GUARANTY
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby acknowledged, PALM DESERT ART PUBLISHERS, LTD. (the "Guarantor"), a
California corporation and the principal shareholder of PALM DESERT ART, INC.
(f/k/a Database Technologies, Inc.), a Delaware corporation (the "Company"),
unconditionally guaranties, in accordance with the terms hereof and without any
prior written notice, the payment and performance of the Liabilities (as defined
herein) of the Company to XXXXX XXXXX of Bedford, New Hampshire ("Xxxxx").
As used herein, the term "Liabilities" includes, without limitation, any
and all liabilities, debts, and obligations of the Company to Xxxxx, of each and
every kind, nature and description. "Liabilities" also include, without
limitation, each obligation to repay all loans, advances, indebtedness, notes,
obligations and amounts now or at any time hereafter owing by the Company to
Xxxxx (including all future advances or the like, whether or not given pursuant
to a commitment by Xxxxx), whether or not such are liquidated, unliquidated,
secured, unsecured, direct, indirect, absolute, contingent, or of any other
type, nature or description, or by reason of any cause of action which Xxxxx now
or hereafter may hold against the Company. "Liabilities" also include, without
limitation, all notes and other obligations of the Company now or hereafter
assigned to or held by Xxxxx, of each and every kind, nature and description.
"Liabilities" also include, without limitation, all interest, penalties and
costs and other amounts which may be charged to the Company or which may be due
from the Company to Xxxxx from time to time and all costs and expenses incurred
or paid by Xxxxx to enforce any agreement between the Company and Xxxxx or
pursuant to any instrument furnished by the Company to Xxxxx (including, without
limitation, costs of collection, reasonable attorneys' fees, court and
litigation costs and expenses). "Liabilities" also include, without limitation,
any and all obligations of the Company to act or to refrain from acting in
accordance with the terms, provisions and covenants of any agreement between the
Company and Xxxxx or pursuant to any instrument furnished by the Company to
Xxxxx. As used herein, the term "indirect" includes, without limitation, all
obligations and liabilities which Xxxxx may incur or become liable for on
account of or as a result of any transactions between Xxxxx and the Company.
"Costs of Collection" include, without limitation, all reasonable
attorneys' fees and out-of-pocket expenses incurred by Xxxxx'x attorneys and all
costs incurred by Xxxxx including, without limitation, costs and expenses
associated with travel on behalf of Xxxxx, which costs and expenses are directly
or indirectly related to or incurred in respect of Xxxxx'x efforts to collect or
enforce any of the Liabilities, or to enforce any of Xxxxx'x rights, remedies or
powers against or in respect of the Company or any other guarantor or person
liable in respect of the Liabilities (whether or not suit is instituted in
connection with
such efforts). The Costs of Collection shall be added to the Liabilities of the
Company to Xxxxx, as if such had been lent, advanced and credited by Xxxxx to,
or for the benefit of, the Company.
For said good and valuable consideration, the Guarantor shall also
indemnify, defend, and hold Xxxxx harmless of and from any liability, claim or
demand suffered by or asserted against Xxxxx with respect to Xxxxx'x
relationship with the Company, the Guarantor or any other guarantor or endorser
of the Liabilities (each of which may be defended, compromised, settled or
pursued by Xxxxx with counsel of Xxxxx'x selection, but at the expense of the
Guarantor).
The obligations of the Guarantor hereunder shall not be affected by any
fraudulent, illegal or improper act by the Company, nor by any release,
discharge or invalidation, by operation of law or otherwise, of the Liabilities.
Interest and Costs of Collection shall continue to accrue and shall continue to
be deemed Liabilities guarantied hereunder, notwithstanding any stay of the
enforcement thereof against the Company or the disallowance of any claim
therefor against the Company.
This instrument incorporates all discussions and negotiations between the
Guarantor and Xxxxx concerning the guaranty and indemnification provided by the
Guarantor hereunder. No such discussions or negotiations shall limit, modify or
otherwise affect the provisions hereof. No provision hereof may be altered,
amended, waived, canceled or modified, except by Xxxxx.
The Guarantor waives presentment, demand, notice and protest with respect
to the Liabilities, and further waives any delay on the part of Xxxxx, and
further waives any right to require Xxxxx to pursue or to proceed against the
Company or any collateral which Xxxxx might have been granted to secure the
Liabilities or to secure the obligations of the Guarantor hereunder, and further
waives notice of acceptance of this Guaranty.
Xxxxx'x books and records showing the account between Xxxxx and the Company
shall be admissible in any action or proceeding and constitute prima facie
evidence and proof of the items contained therein.
The obligations of the Guarantor hereunder are primary, with no recourse
necessary by Xxxxx against the Company or any collateral given to secure the
Liabilities or against any other person liable for or on the Liabilities prior
to proceeding against the Guarantor hereunder. The Guarantor assents to any
indulgence or waiver which Xxxxx may xxxxx or give the Company or any other
person liable or obligated to Xxxxx for or on account of the Liabilities. The
Guarantor authorizes Xxxxx to alter, amend, cancel, waive or modify any term or
condition of the Liabilities
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and obligations of any other person liable or obligated to Xxxxx for or on
account of the Liabilities without notice to, or consent from, the Guarantor. No
compromise, settlement or release by Xxxxx of the Liabilities or obligations of
any other such person (whether or not jointly liable with the Guarantor) and no
release of any collateral securing the Liabilities or obligations of any other
such person shall affect the obligations of the Guarantor hereunder. No action
by Xxxxx which has been assented to herein shall affect the obligations of the
Guarantor to Xxxxx hereunder.
The Guarantor shall not exercise any right of subrogation, reimbursement,
indemnity, contribution or the like (including any right to proceed upon any
collateral granted by the Company to the Guarantor) against the Company or any
other person liable or obligated for or on account of the Liabilities unless and
until all of the Liabilities have been satisfied in full.
The Guarantor will pay on demand all reasonable attorneys' fees and
out-of-pocket expenses incurred by Xxxxx'x attorneys and all costs incurred by
Xxxxx which are directly or indirectly related to Xxxxx'x efforts to collect or
to enforce any of the obligations of the Guarantor hereunder or to enforce any
of Xxxxx'x rights, remedies or powers against or in respect of the Guarantor
(whether or not suit is instituted by or against Xxxxx).
This instrument shall inure to the benefit of Xxxxx, and his heirs,
successors and assigns, shall be binding upon the heirs, successors and assigns
of the Guarantor, and shall apply to all liabilities of the Company and any
successor to the Company, including any successor by operation of law.
The rights, remedies, powers, privileges and discretions of Xxxxx hereunder
(hereinafter, the "Xxxxx'x Rights and Remedies") shall be cumulative and not
exclusive of any rights or remedies which he would otherwise have. No delay or
omission by Xxxxx in exercising or enforcing any of Xxxxx'x Rights and Remedies
shall operate as, or constitute, a waiver thereof. No waiver by Xxxxx of any of
Xxxxx'x Rights and Remedies, of any default, of any remedies under any other
agreement with the Guarantor, or of any default under any agreement with the
Company or any other person liable or obligated for or on account of the
Liabilities shall operate as a waiver of any other of Xxxxx'x Rights and
Remedies or of any default or remedy hereunder or thereunder. No exercise of any
of Xxxxx'x Rights and Remedies, and no other agreement or transaction of
whatever nature entered into between Xxxxx and the Guarantor, Xxxxx and the
Company or Xxxxx and any other person at any time, shall preclude any other
exercise of Xxxxx'x Rights and Remedies. No waiver by Xxxxx of any of Xxxxx'x
Rights and Remedies on any one occasion shall be deemed a waiver on any
subsequent occasion, nor shall it be deemed a continuing waiver. All of Xxxxx'x
Rights and Remedies and all of Xxxxx'x rights, remedies, powers, privileges and
discretion under any other agreement or
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transaction with the Guarantor, the Company or any other such person shall be
cumulative and not alternative or exclusive, and may be exercised by Xxxxx at
such time or times and in such order of preference as Xxxxx in its sole
discretion may determine.
This instrument shall take effect as a sealed instrument and shall be
governed, construed and interpreted in accordance with the laws of the State of
New Hampshire. The Guarantor submits to the jurisdiction of the courts of the
State of New Hampshire for all matters in connection herewith as well as for all
purposes in connection with any other relationship between the Guarantor and
Xxxxx. It is the intention of the Guarantor that the provisions of the within
guaranty and indemnification be liberally construed to the end that Xxxxx may be
put in as good a position as if the Company had promptly, punctually and
faithfully performed all Liabilities and the Guarantor had promptly, punctually
and faithfully performed hereunder.
Any determination that any provision hereof is invalid, illegal or
unenforceable in any respect in any instance shall not affect the validity,
legality or enforceability of such provision in any other instance and shall not
affect the validity, legality or enforceability of any other provision contained
herein.
This instrument shall remain in full force and effect until the earlier of
(a) the satisfaction and performance by the Company of all of its obligations
under a certain Promissory Note of even date herewith, as the same may be
amended from time to time, or (b) the delivery of written notice of termination
of this Guaranty dated and signed by Xxxxx. No termination hereof shall affect
any Liability in existence or outstanding ten (10) days following the date of
such actual receipt or delivery (including, without limitation, those which are
contingent or not then due and those which arise out of any check, draft, item
or paper which was made, executed or drawn prior to the expiration of such ten
(10) day period, even if received by Xxxxx thereafter) nor any obligation of the
Guarantor hereunder which by its terms includes any Liability or obligation of a
contingent nature (including, without limitation, the indemnification provided
for herein).
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty made to be
effective as of the 22nd day of April, 1998.
PALM DESERT ART PUBLISHERS, LTD.
By: ss/Xxxx X. Xxxx
-----------------------------------
Name:
Title: President
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STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On this the _____ day of ___________________________ 1998, before me, a
Notary Public or Justice of the Peace in and for the State of
________________________ personally appeared ______________________ who
acknowledged that he/she is the __________________________ of Palm Desert Art
Publishers, Ltd. and acting in that capacity and being authorized to do so,
executed the foregoing instrument for and on behalf of Palm Desert Art
Publishers, Ltd. for the purposes therein contained.
See attached
-------------------------------------
Notary Public/Justice of the Peace
My Commission Expires:
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STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On April 24, 1998 before me, Xxxxxxxx X. Xxxxxxx "Notary Public" personally
appeared Xxxx Xxxx Xxxx personally known to me
to be the person whose name is
subscribed to the within instrument and
acknowledged to me that he executed the
same in his authorized capacity and that
by his signature on the instrument the
person or the entity upon behalf of
which the person acted, executed the
instrument.
WITNESS my hand and official seal.
ss/Xxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxx
[SEAL] Comm. #1152975
Notary Public-California
Riverside County
My Comm. Exp.Aug. 24, 2001
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