Exhibit 4.8.3
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") is dated as of December
7, 2007 and entered into by and between First Montauk Financial Corp., a New
Jersey corporation ("Pledgor"), and AEFC FMFK Investment Corp., a Delaware
corporation ("Secured Party"), under the following circumstances:
RECITALS
A. Pledgor is the legal and beneficial owner of all of the issued and
outstanding shares of capital stock (the "Pledged Shares") described in Schedule
I annexed hereto and issued by the corporations named therein.
B. Secured Party has entered into a Note Purchase Agreement dated as of
even date herewith (said Note Purchase Agreement, as it may hereafter be
amended, supplemented or otherwise modified from time to time, being the
"Purchase Agreement") with Pledgor pursuant to which Secured Party has made
certain commitments, subject to the terms and conditions set forth in the
Purchase Agreement, to lend up to $2,000,000 to Pledgor in exchange for the
Secured Convertible Promissory Note of Pledgor dated as of even date herewith
(said Secured Convertible Promissory Note, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Promissory
Note").
C. It is a condition precedent to the making of the loans by Secured
Party under the Purchase Agreement (collectively, the "Loan") that Pledgor shall
have granted the security interests and undertaken the obligations contemplated
by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Secured Party to enter into the Purchase Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Pledgor hereby agrees with Secured Party as follows:
SECTION 1. Pledge of Security. Pledgor hereby pledges and assigns to
Secured Party, and hereby grants to Secured Party a security interest in, all of
Pledgor's right, title and interest in and to the following (collectively, the
"Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged Shares and
any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares;
(b) all additional shares of, and all securities convertible into and warrants,
options and other rights to purchase or otherwise acquire, stock of any issuer
of the Pledged Shares from time to time acquired by Pledgor in any manner (which
shares, securities, warrants, options and other rights shall be deemed to be
part of the Pledged Shares), the certificates or other instruments representing
such additional shares, securities, warrants, options or other rights and any
interest of Pledgor in the entries on the books of any financial intermediary
pertaining to such additional shares, and all dividends, cash, warrants, rights,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such additional shares, securities, warrants, options or other rights;
(c) all shares of, and all securities convertible into and warrants, options and
other rights to purchase or otherwise acquire, stock of any Person (as used
herein, "Person" shall mean and include an individual, a partnership, a
corporation, a business trust, a joint stock company, a limited liability
company, an unincorporated association or other entity and any domestic or
foreign national, state or local government, any political subdivision thereof,
and any department, agency, authority or bureau of any of the foregoing) that,
after the date of this Agreement, becomes, as a result of any occurrence, a
direct Subsidiary (as used herein, "Subsidiary" shall mean any corporation or
other entity of which ten percent (10%) or more of the outstanding capital stock
entitled to vote for the election of directors or other governing body
(otherwise than as the result of a default) is owned by Pledgor directly or
indirectly through Subsidiaries) of Pledgor (which shares, securities, warrants,
options and other rights shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such shares, securities,
warrants, options or other rights and any interest of Pledgor in the entries on
the books of any financial intermediary pertaining to such shares, and all
dividends, cash, warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares, securities, warrants, options or
other rights; and
(d) to the extent not covered by clauses (a) through (c) above, all proceeds of
any or all of the foregoing Pledged Collateral. For purposes of this Agreement,
the term "proceeds" includes whatever is receivable or received when Pledged
Collateral or proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary, and includes, without
limitation, proceeds of any indemnity or guaranty payable to Pledgor or Secured
Party from time to time with respect to any of the Pledged Collateral.
SECTION 2. Security for Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)), of all obligations and
liabilities of every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Purchase Agreement and the Promissory
Note and all extensions or renewals thereof, whether for principal, interest
(including, without limitation, interest that, but for the filing of a petition
in bankruptcy with respect to Pledgor, would accrue on such obligations), fees,
expenses, indemnities or otherwise, whether voluntary or involuntary, direct or
indirect, absolute or contingent, liquidated or unliquidated, whether or not
jointly owned with others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all or any portion of
such obligations or liabilities that are paid, to the extent all or any part of
such payment is avoided or recovered directly or indirectly from Secured Party
as a preference, fraudulent transfer or otherwise (all such obligations and
liabilities being the "Underlying Debt"), and all obligations of every nature of
Pledgor now or hereafter existing under this Agreement (all such obligations of
Pledgor, together with the Underlying Debt, being the "Secured Obligations").
SECTION 3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral shall be delivered
to and held by or on behalf of Secured Party pursuant hereto and shall be in
suitable form for transfer by delivery or, as applicable, shall be accompanied
by Pledgor's endorsement, where necessary, or duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Secured Party. Secured Party shall have the right, at any time in its
discretion and without notice to Pledgor, to transfer to or to register in the
name of Secured Party or any of its nominees as pledgee, any or all of the
Pledged Collateral, subject only to the revocable rights specified in
Section 8(a). In addition, Secured Party shall have the right at any time to
exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. Pledgor represents and
warrants as follows:
(a) Due Authorization, etc. of Pledged Collateral. All of the Pledged Shares
have been duly authorized and validly issued and are fully paid and
nonassessable.
(b) Description of Pledged Collateral. The Pledged Shares constitute all of the
issued and outstanding capital stock of each issuer thereof, and there are no
outstanding warrants, options or other rights to purchase, or other agreements
outstanding with respect to, or property that is now or hereafter convertible
into, or that requires the issuance or sale of, any Pledged Shares.
(c) Ownership of Pledged Collateral. Pledgor is the legal, record and beneficial
owner of the Pledged Collateral free and clear of any Lien except for the
security interest created by this Agreement. As used herein, a "Lien" shall mean
any mortgage, deed of trust, pledge, hypothecation, assignment for security,
security interest, encumbrance, levy, lien or charge of any kind, whether
voluntarily incurred or arising by operation of law or otherwise, against any
property, any conditional sale or other title retention agreement, any lease in
the nature of a security interest, and the filing of any financing statement
(other than a precautionary financing statement with respect to a lease that is
not in the nature of a security interest) under the UCC or comparable law of any
jurisdiction.
(d) Governmental Authorizations. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for either (i) the pledge by Pledgor of the Pledged Collateral
pursuant to this Agreement and the grant by Pledgor of the security interest
granted hereby or for the execution, delivery or performance of this Agreement
by Pledgor or (ii) the exercise in accordance with applicable law and the
provisions of this Agreement by Secured Party of the voting or other rights, or
the remedies in respect of the Pledged Collateral, provided for in this
Agreement (except as may be required in connection with a disposition of Pledged
Collateral by laws affecting the offering and sale of securities generally and
any approval required by the Financial Industry Regulatory Authority ("FINRA")).
(e) Perfection. The pledge of the Pledged Collateral by Pledgor pursuant to this
Agreement, together with the delivery of the certificates and instruments
described in Section 3 of this Agreement, creates a valid and perfected first
priority security interest in the Pledged Collateral, securing the payment of
the Secured Obligations.
(f) Margin Regulations. The pledge of the Pledged Collateral by Pledgor pursuant
to this Agreement does not violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
(g) Other Information. All information heretofore, herein or hereafter supplied
to Secured Party by or on behalf of Pledgor with respect to the Pledged
Collateral, taken together, is accurate and complete in all material respects,
and Pledgor has not made any misrepresentations or omissions of material fact
with respect to the Pledged Collateral.
SECTION 5. Transfers and Other Liens; Additional Pledged Collateral;
etc. Pledgor shall:
(a) not, except as expressly permitted by the Purchase Agreement, (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, (ii) create or suffer to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless either (i) all the outstanding
capital stock of the surviving or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation or (ii) Pledgor is the surviving or resulting corporation;
(b) (i) cause each issuer of Pledged Shares not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to Pledgor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of each issuer of Pledged Shares, and (iii) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all shares of stock of any Person that, after the date of this
Agreement, becomes, as a result of any occurrence, a direct Subsidiary of
Pledgor;
(c) promptly notify Secured Party of any event of which Pledgor becomes aware
causing loss or depreciation in the value of the Pledged Collateral;
(d) promptly deliver to Secured Party copies of all written notices received by
it with respect to the Pledged Collateral; and
(e) pay promptly when due all taxes, assessments and governmental charges or
levies imposed upon, and all claims against, the Pledged Collateral, except to
the extent the validity thereof is being contested in good faith; provided that
Pledgor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five (5) Business Days prior to the date of any proposed
sale under any judgment, writ or warrant of attachment entered or filed against
Pledgor or any of the Pledged Collateral as a result of the failure to make such
payment. As used herein, "Business Days" shall mean any day other than a
Saturday, Sunday or public holiday under the laws of the State of Illinois or
other day on which banking institutions are authorized or obligated to close in
the State of Illinois.
SECTION 6. Further Assurances, Pledge Amendments.
(a) Pledgor agrees that from time to time, at the expense of Pledgor, Pledgor
will promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable, or that Secured
Party may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing, Pledgor shall: (i)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may request, in order to perfect and preserve the
security interests granted or purported to be granted hereby and (ii) at Secured
Party's request, appear in and defend any action or proceeding that may affect
Pledgor's title to or Secured Party's security interest in all or any part of
the Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any additional shares of
stock or other securities required to be pledged hereunder as provided in
Section 5(b), promptly (and in any event within five (5) Business Days) deliver
to Secured Party a Pledge Amendment, duly executed by Pledgor, in substantially
the form of Schedule II annexed hereto (a "Pledge Amendment"), in respect of the
additional Pledged Shares to be pledged pursuant to this Agreement. Pledgor
hereby authorizes Secured Party to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be considered
Pledged Collateral; provided that the failure of Pledgor to execute a Pledge
Amendment with respect to any additional Pledged Shares pledged pursuant to this
Agreement shall not impair the security interest of Secured Party therein or
otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
SECTION 7. Event of Default Defined. The term "Event of Default" as
used herein shall have the meaning ascribed to such term in the Purchase
Agreement.
SECTION 8. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral for any purpose not
inconsistent with the terms of this Agreement or the Purchase Agreement;
provided, however, that Pledgor shall not exercise or refrain from exercising
any such right if Secured Party shall have notified Pledgor that, in Secured
Party's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof; and provided,
further, that Pledgor shall give Secured Party at least five (5) Business
Days' prior written notice of the manner in which it intends to exercise, or
the reasons for refraining from exercising, any such right. It is
understood, however, that neither (A) the voting by Pledgor of any Pledged
Shares for or Pledgor's consent to the election of directors at a regularly
scheduled annual or other meeting of stockholders or with respect to
incidental matters at any such meeting nor (B) Pledgor's consent to or
approval of any action otherwise permitted under this Agreement and the
Purchase Agreement shall be deemed inconsistent with the terms of this
Agreement or the Purchase Agreement within the meaning of this Section
8(a)(i), and no notice of any such voting or consent need be given to Secured
Party;
(ii) Pledgor shall be entitled to receive and retain, and to
utilize free and clear of the lien of this Agreement, any and
all dividends paid in respect of the Pledged Collateral;
provided, however, that, except as Secured Party may otherwise
agree to in writing from time to time, any and all
(A) dividends paid or payable other than in cash in respect of,
and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial
or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in redemption of
or in exchange for any Pledged Collateral,
shall be, and shall forthwith be delivered to Secured Party to hold as,
Pledged Collateral and shall, if received by Pledgor, be received in
trust for the benefit of Secured Party, be segregated from the other
property or funds of Pledgor and be forthwith delivered to Secured
Party as Pledged Collateral in the same form as so received (with all
necessary indorsements); and
(iii) Secured Party shall promptly execute and deliver (or cause to be
executed and delivered) to Pledgor all such proxies, dividend payment
orders and other instruments as Pledgor may from time to time
reasonably request for the purpose of enabling Pledgor to exercise the
voting and other consensual rights which it is entitled to exercise
pursuant to paragraph (i) above and to receive the dividends which it
is authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence of an Event of Default that has not been waived in
writing by Secured Party:
(i) upon written notice from Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to Section 8(a)(i)
shall cease, and all such rights shall thereupon become vested in
Secured Party who shall thereupon have the sole right to exercise such
voting and other consensual rights;
(ii) all rights of Pledgor to receive the dividends which it would otherwise
be authorized to receive and retain pursuant to Section 8(a)(ii) shall
cease, and all such rights shall thereupon become vested in Secured
Party who shall thereupon have the sole right to receive and hold as
Pledged Collateral such dividends; and
(iii) all dividends which are received by Pledgor contrary to the provisions
of paragraph (ii) of this Section 8(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other funds of
Pledgor and shall forthwith be paid over to Secured Party as Pledged
Collateral in the same form as so received (with any necessary
indorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to
Section 8(b)(i) and to receive all dividends and other distributions
which it may be entitled to receive under Section 8(a)(ii) or Section
8(b)(ii), Pledgor shall promptly execute and deliver (or cause to be
executed and delivered) to Secured Party all such proxies, dividend
payment orders and other instruments as Secured Party may from time to
time reasonably request after the occurrence of an Event of Default
that has not been waived in writing by Secured Party.
SECTION 9. Secured Party Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor,
Secured Party or otherwise, from time to time in Secured Party's discretion to
take any action and to execute any instrument that Secured Party may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation:
(a) to file one or more financing or continuation statements, or amendments
thereto, relative to all or any part of the Pledged Collateral without the
signature of Pledgor;
(b) after the occurrence of an Event of Default that has not been waived in
writing by Secured Party, to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Pledged Collateral;
(c) after the occurrence of an Event of Default that has not been waived in
writing by Secured Party, to receive, endorse and collect any instruments made
payable to Pledgor representing any dividend or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same;
(d) after the occurrence of an Event of Default that has not been waived in
writing by Secured Party, to file any claims or take any action or institute any
proceedings that Secured Party may deem necessary or desirable for the
collection of any of the Pledged Collateral; or
(e) otherwise to enforce the rights of Secured Party with respect to any of the
Pledged Collateral.
The appointment hereunder is coupled with an interest and is
irrevocable.
SECTION 10. Secured Party May Perform. If Pledgor fails to perform any
agreement of Pledgor contained herein within five (5) Business Days after
written demand by Secured Party, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgor under Section 14(b).
SECTION 11. Standard of Care. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for monies actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not Secured Party has or
is deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above
to maintain possession and safekeeping of the Pledged Collateral) to preserve
rights against any parties with respect to any Pledged Collateral, (c) taking
any necessary steps to collect or realize upon the Secured Obligations or any
guarantee therefor, or any part thereof, or any of the Pledged Collateral, or
(d) initiating any action to protect the Pledged Collateral against the
possibility of a decline in market value.
SECTION 12. Remedies.
(a) If any Event of Default shall have occurred that has not been waived in
writing by Secured Party, Secured Party may exercise in respect of the Pledged
Collateral, in addition to all other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code as in effect in any relevant
jurisdiction (the "Code") (whether or not the Code applies to the affected
Pledged Collateral), and Secured Party may also in its sole discretion, in
accordance with applicable law, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as Secured Party
may deem commercially reasonable, irrespective of the impact of any such sales
on the market price of the Pledged Collateral. Secured Party may be the
purchaser of any or all of the Pledged Collateral at any such sale and Secured
Party shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Pledged Collateral
sold at any such public sale, to use and apply any of the Secured Obligations as
a credit on account of the purchase price for any Pledged Collateral payable by
Secured Party at such sale. Each purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of Pledgor,
and Pledgor hereby waives (to the extent permitted by applicable law) all rights
of redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter enacted.
Pledgor agrees that, to the extent notice of sale shall be required by law, at
least ten (10) days' notice to Pledgor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. Secured Party shall not be obligated to make any sale
of Pledged Collateral regardless of notice of sale having been given. Secured
Party may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. Pledgor hereby
waives any claims against Secured Party arising by reason of the fact that the
price at which any Pledged Collateral may have been sold at such a private sale
was less than the price which might have been obtained at a public sale, even if
Secured Party accepts the first offer received and does not offer such Pledged
Collateral to more than one offeree. If the proceeds of any sale or other
disposition of the Pledged Collateral are insufficient to pay all the Secured
Obligations, Pledgor shall be liable for the deficiency and the fees of any
attorneys employed by Secured Party to collect such deficiency.
(b) Pledgor recognizes that, by reason of certain prohibitions contained in the
Securities Act of 1933, as from time to time amended (the "Securities Act"),
applicable state securities laws, and the required approval of FINRA relating to
the Secured Party's potential ability to acquire in excess of twenty-five
percent (25%) of a certain of Pledgor's Subsidiary, as required under Rule 1017
of the rules of the NASD Manual, as adopted by FINRA (the "FINRA Approval"),
Secured Party may be compelled, with respect to any sale of all or any part of
the Pledged Collateral conducted without prior registration or qualification of
such Pledged Collateral under the Securities Act and/or such state securities
laws, or the prior obtaining of FINRA Approval, to limit purchasers to those who
will agree, among other things, to acquire the Pledged Collateral for their own
account, for investment and not with a view to the distribution or resale
thereof, and subject FINRA actions. Pledgor acknowledges that any such private
sales may be at prices and on terms less favorable than those obtainable through
a public sale without such restrictions (including, without limitation, a public
offering made pursuant to a registration statement under the Securities Act)
and, notwithstanding such circumstances, Pledgor agrees that any such private
sale shall be deemed to have been made in a commercially reasonable manner and
that Secured Party shall have no obligation to engage in public sales and no
obligation to delay the sale of any Pledged Collateral for the period of time
necessary to permit the issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under applicable state
securities laws, even if such issuer would, or should, agree to so register it.
(c) If Secured Party determines to exercise its right to sell any or all of the
Pledged Collateral in accordance with this Section 12, upon written request from
Secured Party, Pledgor shall and shall cause each issuer of any Pledged Shares
to be sold hereunder from time to time to furnish to Secured Party all such
information as Secured Party may request in order to determine the number of
shares and other instruments included in the Pledged Collateral which may be
sold by Secured Party in exempt transactions under the Securities Act and the
rules and regulations of the Securities and Exchange Commission thereunder, as
the same are from time to time in effect.
SECTION 13. Application of Proceeds. Except as expressly provided
elsewhere in this Agreement or the Purchase Agreement, all proceeds received by
Secured Party in respect of any sale of, collection from, or other realization
upon all or any part of the Pledged Collateral may, in the discretion of Secured
Party, be held by Secured Party as Pledged Collateral for, and/or then, or at
any time thereafter, applied in full or in part by Secured Party against, the
Secured Obligations in the following order of priority:
FIRST: To the payment of all reasonable costs and expenses of
such sale, collection or other realization, including reasonable
compensation to Secured Party and its agents and counsel, and all other
reasonable expenses, liabilities and advances made or incurred by
Secured Party in connection therewith, and all amounts for which
Secured Party is entitled to indemnification hereunder and all advances
made by Secured Party hereunder for the account of Pledgor, and to the
payment of all reasonable costs and expenses paid or incurred by
Secured Party in connection with the exercise of any right or remedy
hereunder, all in accordance with Section 14;
SECOND: To the payment of all other Secured Obligations
in such order as Secured Party shall elect; and
THIRD: To the payment to or upon the order of Pledgor, or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from
such proceeds.
SECTION 14. Indemnity and Expenses.
(a) Pledgor agrees to indemnify Secured Party from and against any and all
claims, losses and liabilities in any way relating to, growing out of or
resulting from this Agreement and the transactions contemplated hereby
(including, without limitation, enforcement of this Agreement), except to the
extent such claims, losses or liabilities result solely from Secured Party's
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.
(b) Pledgor will pay to Secured Party upon demand the amount of any and all
costs and expenses, including the reasonable fees and expenses of its counsel
and of any experts and agents, that Secured Party may incur in connection with
(i) the administration of this Agreement, (ii) the custody or preservation of,
or the sale of, collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights of Secured
Party hereunder, or (iv) the failure by Pledgor to perform or observe any of the
provisions hereof.
SECTION 15. Continuing Security Interest; Transfer of the Loan. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (a) remain in full force and effect until the indefeasible payment in
full of all Secured Obligations, (b) be binding upon Pledgor, its successors and
assigns, and (c) inure, together with the rights and remedies of Secured Party
hereunder, to the benefit of Secured Party and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), Secured
Party may without notice or consent of Pledgor assign or otherwise transfer any
portion or all of the Loan held by it to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to Secured Party herein or otherwise. Upon the indefeasible payment in full of
all Secured Obligations, the security interest granted hereby shall terminate
and all rights to the Pledged Collateral shall revert to Pledgor. Upon any such
termination Secured Party will, at Pledgor's expense, execute and deliver to
Pledgor such documents as Pledgor shall reasonably request to evidence such
termination and Pledgor shall be entitled to the return, upon its request and at
its expense, against receipt and without recourse to Secured Party, of such of
the Pledged Collateral as shall not have been sold or otherwise applied pursuant
to the terms hereof.
SECTION 16. Amendments: Etc. No amendment or waiver of any provision of
this Agreement, or consent to any departure by Pledgor herefrom, shall in any
event be effective unless the same shall be in writing and signed by Secured
Party (and Pledgor, in the case of any amendment), and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given.
SECTION 17. Notices. Any notice, request or other communication required
or permitted hereunder shall be in given in accordance with the Purchase
Agreement.
SECTION 18. Failure or Indulgence Not Waiver, Remedies Cumulative. No
failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude any
other or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 19. Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 20. Headings. Section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 21. Governing Law; Terms. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE
EXTENT THAT THE CODE PROVIDES THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
ILLINOIS. Unless otherwise defined herein or in the Purchase Agreement, terms
used in Article 9 of the Uniform Commercial Code in the State of Illinois are
used herein as therein defined.
SECTION 22. Waiver of Jury Trial. PLEDGOR AND SECURED PARTY HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including,
without limitation, contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Pledgor and Secured Party each
acknowledge that this waiver is a material inducement for Pledgor and Secured
Party to enter into a business relationship, that Pledgor and Secured Party have
already relied on this waiver in entering into this Agreement and that each will
continue to rely on this waiver in their related future dealings. Pledgor and
Secured Party further warrant and represent that each has reviewed this waiver
with its legal counsel, and that each knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
SECTION 23. Counterparts. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FIRST MONTAUK FINANCIAL CORP.
By: /s/ Victor K. Kurylak
---------------------------------------
Title: President and Chief Executive Officer
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AEFC FMFK INVESTMENT CORP.
By: /s/ Joel Marks
---------------------------------------
Title: Secretary
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Signature Page to Stock Pledge Agreement
SCHEDULE I
Attached to and forming a part of the Stock Pledge Agreement dated as of
December 7, 2007 between First Montauk Financial Corp., as Pledgor, and AEFC
FMFK Investment Corp., as Secured Party.
Stock Issuer: First Montauk Securities Corp., a New York corporation.
Stock Number
Class of Stock Certificate Nos. Par Value of Issued Shares
-------------- --------------- --------- ----------------
Common 1 $.0001 1,000,000
Stock Issuer: Montauk Insurance Services, Inc., a New Jersey corporation.
Stock Number
Class of Stock Certificate Nos. Par Value of Issued Shares
-------------- --------------- --------- ----------------
Common 1 No par value 10,000
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated _____________, 20__, is delivered pursuant
to Section 6(b) of the Pledge Agreement referred to below. The undersigned
hereby agrees that this Pledge Amendment may be attached to the Stock Pledge
Agreement dated December 7, 2007, between the undersigned and Secured Party (the
"Pledge Agreement," capitalized terms defined therein being used herein as
therein defined), and that the Pledged Shares listed on this Pledge Amendment
shall be deemed to be part of the Pledged Shares and shall become part of the
Pledged Collateral and shall secure all Secured Obligations.
FIRST MONTAUK FINANCIAL CORP.
By:
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Title:
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