Exhibit
10.5


 


MASTER
FACILITY LICENSE AGREEMENT


 


This
Master Facility License Agreement (this “Agreement”) is made and entered into as of this 9th day
of August, 2018 (the “Effective Date”) between Fitness International, LLC, a California limited liability
company, on its own behalf and on behalf of its wholly-owned affiliate, Fitness & Sports Clubs, LLC, a Delaware limited liability
company (together, “LICENSOR”), and Drywave Technologies, USA, Inc., a Delaware corporation, on its own behalf
and on behalf of its wholly-owned subsidiary Massagewave, Inc., a Colorado corporation (together, “LICENSEE”).
LICENSOR and LICENSEE are each sometimes referred to in this Agreement as a (“Party”) and collectively
as the (“Parties”).


 


RECITALS


 


A.
LICENSOR is engaged in the business of providing health and fitness facilities and services to individuals who have executed health
and fitness club membership agreements with LICENSOR (as determined solely by LICENSOR, “Members”);


 


B.
LICENSEE is engaged in the business of providing the SolaJet® deep tissue penetration, touchless, massage bed, which produces
therapeutic heat and a flushing body “wave” that combines three therapies in one, and LICENSEE desires areas within
LICENSOR’ s Facilities (as defined in Paragraph 1.1) to provide such services; and


 


C.
LICENSOR and LICENSEE are desirous of entering into this Agreement, pursuant to which LICENSEE will provide certain services as
provided for in this Agreement at the LICENSOR Facilities designated herein, subject to all of the terms, provisions and conditions
below.


 


NOW,
THEREFORE, in consideration of the recitals set forth above and the mutual covenants contained herein, LICENSOR and LICENSEE agree
as follows:


 


1.
License.


 


1.1.
Grant of License. Upon the terms, provisions, and conditions set forth herein, LICENSOR hereby grants to LICENSEE,
with respect to each facility identified on Exhibit A hereto (each, a “Facility” and collectively, the
“Facilities”), a non-transferable license to occupy and use specified areas of space designated by LICENSOR
(individually, a “Space” and collectively, the “Spaces”) for the sole purpose of providing
the Services (as defined in Paragraph 8.1), provided that: (a) LICENSOR may in the future open other facilities and close Facilities
from time to time in its sole and absolute discretion; and (b) LICENSOR shall designate and have final approval rights over the
locations of the Spaces within the Facilities. There shall be no minimum or maximum number of Facilities covered by this Agreement.
The Services shall be provided through the use of one or more hydro massage beds (“SolaJet Beds”) per Space,
each allowing one Customer (as defined below) at a time to lay thereon and receive massage services via pressurized water jets.
For the avoidance of doubt, (i) this Agreement grants separate Licenses for each Facility listed on Exhibit A, (ii) the
Parties shall execute a Location Memorandum Agreement (each, an “LMA”) in substantially the form set forth as Exhibit
A-1 for each such License, and (iii) the Parties may from time to time license additional LICENSOR facilities by executing
an LMA for each such Facility which, upon such execution, shall cause Exhibit A to be automatically amended to include
such Facility thereon. Each Location Memorandum Agreement shall provide the following: (a) LICENSOR Facility number and physical
address; (b) the Grant Date (as defined below) of the License; (c) the Commencement Date (as defined below) of the License; (d)
the square footage of the Space within the applicable Facility; and (e) the number of SolaJet Beds in the Facility’s Space.
If LICENSOR closes any Facility for which it granted a license to LICENSEE hereunder, LICENSOR shall provide prompt notice to
LICENSEE of such closure, but not less than ten (10) days prior thereto. Except as expressly provided herein, the LICENSEE Parties
(as defined in Paragraph 13.1) who are not also Members shall not have any right to access or use LICENSOR’ s fitness equipment
or any other facilities or services in the Facilities (including, without limitation, the Facilities’ locker rooms, showers,
group fitness classes, basketball courts, racquetball courts, lobby chairs, Kids Klubs, Kids Klub restrooms, pools, and spas);
provided, however, that LICENSEE’s employees and Customers may access the Facilities’ locker rooms solely for the
limited purpose of using the restrooms therein (and not for changing or storing clothes or other uses), and LICENSEE shall inform
the LICENSEE Parties of these restrictions on use.


 




    	 



     


    

 


1.2.
No Tenancy Created. LICENSEE specifically covenants and agrees, for LICENSOR’s benefit, and as a material
condition to this Agreement, that neither this Agreement nor any of LICENSEE’ s rights in connection herewith shall constitute
a lease, and LICENSEE shall not bring any action against LICENSOR or interpose any defense against LICENSOR based upon the theory
that this Agreement constitutes a lease; and LICENSEE expressly waives any substantive or procedural rights that LICENSEE may
have that are predicated upon the rights of a tenant of real property. Notwithstanding the provisions of the foregoing sentence
to the contrary, should this Agreement be deemed by any court, governmental authority, or quasi-governmental authority to constitute
a lease, in such event LICENSOR shall have all of the rights and remedies of a landlord and LICENSEE shall have all of the rights
and remedies of a tenant of real property available pursuant to applicable law.


 


2.
Spaces. Upon the terms, provisions and conditions set forth herein, LICENSEE shall have the right to operate at
each Facility licensed hereunder within such Facility’s Space in order to provide the Services. LICENSEE acknowledges and
agrees that it accepts each Space in an AS IS condition and with all faults including, without limitation, vibrations, odors,
and noise from LICENSOR’ s operations. No representations or warranties are made by LICENSOR that any Space meets current
federal, state, county and municipal statutes, laws, codes, rules, orders, requirements, ordinances and regulations governing
the operation of LICENSEE’s business or its provision of Services in the applicable Facility. After the Commencement Date
for each License, any and all upgrades to any Facility’s Space will be at LICENSEE’s sole cost and expense and subject
to LICENSOR’s prior written consent.


 




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3.
Improvements. LICENSEE shall be responsible for constructing all improvements (the “Improvements”) to
each Space including, without limitation, walls and/or barriers to create a privacy room surrounding each SolaJet Bed as well
as the installation of any additional utility outlets. Prior to commencing construction of any Improvements, LICENSEE shall submit
to LICENSOR for its approval all plans and specifications related to the Improvements. For the avoidance of doubt, LICENSEE shall
not begin construction at any Facility without receiving LICENSOR’s approval of the construction plans and specifications,
including approval over LICENSEE’s choice of contractor. If any licenses or permits are required by federal, state, or local
law with respect to LICENSEE’s proposed operation of business in the Spaces at the Facilities (including, without limitation,
construction permits and building permits), LICENSEE shall obtain all such licenses and permits prior to the commencement of construction.
LICENSEE shall be solely responsible for any and all costs related to the Improvements as well as all FF&E within each Space.
“FF&E” shall mean any furniture, fixture, or equipment that is not permanently attached to the building,
including, but not limited to: the SolaJet Beds, seating, desks and chairs; storage and display shelves; telephone systems, phones,
accessories and cabling; televisions/monitors, video equipment and connections; computer(s), server(s) with back-up systems, terminals
and screens; functional and decorative art, framed art, art objects, mirrors and accessories; security system; signage; and other
equipment and incidentals that are necessary for the operation of LICENSEE’s business.


 


4.
Term. Unless terminated earlier as provided in this Agreement, the initial term of this Agreement and the licenses granted
hereunder shall begin as of the Effective Date and shall continue for a period of ninety (90) days (the “Initial Term”).
After the expiration of the Initial Term, this Agreement will renew on a month-to-month basis, unless notice of termination
is provided by either Party to the other Party at least thirty (30) days prior to the expiration of the Initial Term. The Initial
Term plus any renewals shall be considered the (“Term”). For the avoidance of doubt, no license for any Facility shall
exceed the balance of the term of LICENSOR’s Facility lease for the applicable premises. For the further avoidance of doubt,
upon the expiration of the Term (or upon the earlier termination of this Agreement), the Licenses granted hereunder at all of
the Facilities shall terminate.


 


5.
Commencement Date. The (“Commencement Date”) for each License shall be the earlier of: (a) the Commencement
Date set forth on the LMA for the License, or (b) the date on which LICENSEE opens for business at the applicable Facility. LICENSEE
shall promptly provide written notice of the Commencement Date to LICENSOR.


 


6.
 Intentionally Omitted.


  




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7.
Fees and Payments.


 


7.1. Monthly
License Payment. Commencing on the Commencement date of the first License granted hereunder and for a period of six (6)
months thereafter (the “Initial Period”), LICENSEE shall pay to LICENSOR, for the right to access the Spaces
to provide the Services at the Facilities to LICENSEE’s Customers, a recurring monthly payment (each such monthly payment,
a “Monthly License Payment”) in an amount equal to: (a) five hundred dollars ($500); multiplied by (b) the
number of SolaJet Beds installed at the Facilities. After the expiration of the Initial Period, the Monthly License Payment shall
be adjusted to equal: (a) five hundred dollars ($500); multiplied by (b) the number of SolaJet Beds installed at the Facilities;
plus (c) two percent (2%) of LICENSEE’s Gross Revenue (as defined below) generated under each License during the
immediately preceding calendar month. After the expiration of the Initial Period, LICENSEE shall also deliver to LICENSOR, on
a monthly basis, a true, complete, and correct detailed written accounting showing LICENSEE’s calculation of the Gross Revenue
generated under the applicable License for the month at issue (each, a “Written Accounting”. For the avoidance
of doubt, the Monthly License Payment and Written Accounting shall each be provided in arrears. Each Written Accounting shall
be due no later than ten (10) days after the end of every calendar month for the immediately preceding month, and each
Monthly License Payment shall be due no later than fifteen (15) days after the end of every calendar month for the immediately
preceding month. “Gross Revenue” shall mean the total revenue, of any kind and/or nature, resulting from any
goods or products sold or services provided at a Facility by LICENSEE, regardless of where or how such services, goods and products
are purchased or paid; provided, however, that Gross Revenue will not include sums representing taxes collected directly from
Customers by LICENSEE or any sales, value added or other tax, excise or duty charged to Customers which is levied or assessed
against LICENSEE. Gross Revenue shall be calculated on a cash basis. The Monthly License Payment shall automatically be updated
in the event that the number of SolaJet Beds at any Facility changes. For the avoidance of doubt, in the event that this Agreement
terminates prior to the expiration of the Initial Period (e.g., if either Party elects not to renew this Agreement beyond the
Initial Term), LICENSEE shall only be obligated to provide payments to LICENSOR that have accrued up to and including the date
of termination.

 


7.2.
Security Deposit. With respect to each License granted hereunder, LICENSEE shall, within three (3) business days
of such License’s Grant Date, deposit with LICENSOR an amount equal to One Thousand Dollars ($1,000) as a security deposit.
The Parties both agree that this amount shall continue to be retained by LICENSOR as security for LICENSEE’s faithful performance
of LICENSEE’s obligations under this Agreement. If LICENSEE fails to pay any payment or other charges due hereunder with
respect to such License, or otherwise defaults with respect to any provision of this Agreement governing such License, LICENSOR
may use, apply or retain all or any portion of said deposit: (a) for the payment of any monthly payment (including the Monthly
License Payment) due with respect to such License, (b) for the payment of any other sum to which LICENSOR may become obligated
by reason of LICENSEE’s default with respect to such License, or (c) to compensate LICENSOR for any loss or damage which
LICENSOR may suffer thereby. If LICENSOR so uses or applies all or any portion of said deposit, LICENSEE shall, within five (5)
business days after written demand therefore, deposit cash with LICENSOR in an amount sufficient to restore said deposit to the
full amount then required of LICENSEE. LICENSOR shall not be required to keep any such security deposit separate from its general
accounts. With respect to each License granted hereunder, if LICENSEE performs all of LICENSEE’s obligations with respect
to such License, said deposit, or so much thereof as has not heretofore been applied by LICENSOR, shall be returned, without payment
of interest or other increment for its use, to LICENSEE (or, at LICENSOR’ s option, to the last assignee, if any, of LICENSEE’s
interest hereunder) within thirty (30) business days after the expiration of the Term and after LICENSEE has vacated the Spaces
and the Facilities. No trust relationship is created herein between LICENSOR and LICENSEE with respect to said security deposit.


 




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7.3.
Intentionally Omitted.


 


7.4.
Intentionally Omitted.


 


7.5.
Required Capital Expenditures. LICENSEE shall not be responsible for any capital repairs, replacements or improvements
to a Facility that would be considered a “capital expenditure” under generally accepted accounting principles (a “Capital
Expenditure”) unless: (a) LICENSOR is required to make such Capital Expenditure as a direct result of or in order to
comply with any applicable laws (including, without limitation, compliance with the ADA) and such Capital Expenditure is for capital
repairs, replacements or improvements to any portion of a Facility of which a Space is a part (in which case LICENSEE shall be
responsible for LICENSEE’s Share (as defined below) of the costs of such Capital Expenditure); or (b) such Capital Expenditure
is required as the result of LICENSEE’s specific use of a Space at a Facility, or is for capital repairs, replacements or
improvements to a Space only (in which case LICENSEE shall be wholly responsible for the costs of such Capital Expenditure). For
the avoidance of doubt, if the required Capital Expenditure is limited to a Space only, LICENSEE shall be responsible for 100%
of the Capital Expenditure. Following LICENSOR’s tender of possession of a Space to LICENSEE, in the event LICENSEE is responsible,
in whole or part, for the costs of a Capital Expenditure under this Agreement, LICENSOR shall provide LICENSEE with thirty (30)
days’ prior written notice that LICENSEE shall be obligated to pay such costs within thirty (30) days after LICENSEE’s
receipt of an invoice therefor. As used in this Agreement, “LICENSEE’s Share” shall be determined by
using a fraction, the numerator of which is the floor area of the applicable Space and the denominator of which is the floor area
of the applicable Facility; provided, however, that if such Capital Expenditure relates solely to the Space, then LICENSEE’s
Share shall equal one hundred percent (100%). LICENSEE’s Share of Capital Expenditures shall be paid without any deductions,
set-offs or counterclaims, and failure to pay such sum shall carry the same consequences as LICENSEE’s failure to pay Monthly
License Payments when due


 


7.6.
Taxes. In addition to the sums above, LICENSEE will pay all applicable taxes referenced in Paragraph 24, all applicable
state and local sales, use, privilege and excise taxes, all taxes on license fees and rental payments (if any) and all similar
taxes arising from the Services, or based upon LICENSEE’s activities under this Agreement, prior to delinquency (excluding
any taxes based upon LICENSOR’s net taxable income or business activities in the Facilities and any real estate taxes or
other taxes or assessments for which LICENSOR is liable with respect to the Facilities). If sales taxes are due on LICENSEE’s
required payments to LICENSOR hereunder, such taxes shall be paid by LICENSEE concurrently with the other payments due under this
Agreement (e.g., with the monthly payments of each Monthly License Payment). If any applicable state or local sales, use, privilege
or excise taxes relating to the LICENSEE’s business income are due, then LICENSEE will report such taxes directly to the
applicable taxing authority.


 


7.7.
Right to Audit. No more frequently than once per calendar quarter during the Term, and no more than once in the two
(2) year period following the end of the Term, LICENSOR shall have the right to review or to appoint an independent third-party
auditor, at LICENSOR’ s sole cost and expense (except as set forth below), to audit the books, records and other files and
materials of LICENSEE (including, without limitation, accounting records, written financial policies and procedures, receipts,
invoices, ledgers, cancelled checks, deposit slips, bank statements, journals, fmancial statements, filings with governmental
agencies and filings or submissions made in connection with loan applications) to confirm LICENSEE’s calculation of the
fees due to LICENSOR under this Agreement (including, without limitation, the Monthly License Payments), which materials LICENSEE
shall maintain during the Term and for a period of three (3) years thereafter. LICENSOR shall keep confidential and, if applicable,
cause its independent third-party auditor to keep confidential, any such materials and information reviewed, including the results
of its review of such materials, except as required by law, legal proceeding or to enforce its rights under this Agreement. LICENSOR
may exercise such right of audit during normal business hours upon three (3) business days’ prior written notice to LICENSEE.
LICENSEE shall cooperate with LICENSOR and its auditor and shall make its books, records and other materials referenced in this
Paragraph available in the performance of any audit. If an audit identifies underpayment by LICENSEE to LICENSOR in excess of
one-half of one percent (.5%) of the total amount of any Monthly License Payment or any other payment subject to such audit, then:
(a) LICENSEE shall reimburse LICENSOR within five (5) days of notification thereof in an amount equal to such underpayment; (b)
LICENSEE shall reimburse LICENSOR for the total costs of the audit; and (c) following such event, the frequency limits for the
audits in the first sentence of this Paragraph shall be eliminated, and LICENSOR (or an independent third-party auditor) may conduct
audits at any reasonable time, upon prior notice to LICENSEE. If an audit discovers substantive findings related to fraud or misrepresentation
on the part of LICENSEE, or an underpayment to LICENSOR in excess of five percent (5%) of the total amount of Monthly License
Payments subject to such audit, then in addition to the remedies in the previous sentence, LICENSOR may immediately terminate
this Agreement and pursue any other remedies available to it hereunder or in law or equity


 




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7.8. Payments.
All payments made pursuant to this Agreement shall be made in lawful money of the United States of America to FITNESS
INTERNATIONAL, LLC, 3161 Michelson Drive, Suite 600, Irvine California 92612, Attention: Licensing Department, or to such
other persons or at such other places as LICENSOR may designate in writing to LICENSEE. Payments of the Monthly License
Payments must be made by Electronic Funds Transfer (“EFT”), as authorized in Exhibit B.


 


7.9.
Miscellaneous. Failure to provide a Written Accounting shall not relieve LICENSEE of its obligation to make any
payments hereunder. Given that the Monthly License Payment and Written Accounting shall each be provided in arrears, upon the
termination or expiration of this Agreement and/or an individual License for any reason, a final Monthly License Payment and final
Written Accounting for the applicable License(s) will be due after the date of such termination, but unless otherwise provided
in this Agreement, no further Monthly License Payments or Written Accountings will be due with respect to such terminated or expired
License(s). Except as may be expressly permitted herein, all amounts owed to LICENSOR shall be paid to LICENSOR without offset
or deduction. No amounts paid to LICENSOR will be refunded, in whole or in part, upon any termination of this Agreement or at
any other time or under any other circumstances whatsoever, except as expressly provided in this Agreement. Monthly License Payments
that are due for any period of the Term which is less than one (1) month shall be prorated based upon the actual amount of days
of the calendar month involved. The Parties agree and acknowledge that all fees, payments, and deposit amounts set forth in this
Paragraph 7 reflect fair market value


 


8.
Permitted and Prohibited Uses.


 


8.1.
Permitted Uses. Only during such times that the Facilities are open for business, and within such times, only during
the Business Hours, LICENSEE shall be limited to providing to the Customers the services expressly set forth on Exhibit C
(the “Services”) within the Spaces only.


 




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8.2.
Prohibited Uses. Notwithstanding anything to the contrary herein, LICENSEE is expressly prohibited from offering,
advertising, selling, promoting, providing or otherwise engaging in any of the following services and activities at the Facilities:
(a) on-site retail sales of goods, (b) any sales of any membership or other means of access to any LICENSOR facility, (c) traditional
massage therapy (consisting of the placement of hands on individuals),
(d) Personal Training (defined below), (e) group fitness classes, and (f) the use of any pool, spa or sauna located on the Facilities’
premises. For the purposes of this Agreement, “Personal Training” means fitness training, physical training,
personal training or similar services that include, without limitation, instruction, education, training or assistance rendered
to individuals or groups with respect to bodybuilding, weight loss, figure development, physical fitness, exercise, cardiovascular
endurance, flexibility, muscular strength and/or muscular endurance, and includes, without limitation, assessing fitness needs,
designing appropriate exercise regimens, and motivating clients to achieve fitness goals. Further, and for the avoidance of doubt,
no LICENSEE Party shall make use of LICENSOR’ s fitness equipment or other services or amenities located at the Facilities
(including, without limitation, any of the Facilities’ locker rooms, showers, group fitness classes, basketball courts,
racquetball courts, lobby chairs, Kids Klub, Kids Klub restrooms, pool, and spa) except as explicitly set forth herein unless
such party is a Member; provided, however, that LICENSEE’s employees and Customers may access the Facilities’ locker
rooms solely for the limited purpose of using the restrooms therein (and not for changing or storing clothes or other uses).


 


9.
Exclusivity.


 


9.1.
As Enjoyed by LICENSEE. LICENSOR grants to LICENSEE the exclusive right to perform the Services within the Facilities
for the Term of this Agreement.


 


9.2.
Promotions. Without limiting the foregoing, the Parties acknowledge that LICENSOR may from time to time arrange
temporary promotions, sometimes involving third parties, to give away items or services to LICENSOR’s Members and guests
as part of LICENSOR’s own marketing and promotions. However, LICENSOR shall not include a direct competitor of LICENSEE
in such temporary promotions at the Facilities. Further, if LICENSEE so requests, then LICENSOR may, in its sole discretion, permit
LICENSEE to include promotions of its own Services during such temporary promotion period.


 


10.
Customers; Compliance.


 


10.1.
Customers Defined. LICENSEE shall have the right to provide the Services both to customers of LICENSEE’s business
who are not Members (and such customers have no obligation to become Members in order to receive Services from LICENSEE) and to
Members who are or who elect to become customers of LICENSEE’s business (any such customers of LICENSEE, “Customers”).
LICENSEE agrees to follow all protocols established by LICENSOR for checking in Customers who are non-Members, as well as
all mechanisms to ensure that Customers who are not Members do not access LICENSOR’ s facilities and services enjoyed by
Members.


 


10.2.
Intentionally Omitted.


 


10.3.
LICENSEE Compliance.


 


10.3.1.
Licenses and Permits. LICENSEE represents and warrants that attached hereto as Schedule 10.3.1 is a list
of all licenses and permits that LICENSEE needs to perform the Services at the Facilities. LICENSEE further covenants to update
Schedule 10.3.1 as necessary to comply with the preceding sentence. Notwithstanding the licenses and permits listed in
Schedule 10.3.1, LICENSEE shall obtain and shall maintain in good standing throughout the Term all licenses and permits
that are legally required in connection with the conduct, ownership, use, occupancy or operation of its business and the performance
of the Services at the Facilities.


 




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10.3.2.
Personnel; Services. LICENSEE shall be responsible for providing all staffing necessary to provide the Services.
In connection with the development and operation of LICENSEE’s business at the Facilities, LICENSOR will have no responsibility
or obligation with respect to: (a) hiring, training and supervising efficient, competent and courteous employees of good character
for the operation of the LICENSEE’s business; (b) the terms of such employees’ employment and compensation; or (c)
the proper training of such employees in the operation of LICENSEE’s business. LICENSEE represents and warrants that all
staff employed by, or providing services to or on behalf of, LICENSEE are and will at all times comply with any licensing and
credentialing requirements of applicable law. LICENSEE covenants that throughout the Term it shall, and it shall cause its employees
and contractors to, fully comply with all applicable federal, state, and local laws, rules, regulations, ordinances, and policies
(including any regulations set forth by any regulatory body) applicable to the conduct, ownership, use, occupancy or operation
of its business and provision of the Services at the Facilities, including the generally accepted standards of care and scope
of practice applicable to the Services.


 


10.3.3.
Intentionally Omitted.


 


10.3.4.
No Referrals Required. The Parties expressly acknowledge that neither LICENSOR nor any of its directors, officers,
employees or agents are required or have been encouraged to refer patients to LICENSEE, and that any remuneration paid to LICENSOR
hereunder has not been offered, paid, solicited or received with the intent of inducing or encouraging the referral of patients
or customers to LICENSEE. The Parties further expressly acknowledge and agree that (a) the Spaces do not exceed that which is
reasonable and necessary for the legitimate business of LICENSEE therein; and (b) the fees and other remuneration paid to and
received by LICENSOR hereunder (including, without limitation, the Monthly License Payments): (i) are set in advance; (ii) are
consistent with fair market value; (iii) have been negotiated as part of an arms-length transaction; (iv) do not take into account
the volume or value of any referrals or other business generated between the Parties, nor do they include any additional charges
attributable to the proximity or convenience of either Party to the other as a potential referral source; and (v) would be commercially
reasonable even if no referrals are made between LICENSEE and LICENSOR or their respective affiliates.


 


11.
Maintenance, Repairs and Alterations. LICENSOR shall be responsible for all day-to-day maintenance of the Facilities;
provided, however, that LICENSEE shall be liable and shall reimburse LICENSOR for any and all damage to any area of the Facilities
including, without limitation, the Spaces, caused by any LICENSEE Parties. LICENSEE shall not make any alterations, modifications
or improvements to any part of the Facilities within the Spaces. LICENSOR will have access to all areas of the Facilities, including
all storage areas, other than areas containing “protected health information” (as such term is defined under HIPAA
(as defined in Paragraph 13.2), “Protected Health Information”), if any, in order to conduct inspections and
undertake such maintenance, repairs and alterations as LICENSOR deems necessary or desirable.


 


12.
Insurance.


 


12.1.
General Liability Insurance. LICENSEE shall, at LICENSEE’ s expense, obtain and keep in force during the Term
a policy of comprehensive general liability insurance in an amount of not less than Two Million Dollars ($2,000,000) per occurrence,
and with an aggregate of not less than Three Million Dollars ($3,000,000) of bodily injury and property damage combined; provided,
however, that as long as LICENSEE maintains such a policy in an amount of at least One Million Dollars ($1,000,000) per occurrence
and Two Million Dollars ($2,000,000) in the aggregate, LICENSEE may satisfy the greater amounts required under this Paragraph
12.1 by maintaining an excess or umbrella liability policy in an amount of not less than Two Million Dollars ($2,000,000) (the
“Umbrella Policy”). Such policies shall each: (a) insure LICENSEE and name LICENSOR as an additional insured
against liability arising out of the use or occupancy of the Spaces and Facilities by LICENSEE; (b) include a waiver of subrogation
in favor of LICENSOR; (c) be written as primary policy coverage and non-contributing with respect to any coverage that LICENSOR
may carry; and (d) have a deductible or self-insured retention amount, as applicable, of not more than Ten Thousand Dollars ($10,000).


 




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12.2.
Professional Liability Insurance. Intentionally omitted.


 


12.3.
Workers’ Compensation and Employer’s Liability Insurance. LICENSEE shall, at LICENSEE’s expense,
obtain and keep in force during the Term of this Agreement a policy of workers’ compensation insurance coverage in compliance
with statutory limits in the state of operation, and a policy of employer’s liability, but in each case in an amount of
not less than One Million Dollars ($1,000,000) per accident or disease, which policies shall include a waiver of subrogation in
favor of LICENSOR.


 


12.4.
Automobile Insurance. LICENSEE shall, at LICENSEE’s sole cost and expense, obtain and keep in force during
the Term of this Agreement a policy of automobile insurance (including owned, non-owned and hired car coverage) in an amount of
not less than One Million Dollars ($1,000,000) combined single limit (each accident). Such policy shall: (a) insure LICENSEE and
name LICENSOR as an additional insured; (b) include a waiver of subrogation in favor of LICENSOR; (c) be written as primary policy
coverage and non-contributing with respect to any coverage that LICENSOR may carry; and (d) have a deductible or self-insured
retention amount, as applicable, of not more than Ten Thousand Dollars ($10,000).


 


12.5.
Intentionally Omitted.


 


12.6.
Insurance Policies. LICENSEE shall deliver to LICENSOR certificates evidencing the existence and amounts of the
insurance policies required under Paragraphs 12.1 through 12.4, inclusive, prior to LICENSEE’s opening for business in any
Facility, and these shall name Fitness International, LLC and any other person or entity designated by LICENSOR (including, without
limitation, any landlord under LICENSOR’s premises lease for any Facility (individually, a “Facility Owner”
and collectively, the “Facility Owners”)) as an additional insured. LICENSEE shall also provide to LICENSOR
the applicable additional insured endorsement(s) naming LICENSOR as additional an insured. Such insurance policies shall be issued
from an insurer with a rating of “A” or better and a financial size category of XI or greater in the latest edition
of the A.M. Best key rating guide and such insurer shall be licensed to do business in the jurisdiction in which each Facility
is located. No policy required under this Agreement shall be cancelled or subject to reduction of coverage or other modification
except after written notice to LICENSOR. LICENSEE shall, at least ten (10) days prior to the expiration of such policies, furnish
LICENSOR with evidence of renewals thereof.


 


12.7.
Additional Insured and Loss Payees. The names and addresses of LICENSOR as an additional insured and loss payee
under this Paragraph 12 is as follows, which may be updated from time to time at the sole discretion of LICENSOR:


 


LICENSOR:





FITNESS
INTERNATIONAL,


LLC
3161 Michelson Drive, Suite


600
Irvine, California 92612


 




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12.8.
No Representation of Adequate Coverage. LICENSOR makes no representation that the insurance coverage and amounts
specified in this Paragraph 12 are adequate to cover LICENSEE’s property or obligations under this Agreement. Compliance
with the above insurance requirements of this Paragraph 12 shall not limit the liability of LICENSEE hereunder.


 


13.
Indemnification.


 


13.1.
By LICENSEE with Respect to Certain Claims. Except resulting from LICENSOR Parties’ gross negligence or willful
misconduct, LICENSEE shall indemnify, defend and hold harmless LICENSOR, the Facility Owners, and their respective owners, parents,
subsidiaries, affiliates, officers, directors, employees, agents, contractors and representatives (collectively, the “LICENSOR
Parties”) from and against any and all damages, losses, liabilities, obligations, claims, encumbrances, deficiencies,
costs and expenses, including, without limitation, reasonable attorneys’ fees and other costs and expenses incident to,
any action, investigation, claim or proceeding (collectively, “Losses”) suffered, sustained, incurred or required
to be paid by the LICENSOR Parties, with respect to: (a) any damage to the person or property of anyone or any entity arising
from use of the Spaces or Facilities by LICENSEE or by any of LICENSEE’s agents, representatives, contractors, or employees
(collectively and including LICENSEE, the “LICENSEE Parties”); (b) the conduct of LICENSEE’s business
or any activity, work or things done, permitted or suffered by any of the LICENSEE Parties in or about the Facilities or elsewhere;
(c) any breach or Default in the performance of any obligation on LICENSEE’s part to be performed under the terms of this
Agreement; (d) any act or omission of any of the LICENSEE Parties while on the premises of any Facility; and (e) any and all actions,
suits, proceedings, claims, demands, assessments, judgments, costs, losses, damages, liabilities and reasonable legal and other
expenses incident to the foregoing. LICENSOR need not have first paid for any Losses in order to be so indemnified. LICENSEE,
as a material part of the consideration to LICENSOR, hereby assumes all risk of damage to the property of LICENSEE and to the
property of any of the LICENSEE Parties and to the injury to persons in, upon or about the Spaces or Facilities arising from any
cause and LICENSEE hereby waives all claims in respect thereof against the LICENSOR Parties, except to the extent such damage
and/or injury is caused by the gross negligence or willful misconduct of LICENSOR.


 


13.2.
By LICENSEE with Respect to Special Claims. It is the intent and understanding of the Parties that: (a) LICENSOR
is not and will not become, as a result of entering into the transactions contemplated under this Agreement a federal “prime
contractor”, “subcontractor” or “first-tier subcontractor”, as such terms are defined in 41 C.F.R
§ 60-1.3, or a Medicare Advantage “first tier entity” or “downstream entity”, as such terms are defined
in 42 C.F.R. § 422.2 (any of the foregoing, a “Government Contractor”); (b) LICENSEE shall not disclose
or otherwise provide to any LICENSOR Party any Protected Health Information and shall not direct or instruct any current or prospective
Customer or government agency to deliver any mail to any Facility that may contain Protected Health Information (and LICENSEE
covenants that it shall not do so); and (c) LICENSOR is not and will not become, as a result of entering into the transactions
contemplated under this Agreement subject, as a business associate or otherwise, to the Health Insurance Portability and Accountability
Act of 1996 or any regulations promulgated thereunder (“HIPAA”). However, for LICENSOR’s benefit, and as a material
condition to this Agreement, LICENSEE specifically covenants and agrees that it shall indemnify, defend and hold harmless the
LICENSOR Parties from and against any and all Losses suffered, sustained, incurred or required to be paid by the LICENSOR Parties
arising from any inquiry, investigation, audit,
compliance evaluation, allegation, claim, charge, determination, finding or other similar action by a government agency (including,
without limitation, the Department of Labor’s Office of Federal Contract Compliance Programs and/or the Department of Health
and Human Services or the Centers for Medicare & Medicaid Services) alleging or otherwise concerning LICENSOR’s or LICENSEE’
s performance or actual or alleged status as a Government Contractor or related to actual or alleged compliance with or non-compliance
with HIPAA in connection with this Agreement (a “Special Claim”).


 




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13.3.
By LICENSOR with Respect to Certain Claims; No Waiver. Notwithstanding the foregoing: (a) no provision of this Agreement,
including, but not limited to, Paragraphs 13.1, 13.2 and 14, shall operate to waive any claim or cause of action that LICENSEE
has or may have against LICENSOR on account of the willful misconduct or gross negligence thereof; and (b) LICENSOR shall defend,
indemnify and hold harmless LICENSEE from and against any and all Losses suffered, sustained, incurred or required to be paid
by LICENSEE arising from: (i) the willful misconduct or gross negligence of LICENSOR; (ii) the material breach or Default of this
Agreement by LICENSOR; or (iii) any and all actions, suits, proceedings, claims, demands, assessments, judgments, costs, losses,
damages, liabilities and reasonable legal and other expenses incident to the foregoing.


 


13.4.
Indemnification Procedures.


 


13.4.1.
Threats of Action. If either Party receives notice of the commencement or threat of any action against it that would
constitute a claim for indemnification hereunder, then such Party shall promptly give written notice of the same (an “Indemnification
Notice”) to the other Party. An indemnifying Party shall be entitled to assume the defense thereof at its own expense,
provided that such indemnifying Party promptly notifies the indemnified Party of such indemnifying Party’s election to assume
the defense thereof; and provided further that if the matter involves a Special Claim, then LICENSOR (as the indemnified Party),
shall have the right to contest, defend, settle or compromise, through counsel of its own choosing, the matter at the expense
of LICENSEE (as the indemnifying Party), in which case: (a) LICENSOR shall keep LICENSEE informed on a reasonably current basis
of any significant updates with respect to the status of the defense of the matter; (b) LICENSEE shall have the right to participate,
at its own expense and without a right to be reimbursed for its legal fees incurred in participating in the defense of such claim;
(c) each Party shall cooperate with the other Party in the defense of such claim; (d) LICENSOR shall not settle, adjust or compromise
any such claim without first providing prior notice to LICENSEE; and (e) any amount agreed to be paid by LICENSOR in settlement
or compromise of such claim shall not be deemed determinative of the amount of the indemnification payment owed by LICENSEE to
LICENSOR.


 


13.4.2.
Obligations of Party Providing Defense. As to proceedings or matters in which an indemnifying Party has assumed
and is providing defense, except as set forth in Paragraph 13.4.1, (a) the indemnifying Party shall defend such action in a diligent
manner with legal counsel reasonably acceptable to the indemnified Party; (b) the indemnified Party shall make available to the
indemnifying Party all documents and materials in the possession of the indemnified Party that may be necessary for defense of
such proceedings or matters; (c) the indemnified Party shall otherwise cooperate with the indemnifying Party in the defense of
such proceedings or matters; (d) the indemnifying Party shall keep the indemnified Party informed of all material developments
and events relating to such matters; (e) the indemnified Party shall have the right to participate, at its own expense and without
a right to be reimbursed for its legal fees incurred in participating in the defense of such proceedings or matters; and (0 the
indemnifying Party shall not settle, adjust or compromise any such proceedings or matters without the prior written consent of
the indemnified Party, which shall not be unreasonably
withheld, conditioned, or delayed; provided, however, that the indemnified Party shall not unreasonably withhold its consent to
any such proposed settlement if it involves only the payment of money and the indemnifying Party demonstrates, to the reasonable
satisfaction of the indemnified Party, that the indemnifying Party is able to pay the amount of such settlement and all related
expenses. If the indemnified Party refuses a settlement in a liquidated amount and the indemnifying Party is financially capable
of paying such liquidated amount, then, upon ultimate settlement or resolution of the matter, the indemnifying Party shall not
be liable for an amount in excess of the amount for which the indemnifying Party would have been liable if such settlement had
been accepted.


 




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13.4.3.
Obligations of Indemnifying Party. If within ten (10) days after receipt by the indemnifying Party of an Indemnification
Notice the indemnifying Party has not notified the indemnified Party that the indemnifying Party intends to assume the defense
of such action and has not otherwise assumed such defense, then the indemnified Party shall have the right to defend such action
and to proceed immediately against the indemnifying Party to enforce all indemnification rights hereunder (including but not limited
to the reasonable costs of defense, as the same may be incurred). The indemnification obligations of the indemnifying Party with
respect to such action shall, however, in no way be diminished by virtue of the foregoing, and the fact that the indemnified Party
shall have defended, settled, compromised or otherwise dealt with such action shall not, in any circumstances, be deemed to constitute
any waiver, release or exoneration of the indemnifying Party from its indemnification obligations, regardless of the outcome of
such action. An indemnified Party need not have first paid for any Losses in order to be so indemnified.


 


14.
Exemption of LICENSOR from Liability. All property kept, stored or maintained in the Facilities by LICENSEE (if any) shall
be so kept, stored or maintained at the sole risk of LICENSEE. LICENSEE hereby agrees that LICENSOR and the Facility Owners shall
not be liable for injury to LICENSEE’s business or any loss of income therefrom or for loss of or damage to the goods, merchandise,
products or other property of any of the LICENSEE Parties or to any other person in or about the Facilities, nor shall LICENSOR
be liable for injury to any LICENSEE Party, whether such damage or injury is caused by or results from theft, fire, steam, electricity,
gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether said damage or injury results from conditions arising
upon the Spaces or upon other portions of the Facilities, or from other sources or places, or from new construction or the repair,
alteration or improvement of any part of the Facilities or of the equipment, fixtures or appurtenances applicable thereto, and
regardless of whether the cause of such damage or injury or the means of repairing the same is inaccessible, and LICENSOR shall
not be liable for any damages or injury arising from any act or neglect of any LICENSOR Party or any other licensee, occupant
or user of the Facilities or as a result of the failure of LICENSOR to enforce the provisions of any other agreement of any other
licensee, occupant or user of the Facilities.


 


15.
Default.


 


15.1.
Default by LICENSEE. The occurrence of any one or more of the following events shall constitute a material default
(a “Default”) by LICENSEE under this Agreement:


 


15.1.1.
Failure to Make Payments When Due. The failure by LICENSEE to pay any Monthly License Payment or any other payment
required to be made by LICENSEE hereunder, as and when due, where such failure shall continue for a period of ten (10) days after
receipt of written notice thereof from LICENSOR to LICENSEE.


 




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15.1.2.
Insolvency. (a) The making by LICENSEE of any general arrangement or general assignment for the benefit of creditors; (b)
LICENSEE becoming a “debtor” as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case
of a petition filed against LICENSEE, the same is dismissed within sixty (60) days); (c) the appointment of a trustee or receiver
to take possession of substantially all of LICENSEE’ s assets located at the Facilities or of LICENSEE’s interest
in this Agreement, where possession is not restored to LICENSEE within thirty (30) days; or (d) the attachment, execution or other
judicial seizure of substantially all of LICENSEE’s assets located at the Facilities or of LICENSEE’s interest in
this Agreement, where such seizure is not discharged within thirty (30) days. In the event that any provision of this Paragraph
15.1.2 is determined to be contrary to any applicable law, such provision shall be of no force or effect. Default under this Paragraph
shall be deemed a non-curable Default for which LICENSOR may terminate this Agreement immediately upon written notice to LICENSEE.


 


15.1.3.
Breach of Specified Provisions. The breach by LICENSEE of any of the covenants, conditions or provisions of Paragraph
8 (“Permitted and Prohibited Uses”), Paragraph 12 (“Insurance”), Paragraph 23 (“Hazardous Materials”),
Paragraph 31 (“Assignment, Subletting, and Franchising”), Paragraph 39.4 (“No Nuisance, Interference”),
Paragraph 39.5 (“No Disparagement”), Paragraph 39.6 (“No Competition”) or Paragraph 41 (“Non-Disclosure”),
shall be deemed a non-curable Default (except as otherwise explicitly set forth in this Agreement) for which LICENSOR may terminate
this Agreement immediately upon written notice to LICENSEE.


 


15.1.4.
Breach of Other Provisions. The failure by LICENSEE to observe or perform any of the material covenants, conditions
or provisions of this Agreement to be observed or performed by LICENSEE other than those described in this Paragraph 15.1, where
such failure shall continue for a period of fifteen (15) days after receipt of written notice thereof from LICENSOR to LICENSEE;
provided, however, that if the nature of LICENSEE’s Default is such that more than fifteen (15) days are reasonably required
for its cure, then LICENSEE shall not be deemed to be in Default if LICENSEE commenced such cure within said fifteen (15) day
period and thereafter diligently prosecutes such cure to completion.


 


15.1.5.
Failure to Operate. LICENSEE does not commence operating at any Facilities within sixty (60) days of the Commencement
Date (i.e., LICENSEE offers the Services at none of the Facilities during such period). Default under this Paragraph 15.1.5 shall
be deemed a non-curable Default for which LICENSOR may terminate this Agreement immediately upon written notice to LICENSEE.


 


15.1.6.
Abandonment. The vacation or abandonment of the Facilities by LICENSEE. For the purposes hereof, vacation and abandonment
shall mean LICENSEE’s offering of Services at none of the Facilities during the minimum hours of operation set forth in
Paragraph 18 for a continuous period of twenty-one (21) days or more (excluding in the event of LICENSEE’s failure to operate
as a result of war, strike, natural disaster or other act of God), whether or not the Monthly License Payment is paid. Default
under this Paragraph shall be deemed a non-curable Default for which LICENSOR may terminate this Agreement immediately upon written
notice to LICENSEE.


 


15.1.7.
Failure to Obtain Certain Approvals. In the event LICENSEE fails to provide reasonably satisfactory evidence that
LICENSEE has obtained applicable licenses or permits as are required by federal, state or local law with respect to LICENSEE’s
proposed operation of business in the Facilities, including, without limitation, those licenses and permits listed in Schedule
10.3.1.


 




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15.1.8.
Cross Default. LICENSEE remains in default under any other agreement with LICENSOR beyond the applicable cure period
(if any).


 


15.2.
Default by LICENSOR. The occurrence of any one or more of the following events shall constitute a Default by LICENSOR under
this Agreement.


 


15.2.1.
Insolvency. (a) The making by LICENSOR of any general arrangement or general assignment for the benefit of creditors; (b)
LICENSOR becoming a “debtor” as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case
of a petition filed against LICENSOR, the same is dismissed within sixty (60) days); (c) the appointment of a trustee or receiver
to take possession of substantially all of LICENSOR’s assets located at the Facilities or of LICENSOR’s interest in
this Agreement, where possession is not restored to LICENSOR within thirty (30) days; or (d) the attachment, execution or other
judicial seizure of substantially all of LICENSOR’s assets located at the Facilities or of LICENSOR’s interest in
this Agreement, where such seizure is not discharged within thirty (30) days. In the event that any provision of this Paragraph
15.2.1 is determined to be contrary to any applicable law, such provision shall be of no force or effect. Default under this Paragraph
shall be deemed a non-curable Default for which LICENSEE may terminate this Agreement immediately upon written notice to LICENSOR.


 


15.2.2.
Breach of Agreement. The failure by LICENSOR to observe or perform any of the covenants, conditions or provisions
of this Agreement to be observed or performed by LICENSOR other than those described in this Paragraph 15.2, where such failure
shall continue for a period of thirty (30) days after receipt of written notice thereof from LICENSEE to LICENSOR; provided, however,
that if the nature of LICENSOR’ s Default is such that more than thirty (30) days are reasonably required for its cure,
then LICENSOR shall not be deemed to be in Default if LICENSOR commenced such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.


 


16.
Termination of Agreement or License.


 


16.1.
Without Cause. After the expiration of the Initial Term, either Party may terminate this Agreement without cause
by providing thirty (30) days’ written notice to the other Party.


 


16.2.
For Cause. Upon the occurrence of a Default, the non-defaulting Party may terminate this Agreement by providing
written notice to the defaulting Party. For the avoidance of doubt, upon the occurrence of a Default by LICENSEE, LICENSEE’s
right to access and provide Services at all Facilities shall terminate.


 


16.3.
Intentionally Omitted.


 


16.4.
Certain Changes in Law. It is the intent of the Parties to structure and implement this Agreement in accordance
with all applicable federal and state laws, statutes, rules and regulations. If LICENSOR or LICENSEE determines that this Agreement
or the Services provided by LICENSEE violate, or present a substantial risk of violating, any law, rule or regulation or industry
standard or guideline or that compliance thereunder would cause LICENSOR or LICENSEE to incur expenses not expressly contemplated
hereunder, or if LICENSOR or LICENSEE learns of or there occurs any change in applicable law, statute, rule or regulation, or
internal policy guidance or government agency interpretation of the same that results, or presents a substantial risk of resulting
in LICENSOR becoming a Government Contractor or LICENSOR becoming subject to HIPAA, then LICENSOR or LICENSEE
shall have the right to terminate this Agreement, or any particular license(s) granted hereunder, immediately upon written notice
to the other Party.


 




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16.5.
Termination of License - Cessation of Business by LICENSOR. In the event of a Facility’s Closure (as defined
below), the license granted with respect to such Facility shall automatically terminate, and upon such termination, LICENSEE shall
immediately vacate such Facility as provided in this Agreement. For the purposes hereof, (“Closure”) means: (a) that
LICENSOR has elected to permanently and completely cease doing business at the applicable Facility or (b) that LICENSOR has completely
ceased doing business at the applicable Facility for a continuous period of at least ten (10) days, other than for purposes of
repairing, remodeling or renovating the Facility or as a result of fire, act of God, governmental act or failure to act, riot,
picket, strike, labor dispute, breakdown, accident or any other cause beyond LICENSOR’s control (whether similar or dissimilar
to the foregoing events).


 


16.6.
Termination of License - Upon Termination or Expiration of Premises Lease. In the event of the termination or expiration
of LICENSOR’s premises lease for a Facility with a Facility Owner and LICENSOR has no, or elects not to exercise any, further
right to occupy the Facility thereafter, the license granted with respect to such Facility shall automatically terminate, and
upon such termination, LICENSEE shall immediately vacate the Facility as provided in this Agreement.


 


16.7.
Termination of License — Inability to Secure Permits. In the event that LICENSOR is unable to secure any and
all necessary approvals (including, but not limited to, entitlement approvals or approvals necessary under LICENSOR’ s premises
lease for the Facilities such as approvals/consents from the Facility Owner(s)) required to provide a license at a Facility hereunder
to LICENSEE or to allow LICENSEE to provide the Services at a Facility), LICENSOR may terminate the license granted with respect
to such Facility.


 


16.8.
Termination of License — Chance of Control. In the event of a transfer or sale of all or substantially all
of LICENSOR’s assets used in the operation of a Facility, or in the event of a merger, consolidation, change in control
or similar transaction involving a Facility, LICENSOR may terminate the license granted with respect to such Facility by providing
thirty (30) days’ prior written notice thereof to LICENSEE.


 


16.9.
Termination of License - Upon Demand by Facility Owner. In the event the Facility Owner of a Facility requires LICENSOR
to cease offering, or to cause LICENSEE to cease offering, some or all of the Services, LICENSOR may terminate the license granted
with respect to such Facility by providing five (5) days’ prior written notice thereof to LICENSEE.


 


16.10.
Intentionally Omitted.


 


16.11.
Consequences of Termination. Upon the expiration or termination of this Agreement, LICENSEE’s right to provide
Services at, and its right of access to, all Facilities shall terminate; provided, however, in the event of a termination of license
that affects fewer than all of the Facilities (as determined by LICENSOR) pursuant to Paragraphs 16.4 through 16.9, LICENSEE’s
right to provide Services at, and its right of access to, only such affected Facilities shall terminate. Furthermore, the following
shall apply:


 


16.11.1.
Payment of Monies Due. Unless otherwise provided herein, upon the termination or expiration of this Agreement or
the license granted hereunder, LICENSEE shall pay
to LICENSOR all monies due and payable hereunder as of the effective date of such termination or expiration, upon the terms
provided herein.


 




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16.11.2.
Surrender. Upon termination or expiration of this Agreement, LICENSEE shall immediately vacate the Facilities and shall
remove all of LICENSEE’s signs, equipment, personal belongings, materials, merchandise, goods and products. LICENSEE shall
repair, at its sole cost and expense, any damage to the Facilities caused by LICENSEE Parties.


 


16.11.3.
Intentionally Omitted.


 


16.11.4.
Other Remedies Not Affected. Termination or expiration of this Agreement shall not prejudice any other remedy to
which a Party may be entitled either at law, or in equity, or under this Agreement. Further, in the event of a Default by LICENSEE,
LICENSOR may at any time thereafter, with or without written notice or demand to LICENSEE and without limiting LICENSOR in the
exercise of any other right or remedy that LICENSOR may have by reason of such Default, do any or all of the following:


 


16.11.4.1.
Terminate Possession. LICENSOR may terminate LICENSEE’s right to access the Facilities by any lawful means,
in which case LICENSEE shall immediately vacate the Facilities as provided in this Agreement.


 


16.11.4.2.
Remove Personal Property. In the event that LICENSEE does not surrender and vacate the Facilities pursuant to the terms
set forth in Paragraph 16.11.2, LICENSOR may, at LICENSEE’s sole expense, remove from the Spaces and from the Facilities
all of LICENSEE’s signs, personal belongings, materials, merchandise, equipment, goods and products, and LICENSOR shall
be entitled to dispose of all such items as it sees fit, in its sole discretion, and without any liability to LICENSEE, unless,
within thirty (30) days of such removal, LICENSEE: (a) reimburses LICENSOR for LICENSOR’s documented costs of removing such
items and (b) provides LICENSOR with advance payment for any shipping charges required to deliver such items to an address specified
by LICENSEE. Upon LICENSEE’s timely satisfaction of the foregoing clauses (a) and (b), LICENSOR shall, within thirty (30)
days thereafter, deliver the items to the address provided by LICENSEE.


 


16.11.5.
Pursue Other Remedies. LICENSOR may pursue any other remedy now or hereafter available to LICENSOR under the laws
or judicial decisions of the state wherein the Facilities are located.


 


17.
License Rules and Regulations. The LICENSEE Parties, as applicable, must observe and comply with the rules and regulations
set forth in Exhibit E hereto, which is incorporated by reference herein (the “License Rules and Regulations”),
or as otherwise provided by LICENSOR. LICENSOR reserves the right to modify the License Rules and Regulations and adopt such
other rules and regulations as LICENSOR may deem necessary for the operation of the Facilities at any time; provided, however,
that LICENSOR agrees to enforce the License Rules and Regulations in substantially the same manner as it applies and enforces
such License Rules and Regulations with respect to its other customers and licensees.


 




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18.
Business Hours. LICENSEE may be open for business during hours to be mutually agreed upon by LICENSOR and LICENSEE (the
“Business Hours”), but in no event shall the Business Hours be outside LICENSOR’ s hours of operations
at a particular Facility. LICENSEE agrees to be open for business for a minimum of eight (8) hours per day, five (5) days per
week, excluding holidays. LICENSEE agrees to post a sign, the form and content of which must be approved in writing by LICENSOR,
in the Spaces, listing the hours that LICENSEE is open for business in the Facilities. LICENSEE acknowledges and agrees that it
shall have no right of access to any Space when the particular Facility is not open for business. Any correspondence regarding
the Business Hours (including approvals by LICENSOR thereof) shall be conducted via e-mail, and LICENSEE shall send such correspondence
to Scot MacKay, Executive Director of Business Development, at scot.mackay@fitnessintl.com, or as otherwise directed by
LICENSOR.


 


19.
Vehicle Parking Regulations. LICENSEE Parties shall abide by the vehicle parking rules and regulations as set forth by
LICENSOR relating to the Facilities. The LICENSEE Parties shall have the same rights and obligations to the non-exclusive use
of available parking, sidewalks, ingress and egress as are enjoyed by, and shall be subject to the same vehicle parking rules
and regulations as, LICENSOR’s Members who use the Facilities. Notwithstanding the foregoing, LICENSOR reserves the right
to request reimbursement from LICENSEE for any parking fees for LICENSEE Parties that LICENSOR may be required to pay.


 


20.
Utilities and Services.


 


20.1.
Payment. LICENSOR shall be responsible for the incremental costs of LICENSEE’s use of any of the Facilities’
existing gas, electric or water utilities (and LICENSOR shall not be responsible for LICENSEE’s use of any other utilities
or services, such as janitorial services, Internet, phone or cable service). Notwithstanding the foregoing, if LICENSOR determines
that LICENSEE’s use of any utility at a Facility is materially out of the ordinary or excessive, then LICENSEE shall be
obligated to reimburse LICENSOR for the monthly costs of such utility usage to the extent such monthly costs exceed the twelve
(12) month trailing average of the cost of such utility paid by LICENSOR with respect to that Facility immediately prior to the
Commencement Date (collectively, the “Excess Utility Expenses”). By way of example only and solely for the
avoidance of doubt, if LICENSOR’s twelve (12) month trailing average of the cost of electricity usage for a Facility is
$1,000, and if such costs increases to $1,500 per month during the Term due to LICENSEE’s use of electricity, then LICENSEE
shall be obligated to pay $500 per month to LICENSOR as Excess Utility Expenses. LICENSEE shall pay the Excess Utility Expenses
within thirty (30) days after receipt of an invoice therefor, without any deductions, set-offs or counterclaims, and failure to
timely pay the Excess Utility Expenses shall carry the same consequences as LICENSEE’ s failure to pay the Monthly License
Payment. For the avoidance of doubt, nothing in this Agreement obligates LICENSOR to provide LICENSEE with access to Internet
service or to pay for the installation of any mechanical or other systems required by LICENSEE which shall be considered Improvements,
and the costs thereof (if any) shall be the sole responsibility of LICENSEE and subject to LICENSOR’s prior approval as
set forth in Paragraph 3.


 


20.2.
Liability. Notwithstanding anything to the contrary in this Agreement, LICENSOR shall not be liable for any loss,
injury, or damage to property caused by or resulting from any variation, interruption, or failure of any utility services due
to any cause whatsoever, or from failure to make any repairs or perform any maintenance at the Facilities. No temporary interruption
or failure of such services incident to the making of repairs, alterations, improvements (including without limitation the remodeling
or renovation of the Facilities) or due to fire, act of God, governmental act or failure to act, riot, picket, strike, labor dispute,
breakdown, accident or any other cause beyond LICENSOR’s control (whether similar or dissimilar to the foregoing events)
shall relieve LICENSEE from any of LICENSEE’s obligations hereunder. Notwithstanding anything to the contrary in this Agreement,
in no event shall LICENSOR be liable to LICENSEE for any damage to the Spaces or the Facilities or for any loss, damage, or injury
to any property therein or thereon occasioned by bursting, rupture, leakage or overflow of any plumbing or other pipes (including,
without limitation, water, steam, and/or refrigerant lines), sprinklers, tanks, drains, HVAC failure, drinking fountains or wash
stands, or other similar cause in, above, upon or about the Spaces or the Facilities. LICENSEE agrees to comply with energy conservation
programs implemented by LICENSOR, if applicable. LICENSEE acknowledges and agrees that the manner in which the Facilities as a
whole are heated, ventilated and air conditioned by LICENSOR in the ordinary course is sufficient for the provision of LICENSEE’s
Services.


 




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20.3.
Interruptions. There shall be no abatement of any Monthly License Payments for the inadequacy, stoppage, interruption
or discontinuance of any utility or service (a “Service Failure”) due to fire, act of God, governmental act
or failure to act, riot, picket, strike, labor dispute, breakdown, accident, repair or any other cause beyond LICENSOR’s
control (whether similar or dissimilar to the foregoing events) lasting less than thirty (30) days at any Facility. LICENSOR shall
not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service
due to any such events.


 


21.
Signs and Displays; Advertising. LICENSEE shall be permitted to place a sign in, upon, or about each Space (as
depicted on Exhibit F or as otherwise approved in writing by LICENSOR, the “Permitted Signage”),
provided that LICENSEE agrees to remove or relocate the same promptly if any request to do so is received from a Facility
Owner or governing municipality. Unless otherwise expressly permitted herein or approved in writing by LICENSOR, LICENSEE
shall not store or display any signs or merchandise or equipment outside of the Spaces. All Permitted Signage and any other
promotional materials used by LICENSEE shall contain the following verbiage: “Drywave is independently owned and
operated is not an affiliate of LA Fitness. Any representations made herein are made solely by Drywave.”; provided,
however, that so long as LICENSEE includes at least one sign in each Space that conspicuously displays the foregoing
disclosure, no other signage or promotional materials in the corresponding Facility is required to bear such disclosure
(except that any promotional materials of LICENSEE that bear LICENSOR’s name, logo, or trademarks shall contain the
foregoing disclosure). For the avoidance of doubt, LICENSEE shall obtain LICENSOR’s prior written approval of any
signage not depicted on Exhibit F, which such approval shall not be unreasonably withheld, conditioned, or delayed.
LICENSEE represents and agrees that all such signage and any other promotional materials used by LICENSEE shall comply with
all applicable laws. Any review and/or approval of such signage and any other promotional materials by LICENSOR does not
relieve LICENSEE of the foregoing obligation. Upon the termination or expiration of this Agreement, all of LICENSEE’s
signage at the Facilities shall be removed by LICENSEE at LICENSEE’s sole cost and expense and LICENSEE, at its sole
cost and expense, shall promptly repair any damage to the Facilities resulting from such removal. LICENSOR may also require
LICENSEE to move any Permitted Signage from time to time. Schedule 21 sets forth all of the trade names in use by or on
behalf of LICENSEE. LICENSEE represents and warrants that LICENSEE has the right to use, display and promote the trade
name(s) set forth on Schedule 21 and that such use, display and promotion does not and will not infringe or misappropriate
any copyright, trademark, patent, trade secret, or other intellectual property right of any third party. Further, LICENSEE
agrees to indemnify LICENSOR pursuant to Paragraph 13 for any Losses LICENSOR suffers from the foregoing.


 




    	18



    	 



    

 


22.
Late Charges. LICENSEE hereby acknowledges that late payment by LICENSEE to LICENSOR of any Monthly License Payment or
other sums due hereunder will cause LICENSOR to incur costs not contemplated by this Agreement, the exact amount of which will
be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly,
if LICENSEE is in Default for non-payment of any Monthly License Payment then, without any requirement for notice to LICENSEE,
LICENSEE shall pay to LICENSOR a late charge equal to two percent (2%) of such overdue amount. In addition, if the payment is
more than seven (7) days late, interest in the amount of two percent (2%) per month, or the maximum amount permitted by law, whichever
is less, shall be due on the overdue amount until the full payment is received by LICENSOR or its designee. The Parties hereby
agree that such late charge and interest represents a fair and reasonable estimate of the costs LICENSOR will incur by reason
of late payment by LICENSEE. Acceptance of such late charge and interest by LICENSOR shall in no event constitute a waiver of
LICENSEE’ s Default with respect to such overdue amount, nor shall it prevent LICENSOR from exercising any of the other
rights and remedies granted hereunder.


 


23.
Hazardous Materials. LICENSEE shall not use or introduce in the Facilities any Hazardous Material. For the purposes hereof:
(a) “Hazardous Material” means any substance that is (i) defined as a hazardous substance, hazardous material,
hazardous waste, biohazardous materials, pollutant, toxic substance, pesticide, contaminant or words of similar import under any
Environmental Law; (ii) a petroleum product, byproduct or other hydrocarbon substance, including, without limitation, crude oil
or any fraction thereof; (iii) hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic or a reproductive
toxicant, or otherwise a threat to human health, including, without limitation, infectious or medical wastes, asbestos or asbestos
containing materials, polychlorinated biphenyls, and lead or lead containing materials; or (iv) regulated pursuant to any Environmental
Law; and (b) “Environmental Law” means any and all applicable laws that purport to regulate the generation,
processing, production, storage, treatment, disposal, transport or release of Hazardous Materials to the environment, or impose
requirements, conditions or restrictions relating to environmental protection, management, planning, reporting or notice or public
or employee health and safety.


 


24.
Personal Property Taxes. LICENSEE shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of LICENSEE contained in the Facilities.


 


25.
Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall whenever possible be cumulative
with all other remedies.


 


26.
Arbitration. LICENSOR and LICENSEE agree that all disputes, claims and other matters in controversy arising out of or
relating to this Agreement, or the performance or breach hereof, shall be submitted to final binding arbitration in accordance
with the provisions and procedures of this Paragraph 26. The arbitration provided for in this Paragraph 26 shall take place in
Orange County, California, in accordance with the provisions of the Title 9, Sections 1280 et sea. of the California
Code of Civil Procedure, except as provided to the contrary hereunder. The arbitration shall be held before and decided by
a single neutral arbitrator. The single neutral arbitrator shall be selected from a list of retired judges of the Superior Court
of the State of California for the County of Orange by a process mutually agreed upon by LICENSOR and LICENSEE. If no such agreement
can be reached as to the process for selecting the arbitrator or if the agreed method fails, the arbitrator shall be appointed
in accordance with the provisions of California Code of Civil Procedure §1281.6. LICENSOR and LICENSEE shall mutually
agree upon the date and location of the arbitration, subject to the availability of the arbitrator. If no agreement can be reached
as to the date and location of the arbitration, the arbitrator shall appoint a time and place in accordance with the provisions
of California Code of Civil Procedure § 1282.2(a) (I), except that the arbitrator shall give not less than thirty
(30) days’ notice of the hearing unless the Parties mutually agree to shorten the time for notice. LICENSOR and LICENSEE
shall be entitled to undertake discovery in the arbitration in accordance with the provisions of subsections (a) through (d) of
California Code of Civil Procedure §1283.05. In conjunction with these procedures, the Parties shall be entitled to
request and obtain production of documents in discovery in the arbitration in accordance with the same rights, remedies and procedures,
and shall be subject to all of the same duties, liabilities and obligations as if the subject matter of the arbitration were pending
in a civil action before a Superior Court of the State of California. The Parties hereby agree that any discovery taken hereunder
shall be permitted without first securing leave of the arbitrator and shall be kept to a reasonable minimum. The decision of the
arbitrator may be confirmed pursuant to the provisions of California Code of Civil Procedure §1285. The details and/or
existence of any disputes, claims and other matters in arbitration proceedings themselves and any discovery taken in connection
with the arbitration, shall be kept strictly confidential and shall not be disclosed or discussed with any third party, except
as may be required by law. The cost of such arbitration, the cost of enforcing the arbitration award in court and the cost of
seeking a court order to compel arbitration, including reasonable attorneys’ fees, shall be borne by the losing Party or
in such proportions as the arbitrator shall decide. All reasonable costs, including reasonable attorneys’ fees, incurred
in enforcing an arbitration award in court shall be borne by the losing Party in such proceedings. Anything to the contrary in
this Agreement notwithstanding, LICENSOR shall have the right and option to maintain a summary action for eviction, such as an
unlawful detainer action, in a court of competent jurisdiction. Furthermore, anything to the contrary in this Agreement notwithstanding,
either Party shall have the right and option to maintain action for injunctive and other equitable relief against the other in
a court of competent jurisdiction.


 




    	19



    	 



    

 


27.
Choice of Law. This Agreement shall be governed by the laws of the State of California.


 


28.
Entire Agreement. This Agreement, including all schedules and exhibits attached hereto, constitutes the final, complete,
and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and
supersedes all prior and contemporaneous understandings or agreements of the Parties. No Party has been induced to enter into
this Agreement by, nor is any Party relying upon, any representation or warranty outside those expressly set forth in this Agreement.


 


29.
Severability of Agreement. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement
to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining
provisions, or portions of them, will not be affected.


 


30.
Trademarks. Service Marks and Patents. LICENSEE will be solely responsible for any marketing of the Services (including,
without limitation, the preparation of all marketing materials and the costs thereof), provided that all such marketing that includes
LICENSOR’s name, address(es), trademarks or other intellectual property shall be subject to the prior written approval of
LICENSOR. The Parties acknowledges the validity of all state and federal trademarks, service marks and patents owned by the other
Party (the “Marks”), and neither Party shall use any of said Marks without the prior written approval of the owner
of the Marks, which may be arbitrarily withheld. Any request by LICENSEE to use any of LICENSOR’s Marks shall be directed
to Scot MacKay, Executive Director of Business Development, at scot.mackay@fitnessintl.com, or as otherwise directed by
LICENSOR.


 


31.
Assignment, Subletting, and Franchising. This Agreement may not be assigned, delegated or otherwise transferred by LICENSEE
and neither the Spaces nor the Facilities may be sublicensed by LICENSEE in whole or in part unless first approved and authorized
in writing by LICENSOR (such approval not to be unreasonably withheld). LICENSEE agrees that it will not franchise or otherwise
grant any third party the right to operate within the Facilities licensed hereunder, unless mutually agreed upon by the Parties
in a signed amendment to this Agreement.


 






    	20



    	 



    

 


32.
Binding Effect. Subject to the provisions of this Agreement restricting assignment and sublicensing by the LICENSEE, this
Agreement shall bind the Parties and their successors and assigns.


 


33.
Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in
writing (which shall include notice by electronic mail or facsimile transmission) and shall be deemed to have been duly made and
received when personally served, or by first class mail, registered or certified, postage prepaid, on the third day after mailing,
or when delivered by Federal Express or similar overnight courier service, expenses prepaid, or, if sent by electronic mail, graphic
scanning or other facsimile communications equipment, delivered by such equipment, and properly addressed as follows:


 


	LICENSOR:	 	LICENSEE:
	Fitness
    International, LLC	 	Massagewave,
    Inc.
	3161
    Michelson Drive, Suite 600	 	999
    18th St.
	Irvine,
    California 92612 Attention:	 	Suite
    3000
	General
    Counsel Facsimile	 	Denver,
    CO 80202
	number:
    (866) 430-1079	 	Attention:
    CEO
	 	 	 
	With
    a copy sent to Scot MacKay,	 	With
    a copy sent to Jeffery Reeser
	Executive
    Director of Business	 	Polsinelli
    Law Firm
	Development,
    at the same address.	 	1401
    Lawrence Street, Suite 2300
	 	 	Denver,
    CO 80202


 


Either
Party may change their address for purposes of this Paragraph 33 by giving notice to the other Party in the manner set forth above.


 


34.
Standard for Consent and License Rules and Regulations. Except as otherwise provided herein, LICENSOR shall not be obligated
to exercise any standard of reasonableness in determining whether to grant any consent or approval allowed or permitted in this
Agreement. The License Rules and Regulations set forth by LICENSOR shall be binding and conclusive on the LICENSEE Parties and
are not subject to a standard of reasonableness.


 


35.
Compliance with Law. LICENSEE shall, at LICENSEE’s sole expense, comply promptly with all applicable federal, state,
county and municipal statutes, laws, codes, rules, orders, requirements, ordinances and regulations (as well as any standards,
guidelines and recommendations issued by a governmental authority) governing the operation of LICENSEE’s business in the
Spaces and in the Facilities (including, without limitation, those requiring the licensure or certification of LICENSEE or LICENSEE’s
agents, representatives, employees and contractors and the provision of Services to Customers). LICENSEE shall conduct LICENSEE’s
business in a lawful manner and shall not use or permit the use of the Spaces or the Facilities in any manner that will tend to
create waste or a nuisance or shall tend to disturb other persons in the Facilities.


 


36.
Intentionally Omitted.


 




    	21



    	 



    

 


37.
Employee Solicitation. During
the Term of this Agreement and for a period of six (6) months thereafter, LICENSEE agrees not to solicit for hire any current
or former employee of LICENSOR and LICENSOR agrees not to solicit for hire any current or former employee of LICENSEE. Notwithstanding
the foregoing, a Party hereto shall not be prohibited from soliciting or hiring a current or former employee of the other Party
hereto if such current or former employee: (a) initiates contact with the first-mentioned Party regarding possible employment;
or (b) responds to a general advertisement for employment placed by the first-mentioned Party (including, without limitation,
any general advertisement for employment placed on the first-mentioned Party’s website).


 


38.
Holding Over. LICENSEE shall surrender the Spaces and vacate the Facilities as provided in this Agreement upon the expiration
or earlier termination of this Agreement. If LICENSEE does not so surrender and vacate, then: (a) LICENSEE shall automatically
forfeit all rights to the Security Deposits held by LICENSOR; and (b) the applicable Monthly License Payments payable by LICENSEE
hereunder shall be increased to one and one-half (1.5) times the amount of the Monthly License Payments that would have been payable
pursuant to the provisions of this Agreement if the Term had continued during such holdover period, and LICENSEE shall be obligated
to pay such increased Monthly License Payments during any such period of holdover. Such Monthly License Payments shall be computed
by LICENSOR and paid by LICENSEE on a monthly basis on the first day of any such holdover period and on the first day of each
calendar month thereafter during any such holdover period until the Spaces and Facilities have been surrendered and vacated by
LICENSEE. LICENSOR’s acceptance of such payments shall not in any manner adversely affect its other rights and remedies
and in no event shall any holdover be deemed a permitted extension or renewal of the Term, and nothing contained herein shall
be construed to constitute LICENSOR’s consent to any holdover or to give LICENSEE any right with respect thereto.


 


39.
Condition of the Facilities and Conduct of LICENSEE’s business.


 


39.1.
Applicable Laws/Restrictions. LICENSEE hereby accepts the use of the Spaces and the Facilities subject to all applicable
zoning, municipal, county and state laws, ordinances and regulations governing the Facilities and any easements, covenants or
restrictions of record, and accepts this Agreement subject thereto and all matters disclosed thereby, and any exhibits attached
hereto.


 


39.2.
As-Is Condition. By opening for business at the Facilities, LICENSEE accepts the Spaces in an “AS IS”
condition and with all faults including, without limitation, any vibrations, odors, or noise from LICENSOR’s operations,
and LICENSEE acknowledges that LICENSEE has satisfied itself by LICENSEE’ s own independent investigation that the Facilities
are suitable for LICENSEE’s intended use. Except as set forth in this Agreement, none of the LICENSOR Parties have made
any representations or warranties as to the present or future suitability of the Facilities for the conduct of LICENSEE’s
business, nor has any LICENSOR Party represented or warranted that the Facilities meet current federal, state, county and municipal
statutes, laws, codes, rules, orders, requirements, ordinances and regulations governing the operation of LICENSEE’s business
or LICENSEE’s provision of Services.


 


39.3.
Maintenance. LICENSEE is responsible for maintaining the Spaces in a neat, first-class condition.


 


39.4.
No Nuisance, Interference. LICENSEE shall conduct its business and control and supervise its agents, representatives,
employees, and contractors in such a professional manner so as not to create any nuisance or interfere with, annoy, or disturb
(including, without limitation, as a result of any picket, strike or labor dispute at or near the Facilities by LICENSEE’s
employees) LICENSOR’s operation of the Facilities
or LICENSOR’s employees, Members, licensees, or invitees. LICENSEE shall not bother or harass LICENSOR’s employees,
Members, licensees, or invitees if such individuals express disinterest in LICENSEE’s Services.


 




    	22



    	 



    

 


39.5.
No Disparagement. LICENSOR and LICENSEE agree that neither they nor their agents, representatives, employees or
contractors shall be disruptive to the operations of the other Party, or speak negatively to Customers, Members or LICENSOR’s
guests about the Facilities, the Facilities’ personnel, or LICENSEE’s personnel, or make any disparaging remarks regarding,
or any remarks that could reasonably be construed as disparaging of or intended to be harmful to the business, business reputation
or personal reputation of, the other Party, whether orally or in writing (including via social media).


 


39.6.
No Competition. During the Term, LICENSEE (including its agents, representatives, employees, and contractors) shall
not sell, advertise, offer or promote, orally or in any medium that now exists or that exists in the future (including, without
limitation, social media) any Personal Training or group fitness classes or, at the Facilities, any health and fitness facilities
that compete with LICENSOR.


 


40.
Intentionally Omitted.


 


41.
Non-Disclosure. LICENSOR and LICENSEE recognize that materials used by them in the daily operation of their businesses,
including but not limited to forms, procedures, memos, manuals, training materials, marketing materials, and guest and member
lists (collectively, “Proprietary Information”), are considered vital to those operations, and the sharing
of such materials with competitors or potential competitors of the other Party could have a material detrimental effect on the
future profitability of the other Party. As such, LICENSOR and LICENSEE agree: (a) not to reveal, disclose, identify, or otherwise
provide any Proprietary Information to any person, firm, corporation, or other entity, including the general public, directly
or indirectly, without the prior written consent of the owner of the Proprietary Information; (b) not to use the Proprietary Information
in connection with work performed for the benefit of any competitor to the owner of the Proprietary Information or for its personal
benefit or any of its members, managers, directors, officers, employees, affiliates, agents or representatives; and (c) not to
copy or reproduce, in any manner, any Proprietary Information. In addition, in no event may either Party release any information
about this Agreement, or make any public announcements or issue any press releases concerning this Agreement or the proposed transactions
contemplated hereby, without the prior written approval of the other Party, which approval may be withheld in the other Party’s
sole and absolute discretion. Each Party shall retain ownership of any and all of its Proprietary Information that it provides
to the other Party in connection with the performance of this Agreement. All Proprietary Information of the other Party shall
be returned or destroyed upon the termination or expiration of this Agreement.


 


42.
Relationship of the Parties. LICENSOR and LICENSEE each acknowledge and agree that this Agreement is not intended to create
and shall not be considered as creating any partnership, joint venture, employment agency or any other relationship between LICENSOR
or any of LICENSOR’s employees, agents, representatives, or contractors, on the one hand, and LICENSEE or any of LICENSEE’s
employees, agents, representatives, or contractors, on the other hand, aside from a licensor-licensee relationship solely between
LICENSOR and LICENSEE. LICENSOR and LICENSEE shall not engage in any behavior which could reasonably cause any person or entity,
either directly or indirectly, to reasonably believe that they or any of their employees, agents or representatives are employees
or agents of the other Party. LICENSOR and LICENSEE agree and accept that the terms of this Agreement
do not constitute an employment agreement between LICENSOR and LICENSEE or any of their respective employees, agents, representatives,
or contractors.


 




    	23



    	 



    

 


43.
Intentionally Omitted.


 


44.
Attorneys’ Fees. If either Party brings an action to enforce the terms hereof or declare rights hereunder, the prevailing
Party in any such action, arbitration, trial or appeal thereon shall be entitled to reasonable attorneys’ fees to be paid
by the losing Party as fixed by the arbitrator or court in the same or a separate suit, and whether or not such action or suit
is pursued to decision or judgment.


 


45.
Consequential Damages. Notwithstanding anything to the contrary herein, neither Party shall be liable to the other for
consequential damages, special damages or lost profits.


 


46.
Waiver. No waiver by LICENSOR or LICENSEE of any provision hereof shall be deemed a waiver of any other provision hereof
or of any subsequent breach by the other Party of the same or any other provisions. LICENSOR’s or LICENSEE’ s consent
to, or approval of, any act shall not be deemed to render unnecessary the obtaining of the other Party’s consent to or approval
of any subsequent act by the other Party. The acceptance of any payment hereunder by LICENSOR shall not be a waiver of any preceding
breach by LICENSEE of any provision hereof, other than the failure of LICENSOR to apply the particular payment so accepted, regardless
of LICENSOR’s knowledge of such preceding breach at the time of acceptance of such payment.


 


47.
Authority. If either Party is a corporation, limited liability company, trust, or general or limited partnership, that
Party, and each individual executing this Agreement on behalf of such Party, represent and warrant that such individual is duly
authorized to execute and deliver this Agreement on behalf of said entity.


 


48.
Paragraph Headings. The paragraph headings of this Agreement are intended solely for the convenience of reference and
shall not in any manner amplify, limit, modify or otherwise be used in interpretation of any provisions hereof.


 


49.
Construction. This Agreement shall not be interpreted for or against any Party on the basis that such Party or its legal
representative caused part or all of this Agreement to be drafted,


 


50.
No Healthcare or Administrative Services Provided by LICENSOR. Both LICENSOR and LICENSEE acknowledge and agree that LICENSOR
does not provide healthcare or administrative services pursuant to this Agreement.


 


51.
Survival. Any terms or provisions herein which impose an obligation after termination or expiration of this Agreement,
or which may reasonably be interpreted or construed as surviving, shall survive the termination of this Agreement.


 


52.
Counterparts. This Agreement may be executed in one or more counterparts, each of, which shall be deemed an original,
but all of which together shall constitute one and the same instrument. The Parties agree that a .pdf copy or facsimile copy of
this Agreement bearing authorized signatures may be treated as an original.


 


[Signature
Page Follows]


 




    	24



    	 



    

 


IN
WITNESS WHEREOF, LICENSOR and LICENSEE have executed this Master Facility License Agreement as of the day and year first above
written.


 


	LICENSOR:	 	LICENSEE:
	 	 	 
	FITNESS
    INTERNATIONAL, LLC	 	DRYWAVE
    TECHNOLOGIES, USA, INC.
	 	 	 
	Signature:	 	Signature:
	 	 	 
	 	 	By:	                    
	 	 	 
	Name/Title:
    Todd von Sprecken, Chief Development Officer	 	Name/Title.

                     ● CEO

	 	 	 
	Address:
    3161 Michelson Drive, Suite 600	 	Address:
    999 18th St., Suite 3000
	 	 	 
	Irvine,
    California 92612	 	Denver,
    CO 80202
	 	 	 
	Signature:	 	 
	 	 	 
	 	 	 
	 	 	 
	Name/Title:
    Kathryn Poison, Chief Financial Officer	 	 
	 	 	 
	Address:
    3161 Michelson Drive, Suite	 	 
	 	 	 
	600
    Irvine, California 92612	 	 


 


[Signature
Page to Master Facility License Agreement (Drywave)]


 




    	 



     


    

 


IN
WITNESS WHEREOF, LICENSOR and LICENSEE have executed this Master Facility License Agreement as of the day and year first above
written.


 


	LICENSOR:	 	LICENSEE:
	 	 	 
	FITNESS
    INTERNATIONAL, LLC	 	DRYWAVE
    TECHNOLOGIES, USA, INC.
	 	 	 
	Signature:	 	Signature:
	 	 	 
	 	 	By:	                    
	 	 	 
	Name/Title:
    odd von Sprecken, Chief Development Officer	 	Name/Title:
	 	 	 
	Address:
    3161 Michelson Drive, Suite 600	 	Address:
    999 18th St, Suite 3000
	 	 	 
	Irvine,
    California 92612	 	Denver,
    CO 80202
	 	 	 
	Signature:	 	 
	 	 	 
	 	 	 
	 	 	 
	Name/Title:
    Kathryn Poison, Chief Financial Officer	 	 
	 	 	 
	Address:
    3161 Michelson Drive, Suite	 	 
	 	 	 
	600
    Irvine, California 92612	 	 


 


[Signature
Page to Master Facility License Agreement (Drywave)]


 




    	 



     


    

 


IN
WITNESS WHEREOF, LICENSOR and LICENSEE have executed this Master Facility License Agreement as of the day and year first above
written.


 


	LICENSOR:	 	LICENSEE:
	 	 	 
	FITNESS
    INTERNATIONAL, LLC	 	DRYWAVE
    TECHNOLOGIES, USA, INC.
	 	 	 
	Signature:	 	Signature:
	 	 	 
	 	 	By:	                    
	 	 	 
	Name/Title:
    Todd von Sprecken, Chief Development Officer	 	Name/Title:
	 	 	 
	Address:
    3161 Michelson Drive, Suite 600	 	Address:
    999 18th St., Suite 3000
	 	 	 
	Irvine,
    California 92612	 	Denver,
    CO 80202
	 	 	 
	 	 	 
	Signature:	 	 
	 	 	 
		 	 
	 	 	 
	Name/Title:
    Kathryn Poison, Chief Financial Officer	 	 
	 	 	 
	Address:
    3161 Michelson Drive, Suite	 	 
	 	 	 
	600
    Irvine, California 92612	 	 


 


[Signature
Page to Master Facility License Agreement (Drywave)]


 




    	 



     


    

 


SCHEDULE
10.3.1 


 


Licenses
and Permits: 


 


Any
and all applicable licenses and/or permits that may be required by any governing jurisdiction including, but not limited to, federal,
state, or local agencies.


 




    	 



     


    

 


SCHEDULE
21


 


Trade
Names:


 


SolaJet


 


Drywave


 


Massagewave


 




    	 



     


    




 


EXHIBIT
A


 


Facilities


 


	 	Facility
    Name	 	Address	 	Club

                                                                             
Number	 	Facility
    Owner
	 	 	 	 	 	 	 	 
	1.	Mission
    Viejo — Alicia Pwy.	 	24491
    Alicia Parkway, Mission Viejo, CA 92691	 	533	 	Park
    Aliso Commercial Center Ltd., Coreland Companies


 




    	 



     


    

 


EXHIBIT
A-1 


 


LOCATION
MEMORANDUM AGREEMENT


 


This
Location Memorandum Agreement is by and between Fitness International, LLC, a California limited liability company, both on its
own and on behalf of its wholly owned subsidiary, Fitness & Sports Clubs, LLC, a Delaware limited liability company, (individually
and collectively “LICENSOR”) and Drywave Technologies, USA, Inc., a Delaware corporation (“LICENSEE”).
The effective date of this Location Memorandum Agreement shall be [  ].


 


WHEREAS,
LICENSOR and LICENSEE are parties to that certain Master Facility License Agreement dated as of 1 1 (the “Master
Facility License Agreement”); and


 


WHEREAS,
the Master Facility License Agreement calls for LICENSOR and LICENSEE to confirm for each Facility licensed thereunder the following:
the LICENSOR Facility number and physical address; the Grant Date for the License; the Commencement Date for the License; the
approximate square footage of the Space for the License; and the number of SolaJet Beds in the Space (as such terms are defined
under the Master Facility License Agreement) once all of these dates and figures can be established; and


 


NOW,
THEREFORE, LICENSOR and LICENSEE agree as follows:


 


	 	A.	This
    Location Memorandum Agreement applies to LA Fitness Club No. [  ], located at r 1 (“Club No. [   ]”);
	 	 	 
	 	B.	Hereafter,
    Club No. [  ] shall be deemed a Facility subject to a License under the Master Facility License Agreement;
	 	 	 
	 	C.	The
    Grant Date for the License in Club No. [  ] shall be            1;
	 	 	 
	 	D.	The
    Commencement Date for the License in Club No. [  ] shall be [  ];
	 	 	 
	 	E.	The
    approximate square footage of the Space for the License in Club No.[  ] shall be [  ];
	 	 	 
	 	F.	The
    number of SolaJet Beds for the License in Club No.[ ] shall be [  ];
	 	 	 
	 	G.	The
    execution of this Location Memorandum Agreement shall cause Exhibit A of the Master Facility License Agreement to be automatically
    amended to include Club No. [  ] as a Facility thereon; and
	 	 	 
	 	H.	The
    terms and conditions of the Master Facility License Agreement shall govern the License granted with respect to Club No. [  ] throughout the Term.


 


[Signature
Page Follows.]


 




    	 



     


    

 


EXHIBIT
B 


 


EFT
Authorization


 


LICENSEE
(or other authorizing individual indicated below) hereby authorizes the use of EFT for LICENSOR’ s collection of the Monthly
License Payments due under this Agreement as follows:


 


EFT
REQUEST


 


__________________________,
hereby authorize the bank or financial institution of LICENSEE set forth below (“Bank”) to make payments by the
method indicated below and to post such payments to the account indicated below or to any replacement account (the “Account”) for
purposes of satisfying Monthly License Agreement payment obligations owed by LICENSEE to LICENSOR (including payments for any
charges returned unpaid by Bank), pursuant to that certain Master Facility License Agreement between Fitness International,
LLC, a California limited liability company, as LICENSOR, and Drywave Technologies, USA, Inc., as LICENSEE. LICENSEE hereby
waives any requirement that LICENSOR provide prior notification of any amounts due. This authorization shall become effective
upon execution by LICENSEE’ s authorized signatory.


 


	 	Checking
    account #:	 	 	 	 
	 	 	 	 	 	 
	 	Checking
    account routing 	 	 	(must attach a voided check)
	 	 	 	 	 	 
	 	#
    OR	 	 	 	 
	 	 	 	 	 	 
	 	Credit
    card account #	 	 	Exp.
    Date 	


 


I
understand that there will be a $10.00 fee charged for any and all withdrawals returned unpaid or declined.


 


Bank
name: ____________________________


 


Bank
address: ____________________________


 


City,
state, zip: ____________________________


 


Signature
authorizing EFT debits: ____________________________


 


On
behalf of:


 


Name
and title (please print): ________________________________


 




    	 



     


    

 


EXHIBIT
C


 


Services


 


	Permitted
    Uses
	Drywave’s
    massage technology, the SolaJet® provides, touchless, massage to the client, and produces therapeutic heat and a flushing
    body “wave” that combines three therapies in one. Hydro massage services utilizing heated jets of water controlled
    by the machine’s computer to provide a precise and relaxing treatment in as little as 15 minutes. For the avoidance
    of doubt, all massage services are provided via such jets of water, and no LICENSEE Parties shall touch any Customers and/or
    LICENSOR’s Members.


 




    	 



     


    

 


EXHIBIT
D


 


Intentionally
Omitted


 




    	 



     


    

 


EXHIBIT
E 


 


LICENSE
RULES AND REGULATIONS 


 


	1.	Business
    Hours. LICENSEE must be open for business as agreed in writing from time to time. See Paragraph 18 for initially agreed
    upon hours of operation.
	 	 
	2.	Business
    Address. The U.S. Postal Services does not deliver mail to LICENSOR facilities. Accordingly, LICENSEE may not use any
    Facility address as a mailing address. For the sole purpose of providing a billing address or a physical address to its Customers
    and payors, LICENSEE may use the address of a Facility with a suite number of “Suite Drywave”; however, LICENSEE
    understands and agrees that mail will not be delivered to any Facility address and that LICENSOR will not be liable for any
    mail sent to LICENSEE at such address.
	 	 
	3.	Dress
    Code. LICENSEE and its employees, agents, representatives and contractors are required to dress in a professional manner
    while operating LICENSEE’s business in the Facilities. Any clothing worn by the LICENSEE or its employees, agents, representatives
    or contractors shall properly identify LICENSEE’s independent nature by identifying the name of LICENSEE’s affiliated
    business. While working in the Facilities, LICENSEE employees, agents, representatives and contractors may not wear apparel
    displaying a LICENSOR “Logo” or trade name, nor any clothing that shall in any way indicate or imply that LICENSEE
    or any of its employees, agents, representatives or contractors are employees of LICENSOR. Street clothing, including, but
    not limited to, blue jeans, sandals and hard sole shoes (such restrictions being consistent with the general club dress code)
    are not acceptable apparel while working in the Facilities.
	 	 
	4.	Cleanliness.
    LICENSEE is required to maintain a clean, healthy and sanitary working environment at all times. LICENSEE being cited
    or warned by county, state or city health inspectors for maintaining unsatisfactory working conditions may become grounds
    for termination of the Agreement if such unsatisfactory working conditions persist.
	 	 
	5.	Professional
    Conduct. LICENSEE and its employees, agents, representatives and contractors shall maintain a high professional standard
    of conduct at all times, including, without limitation, professional language, conduct and appearance. LICENSEE shall at all
    times be aware that the LICENSOR Facilities are sports clubs seeking to serve its Members and their guests with the highest
    level of service. In addition to these Rules and Regulations, LICENSEE and its employees, agents, representatives, and contractors,
    shall at all times abide by the Facility Rules and Regulations attached hereto as Attachment A to Exhibit E: Facility Rules
    and Regulations and incorporated by reference herein and any other rules as posted at the Facilities (the “Facility
    Rules and Regulations”), which LICENSOR may revise without notice at any time.
	 	 
	6.	Food
    and Drug Administration (F.D.A.) Requirements. LICENSEE and its employees, agents, representatives and contractors agree
    not to violate laws or rules enforced or promulgated by the F.D.A. or similar bodies (including, without limitation, by offering,
    selling, or prescribing services or products or diagnosing conditions in violation thereof) while conducting business in the
    Facilities.
	 	 
	7.	Commissions.
    Under no circumstances is LICENSEE, its employees, agents, representatives or contractors permitted to give money, commissions,
    or gratuities to any LICENSOR employee, nor is LICENSEE, its employees, agents, representatives or contractors permitted to
    solicit or accept money, commissions or gratuities from any LICENSOR employee for any reason.
	 	 
	8.	Phones
    and Sales Desks. LICENSEE and its employees, agents, representatives and contractors are not permitted to use LICENSOR
    phones, computers, printers or desks at any time.
	 	 
	9.	Respect
    for Clients and Fellow Professionals. LICENSEE and its employees, agents, representatives and contractors agree to act
    with integrity in their relationships with colleagues, fellow licensees, club staff and other professionals to enhance the
    contribution of all parties to the achievement of optimum benefits for LICENSEE’s Customers and LICENSOR’ s Members.
	 	 
	10.	Equipment
    Use. LICENSEE agrees that its employees, agents and representatives will NOT use any workout equipment, wherever located
    in the Facilities, or other services offered at the Facilities, at any time for their personal use, unless such individuals
    are Members. If LICENSEE’s employees, agents or representatives are Members, then such individuals may workout at the
    Facilities pursuant to the terms of their respective membership agreements with LICENSOR, provided such individuals do so
    during hours when they are not working, or scheduled to work, in the Facilities.
	 	 
	11.	Personal
    Training; Group Fitness. LICENSEE and its employees, agents, representatives and contractors agree not to conduct or advise
    LICENSOR Members or LICENSEE Customers, invitees or guests with respect to Personal Training or group fitness, nor to coach
    or instruct any Members or guests in connection with prescribed nutritional plans or programs.


 




    	 



     


    

 


ATTACHMENT
A TO EXHIBIT E


 


FACILITY RULES AND REGULATIONS 


 


	1.	Each
    LICENSEE Customer must be personally accompanied or directly supervised by an employee of LICENSEE at all times when such
    Customer is receiving Services.
	 	 
	2.	LICENSEE
    Parties will refrain from engaging in loud, foul or slanderous language or molesting, badgering or harassing Members or Members’
    guests or Facility employees, licensees, agents and contractors. Threatening or violent conduct is prohibited.
	 	 
	3.	LICENSEE
    Parties shall not offer the Services at any Facility to LICENSOR’s employees free of charge or at discounted rates,
    unless approved in writing in advance by the Chief Financial Officer, General Counsel or Vice President of New Business Development
    of LICENSOR. LICENSEE Parties shall not attempt, in any way, to influence LICENSOR’ s employees to endorse or promote
    LICENSEE or the Services.
	 	 
	4.	No
    LICENSEE Party may coach or train Members or Members’ guests (as determined solely by LICENSOR). LICENSEE Parties may
    not engage in any unsanctioned business or enterprise while at the Facilities.
	 	 
	5.	From
    time to time, LICENSOR may permit independent contractors to offer products or services to Members (including to any LICENSEE
    Party who is a Member). LICENSOR does not stand behind or in any way make any representations or warranties concerning, or
    guarantee the quality or reliability of, these products or services, including whether or not these independent contractors
    will remain in business for any period of time.
	 	 
	6.	Except
    as expressly provided in this Agreement, LICENSOR is not liable to LICENSEE Parties for any personal property that is lost,
    damaged or stolen while on or around the Facilities’ premises, including but not limited to, any vehicle or its contents,
    or any property left in a locker.
	 	 
	7.	LICENSEE
    Parties may not bring illegal drugs or alcoholic beverages onto LICENSOR premises.
	 	 
	8.	The
    front desk telephone may only be used by LICENSEE Parties in an emergency. Cell phone usage and photography is prohibited
    in the locker rooms, except in the case of an emergency.
	 	 
	9.	A
    LICENSEE Party is liable to LICENSOR for any Facility damage caused by said Party.
	 	 
	10.	Customers
    shall be required to sign a waiver and release of liability in a form approved by LICENSOR as often as deemed necessary by
    LICENSOR. Until notified by LICENSOR of a change in the form of waiver and release of liability, LICENSEE shall require Customers
    to sign the form attached hereto as Attachment B to Exhibit E: Form of Waiver and Release of Liability.
	 	 
	11.	Customers
    may be offered health and fitness memberships and/or sales presentations by LICENSOR and may be invited to participate in
    a personal training/fitness assessment by LICENSOR.
	 	 
	12.	Other
    than as expressly provided for in this Agreement, Customers are not permitted to use the amenities at the Facilities, including,
    without limitation, use of group fitness classes, exercise equipment, basketball courts, racquetball courts, lobby chairs,
    Kids Klub, etc., unless they are a Member or have a current, LICENSOR-issued guest pass.
	 	 
	13.	LICENSEE
    Parties may not use LICENSOR’s towel service, unless the LICENSEE Party is also a Member entitled to such service.


 




    	 



     


    

 


ATTACHMENT
B TO EXHIBIT E: FORM OF WAIVER AND RELEASE OF LIABILITY


 


WAIVER AND RELEASE OF LIABILITY


 


I
understand and acknowledge that Drywave Technologies, USA, Inc. is licensing facilities (“Facilities”) from Fitness
International, LLC to perform touchless hydro massage services utilizing heated jets of water. In consideration of being permitted
to make use of and/or have access to the Facilities, I do hereby, on behalf of myself and on behalf of my heirs, successors and
assigns, release and forever discharge Fitness International, LLC, its affiliates, and their respective successors, related entities,
directors, officers, employees, and agents (collectively, “Releasees”) from, and hereby waive and release, any and
all claims, demands, actions, and causes of action whatsoever arising out of or in any way related to any loss, damage, or injury,
including death, that may be sustained by me in, on, upon, in connection with or while making use of the Facilities, regardless
of whether any such loss, damage, or injury is caused by the active or passive negligence of the Releasees or otherwise and regardless
of whether any such liability arises in tort, contract, strict liability or otherwise, to the fullest extent allowed by law.


 


	 	 
	Customer
    Signature	 
	 	 
	 	 
	Customer
    Name	 
	 	 
	 	 
	Date	 


 




    	 



     


    

 


EXHIBIT
F


 


PERMITTED
SIGNAGE


 


Must
include the phrase: “Drywave is independently owned and operated and is not an affiliate of LA Fitness. Any representations
made herein are made solely by Drywave.”