ex10-3.htm


    Exhibit
      10.3

    
 

    GUARANTY
      OF LEASE

    


    GUARANTY
      OF LEASE (this “Guaranty”) made as of August 9, 2007, by  I-trax,
      Inc., a Delaware corporation, with an address at  4 Hillman Drive,
      Suite 130, Chadds Ford, PA 19317 (“Guarantor”), to First Industrial Investment, Inc., a Maryland corporation, having an
      office at 311 South
      Wacker Drive, Suite 4000, Chicago, Illinois 60606, 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 Burton Hills,40
      Burton Hills Boulevard,
      Nashville, TN 37215 (“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 Lot 4 and Lot 5 Creekstone
      Commons 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/
                  Frank A. Martin

              
	
                Name:

              	
                Frank
                  A. Martin

              
	
                Its:

              	
                Chairman

              


      

       

       

      6