Exhibit 10.21


 


GUARANTY
OF LEASE


 


In consideration of, and as an inducement for
the granting, execution and delivery of the foregoing Second Amended and
Restated Lease Agreement, dated as of October 26, 2007 (as the same may be
amended, modified, assigned, extended, supplemented, renewed, replaced and/or
restated from time to time, collectively, the “Lease”),
by 750 Park Place Realty Co., LLC (“Landlord”)
to B.J.K. Inc.,  d/b/a Chem Rx (“Tenant”), and in further
consideration of the sum of One ($1.00) Dollar and other good and valuable
consideration paid by Landlord to the undersigned, the receipt and sufficiency
of which are hereby acknowledged, the undersigned Chem Rx
Corporation, a Delaware corporation having an address at 750 Park
Place, Long Beach, New York 11561 (the “Guarantor”),
hereby  guaranties to Landlord, its successors
and assigns, the (a) full and prompt payment of all (i) Rent (as
defined in the Lease), (ii) use and occupancy charges to which Landlord may be
entitled by law or otherwise after the termination of the Lease and during the
continued occupancy by Tenant, its successors and assigns, (iii) costs
incurred by Landlord in seeking a termination of the Lease (including, without
limitation, through a final judgment by a court of competent jurisdiction) and
all costs incurred by Landlord in recovering vacant possession of the Premises
(as defined in the Lease) after Default (as defined in the Lease) by Tenant
and/or by the enforcement of this Guaranty, including without limitation,
reasonable attorneys’ fees and disbursements and (iv) damages, costs,
expenses, claims or liabilities that may arise as a result of Tenant’s
failure to pay for all costs of Tenant’s work or alterations, improvements or
modifications to the Premises by or for Tenant (other than such costs which the
Lease expressly provides will be paid for by Landlord, if any) or that may arise
as a result of Tenant’s failure to pay for any labor, materials or other costs
for improvements performed by or for Tenant with respect to the Premises which
costs if not paid for could give rise to a lien against the Premises, except to
the extent that the payment of such costs was required to be made by Landlord
pursuant to the terms of the Lease, and (b) full and timely performance
and observance of all the covenants, terms, conditions and agreements in the
Lease provided to be performed and observed by Tenant, its successors and
assigns (hereinafter such payment and performance obligations are collectively
referred to as the “Obligations”); and the
Guarantor hereby covenants and agrees to and with Landlord, its successors and
assigns, that if Default shall at any time be made by Tenant, its successors or
assigns, in the performance and observance of any the Obligations, including,
without limitation, the obligation to pay Rent, the Guarantor shall and will
forthwith pay such Rent to Landlord, its successors and assigns, and any
arrears thereof, and shall and will forthwith faithfully perform and
fulfill all of the other Obligations, and will forthwith pay to Landlord all
damages that may arise in consequence of any Default by Tenant, its
successors or assigns, under the Lease, including, without limitation, all
reasonable attorney’s fees and disbursements incurred by Landlord or caused by
any such Default and/or by the enforcement of this Guaranty (hereinafter
referred to as “this Guaranty”). Terms
printed with initial capital letters in this Guaranty and not otherwise defined
shall have the respective meanings assigned to them in the Lease.


 


This Guaranty is an absolute and
unconditional guaranty of payment and of performance. It shall be enforceable
against the Guarantor, its successors and assigns, without the necessity for
any suit or proceedings on Landlord’s part of any kind or nature whatsoever
against Tenant, its 


 


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successors or assigns, and without the necessity of any notice of
non-payment, non-performance or non-observance or of any notice of acceptance
of this Guaranty or of any other notice or demand to which the Guarantor might
otherwise be entitled, all of which the Guarantor hereby expressly waives; and
the Guarantor hereby expressly agrees that the validity of this Guaranty and
the obligations of the Guarantor hereunder shall in nowise be terminated,
affected, diminished or impaired by reason of (i) the assertion of, or the
failure to assert by Landlord against Tenant, or against Tenant’s successors or
assigns, any of the rights or remedies reserved to Landlord pursuant to the
provisions of the  Lease or (ii) the
assertion of, or the failure to assert by Landlord against the Guarantor or
against its successors or assigns, any of the rights or remedies reserved to
Landlord pursuant to the provisions of this Guaranty or the Lease, or by relief
of Tenant or any other guarantor from any of their respective obligations under
or in connection with the Lease. Without in any way limiting the foregoing, the
Guarantor shall and does hereby waive any other act or omission of Landlord
which changes the scope of the Guarantor’s risk or any other event that
otherwise might constitute a legal or equitable counterclaim, defense or
discharge of a surety or guarantor.


 


This Guaranty shall be a continuing guaranty,
and the liability of the Guarantor hereunder shall in no way be affected,
modified or diminished by reason of any assignment, renewal, modification or
extension of the Lease or by reason of any modification or waiver of or change
in any of the terms, covenants, conditions or provisions of the Lease by
Landlord and Tenant, or by reason of any extension of time that may be
granted by Landlord to Tenant, its successors or assigns, or by reason of any
dealings or transactions or matter or thing occurring between Landlord and
Tenant, its successors or assigns, or by reason of any bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors,
receivership or trusteeship affecting Tenant or any other guarantor, or their
successors or assigns, whether or not notice thereof or of any thereof is given
to the Guarantor.


 


The Guarantor hereby represents and warrants
to Landlord that it is not entitled, directly or indirectly, to diplomatic or
sovereign immunity under any state or federal law. In the event that the
Guarantor hereunder is a corporation, the person executing this Guaranty on
behalf of the Guarantor hereby represents and warrants that: the Guarantor is a
duly constituted corporation authorized to do business in the State of New
York; all franchise and corporate taxes of the Guarantor have been paid to
date; such person is duly authorized to execute and deliver this Guaranty on
behalf of said corporation; the Federal Taxpayer Identification Number of said
corporation is as herein set forth below its signature; and any and all
financial statements relating to said corporation or Tenant heretofore
furnished to Landlord are true and correct in all material respects and do not
fail to state or omit any fact that would be necessary in order not to make the
same misleading.


 


In the event that this Guaranty shall be held
ineffective or unenforceable by any court of competent jurisdiction, the
Guarantor shall be deemed to be a tenant under the Lease with the same force
and effect as if the Guarantor were expressly named in the Lease as a joint
tenant with joint and several liability.


 


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Unless and until all of the Obligations are
fully performed and observed, the Guarantor: (a) shall not be subrogated
to any rights of Landlord; (b) waives all rights of subrogation,
indemnity, contribution, exoneration, reimbursement or any other claim which
the Guarantor now has or hereafter shall have against Tenant  or any other person liable in any way with respect
to the Obligations; and (c) subordinates any liability or indebtedness of
Tenant now or hereafter held by the Guarantor to the Obligations. In addition,
the Guarantor agrees that, until all of the Obligations are fully performed and
observed, no Guarantor (a) shall accept payment from any other Guarantor
or person by way of contribution on account of any payment or act of
performance by such Guarantor, and (b) will take any action to exercise or
enforce any such rights to such contribution.


 


All of Landlord’s rights and remedies under
the Lease and under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy therein or herein mentioned is intended
to be in exclusion of or a waiver of any of the others.


 


The Guarantor hereby covenants and agrees to
and with Landlord, its successors and assigns, that the Guarantor may be
joined in any action against Tenant or against any one or more other guarantors
in connection with the Lease and that recovery may be had against the
Guarantor without Landlord, its successors or assigns, first pursuing or
exhausting any remedy or claim against Tenant, its successors or assigns or
against any one or more other guarantors on the Lease. The Guarantor hereby
also expressly agrees that, in any jurisdiction, it will conclusively be bound
by the judgment in any such action by Landlord against Tenant (wherever
brought) as if the Guarantor were a party to such action even though the
Guarantor is not joined as a party in such action.


 


As a further inducement to Landlord to make
and enter into the Lease and in consideration thereof, Landlord and the
Guarantor covenant and agree that in any action or proceeding brought on, under
or by virtue of this Guaranty, Landlord and the Guarantor shall and do hereby
waive trial by jury.


 


The Guarantor hereby consents and agrees that
the Supreme Court of the State of New York for the County of New York and the
United States District Court for the Southern District of New York each shall
have personal jurisdiction and proper venue with respect to any dispute between
Landlord and the Guarantor; provided that
the foregoing consent shall not deprive Landlord of the right in its discretion
to voluntarily commence or participate in any action, suit or proceeding in any
other court having jurisdiction and venue. In any dispute with Landlord, the
Guarantor will not raise, and hereby expressly waives, any objection or defense
to any such jurisdiction as an inconvenient forum.


 


This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York.


 


Any notice, demand or request by either party
to the other shall be in writing, and shall be deemed to have been duly given
if given by any of the means permitted for notices under Section 27 


 


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of the Lease, addressed to the other party as follows: in the case of
the Guarantor, at its address set forth above or to such other address as the
Guarantor shall have given notice of to Landlord, and in the case of Landlord,
at Landlord’s address for notices under Section 27 of the Lease.


 


In case any term, condition or other
provision contained in this Guaranty shall be held to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not affect
any other term, condition or provision contained in this Guaranty.


 


This Guaranty shall inure to the benefit of
Landlord and Landlord’s successors and assigns, and shall be binding upon and
enforceable against the Guarantor and the Guarantor’s successors, assigns,
heirs (and, if the Guarantor is a natural person, his/her heirs and legal
representatives).


 


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The Guarantor has unconditionally delivered
this Guaranty to Landlord, and the failure to sign any other guarantee by any
other person intended to be a guarantor of the Tenant’s obligations under the
Lease or any portion thereof shall not discharge the liability of the
Guarantor.


 


 


	
  Dated: October 26, 2007

  	
  Chem Rx Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   /s/ Jerry Silva

  	
   

  
	
   

  	
   

  	
  Name: Jerry Silva

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
  Federal Taxpayer I.D. No.: 20-2938469

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  STATE OF NEW YORK

  	
  )

  	
   

  	
   

  
	
   

  	
  :ss.:

  	
   

  	
   

  
	
  COUNTY OF NEW YORK

  	
  )

  	
   

  	
   

  



 


 


On the 26th day of October, 2007,
before me, the undersigned, a Notary Public in and for said State, personally
appeared Jerry Silva, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.


 


 


	
   

  	
  /s/ Michael
  Grandis

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
   

  	
  Michael Grandis

  
	
   

  	
  Notary Public, State of New York

  
	
   

  	
  No. 02-GR6067526

  
	
   

  	
  Qualified in New York County

  
	
   

  	
  Commission Expires 12/05/2009

  
	
   

  	
   

  



 


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