EXHIBIT 10.12
SECURED PROMISSORY NOTE
$5,000,000 March 8, 2004
FOR VALUE RECEIVED, the undersigned, Chex Services, Inc., a Minnesota
corporation (the "Maker"), hereby promises to pay to the order of Equitex, Inc.,
a Delaware corporation or its assigns (the "Payee"), at such place as the Payee
may designate in writing, the principal sum of Five Million Dollars
($5,000,000), under the terms set forth herein.
1. Interest. The unpaid principal balance hereof from time to time outstanding
shall bear interest from the date hereof at the rate of 7% per annum; provided,
that upon the occurrence of an event of default, the unpaid principal and
interest hereof existing from time to time following the event of default, and
up to the date such event of default is cured with the consent of Payee, shall
bear interest at the increased rate of 10% per annum, and the incremental
increase in interest due under such circumstance shall be added to each
installment payment as provided in Section 2 below.
2. Payment. Subject to adjustment upon an event of default as provided under
Section 1, the payments of principal and interest hereunder are payable as
follows:
(a) Payments in cash of interest only are payable in arrears on April
8, March 8 and June 8, 2004; and
(b) Commencing on July 8, 2004, and on the 8th day of each of the
following 41 months, Maker shall pay amortized principal and interest on this
Note of $134,574.01 (the "Monthly Scheduled Payment").
3. Seniority. Except as otherwise provided hereunder, the obligations of Maker
hereunder are to be treated as "Senior Debt," and as such the Maker will not
create, incur, assume or guarantee any debt with respect to any money borrowed
(including principal, interest and penalties and the expenses of collection or
administration) from any third party, including any bank, finance company, trust
company, pension, trust, insurance company or other financial institution,
unless the instrument under which such debt is created, incurred, assumed or
guaranteed expressly provides that such debt and all other obligations assumed
in connection therewith are subordinate to the obligations of the Maker
hereunder by containing a provision which defines Senior Debt as provided for in
this paragraph and reads substantially as follows, or of like tenor and effect:
"The holder, by acceptance of the terms of this loan/guarantee/etc.
(the "Obligation"), agrees that the payment of the principal of and the
interest under the Obligation is hereby expressly subordinated to the
payment in full of all Senior Debt. The maker shall not pay any amounts
pursuant to this Obligation until all of such Senior Debt of the maker
has been paid in full unless the holders of the Senior Debt or the
instruments by which such Senior Debt was created, permit such payment
pursuant to this Obligation. Upon (i) the maturity of Senior Debt,
including by acceleration or otherwise, or (ii) any distribution of the
assets of the maker upon dissolution, winding up, liquidation or
reorganization of the maker, the holders of such Senior Debt are
entitled to receive payment in full before the holder of this
Obligation is entitled to receive any payment. If a payment not
permitted by the holders of Senior Debt or by the instruments creating
such Senior Debt is made to the lender of this Obligation before all
such applicable Senior Debt has been paid in full or provision has been
made for such payment, the payment made to the holder must be paid over
to the holders of such Senior Debt."
Notwithstanding the foregoing, nothing hereunder prohibits the Maker from
guaranteeing any debt incurred by Equitex, Inc. to Pandora Select Partners, LP
or Whitebox Hedged High Yield Partners, LP.
4. Security. The full and timely payment of this Note shall be secured by the
assets of Maker under a Security Agreement of this date (the "Security
Agreement").
5. Optional Prepayments. The Maker may prepay this Note, in whole or in part,
and in cash, without penalty by Maker upon fifteen days written notice to Payee.
Prepayments shall be applied first to accrued but unpaid interest and then to
principal.
6. Default.
(a) The occurrence of any one or more of the following events shall
constitute an event of default, upon which Payee may declare the entire
principal amount of this Note, together with all accrued but unpaid interest, to
be immediately due and payable in cash:
(i) The Maker shall fail to make any required payment of
principal or interest when due, and such failure shall continue for 10
days after the due date thereof.
(ii) The Maker shall be in material default of any term or
provision of the Security Agreement of this date between Maker and
Payee, and such default shall continue for 20 days after notice of such
default is given to Maker by Payee.
(iii) The Maker shall become insolvent, or if any bankruptcy,
reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law shall be instituted by or against the
Maker, which is not terminated within 90 days of the institution
thereof.
(b) Without limiting the above, the Maker acknowledges that payments on
the various scheduled due dates in Section 2 are of essence and that any failure
to timely pay any installment of principal or interest (whether as permitted by
cash, with stock or by a combination
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thereof and within any permitted grace period above) permits Payee during the
existence of an event of default to declare this Note immediately due in cash in
its entirety without any prior notice of any kind to Maker.
7. Restrictions on Transfer. The Payee of this Note, by acceptance hereof,
agrees, represents and warrants that this Note is being acquired for investment
purposes, that the Payee has no present intention to resell or otherwise dispose
of all or any part of this Note and that the Payee will not offer, sell or
otherwise dispose of all or any part of this Note except under circumstances
which will not result in a violation of the Securities Act of 1933 or applicable
state securities laws. The Maker may condition any transfer, sale, pledge,
assignment or other disposition on the receipt, from the party to whom this Note
is to be so transferred, of any representations, agreements and legal opinions
reasonably requested by the Maker in order to permit such transfer, sale,
pledge, assignment or other disposition to be made pursuant to exemptions from
registration under federal and applicable state securities laws.
8. Applicable Law. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THE NOTE
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING
EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.
9. Waivers. The Maker hereby waives presentment for payment, notice of dishonor,
protest and notice of payment and, except as otherwise provided herein, all
other notices of any kind in connection with the enforcement of this Note.
10. No Setoffs. The Maker shall pay principal and interest under the Note
without any deduction for any setoff or counterclaim.
11. Costs of Collection. If this Note is not paid when due, the Maker shall pay
Payee's reasonable costs of collection, including reasonable attorney's fees.
Chex Services, Inc.
By /s/ James Welbourn
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James Welbourn, Chief Executive Officer
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