SUBLEASE
Exhibit
10.1
THIS
SUBLEASE (hereinafter “Sublease”), made this 31st day
of October, by and between ZYNEX MEDICAL, INC., a Colorado corporation
(hereinafter “Subtenant”) and XXXXX/NCTI, INC., a Colorado corporation f/k/a
Versacom, Inc. (hereinafter “Sublandlord”). Subtenant and Sublandlord
are sometimes referred to herein individually as a “party” and collectively as
the “parties.”
WITNESSETH:
WHEREAS,
pursuant to the terms and conditions of that certain lease dated April 24,
2002,
as amended, a true and complete copy of which is attached hereto as Exhibit
A
(the “Prime Lease”), First Industrial Development predecessor-in-interest
to COLORADO NI INDUSTRIAL ONE LLC, (hereinafter “Prime Landlord”),
did lease to Sublandlord, as tenant, certain premises located at 0000 Xxxxx
Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and more particularly described in
the
Prime Lease, on the terms and conditions contained therein; and
WHEREAS,
Sublandlord desires to sublease those premises to Subtenant, and Subtenant
desires to sublease from Sublandlord the premises leased by Sublandlord,
all on
the terms and conditions set forth below;
NOW,
THEREFORE, in and for consideration of the demise and the mutual covenants
set
forth below, the parties do hereby agree as follows:
1. Term. Sublandlord
subleases to Subtenant, and Subtenant hereby subleases from Sublandlord,
for a
term commencing the later to occur of (i) Sublandlord’s delivery of possession,
or (ii) November 1, 2007 (the “Commencement Date”) and terminating on November
29, 2009 (the “Expiration Date”), those certain premises described on Exhibit B
attached hereto and made a part hereof (hereinafter the “Sublease Premises” or
“premises”). The Sublease Premises consist of approximately 16,553
rentable square feet, commonly known as Suite 100.
2. Use. The
Sublease Premises shall be used solely for general office and warehouse
purposes, and no other purpose without the express written consent of
Sublandlord.
3. Rent.
a. Base
Rent. Subject to adjustment as provided herein, Subtenant shall pay
to Sublandlord, or Sublandlord’s designee, Base Rent in monthly installments,
payable in advance (together with the pro-rata portion of the Furniture Purchase
Price as set forth below) on the first day of each month during the term
hereof,
in the amount of:
i. November
1, 2007 – April 30, 2007 – $4.42 per square foot or $6,097.02 per month (NNN)
payable in monthly installments beginning with an initial payment of $6,097.02
for November 2007 payable on or prior to the execution of this
Sublease;
ii. May
1, 2008 – November 30, 2008 - $5.14 per square foot or $7,090.20 per month (NNN)
payable in monthly installments; and
iii. December
1, 2008 – November 29, 2009 - $7.50 per square foot or $10,345.63 per month
(NNN) payable in monthly installments.
at
the
office of Sublandlord or at such other place as Sublandlord may
designate. All rent shall be prorated for any partial months or years
during the term hereof.
b. Adjustments
to Base Rent. Subtenant agrees to use commercially reasonable efforts
to sublease or terminate its lease with respect to that certain 9,857 rentable
square feet of office space located at 0000 X. Xxxxxxxxx Xxx, Xxxxx X-0,
Xxxxxxxxx XX 00000 (the “Current Lease”). Subtenant agrees and
acknowledges that in the event that Subtenant successfully subleases or
terminates the Current Lease, Subtenant shall immediately notify Sublandlord,
and effective as of the date of such sublease or termination the aforementioned
Base Rent shall be increased to the following amounts:
i. November
1, 2007 – April 30, 2007 – $6.85 per square foot or $9,449.00 per month (NNN)
payable in monthly installments;
ii. May
1, 2008 – November 30, 2008 - $6.85 per square foot or $9,449.00 per month (NNN)
payable in monthly installments; and
iii December
1, 2008 – November 29, 2009 - $7.50 per square foot or $10,345.63 per month
(NNN) payable in monthly installments.
c. Triple
Net Lease. Subtenant agrees and acknowledges that the Sublease
Premises are being subleased on a triple net basis, and, in addition to payment
of the above sums, Subtenant shall also be responsible for payment to
Sublandlord of Subtenant’s pro rata share of Building Operating Costs, real
estate taxes and assessments (special or otherwise), as said terms are defined
in the Primary Lease. The monthly estimated Building Operating Costs
are $3.71 per square foot. Subtenant shall also procure and pay
directly all insurance and maintenance expenses arising out of its use of
the
Sublease Premises during the term of this Sublease, including but not limited
to
utilities, janitorial services, maintenance (including procurement of any
HVAC
maintenance contract required under the Prime Lease and payment of all costs
relating to its use of the HVAC system), and any repair or upkeep of the
Sublease Premises. Subtenant shall have no obligation to replace any
item except in case where damage has been caused by Subtenant’s negligence or
willful misconduct.
d. Furniture
and Fixture Purchase. Sublandlord and Subtenant acknowledge and agree
that the Sublease Premises are partially furnished and have an NEC telephone
system, office furniture, systems furniture, security system, storage shelving,
uninterruptible power supply (UPS) system, lunchroom television, computer
room
racking and conference room furniture (collectively, the “Purchased
Furniture”). Sublandlord, in consideration of a purchase price of
Seven Thousand Dollars ($7,000.00) (the “Furniture Purchase Price”), does hereby
sell, assign and transfer unto Subtenant good title to the Purchased Furniture,
free and clear of any and all security interests, claims, liens, pledges,
restrictions, encumbrances, claims and charges of any kind. Subtenant
agrees to pay the Furniture Purchase Price in twenty-five (25) equal monthly
payments of Two Hundred Eighty Dollars ($280.00) which shall be due and payable
on the first day of each month during the term hereof in addition to the
Base Rent set forth above (as adjusted herein). Until all twenty-five
(25) installment payments, and any other amounts due under this Sublease,
have
been fully paid, Sublandlord shall retain title and a security interest in
the
Purchased Furniture (and any and all equipment,
parts, accessories, attachments, additions and other goods, and all replacements
of them, installed in, affixed to or used in connection with the Purchased
Furniture and,
if
Subtenant sells or otherwise disposes of the Purchased Furniture in violation
of
the terms of this agreement, in the proceeds of such sale or
disposition. During the term hereof, Subtenant agrees to maintain the
Purchased Furniture in good working condition and that all repairs
2.
to
Purchased Furniture shall be effected in such manner (both as regards
workmanship and quality of materials) as not to materially diminish the value
of
the Purchased Furniture, reasonable wear and tear
excepted. SUBLANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES
REGARDING THE PURCHASED FURNITURE, AND THE PURCHASED FURNITURE IS SOLD, ASSIGNED
AND TRANSFERRED TO SUBTENANT IN ITS PRESENT CONDITION, AS IS, WHERE
IS.
4. Security
Deposit. Upon mutual execution of this Sublease by Sublandlord
and Subtenant and during the term hereof, Subtenant shall be required to
deposit
with Sublandlord the amount of $10,345.63 as security for Subtenant's faithful
performance of its obligations hereunder (the “Security Deposit”), it being
expressly understood that Security Deposit shall not be considered an advance
payment of rental or a measure of Sublandlord’s damage in case of default by
Subtenant. If Subtenant defaults in any of its obligations, including
but not limited to the payment of rent, Sublandlord may use, apply, or retain
the whole or any part of the Security Deposit to satisfy any sum due to
Sublandlord or to defray any expense or damage reasonably incurred by reason
of
the default. In the event that all or part of the Security Deposit is
so used or applied, Subtenant shall, on demand, pay to Sublandlord a like
sum to
replenish the Security Deposit and Subtenant’s failure to so replenish the
Security Deposit shall be an default hereunder. Sublandlord shall not
be obliged to keep the Security Deposit as a separate
account and may mix said Security Deposit with its own
funds. No interest shall accrue on the Security
Deposit. Provided that Subtenant is not in default of any of its
obligations hereunder and Sublandlord does not, as a direct result of
Subtenant’s occupancy, need to repair any damage or injury, or pay any expense
or liability, Sublandlord shall return the amount of such security deposit
to
Subtenant within sixty (60) days following the expiration or other termination
of this Sublease. The making by Subtenant of such deposit, or the
application thereof by Sublandlord in the manner hereinabove provided, shall
not
constitute nor be construed as a limitation upon the exercise by Sublandlord
of
any other rights or remedies provided to Sublandlord under the terms of this
Lease in the event of Subtenant’s default.
5. Pre-occupancy. Upon
mutual execution hereof, Subtenant shall be given reasonable access to the
premises during business hours in order to allow Subtenant to setup the phone
system and internet access. Such preoccupancy access
shall be free of any Rent or Additional Rent or Building Operating
Costs.
6. Assumption
of Prime Lease Obligations. Except as modified by this Sublease,
all of the terms and provisions of the Prime Lease are incorporated into
and
made a part of this Sublease and the rights and obligations of the parties
under
the Prime Lease are hereby imposed upon the parties hereto with respect to
the
Sublease Premises, Sublandlord being substituted for the “Landlord” in the Prime
Lease, and Subtenant being substituted for the “Tenant” in the Prime Lease,
except as required in Section 8.4 of the Prime Lease. Subtenant shall
not be required to remove or restore Tenant-Owned Alterations or Utility
installations (other than the Purchased Furniture which
shall become the obligations of Subtenant upon full payment in accordance
with
Section 3.d. above), such obligations called for in Section 8.4
shall remain with Sublandlord, “Tenant”, in the Prime Lease. It is
further understood that where reference is made in the Prime Lease to the
“Premises,” the same shall mean the Sublease Premises as defined herein; where
reference is made to the “Commencement Date,” the same shall mean the
Commencement Date as defined herein; and where reference is made to the “Lease,”
the same shall mean this Sublease. Subtenant shall not do or cause to
be done or suffer or permit any act to be done which would or might cause
the
Prime Lease, or the rights of Sublandlord, as lessee or tenant, under the
Prime
Lease, to be endangered, canceled, terminated, forfeited or surrendered,
or
which would or might cause Sublandlord to be in default thereunder or liable
for
any damage, claim or penalty and
3.
Subtenant
indemnifies and holds harmless Sublandlord from any such acts. In the
event of any inconsistency between the terms of this Sublease and the terms
of
the Prime Lease, the terms of this Sublease shall prevail, provided, however,
that Subtenant agrees, as an express inducement for Sublandlord’s executing this
Sublease, that if there is any conflict between the provisions of this Sublease
and the provisions of the Prime Lease which would permit Subtenant to do
or
cause to be done or suffer or permit any act or things to be done which is
prohibited by the Prime Lease, then the provisions of the Prime Lease shall
prevail. Sublandlord shall have all those rights and privileges against
Subtenant, including, without limitation, all those remedies in the event
of
Subtenant’s default, which Prime Landlord has against Sublandlord, as tenant
under the Prime Lease. Sublandlord shall also have such other rights
and privileges against Subtenant to which Sublandlord may be entitled either
at
law or in equity. Any rights reserved by the Prime Landlord under the
Prime Lease may be exercised by either Prime Landlord or Sublandlord with
respect to this Sublease. Sublandlord represents to Subtenant that
the Prime Lease is in full force and effect, and that no default or event
that,
with the passing of time or the giving of notice of both, would constitute
a
default, exists on the part of Sublandlord, or, to Sublandlord’s knowledge, the
Prime Landlord. Sublandlord agrees to maintain the Prime Lease in
full force and effect, except to the extent that any failure to maintain
the
Prime Lease is due to the failure of Subtenant to comply with any of its
obligations under this Sublease. Additionally, Sublandlord shall not
amend or modify the Prime Lease in such a manner as to materially or adversely
affect Subtenant’s use of the Subleased Premises or increase the obligations or
decrease the rights of Subtenant hereunder, without the prior written consent
of
Subtenant, which may be granted or withheld at Subtenant’s sole
discretion. Subtenant shall have all those rights and
privileges against Prime Landlord, including, without limitation, all those
remedies in the event of Prime Landlord’s default, which Sublandlord has against
Prime Landlord, as tenant under the Prime Lease. Subtenant shall also
have such other rights and privileges against Sublandlord and Prime Landlord
to
which Subtenant may be entitled either at law or in equity. Any
rights reserved by the Sublandlord as “Tenant” under the Prime Lease may be
exercised by Subtenant with respect to this Sublease.
7. Indemnification. Subtenant
shall indemnify and hold Sublandlord and Prime Landlord harmless from and
against all losses, costs, damages, expenses and liabilities, including but
not
limited to internal administrative costs, attorneys’ fees, court costs and
penalty, that Sublandlord or Prime Landlord may incur or pay out by reason
of
any injuries to person or damage caused, in whole or in part, by any wrongful,
negligent or willful act or omission of Subtenant, its agents, employees
or
invitees, or by reason of any breach or default under the Prime Lease or
hereunder on Subtenant’s part. Sublandlord agrees to indemnify
Subtenant, and hold it harmless, from and against any and all claims, damages,
losses, expenses and liabilities (including reasonable attorneys’ fees) incurred
as a result of any default by Sublandlord, beyond any applicable cure periods,
under this Sublease or the Prime Lease, arising from the non-performance,
non-observance or non-payment of any of Sublandlord’s obligations under this
Sublease or the Master Lease, provided Subtenant has fully performed all
of its
obligations hereunder. Sublandlord shall not do, nor permit to be
done, any act or thing which is, or with notice or the passage of time would
be,
a default under this Sublease or the Prime Lease.
8. Insurance.
a. Coverage. Subtenant
shall, at all times during the term of this Lease, and at its own cost and
expense procure and continue in force the following insurance
coverage:
i. Bodily
Injury and Property Damage, Liability Insurance with a combined single limit
for
bodily injury and property damage of not less than $2,000,000.
4.
ii. Fire
and Extended Coverage Insurance, including vandalism and malicious mischief
coverage, in an amount equal to the full replacement value of all fixtures,
furniture and improvements installed by or at the expense of
Subtenant.
b. Insurance
Policies. The aforementioned minimum limits of policies shall in
no event limit the liability of Subtenant hereunder. The aforesaid
insurance shall name both Prime Landlord and Sublandlord as an additional
insured. Said insurance shall be with companies having a rating of
not less than A-VII in “Best’s Key Rating Guide.” Subtenant shall
furnish from the insurance companies or cause the insurance companies to
furnish
certificates of coverage. No such policy shall be cancelable or
subject to reduction of coverage or other material modifications or
cancellation except after thirty (30) days’ prior notice in writing to
Sublandlord by the insurer. All such policies shall be written as
primary policies, not contributing with and not in excess of the coverage
which
Sublandlord may carry. Subtenant shall, not more than twenty (20)
days after the expiration of such policies, furnish Sublandlord with
renewals or binders. Subtenant agrees that if Subtenant does not take
out and maintain such insurance, then, upon at least five (5) days’ written
notice, Sublandlord may (but shall not be required to) procure said insurance
on
Subtenant’s behalf and charge Subtenant the premium together with a ten percent
(10%) handling charge, payable upon demand. Subtenant shall have the
right to provide such insurance coverage pursuant to blanket policies obtained
by Subtenant provided such blanket policies expressly afford coverage to
the
Sublease Premises and to Subtenant as required by this Lease.
9. Services. Sublandlord
shall provide Subtenant with any and all maintenance or other services made
available to Sublandlord by Prime Landlord under the Prime Lease, insofar
as the
same are applicable to the Sublease Premises. Sublandlord agrees to
use commercially reasonable efforts to cause Prime Landlord to perform all
the
duties, covenants, agreements and obligations of Prime Landlord under the
Prime
Lease except as stated herein to the contrary. Upon Subtenant’s
request, Sublandlord agrees to immediately notify Prime Landlord of its
non-performance under the Prime Lease and requesting that Prime Landlord
perform
its obligations under the Prime Lease; provided, however, that if Subtenant
commences a lawsuit or other action, Subtenant shall pay all costs and expenses
incurred in connection therewith, and Subtenant shall indemnify Sublandlord
against, and hold Sublandlord harmless from, all costs and expenses incurred
by
Sublandlord in connection therewith to obtain all maintenance or other services
which Prime Landlord is required to provide under the Prime Lease, but
Sublandlord shall not be liable for the failure of Prime Landlord to provide
such services, unless such failure is due to the willful act or neglect of
Sublandlord under the Prime Lease. In addition, Sublandlord shall
have no obligation to render any services to Subtenant or to spend any money
for
the repair or preservation of the Sublease Premises. If services to
the Sublease Premises are stopped or interrupted in such a manner as to
substantially interfere with the normal operation of Subtenant’s business on the
Sublease Premises, Sublandlord, upon the written request and at the reasonable
expense of Subtenant, will exert reasonable efforts to enforce and pursue
the
rights, which Sublandlord may have pursuant to the Prime Lease to rectify
such
service stoppage or failure; however, Sublandlord is not liable for any damages
which may result. Sublandlord covenants to reasonably comply with its
duties and obligations under the Prime Lease so as to keep the same free
from
default and in full force and effect, but this Sublease is subject and
subordinate to the terms and conditions of the Prime Lease and any mortgages
as
provided therein.
10. Consent
of Prime Landlord. This Sublease is subject to the written
consent of the Prime Landlord, which consent shall be evidenced by the Prime
Landlord’s execution of the Consent to Sublease attached hereto as Attachment
A.
5.
11. Binding
Effect. This Sublease shall apply to and bind the respective
successors and assigns of the parties hereto, but this paragraph shall not
be
construed as a consent to any additional assignment or subletting by the
Sublandlord or the Prime Landlord, or a waiver of any rights whatsoever by
the
Prime Landlord.
12. Assignment
or Subletting. This Sublease may not be assigned or sublet by
Subtenant without Sublandlord’s prior written
consent. Notwithstanding anything to the contrary contained in this
Sublease, and provided that Subtenant complies with any restrictions on
assignment or subletting set forth in the Prime Lease, none of (i) an assignment
of this Sublease to a transferee of all or substantially all of the assets
of
Subtenant, (ii) an assignment of this Sublease or sublease of the Sublease
Premises to a transferee which is either (A) the resulting entity of a merger
or
consolidation of Subtenant with another entity or (B) acquiring all or
substantially all of the assets of Subtenant, or (iii) an assignment or
subletting of all or a portion of the Sublease Premises to an affiliate of
Subtenant (an entity which is controlled by, controls, or is under common
control with, Subtenant), shall be deemed an assignment or sublease under
this
Sublease (and thus shall not be subject to Sublandlord's prior consent pursuant
to this section).
13. Consents
and Approvals. In any instance when Sublandlord’s consent or
approval is required under this Sublease, Sublandlord’s refusal to consent to or
approve any matter or thing shall be deemed reasonable and in good faith
if such
consent or approval has not been obtained from Prime Landlord; provided however,
Sublandlord covenants to use reasonable efforts, at the sole cost and expense
of
Subtenant (including, without limitation, internal administrative costs,
attorneys’ fees and expenses), to obtain the consent or approval of Prime
Landlord and will indicate to Prime Landlord in those cases where its approval
is conditioned upon Prime Landlord’s approval that it has no objection
thereto. If such consent of Prime Landlord shall not be required,
Sublandlord shall not unreasonably withhold, condition or delay its consent
to
such matter.
14. Right
to Cure Subtenant’s Defaults and Damages. If Subtenant shall at
any time fail to make any payment or perform any other obligation of Subtenant
hereunder within the applicable cure period, if any, then Sublandlord shall
have
the right, but not the obligation, after five days’ written notice to Subtenant,
or without notice to Subtenant in the case of any emergency, and without
waiving
or releasing Subtenant from any obligations of Subtenant hereunder, to make
such
payment or perform such other obligation of Subtenant in such manner and
to
extent as Sublandlord shall deem necessary, and in exercising any such right,
to
pay any incidental reasonable costs and expenses, employ attorneys, and incur
and pay reasonable attorneys’ fees. Subtenant shall pay to
Sublandlord upon demand all reasonable sums so paid by Sublandlord and all
reasonable incidental costs and expenses of Sublandlord in connection therewith
together with interest thereon at a rate of ten percent (10%) per year or
any
part thereof or the then-maximum rate of interest which may lawfully be
collected from Subtenant, whichever shall be less, from the date of the making
of such expenditures.
15. Brokerage
Fees. Xxxxxx Xxxxxxx of CB Xxxxxxx Xxxxx (“CBRE”) represents
Sublandlord, and Sublandlord recognizes that Xxxxxxx Xxxxxx of Cresa Partners
(“CP”) represents Subtenant pursuant to a separate agreement. In
consideration of the foregoing, Sublandlord hereby agrees to pay CBRE and
CP the
following amounts, respectively:
a. $6,983.30
to CBRE and $13,966.60 to CP, payable upon the parties’ execution of this
Sublease; and
6.
b. an
additional $6,983.30 to CBRE and $13,966.60 to CP, payable on June 1, 2008;
provided that Subtenant has not failed to make any payment or perform any
other
obligation of Subtenant hereunder within the applicable cure
period.
16. Options,
Rights of First Refusal, Etc. If the Prime Lease provides for any
options to lease additional space, rights of first refusal, rights of
contradiction, rights of cancellation, roof rights, or staging rights, such
rights shall not be transferred to Subtenant hereby.
17. No
Recording. Subtenant shall not record this Sublease or a
memorandum hereof. Violation of this provision shall cause an
automatic termination of this Sublease.
18. Notices. Notices
shall be given as provided in the Prime Lease. Sublandlord’s and
Subtenant’s addresses for notices shall be as follows:
Subtenant:
Zynex Medical, Inc.
Attn: Chief Executive Officer
Attn: Chief Financial Officer
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Sublandlord: Xxxxx/NCTI,
Inc.
Attn:
Xxxx Xxxxx
0000
X.
Xxxxxxx Xxx.
Xxxxxxxxxx,
XX 00000
with
a
copy to: Xxxxx
International, Ltd.
Attn:
General Counsel
0000
X.
Xxxxxxx Xxx.
Xxxxxxxxxx,
XX 00000
19. Default
Under Prime Lease. If Sublandlord is in default with respect to
the terms and conditions of the Prime Lease, Prime Landlord may give notice
of
Sublandlord's default to Subtenant and, if Prime Landlord elects, in its
sole
discretion, may require Subtenant to attorn to Prime Landlord and thereafter
all
payments hereunder shall be paid directly to Prime Landlord. In no
event shall Subtenant be liable to Sublandlord as a result of Subtenant’s
compliance with any notice provided by Prime Landlord hereunder.
20. Acceptance
of Sublease Premises. Sublandlord warrants that, to its knowledge
(i) the plumbing, electrical, gas, HVAC and other mechanical systems servicing
the Sublease Premises are in good working condition and order on the
Commencement Date, (ii) the Sublease Premises are free of Hazardous Substances,
and (iii) the Sublease Premises are in material compliance with all existing
laws, codes, regulations and ordinances of any governmental
authorities. Sublandlord makes no other warranties, express or
implied, as to the fitness (including fitness for any particular purpose)
or
condition of the Sublease Premises or the Purchased Furniture, including
but not
limited to the integrity of the existing cabling and other equipment located
within the Sublease Premises. Subtenant, at its sole cost and
expense, shall be responsible for all costs and expenses incurred in connection
with procuring for the Sublet Premises telephone and data connectivity services,
programming of the security system, and electrical, gas and other
utilities.
7.
21. Governing
Law. This Sublease shall be governed by and construed in
accordance with the laws of the State of Colorado.
22. Entire
Agreement. This Sublease, including all attachments and exhibits
hereto, contains the entire agreement between the parties and no agreement
shall
be effective to change, modify or terminate this Sublease in whole or in
part
unless such agreement is in writing and duly signed by the parties
hereto.
23. Definitions. Any
term that is capitalized but not defined in this Sublease that is capitalized
and defined in the Prime Lease shall have the same meaning for purposes of
this
Sublease as it has for purposes of the Prime Lease.
24. Waiver. One
or more waivers of any covenant or condition by Sublandlord shall not be
construed as a waiver of a subsequent breach of the same or any other covenant
or condition, and the consent or approval by Sublandlord to or of any act
by
Subtenant requiring Sublandlord’s consent or approval shall not be construed to
waive or render unnecessary Sublandlord’s consent or approval to or of any
subsequent similar act by Subtenant.
25. Severability. If
any term or provision of this Sublease or any application thereof shall be
invalid or unenforceable, the remainder of this Sublease and any other
application of such term or provision shall not be affected
thereby.
26. Access. Subtenant
shall permit Sublandlord to have access to the Sublease Premises during
Subtenant’s business hours during the term hereof, after reasonable advance
notice, for the purpose of inspection the same and, to the extent Subtenant
fails to perform such obligations after expiration of any applicable notice
and
cure period, for the purpose of performing Sublandlord’s obligations under the
Prime Lease.
27. Interpretation. If
any provision of this Sublease or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Sublease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. The table of
contents, captions, headings and titles, if any, in this Sublease are solely
for
convenience of reference and shall not affect its
interpretation. This Sublease shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Sublease to be drafted. Each covenant, agreement, obligation or
other provision of this Sublease shall be deemed and construed as a separate
and
independent covenant of the party bound by, undertaking or making same, not
dependent on any other provision of this Sublease unless otherwise expressly
provided. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the parties may require. The word “person” as used in this
Sublease shall mean a natural person or persons, a partnership, a corporation
or
any other form of business or legal association or entity. This
Sublease may be executed in counterparts or with counterpart signature
pages.
28. No
Offer. The submission of this Sublease shall not be deemed to be
an offer, an acceptance, or a reservation of the Sublease Premises; and
Sublandlord shall not be bound hereby until Sublandlord has delivered to
Subtenant a fully executed copy of this Sublease, signed by both of the parties
on the last page of this Sublease in the spaces herein
provided. Until such delivery, Sublandlord reserves the right to
exhibit and lease the Sublease Premises to other prospective
tenants.
8.
29. Notice
of Default. Sublandlord hereby represents that at the execution
of this Sublease no noncured notice of default has been issued by Prime Landlord
and that Sublandlord has no knowledge of any current condition which would
constitute such a default of the Prime Lease.
30. Consents. In
the event that Subtenant desires to take any action that will require the
consent of Prime Landlord, Sublandlord shall use commercially reasonable
efforts
to obtain such consent, provided that Sublandlord shall not be liable in
any way
for the failure of Prime Landlord to so consent.
31. Attorneys’
Fees. In the event that either Sublandlord or Subtenant should
bring suit because of the breach of any provision of this Sublease or for
any
other relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall
be
paid by the other party.
32. Parking. Subtenant
shall be entitled to use, at no additional cost to Subtenant, the fifty-one
(51)
vehicle parking spaces granted to Sublandlord under the Prime
Lease.
33. Signage. Subtenant,
at its sole cost and expense, shall be entitled to install standard suite
entry
and monument signage; provided, that all such signage complies with all terms
and conditions (including any notice and approval requirements) set forth
in any
of the Prime Lease, the covenants, conditions and restrictions applicable
to the
High Pointe Business Center (if any), and local and state zoning
codes.
34. Access. Sublandlord,
at Sublandlord’s cost, shall provide Subtenant with a minimum of three (3)
security access cards at the time of the pre-occupancy period specified in
Section 5, supra; thereafter, upon delivery of the Sublease Premises,
Sublandlord shall provide no fewer than an additional thirty-two (32) security
access cards. Sublandlord shall be entitled to keep two (2) security
access cards, and Subtenant shall ensure that such security access cards
remain
operable at all times throughout the term hereof.
35. Subordination. The
sublease shall be subject and subordinate at all times to the Prime Lease
and to
all of the covenants, agreements, terms, provisions and conditions of the
Prime
Lease.
[SIGNATURES
ON THE FOLLOWING PAGE]
9.
IN
WITNESS WHEREOF, The parties hereto have executed this instrument on the
date
first above written.
SUBLANDLORD: SUBTENANT:
Xxxxx/NCTI,
Inc. Zynex
Medical, Inc.
/s/ Xxxxxx Xxxxxxxxx
By:
I
cannot make out the
signature By:
Xxxxxx Xxxxxxxxx
Title:
Vice
President
Title: President
Date:
11/2/2007
Date: 10-31-2007
10.
ATTACHMENT
A
FORM
OF
CONSENT TO SUBLEASE
Colorado
NI Industrial One LLC., a Delaware corporation, Landlord under the Prime
Lease,
hereby consents to the foregoing Sublease, dated ______, 2007 by and between
Xxxxx/NCTI, Inc. (f/k/a Versacom, Inc.), as Sublandlord, and Zynex Medical,
Inc., as Subtenant, relating to consist of approximately 16,553 square feet
of
net rentable space, commonly known as Suite 100 located at 0000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, XX 00000. Landlord’s consent hereunder is
expressly conditioned upon Sublandlord’s continuing responsibility for the full
performance of all terms and conditions of the Prime Lease. Neither
the giving of this Consent nor anything contained in the Sublease shall serve
to
modify the Prime Lease in any way.
LANDLORD
Colorado
NI Industrial One LLC
By:
Its:
Date:
