GUARANTY AND SURETYSHIP AGREEMENT
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THIS GUARANTY AND SURETYSHIP AGREEMENT is made this 12th day of August
2004, by I-TRAX, INC., a Delaware corporation (hereinafter Guarantor"), with a
Pennsylvania office located at Birmingham Court Building, 000-000 Xxxxxxx Xxxxx,
Xxxxxx Xxxx, XX 00000, for the benefit of XXXXXXXXX BIRMINGHAM ASSOCIATES
("Xxxxxxxxx"), a Pennsylvania general partnership, with its principal office
located at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxxxxxx ("Landlord").
W I T N E S S E T H:
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WHEREAS, I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC., a Delaware
corporation ("Tenant"), is about to enter into a lease of even date herewith
("Lease") for the premises known as 000-000 Xxxxxxx Xxxxx, Xxxxxxxxxx Court
Building, Chadds Ford Business Campus, Chadds Ford Township, Delaware County,
Pennsylvania ("Demised Premises"), from Landlord; and
WHEREAS, Landlord has agreed to lease the Demised Premises to Tenant in
consideration, among other things, of the covenants and obligations made and
assumed by the Guarantor to guarantee payment of rent by Tenant during the
Demised Term of the Lease (as defined therein), unless sooner terminated, as set
forth herein; and
WHEREAS, Guarantor acknowledges that Landlord would not execute the
Lease without the execution and delivery by Guarantor of this Guaranty and
Suretyship Agreement ("Guaranty").
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and intending to be legally bound hereby, Guarantor does hereby covenant
and agree as follows:
1. Guaranty. The Guarantor, for itself and its successors and assigns,
guarantees the prompt payment on the stated payment date, by acceleration on
default, or whenever payment may become due under the terms of the Lease, of all
payments of rent, additional rent, and all other charges, expenses and cost of
every kind and nature, which are or may be due now or in the future under the
terms of the Lease, any agreements or documents related to the Lease, or any
other transaction between the Landlord and the Tenant directly or indirectly
related to the Lease, and the complete and timely performance, satisfaction and
observation of the terms and conditions of the Lease, rules and regulations and
related obligations arising by reason of the Lease, required to be performed,
satisfied or observed by the Tenant.
2. Coverage of Guaranty. This Guaranty extends to any and all liability which
the Tenant has or may have to the Landlord by reason of matters occurring before
the signing of the Lease by the parties or commencement of the Demised Term of
the Lease or by matters occurring after the expiration of the Demised Term of
the Lease by reason of removal of Tenant property, surrender of possession or
other matters. This guaranty extends to any successor of the Tenant, any
assignee or sublessee, of the Tenant, to any extension or renewals of the Lease,
and to any term established by reason of the holdover of the Tenant, an assignee
or sublessee.
3. Term of Guaranty. This Guaranty shall continue through the initial lease
term, future lease renewals, or through any future options the Tenant might have
to extend the term of the Lease.
4. Guarantor represents and warrants that there is no action, suit or proceeding
pending or to the best of Guarantor's knowledge threatened against or affecting
Guarantor which would materially and adversely affect the validity and
enforceability of this Guaranty or which would have a material adverse effect on
the financial position of Guarantor and Guarantor is not the subject of any
bankruptcy or insolvency proceedings of any other proceeding under any federal
or state law providing for the relief of debtors. If Guarantor or Tenant has
delivered to Landlord financial statements of Guarantor, there has been no
material adverse change in the financial condition of Guarantor from the
financial condition shown on such financial statements delivered to Landlord.
5. Performance Guaranty. In the event that the Tenant fails to perform, satisfy
or observe the terms and conditions of the Lease, rules and regulations, and
related Lease obligations required to be performed, satisfied or observed by the
Tenant, the Guarantor will promptly and fully perform, satisfy and observe the
obligation or obligations in the place of the Tenant. The Guarantor shall pay,
reimburse and indemnify the Landlord for any and all damages, costs, expenses,
losses and other liabilities arising or resulting from the failure of the Tenant
to perform, satisfy or observe any of the terms and conditions of the Lease,
rules and regulations and related obligations.
6. Waiver of Notice. Without notice to or further assent from the Guarantor, the
Landlord may waive or modify (provided such modification does not increase,
Guarantor's obligations hereunder) any of the terms or conditions of the Lease,
any rules and regulations or related Tenant obligations; or compromise, settle
or extend the time of payment of any amount due from the Tenant or the time of
performance of any obligations of the Tenant. These actions may be taken by the
Landlord without discharging or otherwise affecting the obligations of the
Guarantor.
7. Lease Security. This guaranty shall remain in full force and effect, and the
Guarantor fully responsible, without regard to any security deposit or other
collateral for the performance of the terms and conditions of the Lease, or the
receipt, disposition, application, or release of any security deposit or other
collateral, now or hereafter held by or for the Landlord.
8. Unconditional Obligations. The liability of the Guarantor is direct,
immediate, absolute, continuing, unconditional and unlimited. The Landlord shall
not be required to pursue any remedies it may have against Tenant or against any
security deposit or other collateral as a condition to enforcement of this
guaranty. Nor shall the Guarantor be discharged or released by reason of the
discharge or release of the Tenant for any reason, including a discharge in
Bankruptcy, receivership or other proceedings, a disaffirmation or rejection of
the Lease by a Trustee, custodian, or other representative in Bankruptcy, a stay
or other enforcement restriction, or any other reduction, modification,
impairment or limitations of the liability of the Tenant or any remedy of the
Landlord. The Guarantor assumes all responsibility for being and keeping itself
informed of Tenant's financial condition and assets, and of all other
circumstances bearing upon the risk of nonperformance by Tenant under the Lease.
The Guarantor agrees that the Landlord shall have no duty to advise the
Guarantor of information known to it regarding such circumstances or risks.
9. Subordination of Subrogation Rights. The Guarantor subordinates to the
Landlord's claims any and all claims which the Guarantor has or may have against
the Tenant by reason of subrogation for payments or performances under this
Guaranty or claims for any other reason or cause. The Guarantor agrees not to
assert any claim which it has or may have against the Tenant, including claims
by reason of
subordination under this guaranty, until such time as the payment and other
obligations of the Tenant to the Landlord are fully satisfied and discharged.
10. Binding Effect. This guaranty is binding upon the Guarantor, its successors,
assigns, and is binding upon and shall inure to the benefit of the Landlord, its
successors and assigns. No assignment or delegation by the Guarantor shall
release the Guarantor of its obligations under this guaranty. The term "Tenant"
used in this guaranty includes also the first and any successive assignee or
sublessee of the Tenant or any assignee or sublessee of the Tenant.
11. Notice. Any notice to the parties hereto shall be personally delivered or
sent by United States Certified Mail, postage prepaid, return receipt requested
or by a recognized overnight delivery service addressed as follows:
Guarantor: I-trax, Inc.
000-000 Xxxxxxx Xxxxx
Xxxxxxxxxx Court Building
Chadds Ford Business Campus
Xxxxxx Xxxx, XX 00000
Landlord: Xxxxxxxxx Birmingham Associates
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
12. Modifications. This guaranty may not be modified orally, but only by a
writing signed by both the guarantor and the Landlord. Modifications include any
waiver, change, discharge, modification, or termination.
13. Consent to Jurisdiction. Guarantor hereby subjects itself to the
jurisdiction of the Court of Common Pleas of Delaware County, Pennsylvania. The
laws of the Commonwealth of Pennsylvania shall be applicable to this Guaranty
and any interpretations thereof.
IN WITNESS WHEREOF, the Guarantor has executed and sealed this guaranty the day
and year first above and written.
ATTEST: GUARANTOR:
I-TRAX, INC.
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxx
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Chief Executive Officer
COMMONWEALTH OF PENNSYLVANIA :
:SS
COUNTY OF DELAWARE :
On this, the day of , 2004, before me, the undersigned
officer, personally appeared and , who
executed the foregoing instrument for the purposes contained therein.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My commission expires:
