GUARANTY
THIS GUARANTY is given by Xxxxxxx X. Xxxx ("Guarantor") to DADCO, a
Montana corporation, its 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 April 7, 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.
1
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 effect, 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;
2
(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 effected;
(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
3
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
appropriate court in 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 7th day of April, 1999.
GUARANTOR
/s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. 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 7th day of April, 1999.
Signature: /s/ Xxxxxxxxx X. XxXxxxx
------------------------------------
Name (Print): Xxxxxxxxx X. XxXxxxx
---------------------------------
NOTARY PUBLIC in and for the State of Montana,
residing at [ILLEGIBLE]
---------------------------------
My appointment expires: September 2002
----------------------
4
