxxxx of any right, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single
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or partial exercise of any right, power or privilege hereunder, or under the
Loan Documents, preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
13. SUCCESSORS AND ASSIGNS. This Agreement and all obligations of DMRFS
hereunder shall be binding upon the successors and assigns of DMRFS, and shall,
together with the rights and remedies of Xxxxxxx hereunder, inure to the benefit
of Xxxxxxx and its respective successors and assigns. Xxxxxxx shall have no
right to assign its rights or obligations hereunder without Lender's prior
written consent.
14. TERMINATION. This Agreement and the lien and security interest granted
hereunder shall terminate upon full and complete performance and satisfaction of
the Liabilities.
15. CHANGES IN WRITING. No amendment, modification, termination or waiver of
any provision of this Agreement or any election thereunder or consent to any
departure by DMRFS therefrom, shall in any event be effective without the
written concurrence of Xxxxxxx and DMRFS, and then only to the extent
specifically set forth in such writing. A writing in accordance with this
section shall not be effective with respect to any term or condition in the H &
W Reorganization Agreement unless such writing specifically references the
section of the H & W Reorganization Agreement that is intended to be so
affected.
16. HEADINGS. Section headings in this Agreement are included only for
convenience of reference and shall not constitute a part of this Agreement for
any other purpose or be given any substantive effect.
17. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which together shall constitute one Agreement.
18. APPLICABLE LAW; SEVERABILITY. This Agreement has been executed and
delivered in Michigan, and this Agreement shall be construed in all respects in
accordance with, and governed by, all of the provisions of the code and by the
other internal laws (as opposed to conflicts of law provisions) of the State of
Michigan. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
19. WAIVER OF JURY TRIAL. The parties hereto acknowledge and agree that
there may be a constitutional right to a jury trial in connection with any
claim, dispute or lawsuit arising between them, but that such right may be
waived. Accordingly, the parties agree that notwithstanding such constitutional
right, in this commercial matter the parties believe and agree that it shall be
in their best interest to waive such right, and, accordingly, hereby waive such
right to a jury trial, and further agree that the best forum for hearing any
claim, dispute or lawsuit, if any, arising in connection with this Agreement or
the relationship between DMRFS and Xxxxxxx, shall be a court of competent
jurisdiction sitting without a jury.
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20. WAIVERS VOLUNTARY. The waivers contained in this Agreement are freely,
knowingly and voluntarily given by each party, without any duress or coercion,
after each party has consulted with its counsel and has carefully and completely
read all of the terms and provisions of this Agreement, specifically including
the waivers contained in Section 19. Neither DMRFS nor Xxxxxxx shall be deemed
to have relinquished the waivers contained herein except by a writing signed by
the party to be charged with having relinquished any such waiver.
IN WITNESS WHEREOF, this Agreement is executed by the parties hereto on
the date first above written.
DMR FINANCIAL SERVICES, INC.,
a Michigan corporation
By: /s/ Xxxx X. Xxxxxxx
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Its: President and CEO
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XXXXXXX FINANCIAL SERVICES CORPORATION,
a Michigan corporation
By: /s/ Xxxxxx X. Xxxxx
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Its: President and CEO
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