EXHIBIT 10.21
GUARANTY AND SURETYSHIP
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GUARANTY AND SURETYSHIP dated May __, 2005, made and executed by XXXXXX X.
XXXXXXX, an adult individual.
The undersigned, intending to be legally bound, agree:
SECTION 1. INTERPRETATION
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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. Xxxxxx X. Xxxxxxx.
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
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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 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000, 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
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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
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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 and a right of setoff with respect to any deposit account of the
Guarantor with the Lender and any other debts that the Lender may owe to the
Guarantor from time to time. The Lender may, upon the occurrence of an Event of
Default, and at any time and from time to time thereafter, at its option and
without notice, appropriate and apply toward the payment of any of the
Guaranteed Liabilities and/or the Guarantor's Liabilities the balance of each
such deposit account of the Guarantor with, and each such claim of the Guarantor
against, the Lender.
SECTION 5. EVENTS OF DEFAULT; REMEDIES
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5.1 EVENTS OF DEFAULT. The occurrence of anyone or more of the following shall
be deemed an Event of Default hereunder:
(a) Failure by any Guarantor to pay any monies due under this Guaranty within
five (5) days of demand by the Lender after an Event of Default under any of the
Loan Documents or Notes.
(b) Failure by the Guarantor to observe or perform any other covenant,
condition, term, or provision contained in this Guaranty.
(c) The insolvency (however evidenced) of the Guarantor.
(d) Any material adverse change in the financial condition of the Guarantor.
(e) The issuance of any warrant, process or order of attachment, garnishment or
other lien and/or the filing of alien in excess of $10,000 as a result thereof
against any property of the Guarantor.
(f) The filing of the Guarantor of a voluntary petition in bankruptcy, a
voluntary petition or answer seeking reorganization, arrangement or readjustment
of their debts or for any other relief under the Bankruptcy Code or under any
other applicable federal or state bankruptcy, insolvency, reorganization,
rehabilitation, or similar law, or the consent by any of them to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Guarantor or for any substantial
part of their property, or the making by any of them of any assignment for the
benefit of creditors, or the failure of any of the Guarantor generally to pay
its debts as such debts become due, or the taking of any action by the Guarantor
in furtherance of the foregoing.
(g) The filing of any involuntary petition against the Guarantor in bankruptcy
or seeking reorganization, arrangement of readjustment of its debts or for any
other relief under the Bankruptcy Code or under any other applicable federal or
state bankruptcy, insolvency, reorganization, rehabilitation or other similar
law, or the involuntary appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Guarantor, or any
substantial part of its property, and the continuance of any such event for a
period of thirty (30) consecutive days undismissed, unbonded, or undischarged.
(h) Any representation or other statement made or delivered to Lender by or on
behalf of the Guarantor is untrue or incomplete, in any material respect.
5.2 REMEDIES. Upon the occurrence of an Event of Default:
(a) the Lender may, at its option and without notice to the Guarantor, make the
Guaranteed Liabilities, whether or not then due, immediately due and payable
under this Guaranty as to the Guarantor and the Lender shall be entitled to
enforce the Guaranteed Liabilities against the Guarantor,
(b) the Lender, without notice to the Guarantor, may transfer into its own name
or that of its nominee any Property, may notify any obligor on any of such
Property to make payment to the Lender of any amounts due on such Property,
and/or take control of any proceeds of any of such Property,
(c) the Lender, with ten (10) days prior written notice to the Guarantor and
without advertisement or demand upon the Companies or the Guarantor or right of
redemption ( except as shall be required by applicable statute and cannot be
waived), may sell, resell, transfer and deliver all or part of the Property at
any brokers' board or exchange or at public or private sale, for cash or on
credit or for future delivery, and in connection therewith may grant options and
may impose reasonable conditions such as requiring any purchaser of any stock so
sold to represent that such stock is purchased for investment purposes only, and
upon each such sale the Lender, unless prohibited by provision of any applicable
statute which cannot be waived, may purchase all or any part of the Property,
free from and discharged of all trusts, claims, right of redemption and equities
of the Guarantor,
(d) the Lender may exercise any of its rights and remedies provided by a the
laws of the Commonwealth of Pennsylvania or any other jurisdiction, and
THE FOLLOWING PARAGRAPH CONTAINS A WARRANT OF AUTHORITY FOR AN ATTORNEY TO
CONFESS JUDGMENT AGAINST THE GUARANTOR. IN GRANTING THIS WARRANT OF ATTORNEY TO
CONFESS JUDGMENT AGAINST THE GUARANTOR, THE GUARANTOR HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF SEPARATE COUNSEL OF THE
GUARANTOR, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE GUARANTOR HAS OR MAY
HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
(e) THE GUARANTOR HEREBY IRREVOCABLY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY
COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND CONFESS JUDGMENT
WITHOUT DECLARATION FILED WITH COSTS OF SUIT RELEASE OF ERRORS WITHOUT STAY OF
EXECUTION AND WITH REASONABLE ATTORNEYS' FEES AND DOES HEREBY VOLUNTARILY AGREE
THAT ANY REAL AND PERSONAL PROPERTY SUBJECT TO SUCH JUDGMENT MAY BE SOLD ON A
WRIT AND HEREBY WAIVE AND RELEASE ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY
OR EXEMPTION LAWS OF ANY STATE NO IN FORCE OR HEREAFTER TO BE ENACTED. The power
to enter judgment against the Guarantor shall not be exhausted by any exercise
of the power and shall continue from time to time and at all times until full
payment of all amounts due under this Guaranty. For the purpose of entering
judgment, this Guaranty or a copy hereof verified by affidavit shall be a
sufficient warrant.
5.3 NO MARSHALLING, ETC.,REQUIRED. If in Event of Default shall have occurred,
the Lender shall not be required to marshal any present or future security for,
or guarantees of, the Guaranteed Liabilities held by it or to resort to any such
security or guarantees in any particular order. The Guarantor waives, to the
fullest extent it lawfully can, (i) any right it might have to require the
Lender to pursue any particular remedy before proceeding against it, and (ii)
any right to the benefit of, or to direct application of the proceeds of, any
collateral until the Guaranteed Liabilities have been paid in full.
5.4 LENDER'S EXPENSES. The Guarantor shall pay to the Lender all reasonable
costs and expenses, including filing fees and attorneys' fees, incurred by the
Lender in connection with the custody, care, preservation or collection of any
of the Property, or in any proceedings to collect any of the Guarantor's
Liabilities.
5.5 APPLICATION OF FUNDS. After deducting all costs and expenses described in
subsection 5.4 of this Guaranty, the Lender shall apply the balance of the
proceeds of any sale or collection to the Guaranteed Liabilities and the
Guarantor shall continue to be liable for any deficiency, with interest at the
annual rates set forth in the instruments evidencing those unpaid liabilities.
SECTION 6. MISCELLANEOUS
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6.1 WAIVERS.
(a) No delay by the Lender in exercising, of any or any partial or single
exercise of, any of its options, powers or rights, shall constitute a waiver of
such option, power or right.
(b) No waiver of any of the Lender's rights under this Guaranty, and no
amendment of this Guaranty shall be deemed to be made by the Lender unless in
writing and duly signed on behalf of the Lender.
(c) Any written waiver shall apply only with respect to the specific instance
involved and shall in no way impair the rights of the Lender or the obligations
of the Guarantor under this Guaranty in any other respect at any other time.
6.2 SERVICE OF PROCESS. If the Lender brings any action or suit in any court of
record of Pennsylvania or the United States to enforce any or all Guarantor's
Liabilities under this Guaranty, service of process may be made upon the
Guarantor by mailing a copy of the summons to the Guarantor named in such action
or suit.
6.3 SUBORDINATION. SUBROGATION.
(a) The Guarantor shall not collect or enforce, attempt to collect or enforce or
receive any payment or property from the Companies in respect of any present or
future obligation of the Companies to the Guarantor until the Guaranteed
Liabilities have been paid.
(b) The Guarantor shall not be subrogated to the rights of the Lender under any
Note or any Loan Documents executed in connection therewith as the result of any
payment by, or enforcement of the obligations of, the Guarantor under this
Guaranty.
6.4 OTHER REPORTS. The Guarantor shall deliver to Lender any and all financial
and other information reasonably requested by Lender.
6.5 NOTICES. All notices, requests and demands to or upon the respective parties
hereto shall be by mail, overnight mail, sent by courier system, telecopied or
delivered, addressed as follows or to such other address as may be hereafter
designated in writing by any of the following persons:
To the Lender: Wilmington Trust of Pennsylvania 000 X. Xxxxxxxxx Xxx, Xxxxx 0
Xxxxxxxxx XX 00000-0000 Attention: Don Hans
The Guarantor: Xxxxxx X. Xxxxxxx
All such notices and other communications shall be effective (i) if mailed, on
the earlier of three (3) days after the date when mailed or when received; (ii)
if sent by overnight delivery or sent by courier, or telecopy, when received; or
(iii) if delivered, when delivered.
6.6 LEGAL EFFECT.
(a) This Guaranty shall be binding upon the Guarantor, his heirs, personal
representatives, successors and assigns; provided, however, the Guarantor shall
assign their duties or obligations under this Guaranty without the prior written
consent of Bank.
(b) This Guaranty shall be binding upon and, shall inure to the benefit of, the
Bank, its successors and assigns.
6.7 JOINT AND SEVERAL LIABILITY. Any Guarantor signing this Guaranty shall be
bound hereby, whether or not any other person signs this Guaranty at any time.
The term "Lender" includes any agent of the Lender acting for it.
6.8 WAIVER OF IMMUNITY. The Guarantor hereby irrevocably and unconditionally
waive any right to claim immunity in respect of itself or any of its property or
assets, including immunity from jurisdiction, immunity from attachment prior to
entry of judgment, immunity from attachment in aid of execution of judgment, and
immunity from execution or judgment, all in respect of any legal suit, action or
proceeding arising out of, or relating to, this Guaranty. The Guarantor further
agrees that any such suit, action or proceeding may be instituted in the courts
of the Commonwealth of Pennsylvania or the United States District Court for the
Eastern District of Pennsylvania, and irrevocably and unconditionally submit to
the jurisdiction of any such court for such purpose.
6.9 REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor represents and
warrants to Lender that the execution and delivery of, and performance by the
Guarantor under this Guaranty will not violate or contravene any provisions of
any existing law, regulation or decree of any court, governmental authority or
of any mortgage, indenture, security agreement, contract, undertaking or other
agreement to which the Guarantor are a party or which purports to be binding
upon it or any of its properties or assets, and will not result in the creation
or imposition of any lien, charge, encumbrance on, or security interest in, any
of its properties or assets pursuant to the provisions of any such mortgage,
indenture, security agreement, contract, undertaking or other agreement.
6.10 WAIVER OF TRIAL BY JURY. Guarantor agrees that any suit, action, or
proceeding, whether claim or counterclaim, brought or instituted by the Lender
or any successor or assign of the Lender on or with respect to this Guaranty or
any other Loan Document or which in any way relates, directly or indirectly, to
this Guaranty or any event, transaction, or occurrence arising out of or in any
way pertaining to this Guaranty, or the dealings of the parties with respect
thereto, shall be tried only by a court and not by a jury. GUARANTOR HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR
PROCEEDING. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A
SPECIFIC AND MATERIAL ASPECT OF THIS GUARANTY AND THAT THE LENDER WOULD NOT
CONTINUE THE AVAILABILITY OF THE LOANS IF THIS WAIVER OF JURY TRIAL SECTION WERE
NOT A PART OF THIS GUARANTY.
6.11 CONSTRUCTION. The domestic internal laws of the Commonwealth of
Pennsylvania shall govern and control the construction, enforceability and
interpretation of this Guaranty.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Guarantor has
executed this Guaranty the day and year first above written.
Witness: /s/ Xxxxxx X. Xxxxxxx (SEAL)
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Xxxxxx X. Xxxxxxx
