ABSOLUTE UNCONDITIONAL LEASE GUARANTY
Exhibit 10.2
ABSOLUTE UNCONDITIONAL LEASE
GUARANTY
As a special inducement to Spiral Lone
Tree, LLC, as Colorado limited liability company, as Landlord, to enter into
that certain “Premises Lease, Park Meadow Corporate Center IV, 0000 Xxxx Xxxxxxx
Xxxxx, Xxxx Xxxx, XX 00000 dated November 12, 2009, (the “Lease") with Zynex
Medical, Inc., a Colorado corporation as Tenant, concerning Premises located at
0000 Xxxx Xxxxxxx Xxxxx, Xxxx Xxxx, XX 00000, and in consideration of
Guarantor’s interest in the Lease, the undersigned Guarantor, Zynex, Inc., a
Nevada corporation duly authorized to conduct business in Colorado “Guarantor”),
whose address is 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and
whose telephone number and email address are (000) 000-0000, and xxxxxxxxxx@xxxxxxxx.xxx does
hereby absolutely, unconditionally and irrevocably covenant and agree with
Landlord as follows:
1. Guarantor
hereby guaranties to Landlord the payment by Tenant of all rent and other sums
due to Landlord from Tenant and the full performance and observance by Tenant of
all covenants and conditions contained in the Lease, and undertakes that in case
of default in such payment or in the performance or observance of such covenants
and conditions, Guarantor will pay upon demand all sums due under the Lease and
perform all covenants, agreements and undertakings of the Tenant pursuant to the
Lease.
2. Landlord
shall not be first required to enforce against Tenant or any other person any
liability, obligation or duty guarantied before seeking enforcement against the
Guarantor.
3. Landlord
may bring suit against Guarantor enforce any liability, obligation or duty
guaranteed without joinder of Tenant or any other person.
|
|
4.
|
The
liability of the Guarantor shall not be affected by reason
of:
|
a. Landlord's
delay, waiver, forbearance or neglect in enforcing any covenant against Tenant
or Guarantor;
|
|
b.
|
Landlord's
failure to notify Guarantor of any default by
Tenant;
|
c. Any
amendment, variation, extension or renewal of the Lease agreed to by Landlord
and Tenant whether with or without the notice to or knowledge of
Guarantor;
d. Any
assignment or termination of the Lease or any subleasing or abandonment by
Tenant of all or part of the leased Premises;
e. Any
other security which Landlord may now or hereafter possess or obtain with
respect to the Lease, or the surrender or release by Landlord of any portion
thereof; or,
f. Any
termination of the Lease, to the extent that Tenant thereafter continues to be
liable to Landlord.
5. Miscellaneous
Provisions.
a. Authority. Guarantor
represents and warrants to Landlord that the party executing this Guaranty on
Guarantor’s behalf has been duly authorized by all necessary corporate action to
execute this Guaranty and bind Guarantor to its obligations under the
Guaranty.
b. Governing
Law. This Guaranty shall be governed by and construed under
the laws of the state of Colorado without giving effect to any conflict of laws
that would require application of the laws of any other
jurisdiction.
c. Venue. Venue for any
court proceeding brought to enforce the terms of this Agreement shall be proper
in only in the courts located in Arapahoe County or Denver County,
Colorado.
d. Succession. This
Guaranty shall be binding upon Guarantor, its successors, assigns and legal
representatives, and shall inure to the benefit of the Landlord, its successors,
assigns and legal representatives
a. Entireties. This
Guaranty constitutes the entire agreement between the parties and supersedes and
replaced any and all prior oral or written agreements or understandings between
the parties concerning its subject matter. No modification of this
Agreement shall be binding unless in writing and signed by both
parties.
b. Severability. If
any provision of this Guaranty is found to be illegal, or unenforceable for any
reason whatsoever, the Guaranty shall be interpreted and construed without
reference to such provision, and the balance of the Guaranty shall remain in
full force and effect.
c. Remedies - Attorneys'
Fees. Guarantor agrees to pay any and all costs, including but
not limited to attorneys’ fees incurred by Landlord in any action by Landlord
against Guarantor or Tenant to enforce the terms of the Lease or this
Guaranty.
d. Paragraph
Headings. The paragraph headings are inserted in this Guaranty
for convenience only and are not intended to affect the terms of this
Agreement.
e. Consideration. Guarantor
acknowledges and agrees that its interest in the Lease is good and sufficient
consideration for its obligations under this Guaranty.
2
f. Cooperation. Guarantor
agrees to execute and deliver to Landlord such further instruments as Landlord
reasonably may reasonably request to effectuate the intent of this
Guaranty.
g. Notice. All
notices and other communications between the parties concerning this Guaranty
shall be in writing and telecopied, sent by confirmed electronic transmission,
delivered by overnight courier or by hand to the parties at the addresses set
forth above.
h. Negotiated
Provisions. Guarantor acknowledges and agrees that each and
every provision of this Guaranty has been independently, separately and freely
negotiated as if this Guaranty were drafted by both
parties. Guarantor, therefore, waives any statutory or common law
presumption which would serve to have this document construed in its favor or
against Landlord.
i. Counterparts; Telecopy
Execution. This Guaranty may be executed in counterparts each
of which, when taken together, shall constitute one original
document. The execution of this Guaranty may be evidenced by the
transmission of telecopied or electronic signatures, which shall the same effect
as original signatures.
GUARANTOR
ZYNEX,
INC., a Nevada corporation
By: /s/ Xxxxxx
Xxxxxxxxx
Xxxxxx
Xxxxxxxxx, President
November
12, 2009
(Acknowledgement
by Guarantor and Acceptance by Landlord on Next Page)
3
Acknowledgement
by Guarantor and Acceptance by Landlord
re: Premises
Lease, 0000 Xxxx Xxxxxxx Xxxxx, Xxxx Xxxx, XX 00000
STATE OF
COLORADO
)
) ss.
COUNTY OF
___________
)
Subscribed, acknowledged and sworn to
before me this 12th day of
November, 2009, by Xxxxxx Xxxxxxxxx as President of Zynex, Inc., a Nevada
corporation.
WITNESS my hand and official
seal.
My Commission Expires:
______________
______________________________Notary Public
GUARANTY
ACCEPTED BY LANDLORD
SPIRAL
LONE TREE, LLC, a Colorado limited liability company
By: Spiral Colorado, LLC,
its manager
By: Spiral Colorado, Inc.,
its manager
By: /s/ Xxxxxxxx X.
Xxxxxx
Xxxxxxxx X. Xxxxxx,
President
Date: November 12,
2009
4
