Attached files
Exhibit 99.8
MEMBERSHIP INTEREST PLEDGE AGREEMENT
This MEMBERSHIP INTEREST PLEDGE AGREEMENT (this "AGREEMENT") is entered
into as of June 21, 2013 (the "EFFECTIVE DATE") by and between RED GIANT
ENTERTAINMENT, INC., a Nevada corporation (the "SECURED PARTY"), and TYPENEX
CO-INVESTMENT, LLC, an Illinois limited liability company (the "PLEDGOR").
A. Pursuant to the terms and conditions of that certain Securities Purchase
Agreement of even date herewith by and between the Pledgor and the Secured Party
(the "PURCHASE AGREEMENT"), the Pledgor has issued to Secured Party two (2)
Secured Buyer Notes, each in the principal amount of $100,000.00 (collectively,
the "Notes").
B. The Pledgor has agreed to pledge a 40% membership interest in Typenex
Medical, LLC, an Illinois limited liability company ("TYPENEX MEDICAL"), to
secure the Pledgor's performance of its obligations under all of the Notes.
C. The Secured Party is willing to accept the Notes only upon receiving the
Pledgor's pledge of such membership interest as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
conditions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant of Security Interest. The Pledgor hereby pledges to the Secured
Party as collateral and security for the Secured Obligations (as defined in
Section 2) a 40% membership interest in Typenex Medical (the "PLEDGED
INTEREST"). The Secured Party shall have the right to exercise the rights and
remedies set forth herein and in the Notes if a Payment Default (as defined in
the Notes) shall occur. Such Pledged Interest, together with any additions,
replacements, accessions or substitutes therefor or proceeds thereof, are
hereinafter referred to collectively as the "COLLATERAL."
2. Secured Obligations. During the term hereof, the Collateral shall secure
the performance by the Pledgor of all of its payment obligations under each and
every one of the Notes (the "SECURED OBLIGATIONS").
3. Perfection of Security Interests. The Pledgor hereby authorizes the
Secured Party to file and record, as the Pledgor's attorney-in-fact, any
financing statements, any carbon, photographic or other reproduction of a
financing statement, or other paper that may be necessary in order to create,
preserve, perfect or validate any security interest or to enable the Secured
Party to exercise and enforce its rights hereunder with respect to any of the
Collateral.
4. Representations and Warranties of the Pledgor. The Pledgor represents
and warrants hereby to the Secured Party as follows with respect to the Pledged
Interest:
4.1. Title. The Pledgor is the sole owner of the Pledged Interest, having
good and marketable title thereto; PROVIDED, HOWEVER, that the Pledged Interest
may be subject to other liens and encumbrances. The Pledged Interest is subject
to the applicable transfer restrictions which may be imposed under the operating
agreement of Typenex Medical or other governing documents of Typenex Medical or
applicable federal and state securities laws.
4.2. Binding Effect. This Agreement constitutes a legal, valid and binding
obligation of the Pledgor enforceable in accordance with its terms (except as
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws now or hereafter in
effect).
5. Additional Covenants of the Pledgor. The Pledgor shall pay all taxes,
charges, and assessments against the Collateral and do all acts necessary to
preserve and maintain the value thereof.
6. Collection of Distributions and Interest. During the term of this
Agreement and so long as no Payment Default has occurred and is continuing under
any of the Notes, the Pledgor is authorized to collect all distributions,
interest payments, and other amounts that may be, or may become, due on any of
the Collateral.
7. Voting Rights. Unless and until the Secured Party has rightfully
exercised its rights under this Agreement to foreclose its security interest in
the Collateral, the Pledgor shall have the right to exercise any voting rights
evidenced by, or relating to, the Collateral.
8. Secured Party Not a Member or Partner. The pledge of the Pledged
Interest hereunder does not, in and of itself, constitute an assignment of any
rights or obligations of the Pledgor as a member in or of Typenex Medical. The
Secured Party is not, in any manner or respect, a member, partner or joint
venturer in or with Typenex Medical.
9. Remedies upon Default. Upon the occurrence and during the continuance of
a Payment Default under any of the Notes ("EVENT OF DEFAULT"), the Secured Party
may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a Secured Party on default under applicable law (irrespective of
whether such applies to the affected items of Collateral). The Pledgor agrees
that, to the extent notice of sale shall be required by law, at least fifteen
(15) calendar days' notice to the Pledgor of the time and place of any public
sale or the time after which a private sale is to be made shall constitute
reasonable notification.
10. Termination of Agreement and Security Interests. The Secured Party
covenants and agrees that on the earlier of (i) the date on which all of the
Notes are repaid in full and (ii) at Pledgor's option, the date that is six (6)
months and three (3) days following the Effective Date, or such later date as
specified by the Pledgor in its sole discretion (the "TERMINATION DATE"), this
Agreement and all security interests granted hereunder with respect to the
Collateral shall terminate (and all such security interests shall be deemed
released). At the Termination Date, Pledgor, as the Secured Party's
attorney-in-fact, shall be authorized to terminate all UCC Financing Statements
(Form UCC1) (each a "FINANCING STATEMENT") filed hereunder by way of filing a
UCC Financing Statement Amendment (Form UCC3) with respect to each such
Financing Statement, and to take all other action (including making all filings)
necessary to reflect that this Agreement and the security interests granted
hereunder have terminated. Any portion of the Collateral held by or on behalf of
the Secured Party shall be returned to the Pledgor within five (5) business days
of the Termination Date and the Secured Party shall timely execute and deliver
to the Pledgor, and file and/or record, as necessary, all such documents as the
Pledgor shall reasonably request to evidence the termination of this Agreement
and all security interests granted hereunder and the return of the Collateral to
the Pledgor. Notwithstanding any other provision contained herein, all
provisions of this Agreement that by their nature are intended to survive the
termination of this Agreement shall survive the termination of this Agreement.
11. Substitution of Collateral. Notwithstanding anything to the contrary
herein, the Pledgor may, in the Pledgor's sole discretion, add additional
collateral to the Collateral and/or may substitute Collateral as the Pledgor
deems fit, provided that the fair market value of the substituted Collateral may
not be less than the aggregate principal balance of the Notes as of the date of
any such substitution. Pledgor, as the Secured Party's attorney-in-fact, shall
be authorized to file a UCC Financing Statement Amendment (Form UCC3) with
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respect to each applicable Financing Statement to reflect such substitution of
Collateral. Any portion of the Collateral replaced by the substituted Collateral
that is held by or on behalf of the Secured Party shall be returned to the
Pledgor within five (5) business days of Pledgor's written notice of
substitution, and the Secured Party shall timely execute and deliver to the
Pledgor, and file and/or record, as necessary, all such documents as the Pledgor
shall reasonably request to evidence such substitution of Collateral.
12. Application of Collateral Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any cash held by the Secured Party as
Collateral and all cash proceeds received by the Secured Party in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral pursuant to the exercise by the Secured Party of its remedies as a
secured creditor as provided in Section 9 shall be paid to and applied as
follows:
12.1. FIRST, to the payment of reasonable costs and expenses, including all
amounts expended to preserve the value of the Collateral, of foreclosure or
suit, if any, and of such sale and the exercise of any other rights or remedies,
and of all proper fees, expenses, liability and advances, including reasonable
legal expenses and attorneys' fees, incurred or made hereunder by the Secured
Party;
12.2. SECOND, to the payment to the Secured Party of the amount then owing
or unpaid on the Notes (to be applied first to accrued interest and second to
outstanding principal); and
12.3. THIRD, to the payment of the surplus, if any, to the Pledgor, its
assigns, or to whosoever may be lawfully entitled to receive the same.
13. Expenses. The Pledgor agrees to pay and reimburse the Secured Party
upon demand for all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) that the Secured Party may
incur in connection with (a) the custody, use or preservation of, or the sale
of, collection from or other realization upon, any of the Collateral, (b) the
exercise or enforcement of any rights or remedies granted hereunder, under any
of the Notes or otherwise available to it (whether at law, in equity or
otherwise), or (c) the failure by the Pledgor to perform or observe any of the
provisions hereof.
14. Choice of Law and Venue. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Illinois for contracts
to be wholly performed in such state and without giving effect to the principles
thereof regarding the conflict of laws. Each of the parties consents to the
exclusive personal jurisdiction of the federal courts whose districts encompass
any part of Cook County or the state courts of the State of Illinois sitting in
Cook County in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on FORUM NON CONVENIENS, to the bringing of any such
proceeding in such jurisdictions or to any claim that such venue of the suit,
action or proceeding is improper. Nothing in this subsection shall affect or
limit any right to serve process in any other manner permitted by law.
15. Waivers and Amendments.
15.1. Nonwaiver. No failure or delay on either party's part in exercising
any right hereunder shall operate as a waiver thereof or of any other right nor
shall any single or partial exercise of any such right preclude any other
further exercise thereof or of any other right.
15.2. Amendments and Waivers. This Agreement may not be amended or
modified, nor may any of its terms be waived, except by written instruments
signed by the Pledgor and the Secured Party. Each waiver or consent under any
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provision hereof shall be effective only in the specific instances for the
purpose for which given.
16. Notices. Unless otherwise provided for herein, all notices, requests,
demands, claims and other communications hereunder shall be given in accordance
with the subsection of the Purchase Agreement titled "Notices." Either party may
change the address to which notices, requests, demands, claims or other
communications hereunder are to be delivered by providing notice thereof in the
manner set forth in the Purchase Agreement.
17. 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 or be given any substantive effect.
18. Attorneys' Fees. Without limiting any other provision contained herein,
in the event of any action at law or in equity to enforce or interpret the terms
of this Agreement, the parties agree that the party who is awarded the most
money shall be deemed the prevailing party for all purposes and shall therefore
be entitled to an additional award of the full amount of the attorneys' fees and
expenses paid by such prevailing party in connection with the litigation and/or
dispute without reduction or apportionment based upon the individual claims or
defenses giving rise to the fees and expenses. Nothing herein shall restrict or
impair a court's power to award fees and expenses for frivolous or bad faith
pleading.
19. Construction and Interpretation. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement and each party has
been represented by its or its own legal counsel. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
20. Successor and Assigns; Assignment. The terms and provisions of this
Agreement shall be binding upon, and, subject to the provisions of this Section,
the benefits thereof shall inure to, the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that the rights, interests or
obligations of the Secured Party hereunder may not be assigned, by operation of
law or otherwise, in whole or in part, by the Secured Party without the prior
written consent of the Pledgor, which consent may be withheld at the sole
discretion of the Pledgor; PROVIDED, HOWEVER, that in the case of a merger, sale
of substantially all of the Secured Party's assets or other corporate
reorganization, the Pledgor shall not unreasonably withhold, condition or delay
such consent.
21. Severability. If any part of this Agreement is construed to be in
violation of any law, such part shall be modified to achieve the objective of
the parties to the fullest extent permitted by law and the balance of this
Agreement shall remain in full force and effect.
22. Entire Agreement. This Agreement, together with the Purchase Agreement
and Notes and all other Transaction Documents (as defined in the Purchase
Agreement), constitute and contain the entire agreement between the Secured
Party and the Pledgor and supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof.
23. Counterparts; Facsimile Execution. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same Agreement. Delivery of an
executed counterpart of this Agreement by facsimile or email shall be equally as
effective as delivery of an original executed counterpart of this Agreement.
[Remainder of page intentionally left blank; signature page to follow]
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IN WITNESS WHEREOF, the Pledgor and the Secured Party have caused this
Agreement to be duly executed and delivered by their officers thereunto, as
applicable, duly authorized as of the date first written above.
THE PLEDGOR:
TYPENEX CO-INVESTMENT, LLC
By: Red Cliffs Investments, Inc., its Manager
By: /s/ John M. Fife
--------------------------------------------
John M. Fife, President
THE SECURED PARTY:
RED GIANT ENTERTAINMENT, INC.
By: /s/ Benny R. Powell
--------------------------------------------
Benny R. Powell, President/CEO
[Signature page to Membership Interest Pledge Agreement]
