GUARANTY OF COLLECTION
Exhibit 5
THIS GUARANTY OF COLLECTION (this “Guaranty”) is made as of June 4, 2009, by XXXXXXX X.
XXXXXXX (the “Guarantor”) to and for the benefit of VERICHIP CORPORATION, a Delaware corporation
(“VeriChip”), and solely for purposes of Section 8 hereof, between Guarantor and STEEL VAULT
CORPORATION, a Delaware corporation (“Borrower”).
R E C I T A L S:
A. Provided that VeriChip receives a guaranty of collection from the Guarantor with respect to
the Liabilities (as defined below), VeriChip is willing to purchase a secured convertible
promissory note issued by Borrower in the aggregate principal amount of $500,000 (the “Note”),
which is secured by a security agreement, dated as of the date hereof, between Borrower and
VeriChip and by a security agreement, dated as of the date hereof, between National Credit
Xxxxxx.xxx, LLC and VeriChip (collectively, the “Security Agreements”).
B. In exchange for providing this Guaranty, the Guarantor will receive a common stock purchase
warrant to purchase 500,000 shares of common stock of Borrower (the “Warrant”).
NOW, THEREFORE, to induce VeriChip to purchase the Note from Borrower and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor
agrees with VeriChip as follows:
1. Guaranty. The Guarantor guarantees to VeriChip full and prompt collection of up to
the principal amount due under the Note of and all accrued and unpaid interest thereon, but not any
fees or other amounts of any kind whatsoever that shall be due to VeriChip by Borrower (the
“Liabilities”).
2. Guaranty of Collection. This is a guaranty of collection only, and not a guaranty
of payment. Before enforcing this Guaranty, (i) VeriChip first must foreclose upon any collateral
securing the Note pursuant to the Security Agreements, (ii) VeriChip must use reasonable efforts to
obtain judgment against Borrower, (iii) VeriChip must use reasonable efforts to execute on any
judgment obtained against Borrower, and (iv) following execution of any such judgment, a portion of
the sums due under the Note constituting liabilities hereunder must remain unpaid; provided,
however, if Borrower becomes the debtor in (A) any voluntary or (B) any involuntary bankruptcy case
which is not dismissed within 60 days, then VeriChip immediately may enforce this Guaranty against
Guarantor.
3. Termination of Guaranty. This Guaranty shall remain in effect and will not
terminate until the Liabilities have been paid in full.
4. Waivers. The Guarantor waives (i) notice of acceptance of this Guaranty, (ii) all
presentments and protests, and (iii) notice of dishonor.
5. Obligations Absolute. Except as set forth in this Guaranty, the Guarantor’s
obligations are in all respects absolute and unconditional and will not be impaired, modified,
released or limited by any occurrence or condition whatsoever, including, without limitation,
(i) any modification, discharge, renewal or extension of the Liabilities or the Note, or any
amendment, modification or stay of VeriChip’s rights under the Note which may occur in any
bankruptcy or reorganization case or proceeding concerning Borrower, whether permanent or temporary
and whether or not assented to by VeriChip, (ii) any notice of withdrawal of this Guaranty, at any
time and from time to time before, at or after maturity of the Note, (iii) any substitution or
exchange, in whole or in part, of any collateral or any security held in connection with the Note,
(iv) any furnishing of additional collateral for the Note, (v) any determination that any
collateral has become impaired or that any security interest taken by VeriChip to secure the Note
is invalid or unperfected, (vi) any determination that any signatures on behalf of Borrower on the
Note are not genuine or that the Note is not the legal, valid and binding obligation of Borrower,
or (vii) any defenses which Borrower may have as to any sums due under the Note.
6. Waiver of Subrogation. Until the Liabilities have been paid in full, the Guarantor
irrevocably waives, relinquishes and renounces any right of subrogation, contribution, indemnity,
reimbursement or any claim whatsoever which the Guarantor may have against Borrower or any other
guarantors liable on the Note arising out of, or in any way connected with, the documents
evidencing, securing, guaranteeing or otherwise relating to the Note (the “Loan Documents”). The
Guarantor will not assert any such claim against Borrower or any such guarantor, in any proceeding,
legal or equitable, including any bankruptcy, insolvency or reorganization proceeding, before
VeriChip is paid in full for the Liabilities. This provision will inure to the benefit of and will
be enforceable by VeriChip, Borrower and any such guarantors, and their successors and assigns,
including any trustee in bankruptcy or debtor-in-possession. This provision will not prevent the
Guarantor from asserting a claim against Borrower or any such guarantors once the Liabilities have
been fully paid to VeriChip. Once the Liabilities have been paid in full, if the Guarantor has made
any payment to VeriChip under this Guaranty, then VeriChip will assign to the Guarantor, to the
extent of such payment, VeriChip’s interest in the Loan Documents and any judgments against
Borrower.
7. Reinstatement of Guaranteed Liabilities. The Guarantor acknowledges and agrees
that the Guarantor’s obligations hereunder shall apply to and continue with respect to any amount
paid to VeriChip on the Liabilities which is subsequently recovered from VeriChip for any reason
whatsoever (including, without limitation, as a result of any bankruptcy, insolvency or fraudulent
conveyance proceeding), notwithstanding the fact that the Liabilities may have been previously paid
in full or this Guaranty terminated, or both.
8. Registration. As consideration for the Guaranty, if at any time Borrower proposes
to register shares of its common stock under the Securities Act of 1933, as amended (the
“Securities Act”), in connection with the public offering of such shares for cash (a “Proposed
Registration”) other than a registration statement on Form S-8 or Form S-4 or any successor or
other forms promulgated for similar purposes, Borrower shall, at such time, promptly give Guarantor
written notice of such Proposed Registration. Guarantor shall have ten (10) days from its receipt
of such notice to deliver to Borrower a written request specifying the amount of Registrable
Securities that Guarantor intends to sell and Guarantor’s intended method of distribution. Upon
receipt of such request, Borrower shall use its commercially reasonable efforts to cause all
Registrable Securities which Borrower has been requested to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of Guarantor;
provided, however, that Borrower shall have the right to postpone or withdraw
any registration effected pursuant to this Section 8 without obligation to Guarantor. If, in
connection with any underwritten public offering for the account of Borrower or for stockholders of
Borrower that have contractual rights to require Borrower to register shares of common stock, the
managing underwriter(s) thereof shall impose a limitation on the number of shares of common stock
which may be included in a registration statement because, in the judgment of such underwriter(s),
marketing or other factors dictate such limitation is necessary to facilitate such offering, then
Borrower shall be obligated to include in the registration statement only such limited portion of
the Registrable Securities with respect to which Guarantor has requested inclusion hereunder as
such underwriter(s) shall permit. For purposes herein, “Registrable Securities” means the shares
of common stock issuable pursuant to the exercise of the Warrant (without regard to any limitation
on such exercise), and any shares of capital stock issued or issuable from time to time (with any
adjustments) in replacement of, in exchange for or otherwise in respect of the shares issued or
issuable pursuant to the exercise of the Warrant; provided, however, that
“Registrable Securities” shall not include any such shares that have been sold pursuant to Rule 144
of the Securities Act.
9. Assignment. VeriChip may, from time to time, whether before or after any withdrawal
of this Guaranty, without notice to the Guarantor, assign or transfer any or all of the Liabilities
or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Liabilities shall be and remain Liabilities for purposes of
this Guaranty, and each and every immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of the interest of such assignee or
transferee in the Liabilities, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were VeriChip; provided, however, that, unless VeriChip shall
otherwise consent in writing, VeriChip shall have an unimpaired right, prior and superior to that
of any such assignee or transferee, to enforce this Guaranty, for the benefit of VeriChip, as to
that portion of the Liabilities which VeriChip has not assigned or transferred.
10. Cumulative Rights; No Waiver. Each and every right granted to VeriChip hereunder
or under any other document delivered hereunder or in connection herewith, or allowed it by law or
equity, shall be cumulative and may be exercised from time to time subject only to the limitations
set forth in this Guaranty. No failure on the part of VeriChip to exercise, and no delay in
exercising, any right shall operate as a waiver thereof, nor shall any single or partial exercise
by VeriChip of any right preclude any other or future exercise thereof or the exercise of any other
right.
11. Interpretation and Construction. Each reference herein to VeriChip shall be deemed
to include its successors and assigns, and each reference to Borrower and the Guarantor and any
pronouns referring thereto as used herein shall be construed in the singular or plural as the
context may require and shall be deemed to include the heirs, executors, administrators, legal
representatives, successors and assigns of Borrower and the Guarantor, all of whom shall be bound
by the provisions hereof. All references herein to Borrower shall be deemed to include any
successor or successors, whether immediate or remote, to Borrower.
12. Continuing Guaranty. This instrument is intended to be a full, complete and
continuing guaranty to VeriChip to the extent of and for the Liabilities owing by Borrower to
VeriChip from time to time and to be valid and continuous without other or further notice to
the Guarantor, notwithstanding the death, disability or dissolution of Borrower or any other
guarantor, until notice in writing of withdrawal of this Guaranty, signed by the parties hereto or
any of them or by the legal representative(s) of a deceased party, has actually been given to
VeriChip, and then only as to the party or parties signing such notice and to transactions
subsequent to the time of such notice; provided, however, that no such notice of withdrawal shall
affect or impair any of the agreements and obligations of the Guarantor hereunder with respect to
any and all Liabilities existing at the time of actual receipt of such notice by VeriChip until
paid in full; and shall not affect or impair VeriChip’s right to recover all expenses paid or
incurred by VeriChip endeavoring to enforce this Guaranty against the Guarantor. All of the
agreements and obligations of the Guarantor under this Guaranty shall, notwithstanding any such
notice of withdrawal, remain in effect until all such Liabilities and all such expenses shall have
been paid in full.
13. Subsequent Guaranties. No subsequent guaranty by the Guarantor or any other person
of the Liabilities shall be deemed to be in lieu of or to supersede this Guaranty, unless otherwise
expressly provided therein. The obligation under this Guaranty shall be in addition to any
obligation of the Guarantor as endorser of any obligations of Borrower.
14. Governing Law/Venue. The validity, construction, enforcement, and interpretation
of this Guaranty are governed by the laws of the State of Florida and the federal laws of the
United States of America, excluding the laws of those jurisdictions pertaining to resolution of
conflicts with laws of other jurisdictions. The Guarantor (a) consents to the personal
jurisdiction of the state and federal courts having jurisdiction in Palm Beach County, Florida, (b)
stipulates that the proper, exclusive, and convenient venue for any legal proceeding arising out of
this Guaranty is Palm Beach County, Florida, for state court proceedings, and the Southern District
of Florida, for federal district court proceedings, and (c) waives any defense, whether asserted by
a motion or pleading, that Palm Beach County, Florida, or the Southern District of Florida, is an
improper or inconvenient venue.
15. Entire Agreement. This writing represents the entire agreement of the parties and
is intended as a complete and exclusive statement of the terms of this Guaranty. No amendment or
modification shall be effective unless made in writing and signed by the parties. No course of
dealing, course of performance or trade usage, and no parol evidence of any nature, shall be used
to supplement, amend or modify the terms hereof.
16. Counterparts. This Guaranty may be executed (including by facsimile transmission)
in two or more counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(remainder of page intentionally left blank; signature page follows)
IN WITNESS WHEREOF, the undersigned have executed this Guaranty as of the date and year first
written above.
| GUARANTOR |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
| Solely for purposes of Section 8: STEEL VAULT CORPORATION |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Secretary | |||
