INDIVIDUAL GUARANTY
Dated 1/5/98
Master Lease Agreement Date: 1/98
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Lessee Name: MANNATECH, INCORPORATED
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Equipment Cost $ 1,500,000.00
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1. For valuable consideration, the receipt of which is hereby
acknowledged, the undersigned jointly and severally conditionally guarantee to
BANC ONE LEASING CORPORATION (hereinafter called "Lessor") the full and prompt
performance by the lessee identified above (hereinafter called "Lessee"), of all
obligations which Lessee now has or may hereafter have to Lessor, including but
not limited to obligations under equipment leases and promissory notes executed
in connection with anticipated equipment leases (including but not limited to
all present and future leases and promissory notes under the Master Lease
identified above, with a total original equipment cost to the Lessor of no more
than the amount of the Equipment Cost set forth above), and unconditionally
guarantee the prompt payment when due (whether at scheduled maturity, upon
acceleration or otherwise) of any and all sums, indebtedness and liabilities of
whatsoever nature, due or to become due, direct or indirect, absolute or
contingent, now or hereafter at any time owed or contracted by Lessee to Lessor,
and all costs and expenses of and incidental to collection of any of the
foregoing, including reasonable attorneys' fees (all of the foregoing
hereinafter called "Obligations"). It is the undersigned's express intention
that this guaranty in addition to covering all present Obligations of Lessee to
Lessor, shall extend to all future Obligations of Lessee to Lessor, whether or
not such Obligations are reduced or entirely extinguished and thereafter
increased or are reincurred, whether or not such Obligations are related to the
Master Lease identified above, whether or not such Obligations exceed the
Equipment Cost identified above, and whether or not such Obligations are
specifically contemplated by the undersigned, Lessee, and Lessor as of the date
hereof.
2. This is an absolute and unconditional guarantee of payment and not of
collection. Lessor shall not be required, as a condition of the liability of
the undersigned, to resort to, enforce or exhaust any of its remedies against
the Lessee or any other party who may be liable for payment on any Obligation or
to resort to, xxxxxxxx, enforce or exhaust any of its remedies against any
leased property or any property given or held as security for this Guaranty or
any Obligation.
3. The undersigned hereby waive and grant to Lessor, without notice to
the undersigned and without in any way affecting the liability of the
undersigned, the right at any time and from time to time, to extend other and
additional credit, leases, loans or financial accommodations to Lessee apart
from the Obligations, to deal in any manner as it shall see fit with any
Obligation of Lessee to Lessor and with any leased property or security for such
Obligation, including, but not limited to, (i) accepting partial payments on
account of any Obligation, (ii) granting extensions or renewals of all or any
part of any Obligation, (iii) releasing, surrendering, exchanging, dealing with,
abstaining
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from taking, taking, abstaining from perfecting, perfecting, or accepting
substitutes for any or all leased property or security which it holds or may
hold for any Obligation, (iv) modifying, waiving, supplementing or otherwise
changing any of the terms, conditions or provisions contained in any Obligation
and (v) the addition or release of any other party or person liable hereon,
liable on the Obligations or liable on any other guaranty executed to guarantee
any of Lessee's Obligations. The undersigned jointly and severally hereby agree
that any and all settlements, compromises, compositions, accounts stated and
agreed balances made in good faith between Lessor and Lessee shall be binding
upon the undersigned.
4. Every right, power and discretion herein granted to Lessor shall be
for the benefit of the successors or assigns of Lessor and of any transferee or
assignee of any Obligation covered by this Guaranty, and in the event any such
Obligation shall be transferred or assigned, every reference herein to Lessor
shall be construed to mean, as to such Obligation, the transferee or assignee
thereof. This Guaranty shall be binding upon each of the undersigned's
executors, administrators, heirs, successors and assigns.
5. This Guaranty shall continue in force for so long as Lessee shall be
obligated to Lessor, and thereafter until Lessor shall have actually received
written notice of the termination hereof from the undersigned, it being
contemplated that Lessee may borrow, lease, repay and subsequently borrow money
from or lease property from, or become obligated to, Lessor from time to time,
and the undersigned, not having given notice of the termination hereof as herein
provided for, shall be deemed to have permitted this Guaranty to remain in full
force and effect for the purpose of inducing Lessor to make further leases or
loans to Lessee; provided, however, no notice of termination of this Guaranty
shall affect in any manner the rights of Lessor arising under this Guaranty with
respect to the following: (a) any Obligation incurred by Lessee in connection
with the Master Lease identified above with a total equipment cost of no more
than the amount of the Total Equipment Cost set forth above, whether such
obligation is in the form of a lease or a promissory note; or (b) any Obligation
incurred by Lessee prior to receipt by Lessor of written notice of termination
or any Obligation incurred after receipt of such written notice pursuant to a
written agreement entered into by Lessor prior to receipt of such notice. The
undersigned expressly waive notice of the incurring by Lessee of any Obligation
to Lessor. The undersigned also waive presentment, demand of payment, protest,
notice of dishonor or nonpayment of or nonperformance of any Obligation.
6. The undersigned hereby waive any claims or rights which they might now
have or hereafter acquire against Lessee or any other person primarily or
contingently liable on any Obligation of Lessee, which claims or rights arise
from the existence or performance of the undersigned's obligations under this
Guaranty or any other guaranty or under any instrument or agreement with respect
to any leased property or any property constituting collateral or security for
this Guaranty or any other guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, or any
right to participate in any claim or remedy of Lessor or any other creditor
which the undersigned now has or hereafter acquires, whether such claim or right
arises in equity, under contract or statute, at common law, or otherwise.
7. Lessor's rights hereunder shall be reinstated and revived, and this
Guaranty shall be fully enforceable, with respect to any amount at any time paid
on account of the Obligations which thereafter shall be required to be restored
or returned by Lessor upon the bankruptcy, insolvency or reorganization of the
Lessee, the undersigned, or any other person, or as a result of any other fact
or circumstance, all as though such amount had not been paid.
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8. The undersigned jointly and severally agree to pay to Lessor all costs
and expenses, including reasonable attorneys' fees, incurred by Lessor in the
enforcement or attempted enforcement of this Guaranty, whether or not suit is
filed in connection therewith, or in the exercise by Lessor of any right,
privilege, power or remedy conferred by this Guaranty.
9. The undersigned represent and warrant that they have relied
exclusively on their own independent investigation of Lessee, the leased
property and the collateral for their decision to guarantee Lessee's Obligations
now existing or thereafter arising. The undersigned agree that they have
sufficient knowledge of the Lessee, the leased property, and the collateral to
make an informed decision about this Guaranty, and that Lessor has no duty or
obligation to disclose any information in its possession or control about
Lessee, the leased property, and the collateral to the undersigned. The
undersigned warrant to Lessor that they have adequate means to obtain from the
Lessee on a continuing basis information concerning the financial condition of
the Lessee and that they are not relying on Lessor to provide such information
either now or in the future.
10. As long as any indebtedness under any of the Obligations remains
unpaid or any credit is available to Lessee under any of the Obligations, the
undersigned agree to furnish to Lessor: (a) annual financial statements setting
forth the financial condition of the undersigned in form and providing such
information as required by Lessor (including without limitation income tax
returns) within 120 days of the end of each calendar year; and (b) such other
financial information as Lessor may from time to time request.
11. No postponement or delay on the part of Lessor in the enforcement of
any right hereunder shall constitute a waiver of such right. The failure of any
person or entity to sign this Guaranty shall not discharge the liability of any
of the undersigned.
12. This Guaranty remains fully enforceable irrespective of any claim,
defense or counterclaim which the Lessee may or could assert on any of the
Obligations including but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, fraud, bankruptcy,
accord and satisfaction, and usury, same of which the undersigned hereby waive
along with any standing by the undersigned to assert any said claim, defense or
counterclaim.
13. This Guaranty contains the entire agreement of the parties and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Guaranty is not intended to replace
or supersede any other guaranty which the undersigned have entered into or may
enter into in the future. The undersigned may enter into additional guaranties
in the future which may or may not refer to the Master Lease identified above
and such guaranties are not intended to replace or supersede this Guaranty
unless specifically provided in that additional guaranty. The interpretation,
construction and validity of this guaranty shall be governed by the laws of the
State of Ohio. With respect to any action brought by Lessor against Guarantor
to enforce any term of this guaranty, Guarantor hereby irrevocably consents to
the jurisdiction and venue of any state or federal court in Franklin County,
Ohio, where Lessor has its principal place of business and where payments are to
be made by Lessee and Guarantor.
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ALL PARTIES TO THIS GUARANTY, INCLUDING GUARANTOR AND LESSOR, WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION
WITH OR IN ANY WAY RELATED TO THIS GUARANTY.
Guarantor:
/s/ XXXXXXX X. XXXXXXXX
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XXXXXXX X. XXXXXXXX
Witness: /s/ Xxxxx Xxxxxx
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GUARANTY ACKNOWLEDGMENT
INDIVIDUAL
State of TEXAS :
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: ss
County of DALLAS :
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Before me, a Notary public in and for said County and State, personally
appeared XXXXXXX X. XXXXXXXX who acknowledged that he/she did sign the
foregoing guaranty and that the same is his/her free and voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal
this 5TH day of JANUARY, 1998.
XXXXXXXX X. XXXXXX
[SEAL] MY COMMISSION EXPIRES /s/ Xxxxxxxx X. Xxxxxx
SEPTEMBER 11, 2001 ----------------------
Notary Public
ADDENDUM I TO GUARANTY
Dated 12/23/97
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Individual Guaranty dated as of DECEMBER 23, 1997
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Lessee: Mannatech, Inc.
Master Lease dated DECEMBER, 1997
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Guarantor: Xxxxxxx Xxxxxxxx
Reference is made to the Individual Guaranty identified above ("Guaranty")
made by the Guarantor identified above ("Guarantor") in favor of Banc One
Leasing Corporation ("Lessor"). This Addendum I modifies the terms and
conditions of the Guaranty. Unless otherwise defined herein, capitalized terms
defined in the Guaranty shall have the same meaning when used herein.
As part of the valuable consideration to induce Lessor to enter into the
Master Lease, Guarantor and Lessor hereby agree as follows:
1. The following is added to Section 10 of the Guaranty:
"Guarantor shall maintain a minimum of $1,000,000 of unencumbered liquidity
at all times. Each calendar quarter Guarantor shall provide Lessor with a
statement as to the calculation of Guarantor's unencumbered liquidity and
identifying the sources of liquidity."
Except as expressly amended by the terms and conditions contained herein,
the Guaranty remains unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum I as of
the date referenced above.
/s/ Xxxxxxx Xxxxxxxx
------------------------- Banc One Leasing Corporation
Xxxxxxx Xxxxxxxx (Lessor)
(Guarantor)
By: /s/ Xxxxxxx Xxxx
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Witness: /s/ Xxxxx Xxxxxx
----------------- Title Funding Authority
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