EXHIBIT 10.13
EQUITEX SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made as of March 8, 2004,
by and between Equitex, Inc., a Delaware corporation ("Equitex"), and Pandora
Select Partners, L.P., a British Virgin Islands limited partnership ("Pandora"),
and Whitebox Hedged High Yield Partners, L.P., a British Virgin Islands limited
partnership ("WHHY"), as secured parties (Pandora and WHHY individually are each
a "Secured Party" and together are the "Secured Parties").
RECITALS
A. Equitex has entered into a Purchase Agreement of this date, pursuant
to which Pandora is purchasing a $3,000,000, and WHHY is purchasing a
$2,000,000, face amount promissory note from Equitex (the "Notes") in
consideration for a $5,000,000 loan by Secured Parties to Equitex (the "Loan"),
which Equitex will concurrently loan on a secured basis to Chex Services, Inc.,
a Minnesota corporation and wholly-owned subsidiary of Equitex ("Chex") for use
in Chex's business (the "Chex Loan");
B. The Notes are convertible into shares of Equitex Common Stock (the
"Common Stock") and Equitex may repay a portion of the Notes by issuance of
additional shares of its Common Stock; and
C. As a condition of making the Loan, the Secured Parties have required
Equitex to (i) issue each of the Secured Parties a warrant of this date to
purchase additional shares of Equitex Common Stock (the "Warrants"), (ii) agree
to register the shares of Common Stock issuable upon exercise of the Warrants
and upon conversion of the Notes or in payment thereof pursuant to a
Registration Rights Agreement of this date (the "Registration Rights
Agreement"), (iii) pledge certain of Equitex's assets, as more fully described
on Exhibit A hereto (together with the rights described herein, (the
"Collateral"), which Collateral consists of all of the outstanding capital stock
of Chex, the Chex Loan and Equitex's interest in the Chex Note Security
Agreement dated as of this date, as security for the due and prompt payment of
all amounts under the Notes and the due and prompt performance of all
obligations under the Warrants; and (iv) cause Chex to guarantee the obligations
of Equitex under the Notes (the "Guarantee"), and to grant to Secured Parties a
security interest in all of Chex's assets to secure the performance of Chex's
obligations under the Guarantee.
NOW, THEREFORE, in consideration of the agreements herein and in
reliance upon the representations and warranties set forth herein and therein,
the parties agree as follows:
ARTICLE 1.
DEFINED TERMS
1.1 Definitions. Unless otherwise defined herein or unless the context otherwise
requires, terms used in this Agreement, including its preamble and recitals,
have the meanings provided in the Uniform Commercial Code in effect in the State
of Minnesota (the "UCC"). In addition, the following terms when used in this
Agreement, including its preamble and recitals, shall have the following
meanings:
"Loan Documents" means the Notes, the Warrants, the
Registration Rights Agreement and this Agreement.
"Obligations" means the payment and other performance
obligations under the Notes.
ARTICLE 2.
SECURITY INTEREST
2.1 Grant of Security Interest. To secure the timely payment and performance in
full of the Obligations, Equitex does hereby assign, grant and pledge to Secured
Parties, all of its estate, right, title and interest in and to the Collateral.
As to Equitex's equity interest (the "Pledged Equity Interest") in Chex, the
Collateral includes Equitex's share of:
(a) all rights to receive income, gain, profit, dividends and other
distributions allocated or distributed to Equitex in respect of or in exchange
for all or any portion of such Pledged Equity Interest;
(b) all of Equitex's capital or ownership interest, including
capital accounts, in Chex, and all accounts, deposits or credits of any kind
with Chex;
(c) all of Equitex's voting rights in or rights to control or direct
the affairs of Chex;
(d) all of Equitex's rights, title and interest, as a member or
shareholder of Chex, in, to or under any and all of Chex's assets or properties;
(e) all other rights, title and interest in or to Chex derived from
the Pledged Equity Interest;
(f) all indebtedness or other obligations of Chex owed to Equitex;
(g) all claims of Equitex for damages arising out of, or for any
breach or default relating to, the Pledged Equity Interest;
(h) all rights of Equitex to terminate, amend, supplement, modify,
or cancel, the governing documents of Chex, to take all actions thereunder and
to compel performance and otherwise exercise all remedies thereunder; and
(i) all securities, notes, certificates and other instruments
representing or evidencing any of the foregoing rights and interests or the
ownership thereof and any interest of Equitex reflected in the books of any
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financial intermediary pertaining to such rights and interests and all non-cash
dividends, cash, options, warrants, stock splits, reclassifications, rights,
instruments or other investment property 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 rights and interests.
2.2 Delivery of Certificates. All certificates, notes and other
instruments representing or evidencing Pledged Equity Interest shall be
delivered to and held by or on behalf of Secured Parties, or its designee
pursuant hereto, in the manner set forth in Section 4.6 (Delivery of Collateral;
Proxy).
2.3 Financing Statements.
(a) Equitex hereby authorizes Secured Parties to file all financing
statements, continuation statements, assignments, certificates, and other
documents and instruments with respect to the Collateral pursuant to the UCC and
otherwise as may be necessary or reasonably requested by Secured Parties to
perfect or from time to time to publish notice of, or continue or renew the
security interests granted hereby (including, such financing statements,
continuation statements, certificates, and other documents as may be necessary
or reasonably requested to perfect a security interest in any replacements or
proceeds of the Collateral), in each case in form and substance satisfactory to
Secured Parties.
(b) Secured Parties will pay the cost of filing the same in all public
offices where filing is necessary or reasonably requested by Secured Parties and
will pay any and all recording, transfer or filing taxes that may due in
connection with any such filing. Equitex grants Secured Parties the right, at
any time and at Secured Parties' option to file any or all such financing
statements, continuation statements, and other documents pursuant to the UCC and
otherwise as Secured Parties reasonably may deem necessary or desirable.
(c) Equitex hereby authorizes the filing of any financing statements or
continuation statements, and amendments to financing statements, or any similar
document in any jurisdictions and with any filing offices as Secured Parties may
reasonably determine are necessary or advisable to perfect the security
interests granted to Secured Parties. Such financing statements may describe the
Collateral in the same manner as described herein or may contain an indication
or description of collateral that describes such property in any other manner as
Secured Parties may reasonably determine is necessary, advisable or prudent to
ensure the perfection of the security interest in the Collateral granted to
Secured Parties herein.
2.4 Debtor Remains Liable.
(a) Anything herein contained to the contrary notwithstanding, Equitex
shall remain liable under its certificate of incorporation, bylaws or other
constituent documents (together, the "Constituent Documents"), to perform all of
the obligations undertaken by it thereunder, all in accordance with and pursuant
to the terms and provisions thereof, and Secured Parties shall have no
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obligations or liabilities under the Constituent Documents by reason of or
arising out of this Agreement, nor shall Secured Parties be required or
obligated in any manner to perform or fulfill any obligations of Equitex
thereunder or to make any payment, or to make any inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim, or take
any action to collect or enforce the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(b) If any default by Equitex under any of the Constituent Documents
shall occur, Secured Parties shall, at their option, be permitted (but shall not
be obligated) to remedy any such default by giving written notice of such intent
to Equitex and to the parties to such agreement. Any cure by Secured Parties of
Equitex's default under a Constituent Document shall not be construed as an
assumption by Secured Parties of any obligations, covenants or agreements of
Equitex under the Constituent Documents, and Secured Parties shall not incur any
liability to Equitex or any other Person as a result of any actions undertaken
by Secured Parties in curing or attempting to cure any such default. This
Agreement shall not be deemed to release or to affect in any way the obligations
of Equitex under any of the Constituent Documents.
2.5 Retention of Certain Rights. So long as Secured Parties have not
exercised remedies with respect to the Collateral under and in accordance with
this Agreement, upon the occurrence and during the continuance of an Event of
Default, Equitex reserves the right, subject to its obligations under Section
2.6, to exercise all voting rights with respect to the Pledged Equity Interest;
provided, that no vote shall be cast, right exercised or other action taken
which could materially impair the Collateral.
2.6 MERGER OR COMBINATION. Equitex will promptly notify (the
"Reorganization Notice") Secured Parties of the material terms and conditions of
any proposed transaction which, if consummated, would result in the merger or
consolidation of Chex with, or the acquisition of the business of Chex by,
another entity (which transaction is referred to hereunder as a
"Reorganization"). Notwithstanding anything to the contrary contained herein,
Equitex, with the consent of Secured Parties, which consent will not be
unreasonably withheld, may cause or allow Chex to engage in a Reorganization,
where Equitex retains ("Retained Interest") at least 87.5% of the outstanding
capital stock and voting power of the entity surviving such Reorganization.
Secured Parties shall be deemed to provide such consent if they have not
notified Equitex of their denial of that consent, and the reasons for such
denial, within 20 days of the Reorganization Notice. Any consent provided by
Secured Parties, whether by action or inaction, shall be conditioned upon the
substitution of the Retained Interest for the Chex shares of common stock as a
Pledged Equity Interest under this Agreement, in a manner reasonably
satisfactory to Secured Parties. Upon granting such consent, Secured Parties
will deliver or cause to be delivered all documentation relating to Pledged
Equity Interests reasonably required by Equitex or Chex to consummate the
proposed Reorganization. Secured Parties' consent will not be deemed to have
been given with respect to any Reorganization, the terms and conditions of which
vary in any material way from that set forth in the Reorganization Notice. Among
other reasons, it shall be deemed reasonable for Secured Parties to deny their
consent if satisfactory arrangements (in Secured Parties' sole discretion) are
not made to:
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(i) prevent a diminution of the value (as determined by Secured Parties
in their sole discretion) of their interests in the Warrants or their conversion
rights under the Notes (which may, with Secured Parties' consent, be satisfied
by the agreed upon grant of (x) additional rights to convert all or a portion of
the Secured Parties' Notes into, or to exercise all or a portion of their
Warrants for, shares of the Chex-reorganized entity, and (y) further rights to
acquire equity securities of the Chex-reorganized entity), and
(ii) compensate Secured Parties in a manner acceptable to them (which
may, with Secured Parties' consent, include the methods described above) for the
loss of value of the Collateral by virtue of the Reorganization.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF DEBTOR
Equitex makes the following representations and warranties to and in
favor of Secured Parties as of the date hereof. All of these representations and
warranties shall survive the execution and delivery of this Agreement:
3.1 ORGANIZATION. Equitex and Chex:
(a) are corporations duly incorporated and validly existing
and in good standing under the laws of the State of Delaware and Minnesota,
respectively;
(b) are each duly qualified, authorized to do business as a
foreign corporation in each jurisdiction where the character of its properties
or the nature of its activities makes such qualification necessary; and
(c) each has the corporate power (A) to enter into the Loan
Documents and to perform its obligations thereunder and to consummate the
transactions contemplated thereby, and (B) to carry on its business as now being
conducted and as proposed to be conducted by it.
(d) Equitex has the corporate power (A) to execute, deliver
and perform this Agreement, (B) to take all action as may be necessary to
consummate the transactions contemplated hereunder and (C) to grant the liens
and security interests provided for in this Agreement.
3.2 OFFICES, LOCATION OF COLLATERAL. The chief executive office or
chief place of business of both Equitex and Chex is located at 7315 Peakview
Avenue, Englewood, Colorado 80111.
3.3 Title and Liens. The Pledged Equity Interest owned by Equitex (a)
has been duly authorized and validly issued and (b) is fully paid and
non-assessable. Equitex has good, valid, and marketable title to its Collateral,
free from all liens and encumbrances of any kind. As a result of this Agreement,
Secured Parties will have a first priority security interest in the Collateral.
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3.4 UCC Article 8. The shares of Chex that constitute the Pledged
Equity Interest are securities governed by Article 8 of the UCC.
3.5 Authorization; No Conflict. Equitex has duly authorized, executed
and delivered this Agreement, and Equitex's execution and delivery hereof and
its consummation of the transactions contemplated hereby and the compliance with
the terms thereof:
(a) does not or will not contravene the Constituent Documents of Chex
or any other legal requirements applicable to or binding on Equitex which could
reasonably be expected to have a material adverse effect upon the Collateral or
Secured Parties' rights therein;
(b) does not or will not contravene or result in any breach of or
constitute any default, or result in or require the creation of any lien upon
any of Equitex's property, under any agreement or instrument to which Equitex is
a party or by which it or any of its properties may be bound or affected; and
(c) does not or will not require the consent or approval of any third
party which has not already been obtained.
3.6 Enforceability. This Agreement is a legal, valid and binding
obligation of Equitex, enforceable against Equitex in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditors' rights or by the effect of general
equitable principles.
ARTICLE 4.
COVENANTS OF DEBTOR
Equitex covenants to and in favor of Secured Parties as follows:
4.1 Compliance with Obligations. Equitex shall perform and comply in
all material respects with all obligations and conditions on its part to be
performed with respect to the Collateral.
4.2 Information Concerning Collateral. Equitex shall, promptly upon
request, provide to Secured Parties all information and evidence they may
reasonably request concerning the Collateral to enable Secured Parties to
enforce the provisions of this Agreement.
4.3 Defense of Collateral. Equitex shall defend its title to the
Collateral and the interests of Secured Parties in the Collateral pledged
hereunder against the claims and demands of all third parties whomsoever.
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4.4 Maintenance of Collateral. Equitex shall not (i) take any action to
terminate, modify or amend any Constituent Document of Chex which impairs the
Secured Parties' interest in the Collateral, except with the consent of Secured
Parties, (ii) fail to deliver to Secured Parties a copy of each demand or notice
received or given by it relating to any Constituent Document of Chex or to any
other Collateral which could reasonably be expected to have a material adverse
effect upon the Collateral or Secured Parties' rights therein, or (iii) sell,
contract to sell, assign, transfer or dispose of any of the Collateral, except
with the consent of Secured Parties.
4.5 Events of Default. Equitex shall give to Secured Parties prompt
notice of any material default under any Constituent Document of Chex or
otherwise with respect to the Collateral of which Equitex has knowledge or has
received notice.
4.6 Delivery of PLEDGED EQUITY INTEREST; Proxy. All certificates or
instruments representing or evidencing the Pledged Equity Interest shall be
delivered to and held by or on behalf of Secured Parties pursuant hereto. All
such certificates or instruments shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance acceptable to Secured Parties.
Secured Parties shall have the right, at any time in their discretion and
without prior notice to Equitex, following the occurrence and during the
continuation of an Event of Default, to transfer to or to register in the name
of Secured Parties or any of its nominees any or all of the Pledged Equity
Interest and to exchange certificates or instruments representing or evidencing
Pledged Equity Interest for certificates or instruments of smaller or larger
denominations; provided, however, that once such Event of Default has been
cured, Secured Parties will promptly transfer to or register in the name or
cause its nominees to transfer to or register in the name of Equitex all such
Pledged Equity Interest. In furtherance of the foregoing, Equitex shall further
execute and deliver to Secured Parties as to Chex a proxy in the form attached
hereto as Exhibit B.
4.7 Preservation of Value; Limitation of Liens. Equitex shall not take
any action in connection with the Collateral which would impair in any material
respect the interests or rights of Secured Parties therein or with respect
thereto, except as expressly permitted hereby. Equitex shall not directly or
indirectly create, incur, assume or suffer to exist any liens on or with respect
to all or any part of the Collateral (other than the lien created by this
Agreement). Equitex shall at its own cost and expense promptly take such action
as may be necessary to discharge any such liens.
4.8 No Other Filings. Equitex shall not file or authorize to be filed
in any jurisdiction any financing statements under the UCC or any like statement
relating to the Collateral.
4.9 Maintenance of Records. Equitex shall, at all times, keep accurate
and complete records of the Collateral. Equitex shall permit representatives of
Secured Parties, upon reasonable prior notice, at any time during normal
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business hours of Equitex to inspect and make abstracts from Equitex's books and
records pertaining to the Collateral. Upon the occurrence and during the
continuation of any Event of Default, at Secured Parties' request, Equitex shall
promptly deliver copies of any and all such records to Secured Parties.
4.10 Payment of Taxes. Equitex shall pay or cause to be paid, before
any fine, penalty, interest or cost attaches thereto, all taxes, assessments and
other governmental or non-governmental charges or levies (other than those taxes
that it is contesting in good faith and by appropriate proceedings, and in
respect of which it has established adequate reserves for such taxes) now or
hereafter assessed or levied against the Collateral pledged by it hereunder and
shall retain copies of, and, upon request, permit Secured Parties to examine
receipts showing payment of any of the foregoing.
4.11 Name; Jurisdiction of Organization. Equitex shall give Secured
Parties at least 30 days prior written notice before Equitex change its name,
jurisdiction of organization or entity type and shall at the expense of Equitex
execute and deliver such instruments and documents as may be required by Secured
Parties or applicable legal requirements to maintain a first perfected security
interest in the Collateral.
4.12 Proceeds of Collateral. Equitex shall, at all times, keep pledged
to Secured Parties pursuant hereto all Collateral, and all dividends,
distributions, interest, principal and other proceeds received by Equitex with
respect thereto, and all other Collateral and other securities, instruments,
proceeds and rights from time to time received by or distributable to Equitex in
respect of the Collateral, and shall not permit Chex to issue any shares of
stock or other equity interests which shall not have been immediately duly
pledged to Secured Parties hereunder.
ARTICLE 5.
RIGHTS AND REMEDIES
5.1 Event of Default Defined. Any event of default under either of the
Notes shall constitute an "Event of Default" hereunder.
5.2 Remedies Upon Event of Default.
(a) During any period during which an Event of Default shall
have occurred and be continuing, Secured Parties may (but shall be under no
obligation to), directly or by using agent or broker:
(i) in connection with any acceleration and foreclosure, vote or
exercise any and all of Equitex's rights or powers incident to its ownership of
Chex, including any rights or powers to manage or control Chex;
(ii) proceed to protect and enforce the rights vested in it by this
Agreement and under the UCC;
(iii) cause all moneys and other property pledged as security to be
paid and/or delivered directly to it, and demand, sue for, collect and receive
any such moneys and property;
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(iv) cause any action at law or suit in equity or other proceeding
to be instituted and prosecuted to collect or enforce any Obligations of Equitex
or rights included in the Collateral, or for specific enforcement of any
covenant or agreement contained herein, or in aid of the exercise of any power
therein or herein granted, or for any foreclosure hereunder and sale under a
judgment or decree in any judicial proceeding, or to enforce any other legal or
equitable right vested in it by this Agreement or by law;
(v) foreclose or enforce any other agreement or other instrument by
or under or pursuant to which the Obligations of Debtor are issued or secured;
(vi) subject to Section 5.2(b), sell, lease or otherwise dispose of
any or all of the Collateral, in one or more transactions, at such prices as
Secured Parties may deem best, and for cash or on credit or for future delivery,
without assumption of any credit risk, at any broker's board or at public or
private sale, without demand of performance or notice of intention to sell,
lease or otherwise dispose of, or of time or place of disposition (except such
notice as is required by applicable statute and cannot be waived), it being
agreed that Secured Parties may be purchasers on their own behalf at any such
sale and that Secured Parties or anyone else who may be the purchaser or
recipient for value of any or all of the Collateral so disposed of shall, upon
such disposition, acquire all of the Equitex's rights therein. Secured Parties
may adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the same, and such
sale may, without further notice or publication, be made at any time or place to
which the same may be so adjourned. If Secured Parties, after reasonable inquiry
as to the credit worthiness of the purchaser, sell any of the Collateral upon
credit, Equitex will be credited only with payments actually made by the
purchaser, received by Secured Parties and applied to the indebtedness of the
purchaser. In the event the purchaser fails to pay for the Collateral, Secured
Parties may resell the Collateral and Equitex shall be credited with the
proceeds of the sale;
(vii) incur expenses, including reasonable attorneys' fees,
consultants' fees, and other costs appropriate to the exercise of any right or
power under this Agreement;
(viii) perform any obligation of Equitex hereunder and make
payments, purchase, contest or compromise any encumbrance, charge, or lien, and
pay taxes and expenses;
(ix) make any reasonable compromise or settlement deemed desirable
with respect to any or all of the Collateral and extend the time of payment,
arrange for payment installments, or otherwise modify the terms of, any or all
of the Collateral;
(x) secure the appointment of a receiver of any or all of the
Collateral;
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(xi) exercise any other or additional rights or remedies granted to
Secured Parties under any other provision of this Agreement or exercisable by a
secured party under the UCC, whether or not the UCC applies to the affected
Collateral, or under any other applicable law, and take any other action which
Secured Parties deems necessary or desirable to protect or realize upon their
security interests in the Collateral or any part thereof; and/or
(xii) appoint a third party (who may be an employee, officer or
other representative of Secured Parties) to do any of the foregoing, or take any
other action permitted hereunder, on behalf of Secured Parties.
(b) If, pursuant to any law, prior notice of any action described in
Section 5.2(a) is required to be given to Equitex, Equitex hereby acknowledges
that the minimum time required by such law, or if no minimum is specified, 10
days shall be deemed a reasonable notice period.
(c) Any action or proceeding to enforce this Agreement may be taken by
Secured Parties either in Equitex's name or in Secured Parties' names, as
Secured Parties may deem necessary.
(d) Secured Parties shall incur no liability as a result of the sale of
any or all of the Collateral at any private sale pursuant to Section 5.2(a)
conducted in a commercially reasonable manner. Equitex hereby waives any claims
against Secured Parties arising by reason of the fact that the price at which
any or all of the Collateral may have been sold at such a private sale was less
than the price that might have obtained at a public sale or was less than the
aggregate amount of the Obligations, even if Secured Parties accept the first
offer received and do not offer the Collateral to more than one offeree.
5.3 AttorneyS-in-Fact. Upon the occurrence and during the continuation
of an Event of Default, Equitex hereby irrevocably constitutes and appoints
Secured Parties as its true and lawful attorneys-in-fact to enforce all rights
of Equitex with respect to the Collateral, including the right to give
appropriate receipts, releases and satisfactions for and on behalf of and in the
name of Equitex or, at the option of Secured Parties, in the name of Secured
Parties, with the same force and effect as Equitex could do if this Agreement
had not been made. This power of attorney is a power coupled with an interest
and shall be irrevocable.
5.4 Expenses; Interest. All costs and expenses (including reasonable
attorneys' fees and expenses) incurred by Secured Parties in connection with
exercising any actions taken under Article 5, together with interest thereon (to
the extent permitted by law) computed at a rate of 10% per annum (or if less,
the maximum rate permitted by law) from the date on which such costs or expenses
are invoiced to, and become payable by, Equitex, to the date of payment thereof,
shall constitute part of the Obligations secured by this Agreement, and shall be
paid by Equitex to Secured Parties within 10 days after written demand.
5.5 No Impairment of Remedies. If under applicable law, Secured Parties
proceed by either judicial foreclosure or by non-judicial sale or enforcement,
Secured Parties may, at their sole option, determine which of their remedies or
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rights to pursue without affecting any of its rights and remedies under this
Agreement. If, by exercising any right and remedy, Secured Parties forfeit any
of their other rights or remedies, including any right to enter a deficiency
judgment against Equitex or any third party (whether because of any applicable
law pertaining to "election of remedies" or the like), Equitex nevertheless
hereby consents to such action by Secured Parties. To the extent permitted by
applicable law, Secured Parties also waive any claim based upon such action,
even if such action by Secured Parties results in a full or partial loss of any
rights of subrogation, indemnification or reimbursement which Equitex might
otherwise have had but for such action by Secured Parties or the terms herein.
Any election of remedies which results in the denial or impairment of the right
of Secured Parties to seek a deficiency judgment against any third party shall
not, to the extent permitted by applicable law, impair Equitex's obligations
hereunder. If Secured Parties bid at any foreclosure or trustee's sale or at any
private sale permitted by law or this Agreement, Secured Parties may bid all or
less than the amount of the Obligations. To the extent permitted by applicable
law, the amount of the successful bid at any such sale, whether Secured Parties
or any other party is the successful bidder, shall be conclusively deemed to be
the fair market value of the Collateral and the difference between such bid
amount and the remaining balance of the Obligations shall be conclusively deemed
to be the amount of the Obligations.
ARTICLE 6.
CERTAIN WAIVERS
6.1 Modification of Obligations. Equitex's liability hereunder shall
not be reduced, limited, impaired, discharged or terminated if Secured Parties
at any time with Equitex's consent (or, to the extent permissible by the terms
of the Loan Documents and law, without notice to or demand of Equitex):
(a) renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms, or otherwise modifies any of
the Obligations (including any payment terms);
(b) extend or waive the time for Equitex's performance of, or
compliance with, any term, covenant or agreement on its part to be performed or
observed under the Loan Documents, or waive such performance or compliance or
consent to a failure of, or departure from, such performance or compliance;
(c) settle, compromise, release or discharge, or accept or refuse any
offer of performance with respect to, or substitutions for, any of the
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations;
(d) request and accept other guaranties of any of the Obligations and
take and hold security for the payment hereof or any of the Obligations;
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(e) release, surrender, exchange, substitute, compromise, settle,
rescind, waive, alter, subordinate or modify, with or without consideration, any
security for payment of any of the Obligations, any other guaranties of any of
the Obligations, or any other obligation of any third party with respect to any
of the Obligations;
(f) to the extent permitted by law, enforce and apply any security, if
any, now or hereafter held by or for the benefit of Secured Parties in respect
hereof or any of the Obligations and direct the order or manner of sale thereof,
or exercise any other right or remedy that Secured Parties may have against any
such security, in each case as Secured Parties in their discretion may
determine, including foreclosure on any collateral pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable; or
(g) exercise any other rights available to them under any of the Loan
Documents, at law or in equity.
6.2 Security InterestS Absolute. All rights of Secured Parties and the
security interests hereunder, and all obligations of Equitex hereunder, shall be
absolute and unconditional irrespective of:
(a) any failure or omission to assert or enforce, or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under any Loan
Document, at law, in equity or otherwise) with respect to any of the Obligations
or any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of any of the Obligations;
(b) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions
relating to events of default) hereof, in any other Loan Document or any
agreement or instrument executed pursuant thereto, or of any other guaranty or
security for any of the Obligations, in each case, whether or not in accordance
with the terms hereof or any other Loan Document or any agreement relating to
such other guaranty or security;
(c) the application of payments received from any source (other than payments
received from the proceeds of any security for any of the Obligations, except to
the extent such security also serves as collateral for indebtedness other than
the Obligations) to the payment of indebtedness of Equitex to Secured Parties
other than the Obligations, even though Secured Parties might have elected to
apply such payment to any part or all of the Obligations;
(d) Secured Parties' consent to the change, reorganization or
termination of the corporate structure or existence of Equitex or Chex and to
any corresponding restructuring of any of the Obligations;
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(e) any other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the risk of
Equitex as an obligor in respect of any of the Obligations;
(f) any of the Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any respect; and
(g) any defenses, set-offs or counterclaims which Equitex may allege or
assert against Secured Parties in respect of any of the Obligations.
6.3 Certain Waivers. Except as provided in Section 7.16, Equitex hereby
waives any and all defenses afforded to a surety, including promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Agreement and any requirement that Secured Parties protect,
secure, perfect or insure any security interest or lien, or any property subject
thereto, or exhaust any right or take any action against Equitex or any other
third party or entity or any collateral securing any of the Obligations, as the
case may be.
6.4 Postponement of Subrogation. Equitex agrees that it will not
exercise any rights which it may acquire by way of rights of subrogation under
this Agreement, by any payment made hereunder or otherwise, while this Agreement
is in effect, unless such action is required to stay or prevent the running of
any applicable statute of limitations. Any amount paid to Equitex on account of
any such subrogation rights prior to such time shall be held in trust for
Secured Parties and shall immediately be paid to Secured Parties and credited
and applied against the Obligations. Any time after this Agreement has
terminated and if Equitex has made payment to Secured Parties of all of the
Obligations, or if an action is required to stay or prevent the running of any
applicable statute of limitations, then, at Equitex's request, Secured Parties
will execute and deliver to Equitex appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to Equitex of an interest in the Obligations resulting from such
payment by Equitex.
ARTICLE 7.
MISCELLANEOUS
7.1 Notices. Any communications, including notices and instructions,
between the parties hereto or notices provided herein to be given may be given
to the following addresses:
If to Secured Parties, in care of:
Whitebox Advisors, LLC
3033 Excelsior Boulevard, Suite 300
Minneapolis, Minnesota 55416
Attention: Jonathan D. Wood, Chief Financial Officer
Facsimile: (612) 253-6151
E-mail: jwood@whitebox-advisors.com
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With a copy to:
Messerli & Kramer P.A.
150 South Fifth Street, Suite 1800
Minneapolis, Minnesota 55402
Attention: Jeffrey C. Robbins, Esq.
Facsimile: (612) 672-3777
E-mail: jrobbins@mandklaw.com
If to Equitex, in care of:
Equitex, Inc.
7315 East Peakview Avenue
Englewood, Colorado 80111
Attention: Henry Fong, President, and Ijaz Anwar, Treasurer
Facsimile: (561) 624-0886 (Henry) and (952) 417-1996 (Ijaz)
E-mail: hfong@equitex.net and ianwar@chexss.com
With a copy to:
Felhaber, Larson, Fenlon & Vogt, P.A.
220 South Sixth Street, Suite 2200
Minneapolis, Minnesota 55402
Attention: Roger H. Frommelt, Esq.
Facsimile: (612) 338-4608
E-mail: rfrommelt@felhaber.com
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered as properly given (a) on
the date received in person, (b) on the date received by overnight delivery
service (including Federal Express, UPS, ETA, Emery, DHL, AirBorne and other
similar overnight delivery services), (c) on the fourth business day following
the date mailed by first class United States mail, postage prepaid, registered
or certified with return receipt requested, (d) on the next business day after
being transmitted by telecopy or by other electronic means (including electronic
mail). Any party shall have the right to change its address for notice hereunder
to any other location within the continental United States by giving of notice
to the other parties in the manner set forth hereinabove.
7.2 Delay and Waiver; Remedies Cumulative. No failure or delay by
Secured Parties in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. Any waiver, permit, consent or approval of any kind or
-14-
character on the part of Secured Parties of any breach or default under the
Agreement or any waiver on the part of Secured Parties of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent in such writing specifically set forth. No right, power or remedy
herein conferred upon or reserved to Secured Parties hereunder is intended to be
exclusive of any other right, power or remedy, and every such right, power and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right, power and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy. Resort to any or all
security now or hereafter held by Secured Parties, may be taken concurrently or
successively and in one or several consolidated or independent judicial actions
or lawfully taken nonjudicial proceedings, or both.
7.3 Entire Agreement. This Agreement and any agreement, document or
instrument referred to herein integrate all the terms and conditions mentioned
herein or incidental hereto and supersede all oral negotiations and prior
writings in respect of the subject matter hereof.
7.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, exclusive of its conflict of
laws rules.
7.5 Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
7.6 Headings. Paragraph headings have been inserted in this Agreement
as a matter of convenience for reference only and it is agreed that such
paragraph headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
7.7 Waiver of Jury Trial. EQUITEX HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF SECURED PARTIES. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR SECURED PARTIES TO MAKE THE LOAN.
7.8 Consent to Jurisdiction. Each party hereto agrees that any legal
action or proceeding with respect to or arising out of this Agreement may be
brought in or removed to the federal or state courts located in Hennepin County,
Minnesota, as Secured Parties may elect. By execution and delivery of this
Agreement, each party hereto accepts, for themselves and in respect of their
property, generally and unconditionally, the jurisdiction of the aforesaid
-15-
courts. Each of the parties hereto irrevocably consents to the service of
process out of any of the aforementioned courts in any manner permitted by law.
Nothing herein shall affect the right of Secured Parties to bring legal action
or proceedings in any other competent jurisdiction. Each party hereto hereby
waives any right to stay or dismiss any action or proceeding under or in
connection with this Agreement brought before the foregoing courts on the basis
of forum non-conveniens.
7.9 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
7.10 Counterparts. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the parties listed below, shall
constitute a single binding agreement. Delivery of an executed signature page of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart thereof.
7.11 Benefit of Agreement. Nothing in this Agreement, express or
implied, shall give or be construed to give, any person other than the parties
hereto and their respective permitted successors, transferees and assigns any
legal or equitable right, remedy or claim under this Agreement, or under any
covenants and provisions of this Agreement, each such covenant and provision
being for the sole benefit of the parties hereto and their respective permitted
successors, transferees and assigns.
7.12 Amendments and Waivers. No amendment, modification, termination or
waiver of any provision of this Agreement or consent to any departure therefrom
shall be effective unless the same shall be in writing and signed by each of the
parties hereto. Each amendment, modification, termination or waiver shall be
effective only in the specific instance and for the specific purpose for which
it was given.
7.13 Survival of Agreements. The provisions regarding the payment of
expenses and indemnification obligations shall survive and remain in full force
and effect regardless of the termination of this Agreement pursuant to Section
7.14.
7.14 Release and Satisfaction. Upon the indefeasible payment (whether
in cash and/or other consideration which is satisfactory to Secured Parties in
its sole discretion) and performance in full of the Obligations, (i) this
Agreement and the security interests created hereby shall terminate and Secured
Parties will return the Collateral, including all documentation evidencing or
affecting the Collateral, and (ii) upon written request of Equitex, Secured
Parties shall execute and deliver to Equitex, at Equitex's expense and without
representation or warranty by or recourse to Secured Parties, releases and
satisfactions of all financing statements, mortgages, notices of assignment and
other registrations of security.
7.15 Reinstatement. This Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time any payment
pursuant to this Agreement is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy, reorganization, liquidation of Equitex
or upon the dissolution of, or appointment of any intervenor or conservator of,
or trustee or similar official for, Equitex or any substantial part of Equitex's
assets, or otherwise, all as though such payments had not been made.
-16-
7.16 Limitation on Duty of Secured Parties with Respect to the
Collateral. The powers conferred on Secured Parties hereunder are solely to
protect their interest in the Collateral and shall not impose any duty on
Secured Parties or any of their designated agents to exercise any such powers.
Except for the safe custody of any Collateral in its possession and the
accounting for monies actually received by it hereunder, Secured Parties shall
have no duty with respect to any Collateral and no implied duties or obligations
shall be read into this Agreement against Secured Parties. Secured Parties shall
be deemed to have exercised reasonable care in the custody and preservation of
the Collateral in their possession if the Collateral is accorded treatment that
is substantially equivalent to that which Secured Parties accord their own
property, it being expressly agreed, to the maximum extent permitted by
applicable law, that Secured Parties shall have no responsibility for (a) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral or (b) taking any action to protect against any diminution in value
of the Collateral, but, in each case, Secured Parties may do so and all expenses
reasonably incurred in connection therewith shall be part of the Obligations.
IN WITNESS WHEREOF, the undersigned have hereunto affixed their
signatures.
Equitex: Secured Parties:
Equitex, Inc. Pandora Select Partners, L.P.
By /s/ Henry Fong By /s/ Andrew Redleaf
--------------------------- ---------------------------------------
Its President Its Managing Partner
-------------------------- --------------------------------------
Whitebox Hedged High Yield Partners, L.P.
By /s/ Andrew Redleaf
---------------------------------------
Its Managing Partner
--------------------------------------
-17-
EXHIBIT A
DESCRIPTION OF EQUITEX COLLATERAL
A. 2,170,000 shares of the common stock of Chex Services, Inc., being all
of the outstanding capital stock of Chex Services, Inc., represented by
Certificate number , and any distributions made with respect to said
shares.
B. Promissory note the ("Chex Note") executed by Chex Services, Inc. in
favor of Equitex, Inc., dated March 8, 2004, in the principal amount of
$5,000,000.
C. Equitex's rights, title and interest in the Security Agreement,
providing collateral security for payment of the Chex Note, dated March
8, 2004, which collateral consists of substantially all of the assets
of Chex Services, Inc.
The Collateral shall include all substitutes and replacements for and
proceeds of any and all of the foregoing property.
A-1
EXHIBIT B
IRREVOCABLE PROXY
The undersigned hereby appoints __________________________________
("Secured Parties") as Proxy with full power of substitution, and hereby
authorizes Secured Parties to represent and vote (or to execute a consent in
lieu of voting) all 2,170,000 shares of Common Stock, _____ par value, of Chex
Services, Inc., a Minnesota corporation, as represented by Certificate No. _____
(for 2,170,000 shares), together with any other shares or securities issued
pursuant to a stock split or dividend, reorganization or other event affecting
or relating to any of the foregoing shares, owned by the undersigned on the date
of exercise hereof during the continuance of an Event of Default under, and as
defined in, that certain Security Agreement dated as of March 8, 2004 by and
among Equitex, Inc. and Secured Parties, at any meeting or at any other time
chosen by Secured Parties in its sole discretion.
Date: March 8, 2004 Equitex, Inc.
By
----------------------------------
Its
---------------------------------
B-1