Guaranty and Suretyship Agreement between Joseph V. Roberts and Wilmington Trust of Pennsylvania

 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 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 ---------------------------- 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 ------------- 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 795 E. Lancaster Ave, Suite 6 Villanova PA 19085-1517 Attention: Don Hans The Guarantor: Joseph V. Roberts 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/ Joseph V. Roberts (SEAL) --------------------- Joseph V. Roberts