EXHIBIT 10.3
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "GUARANTY") is made and entered into this
8th day of March, 2004, by Chex Services, Inc., a Minnesota corporation
(hereinafter referred to as the "GUARANTOR"), to 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";
and together with Pandora referred to as the "LENDERS").
RECITALS
WHEREAS, the Guarantor desires to obtain a loan of $5,000,000 for its
general working capital purposes;
WHEREAS, to effect this working capital loan for the Guarantor's
benefit, the Lenders are willing to lend $5,000,000 (the "EQUITEX LOAN") to
Equitex Corporation, a Delaware corporation and the 100% owner of all of the
outstanding capital stock of the Guarantor ("EQUITEX"), to allow Equitex in turn
to loan $5,000,000 to the Guarantor (the "CHEX LOAN");
WHEREAS, among the conditions of making the Equitex Loan, the Lenders
require that the Guarantor guarantee the full and timely repayment of the
Equitex Loan and pledge all of its assets as security for this guarantee; and
WHEREAS, in order to induce the Lenders to make the Equitex Loan (which
in turn will make possible the Chex Loan), and as additional security for the
repayment of the promissory notes issuable by Equitex to evidence the Equitex
Loan (the "Notes") and the performance of Equitex's obligations under a Security
Agreement entered into between Equitex, Pandora and WHHY dated as of this date
(all together, the "EQUITEX LOAN DOCUMENTS"), the Guarantor has agreed to give
this Guaranty and to pledge all of its assets as security for this Guaranty;
NOW, THEREFORE, in consideration as stated above, and for other good
and valuable consideration, specifically including but not limited to Lenders'
reliance hereon, the Guarantor hereby covenants and agrees with the Lenders as
follows:
1. INCORPORATION OF EQUITEX LOAN DOCUMENTS. The Equitex Loan Documents
are hereby made a part of this Guaranty by reference thereto with the same force
and effect as if fully set forth herein.
2. PAYMENT GUARANTEE. The Guarantor hereby unconditionally and
absolutely guarantees to the Lenders, jointly and severally, the due and prompt
payment, and not just the collectibility, of the principal of, and interest and
late charges and all other indebtedness or payments due, if any, on the Notes
and other Equitex Loan Documents when due, whether at maturity, pursuant to
mandatory or optional prepayments, by acceleration or otherwise all at the times
and places and at the rates described in, and otherwise according to the tenor
of the Notes and other Equitex Loan Documents.
3. PERFORMANCE GUARANTEE. The Guarantor further hereby unconditionally
and absolutely guarantees to Lenders, jointly and severally, the due and prompt
performance by Equitex of all duties, agreements and obligations of Equitex
contained in the Equitex Loan Documents and specifically the due and prompt
payment of all costs incurred, including reasonable attorney's fees, in
enforcing the payment and performance of the Notes and other Equitex Loan
Documents and this Guaranty. The payments and performance of the items set forth
in Sections 2 and 3 of this Guaranty are hereinafter collectively referred to as
the "INDEBTEDNESS GUARANTEED."
4. GRANT OF SECURITY INTEREST. To secure the timely payment and
performance of the Indebtedness Guaranteed, the Guarantor agrees to grant the
Lenders a security interest in all of the Guarantor's assets pursuant to the
terms of a "Chex Guarantee Security Agreement" of this date (the "GUARANTOR
SECURITY AGREEMENT"). Such security interest will be subordinate only to the
security interest granted by Guarantor to Equitex to secure the Chex Loan.
5. GUARANTOR NOT RELEASED BY PARTICULAR ACTIONS. The Guarantor hereby
agrees that the Lenders may, from time to time without notice to or consent of
the Guarantor and upon such terms and conditions as the Lenders may deem
advisable, without affecting this Guaranty or the Guarantor Security Agreement
(a) release any maker, surety, guarantor or other person liable for payment of
all or any part of the Indebtedness Guaranteed, (b) make any agreement extending
or otherwise altering the time for or the terms of payment or performance of all
or any part of the Indebtedness Guaranteed, (c) modify, waive, compromise,
release, subordinate, resort to, exercise or refrain from exercising any right
the Lenders may have hereunder or pursuant to the Guarantor Security Agreement,
the Notes or any other Equitex Loan Document given for the Indebtedness
Guaranteed, (d) accept additional or release existing security or guarantees of
any kind, (e) endorse, transfer or assign this Guaranty, the Guarantor Security
Agreement, the Notes or any other Equitex Loan Documents to any other party, (f)
accept from Equitex or any other party partial payment or payments on account of
the Indebtedness Guaranteed, (g) from time to time hereafter further loan monies
or give or extend credit to or for the benefit of Equitex or (h) release, settle
or compromise any claim of the Lenders against Equitex, or against any other
person, firm or corporation whose obligation is held by the Lenders as
collateral security for the Indebtedness Guaranteed.
5. WAIVERS. The Guarantor hereby unconditionally and absolutely waives
(a) any obligation on the part of the Lenders to protect, secure or insure any
of the security given for the payment of the Indebtedness Guaranteed or exercise
any right of setoff which the Lenders may have against Equitex, (b) the
invalidity or unenforceability of the Indebtedness Guaranteed, (c) notice of
acceptance of this Guaranty or the Guarantor Security Agreement by the Lenders,
(d) notice of presentment, demand for payment, notice of non-performance,
protest, notices of protest and notices of dishonor, notice of non-payment or
partial payment, (e) notice of any defaults under the Notes or in the
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performance of any of the covenants and agreements contained therein or in any
other Equitex Loan Document given as security for the Notes, (f) any limitation
or exculpation of liability on the part of Equitex whether contained in the
Notes or otherwise, (g) the transfer or sale by Equitex or the diminution in
value thereof of any security given for the Indebtedness Guaranteed, (h) any
failure, neglect or omission on the part of the Lenders to realize or protect
the Indebtedness Guaranteed or any security given therefor, (i) any right to
insist that the Lenders prosecute collection of the Notes or resort to any
instrument or security given to secure the Indebtedness Guaranteed or to proceed
against Equitex or against any other guarantor or surety prior to enforcing this
Guaranty or the Guarantor Security Agreement; provided, however, at their sole
discretion the Lenders may either in a separate action or an action pursuant to
this Guaranty or the Guarantor Security Agreement pursue their remedies against
Equitex or any other guarantor or surety, without affecting their rights under
this Guaranty or the Guarantor Security Agreement, (j) notice to the Guarantor
of the existence of or the extending to Equitex of the Indebtedness Guaranteed
or (k) any order, method or manner of application of any payments on the
Indebtedness Guaranteed.
6. LIMITATION OF DEFENSES. Without limiting the generality of the
foregoing, the Guarantor will not assert against the Lenders any defense of
waiver, release, discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statutes, fraud, ultra vires acts, usury,
illegality or unenforceability which may be available to Equitex in respect of
the Notes or any other Equitex Loan Document or any setoff available against the
Lenders to Equitex whether or not on account of a related transaction, and the
Guarantor expressly agrees that it shall be and remain liable for any deficiency
remaining after foreclosure of the security interest under the Guarantor
Security Agreement securing the Note, notwithstanding provisions of law that may
prevent the Lenders from enforcing such deficiency against Equitex. The
liability of the Guarantor shall not be affected or impaired by any voluntary or
involuntary dissolution, sale or other disposition of all or substantially all
the assets, marshaling the assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar event or
proceeding affecting Equitex or any of its assets and that upon the institution
of any of the above actions, at the Lenders' sole discretion and without notice
thereof or demand therefor, the Guarantor's obligations shall become due and
payable and enforceable against the Guarantor, whether or not the Indebtedness
Guaranteed is then due and payable. The Guarantor further agrees that no act or
thing, except for payment in full, which but for this provision might or could
in law or in equity act as a release of the liabilities of the Guarantor
hereunder shall in any way affect or impair this Guaranty or the Guarantor
Security Agreement and the Guarantor agrees that this shall be a continuing,
absolute and unconditional Guaranty and shall be in full force and effect until
the Indebtedness Guaranteed has been paid in full.
7. SUBORDINATION. The Guarantor agrees that all indebtedness, liability
or liabilities now or at any time or times hereafter owing by Equitex to the
Guarantor is hereby subordinated to the Indebtedness Guaranteed and any payment
of indebtedness of Equitex to the Guarantor, if the Lenders so request, shall be
received by the Guarantor as trustees for the Lenders on account of the
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Indebtedness Guaranteed. The Guarantor agrees that the payment of any amount or
amounts by the Guarantor pursuant to this Guaranty shall not in any way entitle
the Guarantor whether at law, in equity or otherwise to any right to participate
in any security held by the Lenders for the payment of the Indebtedness
Guaranteed, any right to direct the application or disposition of any such
security or any right to direct the enforcement of any such security.
Performance by the Guarantor under this Guaranty shall not entitle the Guarantor
to be subrogated to any of the Indebtedness Guaranteed or to any security
therefor, unless and until the full amount of the Indebtedness Guaranteed has
been fully paid.
8. NO OTHER GUARANTIES. The delivery and effectiveness of this Guaranty
is not contingent or conditioned upon the delivery by any other entity or any
other type of personal guaranty relative to the Indebtedness Guaranteed.
9. MATTERS OCCURRING AUTOMATICALLY. The Guarantor agrees this Guaranty
is executed in order to induce the Lenders to make and disburse the Equitex Loan
evidenced by the Notes and other Equitex Loan Documents and with the intent that
it be relied upon by the Lenders in making and disbursing the Equitex Loan.
Disbursement of any part of the Equitex Loan evidenced by the Notes and other
Equitex Loan Documents, without any further action or notice, shall constitute
conclusive evidence of the reliance hereon by the Lenders. This Guaranty shall
run with the Equitex Loan Documents and without the need for any further
assignment of this Guaranty to any subsequent holder of the Notes or the need
for any notice to the Guarantor or any other guarantor thereof. Upon endorsement
or assignment of a Note to any subsequent holder, said subsequent holder of a
Note may enforce this Guaranty and the Guarantor Security Agreement as if said
holder had been originally named as a Lender hereunder.
10. JURISDICTION. The Guarantor consents to be sued in any jurisdiction
in which Equitex may be sued as well as the Guarantor's principal place of
business and in Minnesota.
11. MISCELLANEOUS. No right or remedy herein conferred upon or reserved
to the Lenders is intended to be exclusive of any other available remedy or
remedies but each and every remedy shall be cumulative and shall be in addition
to every other remedy given under this Guaranty or now or hereafter existing at
law or in equity. No waiver, amendment, release or modification of this Guaranty
shall be established by conduct, custom or course of dealing, but only by an
instrument in writing duly executed by the Lenders. If any term, provision,
covenant, or condition of this Guaranty shall be held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of this
Guaranty shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby. No term or provision shall be
construed against the Guarantor or the Lenders by virtue of their participation
in drafting or otherwise providing such term or provision.
12. GOVERNING LAW. This Guaranty is delivered in and made in and shall
in all respects be construed pursuant to the laws of the State of Minnesota,
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exclusive of its conflict of laws rules. Nothing in this Guaranty shall be
construed as making the Guarantor "co-makers" of the Notes or any of the
Indebtedness Guaranteed or that the same is an original undertaking of the
Guarantor.
13. BINDING EFFECT. This Guaranty, and each and every part hereof,
shall be binding upon the Guarantor and upon its representatives, successors and
assigns and shall inure to the benefit of each and every future holder of the
Notes, including the representatives, successors and assigns of the Lenders.
IN WITNESS WHEREOF, the undersigned has hereunto affixed its signature.
CHEX SERVICES, INC.
By /s/ James Welbourn
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Its President
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