Exhibit 10.5


 


GUARANTY


 


	
  New York, New York

  	
   

  	
  December     , 2003

  



 


FOR VALUE
RECEIVED, and in consideration of note purchases from, loans made or to be made
or credit otherwise extended or to be extended by Laurus Master Fund, Ltd.
(“Laurus”) to or for the account of Equinox Business Credit Corp. (“Debtor”)
from time to time and at any time and for other good and valuable consideration
and to induce Laurus, in its discretion, to purchase such notes, make such
loans or extensions of credit and to make or grant such renewals, extensions,
releases of collateral or relinquishments of legal rights as Laurus may deem
advisable, the undersigned (referred to as “Guarantor” or “the undersigned”)
unconditionally guaranties to Laurus, its successors, endorsees and assigns the
prompt payment when due (whether by acceleration or otherwise) of all present
and future obligations and liabilities of any and all kinds of Debtor to Laurus
and of all instruments of any nature evidencing or relating to any such
obligations and liabilities upon which Debtor or one or more parties and Debtor
is or may become liable to Laurus, whether incurred by Debtor as maker,
endorser, drawer, acceptor, guarantors , accommodation party or otherwise, and
whether due or to become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired by Laurus, whether arising
under, out of, or in connection with that certain Securities Purchase Agreement
dated as of the date hereof by and between Debtor and Laurus (the “Securities
Purchase Agreement”); that certain Secured Convertible Note dated as of the
date hereof made by Debtor in favor of Laurus (the “Term Note”) the Warrant
dated as of the date hereof made by Debtor in favor of Laurus in connection
with the Term Note (the “Term Note Warrant”) that certain Registration Rights
Agreement dated as of the date hereof by and between Debtor and Laurus in
connection with the Term Note (the “Term Note Registration Rights Agreement”),
(the Securities Purchase Agreement, the Term Note, the Term Note Warrant and
the Term Note Registration Rights Agreement, as each may be amended, modified,
restated or supplemented from time to time, are collectively referred to herein
as the “Documents”), or any documents, instruments or agreements relating to or
executed in connection with the Documents or any documents, instruments or
agreements referred to therein or otherwise (all of which are herein
collectively referred to as the “Obligations”), and irrespective of the
genuineness, validity, regularity or enforceability of such Obligations, or of
any instrument evidencing any of the Obligations or of any collateral therefor
or of the existence or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of the Obligations in any
case commenced by or against Debtor under Title 11, United States Code,
including, without limitation, obligations or indebtedness of Debtor for
post-petition interest, fees, costs and charges that would have accrued or been
added to the Obligations but for the commencement of such case.  In furtherance of the foregoing, the
undersigned hereby agrees as follows:


 


1.             No Impairment.  Laurus may at any time and from time to
time, either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or
surrender any collateral for, renew or extend any of the Obligations or
increase or decrease the interest rate thereon, and may also make any agreement
with Debtor or with any other party to or person liable on any of the
Obligations, or interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between Laurus and Debtor
or any such other party or person, or make any election of rights Laurus may
deem desirable under the United States Bankruptcy Code, as amended, or any
other federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the


 

















 


enforcement of creditors’
rights generally (any of the foregoing, an “Insolvency Law”) without in any way
impairing or affecting this Guaranty. 
This instrument shall be effective regardless of the subsequent incorporation,
merger or consolidation of Debtor, or any change in the composition, nature,
personnel or location of Debtor and shall extend to any successor entity to
Debtor, including a debtor in possession or the like under any Insolvency Law.


 


2.             Guaranty Absolute.  The undersigned guarantees that the
Obligations will be paid strictly in accordance with the terms of the Documents
and/or any other document, instrument or agreement creating or evidencing the
Obligations, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of Debtor
with respect thereto.  Guarantor hereby
knowingly accepts the full range of risk encompassed within a contract of
“continuing guaranty” which risk includes the possibility that Debtor will
contract additional indebtedness for which Guarantor may be liable hereunder
after Debtor’s financial condition or ability to pay its lawful debts when they
fall due has deteriorated, whether or not Debtor has properly authorized
incurring such additional indebtedness. 
The undersigned acknowledges that (i) no oral representations, including
any representations to extend credit or provide other financial accommodations
to Debtor, have been made by Laurus to induce the undersigned to enter into
this Guaranty and (ii) any extension of credit to the Debtor shall be governed
solely by the provisions of the Documents. 
The liability of the undersigned under this Guaranty shall be absolute
and unconditional, in accordance with its terms, and shall remain in full force
and effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence, renewal, extension,
amendment or modification of or addition, consent or supplement to or deletion
from or any other action or inaction under or in respect of the Documents or
any other instruments or agreements relating to the Obligations or any assignment
or transfer of any thereof, (b) any lack of validity or enforceability of any
Loan Document or other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof, (c) any furnishing of
any additional security to Laurus or its assignees or any acceptance thereof or
any release of any security by Laurus or its assignees, (d) any limitation on
any party’s liability or obligation under the Documents or any other documents,
instruments or agreements relating to the Obligations or any assignment or
transfer of any thereof or any invalidity or unenforceability, in whole or in
part, of any such document, instrument or agreement or any term thereof, (e)
any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Debtor, or any
action taken with respect to this Guaranty by any trustee or receiver, or by
any court, in any such proceeding, whether or not the undersigned shall have
notice or knowledge of any of the foregoing, (f) any exchange, release or
nonperfection of any collateral, or any release, or amendment or waiver of or
consent to departure from any guaranty or security, for all or any of the
Obligations or (g) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the undersigned.  Any amounts due from the undersigned to
Laurus shall bear interest until such amounts are paid in full at the highest
rate then applicable to the Obligations. 
Obligations include post-petition interest whether or not allowed or
allowable.


 


3.             Waivers.


 


(a)           This Guaranty is a guaranty of
payment and not of collection.  Laurus
shall be under no obligation to institute suit, exercise rights or remedies or
take any other action against Debtor or any other person liable with respect to
any of the Obligations or resort to any collateral security held by it to
secure any of the Obligations as a condition


 


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precedent to the undersigned being obligated
to perform as agreed herein and Guarantor hereby waives any and all rights
which it may have by statute or otherwise which would require Laurus to do any
of the foregoing.  Guarantor further
consents and agrees that Laurus shall be under no obligation to marshal any
assets in favor of Guarantor, or against or in payment of any or all of the
Obligations.  The undersigned hereby
waives all suretyship defenses and any rights to interpose any defense,
counterclaim or offset of any nature and description which the undersigned may
have or which may exist between and among Laurus, Debtor and/or the undersigned
with respect to the undersigned’s obligations under this Guaranty, or which
Debtor may assert on the underlying debt, including but not limited to failure
of consideration, breach of warranty, fraud, payment (other than cash payment
or other payment in full of the Obligations), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and usury.


 


(b)           The undersigned further waives (i)
notice of the acceptance of this Guaranty, of the making of any such loans or
extensions of credit, and of all notices and demands of any kind to which the
undersigned may be entitled, including, without limitation, notice of adverse
change in Debtor’s financial condition or of any other fact which might
materially increase the risk of the undersigned and (ii) presentment to or
demand of payment from anyone whomsoever liable upon any of the Obligations,
protest, notices of presentment, non-payment or protest and notice of any sale
of collateral security or any default of any sort.


 


(c)           Notwithstanding any payment or
payments made by the undersigned hereunder, or any setoff or application of
funds of the undersigned by Laurus, the undersigned shall not be entitled to be
subrogated to any of the rights of Laurus against Debtor or against any
collateral or guarantee or right of offset held by Laurus for the payment of
the Obligations, nor shall the undersigned seek or be entitled to seek any
contribution or reimbursement from Debtor in respect of payments made by the
undersigned hereunder, until all amounts owing to Laurus by Debtor on account
of the Obligations are paid in full and the Documents have been terminated.  If, notwithstanding the foregoing, any
amount shall be paid to the undersigned on account of such subrogation rights
at any time when all of the Obligations shall not have been paid in full and
the Documents shall not have been terminated, such amount shall be held by the
undersigned in trust for Laurus, segregated from other funds of the
undersigned, and shall forthwith upon, and in any event within two (2) business
days of, receipt by the undersigned, be turned over to Laurus in the exact form
received by the undersigned (duly endorsed by the undersigned to Laurus, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as Laurus may determine, subject to the provisions of the
Documents.  Any and all present and
future debts and obligations of Debtor to any of the undersigned are hereby
waived and postponed in favor of, and subordinated to the full payment and
performance of, all present and future debts and obligations of Debtor to
Laurus; provided, however, that nothing contained herein shall prohibit
“Permitted Dispositions” to Guarantor (as such term is defined in that certain
Loan and Security Agreement, dated as of December 19, 2001, between Debtor and
Foothill Capital Corporation, as amended to date)


 


4.             Security.  All sums at any time to the credit of the
undersigned and any property of the undersigned in Laurus’ possession or in the
possession of any bank, financial institution or other entity that directly or
indirectly, through one or more intermediaries, controls or is


 


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controlled by, or is under
common control with, Laurus (each such entity, an “Affiliate”) shall be deemed
held by Laurus or such Affiliate, as the case may be, as security for any and
all of the undersigned’s obligations to Laurus and to any Affiliate of Laurus,
no matter how or when arising and whether under this or any other instrument,
agreement or otherwise.  Notwithstanding
anything to the contrary contained herein, the security interest granted to
Laurus shall be limited to goods (including but not limited to equipment and
expressly excluding inventory) of the undersigned.


 


5.             Representations and Warranties.  The undersigned hereby represents and
warrants (all of which representations and warranties shall survive until all
Obligations are indefeasibly satisfied in full and the Documents have been
irrevocably terminated), that:


 


(a)           Corporate Status.  The undersigned is a corporation duly
organized, validly existing and in good standing under the laws of the state of
incorporation indicated on the signature page hereof and has full power,
authority and legal right to own its property and assets and to transact the
business in which it is engaged.


 


(b)           Authority and Execution.  The undersigned has full power, authority
and legal right to execute and deliver, and to perform its obligations under,
this Guaranty and has taken all necessary corporate and legal action to
authorize the execution, delivery and performance of this Guaranty.


 


(c)           Legal, Valid and Binding Character.  This Guaranty constitutes the legal, valid
and binding obligation of the undersigned enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting the enforcement of creditor’s rights and general principles of equity
that restrict the availability of equitable or legal remedies.


 


(d)           Violations.  The execution, delivery and performance of
this Guaranty will not violate any requirement of law applicable to the
undersigned or any material contract, agreement or instrument to which the
undersigned is a party or by which the undersigned or any property of the
undersigned is bound or result in the creation or imposition of any mortgage,
lien or other encumbrance other than to Laurus on any of the property or assets
of the undersigned pursuant to the provisions of any of the foregoing.


 


(e)           Consents or Approvals.  Except for such consents as have been obtained,
no consent of any other person or entity (including, without limitation, any
creditor of the undersigned) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty.


 


(f)            Litigation.  No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the undersigned, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting the undersigned,
or any of property or assets of the undersigned, which, if adversely
determined, would have a material adverse effect on the business, operations,
assets or condition, financial or otherwise, of the undersigned.


 


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(g)           Financial Benefit.  Each of the undersigned has derived or
expects to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Documents or other Obligation
incurred by Debtor to Laurus.


 


6.             Acceleration.


 


(a)           If any breach of any covenant or
condition or other event of default shall occur and be continuing, after the
expiration of any applicable cure period, under any agreement made by Debtor or
the undersigned to Laurus, or either Debtor or the undersigned should at any
time become insolvent, or make a general assignment, or if a proceeding in or
under any Insolvency Law shall be filed or commenced by, or in respect of, the
undersigned, or if a notice of any lien, levy, or assessment is filed of record
with respect to any assets of any of the undersigned by the United States of
America or any department, agency, or instrumentality thereof, or if any taxes
or debts owing at any time or times hereafter to any one of them becomes a lien
or encumbrance upon any assets of the undersigned in Laurus’ possession, or
otherwise, any and all Obligations shall for purposes hereof, at Laurus’
option, be deemed due and payable without notice notwithstanding that any such
Obligation is not then due and payable by Debtor.


 


(b)           The undersigned will promptly notify
Laurus of any default by such undersigned in its respective performance or
observance of any term or condition of any agreement to which the undersigned
is a party if the effect of such default is to cause, or permit the holder of
any obligation under such agreement to cause, such obligation to become due
prior to its stated maturity and, if such an event occurs, Laurus shall have
the right to accelerate such undersigned’s obligations hereunder.


 


7.             Payments from Guarantors.  Laurus, in its sole and absolute discretion,
with or without notice to the undersigned, may apply on account of the
Obligations any payment from the undersigned or any other guarantors, or
amounts realized from any security for the Obligations, or may deposit any and
all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Obligations.


 


8.             Costs.  The undersigned shall pay on demand, all
costs, fees and expenses (including expenses for legal services of every kind)
relating or incidental to the enforcement or protection of the rights of Laurus
hereunder or under any of the Obligations.


 


9.             No Termination.  This is a continuing irrevocable guaranty
and shall remain in full force and effect and be binding upon the undersigned,
and each of the undersigned’s successors and assigns, until all of the
Obligations have been paid in full and the Documents have been irrevocably
terminated.  If any of the present or
future Obligations are guarantied by persons, partnerships or corporations in
addition to the undersigned, the death, release or discharge in whole or in
part or the bankruptcy, merger, consolidation, incorporation, liquidation or
dissolution of one or more of them shall not discharge or affect the
liabilities of any undersigned under this Guaranty.


 


10.           Recapture.  Anything in this Guaranty to the contrary
notwithstanding, if Laurus receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to a trustee, receiver, or any other party
under any Insolvency Law, common law or equitable doctrine, then to the extent
of any sum not


 


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finally retained by Laurus, the
undersigned’s obligations to Laurus shall be reinstated and this Guaranty shall
remain in full force and effect (or be reinstated) until payment shall have
been made to Laurus, which payment shall be due on demand.


 


11.           Books and Records.  The books and records of Laurus showing the
account between Laurus and Debtor shall be admissible in evidence in any action
or proceeding and shall, unless there is manifest error,  constitute prima facie proof thereof.


 


12.           No Waiver.  No failure on the part of Laurus to
exercise, and no delay in exercising, any right, remedy or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise by
Laurus of any right, remedy or power hereunder preclude any other or future
exercise of any other legal right, remedy or power.  Each and every right, remedy and power hereby granted to Laurus
or allowed it by law or other agreement shall be cumulative and not exclusive
of any other, and may be exercised by Laurus at any time and from time to time.


 


13.           Waiver of Jury Trial. THE
UNDERSIGNED DOES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO
THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR
INCIDENTAL HERETO.  THE UNDERSIGNED DOES
HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LAURUS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LAURUS WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.


 


14.           Governing Law; Jurisdiction;
Amendments.  THIS INSTRUMENT CANNOT
BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. 
EACH OF THE UNDERSIGNED EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE
OF THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR ALL
PURPOSES IN CONNECTION HEREWITH.  ANY
JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING, DIRECTLY OR
INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF
NEW YORK, COUNTY OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.  THE UNDERSIGNED
FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS
(INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO
EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF
THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. 
EACH OF THE UNDERSIGNED WAIVES ANY OBJECTION TO JURISDICTION AND VENUE
OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK
OF JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.


 


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15.           Severability.  To the extent permitted by applicable law,
any provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


16.           Amendments, Waivers.  No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the undersigned therefrom shall
in any event be effective unless the same shall be in writing executed by each
of the undersigned and Laurus.


 


17.           Notice.  All notices, requests and demands to or upon
the undersigned, shall be in writing and shall be deemed to have been duly
given or made (a) when delivered, if by hand, (b) three (3) days after being
sent, postage prepaid, if by registered or certified mail, (c) when confirmed
electronically, if by facsimile, or (d) when delivered, if by a recognized
overnight delivery service in each event, to the numbers and/or address set
forth beneath the signature of the undersigned.


 


18.           Successors.  Laurus may, from time to time, without
notice to the undersigned, sell, assign, transfer or otherwise dispose of all
or any part of the Obligations and/or rights under this Guaranty.  Without limiting the generality of the
foregoing, Laurus may assign, or grant participations to, one or more banks,
financial institutions or other entities all or any part of any of the
Obligations.  In each such event,
Laurus, its Affiliates and each and every immediate and successive purchaser,
assignee, transferee or holder of all or any part of the Obligations shall have
the right to enforce this Guaranty, by legal action or otherwise, for its own
benefit as fully as if such purchaser, assignee, transferee or holder were
herein by name specifically given such right. 
Laurus shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Laurus has not
disposed of, sold, assigned, or otherwise transferred.


 


19.           Release.  Nothing except cash payment in full of the
Obligations shall release any of the undersigned from liability under this
Guaranty.


 


[REMAINDER OF THIS PAGE IS BLANK.

SIGNATURE PAGE IMMEDIATELY FOLLOWS]


 


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IN WITNESS
WHEREOF, this Guaranty has been executed by the undersigned this
       day of December, 2003.


 


	
   

  	
  EQUIFIN, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  Telephone:

  
	
   

  	
  Facsimile:

  
	
   

  	
  State of Incorporation:

  



 


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  STATE OF

  	
  )

  
	
   

  	
  ) SS

  
	
  COUNTY OF

  	
  )

  



 


On the
         day of December, 2003, before
me personally came
                                                                                      
to me known, who being by me duly sworn, did depose and say s/he is the
                            
of
                                      
the corporation described in and which executed the foregoing instrument; and
that s/he signed her/his name thereto by order of the board of directors of
said corporation.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
   

  
	
   

  	
  My Commission Expires:

  



 


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