EXHIBIT 10.21
GUARANTY AND SURETYSHIP
-----------------------
GUARANTY
AND
SURETYSHIP
dated May __,
2005,
made and
executed by JOSEPH V.
ROBERTS, an adult individual.
The undersigned, intending to be legally bound, agree:
SECTION 1. INTERPRETATION
--------------
1.1 DEFINED TERMS. The following terms shall have the following
meanings:
COMPANIES.
Nutrition
Management
Services
Company,
The
Collegeville
Inn
Conference & Training Center and Apple Fresh Foods, Ltd.
EVENT OF DEFAULT. As that term is defined in subsection 5.1 of this
Guaranty.
GUARANTEED
LIABILITIES.
Collectively,
all
present
and
future
liabilities
(whether
fixed,
contingent
or
otherwise) of the Companies to the Lender in a
principal
amount
of up to
$3,000,000
as
evidenced
in the
Note,
the
Loan
Agreement or the Loan
Documents,
together
with all
interest
thereon (at the
annual rates set forth therein) and all attorneys'
fees,
costs and expenses of
collection incurred by the Lender in enforcing such liabilities.
GUARANTOR. Joseph V. Roberts.
GUARANTOR'S LIABILITIES.
All present and future liabilities of the Guarantor to
the Lender under this Guaranty,
together with all reasonable
attorneys'
fees,
costs and
expenses
of
collection
incurred
by the Lender in
enforcing
such
liabilities, all of which shall not exceed $3,000,000 in the
aggregate.
GUARANTY. This Guaranty and Suretyship, and any future amendments,
modifications
or supplements hereto or restatements hereof.
LENDER. Wilmington Trust of Pennsylvania.
LOAN
AGREEMENT.
Collectively,
any Loan
Agreement
between the Lender and the
Companies,
and any future amendments,
modifications or supplements
thereto or
restatements thereof.
LOAN DOCUMENTS. As that term is defined in the Loan Agreement.
Collectively, all
promissory notes executed by the Companies in favor of Lender.
PROPERTY.
All
personal
property
of
the
Guarantor
(whether
tangible
or
intangible)
now or in the future in the possession or custody of, or in transit
to, the Lender for any purpose, including safekeeping, collection
or pledge, for
the Guarantor's
account,
including,
without
limitation,
any debts which the
Lender might owe to the Guarantor.
1.2 OTHER
CAPITALIZED
TERMS. All capitalized
words and/or phrases not defined
herein
which are defined in the Loan
Agreement
shall have the meanings set in
the Loan Agreement.
1.3 OTHER TERMS. All terms not defined herein or in the Loan
Agreement which are
defined in the Pennsylvania
Uniform Commercial Code shall have the meanings set
forth in the Pennsylvania Uniform Commercial Code.
1.4 OPTIONS.
The section and subsection
captions of this Guaranty are included
for reference only and are not to be used in the construction of
this Guaranty.
1.5 SEVERABILITY.
Any provision
contained in this Guaranty which is prohibited
or
unenforceable
in
any
jurisdiction
shall,
as to
such
jurisdiction,
be
ineffective
to the
extent
of such
prohibition
or
unenforceability
without
invalidating
the
remaining
provisions
hereof,
and any such
prohibition
or
unenforceability
in
any
jurisdiction
shall
not
invalidate
or
render
unenforceable such provision in any other jurisdiction.
1.6 CONSTRUCTION. This Guaranty and the rights and obligations of
the Lender and
the Guarantor
under this Guaranty shall be governed and construed in accordance
with the
domestic,
internal
laws (but not the law of the conflict of laws) of
the Commonwealth of Pennsylvania.
SECTION 2. GUARANTY OF PAYMENT AND PERFORMANCE
------------------------------------
2.1
GUARANTY
OF
PAYMENT
AND
PERFORMANCE.
The
Guarantor
irrevocably
and
unconditionally
guarantees
to the
Lender,
and becomes a surety to the Lender
for, the prompt payment when due, whether by acceleration or
otherwise,
and the
prompt
performance
of the
Guaranteed
Liabilities.
Notwithstanding
anything
herein
to the
contrary,
Guarantor's
liability
hereunder
shall
not
exceed
$3,000,000.
2.2
CONTINUING
GUARANTY.
This
Guaranty
is and shall be
construed
to be an
absolute and continuing guaranty of payment, regardless of the
present or future
composition
of the Companies,
and all of the
Guaranteed
Liabilities to which
this Guaranty applies, or may apply under the terms and conditions
hereof, shall
be conclusively presumed to have been created in reliance hereon.
Upon permanent
reduction
of the
Guaranteed
Liabilities
in the
amount of Two
Million
Five
Hundred Thousand Dollars
($2,500,000),
or if the Company shall maintain at all
times at least Two Million Five Hundred
Thousand
($2,500,000)
of cash or cash
equivalents
(measured on a daily basis), prior to an Event of Default, the Bank
shall release this Guaranty.
2.3 INVALIDITY, IRREGULARITY,
UNENFORCEABILITY, ETC. NO DEFENSE. No invalidity,
irregularity
or
unenforceability
of, lack of prior
enforcement
of, delay in
enforcement
of, or
failure
to
preserve
or
enforce,
any of the
Guaranteed
Liabilities
or of any
security for the payment of the
Guaranteed
Liabilities
(although
the
Lender's
rights
have been lost) shall
affect,
impair or be a
defense to this Guaranty. This Guaranty is and shall remain a
primary obligation
of the Guarantor.
2.4 WAIVERS.
The Guarantor
waives
notice of acceptance of this
guarantee and
presentment.
2.5 AMOUNTS
RECOVERED
FROM
LENDER.
If claim is ever made upon the Lender for
repayment
or
recovery
of any
amount or
amounts
received
by the
Lender in
payment,
or on account,
of any of the
Guaranteed
Liabilities
and the Lender
repays all or part of such amount by reason of:
(a) any judgment,
decree, or order of any court or
administrative
body having
jurisdiction over the Lender or any of its property, or
(b) any
settlement or compromise of any such claim
effected by the Lender with
any such claimant,
except to the extent such repayment
occurs
pursuant to litigation
between the
Companies or the Guarantor and the Lender,
the Guarantor
shall be and continue
to remain
liable to the Lender
hereunder for the amount so repaid or recovered
to the same extent as if such amount had never
originally
been received by the
Lender.
2.6 PLACE.
MODE OF PAYMENT.
The Guarantor
shall make all payments
under this
Guaranty
to the Lender at its
office at 795 E.
Lancaster
Avenue,
Villanova,
Pennsylvania
19805,
or at such place as the Lender may hereafter
designate in
writing to the Guarantor. Payments shall be in lawful money of the
United States
of America in funds immediately available to the Lender.
SECTION 3. GUARANTEED LIABILITIES: LENDER ACTIONS
---------------------------------------
The
Lender
may take any or all of the
following
actions at any time and from
time
to
time
without
notice
to
the
Guarantor,
without
incurring
any
responsibility
to
the
Guarantor
and
without
impairing
or
releasing
the
Guarantor's obligations under this Guaranty.
3.1 PAYMENT TERMS. The Lender may change the manner,
place or terms of payment,
and/or
change
or
extend
the time of
payment
of,
renew or alter any of the
Guaranteed
Liabilities,
any security for the
Guaranteed
Liabilities,
or any
liability
incurred
directly
or
indirectly
in
respect
of
the
Guaranteed
Liabilities.
3.2 SECURITY. The Lender may sell, exchange, release,
surrender,
realize upon,
or
otherwise
deal
with
in any
manner
and in any
order,
any
property
by
whomsoever
at any time pledged or mortgaged to secure,
or howsoever
securing,
the Guaranteed Liabilities, the Guarantor's Liabilities or any
other liabilities
incurred
directly or indirectly
with regard to the Guaranteed
Liabilities and
the
Guarantor's
Liabilities,
and/or any offset
thereagainst.
The Lender may
maintain its liens and security
interests on any and all property
until all of
the guaranteed liabilities have been paid in full.
3.3 EXERCISE OF RIGHTS.
The Lender may exercise or refrain from
exercising any
rights
against
the
Companies,
the
Guarantor
or others
arising
out of the
Guaranteed Liabilities or otherwise act or refrain from acting.
3.4
SETTLEMENTS.
The
Lender may settle or
compromise
any of the
Guaranteed
Liabilities,
any security for the
Guaranteed
Liabilities
or the
Guarantor's
Liabilities,
or any liability incurred directly or indirectly in respect of the
Guaranteed Liabilities or the Guarantor's
Liabilities,
and may subordinate the
payment of all or any part of such
settlement
or
compromise to the payment of
any liability of the Companies (whether or not then due) to the
creditors of the
Companies other than the Lender and the Guarantor.
3.5 APPLICATION OF PAYMENTS. The Lender may apply any sums paid to
the Lender by
whomsoever
paid or
howsoever
realized
to any of the
Guaranteed
liabilities
regardless of which of the Guaranteed Liabilities remain unpaid.
3.6
PARTICIPATIONS.
The
Lender
may grant
participations
in the
Guaranteed
Liabilities.
SECTION 4. LENDER'S LIEN
--------------
4.1 LENDER'S
LIEN. The Guarantor
grants to the Lender as further
security for
the payment of the Guaranteed Liabilities and/or the Guarantor's
Liabilities,
a
lien upon an
