GUARANTY
THIS GUARANTY is given by Xxxxxxx X. Xxxx ("Guarantor") to XXXXXX
XXXXXXXX, his successors and assigns ("Lender").
RECITALS
WHEREAS, Guarantor is the President and principal shareholder of Jore
Corporation, a Montana corporation ("Borrower"); and
WHEREAS, Lender has made certain loans to Borrower as documented in the
Promissory Note (the "Note") dated June 4, 1999, delivered by Borrower to
Lender; and
WHEREAS, to induce Lender to purchase the Note, Guarantor has agreed to
unconditionally guarantee to Lender the payment and performance of the Note; and
WHEREAS, the granting of all loans and financial accommodations by Lender
to Borrower are of direct benefit to Guarantor because Guarantor is the
principal shareholder of Borrower, and Guarantor has weighed the benefits of
such loans and financial accommodations against his contingent liability
hereunder and determined it is in his best interests to enter into this
Guaranty.
AGREEMENT
NOW, THEREFORE, in order to induce Lender to make loans and financial
accommodations to Borrower, Guarantor hereby agrees as follows:
1. GUARANTY.
1.1 Guarantor jointly and severally unconditionally guarantees
the full, prompt, and complete performance, payment, observance, and fulfillment
by Borrower of each obligation, covenant, and condition to be performed by
Borrower under the Note and the payment as and when due of all indebtedness
thereunder (the "Obligations"). Guarantor further agree to pay all expenses,
including without limitation, reasonable attorneys' fees and legal expenses paid
or incurred by Lender in endeavoring to collect or secure performance of the
Obligations, or any part thereof, or in enforcing this Guaranty.
1.2 Upon the occurrence of an Event of Default (as defined in
the Note), the entire amount guaranteed hereunder shall mature immediately and
become due and payable.
1.3 In the event of any proceeding by or against Borrower, a
composition, extension, or reorganization under any provision of the Bankruptcy
Code or any other bankruptcy, insolvency, receivership, or similar proceeding,
Guarantor expressly waives the extension of the obligations of this Guaranty
under any provision of such Code or any law or rule applicable to such
proceedings and hereby agrees that Lender may proceed immediately to collect any
amount due under the terms of this Guaranty and to otherwise enforce this
Guaranty.
1.4 Any payment made on the Obligations hereby guaranteed and
which may thereafter be required to be refunded as a preference or a fraudulent
transfer under the Bankruptcy Code or any other federal or state law shall not
be considered as payment of the Obligations, nor shall it have the effect of
reducing the liability of Guarantor under this Guaranty.
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2. RIGHTS AND REMEDIES OF LENDER.
2.1 Neither demand on, nor the pursuit of any remedy against,
Borrower or its property for payment of the Obligations shall be required as a
condition precedent to either the making of a demand on Guarantor by Lender or
the prior or subsequent commencement by Lender against Guarantor of any action,
suit, or proceeding, at law or in equity to enforce this Guaranty. Neither the
pendency nor the prior termination of any action, suit, or proceeding against
Borrower or its property shall bar or prejudice either the making of a demand on
Guarantor by Lender or the prior or subsequent commencement by Lender against
Guarantor of any action, suit, or proceeding, at law or in equity to enforce
this Guaranty.
2.2 Guarantor's liability under this Guaranty is primary,
direct, and immediate. Guarantor waives any right to require Lender to:
(a) Proceed against Borrower or any other person;
(b) Proceed against or exhaust any collateral; or
(c) Pursue any other available legal remedy.
No delay in the taking, pursuing, or exercising of any of the foregoing
actions, rights, powers, or remedies by Lender shall affect, diminish, or
extinguish the obligations of Guarantor hereunder.
Guarantor waives any defense arising by reason of any disability of the
Borrower, or by reason of the cessation from any cause whatsoever of the
liability of the Borrower or each other. Guarantor shall be liable and remain
liable for the payment of the Obligations to the extent provided herein
notwithstanding:
(a) Any previous discharge (total or partial) of
Borrower from further liability;
(b) Any bar (total, partial, or temporary) to the
pursuit by Guarantor of any right or claim for indemnification from Borrower;
(c) Any right or claim by Guarantor to be subrogated to
the rights or claims of Lender in and to Borrower's property, or
(d) Any action or inaction or delay in acting by
Lender.
Guarantor waives all presentments, demands for performance, notices of
dishonor, and notices of acceptance of this Guaranty and of the existence,
creation, or incurring of the indebtedness covered by this Guaranty.
2.3 Guarantor authorizes Lender, without notice or demand and
without diminishing or releasing Guarantor's liability hereunder, from time to
time, to:
(a) Make new loans and financial accommodations to
Borrower, such loans and financial accommodations to be a part of the
Obligations;
(b) Renew, extend, accelerate, or otherwise change the
time for payment of or otherwise change the terms of the indebtedness or any
part thereof;
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(c) Take and hold security for the payment of this
Guaranty or the indebtedness and exchange, enforce, waive, and release any such
security;
(d) Apply such security and direct the order or manner
of sale thereof as Lender in its discretion may determine. Lender may, without
notice, assign this Guaranty in whole or in part.
Guarantor hereby consents to, ratify, and affirm any and all such new
loans and financial accommodations, renewals, extensions, modifications,
compromises, or releases and any such action shall be binding upon Guarantor.
Guarantor hereby waives all defenses, counterclaims, or rights of setoff which
Guarantor might have by reason of the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF GUARANTOR.
Guarantor represents and warrants to Lender that:
(a) To the best of Guarantor's knowledge and belief, the
execution, delivery, and performance by Guarantor of this Guaranty do not and
will not (i) conflict with or contravene any judgment, order, or decree of any
government, governmental instrumentality, or court having jurisdiction over
Guarantor or (ii) conflict with, or result in any default under, any agreement
or instrument of any kind to which Guarantor is a party or by which Guarantor
may be bound or affected;
(b) This Guaranty has been duly executed and delivered
by Guarantor and constitutes a legal, valid, and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms;
(c) The rights of Lender hereunder are not subordinate
to the rights of any third party;
(d) There is no action, litigation, or other proceeding
pending or threatened against Guarantor before any court, arbitrator, or
administrative agency which may have a materially adverse effect on the
Guarantor or which would prevent, jeopardize, hinder, or delay the performance
by Guarantor of its obligations under this Guaranty; and
(e) Guarantor is fully familiar with all of the
covenants, terms, and conditions of the Note and Guarantor has been advised by
legal counsel as to the legal consequences of this Guaranty prior to entering
into it.
4. MISCELLANEOUS PROVISIONS.
4.1 This Guaranty sets forth the entire agreement of the
parties as to the subject matter hereof and supersedes all prior discussions and
understandings between them. This Guaranty may not be amended or rescinded in
any manner except by an instrument in writing signed by each party hereto.
4.2 This Guaranty shall be governed by, and construed and
enforced in accordance with, the laws of the State of Montana.
4.3 Should any of the provisions of this Guaranty be found to
be invalid, illegal, or unenforceable by any court of competent jurisdiction,
such provision shall be stricken and the remainder
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of this Guaranty shall nonetheless remain in full force and effect unless
striking such provision shall materially alter the intention of the parties.
4.4 In the event any action is brought to enforce this
Guaranty, the parties agree to be subject to exclusive IN PERSONAM jurisdiction
in the [Superior Court for the State of Montana.]
4.5 No waiver of any right under this Guaranty shall be
effective unless contained in a writing signed by the party sought to be charged
with the waiver and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future right or of any other right
arising under this Guaranty.
4.6 Paragraph headings contained in this Guaranty are included
for convenience only and form no part of the agreement between the parties.
4.7 All notices or requests required or permitted under this
Guaranty shall be in writing; shall be personally delivered or sent by fax (with
confirmation of transmission required), Federal Express, or certified mail,
return receipt requested, postage prepaid; and shall be deemed given when
actually received by the addressee. Any party may change the address to which
notices shall be sent by notice to the other party.
4.8 This Guaranty shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
DATED this 4th day of June, 1999.
GUARANTOR
/s/ Xxxx Xxxx
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Xxxx Xxxx
STATE OF MONTANA )
)ss.
COUNTY OF LAKE )
On this day personally appeared before me XXXXXXX X. XXXX, known to me to
be the individual described in and who executed the within and foregoing
instrument, and acknowledged that he signed the same as his free and voluntary
act and deed, for the uses and purposes mentioned.
Given under my hand and official seal this 4th day of June, 1999.
Signature: /s/ Xxxxx X. Xxxxxxxx
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Name (Print): Xxxxx X. Xxxxxxxx
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NOTARY PUBLIC in and for the State of Montana,
residing at Missouri
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My appointment expires: 7-14-02
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