EXHIBIT 10.74
[LOGO] CAPITAL BANK
CONTINUING GUARANTY
FOR VALUABLE CONSIDERATION, the undersigned (hereinafter called
"Guarantors"), for themselves, their heirs, personal representatives, successors
and assigns, hereby, jointly and severally, unconditionally guarantee to CAPITAL
BANK, a Florida banking corporation (hereinafter called "Lender"), and its
successors, participants, endorsees or assigns, the due performance and full and
prompt payment when due, whether at maturity or by acceleration, or otherwise,
of any and all obligations and indebtedness of GALACTICOMM TECHNOLOGIES, INC., A
FLORIDA CORPORATION hereinafter called ("Borrower") to Lender.
The word "indebtedness" is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and liabilities, including
interest of Borrower heretofore, now or hereafter made, incurred or created or
held or to be held, by Lender for its own account or as agent for another, or
otherwise, whether created or held or to be held, by Lender for its own account
or as agent for another, or otherwise, whether created directly of acquired by
assignment, or otherwise, whether voluntary or involuntary, and however arising,
whether due or not, absolute or contingent, liquidated or non-liquidated, and
whether Borrower may be liable individually or jointly with others, or whether
recovery upon such indebtedness may be or hereafter become barred by any statute
of limitations, or whether such indebtedness may be or hereafter become
otherwise unenforceable. This is a Continuing Guaranty relating to said
indebtedness, including that arising under subsequent or successive transactions
between Borrower and Lender, which shall either continue or increase the
indebtedness and is not limited as to amount.
The obligations hereunder are joint and several, and independent of the
obligations of Xxxxxxxx, and a separate action or actions may be brought and
prosecuted against Guarantors or any of them, whether action is brought against
Borrower or whether Borrower may be joined in any such action or actions. This
is a guaranty of payment and not of collection.
Guarantors acknowledge that the loan referred to herein is a valid and
binding obligation of the Borrower. Guarantors authorize Xxxxxx, without notice
of demand, and without affecting their liability hereunder, from time to time,
and on any number of occasions, to (a) renew, amend, compromise, extend,
accelerate, reinstate or otherwise change the time for payment of, or otherwise
change the terms of the indebtedness of any part thereof, including increase or
decrease of the rate of interest thereon; (b) take and hold security of the
payment of this guaranty or the indebtedness guaranteed, exchange, enforce,
waive and release any such security; (c) apply such security and direct the
order or manner of sale thereof as Lender in its discretion may determine; and
(d) release or substitute any one or more of the endorsers or guarantors.
Guarantors acknowledge and agree that no act or omission of any kind by Xxxxxx,
including, but not limited to, the failure to take or perfect a security
interest in any security for the indebtedness guaranteed, shall affect or impair
this guaranty and the Lender shall have no duties in respect thereof to
Guarantors. Lender, may, without notice, assign this guaranty in whole or in
part.
Guarantors waive any right to require Lender to (a) proceed against
Borrower; (b) proceed against or exhaust any security held from Borrower; or (c)
pursue any other remedy in Lenders power whatsoever. Guarantors waive any
defense arising by reason of any disability or other defense of Borrower or by
reason of the cessation from any cause whatsoever of the liability of Borrower.
Until all indebtedness of Borrower to Lender shall have been paid in full,
Guarantors shall have no right of subrogation, and waive any right to enforce
any remedy which Lender now has or may hereafter have against Borrower, and
waive any benefit of, and any right to participate in, any security now or
hereafter held by Lender. Guarantors waive all presentments, demands for
performance, notices of nonperformance, protests, notices of dishonors and
notices of acceptance of this guaranty and of the existence creation or
incurring of new or additional indebtedness. Guarantors covenant to cause the
Borrower to maintain and preserve the enforceability of any instruments now or
hereafter executed in favor of the Lender, and to take no action of any kind
which might be the basis for a claim that the Guarantors have any defense
hereunder other than payment in full of all indebtedness of the Borrower to
Lender. Guarantors hereby indemnify Lender against loss, cost or expense by
reason of the assertion by the Guarantors of any defense hereunder based upon
any such action or inaction of the Borrower. Guarantors waive any right or claim
of right to cause a marshaling of the Borrower's assets or to require the Lender
to proceed against the Guarantors in any particular order. No delay on the part
of the Lender in the exercise of any right, power or privilege under the
documentation with the Borrower or under this guaranty shall operate as a waiver
of any such privilege, power or right.
In addition to all liens upon, and rights of setoffs against, the
monies, securities, or other property of Guarantors, or any of them, given to
Lender by law. Lender shall have a lien upon, and a right of setoff against, all
monies, securities and other property of Guarantors, or any of them, now or
hereafter in the possession of or on deposit with Xxxxxx, whether held in a
general or special account of deposit, or for safekeeping, or otherwise; and
every such lien and right of setoff may be exercised without demand upon or
notice to Guarantors. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of the Lender, or by any neglect to
exercise such right of setoff or to enforce such lien, or by any delay in so
doing; and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien is specifically waived or released by
an instrument in writing executed by Xxxxxx.
Any indebtedness of Borrower now or hereafter held by Guarantors, or any
of them is hereby subordinated to the indebtedness of Borrower to Lender; and
such indebtedness of Borrower to Guarantors if Lender so requests shall be
collected, enforced and received by Guarantors as trustees for Lender and be
paid over to Lender on account of the indebtedness of, Borrower to Lender, but
without reducing or affecting in any manner the liability of Guarantors under
the other provisions of this guaranty.
Guarantors agree to pay a reasonable attorneys' fee and all other costs
and expenses which may be incurred or expended by Xxxxxx in the enforcement of
the Borrower's obligation and of this guaranty, whether suit be brought or not,
and in the event suit is brought, then for all services in trial and appellate
courts. Guarantors do hereby waive the right to trial by jury or any claims or
actions arising hereunder or resulting from the indebtedness referred to herein.
Upon the default of the Borrower with respect to any of its obligations
or liabilities to Lender, or in case Borrower, or any Guarantor shall become
insolvent or make an assignment for the benefit of creditors, or if a petition
in bankruptcy or for corporate reorganization or for an arrangement be filed by
or against Borrower or any Guarantor, or in the event of the appointment of a
receiver for Borrower or for any Guarantor or their properties, or in the event
that a judgment is obtained or warrant of attachment issued against Borrower or
any Guarantor, or in the event Lender deems itself insecure, or should Lender
request additional security and Guarantor or Borrower should fail to provide
same, all or any part of the indebtedness of the Borrower and of the obligations
and liabilities of the Guarantors to Lender, whether direct or contingent, and
of every kind and description, shall, without notice or demand, at the option of
the Lender, become immediately due and payable and shall be paid forthwith by
the Guarantors.
Where the Borrower is a corporation or a partnership, it is not
necessary for the Lender to inquire into the powers of the Borrower, or the
officers, directors, partners or agents acting or purporting to act in the
Borrower's behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
Notwithstanding any provision herein or in any instrument now or
hereafter evidencing said indebtedness, the total liability for payments in the
nature of interest shall not exceed the limits imposed from time to time by the
usury laws of the State of Florida. This guaranty and the rights and obligations
of the Lender and the Guarantor shall be governed and construed in accordance
with the laws of the State of Florida.
The terms "Borrower," "Borrowers," "Guarantor" or "Guarantors" shall
denote the single or the plural, and natural or artificial persons whenever and
wherever the context so requires or admits.
The Guarantors acknowledge that the Lender has been induced by this
Guaranty to make financial accommodations, now and in the future, to the
Borrower, and would not make such financial accommodations without this
Guaranty, and this Guaranty agreement shall, without further reference or
assignment, pass to, and may be relied upon and enforced by, any successor or
participant or assignee of the Lender.
As to each of the undersigned, this Guaranty shall continue until
written notice of revocation signed by such undersigned or until written notice
of the death of such undersigned shall in each case have been actually received
by the Lender, notwithstanding revocation by, or the death of, or complete or
partial release for any cause of, any one or more of the remainder of the
undersigned, or of the Borrower or of anyone liable in any manner for the
indebtedness hereby guaranteed or for the indebtedness (including those
hereunder) incurred directly or indirectly in respect thereof or hereof, and
notwithstanding the dissolution, termination of increase, decrease or change in
personnel of any one or more of the undersigned which may be partnerships. No
revocation of termination hereof shall affect in any manner rights arising under
this Guaranty with respect to (a) liabilities which shall have been created,
contracted, assumed or incurred prior to receipt by the Lender of written notice
of such revocation or termination, or (b) liabilities which shall have been
created, contracted, assumed or incurred after receipt of such written notice
pursuant to any contract entered into by the Lender prior to receipt of such
notice; and the sole effect of revocation or termination hereof shall be to
exclude from this Guaranty liabilities thereafter arising which are unconnected
with liabilities theretofore arising or transactions theretofore entered into.
All notices required or permitted to be given to the Lender herein shall
be sent by registered or certified mail, return receipt requested, directed to
the President of the Lender.
Wherever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law; however, if
any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals this 5TH day of NOVEMBER, 1997.
Signed, sealed and delivered in the presence of:
/s/ [illegible] /s/ XXXXXXX XXXXXXX
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NOTARY PUBLIC XXXXXXX XXXXXX XXXX XXXXXXX XXXXXXX, PERSONALLY KNOWN
STATE OF FLORIDA COMMISSION # CC557571 TO ME, SIGNED BEFORE ME THIS 9TH DAY
EXPIRES MAY 27, 2000 OF JANUARY 1998 IN BROWARD COUNTY,
FLORIDA.
/s/ XXXXXXX XXXXXX XXXX
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