GUARANTY OF LEASE
Exhibit
10.3
GUARANTY
OF LEASE (this “Guaranty”) made as of August 9, 2007, by I-trax,
Inc., a Delaware corporation, with an address at 0 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxx, XX 00000 (“Guarantor”), to First Industrial Investment, Inc., a Maryland corporation, having an
office at 000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Executive Vice
President-Operations (“Landlord”).
W
I T N E S S E T H :
WHEREAS:
1. Landlord
has been requested by CHD Meridian Healthcare, LLC, a Delaware limited liability
company, with an office at Xxxxxx Hills,40
Xxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxx, XX 00000 (“Tenant”), to enter into a Lease dated as of the
date hereof (the “Lease”), whereby Landlord would lease to Tenant, and Tenant
would rent from Landlord, certain premises located at Xxx 0 xxx Xxx 0 Xxxxxxxxxx
Xxxxxxx Subdivision, Brentwood, Tennessee, as more particularly described in
the
Lease (the “Premises”).
2. Tenant
is
a subsidiary of Guarantor, and will derive substantial economic benefit from
the
execution and delivery of the Lease.
3. Guarantor
acknowledges that Landlord would not enter into the Lease unless this Guaranty
accompanied the execution and delivery of the Lease.
4. Guarantor
hereby acknowledges receipt of a copy of the Lease.
NOW,
THEREFORE, in consideration of the execution and delivery of the Lease and
of
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Guarantor covenants and agrees as follows:
1. DEFINITIONS. Defined
terms used in this Guaranty and not otherwise defined herein have the meanings
assigned to them in the Lease.
2. COVENANTS
OF GUARANTOR.
2.1. Guarantor
absolutely, unconditionally and irrevocably guarantees as
a primary obligor and not merely as a surety following Tenant’s default under
the Lease: (i) the full and prompt payment of all Base Rent and Additional
Rent
and all other rent, sums and charges of every type and nature payable by Tenant
under the Lease, and (ii) the full, timely and complete performance of all
covenants, terms, conditions, obligations and agreements to be performed by
Tenant under the Lease (all of the obligations described in clauses (i) and
(ii), collectively, the “Obligations”). If Tenant defaults under the
Lease, Guarantor will, without notice or demand, promptly pay and perform all
of
the Obligations, and pay to Landlord, when and as due, all Base Rent and
Additional Rent payable by Tenant under the Lease, together with all damages,
costs and expenses to which Landlord is entitled pursuant to any or all of
the
Lease, this Guaranty and applicable Laws.
2.2 Guarantor
agrees with Landlord that (i) any action, suit or proceeding of any kind or
nature whatsoever (an “Action”) commenced by Landlord against Guarantor to
collect Base Rent and Additional Rent and any other rent, sums and charges
due
under the Lease for any month or months shall not prejudice in any way
Landlord’s rights to collect any such amounts due for any subsequent month or
1
months
throughout the Term in any subsequent Action, (ii) Landlord may, at its option,
without prior notice or demand, join Guarantor in any Action against Tenant
in
connection with or based upon either or both of the Lease and any of the
Obligations, (iii) Landlord may seek and obtain recovery against Guarantor
in an
Action against Tenant or in any independent Action against Guarantor without
Landlord first asserting, prosecuting, or exhausting any remedy or claim against
Tenant or against any security of Tenant held by Landlord under the Lease,
and
(iv) Guarantor will be conclusively bound by a judgment entered in any Action
in
favor of Landlord against Tenant, as if Guarantor were a party to such Action,
irrespective of whether or not Guarantor is entered as a party or participates
in such Action.
2.3 Any
default or failure by the Guarantor to perform any of its Obligations under
this
Guaranty shall be deemed an immediate default by Tenant under the
Lease.
3. GUARANTOR’S
OBLIGATIONS UNCONDITIONAL.
3.1 This
Guaranty is an absolute and unconditional guaranty of payment and of
performance, and not of collection, and shall be enforceable against Guarantor
without the necessity of the commencement by Landlord of any Action against
Tenant (but Tenant must be in default under the Lease beyond any applicable
notice and cure periods), and without the necessity of any notice of nonpayment,
nonperformance or nonobservance, or any notice of acceptance of this Guaranty,
or of any other notice or demand to which Guarantor might otherwise be entitled,
all of which Guarantor hereby expressly waives in advance. The
obligations of Guarantor hereunder are independent of, and may exceed, the
obligations of Tenant.
3.2 If
the Lease is renewed, or the Term extended, for any period beyond the Expiration
Date, either pursuant to any option granted under the Lease or otherwise, or
if
Tenant holds over beyond the Expiration Date, the obligations of Guarantor
hereunder shall extend and apply to the full and faithful performance and
observance of all of the Obligations under the Lease accruing during any
renewal, extension or holdover period.
3.3 This
Guaranty is a continuing guarantee and will remain in full force and effect
notwithstanding, and the liability of Guarantor hereunder shall be absolute
and
unconditional irrespective of: (i) any modifications, alterations or amendments
of the Lease (regardless of whether Guarantor consented to or had notice of
same), (ii) any releases or discharges of Tenant other than the full release
and
complete discharge of all of the Obligations, (iii) Landlord’s failure or delay
to assert any claim or demand or to enforce any of its rights against Tenant,
(iv) any extension of time that may be granted by Landlord to Tenant, (v) any
assignment or transfer of all of any part of Tenant’s interest under the Lease
(whether by Tenant, by operation of law, or otherwise), (vi) any subletting,
concession, franchising, licensing or permitting of the Premises, (vii) any
changed or different use of the Premises, (viii) any other dealings or matters
occurring between Landlord and Tenant, (ix) the taking by Landlord of any
additional guarantees, or the receipt by Landlord of any collateral, from other
persons or entities, (x) the release by Landlord of any other guarantor, (xi)
Landlord’s release of any security provided under the Lease, or (xii) Landlord’s
failure to perfect any landlord’s lien or other lien or security interest
available under applicable Laws. Without limiting the foregoing, this
Guaranty shall be applicable to any obligations of Tenant arising in connection
with a termination of the Lease, whether voluntary or
otherwise. Guarantor hereby consents, prospectively, to Landlord’s
taking or entering into any or all of the foregoing actions or omissions. For
purposes of this Guaranty and the obligations and liabilities of Guarantor
hereunder, “Tenant” shall be deemed to include any and all licensees,
franchisees, assignees, subtenants, permittees or others directly or indirectly
operating or conducting a business in or from the Premises and/or the Property,
as fully as if any of the same were the named Tenant under the
Lease.
2
3.4 Guarantor
hereby expressly agrees that the validity of this Guaranty and the obligations
of Guarantor hereunder shall in no way be terminated, affected, diminished
or
impaired by reason of the assertion or the failure to assert by Landlord against
Tenant, of any of the rights or remedies reserved to Landlord pursuant to the
provisions of the Lease or by relief of Tenant from any of Tenant’s obligations
under the Lease or otherwise by (i) the release or discharge of Tenant in any
state or federal creditors’ proceedings, receivership, bankruptcy or other
proceeding; (ii) the impairment, limitation or modification of the liability
of
Tenant or the estate of Tenant in bankruptcy, or of any remedy for the
enforcement of Tenant’s liability under the Lease, resulting from the operation
of any present or future provision of the United States Bankruptcy Code (11
U.S.C. § 101 et seq., as amended), or from other statute, or from the order of
any court; or (iii) the rejection, disaffirmance or other termination of the
Lease in any such proceeding. This Guaranty shall continue to be
effective if at any time the payment of any amount due under the Lease or this
Guaranty is rescinded or must otherwise be returned by Landlord for any reason,
including, without limitation, the insolvency, bankruptcy, liquidation or
reorganization of Tenant, Guarantor or otherwise, all as though such payment
had
not been made, and, in such event, Guarantor shall pay to Landlord an amount
equal to any such payment that has been rescinded or returned.
4. WAIVERS
OF GUARANTOR.
4.1 Without
limitation of the foregoing, Guarantor waives (i) notice of acceptance of this
Guaranty and notice of dishonor, (ii) notice of any actions taken by Landlord
or
Tenant under the Lease or any other agreement or instrument relating thereto,
(iii) notice of any and all defaults by Tenant in the payment of Base Rent
and
Additional Rent or other rent, charges or amounts, or of any other defaults
by
Tenant under the Lease, (iv) all other notices, demands and protests, and all
other formalities of every kind in connection with the enforcement of the
Obligations, omission of or delay in which, but for the provisions of this
Section 4.1, might constitute grounds for relieving Guarantor of its obligations
hereunder, and (v) any requirement that Landlord protect, secure, perfect,
insure or proceed against any security interest or lien, or any property subject
thereto, or exhaust any right or take any action against Tenant or any
collateral.
4.2 GUARANTOR
HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY
ANY PERSON OR ENTITY WITH RESPECT TO ANY MATTER WHATSOEVER ARISING OUT OF OR
IN
ANY WAY CONNECTED WITH: THIS GUARANTY; THE LEASE; ANY LIABILITY OR OBLIGATION
OF
TENANT IN ANY MANNER RELATED TO THE PREMISES AND/OR THE PROPERTY; ANY CLAIM
OF
INJURY OR DAMAGE IN ANY WAY RELATED TO THE LEASE, THE PREMISES AND/OR THE
PROPERTY; ANY ACT OR OMISSION OF TENANT, ITS AGENTS, EMPLOYEES, CONTRACTORS,
SUPPLIERS, SERVANTS, CUSTOMERS, CONCESSIONAIRES, FRANCHISEES, PERMITTEES OR
LICENSEES; OR ANY ASPECT OF THE USE OR OCCUPANCY OF, OR THE CONDUCT OF BUSINESS
IN, ON OR FROM THE PREMISES AND/OR THE PROPERTY. GUARANTOR SHALL NOT
IMPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS OR CLAIMS FOR SET-OFF, RECOUPMENT
OR
DEDUCTION OF RENT IN ANY ACTION BROUGHT BY LANDLORD AGAINST GUARANTOR UNDER
THIS
GUARANTY EXCEPT FOR ANY COMPULSORY COUNTERCLAIMS. GUARANTOR SHALL NOT
BE ENTITLED TO MAKE, AND HEREBY WAIVES, ANY AND ALL DEFENSES AGAINST ANY CLAIM
ASSERTED BY LANDLORD OR IN ANY SUIT OR ACTION INSTITUTED BY LANDLORD TO ENFORCE
THIS GUARANTY OR THE LEASE. IN ADDITION, GUARANTOR HEREBY WAIVES,
BOTH WITH RESPECT TO THE LEASE AND WITH RESPECT TO THIS GUARANTY, ANY AND ALL
RIGHTS WHICH ARE WAIVED BY TENANT UNDER THE LEASE, IN THE SAME MANNER AS IF
ALL
SUCH WAIVERS WERE FULLY RESTATED HEREIN. THE LIABILITY OF GUARANTOR
UNDER THIS GUARANTY IS PRIMARY AND UNCONDITIONAL.
3
5. SUBROGATION. Guarantor
shall not be subrogated, and hereby waives and disclaims any claim or right
against Tenant by way of subrogation or otherwise, to any of the rights of
Landlord under the Lease or otherwise, or in either or both of the Premises
and
the Property, which may arise by any of the provisions of this Guaranty or
by
reason of the performance by Guarantor of any of its Obligations hereunder
until
such time as the obligations have been satisfied. Guarantor shall
look solely to Tenant for any recoupment of any payments made or costs or
expenses incurred by Guarantor pursuant to this Guaranty. If any
amount shall be paid to Guarantor on account of such subrogation rights at
any
time when all of the Obligations shall not have been paid and performed in
full,
Guarantor shall hold such amount in trust for Landlord and shall pay such amount
to Landlord immediately following receipt by Guarantor, to be applied against
the Obligations, whether matured or unmatured, in such order as Landlord may
determine. Guarantor hereby subordinates any liability or indebtedness of Tenant
now or hereafter held by Guarantor to the obligations of Tenant to Landlord
under the Lease.
6. REPRESENTATIONS
AND WARRANTIES OF
GUARANTOR. Guarantor
represents and warrants that:
6.1 Guarantor
is a Delaware corporation; has all requisite power and authority to enter into
and perform its obligations under this Guaranty; and this Guaranty is valid
and
binding upon and enforceable against Guarantor without the requirement of
further action or condition.
6.2 The
execution, delivery and performance by Guarantor of this Guaranty does not
and
will not (i) contravene any applicable Laws or any contractual restriction
binding on or affecting Guarantor or any of its properties, or (ii) result
in or
require the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of its properties.
6.3 There
is no action, suit or proceeding pending or threatened against or otherwise
affecting Guarantor before any court or other governmental authority or any
arbitrator that may materially adversely affect Guarantor’s ability to perform
its obligations under this Guaranty.
6.4 Guarantor’s
principal place of business is set forth in the first paragraph of this
Guaranty.
6.5 Tenant
is a subsidary of Guarantor.
7. NOTICES. Any
consents, notices, demands, requests, approvals or other communications given
under this Guaranty shall be given as provided in the Lease, as
follows:
7.1 if
to Guarantor at Guarantor’s address set forth on the first page of this
Guaranty, Attention: General Counsel; and
7.2 if
to Landlord, at Landlord’s address set forth on the signature page of the Lease
(with a copy to Landlord’s attorney as also set forth on the signature page to
the Lease); or to such other addresses as either Landlord or Guarantor may
designate by notice given to the other in accordance with the provisions of
this
Section 7.2.
8. CONSENT
TO JURISDICTION; WAIVER OF IMMUNITIES. The undersigned hereby (a)
consents and submits to the jurisdiction of the courts of the State of Tennessee
and the federal courts sitting in the State of Tennessee and shall be subject
to
service of process in the State of Tennessee with respect to any dispute there
arising, directly or indirectly, out of this Guaranty, (b) waives any objections
which the undersigned may have to the laying of venue in any such suit, action
or proceeding in either
4
such
court, (c) agrees to join Landlord in any petition for removal to either such
court, and (d) agrees to join Landlord in any petition for removal to either
and
such court. The undersigned hereby acknowledges and agrees that
Landlord may obtain personal jurisdiction and perfect service of process by
any
means now or hereafter permitted by applicable law. Nothing above
shall limit Landlord’s choice of forum for purposes of enforcing this
Guaranty.
9. MISCELLANEOUS.
9.1 Guarantor
further agrees that Landlord may, without notice, assign this Guaranty in whole
or in part to any successor to Landlord’s interest in the Lease. If
Landlord disposes of its interest in the Lease, “Landlord,” as used in this
Guaranty, shall mean Landlord’s successors and assigns. This Guaranty
may not be assigned by Guarantor.
9.2 Guarantor
promises to pay all of Landlord's expenses, including, without limitation,
reasonable attorneys' fees and costs, incurred by Landlord in enforcing the
terms and conditions of either or both of the Lease and this
Guaranty.
9.3 Guarantor
shall, from time to time within ten (10) days after receipt of Landlord’s
request, execute, acknowledge and deliver to Landlord a statement certifying
that this Guaranty is unmodified and in full force and effect (or if there
have
been modifications, that the same is in full force and effect as modified and
stating such modifications). Such certificate may be relied upon by
any prospective purchaser, lessor or lender of all or a portion of the Premises
and/or Property.
9.4 If
any portion of this Guaranty shall be deemed invalid, unenforceable or illegal
for any reason, such invalidity, unenforceability or illegality shall not affect
the balance of this Guaranty, which shall remain in full force and effect to
the
maximum permitted extent.
9.5 The
provisions, covenants and guaranties of this Guaranty shall be binding upon
Guarantor and its heirs, successors, legal representatives and assigns, and
shall inure to the benefit of Landlord and its successors and assigns, and
shall
not be deemed waived or modified unless such waiver or modification is
specifically set forth in writing, executed by Landlord or its successors and
assigns, and delivered to Guarantor.
9.6 Whenever
the words “include”, “includes”, or “including” are used in this Guaranty, they
shall be deemed to be followed by the words “without limitation”, and, whenever
the circumstances or the context requires, the singular shall be construed
as
the plural, the masculine shall be construed as the feminine and/or the neuter
and vice versa. This Guaranty shall be interpreted and enforced
without the aid of any canon, custom or rule of law requiring or suggesting
construction against the party drafting or causing the drafting of the provision
in question.
9.7 Each
of the rights and remedies herein provided are cumulative and not exclusive
of
any rights or remedies provided by law or in the Lease or this
Guaranty.
9.8 The
provisions of this Guaranty shall be governed by and interpreted solely in
accordance with the internal laws of the State of Tennessee, without giving
effect to the principles of conflicts of law.
9.9 The
execution of this Guaranty prior to execution of the Lease shall not invalidate
this Guaranty or lessen the Obligations of Guarantor hereunder.
5
IN
WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day and
year first above written.
|
GUARANTOR:
|
|
|
I-trax,
Inc., a Delaware
corporation
|
|
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
Its:
|
Chairman
|
6
