l??Hl?lt?IH #mNi??9:and. . ?~15 Em ma N: n. hum.1: CE) 51:. (D Joseph E. Cotterman (SBN 013800) Guillaume Aime (SBN 035331) GALLAGHER KENNEDY, P.A. 215175 East Camelback Road oenix, Arizona 85016-9225 Telephone: (602) 530?8000 -- JAN 2 7 292? FaCSImile: (602) 530-8500 7 cresromesuremoscouar 10e.cotterman@gknet.com .- R. MERINO gurllaume.a1me@gknet.com DEPUTYCLERK Attorneys for Plaint??Arizor/zo Board of Regents, a body corporate for and on behalf of Arizona State Universfw IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA ARIZONA BOARD OF REGENTS, an Arizona body corporate, for and on behalf of Arizona State Unlversity Plaintiff, COMPLAINT REHAB BURGER THERAPY 2, LLC an Arizona limited liability company; AARON and DENISE NELSON, individually and jointly as husband and Wife; KENNETH and JULIE LIKEWISE, individually and jointly as husband and wife; and WILEY ARNETT and PAULA C. ARNETT, individually and as husband and Wife Defendants. Plaintiff Arizona Board of Regents, an Arizona body corporate, for and on behalf of Arizona State University (the ?Board of Regents?), for its complaint against Defendants Rehab Burger Therapy 2, LLC, (?Rehab Burger Aaron and Denise Nelson (?the Nelsons?), Kenneth and Julie Likewise (?the Likewises?), and Wiley Arnett and Paula C. Arnett (?the Araetts?) (Rehab Burger 2, the Nelsons, the Likewises, and the Arnetts are collectively referred to herein as ??Defendants?) alleges as follows: PARTIES 1. Plaintiff Board of Regents is an Arizona body corporate, and was at all times relevant to this action, authorized to do and was doing business in the State of Arizona. 2. On information and belief, Defendant Rehab Burger Therapy 2, LLC (?Rehab Burger is a member-managed Arizona limited liability company. Rehab Burger 2?s members are Denise Nelson, Kenneth Likewise, and Wiley Arnett 3. On information and belief, Aaron and Denise Nelson are husband and wife and residents of Maricopa County, Arizona. At all times relevant to this Complaint each of Aaron and Denise Nelson acted for the bene?t of their marital community. 4. On information and belief, Kenneth and Julie Likewise are husband and wife and residents of Maricopa County, Arizona. At all times relevant to this Complaint each of Kenneth and Julie Likewise acted for the bene?t of their marital community. 5. On information and belief, Wiley Arnett and Paula C. Arnett are husband and wife and residents of Maricopa County, Arizona. At all times relevant to this Complaint each of Wiley and Paula Arnett acted for the bene?t of their marital community. JURISDICTION AND VENUE 6. Through their acts and omissions, including those described below, Defendants caused events to occur in the State of Arizona out of which Plaintiffs claims arose. As a result, Plaintiff has suffered damages that exceed the jurisdictional minimum of this Court. 7. This Court has jurisdiction to hear and enter a judgment in this matter pursuant to Ariz. Const. art. 6, 14, and A.R.S. 12-123. 8. Venue is proper in this Court pursuant to A.R.S. 12-401. BACKGROUND 9. Arizona State University, though the Board of Regents, leases real estate on the various properties it owns around its Tempe campus. 10. On information and belief, Rehab Burger 2 was formed in 2015 by Denise Nelson. 3?1 l?d h?Rehab Burger 2 Breaches the Lease Agreement 11. Wiley Arnett, as a member of Rehab Burger 2, signed on behalf of Rehab Burger 2 a retail lease agreement dated January 1, 2016 with the Board of Regents (the ?Brickyard Lease Agreement?) to operate a restaurant at the Brickyard on Mill in Tempe, Arizona. 12. A true and correct copy of the Brickyard Lease Agreement is attached hereto as Exhibit A and incorporated herein by this reference. 13. Article 1 of the Brickyard Lease Agreement sets forth the basic terms of the lease, such as the calendar term, the rent, any additional fees owed, and the default interest rate, among other terms. 14. Article 1.10 of the Brickyard Lease Agreement provides that the term of the lease shall be from January 1, 2016 ?continuing approximately 120 months until December 31, 2025.? 15. Article 1.12 of the Brickyard Lease Agreement provides for the base rent for the leased premises as shown below PERIOD RATE PER ANNUAL SQUARE FOOT 1/1/2016 12/31/2016 $20.00 $0.00 $0.00 1/1/2017 12/31/2017 $20.60 $4,944.00 $59,328.00 1/1/2018 12/31/2018 $21.22 $5,092.32 $61,107.84 1/1/2019 12/31/2019 $21.85 $5,245.09 $62,941.08 1/1/2020 12/31/2020 $22.51 $5,402.44 $64,829.31 1/1/2021 - 12/31/2021 $24.76 $5,942.69 $71,312.24 1/1/2022 12/31/2022 $25.50 $6,120.97 $73,451.61 1/1/2023 12/31/2023 $26.27 $6,304.60 $75,655.15 1/1/2024 - 12/31/2024 $27.06 $6,493.73 $77,924.81 1/1/2025 - 12/31/2025 $27.87 $6,688.55 $80,262.55 16. Additionally, Article 1.14 of the Brickyard Lease Agreement provides that Rehab Burger 2 shall be responsible for its proportionate share of the CAM expenses, de?ned as the prorated shares of the expenses and costs to ope-rate the building in which Rehab Burger 2 had its restaurant under the lease. 17. Article 1.15 of the Brickyard Lease Agreement provides that Rehab Burger 2 3 was required to pay a $9,600.00 security deposit, which would be applied against any outstanding rent or charges or late fees in the event Rehab Burger 2 failed to perform its obligations thereunder. 18. Article 1.16 of the Brickyard Lease Agreement provides that Rehab Burger 2 was required to pay a parking fee of $40.00 per space per month for three parking spaces granted to it thereunder. 19. Article 1.20 of the Brickyard Lease Agreement provides that the contractual interest rate in the event of default is twelve percent per annum on all amounts due under the Brickyard Lease Agreement. 20. Article 16 of the Brickyard Lease Agreement provides that events of default thereunder include, among other things, the failure of Rehab Burger 2 to pay rent when due, and Rehab Burger 2 vacating or abandoning the leased premises. 21. Article 16.2 of the Brickyard Lease Agreement provides a list of remedies available to landlord, the Board of Regents, in the event of Rehab Burger 2?s default thereunder. 22. Under Article 162(0) of the Brickyard Lease Agreement, the Board of Regents is entitled to terminate the Brickyard Lease Agreement upon Rehab Burger 2?s default, by giving notice of such termination to Rehab Burger 2. 23. Under Article 16.2(d) of the Brickyard Lease Agreement, upon Rehab Burger 2?s default, the Board of Regents is entitled to relet the premises without terminating the lease, and collect and apply the rent from such reletting to offset any amount owed by Rehab Burger 2. 24. Article 16.2 also provides that Rehab Burger 2 shall be responsible and ?nancially liable to the Board of Regents for any additional costs incurred by the Board of Regents in enforcing its rights and remedies under the Brickyard Lease Agreement, including but not limited to reasonable attorneys? fees. 25. Article 16.3 of the Brickyard Lease Agreement provides that if it is terminated by the Board of Regents pursuant to paragraph 16.2, Rehab Burger 2 shall remain liable for 4 coouoxm-samw any Rent and damages which may be due or sustained prior to such termination, all reasonable costs, fees and expenses including, but not limited to, reasonable attOrneys? fees, costs and expenses incurred by [the Board of Regents] in pursuit of its remedies hereunder and additional damages (the ?Liquidated Damages?), which shall be an amount equal to the Rent which, but for termination of this lease, would have become due during the remainder of the Lease Term, less the amount of Rent, if any, which [the Board of Regents] shall receive during such period from other to whom the Leased Premises may be rented.? 26. On information and belief, Rehab Burger 2 breached the Brickyard Lease Agreement by: failing to pay rent, and the applicable late fees and charges, when due; (ii) failing to pay rent, and the applicable late fees and charges, after the Board of Regents noti?ed Rehab Burger 2 of its default when the parties entered into an amendment to the lease in February 2019; and vacating the leased premises in October 2019. 27. On January 14, 2019, the Board of Regents sent a notice of failure of tenant to pay rent and notice of landlord inspection of premises (the ?Notice of Failure?) to Rehab Burger 2 and the other defendants as guarantors of the Brickyard Lease Agreement. 28. A true and correct copy of the Notice of Failure is attached hereto as Exhibit and incorporated herein by this reference. 29. In compliance with the provisions of the Brickyard Lease Agreement, the Notice of Failure alerted Rehab Burger 2 and the guarantors that Rehab Burger 2 had failed to pay rent and late charges and fees when due and that there was an outstanding balance of $66,901.30 due. 30. Following the Notice of Failure, the Board of Regents, Rehab Burger 2, and the guarantors negotiated an amendment to the Brickyard Lease Agreement. 31. On February 27, 2019, the Board of Regents and Rehab Burger 2, through its members Wiley Arnett Denise Nelson, and Kenneth L. Likewise, entered into the First 5 b?L h?i inn-i l???ml-Q U) Amendment to the Brickyard Lease Agreement (?First Amendment?). 32. A true and correct copy of the First Amendment is attached hereto as Exhibit and incorporated herein by this reference. 33. In the First Amendment, the Board of Regents agreed to temporarily forbear from exercising its remedies under the Brickyard Lease Agreement and agreed to restructure certain payment obligations from Rehab Burger 2. 34. The Board of Regents? obligations under the forbearance and restructuring were conditioned upon Rehab Burger 2?s compliance with the terms of the First Amendment. 3 5. Section 5 of the First Amendment reserved the Board of Regents? rights, upon any failure by Rehab Burger 2 to its obligations thereunder, to terminate the forbearance and exercise all rights and remedies under both the First Amendment and the Brickyard Lease Agreement. 36. On or around August 5, 2019, Rehab Burger 2 defaulted again on its payment obligations under both the First Amendment and the Brickyard Lease Agreement, failing to pay the rent and all other amounts due. 37. On October 4, 2019, the Board of Regents sent a notice of default and notice of landlord retaking the premises (the ?Notice of Default?) to Rehab Burger 2 and the other named defendants as guarantors of the Brickyard Lease Agreement. 38. A true and correct copy of the Notice of Default is attached hereto as Exhibit and incorporated herein by this reference. 39. In compliance with the provisions of the Brickyard Lease Agreement, the Notice of Default alerted Rehab Burger 2 and the guarantors that Rehab Burger 2 had failed to pay rent and late charges and fees when due, had vacated or abandoned the leased premises or ceased to conduct its usual and customary business on the leased premises, and that there was an outstanding balance of $85 ,677.43 due, including late fees, charges, and the application of the default interest rate of 12% under the Brickyard Lease Agreement. 40. On November 1, 2019, the Board of Regents sent a notice of termination of 6 i?lease (the ?Termination Notice?) to Rehab Burger 2 and the other named defendants as guarantors of the Brickyard Lease Agreement. 41. A true and correct copy of the Termination Notice is attached hereto as Exhibit and incorporated herein by this reference. 42. In compliance with the provisions of the Brickyard Lease Agreement, the Termination Notice informed Rehab Burger 2 and the guarantors that the Board of Regents had elected to terminate the lease, effective immediately and was pursuing its available remedies as further described in the Notice of Default. 43. Rehab Burger 2 has failed to make any payments on the outstanding balance under the Brickyard Lease Agreement to date and has not responded to the Notice of Default or the Termination Notice. 44. Any cure period has expired and the Board of Regents is entitled to exercise all of its rights and remedies against Rehab Burger 2 regarding the Brickyard Lease Agreement. The Nelsons, the Likewises, and the Arnetts Breached the Guaranty. 45. As part of the consideration for the Board of Regents to enter into the Brickyard Lease Agreement, Aaron and Denise Nelson, Kenneth and Julie Likewise, and Wiley Arnett and Paula C. Arnett all signed a personal guaranty for the lease, which was attached to the lease as exhibit (the ?Guaranty?). The Nelsons, the Likewises, and the Arnetts are collectively referred to herein as the ?Guarantors?, and each, a ?Guarantor?. 46. A true and correct copy of the Guaranty is attached hereto as Exhibit and incorporated herein by this reference. 47. The Guarantors each guaranteed Rehab Burger 2?s performance under the Brickyard Lease Agreement, and each of the Guarantors are jointly and severally liable for any obligations and liabilities of Rehab Burger 2 arising out of the Brickyard Lease Agreement. 48. Under Section 6 of the Guaranty, the Guarantors each waived all requirements as to presentment for payment and demand and notice of acceptance or default. 7 49. Under Section 9 of the Guaranty, the Guarantors each agreed to pay reasonable attorneys? fees and costs incurred by the Board of Regents in connection with enforcement of the Guaranty. 50. The Guarantors have failed and refused to pay the amounts due under the Guaranty and the Brickyard Lease Agreement. 51. Any applicable notice or cure periods have expired, and the Board of Regents is entitled to exercise all of its rights and remedies against the Guarantors regarding the Guaranty. COUNT I BREACH OF LEASE AGREEMENT (Against Defendant Rehab Burger 2) 52. Plaintiff restates and incorporates by reference the allegations of Paragraphs 1 through 51 above. 53. The Brickyard Lease Agreement is a valid, binding, and enforceable contract between the Board of Regents and Rehab Burger 2. 54. Rehab Burger 2 breached the Brickyard Lease Agreement by failing to timely pay the amounts due thereunder, and by vacating the premises prior to the expiration of the term of the Brickyard Lease Agreement. 55. Rehab Burger 2?s breaches caused the Board of Regents to incur damages in an amount not less than $524,225 .03, or such other greater amount to be proven at trial, plus pro? and post-judgment interest at the rate speci?ed in the Brickyard Lease Agreement, attorneys? fees, and costs. 56. Under the Brickyard Lease Agreement, Rehab Burger 2 agreed to pay the Board of Regents? attorneys? fees, legal expenses, and court costs in the event that Rehab Burger 2 breached the Brickyard Lease Agreement. 57. The Board of Regents is entitled to recover its attorneys? fees and costs pursuant to the Brickyard Lease Agreement, A.R.S. 12-341 and 12641.01, and any other applicable contract, law, statute or rule. 58. Pursuant to Articles 16.2 and 16.3 of the Brickyard Lease Agreement, the Board of Regents is entitled to an award of its post-judgment attorneys fees, in an amount subject to application to and approval by this Court, incurred in pursuing and enforcing its rights and remedies encompassed within any judgment this Court enters in the Board Of Regents? favor. COUNT II BREACH OF GUARANTY (Against Defendants Nelson, Likewise, and Arnett) - 59. Plaintiff restates and incorporates by reference the allegations of Paragraphs 1 through 58 above. 60. Each of the Guarantors entered into the Guaranty, which constitutes a valid, binding, and enforceable contract. 61. By letter dated January 14, 2019 and October 4, 2019, the Board of Regents noti?ed the Guarantors of Rehab Burger 2?s default including but not limited to Rehab Burger 2?s default for failure to pay all amounts due under the Brickyard Lease Agreement, and demanded that the Guarantors cure the defaults. 62. The Guarantors have failed to perform under the Guaranty by, among other things, failing and refusing to pay all amounts due thereunder and under the Brickyard Lease Agreement. 63. The Board of Regents performed all its obligations and duties required under the agreements between and among it, Rehab Burger 2, and the Guarantors, including but not limited to the Guaranty. I 64. The Guarantors? failure to cure Rehab Burger 2?s breaches of the Brickyard Lease Agreement constitutes a material breach of the Guaranty. 65. The Guarantors? breach has damaged the Board of Regents in at least the amount of $524,225.03, to be proven at trial. The Board of Regents is entitled to recover its damages, attorneys? fees, and costs plus interest at the contract rate of Twelve Percent per annum under the Guaranty, A.R.S. 12-341, 12-34101, and any other 9 mmummamw applicable contract, law, statute or rule. 66. Pursuant to the Brickyard Lease Agreement and Guarantors? guaranty of all amounts due thereunder, the Board of Regents is entitled to an award of its post-judgment attorneys? fees, in an amount subject to application to and approval by this Court, incurred in pursuing and enforcing its rights and remedies encompassed within any judgment this Court enters in the Board of Regents? favor. PRAYER FOR RELIEF WHEREFORE, Plaintiff Arizona Board of Regents requests judgment to be entered against Defendants as follows: A. In favor of Plaintiff Arizona Board of Regents and against Defendants Rehab Burger Therapy 2, LLC, Aaron and Denise Nelson, Kenneth L. and Julie S. Likewise, and Wiley Arnett HI and Paula C. Arnett for Plaintiff?s damages in at least the amount of 524,225.03, to be proven at trial; B. For prejudgment and post-judgment interest at the rate of Twelve Percent per annum as set forth in the Brickyard Lease Agreement, from the date of Defendants? default, January 14, 2019, until paid; C. For Plaintiffs? taxable costs and attorneys? fees pursuant to the terms of the Brickyard Lease Agreement, the Guaranty, A.R.S. 12?341, 12?341.01, and any other applicable contract, law, statute or rule; D. For Plaintiff? post-judgment attorneys? fees and costs expended in enforcing its rights and remedies encompassed in any judgment this Court enters in Plaintiffs favor, subject to application to, and approval by, this Court; and 10 For such other and further relief as the Court and jury deem just and proper. DATED January 97 7 7673651'vlf99-8137 2020. GALLAGHER KENNEDY, P.A. We?eb eph E. Cotterman Guillaume J. Aime 2575 East Camelback Road Phoenix, Arizona 85016-9225 Attorneys for Plainti? 11 RETAIL LEASE ARIZONA BQARD 0E REGENTS, Md): cements, far mm bekag'fofA rizom State Utz?versim EANDEORD ENE BURGER THERAPY 2, EEC, Arizmm waited {iab?iw commy, FENANT #15-0133623 TABLE OF CONTENTS Lass ARTICLE 1. - FUNDAMENTAL LEASE PROVISIONS AND DEFINITIONS 1Sn?l 96 1.19 1.20 1.21 1.22 ARTICLE 2.1 2.2 2.3 ARTICLE 3. - ARTICLE 4. - ARTICLE 5. - 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 ARTICLE 6. 6.1 6.2 ARTECLE 7. - 7.1 7.2 7.3 7.4 7.5 {1515-0133612 1 Effective Date .. .. Landiord .1 Landlord?s Notice Address Tenant - Tenant? Trade Name. .. Tenant?s Notice Address .. 1 Guarantor-s . .. . 1 Leased . 1 Permitted Use .. 1 Lease Term . .2 Rent Commencement Date 2 Base Rent 2 Percentage Rent . 2 Tenant?s Proportionate Share Expenses Security Depomtz Parking . 2 3 3 3 Late Default Interest Rate . Dishonored Check/Payment Fee 3 Option Terms .3 CERTAIN ADDITIONAL DEFINITIONS AND OTHER Wu? .. 3 Continuation Letterii Exercise ofOptions to Extend the Lease Term. . .. LEASE TERM RENT - Rent Payable. Base Rent. Percentage Rent ?Lease Year? De?ned. .. ?Gross Sales? De?ned. .. Statements of Gross .. .. .. Tenant?s Records . Payment ofTotal Rent. .. Security Deposit. Taxes or Fees on .. REAL AND PERSONAL PROPERTY CAM EXPENSES Tenant?s Personal Property TaxesS CAM Expenses. 8 ALTERATIONS Construction by Landlord. 11 Completion ofthe Tenant Improvements. 11 Alterations by Tenant. 11 Mechanic?s Liens. 11 Tenant?s Trade Fixtures. 12 TABLE OF CONTENTS (continued) Ease ARTICLE 8. - OPERATIONS .. - .. - 13 8.1 Operations by Tenant. - 13 8.2 Signs and Advertising. 15 8.3 Painting and Displays by Tenant. 15 8.4 Storage and Office Areas. - 15 8.5 Tenant?s Trade Name 16 8.6 Operating Hours. 16 8.7 Parking. 16 8.8 Covenant Not to Compete. - 1 6 8. 9 Negative Covenant. 17 ARTICLE 9. -REPAIRS . 17 9.1 Repairs to be Made by Landlord. 9.2 Repairs to be Made by Tenant? 9 3 Damage to Leased 1?1 COMMON COMMON CHANGES TO BUILDING AND PROJECT . . .. 18 10.] Use of Common Areas and Common Elements 18 10.2 Management and Operation of Common Areas - 18 10.3 Roofand Walls 18 1t). 4 Changes and Additions to Building andz?or Project 18 ARTICLE 11- UTILITY SERVICES . . . . .. 19 11 1 Tenant?s 19 11.2 I andlord May Furnish 19 11.3 Discontinuances and Interruptions of Utility Services 19 ll 4 Non-Pament by Tenant. 20 ARTICLE 12. AND INSURANCE - . .. . . ?-20 12.1 Indemnity by Tenant. - 20 12.2 Landlord Not Responsible For Acts of Others. 20 12.3 ?l?enant?s Insurance. 20 12.4 Tenant?s Contractor's insurance. 21 12.5 Policy Requirements. 22 12.6 Increase in Insurance Premiums . .23 12.7 Waiver of Subrogation - - . 23 12.8 Veri?cation of Coverage 23 12. 9 Approval 24 ARTICLE 13. AND DESTRUCTION. 13.1 Landlord?s and Tenant?s Obligations to Repair and Reconstruct. 24 13.2 Landlord?s Option to Terminate Lease. 24 13.3 Insurance Proceeds - 2 5 ARTICLE 14. CONDEMNATION . .-.25 14.1 Effect of Taking. 25 14. 2 Condemnation Awards 2 5 ARTICLE 15. -ASSIGN MENTS AND -. . . . -.- 15.1 Landlord?s Consent Required. -. 25 15.2 Transfer owanorship Interests 26 15.3 Acceptance of Rent from Transfercc. 26 15 .4 Transfer Not a Release - - 26 ARTICLE 16 -DEFAULT .. 27 16.1 ?Event of Default? De?ned 27 16.2 Remedies 28 1815-0133622 ii TABLE OF CONTENTS (continued) Bees 16. 3 . . ..29 ARTICLE 1?7. - SUBORDINATION AND ATTORNMENT - . .- . . 17.1 Subordination 30 17.2 Mortgagee?s Unilateral Subordination. 30 17.3 Attainment. - . - 3 1 17.4 Title Exceptions. 31 ARTICLE 18. - NOTICES 18.1 Sending ofNotiees. 3 1 18.2 Notice to Mortgagees. 3 1 ARTICLE 19. - MSCELLANEOUS .. . . 19.1 Estoppe] Certi?cates. 3 1 19.2 Inspections and Access by Landlord - 32 19.3 No Recording. . . 19.4 Remedies Cumulative; No . 32 19.5 Successors and Assigns 32 19.6 Captions and Headings 3.3 19.? Joint and Several Liability. . 33 19.8 Broker's Commission. . . 33 19.9 No Joint Venture. - - . 33 19.10 No Option -. . ..33 19.11 Holdover . 33 19.12 No Modi?cation . . 34 9. I 3 Severabilibr. 34 1914 Third Party Bene?ciary 34 19.15 Entity Tenants. . .34 19.16 Governing Law and Venue. . 34 19.17 Performance of Landlord?s Obligations by Mortgagetam 19.18 Attorneys Fees; Waiver of Jury lrial and Waiver of Rigiit to Counterelam and" to .. .. 19.19 Limitation on Right of Recoveiy Against Landlord 35 19.20 Guaranty Required . 36 19.21 Force Majeure. 36 19.22 ri?ime ofEssenee. .. 19.23 Quiet Enjoyment 19.24 Tenant?s and Guarantor?s Financial Statements 19.25 Condominium Acts. - . 37 19.26 Nondiscrimination . - 37 19.27 Arbitration :11 Superior 37 19.28 Con?ict oflnterest. 3? 1929 Failure of Legislature to Appropriate 37 19.30 Con?dentiality: . . 733 19.31 Weapons, Explosive Devices and Fireworks? . . . 3..8 19.32 Tobacco-Free .. . . 38 19.33 ASU Names and Marks 38 19.34 Records . . . 3 8 19.35 Surrender. . . - 1113-0133622 RETAIL LEASE EXHIBITS The following drawings and special provisions are attached to the Lease as exhibits and made a part of this Lease. EXHIBIT General site plan of the Building and the Project. Said site plan shows, among other things, the principal improvements which comprise the Building. EXHIBIT Location and Dimensions of the Leased Premises EXHIBIT - Landlord?s Work EXHIBIT Tenant EXHIBIT ?D-l - Retail Building Standard Speci?cations EXHIBIT Rules and Regulations EXHIBIT Estoppe] Certi?cate EXHIBIT - Guaranty EXHIBIT Con?rmation of Rent Commencement Date and Other Terms Estimated First Year CAM Expenses Budget EXHIBIT Prohibited Uses #15-0133622 iv RETAIL LEASE ARTICLE 1. - FUNDANIENTAL LEASE PROVISIONS AND DEFINITIONS 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Effective I) ate: Landlord: Landlord?s Notice Address: Tenant: Tenant?s Trade Name: Tenant? Notice Address: Guarantors: Leased Premises: Permitted Use: #15?0?3362.2 January 1, 2016. ARIZONA BOARD OF REGENTS, a body corporate, for and on behalf of Arizona State University Arizona State University PO. Box 873908 Tempe, Arizona 8 528 7~3908 Attn; Real Estate Operations Director Rent payments shall be made payable to: ASU?Brickxard Of?ce Retail, and mailed to: do Colliers International PO Box 48 5? Portland, Oregon 97208?4857 Rehab Burger Therapy 2, LLC, an Arizona limited liability company Rehab Burger Therapy 7210 E. Street Scottsdale, AZ 85251 Attn: Wiley Arnett Telephone No: 480621?5358 Facsimile No: 480659?3640 Aaron E. Nelson and Denise Nelson, husband and wife; Kenneth L. Likewise and Julie S. Likewise, husband and wife; Wiley Arnett, and Paula C. Arnett, husband and wife. Suite 146 on the ?rst ?oor of the Building, consisting of approximately 2,880 rentable square feet, shown generally on Exhibit together with the seated patio area permitted pursuant to Article 3 herein. Tenant shall use the Leased Premises solely for the purpose of a full service restaurant serving lunch and dinner (and occasionally brunch, at Tenant?s discretion), whose primary menu includes gourmet burgers, beer, wine, and other alcoholic beverages. Nothing herein contained shall be construed as providing Tenant an exclusive right within the Project to conduct the Permitted Use. 1.10 1.11 1.12 1.13 1.14 1.15 1.16 Lease Term: Rent Commencement Date: Base Rent: Percentage Rent: Commencing on the Effective Date continuing approximately 120 months until December 31, 2025. January 1, 201?. Notwithstanding the foregoing, upon the Effective Date, Tenant shall pay Base Rent plus rental tax of 2.3% for month 1 of the second Lease Year in the amount of $5,057.71, which amount will be held by Landlord, without interest, and applied to month 1 of the second Lease Year. PERIOD 1.3112016 - 1213112016 1/1/2017-1213112017 111.12013- 1213112013 11112019~ 1213132019 1111'2020? 123112020 111122021 - I2/3lf2021 ?112022? 12/31/2022 111.0023 1281/2023 1/1/2024 12/31/2024 [fl/2025 - 12/310025 RATEPER SQUAREFOOT $20.00 $20.60 $21 .22. $21.85 $22.51 $24.76 $25 .50 $26.27 $27.06 $27.87 ANNUAL $0.00 $0.00 $4,944.00 $59,328.00 $5,092.32 $61,107.34 $5,245 .09 $62,941.08 $5,402.44 $64,829.3 1 $5,942.69 $71,312.24 $6,120.97 $23,451.61 $6,3 04.60 $75,655.15 $6,493.73 $77,924.81 $6,688.55 $80,262.55 For this nth-pose, Year 1 starts on the Effective Date and ends one calendar year (that is, 365 or 366 days) later, but Year 1 shall continue to the end of the calendar month, if it w0uld otherwise expire on a day other than the last day of a month. All amounts are subject to adjustment based on the ?nal square footage under 2.2 . enant?s Pro onioneteShare of CAM Expenses: _?_eoutitv Dep kin ails-013362.? None Tenant shall pay its Proportionate Share of CAM Expenses (for the retail portion of the Building) beginning an the ?rst day of the fourth month of the ?rst Lease Year, and thereafter. See Patna-gala 6.2 and Exhibit I sit: Conounently with Lease execution, Tenant shall pay to Landlord a security deposit in the amount of $9,600.00, which shall be held in accordance with Paragraph 5.5 herein. Three (3) Parking Permits at the initial rate of $40.00 per space per month. See Paragzap 8.7. 1.17 Tenant Improvements: None. Tenant accepts the Lease Premises in its condition as of the Effective Date as set forth in Exhibit 1.1 8 Brokers: Tena nt?s Broker: Notional-k Grubb Knight Frank Landlord?s Broker: Coliier?s International 1.19 Late Fee: $250.00 or ?ve percent of the delinquent payment, whichever is more. 1.20 [Qefault interest Rate: Twelve percent per annum. 1.21 Dishonored Qheek/?axment fee: $25 0.00 per check/payment. 1.22 Option Tenns: None. Each reference in this Lease to any of the Fundamental Lease Provisions contained in this Article shall be construed to incorporate all of the terms provided under each such Fundamental Lease Provision. in the event of any con?ict beMeea any Fundamental Lease Provision and the balance of the Lease, the fonner shall control. CERTAIN ADD DEFFNETIONS AND OTHER PROVISIUNS 2.1 Definitions. 2.1.1. ?Building? means the portions of the Bank of America Building within Condominium Unit 2 of the Project located at 21 East 6th Street, Tempe, Arizona. The Building is part of the Project. 2.1.2. ?Business (13 means all calendar days except Saturdays, Sundays and holidays recognized by the government of the State of Arizona or by the federal government of the United States of America. if any day on which performance is due hereunder occurs on a day that is not a business day, then the day for such performance shall oCcur on the next occurring business day. 2.1.3. means the City of Tempe, Arizona. 2.1.4. ?Proiect? means The Brickyard on Mill, a multinsc project composed of multiple buildings and an underground parking garage (the and a site plan of the Building and of the current layout of the Project is attached as Exhibit 2.1.5. ?Exlgiration Date? means the end of the Lease Term as provided in Paragrap 1.10, subject to Article .4 below. 2.1.6. ?Delivery Date? means the date Tenant receives keys and access to the Leased Premises. 2.2 1r ion otter. Within ten (10) days of the occurrence of the Rent Commencement Date, the parties will enter into an Addendum to this Lease con?rming such date, the Rent Commencement Date, Term and Expiration Date and the Base Rent pursuant to Exhibit attached hereto. However, Tenant?s failure to do so will not excuse or relieve Tenant from the requirement to timely pay Rent hereunder. #1503351: 3 2.3 Exercise of Options to Extend the Lease Term. ARTICLE 3. - LEASED PREMISES Landlord hereby leases unto Tenant and Tenant hereby leases and takes from Landlord, the Leased Premises for the Lease Term, for the Total Rent, and upon the covenants and conditions hereinafter set forth. Landlord shall deliver the Leased Premises to Tenant in their as-is condition. The Leased Premises do not include any facilities or area outside of such Leased Premises, including but not limited to exteriors of walls, the roof of the Building, the Garage, or any air space above the Building; provided, however, Landlord shall allow Tenant ?oor access penetrations for the duct through the Common Areas adjacent to the Leased Premises for installing Tenant?s exhaust ducts and related equipment in a location to be approved by Landlord, such approval not to be unreasonably withheld. Subject to ?nal approval by Landlord, and Tenant?s compliance with all Applicable Laws, including, but not limited to, permitting and compliance with all applicable requirements of the City and of the Arizona Department of Liquor Licenses and Control, Tenant may operate an outdoor seated patio area adjacent to the Leased Premises. Such patio area is hereby deemed to be a part of and included within the de?nition of "Leased Premises". ARTICLE Iiw LEASE TERM The Lease Term shall he as provided in Paragraph 1.1.0, ending upon the Expiration Date, plus any extensions of the Lease Term pursuant to the provisions of this Lease, unless this Lease is sooner tenninated pursuant to its provisions. Notwithstanding the foregoing, all provisions of this Lease shall fully apply during any period after the Lease Term while Tenant occupies all or any portion of the Leased Premises, but the same shall not constitute a waiver of any of Landlord?s rights or remedies as a result thereof or an agreement to extend or renew the Lease Term. ARTICLE 5.- RENT The Tenant agrees to pay for the use and occupancy of the Leased Premises the sums of money determined as provided in this Article, at the times and in the manner provided: 5.1 Rent Payable. Tenant covenants and agrees to pay to Landlord as rent (?Rent?) for the Leased Premises, all of the following (?Total Rent?): the Base Rent speci?ed in Paragraph 1.12. The Base Rent shall be applied against the Percentage Rent as provided below. the Percentage Rent speci?ed in Paragraph 1.13, for each calendar quarter of the Lease Year (as defined below) less the Base Rent paid for that quarter. all additional sums, charges or amounts of whatever nature to be paid by Tenant to Landlord in accordance with the provisions of this Lease, including but not limited to Tenant?s Proportionate Share of CAM Expenses (as de?ned in Paragraph 6.2), taxes on Rent, Late Fees, interest at the Default interest Rate, and Dishoaored Check/Payment Fees, whether or not such sums, charges or amounts are referred to as additional rent (collectively referred to as ?Additional Rent?). ll [541133622 4 5.2 Base Rent. Base Rent shall be payable on or before the ?rst (1st} day of each calendar month during the lease Term. The ?rst payment of Base Rent due hereunder shall be paid by Tenant on the Rent Commencement Date, as de?ned herein. Base Rent due for a period of less than a ?lli month shall be prorated on the basis of a thirty-day month. 5.3 Percentage Rent. 5 .4 ?Lease Year? De?ned. The ?rst ?Lease Year? shall commence on the Effective Date and shall end on the last day of the nest succeeding month of November. Thereafter, each Lease Year shall consist of successive periods of twelve (12) calendar months, commencing on the ?rst (.lst) day of December and ending on the thirtieth day of November of each calendar year. The last ?Lease Year? shall commence on the ?rst (lst) day of December and shall end on the Expiration Date. 5.5 ?Gross Sales? De?ned. ?Gross Sales" means the actual sales prices of all food, alcohol, goods, wares and merchandise sold or delivered, the total gross income From lease or similar activity, and the actual charges for all services performed by Tenant or by any subtenant, agent, licensee, concessionaire or any other person or entity in, at, from, or arising out of the use of the Leased Premises, whether for wholesale, retail, cash, credit, trade~ in or otherwise, without reserve or deduction for inability or failure to collect. Gross Sales shall include, without limitation, sales and services where the orders therefor originate in, at, from, or arise out of the use of the Leased Premises, whether delivery or performance is made from the Leased Premises or from some other place, made or performed by mail, facsimile, telephone, or telegraph orders, or otherwise received or ?lled at the Leased Premises, made or performed by means of mechanical or other vending devices in the Leased Premises, or which Tenant or any subtcnant, licensee, agent, ccncessionaire or other person in the normal and customary course of its business would credit or attribute to its operations in any part of the Leased Premises. Any deposit not refunded shall be included in Gross Sales. Each installment or credit sale shall be treated as a sale for the full price in the month during which such sale is made, regardless of whether or when Tenant receives payment therefor. Without limitation, no operating expense, capital expense, franchise, occupancy or capital stock tax and no income or similar tax based on income or pro?ts shall be deducted from Gross Sales. The following shall not be included in Gross Sales: i) any exchange of merchandise bemoan stores of Tenant where such exchange is made solely for the convenient operation of Tenant?s business and not for the purpose of consummating a sale made in, at or from the Leased Premises, or for the purpose of depriving Landlord of the bene?t of a sale which would otherwise be made in or at the Leased Premises, (ii) returns to shippers or manufacturers, cash or credit card refunds to customers on transactions (not to exceed the actual selling price of the item returned) otherwise included in Gross Sales, (iv) sales of trade ?xtures, machinery and equipment after use thereof in the conduct of Tenant?s business in the Leased Premises, amounts collected and paid by Tenant to any government for any sales or excise tax, (vi) the amount of any discount on sales to employees while at work in the Leased Premises, (vii) the amount of any complimentary food and beverage provided to customers of the Leased Premises, and the amoant of credit given for any price reduction coupons redeemed at the Leased Premises. Nottsrithstanding the foregoing, the amount of the exclusions described in Bamamohs 5.5 (vii) and 5 hereof shall not collectively exceed more than a total of one percent of Gross Sales in any Lease Year. 5.6 Statements of Gross Sales. Tenant shall deliver to Landlord: within ?fteen (15) days after the close of each calendar quarter of the Lease Term, a reasonably detailed written report signed by Tenant or by an authorized of?cer or agent of Tenant, showing the Gross Sales made in the preceding Calendar quarter, broken down by department and by date and showing promotional and other discounts and employee sales and use, and within sixty {60) days after the close of each Lease Year and within sixty (60) days after the termination of the Lease, a statement of Gross Sales for the preceding Lease Year which shall conform to the foregoing requirements and be in accordance with generally accepted accounting principles consistently applied. The annual statement shall be accompanied by the signed certi?cate of the corporate executive of?cer most familiar with Tenant?s books and records stating speci?cally that he has examined the report of Gross Sales for the preceding Lease Year, (ii) his examination included such tests of Tenant?s hooks and records as he considered necessary or appropriate under the circumstances, such report presents fairly the Gross Sales of the preceding Lease Year, and {iv} the Gross Sales conform with and are computed in compliance with the de?nition of Gross Sales contained in ParagEQh 5.5 hereof. 5.7 Tenant?s Records. For the purpose of permitting veri?cation by landlord of any amounts due as Rent, Tenant will cause the business upon the Leased Premises to be operated so that a duplicate sales slip, invoice or non- resettable cash register receipt, serially numbered, or such other device for recording sales as Landlord approves, shall be issued with each sale or transaction, whether for cash, credit or exchange, and (ii) preserve during the Lease Tenn, and shall keep, for at least three (3) years following the expiration of the Lease 'l'erm, at the Tenant Notice Address or the Leased Premises, a general ledger, required receipts and disbursement journals and such sales records and other supporting documentation, together with original books and records, which shall disclose all information required to determine Gross Sales and which shall conform to and be in accordance with generally accepted accounting principles consistently applied. At any time or from time to time after ?ve (5) business days advance written notice to Tenant, Landlord or Landlord?s Mortgagee, their agents and accountants, shall have the right during business hours to make any examination or audit of each books and records which Landlord or such Mortgagee may desire. If such audit shall disclose a liability in any Lease Year for Rent in excess of the Rent theretofore paid by Tenant for such period, Tenant shall pay such liability. Should any such audit disclose an understatement of Gross Sales equal to or greater than three percent of reported Gross Sales, Tenant shall, in addition, pay the cost of audit, the Additional Rent and interest at the Default Interest Rate on all such Additional Rent then payable, accounting from the date such Additional Rent was due and payable, and (ii) an Event of Default shall be deemed to exist unless, within ten (10) days after Landlord shall have given Tenant notice of such liability, Tenant shall furnish Landlord with evidence to Landlord demonstrating that such liability for Additional Rent was the result of good faith error on Tenant?s part. Further, if such audit shall disclose that Tenant?s records have not been maintained in accordance with the requirements of this Lease and, in the reasonable opinion of Landlord?s independent Certi?ed Public Accountant, are inadequate to disclose such Gross Sales, Landlord shall be entitled to collect, as Additional Rent, an equitable sum determined by Such independent Certi?ed Public Accountant to approximate the Percentage Rent payable by Tenant during the period in question, with any uncertainty caused by the inadequacy of such records to be resolved in favor of the Landlord, as well as such accountant?s reasonable fees. If such audit shall disclose that Tenant?s records, in Landlord?s opinion, are inadecnzate to accurately reflect Tenant?s Gross Sales, Landlord shall have the right to retain a consultant to prepare and establish a proper recording system for the determination of Tenant?s Gross Sales and Tenant agrees that it shall use the system, books and 6 records prescribed by such consultant for such purpose. Tenant shall pay to Landlord, as Additional Rent, the fees and expenses of such consultant. 5 .8 Payment of Total Rent. Tenant shall pay the Total Rent when due and payable, without any set-off, deduction or prior demand therefor whatsoever, in lawful money of the United States of America. Tenant shall not pay any Rent earlier than one month in advance. Tenant hereby acknowledges that the late payment of Rent by Tenant to Landlord will cause Landlord to incur costs not contemplated in this Lease, the exact amount of which will be extremely dif?Cult and impracticable to ascertain. Such costs include, but are not limited to, processing, administrative and accounting costs. Accordingly, if Tenant shall fail to pay any Rent within ?ve (5) days after the same is due and unpaid, Tenant shall be obligated to pay a Late Fee for any Rent payment not paid when due. Such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment and Rent by Tenant. In addition, any Rent which is not paid within ?ve (5) days after the same is due shall bear interest at the Default interest Rate from the ?rst day due until paid. Any Additional Rent which shall become due shall be payable, unless otherwise provided herein, with the next installment of Base Rent. Rent and statements required of Tenant shall be paid and delivered to landlord during normal business home, at the of?ce of landlord or at such other place as Landlord may from time to time designate in a notice to Tenant. Any payment by Tenant or acceptance by Landlord of a lesser amount than shall be due from Tenant to Landlord shall be treated as a payment on account, and further, the parties agree that the acceptance by Landlord of a check for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and Landlord may accept any lesser payment without prejudice to any rights or remedies which Landlord may have against Tenant, or release or waiver of same or of any default hereunder. Nothing herein obligates Landlord to accept less than full payment. Upon any check being dishonored by the bank or institution drawn upon, Tenant shall pay the Dishonored Check/Payment Fee, and Tenant shall be deemed to have not tendered the payment purportedly represented by the check. 5.9 may Deposit- Upcn execution of this Lease by Tenant, Tenant shall deliver to Landlord the Security Deposit, the same to be held as security for the performance by Tenant of all obligations imposed under this Lease which Tenant is required to perform. Landlord shall be entitled to apply the Security Deposit against any damages which it may sustain by reason of Tenant?s failure to perform its obligations under this Lease, but such application shall not preclude Landlord from recovering greater damages if the same can be established. If the Security Deposit is so used, Tenant agrees to replenish same upon written demand. Upon expiration or termination of the Lease Term, any unapplied portion of the Security Deposit shall be returned to Tenant. Landlord is not required to segregate any cash Security Deposit held by Landlord and may place the same in Landlord?s general accounts. No interest shall be due to Tenant thereon or accrue to the bene?t of Tenant. 5.10 Taxes or Fees on Rent. Tenant shall pay to Landlord any sales, transaction privilege, excise and other tax (not including, however, Landlord?s income taxes), or any fee or payment in lieu of any such tax, with reSpect to the Leased Premises, paid or incurred by Landlord to the State of Arizona or any political subdivision thereof, or other taxing authority, upon any Rent payable hereunder, with each payment of Rent. ans-nissazz 7 ARTICLE REAL AND PERSONAL PROPERTY CAM EXPENSES 6. I Tenant?s Personal Property Taxes. Tenant shall pay, before delinquency, to the appropriate taxing authority, all personal property taxes assessed against the personal property owned by it on or in connection with the Leased Premises. Landlord shall have no obligation to pay or reimburse Tenant for Tenant?s personal property taxes on personal property used by it or in connection with the Leased Premises. 6.2 CAM Egpenses. Tenant shall have the obligation to pay common area maintenance expenses for the Project in accordance with the following: . 6.2.1. Tenant shall pay to Landlord, as part of Additional Rent, Tenant?s Proportionatc Share (as de?ned below) of the total amount of the annual CAM Expenses (as de?ned below). 6.2.2. ?Tenant?s Pro ortionate Share? means the tentable area of the Leased Premises divided by the rentablc area of the retail portion of the Building. The testable area of the Leased l?remises and the Tenant?s Proportionate Share will remain ?xed throughout the Lease Term, regardless of future recon?gurations or other changes within the Building (excluding only changes in the proportion of retail and of?ce space as provided below, Building additions or removals resulting from new Building construction, or permanent damage or destruction unrepaired, or condemnation of all or any portion of the Building}. Of?ce and retail areas of the Building are measured differently per industry customs, each determined pursuant to BOMA Standards. The terms ?rentable square feet?, ?rentable square foot" and ?rentable sqmre footage? as used in this Lease with respect to the Leased Premises shall mean ?gross leasable area.? From time to time, Landlord may convert of?ce space in the Building to retail space, or vice versa. If that occurs, Tenant?s Proportionate Share would be adjusted proportionately to re?ect the increase or decrease in retail space in the Building. 6.2.3. Expenses? means all costs of Operation, repair, maintenance and management of the retail component of the Building, including but not limited to real property taxes and assessments, taxes on leasehold improvements, personal property taxes levied on equipment, ?xtures and other personal property of Landlord used in connection with the retail operation of the Building, and any other taxes, excluding Landlord?s income taxes, levied by any federal, state, county, municipal or other governmental entity, whether assessed against Landlord andlor Tenant andfor the retail component of the Building; water and sewer charges; insurance premiums or? any type, including but not limited to, ?re and other casualty insurance, rent loss insurance and public liability insurance; utility expenses, including without limitation, expenses for gas, electricity and telephone; parking charges imposed by the City or other governmental entity and DTC assessments; janitorial expenses; expenses for landscaping and other services; costs, payments, dues or assessments of or contributions to any merchants? association, parking association or other type of association or promotional groop or activity or promotional events in which Landlord elects or is obligated to participate; costs incurred in the management of the retail component of the Building, including without limitation, management fees; heating, ventilation and air conditioning and elevator maintenance and repair (excluding maintenance and repair of any elevator leased to a single tenant); the cost of Supplies, materials, equipment and tools used in the operation, repair, maintenance and management of the retail component of the Building; the wages and salaries of the employees used in the operation, repair, maintenance and management of the retail component of the Building; costs for any onsite management of?ce, including market rent therefor; expenditures for capital replacements of equipment andfor systems, or for improvements normally designated as capital improvements which improvements are either made or installed for the purpose of reducing CAM Expenses or imposed or required by or result from statutes or regulations, or interpretations thereof, promulgated by any a 5-0133622 8 federal, state, county, municipal or other governmental body or agency of any type performing any governmental or other function or any successor agencies performing the same or similar functions, provided, however, the cost of any capital replacements of equipment or systems, or capital improvements, shall be amortized over the useful life to Landlord of such equipment, system or improvement according to generally accepted accounting principles and only the portion of such amortization applicable to any Lease Year shall be included as a CAM Expense for such Lease Year or partial Lease Year; and all other expenses of any type whether or not now customarily Enourred or within the contemplation of the parties hereto. Expenses for the partial Lease Years at the beginning and end of the Lease Term shall be prorated in accordance with Landlord?s customary practice. The ?rst year?s estimated CAM Expenses budget is attached as Exhibit for illustrative purposes only and the budget is subject to change by Landlord at any time and landlord providing an estimated budget does not constitute a representation or warranty that expenses will, in total or in any line item, match the budget. 'l?he Building contains office and retail components. Those Building expenses that are common for the entire Building (for example, exterior maintenance) will be divided hooveen the of?ce and retail components based on relative rentable square footages under Egragraphogg, with only the retail component?s share included in CAM Expenses for this Lease. Those expenses which relate to services, facilities or functions for one component or the other (but not both) will be allocated entirely to that component and those allocated to the retail component will be included in CAM Expenses for this Lease. For example, retail tenants receive limited services, do not receive interior janitorial services and pay for their own electricity. Therefore, expenses for janitorial and electrical services for the office tenants will be entirely allocated to the o?lce tenants and will not be included in CAM Expenses. CAM Expenses further include the retail component's share of all amounts paid or incurred by Landlord with respect to the Building under or pursuant to the Declaration of Covenants, Conditions and Restrictions for Brickyard on Mill Condominiums dated September 13, 1999, as amended, and the Articles, Bylaws and Rules of or adopted by Brickyard on Mill Condominium Association, as amended (the ?Brickyard Condo Documents"), and the Assessmen and any Costs? for the Building pursuant to the Permanent Parking Use License recorded October 15, 1999 in the of?cial records of the Recorder's Of?ce for Maricopa County, Arizona at Instrument No. 99?095096l, by which the Parking Garage is available to the Building?s tenants and their customers (collectively, the ?Brick-33rd Condo Expgg? sec?). To the extent these charges affect more than the Building, the Building shall bear and be charged its proportionate share thereof, with that share to be allocated between the of?ce and retail component per the square footage-s determined under Paragraph 6.2.2. The Building is part of Unit 2 of the Condominium. The estimated amount of these charges is included in the CAM Expenses budget shown on Exhibit To the extent Landlord owns multiple buildings in the Project, some or all Operating Expenses for all buildings may be aggregated subject to the terms of this Lease with the Building to be allocated a proportionate share thereof based on rentable area. As a ?nancial incentive to the development of the leased Premises and other portions of the Building and Garage, Landlord (or af?liates) receive an abatement or reduction in amounts which would otherwise be payable as real property taxes and assessments to the City, Maricopa County or other taxing authority during all or part of the Lease Term. Further, the property of Landlord (or af?liates) may be exempt from real property taxes and assessments during all or part of the Lease Term due to Landlord?s (or its affiliates?) status under Arizona law. Even though such tax abatement or exemption constitutes a ?nancial bene?t to Landlord (or af?liates), CAM Expenses shall be deemed to include, on a calendar year basis, an amount in lieu of such real property taxes and assessments (the ?in Lieu Amount?), for so long [5-013362.2 9 as Landlord (or af?liates) receive the real property tax abatement or exemption during the Lease Term. The current in Lieu Amountl?s) are included in the CAM Expenses budget shown on Exhibit For each subsequent Lease Year for which tax abatement or exemption applies, Landlord and Tenant agree that the Landlord will determine the estimated in Lieu Amount for the Lease Year based on the prior year?s in Lieu Amount, increased for any estimated increased tax rates and estimated increased assessed values for comparable buildings and facilities in the City, and Landlord will adjust such estimate based on actual increased tax rates and increased assessed values when that information is publicly available; provided, however, that in no event will the increase be less than the increase in abated or exempted taxes for the Building and Garage if and to the extent fixed by the county assessor. A?er each Lease Year, the In Lieu Amount for such Lease Year included in CAM Expenses will be reconciled as part of the reconciliation of estimated and actual CAM Expenses. 6.2.4. Landlord shall give to Tenant prior to or during each Lease Year throughout the Lease Term an estimated CAM Expense Statement in which Landlord shall estimate the CAM Expenses for the calendar year (the ?Estimated CAM Expense Statement?). Tenant?s Proportionate Share of estimated CAM Expenses for the Lease Year as set forth on the Estimated CAM Expense Statement shall be divided by twelve (12) and one such installment shall be paid concurrently with each Base Rent payment therea?er until receipt by Tenant of the next Estimated CAM Expense Statement. In addition, Tenant shall pay in ?tll within thirty (30) days following receipt of the Estimated CAM Expense Statement an amount equal to the excess of the installments required to be paid under the current Estimated CAM Expense Statement received by Tenant for the period covered thereby over the actual amount paid by Tenant for such period based on a prior estimate from Landlord. if less than ninetydive percent of the rentable area of the retail portion of the Building shall be occupied by tenants during the period covered by such estimate, CAM Expenses for such period shall be increased to an amount reasonably determined by Landlord to be equivalent to the CAM Expenses that would be incurred if occupancy would be at least ninety-?ve percent during such period. 6.2.5. After each Lease Year, Landlord shall calculate the actual CAM Expenses of the retail component of the Building and shall give Tenant notice of Tenant?s proportionate share of the actual CAM Expenses (?Actual CAM Expense Statement?); provided that such CAM Expenses may be increased if less than ninety-?ve percent (95 of the rentabie area of the retail portion of the Building shall be occupied by tenants during the Lease Term as provided in Paragrap? 6.2.4. if Tenant?s Proportionate Share of the actual CAM Expenses for the past Lease Year as shown on Actual CAM Expense Statement is greater than the payments made by Tenant for the Lease Year, then within thirty (3 0) days following receipt by Tenant of the Actual CAM Expense Statement, Tenant shall pay in full an amount equal to such excess. If Tenant?s Proportionate Share of the actual CAM Expenses for the past Lease Year as shown on the Actual CAM Expense Statement is less than the payments made by Tenant for that Lease Year, the amount of such overpayment shall be credited against the next payment of Tenant?s Proportionate Share of CAM Expense falling due. Even if the Lease has expired or terminated, Tenant shall pay the excess of Tenant?s Proportionate Share for the portion of such year in which Tenant was in occupancy over the estimated CAM Expense payments made by Tenant for that Lease Year and, conversely, any overpayment made shall be rebated by Landlord to Tenant. 6.2.6. Each Actual CAM Expense Statement shall be prepared in accOrdance with generally accepted accounting principles. Within ninety (90) days after its receipt of the Actual CAM Expense Statement, Tenant shall have the right, at its sole cost and expense, on reasonable notice to Landlord, to have its certi?ed public accountant inspect the books and records of Landlord to the extent reasonably necessary to verify the actual CAM Expense Statements charges. #15-0133622 10 ARTICLE 7. - ALTERATIONS 7.1 Construction by Landlord. Landlord has completed ail improvements to or for the Leased Premises, such that all other improvements to be constructed in or for the Leased Premises shalt be Tenant Improvements under Exhibit attached hereto, and Tenant accepts the Leased Premises in their ?as-is? condition. 7.2 Completion of the Tenant Improvements. Tenant shall, at its sole cost and expense, initiate and diligently pursue the design and construction of the Tenant Improvements to be performed by Tenant pursuant to Exhibit adopting a schedule which will permit Tenant to complete Tenant Improvements and open for business not later than sixty (60) days a?er the Delivery Date. Tenant shall complete the construction of Tenant hnprovcments and have a final certi?cate of occupancy issued therefor, and open for business as required by Article 8, on or before the expiration of sixty (60) days after the Delivery Date. 7.3 Alterations by Tenant. Tenant will not make any alterations, renovations, improvements or other installations in, on or to any part of the Leased Premises (including, without limitation, any alterations of the storefront, signs, structural alterations, or any cutting or drilling into any part of the Leased Premises or any securing of any ?xture, apparatus, or equipment of any kind to any part of the Leased Premises) unless and until Tenant shall have caused plans and speci?cations therefor to have been prepared, at Tenant?s expense, by an architect or other duly quali?ed person and shall have obtained Landlord?s written approval thereof. If such approval is granted, Tenant shat] cause the work (including the work described in Exhibit attached hereto) described in such plans and Speci?cat ions to be performed (without variance from the approved plans or speci?cations), at its expense, efficiently. competently and in a good and workmanlike manner by duly quali?ed and licensed persons or entities, without interference with 01' disruption to the operations of tenants or other occupants of the Project. All such work shall comply with all applicable codes, rules, regulations and ordinances. In designing and making any approved changes, Tenant will follow all building standard speci?cations {as referred to in Exhibit unless otherwise expressly agreed to by Landlord in writing. TENANT SHALL NOT MAKE OR ALLOW ANY PENETRATIONS OF OR HOLES IN ANY ROOF S, FLOORS OR WALLS WITHOUT EXPRESS WRITTEN CONSENT, AND COMPLYING WITH REQUIREMENTS THEREFOR IF CONSENT IS GIVEN. UNDER NO CIRCUMSTANCES MAY TENANT MAKE OR ALLOW ANY PENETRATION OF ANY CONCRETE SLAB OR CONCRETE CEILING AND TENANT BF. RESPONSIBLE FOR. ALL DAMAGE TO THE BUILDINGS POST-TENSION SYSTEM OR OTHER DAMAGE RESULTING FROM CUTTING HIGH STRESS CABLING. 7.4 Mechanic?s Liens. No work performed by Tenant pursuant to this Lease, whether in the nature of erection, construction, alteration or repair, shall be deemed to be for the immediate use and bene?t of Landlord so that no mechanic?s or other lien shalt be allowed against the estate of Landlord by reason of" any consent given by Landlord to Tenant to improve the Leased Premises. Tenant shall place the following conuacmal provisions in all contracts and subcontracts for Tenant?s improvements: for Landlord?s bene?t, to the extent legally available, no mechanic?s liens will he asserted against Landlord?s interest in the Leased Premises or the property of which the Leased Premises are a part; notwithstanding anything in said contracts or subcontracts to the contrary, ?l?enant?s contractors, subcontractors, suppliers and materialmen (hereinafter collectively referred to as ?Contractors?) will perform the work andlor furnish the required ?415.0133522 materials on the sole credit of Tenant; the Contractors will immediately discharge any such lien against the Leased Premises or Landlord?s interest therein ?led by any of the Contractor?s suppliers, laborers, materialmen 0r subcontractors; and the Contractors will indemnify and save Landlord harmless from any and all costs and expenses, including reasonable attorneys? fees, suffered or incurred as a result of any such lien against Landlord?s interest that may be filed or claimed in connectiOn with or arising out of work undertaken by the Contractors. Tenant shall pay all persons furnishing labor or materials with respect to any work performed by Tenant or its Contractors on or about the Leased Premises, procuring lien waivers therefor which comply with Arizona Revised Statutes 33?1008. If any mechanic?s or other liens shall at any time be ?led against the Leased Premises or the property of which the Leased Premises are a part by reasoo of work, labor, services or materials performed or ?lmished, or alleged to have been performed or furnished, to Tenant or to anyone holding the Leased Premises through or under Tenant, and regardless of whether any such lien is asserted against the interest of Landlord or Tenant, within twenty (20) days of notice Tenant shall cause the same to be discharged of record or bonded to the satisfaction of Landlord. lfTenant shall fail to cause such lien to be so discharged or bonded, then, in addition to any other right or remedy of Landlord, Landlord may bond same, or discharge the same by paying the timeout claimed to be due, and the amount so paid by Landlord, including reasonable attomeys? fees incurred by Landlord either in defending against such'lien or in procuring the bonding or discharge of such lien, together with interest thereon at the Default Interest Rate, shall be due and payable by Tenant to Landlord as Additional Rent. 7.5 Tenant?s Trade Fixtures. All leasehold improvements and real property fixtures (as distinguished from trade ?xtures) installed in the Leased Premises at any time, whether by or on behalf of Tenant or Landlord, shall not be removed from the Leased Premises at any time, unless such removal is consented to in advance, in writing, by Landlord; and at the eupiration of this Lease (either on the Expiration Date or upon such earlier termination as provided in this Lease), all such leasehold improvements and real property ?xtures shall be deemed to be part of the Leased Premises, shall not be removed by Tenant when it vacates the Leased Premises, and title thereto shall vest solely in Landlord without payment of any nature to Tenant. All trade ?xtures owned by Tenant and located at the Leased Premises shall remain the property of Tenant and shall be removable at any time, including upon the expiration of the Lease Term, provided Tenant shall not at such time be in default of any terms or covenants of this Lease and that such removal would not prevent Tenant from discharging its operational obligations set forth herein, and provided, further, that Tenant shall repair any damage to the Leased Premises caused by the removal of said trade fixtures and apparatus and shall restore the Leased Premises to substantially the same condition as existed prior to the installation of said trade ?xtures, reasonable wear and tear and damage caused by casualty or condemnation excepted. To protect Landlord in the event Tenant defaults hereunder, Tenant hereby grants to Landlord a security interest under the Arizona Uniform Commercial Code in all goods, inventory, equipment, ?xtures and all personal property belonging to Tenant or in which Tenant has an interest which are or may be put into the Leased Premises during the Lease Term and all proceeds of the foregoing (the ?Pomona! Fromm"). Tenant shall not remove any Personal Property ??om the Leased Premises unless Tenant replaces it with similar property of the same or greater value. Said security interest shall secure all amounts to be paid by Tenant to Landlord hereunder, including all costs of collection and other costs speci?ed in this Lease, and any other indebtedness of Tenant to Landlord, as well as the perfomiance of all other obligations of Tenant. Tenant agrees to sign and deliver to Landlord any fmancing statement, chattel mortgage or other security document requested by Landlord to effect or otherwise evidence such security interest. The security interest shall be a ?rst priority security interest. The lien granted hereunder shall be in addition to any Landlord?s lien that may now or at any time hereafter be provided by law, and may be enforced in any trimmer permitted by Arizona law. At Landlord?s direction, Tenant shall remove any of its Personal Property remaining at the expiration of the iris-013362.: 12 Lease Term, and if Tenant does not immediately do so, Landlord may do so with all reasonable costs therefor to he paid by Tenant to Landlord upon demand, anther Landlord may deem abandoned to Landlord the Personal Property or any speci?c portions thereof designated by Landlord. ARTICLE 8. - OPERATIONS 8.1 Operations by Tenant. Tenant will at its expense use the Leased Premises for the Permitted Use and no other. Nothing herein shall be construed as providing Tenant exclusive right within the Building or Project to conduct all or any part of the Permitted Use. Tenant will keep the inside and outside of all glass in the doors, store fronts, and windows of the Leased Premises clean; keep all exterior store surfaces of the Leased Premises clean; replace any cracked or broken glass of the Leased Premises with glass of like color, kind and quality; maintain the Leased Premises in a clean, orderly and sanitary condition, free of insects. rodents, vermin and other pests; keep any garbage, trash, rubbish or other refuse in rat~proof containers Within the interior of the Leased Premises until removed; have any apparatus free of vibration and noise which may be transmitted beyond the Leased Premises; comply with and cauSe the Leased Premises to comply with all federal, state, regional, county, municipal and other governmental stamtes, laws, rules, orders, regulations and ordinances (collectively, the ?lows?? affecting any part of the Leased Premises, or the use and operation thereof for the Permitted Use, also including, but not limited to, those which require the making of any structural, unforeseen or extraordinary changes, whether or not any such statutes, laws, rules, orders, regulations or ordinances which may be hereafter enacted involve a change of policy on the part of the governmental body enacting the same, and all rules, orders and regulations of the National Board of Fire Underwriters, Landlord?s casualty insureds) and other applicable insurance rating organizations or other bodies exercising similar functions in connection with the prevention of ?re or the correction of hazardous conditions which apply to the Leased Premises (collectively, the "Applicable Laws"). Tenant shall continually maintain in full force and effect all certi?cates of occupancy, other permits and other approvals required for Tenant to fully conduct the Permitted Use. Further, Tenant shall use and authorize the use of the Common Area and Common Elements in a manner which complies with all Applicable Laws, If Tenant receives any notice of actual or potential violation of any law or demand for compliance therein, this Tenant will immediately provide Landlord with a copy of all materials received or, in the case of oral notices or demands, inunediately give notice thereof to Landlord. Nothing contained herein shall require Tenant, at its sole cost and expense, to make any repairs which are otherwise required by this Lease to be made by Landlord unless such repairs are caused by the negligence or will?il acts of Tenant, its agents, concessionaires, of?cers, employees, licensees, invitees or contractors; light the exterior signs of the Leased Premises and turn the some off to the extent required by Applicable Laws; comply with and observe and cause those present at the Leased Premises and/or Project with its express or implied consent to comply with and observe all rules and regulations established by Landlord From time to time which apply generally to all tenants in the Building and/or Project. The initial Rules and Regulations are attached hereto as Exhibit comply with and observe and cause those present at the Leased Premises andfor Project with its express or implied consent to comply with and observe the Brickyard Condo Documents described in Paragraph 6.2; maintain suf?cient and seasonal inventory and have su?icient number of personnel to maximize sales volume in the Leased Premises; and conduct its business in all respects in a digni?ed manner in accordance with high standards of store operation consistent with the quality of operation of the Building andfor Project, as determined by Landlord. 8.1.1. In regard to the use and occupancy of the Leased Premises, Common Areas and Common Elements, Tenant will not: at 15.013361}, l3 (C) (I) ?ts-0133612 Place or maintain any merchandise, signage, trash, refuse or other articles in any vestibule or entry of the Leased Premises, on the footwalks or corridors adjacent thereto or elsewhere on the exterior of the Leased Premises, or otherwise obstruct any driveway, corridor, footwalk, parking area, mall or any other Common Area or Common Element; Use or permit the use of any objectionable medium such as, without limitation, loudspeakers, phonographs, public address systems, sound ampli?ers, or reception of radio or television broadcasts within the Project, which is in any manner audible or visible outside of the Leased Premises; Permit undue accumulations of or burn garbage, trash, rubbish or other refuse within or without the Leased Premises; Cause or permit objectionable odors in Landlord?s opinion to emanate or to be dispelled from the Leased Premises; Solicit business in any Common Area or Common Element; Distribute handbills or other advertising matter in any Common Area or Common Element; Receive or ship articles of any kind outside the designated loading areas for the Leased Premises; Use the mall, corridor, or any other Common Area or Common Element for the sale or display of any merchandise or for any other business, occupation or undertaking; Conduct or permit to be conducted any auction, ?ctitious ?re sale, going out of business sale, bankruptcy sale; Use or permit the use of any portion of the Leased Premises or the Project in a manner which will be in violation of any Law or for any activity of a type which is not generally considered appropriate for a ?rst-class operation of the Permitted Use conducted in accordance with good and generally accepted standards of operation or which in any manner will interfere with or disturb other tenants? or occupants? quiet possession of their premises or conduct of their businesses; Place a load upon any ?oor which exceeds the ?oor load which the floor was designed to carry; Operate its heating or air-conditioning in such a manner as to drain heat or air? conditioning from the Common Areas, or other portion of the Building or from the premises of any other tenant or other occupant of?the Building; Use the Leased Premises or the Project for any unlawful or illegal business, use or purpose, or for any business, use or purpose which is immoral or disreputable (including Without limitation ?adult entertainment establishments? and ?adult bookstores"), or in such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the certi?cates of occupancy (or other similar approvals of applicable governmental authorities); l4 Use or permit the use of the, Leased Premises or the Project, or store, use or dispose of materials, chemicals or other property, in violation of any Laws related to environmental conditions or protection, occupational health and safety, public health and safety, hygiene, public nuisance or menace, or Hazardous Substances, as de?ned in environmental Laws, including, without limitation, the Resource Conservation and Recovery Act, 42 U.S.C. ?6901, Qt gag, U.S.C. ?9600, gt m, the Comprehensive Environmental Response Compensation and Liability Act of 3980, 42 U.S.C. 9600, gt the Toxic Substances Control Act, 15 U.S.C. 2601, e_t the Clean Air Act, 42 7401, a_t and the Clean Water Act, 33 U.S.C. 1251, e_-t seq, (collectively, ?Environmental Laws?); or Allow the leakage or seepage of water or other liquids from the Leased Premises. 8.1.2. Tenant acknowledges that it is Landlord?s intent that the Building be operated in a manner which is consistent with the highest standards of decency and morals prevailing in the community which it serves. Toward that end, Tenant agrees that it will not sell, distribute, display or offer for sale any item which, in Landlord?s good faith judgment, is inconsistent with the quality of operation of the Building or may tend to injure or detract from the moral character or image of the Building within such community. 8.2 Signs and Advertising. Tenant will not place or suffer to be placed or maintained on the exterior of the Leased Premises any sign, banner, advertising matter or any other thing of any kind, and will not place or maintain any decoration, letter or advertising matter on the glass of any window or door of the Leased Premises without the prior written approval of Landlord (including approval of the proposed method of attachment or installation of the sign) and without obtaining all required permits or approvals therefor, at Tenant?s sole cost. Tenant will comply with all sign criteria of Landlord and/or the City. Notwithstanding the foregoing, Tenant may, with Landlord?s prior written consent, submit an application to the City for a sign variance, which variance is subject to the City permitting and approval processes. Tenant will keep Landlord advised of the states of the Tenant?s application for such variance, and will give Landlord prompt notice of any hearings related to such request. Tenant will, at its sole cost and expense, maintain any such sign, banner, decoration, lettering, advertising matter or other thing as may be permitted hereunder in good condition and repair at all times, and repair any damage caused by such sign or the removal thereof, and if 'l?enant does not do so, Landlord may do such work, or remove the sign, at the sole cost of 'l?enant. 8.3 Painting and Disolavs bv Tenant. Tenant will not paint or decorate any part of the exterior of the Leased Premises. Tenant will not paint or decorate any part of the interior of the Leased Premises visible from the exterior thereof, without ?rst obtainng Landlord?s written approval. All articles, and the arrangement, style, color and general appearance thereof, in the interior of the Leased Premises including, without limitation, window displays, advertising matter, signs, merchandise and store ?xtures, shall he in keeping with the character and standards of the improvements within the Building and/or Project, as determined by Landlord. Landlord reserves the right to require Tenant to correct any non-conformity. 8.4 Storage and Of?ce Areas,- Tenant shall use only such minor portions of the Leased Premises for storage and of?ce purposes as are reasonably required therefor for the operation of the Permitted Use at the Leased Premises (and for no business located elsewhere). Tenant shall not, without Landlord?s prior written consent, which Landlord #lS-013362.2 is may withhold in its sole discretion, convert any sales area to nonpublic, storage or similar Space, unless such change includes creation of new and equivalent sales space. 8.5 Tenant?s Trade Name. Unless otherwise approved by Landlord, Tenant shall conduct business in the Leased Premises only in Tenant?s Trade Name. 8.6 0_o_erating Hears. Tenant shall cause its business of the Permitted Use to be conducted and operated in good faith and in such manner as shall assure the transaction of a maximum volume of business in and at the Leased Premises. Unless other hours are approved by Landlord in writing, during the Lease Term, Tenant shall cause the Leased Premises to be open for business for at least the minimum hours of 11:00 am. until 7:00 p.111. each Monday through Saturday, and from pm. until 5:00 pm. each Sunday, and such additional hours as shall he seasonally adjusted as approved by Landlord, with reasonably suf?cient staff, equipment and merchandise for the full conduct of such business. If Tenant shall fall to cause its business to be operated during the hours required in the preceding sentence, or as otherwise required by Landlord, in addition to any other remedy available to Landlord under this Lease, Tenant shall pay to Landlord, as Additional Rent and liquidated damages for such breach, 3 sum equal to One Hundred and 00/100 Dollars (SBIOODO) for each hour or portion thereof during which Tenant shall fail to so operate. Tenant shall be entitled to cause its business to be closed for no more than six (6) holidays per Lease Year, which holidays shall include Easter, Thanksgiving and Christmas. Parking. All of the parking permits described in Paragraph 3. 6 shall allow twelve (12) hour parking (that is, 9:00 am. to 9:00 p.111, seven days a week) excluding event days, in unreserved parking spaces in the Garage or in other City controlled downtown parking facilities to be determined from time to time, subject to all applicable rules and regulations, only by Tenant paying, when due, prevailing Garage parking fees in effect from time to time. All unreserved parking spaces in the Garage are available on a ?rst come, ?rst served basis for users. Except for use of these two permits, Tenant?s employees shall not park in the Garage. From time to time, Landlord may make available to Tenant a validation program for customer parking in the Project?s underground garage. If Tenant participates therein, Tenant will be subject to all requirements thereof. If and for so long as the UPC Parking Program is available in the downtown Tempe area and Landlord elects for the Building to participate therein, Tenant will fully participate therein, as the same exists from time to time. Landlord is not responsible for the interference by third parties with or non?availability of parking in any parking facility. 8.8 Covenant Not to Compete. Tenant, its shareholders or other owners, and any Guarantor of Tenant?s obligations hereunder each agree that they shall not, during the Lease Tenn, directly or indirectly, either as a principal, agent, manager, employee, owner, partner, stockholder, director, of?cer, trustee, consultant, or otherwise, engage in business similar to or in competition with the business engaged in by Tenant within a two (2) mile radius oi?the Leased Premises, or such smaller area and on such terms as a court of competent jurisdiction shall deem pennissible to give e??ect to this Paragraph 8.8. sis-0333622 6 8.9 Negativngyenant. Tenant is expressly prohibited from engaging in any of the prohibited uses set forth in Exhibit and operating a Banking Activity. For the purposes of this Lease, ?Banking Activity? shall consist of any one or more or all of the following activities: the taking of deposits of money (whether federally insured or not), storing money, lending money, providing ?nancial services by automated machines, renting safe deposit boxes, providing lines of credit, or (ii) otherwise engaging in one or more ?nancial activities that are generally associated with the operation of a federally or state insured bank, saving institution or credit union. The prohibitions of subparagraph (ii) shall not apply to (A) any retailers who sell merchandise or services on credit, (B) sales of insurance products by an insurance agency, (C) any title insurance andfor escrow company, or (D) any real state brokerage of?ce; provided, however, that none of the foregoing are engaged in any of the activities prohibited under subparagraph ARTICLE 9. - REPAIRS 9.1 Repairs to be Made by Landlord. Landlord, at its expense, will make, or cause to be made to the Leased Premises, structural repairs to exterior walls, structural columns, roof penetrations and structural ?oors which collectively enclose the Leased Premises (excluding without limitation, however, all doors, door frames, store lionls, window and glass) provided, Tenant shall give Landlord reasonable notice of the necessity therefor and provided that the necessity therefor shall not arise from, nor shall be caused by. the negligence or will?rl acts of Tenant, its agents, concessionaires, of?cers, employees, licensees, invitees or contractors. 9.2 Repairs to be Made by Tenant. All repairs to the Leased Premises or any installations, equipment or facilities therein, other than those repairs required to be made by Landlord shall be made by Tenant at its expense. Without limiting the generality of the foregoing, Tenant will keep the interior of the Leased Premises, together with all electrical, plumbing and other mechanical installations therein and the heating, ventilating and air- conditioning system (including the heat pumps but excluding the two pipe chilled water system) in andfor serving the Leased Premises, in good order, condition and repair and will make all replacements from time to time required thereto at its expense. Tenant will surrender the Leased Premises at the expiration of the Lease Term or at such other time as it may vacate the Leased Premises broom clean and in as good condition as when acquired hereunder, excepting ordinary wear and tear and damage covered and paid by casualty insurance, and as further required by Paragraph 19.33 herein. Tenant will not overload the electrical wiring or other utilities serving the leased Premises or within the Leased Premises, and will install at its expense, Subject to the provisions (if-Figag 7.3, any additional electrical wiring or other utilities which may be required in connection with Tenant?s requirements. Any damage or injury sustained by any person because of mechanical, electrical, plumbing or any other equipment or installations, whose maintenance and repair shall be the responsibility of Tenant, shall be paid for by Tenant, and Tenant hereby agrees to defend, indemnify and hold Landlord harmless for, from and against at] claims, actions, damages and liability in connection therewith, including, but not limited to attorneys? and other professional fees and any other cost which Landlord might reasonably incur. 9.3 Damage to Leased Premises-.- Tenant will repair at its expense any damage to the Leased Premises and, upon demand, shall reimburse Landlord (as Additional Rent) for the cost of the repair of any damage elsewhere in the Project, caused by Tenant or its agents, concessionaires, of?cers, employees, contractors, licensees or invitees, or arising from the activities of same or the installation or removal of property in or from the Leased #15-0133622 17 Premises, regardless of fault (unless caused by Landlord, its agents, employees or contractors). 1f Tenant shall fail to commence such repairs within ?ve (5) days after notice to do so, Landlord may make or cause the same to he made and Tenant agrees to pay to Landlord upon Landlord?s demand, as Additional Rent, the cost thereof with interest thereon at the Default Interest Rate until paid. ARTICLE 10. COMMON CHANGES TO BUILDING AND PROJECT 10.! Use of Common Areas and Common Elements. Landlord grants to Tenant and its agents, employees and customers, a non-exclusive license to use those areas of the Building made available by Landlord from time to time for the common use of all tenants in the Building (the ?Common Areas?) in common with others during the Lease Term, subject to the exclusive control and management thereof at all times by Landlord. As provided in the Declaration described in Paragraph 6.2, Tenant and its agents, employees and customers also have a license to use the general ?Common Elements? of the Project. The Brickyard on Mill Condominium Association will control, maintain and operate the Common Elements as provided in the Declaration. 10.2 Management and Operation of Common Areas. Landlord shall have the right to operate and maintain, or cause same to be operated and, maintained, the Common Areas in a manner deemed by Landlord to be reasonable and appropriate and in the best interests of the Project. Landlord shall have the right to establish, modify and enforce reasonable rules and regulations with respect to the Common Areas; (ii) to enter into, modify and terminate easement and other agreements pertaining to the use and maintenance of the Common Areas; to close all or any portiCm ofthe Common Areas to such extent as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein; (iv) to close temporarily any or all portions of the Common Areas; and to do and perform such other acts in and to said areas and improvements as Landlord shall determine to be advisable. 10.3 Roof and Walls. Landlord shall have the exclusive right to use all or any part of the roof of the Leased Premises for any purpose; to erect additional stories or other structures over all or any part of the Leased Promises; to erect in connection with the construction thereof temporary scaffolds and other aids to construction on the exterior of the Leased Premises, provided that access to the Leased Premises shall not be denied; and to install, maintain, use, repair and replace within the Leased Premises structural components, pipes, ducts, conduits, wires and all other mechanical equipment serving other parts of the Building and/or Project, the same to be in locations within the Leased Premises as will not unreasonably deny Tenant?s use thereof. Landlord may make any use it desires of the walls which are not on the interior of the Leased Premises, provided that such use shall not encroach on the interior of the Leased Premises. 10.4 Changes and Additions toBuildingandfor Project; Landlord reserves the right at any time and from time to time to make or permit changes or revisions in the plan for the Building or the Project of which it is a part including changes in the Building name or address, additions to, subuactions from, rearrangements of, alterations to, modi?cations of, or supplements to, the Building areas, walkways, driveways, parking areas or other Common Areas or Common Elements, constructing additional improvements in the Building and/or Project, andfor alterations thereof or additions thereto, and constructing additional stories to the Building or any other building and buildings adjoining same; provided, however, that no such changes, rearrangements or other sis-0133622 18 construction shall negatively and materially affect access or to reduce the size of the Leased Premises or unreasonably impair access to or visibility of the same, or reduce the parking available to Tenant below that required by this Lease (although such parking may be relocated to be in any location within the Project site as determined by .andlord), unless such changes, rearrangements or other construction are required by law. Tenant agrees and acknowledges that any such work may result in inconvenience, temporary dislocations or relocations of parking, access, or other Common Areas, noise, dust and other consequences of construction, and the same shall not affect the parties? obligations under this Lease or entitle Tenant to any reduction of rent, damages or other remedies. Tenant further acknowledges that Landlord does not om: all of the Building and/or Project and other owners of portions of the Building andfor Project may make changes, additions or revisions thereto, subject to the Declaration described in 33mm;- and City and other governmental requirements. ARTICLE 11. - UTILITY SERVICES 11.1 Tenant?s Responsibility. Tenant shall contract with the appropriate Utility companies and services on or before the Delivery Date and pay when due and prior to default for all public and other Utilities and related services separately metered and rendered or furnished to the Leased Premises during the Lease Term, including, but not limited to, water, gas, electricity, telephone, sewer, television services and trash charges (the ?Utilities?; and shall keep the Leased Premises free and clear of any lien or encumbrance of any kind whatsoever created by Tenant?s acts or omissions. Landlord may require Tenant to separately meter or submeter any Utility service and Tenant shall pay the costs of such meter or submeter, its installation and repair. 1 1.2 Landlord May Furnish. Landlord shall have the right, at its sole election at any time and from time to time, to provide and fumish all or part of 'l?enant?s requirements for Utilities to the Leased Premises. In the event of such an election by Landlord, Tenant shall pay as Additional Rent each month to Landlord the actual charges for such services if known, or a amount reasonably estimated by Landlord as one twel?h (H12) of Tenant?s projected annual Lease Year usage; provided, however, that the amount of such charge shall not be greater than the aggregate that Tenant would be charged for the same services if fumished to the Leased Premises by the Utility service which otherwise would furnish such service to the Leased Premises. Any appropriate adjustments to re?ect actual charges shall be made between the parties at the end of each Lease Year. in addition, Landlord shall have the right, at its sole election at any time and from time to time, to make available to the Building and/or the Project a master cable, satellite, telephone or communication system. In such case, Tenant shall have the right to participate in such system by paying as Additional Rent each month to Landlord the charges determined by Landlord for use of such system. 11.3 Disgontinuances and [mommigns of ltilitv; ?e?iges. Landlord reserves the right to cut off and discontinue, upon notice to Tenant, ?irnishing any Utility services furnished, or caused to be furnished, by Landlord at any time when Tenant has failed to pay any amount (whether as Rent or otherwise) due under this Lease. Landlord shall not be liable for any damages resolting from or arising out of any such discontinuance and the same shall not constitute a termination of this Lease or an eviction of Tenant. Landlord shall not be liable to Tenant in damages or otherwise if any Utility shall become unavailable from any public utility company, public authority or any other person or entity {excluding Landlord} supplying or distributing such Utility, or (ii) for any in any Utility service (including, without limitation, any heating, ventilation, air-conditioning #i5-9133622 19 or sprinkler) caused by casualty or the making of any repairs or improvements or by any cause beyond Landlord?s reasonable control, and the same shall not constitute a termination of this Lease or an eviction of Tenant. 11.4 Non-Payment by Tenant. Failure of Tenant to pay any of the charges described in this Article, whether to Landlord or the Utility provider, shall constitute a default under the terms hereof in like manner as failure to pay Rent when due. ARTICLE 12. - INDEMNITY AND INSURANCE 12.1 Indemnim by Tenant. Tenant shall and does hereby indemnity Landlord and its departments, agencies, boards, commissions, universities and its of?cers, of?cials, agents and employees (?Landlord?s Associates?) and agrees to save Landlord and Landlord?s Associates harmless and, at Landlord?s option, defend Landlord and Landlord?s Associates for, from and against any and all claims (whether groundless or not}, actions, damages, liabilities and expenses, including without limitation attorneys? and other professional fees, in connection with loss of life, personal injury andr?or damage to property suffered by any person which is caused by Tenant, its of?cers, agents, contractors, employees, licensees and invitees, or which arises from or out of the business of Tenant or the occupancy or use by Tenant of the Leased Premises or any part thereof or of any other part of the Project, Whether occasioned or alleged to be occasioned wholly or in part by any act or omission of Tenant, its of?cers, agents, contractors, employees or invitees. 12.2 Landlord Not Responsible For Acts of Others. Landlord shall not be responsible or liable to Tenant, or to those claiming by, through or under Tenant, for any loss or damage which may be occasioned by or through the acts or omissions of persons in, or occupying leased space in, the Project or any part of any premises adjacent to or connecting with the Project, including the failure of such persons to perform their lease obligations, or for any loss or damage resulting to Tenant, or those claiming by, through or under Tenant, or its or their property, from the breaking, bursting, stoppage or leaking of electrical, water, gas, sewer, steam or other utilities? cable, wires, pipes or other equipment. To the maximum extent permitted by law, Tenant agrees to use and occupy the Leased Premises, and to use such other portions of the Project as Tenant is herein given the right to use, at Tenant?s own risk. 12.3 Tanninjainsurance. At all times after the Delivery Date, and at any time Tenant or its contractors or agents enter for construction of any of its improvements, Tenant will carry and maintain, at its expense, the following: commercial (general) liability insurance policy (occurrence form), including bodily injury, property damage and broad form contractual liability coverage against assumed or contractual liability under this Lease with respect to any liability arising out of the ownership, use, occupancy or maintenance of the Leased Premises and all areas appurtenant thereto, including the Building and Project, and including without limitation the serving of alcohol therein, to afford protection with respect to personal injury, death or property damage of not less than One Million Dollars ($1,000,000) per occurrence, Combined Single Limit with a Five Million Dollar ($5,000,000) umbrella or excess liability policy. Such insnrance must include ?liquor liability protection?, with the following coverage amounts: 2t} a General Aggregate $5,000,000 6 Products - Completed Operations Aggegate $1,000,000 8 Personal and Advertising injury $1,000,000 1? Damage to Rented Premises (any one ?re) $5 00,000 a Each Occurrence 1,000,000 special form property and casualty insurance policy, including without limitation ?re, sprinkler damage, and theft coverage, written at replacement cost value and with replacement cost endorsement, covering all of Tenant?s personal property in the Leased Premises (including, without limitation, inventory, trade ?xtures, ?oor coverings, furniture and other property removable by Tenant under the provisions of this Lease) and all leasehold improvements installed in the Leased Premises by or on behalf of Tenant pursuant to Exhibit or otherwise. comprehensive plate glass policy, if applicable; if and to the extent required by law, Worker?s Compensation and Employer's Liability policy, or similar insurance and other employee benefits in form and amounts required by law, but at least the following: 9 Compensation Statutory- Employer's Liability a Each Accident $1,000,000 8 Disease - Each Employee $1,000,000 6 Disease-Policy Limit $1,000,000 business income insurance, including Rent value, that will pay the Base Rent due hereunder, and the Additional Rent and Percentage Rent at the average rate For the six full calendar months immediately preceding the interruption, such insurance to cover interruptions caused by the usual and customary events described by such forms and shall include in any event interruption by ?re, Windstorm, the?, vandalism or other commonly insured casualty. builder?s risk insurance during all periods of construction of tenant improvements by Tenant or Tenant's contractor. The deductible/retention for any policy may not exceed $5,000 per incident, and Tenant will be solely responsible therefor. The insurance requirements herein are minimum requirements for this Lease and in no my limit the indemnity covenants contained in this Lease. Landlord in no way warrants that the minimum limits contained herein is suf?cient to protect the Tenant from liabilities that might arise from this Lease. Tenant is lies to purchase such additional insurance as Tenant deems necessary. 12.4 Tenant?s Contractor?s Insurance. Tenant shall require any contractor of Tenant perfonning work on the Leased Premises to carry and maintain, at no expense to Landlord, the following with deductibles/retentions no higher than $5,000 per incident (for which Tenant and contractor will be solely responsible): commercial (general) liability insurance policy, including contractor?s liability coverage, contractual liability coverage, completed operations coverage, implosion and collapse, broad form property damage endorsement and contractor?s protective liability coverage, ills?0133622 21 to afford promotion, with respect to personal injury, death or propetty damage with limits of liability not less than those stated below: General Aggregate (ii) Products - Completed Operations Aggregate Personal and Advertising injury (iv) Each Occurrence (V) Blanket Contractual Liability - Written and Oral and (vi) Damage to Rented Premises, ?re legal liability (any one ?ne) Such insurance shall provide coverage for Landlord, Landlord?s general contractor and sub-contractors against any and all claims for bodily injury, including death resulting therefrom, and damage to the property of others, whether such operations are performed by Tenant?s general contractor, sub- contractors or any of their sub-contractors, or by anyone directly or indirectly employed by any of them. The policy shall name Landlord, Landlord?s Associates and any mortgagees as additional insureds, and shall be primary and for any damage or injury resulting from the activities of the contractor or subcontractors. The policy shall also contain a waiver of subrogation against Landlord and Landlord?s Associates for losses arising from work performed by or on behalf of the contractor; business automobile liability insurance policy, including the ownership, maintenance and operation of any automobile equipment, owned, hired and non-owned, with limits for each occurrence ofnol less than One Million Dollars ($1,000,000) combined single limits coverage. Such insurance shall provide coverage against any and all claims for bodily injury, including death resulting therefrom, and damage to the property of others, arising from the operations under the contract, whether such operations are performed by Tenant?s general contractor, sub-contractors, or any of [heir employees or by anyone directly or indirectly employed by any of them and shall be primary and noncontribulory; and worker?s compensation insurance as required by law, and Employer?s Liability insurance with limits of not less than Five Hundred Thousand Dollars bodily injury by disease, per employee; $500,000 bodily injury by disease, policy limit; and $100,000 bodily injury by accident, per employee, or such greater amount as required by state law, together with any insurance required by any employee bene?t acts or other statutes applicable where the work is to be performed, as will protect Tenant?s contractors and sub-contractors from any and all liability under the aforementioned acts. 12.5 Policy Beguircments. The company or companies uniting any insurance which Tenant is required to carry and maintain or cause to be carried or maintained by Tenant?s Contractors pursuant to the terms hereof, as well as Lhe form of such insurance, shall at all times be subject to Landlord?s approval, which shall not be unreasonably withheld, and any such company or companies shall be quali?ed to do business in the State of Arizona 22 with an Best? rating of not less than ANII. Landlord in no way warrants that the required minimum insurer rating is sufficient to protect Tenant from potential insurer insolvency. All liability policies shall name Landlord, Landlord?s Associates andJor its designce(s) as additional insureds, and all property insurance policies shall name Landlord, Landlord?s Associates andfor its designee(s} as an additional insured and loss payee as its interest may appear. All policies shall be primary and non- conn'ibutmy. Each insurance policy required by the insurance provisions of this Lease shall not be suspended, voided, cancelled, reduced in coverage or in limits except alter thirty (30) days prior written notice has been given to Landlord. Such notice shall be sent directly to Landlord and shall be sent by certi?ed mail, return receipt requested. Within two (2) business days of receipt, Tenant (and Tenant's Contractor, as applicable) must provide notice to the State of Arizona {with a copy to Landlord) if 'i?euant (or Tenant?s Contractor, if applicable) if they receive notice of a policy that has been or will be suspended, canceled, materially changed for any reason, has expired, or will be expiring. Such notice must be sent directly to the Arizona Department of Administration, Risk Management Section, 100 North 15th Avenue, Suite 301, Phoenix, AZ 85007, with a copy Landlord at the Landlord?s notice address set forth in Agriele 18. Each such policy, Or a certi?cate thereof, shall be deposited with Landlord and its designees by Tenant upon commencement of Tenant?s obligation to procure the same. If Tenant shall fail to perform any of its obligations under this Article, Landlord may perform the same and the cost of same shall be deemed Additional Rent and shall be payable upon Landlord?s demand. Coverage provided by the Tenant?s contractor shall not be limited to the liability assumed under the indemni?cation provisions of this Lease. 12.6 Increase in Insurance Premiums. Tenant will not do or suffer to be done, or keep or suffer to be kept, anything in, upon or about the Leased Premises which will violate Landlord?s or Tenant?s policies of property or liability insurance or which will prevent Landlord or Tenant from procuring such policies in companies acceptable to Landlord. Landlord and Tenant acknowledge and agree that the minimum rate of ?re or other insurance on the Leased Premises is based upon the Permitted Use of' the Leased Premises by Tenant and the method of operation of Tenant at the time of the execution of this Lease. If anything done, omitted to be done or suffered by Tenant to be kept in, upon or about the Leased Premises shall cause the rate of ?re or other insurance on the Leased Premises or on other property of Landlord or of others within the Project to be increased beyond the minimum rate from time to time applicable- to the Leased Premises or to any such property for the use or uses made thereof, Tenant will pay, as Additional Rent, the amount of any such increase upon Landlord?s demand. 12.? Waiver of Subrogation. Tenant hereby waives any and all rights of recovery, and any and all rights of subrogation that any of its insurers may have, against Landlord or Landlord's Associates for loss or damage to Tenant's property or the property of others under Tenant's control, where such loss or damage is covered by insurance bene?ting the party suffering such loss or damage or was required to be insured against under any insurance policy required under this Lease. Tenant shall give notice to its insurance carriers that the foregoing waiver of subrogation is contained in this Lease. l2.8 Verification of Coverage". Contractor shall furnish Landlord with certi?cates of insurance (ACORD form or equivalent approved by the State of Arizona) evidencing that Contractor has the insurance required by this Lease. The certi?cates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. ills-0133622 23 All certi?cates and endorsements are to be received and approved by Landlord before the Commencement Date, and before any work commences. Each insurance policy required by this Loose must be in effect at or prior to the Commencement Date and must remain in effect for the duration of the Lease Term. Failure to maintain the insurance policies as required by this Lease or to provide timely evidence of renewal will be considered a material breach of the lease. Landlord reserves the require complete, certi?ed copies of all insurance policies and endorsements required by this Lease at any time. 12.9 Approval. Any modi?cation or variation from the insurance requirements in this Lease must have prior approval from the State of Arizona Department of Administration, Risk Management Section, whose decision shall be ?nal. Such action will not require a formal contract amendment, but may be made by administrative action. 13. DAMAGE ANB DESTRUCTION 13.1 Landlord?s and Tenant?s Obliaatioits to Repair and Reconstruct. If the Leased Premises shall be damaged by ?re, the elements, accident or other casualty (any of such causes being referred to herein as a ?gaming but the Leased Premises shall not be thereby rendered wholly or partially untenantable, Landlord shall cause such damage to be repaired and there shall be no abatement of Rent. If, as the result of Casualty, the Leased Premises shall be rendered wholly or partially untenantable, then, subject to the provisions of Paragraph 13.2 below, Landlord shall cause such damage to be repaired, and Rent shall be abated as to the portion of the Leased Premises rendered untenantable during the period of such untenantability; provided, however, that such Rent may be paid from the bUSiness inocule insw'ance required under Parag [311.11 1.2-3.6) ?3 the extent thereoi?. such repairs shall be made at the expense of Landlord, but Landlord shall not be required to perform any work beyond appropriate repair of the Project and delivery to Tenant of the shell improvements substantially equivalent to the original shell improvements. Landlord shall not be liable for interruption to Tenant?s business or for damage to or replacement or repair of Tenant?s personal property (including, without limitation, inventory, trade ?xtures, floor coverings, furniture and other property removable by 'l?enant under the provisions of this Lease) or to any leasehold improvements installed in the Leased Premises by or on behalf of Tenant pursuant to Exhibit or otherwise, all of which damage, replacement or repair shall be undertaken and completed by Tenant at its cost in coordination with Landlord. 13.2 Option to Terminate lease. If the Leased Premises are rendered wholly untenantable, or damaged as a result of any cause which is not covered by Landlord?s insurance or damaged or destroyed in whole or in part during the last three years of the Tenn, or if the Building in which the Leased Premises is located is damaged to the extent of twenty?ve percent or more of the useable floor area in that Building, or if the Project is totally or substantially damaged or destroyed and Landlord elects not to or cannot rebuild same as it affects the Building, then, in any of such events, Landlord may elect to terminate this Lease by giving to Tenant notice of such election within ninety (90) days after the occurrence of such event. If euch notice is given, the rights and obligations of the parties shall cease as of the date of such notice, and Rent (other than any Additional Rent due Landlord by reason of Tenant?s failure to perform any of its obligations hereunder which shall be payable in full) shall be adjusted as of the date of such termination. #15-0133623 24 13.3 Insurance Proceeds. If Landlord does not elect to terminate this Lease pursuant to Paragraph 13.2 above, Landlord shall, subject to the prior rights of any Mortgagee, disburse and apply any insurance proceeds received by Landlord to the restoration and rebuilding in accordance with Paragri .aph l3.l hereof, and Tenant shall do likewise with insurance proceeds received by it. ARTICLE 14. - COND EMNATION 14.1 Effect ofTaking. If the whole or any part of the Leased Premises shall be taken under the power of eminent domain, this Lease shall temiinate as to the part so taken on the date Tenant is required to yield posseSsion thereof to the condemning authority. Landlord shall make, or cause to be made, such repairs and alterations as may be necessary in order to restore the part not taken to useful condition and all Rent (other than any Additional Rent due Landlord by reason of Tenant?s failure to perform any of its obligations hereunder which shall be payable in full) shall be reduced in the same proportion as the portion of the leasable square footage of the Leased Premises is reduced. if the aforementioned taking renders the remainder of the Leased Premises materially unsuitable for the Permitted Use, either party may terminate this Lease as of the date when Tenant is required to yield possession by giving notice to that effect on or prior to the day thirty (30) days after such date. If twenty percent or more of the leasahle square footage in the Building in which the Leased Premises are located is taken as aforesaid, then Landlord may elect to terminate this lease as of' or after the date on which Landlord is required to yield possession to the condemning authority, by giving notice of such election on or prior to the day ninety (90) days after such date, to be effective within said 90-day period. If any notice of termination is given pursuant to this Paragraph, this Lease and the rights and obligations of the parties hereunder shall cease as of the appropriate date and Rent (other than any Additional Rent due Landlord by reason of Tenant?s failure to perfonn any of its obligations hereunder which shall be payable in full) shall be adj listed as of such date. 14.2 Condemnation Awards. All compensation awarded for any taking of the Leased Premises or the Building or the Project or any interest therein shall belong to and be the property of Landlord, Tenant hereby assigning to Landlord all rights with respect thereto; provided, however, nothing contained herein shall prevent Tenant from applying for reimbursement from the condemning authority (if permitted by law) but not Landlord for moving expenses, or the expense of removal of Tenant?s trade ?xtures, or loss of Tenant?s business good will, but only if such action shall not reduce the amount of the award or other compensation otherwise recoverable from the condemning authority by Landlord. ARTIC LE 15. ASSEGNMENTS AND SUBLE TTING 15.] Landlord?s Consent Regnired. 15 Transfers. Tenant will not assign this Lease, in whole or in part, nor sublet all or any part of the Leased Premises, nor license concessions or lease departments therein, nor pledge or encumber by mortgage or other instruments its interest in this lease (each individually and collectively a monster?) without, in each instance, the prior written consent of I .andlord (which consent Landlord may withhold in its sole and absolute discretion}. This prohibition includes any transfer which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other change of 'l?enant?s corporate, partnership or proprietary structure. As a condition to approval, Landlord may impose such requirements as it deems appropriate concerning, without limitation, the matters referenced sits-0133622 25 in Paragraph 15.1,; below, con?rmation of use requirements, assumption of liability, guarantees, and recovery of transfer profits. Tenant will pay all reasonable costs, including attomeys? fees, incurred by Landlord with reSpect to any proposed transfer, whether or not approved by Landlord. 15.1.2. Assignment to Af?liate . Notwithstanding anything to the contrary contained in this Ea??amwl?d, provided Tenant is not then in default under any of the [cons and conditions of this Lease, Tenant shall have the right to assign this Lease, without Landlord?s consent but with prior notice to Landlord, to any parent, majority?owned subsidiary entity or controlled af?liate entity of Tenant or to the surviving entity in connection with a merger, consolidation or acquisition between Tenant and any of such parent, subsidiary or af?liate entity, provided the net assets of the assignee entity shall not be less than the net assets of Tenant at the time of such assignment; (ii) such assignee shall continue to operate the business conducted in the Leased Premises under the same Tenant Trade Name and in the same manner as Tenant and pursuant to all of the provisions of this Lease; such assignee entity shall assume in writing (in a form approved by Landlord) all of Tenant?s obligations hereunder with the consent of Tenant and any Guarantor and Tenant shall provide Landlord with a copy of such assignment and assumption; (iv) Such assignee shall continue to remain a parent, subsidiary or af?liate entity of the Tenant executing this Lease; ?l?enant and any Guarantor shall continue to remain liable on this lease for the performance of all terms including, but not limited to, payment of Rent and other sums due under this Lease; and (vi) at all times thereafter, the assignee is under effective bone tide management control of harm E. Nelson, Kenneth L. Likewise, and Wiley Amati, 15.2 Transfer of Ownership Interests. If Tenant is an entity (other than an entity the outstanding voting ownership interests of which are listed on a ?national securities exchange?, as de?ned in the Securities Exchange Act of 1934) and if, at any time after execution of this Lease, any part of the ownership interests shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition (including, but not limited to, such a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency, or other proceedings) so as to result in a change in the present control of said entity by the person( 5) now owning a majority of said ownership interests (whether in one or more transactions), Tenant shall give Landlord notice of such event, and whether or not Tenant has given such notice, Landlord may elect to terminate this Lease at any time thereafter by giving Tenant notice of such election, in which event this Lease and the rights and obligations of the parties hereunder shall cease as of a date set forth in such notice which date shall not be less than sixty (60) days after the date of such notice. in the event of any such termination, all Rent (other than any Additional Rent due Landlord resulting from Tenant?s failure to perform any of its obligations hereunder which shall be payable in full) shall be adjusted as of the date of such termination. Notwithstanding anything in this Para-grep 15.2 to the coho-31y, a registered public offering (as de?ned by the Securities Act of 1933 and regulations promulgated thereunder) of the Tenant?s ownership interests shall not be a default under this Lease. 15.3 Acceptance of Rent ?orn Transferee. The acceptance by Landlord of the payment of Rent following any assignment or other transfer prohibited by this Article shall not be deemed to be a consent by Landlord to any such assignment or transfer nor shall the same be deemed to be a waiver of any right or remedy of Landlord hereunder. 15 .4 Transfer Not a Release. Regardless of Landlord?s consent, no subletting or assignment shall alter the primary liability of Tenant to pay the Total Rent or release Tenant of Tenant?s obligation to perform all other obligations to be performed by Tenant hereunder unless Landlord?s written consent shall so speci?cally provide, and a 15-0133622 25 Landlord under no circumstances shall be obligated to release Tenant from any such liability. The acceptance of rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. ARTICLE 16. DEFAULT 16.1 ?Event of Default? De?ned. Any one or more of the following events shall constitute an ?Event of Default?: (is) #15-0133622 The failure of Tenant to pay any Rent or other sum of money within five (5) days alter the same is due and unpaid hereunder. Default by Tenant in the performance or observance of any covenant or agreement of this Lease (other than a default involving the payment of money), which defau it is not cured within ten {10) days after the giving of notice thereof by Landlord, unless such default is of such nature that it cannot be cured within such ten (10) day period, in which case no Event of Default shall occur so long as Tenant shall commence the curing of the default within such ten (10) day period and shall thereafter diligently and continuously prosecute the curing of same; provided, however, the matter shall be cured in thirty (30) days after notice in any event, and if Tenant shall default in the performance of any such covenant or agreement of this Lease at least two (2) times in any twelve (12) month period, then notwithstanding such defaults have each been cured by Tenant, any further similar default shall be deemed an Event of Default without the ability for cure. This provision shall not apply to or create any grace or cure period for Tenant?s default under Paragraph 8.6 or Paragraph 1.2.8. The sale of Tenant's interest in the Leased Premises under attachment, execution or similar legal process or, if Tenant is adjudicated a bankrupt or insolvent and such adjudication is not vacated within ten (10) days. The ?ling of a voluntary petition proposing the adjudication of Tenant or any Guarantor of Tenant?s obligatiOns hereunder as a bankrupt or insolvent, or the reorganization of Tenant or any such Guarantor, or an arrangement by Tenant or any Such Guarantor with its creditors, whether pursuant to the Federal Bankruptcy Act or any similar federal or state proceedings and the same is not withdrawn or dismissed within thirty (30) days after the date of ling. The admission in writing by Tenant or any such Guarantor of its inability to pay its debts when due. The appointment of a receiver or trustee for the business or property of Tenant or any such Guarantor, unless such appointment shall be vacated within ten (10) days of its entry. The making by Tenant or any such Guarantor of an assignment for the benefit of its creditors, or if in any other manner Tenant?s interest in this Lease shall pass to another by operation of law. 27 The vacating or abandonment of the Leased Premises by Tenant or the cessation of Tenant?s usual and customary business thereat except as may be authorized by this Lease, at any time following the Rent Commencement Date. The occurrence of any other event described as constituting an ?Event of Default? elsewhere in this Lease. 16.2 Remedies. Upon the occurrence of an Event of Default, Landlord, without notice to Tenant in any instance (except where expressly provided for below or by applicable law) may do any one or more, or a combination, of the following at any time and from time to time in whole or part: #15-013362.2 Sell at public or private sale all or any part of the goods, chattels, fixtures and other personal property belonging to Tenant which are or may be put into the Leased Premises during the Lease Tenn, whether exempt or not from sale under execution or attachment (it being agreed that said property shall at all times be bound with a lien in favor of Landlord and shall be chargeable for all Rent and for the ful?llment of the other covenants and agreements herein contained) and apply the proceeds of such sale, ?rst, to the payment of all costs and expenses of conducting the sale or caring for or storing said property (including all attorneys? fees), second, toward the payment of any indebtedness, including (without limitation) indebtedness for Rent, which may be or may become due from Tenant to Landlord, and third, to pay Tenant, on demand in writing, any surplus remaining alter all indebtedness of 'l?enant to Landlord has been fully paid; Perform, on behalf and at the expense of Tenant, any obligation of Tenant under this Lease which Tenant has failed to perform and of which Landlord shall have given Tenant notice, the cost of which performance by Landlord, together with interest thereon at the Default Interest Rate from the date of such expenditure, shall be deemed Additional Rent and shall be payable by Tenant to Landlord upon demand. Notwithstanding the provisions of this clause and regardless of whether an Event of Default shall have occurred, Landlord may exercise the remedy described in clause without any notice to Tenant if Landlord, in its good faith judgment, believes it would be materially injured by failure to take rapid action or if the unperformed obligation of Tenant constitutes an emergency; Elect to terminate this Lease and the tenancy created hereby by giving notice of web election to Tenant, and reenter the Leased Premises, by summary proceedings or otherwise, and remove Tenant and all other persons and property from the Leased Premises, and store such property in a public warehouse or elsewhere at the cost of and for the account of Tenant without resort to legal process and without Landlord being deemed guilty of trespass or becoming liable for any loss or damage occasioned thereby; Reenter the Leased Premises with or without process of law, change the locks thereon, and take possession of the same and of all equipment and fixtures of Tenant therein and expel or remove Tenant and all other parties occupying the Leased Premises using such force as may be reasonably necessary to do so without being liable for such reentry or for the use of such force and without terminating this Lease, and may at any time and from time to time relet the Leased Premises or any part thereof for the account of Tenant, for such term, upon such conditions and at such Rent as Landlord may deem proper. In such event Landlord may receive and collect the rent from such reletting and apply it against 28 any amotmts due from Tenant hereunder (including without limitation such expenses as Landlord may have incurred in recovering possession of the Leased Premises, placing the same in good order and condition, altering or repairing the same for reletting, and all other expenses, commissions and charges, including, without limitation, attorneys? fees, which Landlord may have paid or incurred in connection with such repossession and reletting). Landlord may execute any lease in connection with the relettin in Landlord?s name or in the name of Tenant as Landlord may see and the tenant thereunder shall be under no obligation to see to the application by Landlord of any rent collected by Landlord nor shall Tenant have any right to collect any rent thereunder. Whether or not the Leased Premises are relet, Tenant shall pay Landlord all amounts required to be paid by Tenant up to the date of Landlord?s reentry and thereafter 'l?enant shall pay Landlord, until the end of the Lease Term hereof, the amount of all Rent and other charges required to be paid by Tenant hereunder, as determined in accordance with Paragraph 16.3, less the proceeds of such reletting during the Lease Tenn hereof, if any, after payment of Landlord?s expenses as provided above. Such payments by Tenant shall be due at such times as are provided elsewhere in this Lease, and Landlord need not wait until the termination of this Lease to recover them by legal action or otherwise. Landlord shall not by any reentry or other act be deemed to have terminated this Lease or the liability of Tenant for the total Rent hereunder unless Landlord shall give Tenant written notice of Landlord?s election to terminate this Lease; or Exercise any other legal or equitable right or remedy which it may have in whole or part, at any time and from time to time, all such rights and remedies being cumulative and not exclusive. Any costs and expenses incurred by Landlord (including, without limitation, reasonable attorneys? fees) in enforcing any of its rights or remedies under this Lease shall be deemed to be Additional Rent and shall be repaid to Landlord by Tenant upon demand. 16.3 Damages, . if this Lease is terminated by Landlord pursuant to Paragraph l6.2, Tenant nevertheless shall remain liable for any Rent and damages which may be due or sustained prior to such termination, all reasonable costs, fees and expenses including, but not limited to, reasonable attorneys? fees, costs and expenses incurred by Landlord in pursuit of its remedies hereunder, or in renting the Leased Promises to others from time to time (all such Rent, damages, costs, fees and expenses being referred to herein as ?Termlnation Damages?) and additional damages (the ?liguidated Damages?), which shall be an amount equal to the Rent which, but for termination of this Lease, would have become due during the remainder of the Lease Term, loss the amount of Rent, if any, which Landlord shall receive during such period from others to whom the Leased Premises may be rented (other than any Additional Rent received by Landlord as a result of any failure of such other person to perform any of its obligations to Landlord), in which case such Liquidated Damages shall be computed and payable in installments, in advance, on the ?rst day of each calendar month following termination of the Lease and continuing until the date on which the Lease Term would have expired but for such termination; any suit or action brought to collect any such Liquidated Damages for any month shall not in any manner prejudice the right of Landlord to collect any Liquidated Damages for any subsequent month by a similar proceeding. For purposes of the calculation of any Rent which would have become due during the remainder of the Lease Term, and not withstanding any other language herein, the Annual Percentage Rent shall be deemed equal to the average payment of Annual Percentage Rent during the previous twelve #15-0133622 29 (12) months of the Lease Term (or such shorter period of time where less than a Lease Year may be applicable}. If this Lease is terminated pursuant to Para-gragh Landlord may relet the Leased Premises or any part thereof, alone or together with other premises, for each tenn{s) (which may be greater or less than the period which otherwise would have constituted the balance of the Lease Term) and on such terms and conditions (which may include commissions, concessions or free rent and alterations of the Leased Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant?s obligations hereunder be diminished by reason of, any failure by Landlord to relet the Leased Premises or any failure by Landlord to collect any rent due upon such reletting. Nothing contained in this Lease shall limit or prejudice the right of Landlord to seek and obtain, in proceedings for the termination of this Lease by reason of bankruptcy or insolvency, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the loss or damages referred to above. The failure or refusal of Landlord to relet the Leased Premises or any part or parts thereof shall not release or affect Tenant?s liability for damages; provided, however, Landlord shall have an obligation to mitigate its damages to the extent required by law. ARTICLE 17. SUBURBINATEON AND ATTURNMENT 1?.1 Subordination Unless a Mortgagee (as hereinafter de?ned) shall otherwise elect as provided in Earagrap Tenant?s rights under this Lease are and shall remain subject and subordinate to the operation and effect of any ground lease or superior lease of land only or of land with buildings in a transaction involving the Leased Premises or Landlord?s interest therein, or any mortgage, deed of trust or other security instrument constituting a lien upon the leased Premises or Landlord?s interest therein, whether the same shall be in existence at the date hereof or created hereafter, any such lease, mortgage, deed of trust or other security instrument being referred to herein as a ?Mortgage?, and the party or parties having the bene?t of the same, whether as lessor, mortgagee, trustee or notcholder, being referred to herein as a. ?Mortgagee.? Tenant?s acknowledgment and agreement of subordination provided for in this Paragraph are self?operative and no further instrument of subordination shall be required; however, "I?enant shall execute such further assurances thereof as shall he requisite or as may be requested from time to time by Landlord or any Mortgagee. 17.2 rt a ee's-Lln'lateralSubordination. if a Mortgages: shall so elect by notice to Tenant or by the recording of a unilateral declaration of subordination, this lease and Tenant?s rights hereunder shall be superior and prior in right to the Mortgage of which such Mortgagee has the bene?t, with the same force and effect as if this Lease had been executed, delivered and recorded prior to the execution, delivery and recording of such Mortgage, subject, nevertheless, to such conditions as may he set forth in any such notice or decimation. sis?0133522 30 17.3 Attornment. If any person shall succeed to all or part of Landlord?s interest in the Leased Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease or othenvise, and if so requested or required by such successor in interest, Tenant shall atom to, and automatically become the lessee of, such successor in interest without any change in the terms or other provisions of this Lease, except that, in the case of foreclosure, deed in lieu of foreclosure or power of sale, Such successor in interest shall not be bound by any payment of Rent for more than one l) month in advance, or (ii) any amendment or modi?cation to this Lease made Without the consent of Landlord?s Mortgagcc in question or any successor in interest, where such consent is required by Mortgages or such successor in interest. Tenant shall execute such agreement in con?rmation of such attomment as such successor in interest shall reasonably request. 17.4 Title Exceptions. Tenant?s rights under this Lease are and shall remain subject and subordinate to the operation and effect of all easements, restrictions, rights of way, covenants and other matters of record, as the same may be amended from time to time. 1Q. - NO i8.l Sending Qf Notices. Any notice, request, demand, approval or consent given or required to be given under this Lease shall be in writing and shall be deemed to have been given when delivered if addressed to the party?s notice address under ?niclel and personally delivered to the other. party?s notice address by messenger (with a signed receipt therefor) or recognized overnight courier, or when received at the telecopier number shown with the notice address (provided a machine generated receipt is retained to evidence the same and provided a con?rmation copy is also mailed), or on receipt for notice mailed by United States registered or certi?ed mail, return receipt requested, with all postage charges prepaid. Any notice to be given by any party hereto may be given by legal counsel for such party. Counsel for the parties may give simultaneous notice hereunder to the opposing party and its counsel. Either party may, at any time, change its address for the above purposes by sending a notice to the other party stating the change and setting forth the new address. Any refusal of a proper notice is deemed delivery. 18.2 Notice to Mortgagecs. If any Mortgages shall notify Tenant that it is the holder of a Mortgage affecting the Leased Premises, no notice, request or demand therealter sent by Tenant to Landlord shall be effective unless and until a copy of the same shall also be sent to such Mortgagee in the manner prescribed in mm and to such address as such Mortgagee shall designate. ARTICLE 19. - MSCELLANEOUS 19.] Estoppel Certi?cates. At any time and from time to time, within ten (10) days after Landlord shall request the same, Tenant will execute, acknowledge and deliver to Landlord and to such Mortgages or other party as may be designated by Landlord, a certi?cate in a Form requested by Landlord or in substantially the form attached hereto as Exhibit Estoppel Certi?cate with respect to the matters set forth therein and such other matters relating to this Lease or the status of performance of obligations of the parties hereunder as may be 3362.2 31 reasonably requested by Landlord. If Tenant fails to provide such certi?cate within ten (10) days after request by Landlord therefor, Tenant shall be deemed to have approved the contents of any such certi?cate submitted to Tenant by Landlord and Landlord is hereby authorized to so certify. 19.2 inspections and Access by Landlord. Tenant will permit Landlord, its agents, employees and contractors to enter all parts of the Leased Premises during Tenant?s business hours and all other reasonable times to Show the Leased Premises to prospective purchasers, tenants, mortgagees or other parties with a bona lidc need for access thereto, to post notices of nonrespousibility, to inspect the same and to enforce or carry out any provision of this Lease, including, udthoet limitation, any access necessary for the making of any repairs which are Landlord?s obligatioo hereunder or any improvements Landlord deems necessary. Landlord may enter at any time in case of emergency. Landlord may erect scaffolding in and other necessary structures where reasonably required by the character of the work to be performed, always provided that the entrance to the Leased Premises shall not be unreasonably blocked thereby and further providing that the business of the Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim for damages or for any injury or inconvenience to or interference with Tenant?s business, and loss of occupamy or quiet enjoyment of the Leased Premises and any other less occasioned thereby. For each of the foregoing purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Leased i?remises, excluding Tenant?s vaults, safes and files, and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency, in order to obtain entry to the Leased Premises, without liability to Tenant, except for any failure to exercise due care for Tenant?s property and any entry to the Leased Premises obtained by Landlord by any of said means or otherwise shall not under any circumstances be construed or be deemed to be a forcible or unlawful entry into, or detainer of, the Leased Premises, or an eviction of tenant from the Leased Premises or any portion thereof. 19.3 No Recording. Landlord and Tenant agree that neither this Lease nor any notice or memorandum thereof shall be recorded in the public records. 19.4 Remedies Cumulative: No Waiver. No reference to any speci?c right or remedy shall preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action to which it may otherwise be entitled at law or in equity. No failure by Landlord to insist upon the strict performance of any agreement, term, covenant or condition hereof, or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach, agreement, term, covenant or condition, nor create a custom of waiver, nor require any reinstatement oftho ?time is of the essence? clause hereof. No waiver by Landlord of any breach by Tenant under this Lease or of any breach by any other tenant under any other lease of any portion of the Project shall affect or alter this Lease in any way whatsoever, nor constitute a waiver of any like subsequent breach. 19.5 Successors and Assigns. This Lease and the covenants and conditions herein contained shall inure to the bene?t of and be binding upon Landlord, its successors and assigns, and shall be binding upon Tenant, its successors and assigns and shall inure to the benefit of Tenant and only such assigns and subtenants of 'i?enant to whom the assignment or subleasing of this Lease by Tenant has been consented to in writing by Landlord as sis-0133522 32 provided in this Lease, or as may otherwise be permitted by this Lease. Upon any sale or other transfer by Landlord of its interest in the Leased Premises and in this Lease, Landlord shall be relieved of all obligations accruing thereafter. l9.6 Captibns and Headings. The table of contents (if any) and the Article and paragraph captions and headings are for convenience of reference only and in no way shall be used to de?ne, expand, limit or modify the provisions set forth in this Lease. Reference to an Article includes all its paragraphs. Reference to a paragraph includes all its subparagraphs. Joint and Several Liability. if two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Lease as Tenant, the liability of each such individual, corporation, partnership or other business association to pay rent and perform all other obligations hereunder shall be deemed to be joint and several and all notices payments and agreements given or made by, with or to any one of such individuals, corporations, partnerships or other business associations shall be deemed to have been given or made by. with or to all of them. In like manner, if Tenant shall be a parmership or other business association, the members of which are, by virtue of statute or federal law, subject to personal liability, the liability of each such member shall be joint and several. 19.8 Broker?sCommission. A commission shall be paid by Landlord to Colliers International in accordance with a separate agreement with that broker. Each party represents and warrants to the other that there are no other claims for brokerage commissions or ?nders? fees in connection with the execution of this Lease which arise through the warranting party that will not be paid solely by the warranting party, and agrees to indemnify the non-warranting party against, and hold it harmless from, all liability arising from a breach of such warranty including, without limitation, the cost of counsel fees in connection therewith. 19.9 No Joint Venture. Any intention to create a joint venture or partnership relation between the parties hereto is hereby expressly disclaimed. If this Lease contains any provisions in regard to the payment by Tenant and the acceptance by Landlord of a percentage of Gross Sales of Tenant and others, such provisions are a reservation for rent for the use of the Leased Premises. 19.10 No Option. The submission of this Lease for examination does not constitute a reservation of or option for the Leased Premises, and this Lease shall become effective only upon execution and delivery thereof by both parties. No broker is authorized to sign for, or bind, any party. 19.1 I Holdover. Tenant shall have no right to holdover possession of the leased Premises after the expiration or termination of the Lease without Landlord?s prior written consent, which consent Landlord may withhold in its sole and absolute discretion. If, however, Tenant retains possession of any part of the Leased Premises after the Term, Tenant shall become a tenant at sn??erance for the entire Leased Premises upon all of the terms of this Lease, except that Tenant shall pay all Base Rent and Tenant?s Proportionate Share dis-0133622 33 of CAM Expenses at double the rate in effect immediately prior to such holdover, computed on a basis for each full or partial month Tenant remains in possession. Tenant shall also pay Landlord all of Landlord?s direct and consequential damages resulting from Tenant's holdover. No acceptance of Rent or other payments by Landlord under these holdover provisions shalt operate as a waiver of Landlord?s right to regain possession or any other remedies. 19.12 No Modi?cation. This writing is intended by the parties as a ?nal expression of their agreement and as a complete and exclusive statement of the terms thereof, all negotiations, considerations and representations between the parties having been incorporated herein. No course of prior dealings between the parties or their officers, employees, agents or af?liates shail be relevant or admissible to supplement, explain, or vary any of the terms of this Tease. Acceptance of, or acquiescence in, a course of performance rendered coder this or any prior agreement between the parties or their af?liates shall not be relevant or admissible to determine the meaning of any of the terms of this Lease. No representations, understandings, or agreements have been made or relied upon in the making of this Lease other than those speci?cally set forth herein. This Lease can be modi?ed only by a writing signed by the party against whom the modi?cation is enforceable. 19.13 ?ev?rability . If any portion of any term or provision of this Lease, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or cimumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. 19.14 Third Bene?ciagg. Nothing contained in this Lease shall be construed so as to confer upon any other party the rights of? a third party bene?ciary except rights speci?cally stated herein for the bene?t of a Mortgages. 19.15 giggly- Tenants. if Tenant is a corporation or other entity, Tenant and the persons executing this Lease on behalf of Tenant hereby covenant and warrant. that: Tenant is a duly constituted corporation or other entity, as applicable, quali?ed to do business in the State of Arizona; ail Tenant?s franchise and corporate (or other) taxes have been paid to date; all future forms, reports, fees and other documents necessary for Tenant to comply with Applicabie Laws will be filed by 'l?enant when due; such persons are duly authorized by the board of directors (or other governing body) of such entity to execute and deliver this Lease of behalf of the entity; and this Lease is fully binding upon Tenant. Tenant represents to, and covenants with, Iandiord that as of the Effective Date, the members of Tenant are the individuals constituting the Guarantor: Aaron E. Nelson and Denise Nelson, husband and wife; Kenneth 1.. Likewise and Julie 8. Likewise, husband and wife; Wiley Amett, and Paula C. Amett, husband and wife. Tenant will, prior to Lease execution and thereafter upon request, provide evidence of the foregoing reasonably acceptable to Landlord. 19.16 Governing Law and Venue. This Lease and the rights and obligations of the parties hereunder shall be construed in accordance with the laws of the State of Arizona, without regard to any con?icts of laws principles. Landlord's obligations hereunder are subject to the regulationsfpolicies of the Arizona Board of Regents. The parties agree that sis-0133622 34 all actions or proceedings arising under 0r related to this Lease or the Leased Premises will be brought and maintained exclusively in the courts situated in Maricopa County, Arizona, except to the extent arbitration is required as provided in Pamgraph 1227 below. Each party waives any objection it may now or hereafter have to venue or to convenience of forum. 19.17 Performance of Landlord?s Obligatiians by Marta gee. Tenant shall accept performance of any of Landlord?s obligations hereunder by any Mortgagee of Landlord. but no Mortgagee shall have any obligation therefor. 19.18 Attorneys Fees: Waiver oi" Jury Trial and Waiver of ?ight to Counterclaim and to Remove. 19.181. Should either party hereto institute any action or proceeding to enforce any provision hereof, or fer damages by reason of any alleged breach of any provision of this Lease, or for a declaration of such parties? rights or obligations hereunder, or for any judicial remedy, the prevailing party shall be entitled to receive from the losing party such amount as the ecurt may adjudge to be reasonable attorneys? fees, costs and expenses of the prevailing party. Should relief be awarded to both parties, such attorneys? fees, costs and expenses shall be adjudged against the parties in any manner the court shall deem equitable. 19.182. Landlord and Tenant hereby mutually waive any and all rights which either may have to request ajurgr trial in any action, proceeding or counterclaim (except for those involving personal injury or property damages) arising out of this Lease 0r Tenant?s occupancy of or right to occupy the Leased Premises in any court of competent jurisdiction. Tenant further agrees that in the event Landlord commences any summary proceeding for non-payment of rent or possession of the Leased Premises, Tenant will not interpose and waives all right to ulterposc any non-mandatory counterclaim of whatever nature in any such proceeding. Tenant further waives any right to remove said summary proceeding to any other court or to consolidate said summary proceeding with any other action, whether brought prior or subsequent to the summary proceeding. 19.19 Limi fR -. *Aainst it?d. Tenant acknowledges and agrees that the liability of .andlord (which term shall include its partners for the purpose of this Ear-agraph 19, lg. under this Lease shall be limited to its interest in the Building and any judgments rendered against Landlord shall be satis?ed solely out of Rent payable under this Lease, or if such Rent shatl be insuf?cient to satisfy any judgments rendered against landlord, out of the proceeds of sale of Landlord?s interest in the Building. No personai judgment shall lie against Landlord upon extinguishment of its rights in the Building and anyjudgment so rendered shall not give rise to any right of execution or levy against Landlord?s assets. The provisions hereof shall inure to Landlord?s successors and assigns including any Mortgages. The foregoing provisions are not intended to relieve Landlord from the performance of any of Landlord?s obligations under this Lease, but only to limit the personal liability of Landlord in case of recovery of a judgment against Landlord; nor shall the foregoing be deemed to limit Tenant?s rights to obtain injunctive relief or speci?c performance or to avail itself of any other right or remedy which may be awarded Tenant by law or under this Lease. in the event Tenant claims or asserts that the Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold or delay Landlord?s consent or approval, Tenant?s sole remedy shall be an action for speci?c performance, declaratory judgment or injunction and in no event shall Tenant be entitled to any money damages for a breach of such covenant and in no event shall Tenant claim or assert any claim for any money damages in any such action or by way of set off, defense or counterclaim and Tenant hereby speci?cally waives the right to any money damages or other remedies. sis?0133622 35 19 .20 Guaranty. Required . Concurrently with the execution hereof by the parties hereto, Tenant will deliver to Landlord the fully executed Guaranty attached hereto as Exhibit failing which, at Landlord?s option at any time thereafter, this Lease shall be void and of no Further force or effect. In the event a Guaranty should ever be required under this Lease by reason of the applicability of Paragraph the form of Guaranty attached hereto as Exhibit would be used. 19.21 Force Majeure. Any prevention, delay or stoppage of any construction or repair obligation hereunder due to strikes, iockouts, labor disputes, contractor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes thereof, governmental restrictions, governmental regulations, governmental controls or delays, enemy or hostile governmental action, civil commotion, ?re or other casualty, and other causes beyond the reasonable control of the party obligated to perform, excluding ?nancial issues or problems (?Home Maienrc"), shall excase the performance by such party for a period equal to any such prevention, delay or stoppage, except the obligations imposed with regard to Rent and payment of any other monies to contractors or materialme'n, or pursuant to this lease. 19.22 Time of Essence. Time is of the essence in connection with each and every obligation hereof. 19.23 Quiet 'Eniom tent. Landlord covenants that Tenant, upon paying the Base Rent, Percentage Rent and the Additional Rent provided for in this Lease, and upon performing and observing all of the terms, covenants, conditions and provisions of this Lease on Tenant?s part to be kept. observed and performed, shall quietly hold, occupy and enjoy the Leased Premises during the Tenn, subject to all matters of record and without hindrance, ejection or molestation by Landlord or any party lawfully claiming through or under Landlord. Tenant acknowledges that to promote downtown Tempe, the City, the Mill Avenue Merchants Association, the Downtown Tempe Community andfor other groups, of which Landlord and/or the Building may or may not be members, may schedule parades, festivals, or other special events that may disrupt traffic or access, cause noise or disruption or other consequences, for which Landlord shall have no responsibility. Tenant acknowledges that various restaurants, bars and other entertainment uses will operate above or on the same level as the Leased Premises, and/or elsewhere in the Project, resulting in loud music, television, crowd and other noise levels at various times. The Building is part of the Brickyard on Mill, 3 mixed use development that will contain of?ce, retail, commercial and residential parking, and residential uses. Additional noise may result from such uses. Tenant releases Landlord, its partners, shareholders, members, directors, of?cers, managers and employees from all claims, liability, controversies and damages resulting or purported or alleged to result to Tenant, its business, its employees or other invitees from such noise. Tenant will, prior to hiring or employing any person, advise such person of the foregoing and that such person is bound by this provision. 19.24 Tenant?s and guarantors Financial Statements. Within ten (10) days after Landlord?s written request therefor, Tenant shall deliver to Landlord the current, detailed and complete audited annual and quarterly ?nancial statements of Tenant, and annual audited ?nancial statements of the two (2) years prior to the current year?s ?nancial statements, each with an opinion of a certi?ed public accountant and including a balance sheet and pro?t and loss statement, all ills-0133622 36 prepared in accordance with generally accepted accounting principles consistently applied, and current detailed ?nancial statements for the Guarantors, if any, which, for entity Guarantors, shall also comply with the requirements of(a) above. 19.25 Condominium Acts. Tenant agrees, within ten (10) business days alter receipt of written request dierel'or from Landlord, to join with Landlord in executing and acknowledging any and all documents and instruments required by the provisions of the Arizona Condominium Act or other law at the time in effect to enable Landlord to submit the Building, or any part thereof, andfor any adjacent buildings, or any part thereof, in which Landlord has an interest and Landlord to a condominium regime and to establish the Building andror Leased Premises as a separate condominium unit or units under such Act or any and all documents and instruments required by the applicable governmental authorities to establish such buildings as independent, subdivided parcel of land under the local subdivision ordinance; provided however, that such documents and instruments shall not materially affect any of the rights of Tenant under this Lease, shall not increase the Base Rent, shall not increase, in any material respect, the Additional Rent payable by Tenant under this Lease, and shall not diminish Landlord?s obligations under this lease. 1926 Nondiscrimination. The parties will comply with all applicable state and federal laws, rules, regulations, and executive orders governing equal employment opportunity, immigration, and nondiscrimination, including the Americans with Disabilities Act. If applicable, the parties will abide by the requirements of 41 CFR 6t]- and These regulations prohibit discrimination against quali?ed individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take af?rmative action to employ and advance in em ploymeot individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. 19.27 .?rhitg tion it] Superio? rCourt. As required by A.R.S. 1245 i8, the parties agree to make use of arbitration in disputes that are subject to mandatory arbitration pursuant to A.R.S. 12-133. 19.28 Conflict of Interest. if within three (3) years she: the execution of this Lease, Tenant hires as an employee or agent any Landlord representative who was signi?cantly involved in negotiating, securing, drafting, or creating this Lease, then Landlord may cancel this Lease as provided in ARE. ?38?Sl 1. Notice is also given of .435. 41-2517 and 41-753. 19.29 Failure of Legislature to Approp? ri'ate. In accordance with A.R.S. 35-154, if Landlord's performance under this Lease depends on the appropriation of funds by the Arizona Legislature, and if the Legislature fails to appropriate the funds necessary for performance, then Landlord may provide written notice of this to Tenant and cancel this Lease without ?nther obligation of Landlord. Appropriation is a legislative act and is beyond the control of Landlord. a [5-0133622 37 19.30 acknowledges that each lease of Sparta in the Building is negotiated on its own merits and in light of circumstances that may be unique to each Tenant, that disclosure by Tenant of rental rates Or other terms offered by Landlord to Tenant (whether or not ultimately incorporated into this Lease) woold be detrimental to Landlord, and that Landlord has a legitimate right to avoid such disclosure. Accordingly, except as otherwise required by law or legal process, Tenant shall not disclose any such to anyone other than individuals within Tenant?s business organization, and outside attorneys, accountants and similar professional consultants, who in each case have a need to know such information and who have been cautioned by Tenant against further disclosure thereof. Any violation of the foregoing covenant shall constitute a default under this Lease. Landlord prohibits the use, possession, display or storage of any weapon, explosive device or ?reworks on all land and buildings owned, leased, or under the control of Landlord or its affiliated or related entities, in all Landlord residential facilities (Whether managed by Landlord or another entity), in all Landlord vehicles, and at all Landlord or Landlord af?liate sponsored events and activities, except as provided in A.R.S. 12-78], or unless written permission is given by the Chief of the ASU Police Department or a designated representative. Noti?cation by Tenant to all persons or entities who are employees, of?cers, subcontractors, consultants, agents, guests, invitees or licensees of Tenant ("Tenant Noti?cation Parties") of this policy is a condition and requirement of this Lease. Tenant further agrees to enforce this contractual requirement against all Tenant Noti?cation Parties. Landlord?s policy may be accessed through the following web page: -05. li a mi 19.32 Tobaceo~Free University. Landlord, as a university, is tobacco-free. For details, visit 19.33 Names and Marks. Tenant will not use any names. service marks, trademarks, trade names, logos, or other identifying names, domain names, or identifying marks of Landlord (the Marks"), without in each case, the prior written consent of Landlord, which Landlord may withhold in its sole and absolute discretion. if permission is granted by Landlord, Tenant?s use of any ASU Marks must comply with Landlord?s requirements including using the indication of a registered trademark where applicable. 19.34 Records. To the extent required by A.R.S. 35?214, Tenant will retain all records relating to this Lease. Tenant will make those records available at all reasonable times for inspection and audit by Landlord or the Auditor General of the State of Arizona during the term of this Lease and for ?ve (5) years alter the completion of this Lease. Tenant will provide the records at Arizona State University, Tempe, Arizona, or another location designated by Landlord on reasonable netice to Tenant. 19.35 My. At the expiration or earlier termination of the term of this Lease, Tenant shall surrender to Landlord all keys to the Leased Premises and shall deliver the Leased Premises to Landlord in broom clean and in as good condition as when acquired hereunder, excepting ordinary wear and tear and damage covered and paid by casualty insurance. Provided that Tenant is not then in default, Tenant shall remove from the it is-otassza 3 8 Leased Premises all of Tenant's trade ?xtures and personal property installed on the Leased Premises by Tenant; remove such installations (including wiring and cabling wherever located), alterations and leasehold improvements made {or if applicable, restore any items removed) by or on behalf of Tenant as Landlord may request, and all Tenant?s signs wherever located; repair all damage caused by such removal; and vacate and surrender the Leased Premises (including all installations, alterations and leasehold improvements made by or on behalf? of Tenant except as Landlord shall request Tenant to remove). Notwithstanding anything to the contraryr contained herein, Tenant shall only be required to remove alterations or leasehold improvements to the extent Landlord informs Tenant of such removal requirement at the time consent to such alterations or leasehold improvements are given by landlord. Any trade ?xtures, personal property, other leasehold improvements or alterations not so removed shall be deemed abandoned, and title thereto shall vest solely in Landlord without payment of any nature to Tenant, and may be removed and disposed of by Landlord in such manner as Landlord shall determine, in Landlord's sole discretion, and Tenant shall pay Landlord the cost and expense incurred by Landlord in e?ecting Such removal and disposition. [sen SIGNATURES on NEXT #15~013362.2 39 IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this Retail Lease as uf the day and year first above written. LANDLORD: ARIZONA BOARD OF REGENTS, a body corporate, for and on hehaif of Arizona State University Name: [70? ?1 44 (1(pr f" Title: A'I/fp Um} 1364?5: +11 ?r?aj 667%7?2? BURGER REHAB THERAPY 2 LLC an Arizona limited habitity (20111an By: Name: I kit} raw A r'muE'TH Title: C. C?bome THIS DOCIMNT SHALL NOT BE TREATED AS AN OFFER LEASE BUT MERELY AS A DRAFT FOR REVIEW PURPOSES. THIS DOCUMENT SHALL NOT BE VALID OR BINDING, AND IS SUBJECT TO WITHDRAWAL OR MODIFICATION BY LANDLURD WITHOUT NOTICE, UNTIL SUCH TIME, IF EVER, AS IT IS ACCEPTED BY LANDLORD IN WRITING AND A FULLY EXECUTED COPY IS DELIVERED TO ALL PARTIES THERETO. LANDLORD RESERVES RIGHT TO OFFER THE LEASED PREMISES SIMULTANEOUSLY TO OTHER THIRD AND THE LEASED PREMISES ARE TH ERBFOR SUBJ ECT TO PRIOR LEASING. 4O EXHIBIT BUILDING AND PROJECT GENERAL SITE PLAN The area marked as "Ste 146? on the below diagram and shown by hatch marks depicts the location of the Leased Premises in relation to the Building. MILL AHEENUE 3.115 #15-0133622 EXHBIT LOCATION AND DIMENSION OF THE LEASED PREMISES The location of the Leased Premises (minus the seated patio area pcnnittc-d pursuant to Article 3 in the Lease) is depicted by cross-hatching cm the below diagram. Faailliies Emits Hanagamom DRCHIDHOUSE AT THE BRIGKYARD 1 1 1R1UC Fusmmv . 1212914 0F #1 1541133622 EXHIBIT LANDLORB ?5 WORK (RETAIL LEASE) Landlord delivers to Tenant and Tenant accepts the Leased Premises in its ?as is? condition with the existing (as of the Effective Date) HVAC, plumbing, and electricty in good working order. All improvements desired by Tenant to improve or serve the Leased Premises will be Tenant Improvements under Exhibit to the Lease. OF ins-0133622 C-l EXEBIT TENANT IMPROVEMENTS l. TENANT IMPROVEMENTS The work to be done by Landlord in satisfying its obligation to construct Tenant?s Leased Premises under the Lease shall be limited to Landlord?s Work described in Exhibit to the Lease. All other items of work not required to be done by Landlord shall be provided by Tenant, at Tenant's cost and expense (the ?Tcnant utilizing duly licensed contractors, engineers and architects. The Tenant Improvements shall be in accordance with the Tenant?s Plans prepared by Tenant?s architect pursuant to Paragraph 11' below, the Building Code of the City of Tempe, Arizona (the "City"), and all other applicable requirements and Applicable Laws. Tenant Improvements and Tenant?s Plans shall comply with the building standard speci?cations adopted by Landlord or any modi?cations thereof approved by Landlord in writing. The current version of the building standard speci?cations are attached hereto as Exhibit ?13-1? to the Lease, but the same are subject to change by Landlord at any time. The Tenant improvements shall include, but not be limited to, the purchase and/or installation andior performance of the following (including any and all applicable architectural and engineering services, a construction management fee, and necessary permits and licenses therefor): l. gelling-s. All ceilings shall allow for structural, mechanical, electrical and ?re protection systems. 2. Interior Walls. Tenant shall provide all interior walls. 3. Interior Finish. All ?nish required to complete the interior walls, including paint, wallpaper and acoustical panels. 4. interior Insulation. Any additional wall or ceiling insulation required by Tenant. 5. Ceramic Tile. Any ceramic tile material. 6. 131.991.. Tenant shall be responsible for the preparation of subfloors, and provide and install carpet material and floor ?nishes in the Leased Premises. 7. Plumbing. Tenant shall provide and install plumbing in the Leased Premises required for Tenant?s needs in excess of that provided by Landlord. 8. Fire Sprinkler System Modi?cation. All sprinkler work required to complete the system to accommodate the Tenant?s Plans. Design drawings shall be submitted to Landlord for review and approval. 9. Electrical-Fixtures and Equipment. Tenant shall provide and install all electrical work for the Leased Premises not expressly and speci?cally made the obligation of Landlord in Exhibit to the Lease. 10. Mechanical Equipment/Heating and Ventilating. All air conditioning and heating required by Tenant, including all branching, ducting, thermostats, condensate drains and refrigerant lines, and kitchen exhaust and makeup air. #lS-Ol33622 Del ll. Merchandising Fixtures and Miscellaneous Equipment and Qonnection Thereof. Tenant shall provide the electrical and mechanical connection of all merchandising floor and wall ?xtures or equipment and related parts (including kitchen and food service equipment, if permitted) and Olhbr equipment peculiar to Tenant?s occupancy. l2. Alteration and Additions. Tenants shall make all alterations and additions to any wall or floor, including penetration or reinforcements required to accommodate Tenant Improvements, subject to landlord?s approval thereof as set forth in the Lease. 13. Roof Penetrations. Roof/?oor penetrations required by Tenant shall be engineered and installed in accordance with standard project details, with all repairs caused by penetrations performed by a subcontractor designated by Landlord and strictly conforming to the project specifications. 14. Hardware. Tenant shall provide and install all the hardware required by Tenant. 15. Signs. The lettering of sign panels shall be designed by Tenant in accordance with the sign criteria established by the City, and shall be subject to Landlord?s approval. All exterior and interior decorative lighting and signage shall be provided by Tenant. Tenant shall be responsible, at its sole cost and expense, for obtaining any sign permits. l6. Furniture, Eguipment and interior Signs. Equipment, including glass cabinets and special lighting, counters, shelving, and other non-fixture items not speci?cally described herein shall be provided by Tenant. l7. interior Decor. All interior decorative items and fetishes shall be provided by Tenant. H. PLANS A. TENANT MATERIAL Upon execution of this Lease, Landlord will provide Tenant with the ?Landlord?s Plans? showing thereon column spacing, ?xed elements, and overall dimensions, unless the same were previously provided to Tenant. Landlord?s Plans are provided to Tenant expressly provided Tenant shall ?eld verify all ass-built conditions, as they may vary from the Landlord?s Plans. B. PLANS Within ten (10) days after execution of the Lease, Tenant agrees to submit to Landlord four (4) sets of fully dimensioned one-quarter inch scale construction drawings and speci?cations prepared by Tenant?s architect (the ?Tenant?s Plans?), which Tenant?s Plans shall indicate the speci?c requirements of Tenant?s space showing clearly the interior partitions, trade ?xture plans, lighting, electrical outlets and all signs, all in conformity with the requirements set forth herein for the Tenant Improvements. Tenant?s Plans shall be at Tenant?s sole cost and expense. in addition, Tenant?s Plans will identify the limit of responsibility of the Tenant Improvements described in Paragraph 11 above. The Leased Premises shall be constructed in accordance with Tenant?s Plans, and Tenant agrees to pursue the construction of said work diligently to completion, complying with the Building Code of the City, all other applicable requirements, and this Lease. sis-0133622 9-2 C. APPROVAL OF PLANS The Tenant?s Plans are subject to Landlord?s reasonable approval. Landlord shall, within ten (ill) business days after receipt of complete Tenant?s Plans, either provide comments to such Plans or approve the same. If Landlord does not respond to Tenant?s submission, Tenant shall give written notice thereof to Landlord and Landlord shall be deemed to have approved such Plans if it does not provide comments on such Plans within ?ve (5) business days after its receipt of Tenant?s notice. if Landlord provides Tenant with comments to the initial dra? of the Tenant?s Plans, Tenant shall provide revised Tenant?s Plans, incorporating Landlord?s comments, within one (1) week after receipt of Landlord?s comments. Landlord shall within one (1) week after receipt of the revised Tenant?s Plans either provide comments to such revised Tenant?s Plans or approve such Tenant?s Plans. If Landlord does not respond to Tenant?s submission, Tenant shall give written notice thereof to Landlord and Landlord shall be deemed to have approved such revised Tenant?s Plans if Landlord does not provide comments thereon within ?ve (5) business days after its receipt of Tenant?s notice. The process described above shall be repeated, if necessary, until the Tenant?s Plans have been ?nally approved by Landlord. Tenant may not perform any exterior design, ?nish at construction other than one that has been approved by Landlord, and Landlord shall be entitled to erect and construct such exterior in keeping with the overall plan and design of Landlord?s architect. Tenant shall not be permitted to maintain or place on the exterior of the Leased Premises any awnings except with the written consent of Landlord. Any changes, modi?cations or alterations of or to Tenant?s Plans following their approval by Landlord shall be at the sole cost and expense of Tenant, and Landlord shall have the right to demand payment for such changes, modi?cations or alterations prior to the performance of any work in the Leased Premises. No such changes, modi?cations or alterations of or to the Tenant?s Plans shall be made without the written consent of the Landlord after written request therefor by the Tenant. D. DESIGN CRITERIA l. STRUCTURAL Any structural changes in andfor additions and reinforcements to Landlord?s structure required to accommodate the Tenant improvements shall be Tenant?s responsibility and shall be subject to Landlord?s prior written approval, and shall conform to the Building Code of the City and all other applicable requirements and Applicable Laws. 2. ROOF a. Penetrations. There shall be no penetrations of the roof or installations of radio, television or other antennas, satellite dishes or other rooftop or exterior equipment without the prior written approval of Landlord. Any such roof penetrations and antenna or dish installations required by Tenant and approved by Landlord shall be engineered and installed by Landlord?s contractor or another sub-contractor of equal competence approved by Landlord at Tenant?s expense. - b. Benoit-s. All ?ashing, counter?flashing and roo?ng repairs and such work shall be perforated by the project roo?ng sub-contractors Ill. BUD ET Not later than the earlier of the date Tenant delivers the Ten ant?s Plans pursuant to aragraph above, or the required date for delivery of the Tenant?s Plans, Tenant will deliver to Landlord a bona tide, #l $013351: 0-3 detailed budget reasonably acceptable to Landlord for the Tenant Improvements shown on the Tenant?s Plans, as the same are revised from time to time as permitted hereunder (the The Budget and all revisions thereof shall be subject to Landlord?s reasonable approval, based on veri?cation of the reasonable suf?ciency and of the amounts shown therein, particularly to ensure a quality level of Tenant Improvements commensurate with the Building. If and to the extent the projected cost of the Tenant Improvements changes, Tenant shall immediately submit a revised Budget to Landlord. IV. PROCEDURE FOR CONSTRUCTION OF TENANT IMPROVEMENTS A. PRECONSTRUCTION REQUIREMENTS A minimum of fourteen (14) days prior to the commencement of Tenant Improvements or such earlier date as is required by Landlord?s Lender, Tenant shall submit the following items to Landlord via certi?ed mail: 1. Contractors. A statement setting forth the name and address of Tenant?s contractors and subcontractors involved in the construction of Tenant Improvements, and copies of Tenant?s or the general contractor?s construction contractis) therefor, meeting all requirements of this Lease. All contractors and subcontractors shall be subject to Landlord?s mitten approval, which will not be unreasonably withheld or delayed. 2. Construction Schedule. A statement setting for?i the proposed commencement date of construction and the estimated completion dates of the Tenant Improvements, including ?xturing work and scheduled completion. 3. Insurance Certificates. Certi?cates of insurance as required by the Lease. Tenant?s contractors and subcontractors shall not be permitted to commence any work until all required insurance has been obtained and certi?cates have been received by Landlord. B. POSSESSION AND CONSTRUCTION. Tenant shall commence its construction of Tenant Improvements and installing its fixtures and other equipment as soon as Tenant shall have obtained Landlord?s written approval of the plans and speci?Cations for such work as provided in Parag' ragh 1] above, Tenant shall have obtained a valid building permit(s) for construction of the Tenant improvements, Tenant shall have deposited with Landlord the policies or certi?cates of insurance required by this Lease, and Landlord shall have received full payment of the Security Deposit from Tenant. Tenant?s activities shall be conducted so as not to unreasonably interfere with any of Landlord?s construction activities and/or with the normal operation of the Building and other tenants?loocupants? activities and quiet enjoyment. Tenant shall maintain the Leased Premises in a clean and orderly condition during the construction by Tenant of its improvements. All trash which may accumulate in connection with Tenant?s construction activities shall be deposited daily in dumpsters provided by Tenant alter the Delivery Date and placed and emptied as approved and directed by Landlord. During such construction period, Tenant shall diligently pursue the completion of all improvements and other work to be performed by it and shall perform all duties and obligations imposed by this Lease, including without limitation, those provisions relating to insurance and indemni?cation. Landlord may also occupy the Leased Premises as necessary to complete any Landlord?s Work within the Leased Premises. Prior to the Delivery Date, Tenant shall not be entitled to possession of the Leased Premises, but shall have the right to enter same at reasonable times for properly planning the Leased Premises for its business, so long as it does not unreasonably interfere with any construction or other activities of Landlord and complies with the safety regulations thereof. #15-0133622 0-4 C. CONSTRUCTION REQUIREMENTS Upon approval of Tenant?s Plans under Para-grep ll.C above, Tenant shall apply for and use diligent efforts to obtain all required Permits (as de?ned below) for the Tenant Improvements within forty-five (45) days of the Landlord?s approval of Tenant?s Plans. Tenant shall commence the Tenant Improvements within ?ve days after Tenant receives all required permits and shall proceed diligently to complete the same, provided Tenant?s Plans have been approved as required herein and all other requirements have been satis?ed (but Tenant?s delays in satisfying such requirements shall not delay or waive Tenant?s obligations under Paragraph 7.2 of the Lease). ?Permits? means any permits andfor licenses (including but not limited to conditional use and zoning permits, building permits and variances) that are required by Applicable Laws (as de?ned in Paragraph of the Lease) to enable Tenant legally to construct the Tenant Improvements in accordance Tenant's Plans (these Permits are also referred to as the ?Construction Permits?); to install Tenant?s signage on the Leased Premises; and to conduct its business in accordance with the Permitted Use from the Leased Premises. Landlord?s obligations relative to the construction of improvements shall be limited to those expressly provided in Exhibit to the Lease. Tenant shall pay or cause to be paid all costs for work done by Tenant or caused to be done by Tenant on the Leased Premises, and pay for all materials installed in the Leased Premises; and Tenant shall furnish to Landlord satisfactory evidence of such payments. Any failure of Tenant to pay her said work or material shall constitute a default under the terms of this Lease in like manner as the failure to pay Rent. Tenant shall con?ne construction work to within Leased Premises as much as possible and shall work in an orderly manner. At no time will pipes, wires, boards or other construction materials project into public areas where harm could be caused to public. The requirements of Occupational Safety and Health Adminiso'ation (OSHA) prepared by the Department of Labor will govern. If Tenant fails to comply with these requirements, Landlord will take remedial action (at Tenant?s cost) as deemed necessary by Landlord to protect the public. During all construction, ?xturing and merchandise stocking of the Leased Premises, Tenant shall contract and pay for dumpsters directly with an outside vendor and not use those provided for other merchants. It shall be the sole responsibility of Tenant and Tenant?s contractors to daily remove all trash and debris from the Leased Promises, to break down all boxes and place all such trash and debris into the containers supplied for that purpose by Tenant. Tenant will be required to furnish necessary ramps, chutes, coverings, etc, to protect Landlord?s and adjoining premises from damage. All repair of damage to Landlord?s facilities and to adjoining premises will be at the cost of Tenant causing damage. Actual repair work will be accomplished by Landlord?s subcontractor and be at Tenant?s expense. Tenant?s contractor shall store all of his materials into space or spaces assigned by Landlord and not on sidewalks or alleyways. If Tenant?s material is found outside of designated areas, then Landlord at its option may con?scate said materials or charge Tenant a ?ne of Two Hundred Dollars Tenant may install temporary store name signs in the event Tenant does not have permanent approved signs installed as Tenant commences business. Such signs shall be of material and color harmonious with store ?'ont, shall be approved by Landlord and shall be in accordance with the sign criteria of the City. Paper signs and signs painted directly on store front or show windows are not permitted. ills-0333622 D-S Tenant will arrange and pay for its own construction period utilities, or if Landlord agrees to provide the same, Tenant will reimburse Landlord for the reasonable pro rata cost thereof within ?fteen (15) days of invoicing. All contractors engaged by Tenant shall be licensed contractors, having good labor relations, capable of performing quality workmanship and working in harmony with Landlord?s contractors and other contractors on the job. Tenant will comply (and cause its contractors to comply) with all of Landlord?s and its contractor?s constructiom safety, and jobsite rules and guidelines In the event that any of Tenant?s contractors willfully violates the requirements of the Lease, Landlord may order such contractor to remove himself, his equipment and his cmpIOyees from Landlordis property. Tenant and Tenant?s contractors shall cooperate with Project Manager?s monitoring of the ?l?enant Improvements and comply with Landlord?s or Project Manager?s construction requirements. it shall be the responsibility of Tenant to obtain all necessary licenses, permits and Certi?cates of Occupancy required by the City or other governmental agency prior to opening. Where Tenant?s Plans are in con?ict with Exhibit to the Lease and this Exhibit the provisions of Exhihit and Exhibit shall prevail, unless otherwise agreed by Landlord. Tenant hereby releases Landlord from any claim whatsoever for damages against Landlord for any delay in the date on which the Leased Premises shall be ready for Tenant to commence the ?tenant Improvements. - or? ate-0133622 Dis EXI-BBET ?Dz-l? RETAIL BUKLDENG STANDARD SPECIFICATIONS Item Corridor Partitioning [Dem is ing Partitioning Tenant Partitioning Partial Height Partitioning Tenant Entry Doors Tenant Interior Doors Tenant Interior Door Hardware Light Switches #15~013362.2 Product lion Metal studs with one layer 5/8? Type gypsum board one side and two layers 5/8? type gypsum board one side. Partition extends to underside of ?oor deck above painted with two coats eggshell paint and 2 ?25? caved rubber base on Tenant side of wall. Provide a smooth ?nish wall at corridor side of wall. Paztition will include R?il insulation batts and acoustical caulking at ?oor deck above and floor. Note: Cost of wall split so building cost includes half of wall construction and wall ?nish for corridor side of wall. Tenant cost includes half of wall construction and Tenant wall ?nish. Metal studs with one layer 53'8? gypsum board both sides (provided the board on the non-Tenant side may be delayed until the space adjacent thereto is built out, unless required to be done earlier under Building or Safety Codes for Tenant to occupy the Leased Premises). Partition extends to ?oor deck above. Partition will include R?ll insulation batts and acoustical caulking at ?oor decking above and floor. Partition painted with two coats eggshell paint and smooth ?nished with 2 coved rubber base on Tenant side. Cost of wall will be equally divided between adjoining tenants] Metal studs with one layer gypsum wall board both sides. Partition to extend from floor to underside of ceiling grid with smooth ?nish and two coats eggshell paint, 2 coved rubber base both sides. Metal studs 3? 3? 1/ steel tube wall brace at 6?43? 04:. for wall over and at each end of wall with one layer gypsum wall board both sides. Partition to extend from ?oor to :42? A.F.F. or as indicated per tenant drawings, painted with a smooth eggshell ?nish and a 2 1/2? coved rubber base sides. 8? - 10? medium style aluminumfglass door. Door to have aluminum frame to match Building store front ?nish. 8?40" solid core doors in aluminum frame to match Building storefront ?nish. Lever mortise passage latchset, satin stainless steel ?nish. Single pole switch with cover plate and toggle switeh. (White) Duplex wali outlet with cover plate and plugs.(White) Exhibit 0-1, Page i Electrical Convenience Telephone Data Outlets Telephone Mounting Board Exit Lights Heating, Venting, Air Conditioning (WAC) Fire Protection Sprinkler System Outlet Duplex wall outlet with cover plate and plugs. (White) Building standard rough-in box Tenant will coordinate with their respective communication equipment company for detailed requirements for inelusion into construction plans and schedule. 4? 4? painted plywood mounted board. Stencil faced ?xture to match shell Building signs. Duct work as required, with 2? 2? diffusers and thermostat control in Tenant areas. special requirements may result in additional cost to Tenant. Tenant shall use Landlord?s designated contractor for all work. Sprinkler heads shall be semi?recessed pendants with white escutcheons. Tenant shall use Landlord?s designated contractor for all work Tenant will use Landlord?s designated electrical contractor for all work outside the Leased Premises, including all hookups to main Building systems. ills-0133622 Exhibit D-i Page 2 EXHIBIT RULES AND Tenant expressly covenants and agrees, at all times during the Term, and at such other times as Tenant occupies the Leased Premises or any part thereof, to comply, at its own cost and expense, with the following: 1. Any handling of freight for any purpose, or deliveries to or from the Leased Premises, shall be made in a manner which is consistent with good commercial retail andr'or of?ce building practices and only at such times, in such areas, and through such entrances and exits as are from time to time designated for such purposes by Landlord. Any truck or machine used for handling freight or making deliveries in the Leased Premises or in the Building shall have rubber wheels only. 2. All garbage and other refuse shall be kept inside the Leased Premises in the type of container speci?ed by Landlord until such time as it is to be collected. All garbage shall be prepared for collection, and collected in the manner and at the times and places speci?ed by Landlord. Landlord initially shall furnish the service for the removal of garbage and other refuse, and Tenant shall use such service. The cost will be included in CAM Expenses. Tenant shall not be obligated to pay more for such service than the prevailing competitive rates charged by reputable, independent trash removal contractors for equal service on a direct and individual basis. Landlord may also provide trash compactors for compacting tenants? trash and add the cost thereof to the CAM Expenses. If Landlord does not provide trash removal service, Tenant shall be solely responsible for contracting For the removal of all garbage and other refuse From the Leased Premises and shall pay all charges therefor. 3. Tenant shall not suffer, allow or permit any vibration, noise, odor or ?ashing or bright light to emanate from the Leased Premises or from any machine or other installation located Lherein, or otherwise su??er, allow or permit the same to constitute a nuisance to or interfere with the safety, comfort or convenience of Landlord or of any other occupant or user of the Building; (ii) display, paint, or place any handbills, bumper stickers or other advertising devices on any vehicle(s) parked in the parking area(s) of the Building, whether belonging to Tenant, its employee(s), or any other person(s); solicit business or distribute any handbills or other advertising materials in the Common Areas; (iv) conduct or permit any activities in the Building that might constitute a public or private nuisance; permit the parking of any vehicles or the placement of any displays, trash receptacles or other items, so as to interfere with the use of any driveway, ?re lane, corridor, walkway, parking area, mall or any other Common Area or Common Element; (vi) use or occupy the Leased Premises or permit anything to be done therein which in any manner might cause injury or damage in or about the Building or Project, or (vii) use or occupy the Leased Premises in any manner which is unreasonably annoying to other tenants in the Building or Project unless directly occasioned by the proper conduct of Tenant?s business in the Leased Premises. 4. Tenant shall secure and protect the Leased Premises, and all property located within the Leased Premises. Tenant acknowledges and agrees that it, and not Landlord, is solely responsible for securing and protecting the Leased Premises, and all property located within the Leased Premises. 5. Tenant shall use the plumbing within the Leased Premises and the Building only for the purpose for which it is designed. Tenant shall be solely responsible for any breakage, stoppage or damage resulting from its violation of this provision, and shall pay any costs associated therewith to Landlord upon demand as Additional Rent. it l5-Ol3362.2 [3.1 6. Tenant shall contract for and utilize termite and pest extermination services for the Leased Premises, and with such contractor, as landlord may from time to time designate. Tenant shall not be obligated to pay more for such service than the prevailing competitive rate charged by reputable, independent contractors. If Landlord does not designate such contractor, Tenant may employ a reputable contractor of its choosing, subject to Landlord?s prior written consent. 7. Tenant snail install and maintain at all times a display of merchandise in the display windows (if any) of the Leased Premises and shall keep such display windows well lighted during all Building business hours and for at least one (1) hour thereafter. All articles, and the arrangement, style, color and general appearance thereof, shall be in keeping with the character and standards of the Building as reasonably determined by Landlord. 8. Tenant shall participate in any window cleaning program that may be established by Landlord. Tenant shall not be obligated to pay more for its participation in such window cleaning program than the prevailing competitive rate charged by reputable independent window cleaning contractors for equal service on a direct and individual basis. 9. If Tenant undertakes any construction activities which causes any work stoppage, picketing, labor disruption or dispute, so as to interfere with the Landlord?s construction activity at the Building, Tenant shall, upon request from Landlord, immediately suspend any construction work being performed in the Leased Premises giving rise to such labor problems, until such time as Landlord has completed its construction activity and noti?ed Tenant that Tenant?s construction may resume. Tenant shall have no claim for damages of any nature against landlord for such suspension nor shall the Term Commencement Date be extended as a result thereof. to. Tenant shall obtain all permits, including occupancy permits, for the Leased Premises or its use thereof. Tenant shall pay before delinquency all license and permit fees, and other charges of a similar nature, for the conduct of any business in, or any use of, the Leased Premises. Upon request Tenant shall provide to Landlord a copy of all its permits, including the certi?cate of occupancy. 11. Where reasonably practicable, Tenant shall use the Building name and logo and include the Tenant Trade Name and the address and identity of Tenant?s business in the Leased Premises in all advertisements made by Tenant in any manner and in any medium. 12. Tenant shall not conduct or permit to be conducted any auction, fire, ?going out of business? or similar type of sale (whether real or ?ctitious) from the Leased Premises; provided, however that this provision shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to determine its own selling prices nor shall it preclude periodic, seasonal, promotional or clearance sales held in the ordinary course of business. 13. Tenant shall not place a load on any floor in the Building which exceeds the load which the floor was designed to carry, or which may result in improper weight distribution on such ?oors. 14. Tenant shall not install, operate or maintain in the Leased Premises, or in any other area of the Building, electrical equipment which does not bear the Underwriters Laboratories seal of approval, or which w0uld overload the electrical system or any part thereof beyond its capacity for proper, ef?cient and safe operation. 15. To the extent required by Landlord or by any law, rule, regulation, guideline or order, Tenant shall provide sound barriers for all mechanical systems serving the Leased Premises. #1 5013352.: E-Z 16. Tenant shall not store, display, sell, or distribute any alcoholic beverages, dangerous materials, ?ammable materials, explosives, or weapons in the Leased Premises, or conduct any unsafe activities therein, unless permitted pursuant to Parag? raph 1.9 ofthe Lease. 17. Except to the extent expressly permitted in Parag? raph 1.9 of the Lease, Tenant shall not sell, distribute, display or offer for sale any paraphernalia commonly employed in the use or ingestion of illicit drugs, or (ii) any x?rated, pornographic, lewd, or so?oalled ?adult? newspaper, book, magazine, ?lm, picture, video tape or video disk. l8. Tenant shall comply with all statutes, laws, rules, orders, regulations and ordinances affecting the Leased Premises and all the orders or recommendations of any inaurance underwriters, safety engineers, and loss prevention consultants as may from time to time be consulted by In no event shall Tenant use the Leased Premises for proposes which are prohibited by zoning or similar laws or regulations, or covenants, conditions or restrictions of record. Tenant acknowledges and agrees it is solely responsible for determining if its business complies with the applicable zoning regulations, and that Landlord makes no representation (explicit or implied) concerning such zoning regulations. 19. Tenant shall not operate or permit to be operated in the Leased Premises any automatic teller machines, or any coin or token operated vending machine or similar device including, without limitation, telephones, lockers, toilets, scales, amusement devices, and machines for the sale of beverages, foods, candy, cigarettes or other goods, except tor food and drink vending machines for employee use. 20. No radio or television aerial or other device may be erected by Tenant on the roof or on any exterior wall of the Leased Premises, or in the Building, without Landlord?s prior written consent. Any aerial or other device installed without Such written consent shall be subject to removal by Landlord, at Tenant?s sole risk and expense, without notice. 21. Tenant shall comply with all other reasonable rules and regulations from time to time established by Landlord which apply generally to all other tenants (other than major tenants) in the Building. [also OF #15?{1133622 13-3 EXHIBET ESTOPPEL CERTIFICATE To: In connection with the sale or mortgage of the building located at 699 South Mill Avenue, Tempe, Arizona (the the undersigned tenant having reviewed the provisions of that certain lease (the ?Lease?) pursuant to which Tenant presently holds a leasehold interest in Suite at the Property (the ?Leased Premises"), hereby agrees to and certi?es as follows, except as otherwise stated herein: 1. Landlord, Landlord?s successor in interest or any mortgagee, and their respective successors and assigns, may rely on the information set forth in this Estoppel Certi?cate. 2. The rentable area of the Leased Premises is approximately square feet. The Base Rent is currently and increases by . The PerCentage Rent under the Lease is percent of Gross Sales (as defined in the Lease}. The due date of payments under the Lease is the day of each month. 3. The Lease Term commenced 011,,200 and will expire on . The following fully identi?es all options held by Tenant under the Lease, including, but not limited to, renewal, expansion, extension and purchase options: 4. Attached to this Estoppel Certi?cate and incorporated herein by this reference is a true, correct and complete copy of the Lease, including all amendments and {modifications thereof. The Lease has been properly executed by a legally authorized representative of Tenant, is in full force and effect, and constitutes a binding obligation on Tenant. S. Tenant has accepted possession of the Leased Premises described in the Lease; all improvements and all items of an executcry nature pertaining thereto have been completed to Tenant?s satisfaction; and any allowance provided for in the Lease has been paid or satis?ed. 6. All utilities required for the use of the Leased Premises are installed and adequate to service Tenant's needs. 7. There is no default or event that with the passing of time emitter thegr giving of notice would constitute a default on Tenant 5 part (or, to the best of Tenant?s knowledge, on the part of the Landlord) under the Lease. 8. No Rents are accrued and unpaid or prepaid for more than one (1) month under the Lease; and there is no free rent or security deposit except as may be stated in the Lease. Any such security deposit is in the possession of the Landlord in the full amount stated in the Lease. sis-0133622 12-] 9. Tenant has no defense, set-off or counterclaim related to its obligations under the Lease or against the Landlord, 10. Other than the matters referred to in the preamble above, Tenant has not received any notice of any sale, transfer, assignment, hypothecation, mortgage or pledge of Landlord?s interest in the Lease. 11. Except as otherwise provided herein, Tenant hereby acknowledges and agrees that Landlord has ful?lled all its obligations and warranties pursuant to the Lease, and that assignment of the Lease to a buyer or as security to a lender shall not constitute a default or breach of any of the terms and conditions of the Lease, and that after the assignment, any buyer shall be substituted in all respects as the Landlord under the terms and conditions of the Lease. 12. Tenant has received no notice of any violation of any law, municipal ordinance or other governmental or quasi-governmental requirements affecting the Leased Premises which has not been satis?ed, and Tenant has no reason to believe that any authority contemplates issuing any such notice or that any violation exists. 13. Tenant has not assigned or transferred any of? its interest in the Lease nor subleased any portion thereof to another. Except for periods of' free rent described in the Lease, Tenant is not entitled to and has made no agreements with Landlord or its agents or employees concerning free rent, partial rent, rebate of rental payments, credit or offset or reduction in rent, or any other type of rental concession, including without limitation, lease support payments or lease buy-outs. 15. The per_son(s) executing this Estoppel Certi?cate on behalf of Tenant is duly authorized to execute this Estoppel Certi?cate. DATED AS OF . . 8(a) corporation By its Printed Name: tits-0133622 F-2 EXHIBIT GUARANTY 185E DOCUMENT FOLLOWING THE EXHIBIT DESCELPTION #:5013362; Exhibit GUARANTY This Guaranty is entered into as of January 1, 2016 {the l?li'r??ective Date"), by Aaron Nelson and Denise Nelson, husband and wife; Kenneth Likewise and Julie Likewise, husband and wife; Wiley Amen and Paula C. Amati, husband and wife (each jointly and severally a ?Guarantor" hereunder), for the bene?t of the ARIZONA BOARD OF REGENTS, A BODY CORPORATE, FOR AND ON BEHALF OF ARIZONA STATE UNTVERSITY RECITALS: A. Rehab Burger 2, Therapy, LLC, an Arizona limited liability company (?Tenant?) is desirous of entering into that certain Lease dated January I, 2016 (?lease?), whereby Tenant will lease from Landlord that certain real property known as Suite 146, 21 East Street, Tempe, Arizona, and all improvements located thereon (the ?Leased Premises?). B. Landlord has required Aaron E. Nelson and Denise Nelson, husband and wife; Kenneth L. Likewise and Julie 3. Likewise, husband and wife; and Wiley Amett ill and Paula C. Amett, husband and wife (collectively, the ?Gunmntors?, and each jointly and severally a "Guarantor") to execute this Guaranty (the ?Guarang?j, as a condition of Landlord entering into the Lease. C. To induce Landlord to enter into the Lease which is being executed simultaneously herewith, the undersigned Guarantors have agreed to execute this Guaranty. NOW, THEREFORE, in consideration of the furegoing, together with other good and valuable consideration, the receipt and suf?ciency of which are hereby acknowledged, the undersigned Guarantors hereby agree as follows: AGREEMENT: l. Guarantors jointly and severally each absolutely and unconditionally guarantee the timely performance and completion of the construction of Tenant improvements as described on Exhibit of the Lease and Tenant?s opening for business in the Leased Premises, (ii) the complete and appropriate trade fixturization of the Leased Premises for Tenant?s Permitted Use prior to said opening for business, and that there will be no mechanic?s, matcrialmen?s or other liens ?led against the Leased Premises as a res-tilt ol' the foregoing performance of Tenant or any Guarantor. 2. Guarantors jointly and severally each absolutely and unconditionally guarantees the availability of unencumbered cash to Tenant, for Tenant?s use in completing Tenant improvements (as de?ned in the Lease), when and as required by Lhe ?use, in an amount not less than the amount required of Tenant under Exhibit of the Lease, including but not limited to the Tenant?s Additional Funds described therein. 3. Guarantors jointly and severally each unconditionally guarantee that Tenant will operate the Permitted Use (as defined in the Lease) in Lite entirety of the Leased Premises throoghout the entire Lease Term, subject to casualty and Force Majeure as de?ned in Paragraph 19.21 of the Lease. 4. Guarantors jointly and severally each absolutely and unconditionally guarantee and promise to Landlord the due, punctual and full performance by Tenant of each and all of the covenants, obligations, liabilities and promises of Tenant and the truth and accuracy of each and all of the representations and warranties of Tenant contained in the Lease, including, without limitation, the #15-013362.2 G-l payment of Total Rent (as de?ned in the Lease) and any and all other sums payable thereunder. For the purposes of this Guaranty, the term of the Lease refers to any renewals, extensions, modi?cations, reinstatements and holdings over thereof. Guarantors hereby covenant and agree with Landlord: if not done by Tenant, to make the due and puncrual payment of all rent, expenses, costs, monies and charges expressed to be payable under the Lease; (ii) if not done by Tenant, to render prompt and complete performance of all and each of the terms, covenants, conditions and provisions contained in the Lease on the part or? Tenant to be kept, observed and performed; and to indemnify and save harmless Landlord From any loss, costs or damages arising out of any failure by Tenant to pay the rent, expenses, costs, monies and charges payable under the Lease or the failure by Tenant to perform any of the terms, covenants, conditions and provisions contained in the Lease. S. Guarantors acknowledge that all of their respective obligations under this Guaranty are independent of and joint and several with the obligations of Tenant under the Lease and the obligations of each Guarantor signing this Guaranty are joint and several with the obligations of every other Guarantor hereunder or under any separate guaranty. In the event of a default under the Lease, each Guarantor waives any right to require Landlord to: ?rst proceed against Tenant or any other Guarantor or pursue any rights or remedies under or with respect to the Lease; (ii) proceed against or exhaust any secu?ty that Landlord holds from Tenant or any other Guarantor; or purses: any other remedy whatsoever in Landlord?s power. Landlord will have the right to enforce this Guaranty regardless of the acceptance of additional security from Tenant or any other Guarantor and regardless of the release or discharge of Tenant or any other Guarantor by Landlord or by others, or by operation of law. This is a Guaranty of payment and performance, not of collection. in any action to enforce this Guaranty, Guarantors may assert and raise any defenses available to Tenant relating to negotiations, discussions and circumstances preceding or surrounding, and related to, the execution of the Lease and the terms thereof; the terms, provisions, conditions and requirements of the Lease, including the obligations of Landlord and Tenant under the Lease; and the nature or condition of the Leased Premises, but Guarantors may speci?cally and expressly not assert, raise, rely on or otherwise utilize or attempt to utilize any other defenses, justi?cations or excuses for their non~performance of this Guaranty, including but not limited to any related to bankruptcy, reorganization, insolvency, readjustment of debt, winding up, dissolution, liquidation or receivership by or for Tenant, or (ii) inability of Tenant to pay or perform its debts or obligations, including but not limited to Tenant?s inability to pay or perform its debts or obligations under or in connection with the Lease. 6. Guarantors hereby expressly waive any right of seton against amounts due under this Guaranty; (ii) notice of the acceptance of this Guaranty; notice of noo?perfonnancc of or demand on Tenant; and (iv) the provisions of A.R.S. 12-1641, 124642, i2?l644, 12-1645 and 12-1646 and Arizona Rules of Civil Procedure, Rule and any successor statutes or miss. Guarantors waive any homestead or exemption right. Any married person who is a Guarantor agrees that recourse may be had against all separate and community property of such person. 7. Without limiting the generality of the foregoing, the liability of Guarantors under this Guaranty will not be deemed to have been waived, released, discharged, impaired or affected by reason of any waiver or failure to enforce any of the obligations of the Tenant under the Lease, or assignment of the Lease, or the subletting of the Leased Premises by Tenant, or the release or discharge of Tenant in any receivership, bankruptcy, winding-up or other creditors? proceedings or the rejection, disaf?rmance or disclaimer of the Lease by any party in any action or proceeding, and shall continue with respect to the periods prior thereto and thereafter. Guarantors' liability for obligations of Tenant arising or accruing during the term of the Lease shall not be affected by the subsequent expiration or termination of the term of the Lease, and editor any expiration or termination of the Lease, Guarantors will be fully responsible for a 5?0133622 (3-2 all post-expiration or post-tennination obligations of Tenant pursuant to the Lease. The liability of the Guarantors will not be affected by any repossession of the Leased Premises by Landlord. Guarantors will pay when due from Tenant any balance owing to Landlord ?'om time to time, immediately upon being given written notice of demand by Landlord in the manner for providing notice set forth in the Lease, at its address set forth below. 8. Guarantors agree that, without the consent of or notice to Guarantors and without affecting any of the obligations of Guarantors under this Guaranty: any term, covenant or condition of the Lease may be amended, compromised, released or otherwise altered by Landlord and Tenant, and Guarantors guarantee and promise to perform all the obligations of Tenant under the Lease as so amended, compromised, released or altered; any other Guarantor of or party to the Lease may be released, substituted or added; any right or remedy under the Lease, this Guaranty or any other instrument or agreement may be exercised, not exercised, impaired, modi?ed, limited, destroyed, or suspended; and Landlord or any other person may deal in any manner with Tenant, any guarantor, any party to the Lease or any other person. 9. Guarantors wi ll pay I .?andlord 5 reasonable attorneys fees and all costs and other expenses incurred in any collection or attempted collection ofthis Guaranty or in any negotiations relative to the obligations hereby guaranteed. Until all the covenants and conditions in the Lease on Tenant?s part to be performed and observed are hilly performed and observed, Gnarantors: will have no right of subrogation against Tenant by reason of any payments or acts of performance by any Guarantor in compliance with the obligations of the Guarantors hereunder; (ii) waives any right to enforce any remedy which Guarantors now or hereafter will have against 'l'enant by reason of any one or more payments or acts of perfonnance in compliance with the obligations of Guarantors hereunder; and subordinates any liability or indebtedness of Tenant now or hereafter held by Gaarantors to the obligations of Tenant to the Landlord under the Lease. Notwithstanding any provision to the contrary contained herein, Guarantors unconditionally and irrevocably waive any and all rights of subrogation (whether arising under contract, ll U.S.C. 509 or otherwise) to the claims, whether existing now or arising hereafter, Landlord may have against Tenant, and any all rights of reimbursement, contribution or indemnity against Tenant which may have heretofore arisen or may herea?ter arise in connection with any guaranty or pledge or grant of any lien or security interest made in connection with the Lease. Guarantors acknowledge that the waiver contained in the preceding sentence (the "Subroga?on Waiver?) is given as an inducement to Landlord to enter into the Lease and, in consideration of Landlord?s willingness to enter into the Lease, Guarantors agree not to amend or modify in any way the Subrogation Waiver without Landlord?s prior written consent. If any amount is paid to Guarantors (or any of them) by Tenant on account of any claim set forth at any time when all the liabilities of Tenant shall have been paid in full, such amount shall be held in trust by such Guarantors for Landlord's bene?t, will be segregated from the other funds of Guarantors and shall forthwith be paid over to Landlord to be applied in whole or in part by Landlord's right, title or interest in the Lease, Guaranty; all such rights of subrogation and participation being hereby expressly waived and released. ii. The liability of Gnarantors under this Guaranty shall continue until the expiration of all periods within which any amount at any time paid on account of the obligations guaranteed hereby may be required to be restored or returned by Landlord upon the bankruptcy, insolvency or reorganization of Tenant, any other guarantor or any other person. If any amount at any time paid on account of the obligations guaranteed hereby is required to be restored or returned by Landlord as a result of any such bankruptcy, insolvenCy or reorganization, Guarantors will; be liable under this Guaranty with respect to such amount as if such amount was never paid. #15-0133622 5-3 2. This instrument may not be changed, modi?ed, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantors and the Landlord. Notices shall be given pursuant to Article 18 of the Lease, with Guarantors? addresses as speci?ed below, subject to change pursuant to a. rticle 18 of the Lease. 13. All of the terms, agreements and conditions of this Guaranty shall extend to and be binding upon Guarantors, and the successors and assigns of Guarantors and shall inure to the bene?t of and may be enforced by Landlord, its successors and assigns as the owner(s) of the property centaining the Leased Premises, and the holder of any mortgage to which the Leased Premises maybe subject at any time or from time to time. Without limiting the generality of the foregoing, Landlord may, without notice, assign this Guaranty to any party to whom its interests in the Lease have been assigned, or have been otherwise transferred, or to any party succeeding in any manner to the interest of Landlord. Upon request, Guarantors will execute a new Guaranty, in the form hereof, in favor of any such successor. 14. Guarantors represent and warrant to Landlord that the execution of this Guaranty and the performance of their respective obligations hereunder will not result in any breach of, constitute a default Under, or be a violation of any government statute, ordinance, mic or regulation, or any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Guarantors are a party or by which Guarantors are bound. 15. The use of the singular herein shall include the plural. This Guaranty shall be governed by the laws of the State of Arizona. Guarantors consent to and agree that the courts in Mariccpa County, Arizona shall have proper jurisdiction and venue for any actions brought to enforce or with respect to this Guaranty. This is a continuing and irrevocable Guaranty and shall remain in full force until each of the obligations guaranteed hereby is satis?ed in full. 16. Time is of the essence with respect to each obligation set forth herein. Guarantors agree and acknowledge that Landlord is relying on the assets of each Guarantor as presented by Guarantors to Landlord as of the date of this Guaranty. Guarantors will not U?ansfer any assets to any af?liated entity, other af?liate or other party, except upon receipt of reasonable consideration representing the full value thereof. 18. Gunning Termination Data. Provided that 'l?enaot has fully performed and is current with respect to all of its obligations under the Lease prior to and including those arising as of December I, 2020 (the "Guaranty Termination Date"), this Guaranty will terminate and be of no ?ll-titer force of effect on the Guaranty Termination Date. If Tenant has not fully performed or is not current with reapect to all of its obligations under the Lease as of the Guaranty Termination Date, this provision will be null, void and of no further force or effect, and this Guaranty will continue until Tenant fully performs all its obligations under the Lease. Provided that Tenant has fully performed and is current with respect to all of its obligations under the Lease as of the Guaranty Termination Date, the Guarantors may request that Landlord provide written con?rmation that this Guaranty has terminated in accordance with this provrsion. IN WITNESS WHEREOF, the undersigned Guarantors have executed this Guaranty as of the Effective Date. ON sorrowmo 3 #l5-013362.2 (3-4 SIGNATURE PAGE TO GUARANTY OF RETAIL LEASE OF REHAB EURGER TIERAPY 2, LLC, an Arizona limited liability company Aaron E. Nelson and Denise Nelson, husband and wife By: Denise Nelson Guarantor's Notice Add ress: Fg?g ug? Wee a??M gran STATE OF ARIZONA )55 County of Maricopa The {bragging instrument was acknowledged before me this MM 2015, by AARON E. NELSON and DENISE NELSON ANDRES FRANCO Notary Pubiic- Arizona Marianna County . - My Comm. Expires hug 6, 201? -. #:5-0133622 SIGNATURE PAGE TO GUARANTY OF RETAIL LEASE 0F REHAB BURGER THERAPY 2, LLC, an Arizona limited liability company STATE OF ARIZONA 55 County of Marioopa Wiley In ad Paul 1 By; 9/ Wilt-w /Amcu. mad/V i?aula Amett - . Amati, husband and wife Gmarmtor?s Notice Address: 1823 North 77th Street Scattsdale, A7. 8525? The foregoing instrumcnt was acknowledged before me this 32 day of 2015, by WILEY and PAULA C. ARNETT. Notary Public "all .552 euh??:aun3?izai -mc 3:25, ?ac-17$ m1: E-M?i?mu 173%; 2:3; Mfr-m. ff, E3. 91?th {hilona a I I: freeman ii: 3mm in? 2017? Gr- ?2 --.- ?ww- . .339 5. . .., ?k .- In ?R'g 5-0133622 (1?6 SIGNATURE PAGE TO OF RETAIL LEASE 0F REHAB BURGER THERAPY 2, LLC, an Arizuna limited liability company Kenneth L. Likewise and ulie S. Likewise 142mg. Kenneth L. Likewise By: QAOQ Julie 3? Likewise c? Ggarantur?s Notice Add regs: 1706 South Granada Drive Tempe, AZ 85281 STATE OF ARIZONA County of Maricopa SS The foregoing instrument was acknowledged before me thi?ai day M11131: 2015, by KENNETH L. LIKEWISE and .FULIE S. ya?ag? "(42:1 13"? i. mm Public WANDA KAEHR Nmary Public - Atizona SE copa County :1 xpires May 28. 201 8 ?it is? like ?'32 #:3013362: (3-7 EXHIBIT CONFIRMATION OF RENT COWBNCEMENT DATE Landlord: The ARIZONA BOARD OF. REGENTS, a body corporate for and on behalf of Arizona State University Tenant: This Continuation is made by Landlord and Tenant pursuant to that certain lease dated as of (the ?Lease?) for certain premises lmown as Suite in the Building commonly known as Building (the ?Leased Premises?). This Confnmation is made pursuant to Article 2 of the Lease. 1. Rent Commencement Date. Expiration Date. Landlord and Tenant hereby agree that the Rent Cemmencemem: Date of the Lease is i and the Expiration Date of the Lease is 20_. 2. Senate Footage; Rent. Landlord and Tenant agree that the leasable square footage of the Leased Premises is and the initial Base Rent is per month and per year. 3. Acceptance of Premises. Tenant has inspected the Leased Premises and a??irms that the Leased Premises is acceptable in all respects in its cun?ent ?as is? condition. 4. Incogporation. This Con?rmation is incorporated into the Lease, and forms an integral part thereof. This Con?nnation shall be construed and interpreted in accordance with the terms of the Lease for all purposes. Dated as of 20m. LANDLORD: TENAN T: BOARD OF REGENTS, a body .. 3(a) corporate, for and on behalf of Arizona State University By By: Name: Name: Title: Title: ans-0133622 Ea EET ESTJNIATED FIRST YEAR CAM EXPENSES BUDGET ESTIMATED 2015 COSTS PER SQUARE FOOT RETAIL MA Project Common Area 5 1.32 Repairs and MaEntenance 0.29 Maintenance Labor 0.4.9 Electricity for common area 0.88 HVAC 0.04 Painting 0.01 Window Cleaning 5 0.13 Emergency Fire System Repairs 0.9? Property Management Fees 0.15 Waste Removal 3 0.04 EscalatarfElevator Repairs 9.02 RE Taxes 3.24 DTES Assessment 33 0.15 Water Gas 5 0.38 Of?ce sappiies, other misc. 0.06 Parking expensesflicenseffees 1.33 Aceruals A?j ustments $0.69) TOTAL: 6.8 #1 541133622 1-1 10. ii. i2. 13. 14. 15. 16. PROHIBITED USES Flea market (other than occasional street fairs anti other special events) Swap meet Bowling alley (other than a bowling alley located within a ?rst-class entertainment center) Arcade Game room (other than a game room located within a first?class entertainment center) Skating rink (other than a temporary skating rink on a seasonal basis) Billiard room (except a billiard room located within a bat, tavem or restaurant] Massage parlor (other than a spa or a medical of?ce) Adult book store Motion picture theater Funeral parlor Facility for the sale of paraphernalia for use with illicit drugs Carnival, amusement park or circus (other than occasional special events) New or used car dealership (other than the temporary display of automobiles in Common Areas for promotional purposes) Gas station Auto repair shop OF 13mm 1315-0836252 ARIZONA STATE UNIVERSITY January 14, 2019 ALL NOTICES SENT VIA CERTIFIED MAIL. RETURN RECEIPT REQUESTED. AND BY REGULAR U.S. MAIL Rehab Burger Aaron B. Nelson Arm: Wiley Amett Denise Nelson 7210 2nd Street 7525 H. Highland Avenue Scottsdale, AZ 85251 Scottsdale, AZ 85251 Wiley Amett, Kenneth L. Likewise Paula C. Arnett Julie S. Likewise 1823 North 77?? Street 1706 S. Granada Drive Scottsdale, AZ 85257 Tempe, AZ 85281 RE: NOTICE OF FAILURE OF TENANT TO PAY RENT AND NOTICE OF LANDLORD INSPECTION OF PREMISES Lease dated January I, 2016 (the ?Leose?), between Arizona Board of Regents, a body corporate, acting for and on behalf of A rizono. State Universioz (?Landlord?), and Rehab Burger Therapy 2, an Arizona Limited Liability Company mom?), and Lease Guaranty dated January I, 2016 (the ?Guaranty?), signed by Aaron E. Nelson and Denise Nelson, husband and wife; Kenneth L. Likewise and Julie S. Likewise, husband and wig; and Wiley Amett and Paula C. Amati; husband and wife the ?Guarantors ?)for the Lease and Leased Premises located otSuite 146, 21 East Street, Tempe, Arizona (the ?Premises Dear Tenant and Guarantors: This letter is to notify you that 'l?enant has committed an event of default under the Lease, including, but not limited to the failure of Tenant to pay any Rent or other sum of money within ?ve same is due, as provided under Article 16.1(a) of the Lease. Notice is further provided that Tenant has an outstanding balance, in the amount of $66,901.30 (which amount includes base rent and taxes); and that Tenant also owes the applicable Late Fees and interest at the Default Interest Rate payable in connection with such late payments, as required by Articles 1.19 and 1.20 of the Lease (such base rent, taxes, Late Fee and interest collectively, "Late Payments Landlord demands that Tenant pay all Late Payments within ten UNIVERSITY REAL ESTATE DEVELOPM ENT PO Box 873908. Tempe AZ 85287-3908 Phone {480) 9654100 1 Fax {430) 727-6210 Rehab Burger Re. Notice of Default January 14, 2019 Page 2 (10) days from the date of this notice. Landlord further demands that Guarantors pay the Late Payments, as required by Section 4 of the Guaranty, within ten (10) days from the date of this notice. Failure to pay the Late Payments within such ten-day period will result in Landlord exercising its remedies. landlord's immediate rights under the Lease include, among other rights, the right to re-enter and take possession of the Leased Premises and of all equipment and ?xtures of Tenant located therein, and to expel or remove Tenant and all other parties occupying the Leased Premises. However, provided Tenant does not take actions to remove any such equipment or ?xtures from the Premises or otherwise cause damage to the Premises, Landlord is willing to forego such right for ten {10) days from the date of this letter to allow Tenant to pay the Late Payments. 1f Tenant does not comply with the toms of this letter, Landlord may elect to re-enter and retake possession of the Leased Premises. This notice of default is not a waiver of any other event of default that may exist, whether known or unknown. Nothing contained herein shall in any way be construed as a waiver by Landlord of any of the remedies available to it at law or in equity or under the Lease or Guaranty. Nothing contained herein shall in any way be construed as a waiver of Landlord's right to insist on strict performance by you of your obligations in connection with the Lease and Guaranty. Landlord reserves the right to elect to exercise remedies available to Landlord under the Lease, Guaranty and available at law or in equity. To the extent time is of the essence has been previously waived, it is hereby fully reinstated with respect to all your obligations under the Lease and Guaranty. Notice is also given that Landlord intends to inspect the Premises as permitted by Section 19.2 of the Lease. All capitalized terms not otherwise de?ned herein shall have the meanings ascribed to such terms as set forth in the Lease. Please contact me if you have any questions or concerns regarding this matter. "I'm P. 'necr sst. VP of University Real Estate Development 786908 Rehab Burger Re. Notice of Default January 14, 2019 Page 3 cc: Jennifer Wittmanm University Real Estate DeveIOpment Barbara Lloyd, University Real Estate Development Latonja West, University Real Estate Development Maureen Anders, Esq, ASU Of?ce of General Counsel 786908 FIRST AMENDMENT TO RETAIL LEASE THIS FIRST AMENDMENT TO RETAIL LEASE (this "Amendment?), dated as of February 27, 2019 (the ?Effective Date?), is entered into by ARIZONA BOARD OF REGENTS, a body corporate, for and on behalf of Arizona State University and REHAB BURGER THERAPY 2, LLC, an Arizona limited liability company, doing business as Rehab Burger Therapy ("Tenant"). Landlord and Tenant are collectively referred to herein as the "Parties" and singularly as a ?Party". RECITALS A. Landlord and Tenant entered into that certain Retail Lease at Brickyard on Mill dated January 1, 2016 (the "Lease?), for the lease of Suite 146 on the ?rst ?oor ofthe Bank of America Building within Condominium Unit 2 located at 21 East 6th Street, Tempe, Arizona (the Leased Premises"), at which Tenant operates a business known as Rehab Burger Therapy. B. Tenant has committed an Event of Default under the Lease by failing to pay certain Base Rent and Additional Rent as required by the Lease (the ?Current Default?). C. Tenant has requested that Landlord forbear from exercising its remedies under the Lease arising from the Current Default and otherwise agree to the restructuring of certain payment obligations under the Lease. Landlord is willing to forbear from exercising its remedies under the Lease arising from the Current Default and to agree to the restructuring of certain payment obligations under the Lease as requested by Tenant, but only pursuant to the express terms of this Amendment. NOW, THEREFORE, for good and valuable consideration the receipt and suf?ciency of which are hereby acknowledged, the Parties agree as follows: 1. Recitals. The foregoing Recitals are hereby incorporated in this Amendment as if fully set forth herein. 2. Capitalized Terms. Capitalized terms used in this Amendment and not otherwise de?ned shall have the meanings set forth in the Lease. 3. Current Default; Past Due Amount. As of the Effective Date, as a result of the Current Default, Tenant owes Landlord past-due Base Rent and Additional Rent in the amount of $40,032.96 for amounts payable for periods occurring on or before December 31, 2018 (the "Past Due Amount?), and (ii) additional amounts for Late Fees and interest at the Default Rate on the Past Due Amount (such Late Fees and interest, the ?Additional Default Charges"). For avoidance of doubt, the Past Due Amount also includes Tenant?s Proportionate Share of CAM Expenses, Utilities (to the extent owing to Landlord) and parking charges, to the extent unpaid for those periods of time, together with applicable sales, transaction privilege, excise or other tax applicable to such amounts. The Past Due Amount, however, does not include the Additional Default Charges. ISTAMDT TO LEASE REHAB BURGER BRICK YARD 1 4. Forbearance and Contingent Restructuring of Lease Payments. Notwithstanding anything to the contrary contained in the Lease, provided that at all times through the end of the Forbearance Period (de?ned below) no Event of Default exists under the Lease (other than the Current Default), and (ii) Tenant timely pays all payments required below in this Section 4, together with all other payments required pursuant to the Lease (to the extent such payments are not expressly restructured by this Section 4), Landlord agrees to forbear from exercising its rights and remedies for the Current Default and, during the Forbearance Period, to accept payments as follows: 4.1. Payment of Past Due Amount. 4.1.1. During the Forbearance Period, Tenant will pay Landlord the Past Due Amount, plus 8% interest, in equal installments of $1,810.58 over a twenty-four (24) month period, with each installment due on or before the ?rst day of the calendar month, beginning March 1, 2019 and continuing through and including February 1, 2021 Forbearance Period?). 4.1.2. If after giving effect to the payments described in Section 4.1.1, any portion of the Past Due Amount remains unpaid on the last day of the Forbearance Period, such unpaid portion shall be due and payable in full on the last day of the Forbearance Period. 4.2. Reduction in Payment of Base Rent. During the Forbearance Period, Tenant shall continue to pay Base Rent in a timely manner pursuant to the terms of the Lease, except that Base Rent for the months of June, July and August during each year of the Forbearance Period shall be abated in full (each such month, a ?Rent Abatement Month"). Notwithstanding the abatement of Base Rent during each Rent Abatement Month, Tenant shall remain responsible for, and shall continue to pay during each and every month of the Lease Term (including, without limitation, each Rent Abatement Month), all payments of the Past Due Amount in the manner required pursuant to Section 4.1, and (ii) all payments of Additional Rent. 5. Termination of Forbearance Period. Without limiting the general terms and conditions to forbearance set forth in this Amendment, any failure by Tenant to strictly perform its duties under this Amendment, or any ?thher act, omission or circumstance (excluding the Current Default) that constitutes an Event of Default under the Lease shall permit Landlord immediately and Without notice to terminate any obligation of Landlord to forbear from exercising its rights and remedies as provided in this Amendment, and exercise all rights and remedies under the Lease with regard to the Current Default and any new Events of Default for all intents and purposes as if this Amendment were never entered into. Notwithstanding any provision herein to the contrary, in the event of any early termination of the Forbearance Period, all references herein to the Forbearance Period shall refer only to the period from the Effective Date through the date upon which the Forbearance Period is terminated. 6. Modi?cation of Lease. Upon Tenant?s hill and timely compliance with all of the payment requirements set forth above in Section 4, and satisfaction of the conditions precedent set forth in the ?rst sentence of Section 4, and provided that no early termination of the Forbearance Period has occurred pursuant to Section 5, effective immediately upon the end of the Forbearance Period, Landlord and Tenant agree that the Lease shall be modi?ed as follows: ISTAMDT T0 LEASE REHAB BURGER YARD 2 6.1. The Base Rent reductions provided for in Section 4.2 above shall be extended for the remainder of the Lease Term. More speci?cally, in such event, Landlord and Tenant agree that for remainder of the Lease Term following the end of the Forbearance Period, the Rent Abatement Months shall be expanded to include the months of June, July and August during each year until the end of the Lease Term, and Base Rent shall be abated in full for such months. Notwithstanding the foregoing abatement of Base Rent, Tenant shall remain responsible for, and shall continue to pay in the manner required in the Lease, all Additional Rent during each and every month of the Lease Tenn (including, without limitation, each Rent Abatement Month). 6.2. Landlord agrees to waive the Additional Default Charges. 7. Security Deposit. Pursuant to Paragraph 5.9 of the Lease, Tenant?s Security Deposit has previously been applied to past due Base Rent and Additional Rent. Tenant agrees to replenish Security Deposit in the amount of Nine Thousand Six Hundred and 00/ 100 Dollars on or before the end of the Forbearance Period and for the avoidance of doubt, in no event later than February 1, 2021. 8. Late Fees; Default Rate: Time of Essence. Subject to the express agreements set forth herein regarding the Additional Default Charges, but otherwise notwithstanding anything to the contrary herein or in Landlord?s prior actions, Landlord's rights under the Lease to charge and collect Late Fees and interest at the Default Interest Rate from the ?rst day Rent is due until paid is hereby reaf?rmed and reinstated. Any prior waiver of those rights and/or any prior waiver of the time is of the essence provision of the Lease is rescinded, and all such rights are reaf?rmed and reinstated in whole. 9. Counterparts and Electronic Signatures. This Amendment may be executed in any number of counterparts with the same force and effect as if all signatures were appended to one document, each of which shall be deemed an original. Execution and delivery of this Amendment by electronic format (for example, portable document format or other image) bearing the signature of any party hereto shall constitute a valid and binding execution and delivery of this Amendment by such party. Such electronic copies shall constitute enforceable original documents. 10. Rati?cation. Except as herein and hereby modi?ed and amended, the Lease shall remain in full force and effect and all of the terms, provisions, covenants and conditions thereof are hereby rati?ed, extended and con?rmed, and all such terms are incorporated herein by this reference. Landlord and Tenant reaf?rm their respective rights and obligations under the Lease as modi?ed by this Amendment. The Lease and this Amendment shall be construed, to the extent reasonably possible, as supplementing one another; provided, however, that in the event of a con?ict or ambiguity between the Lease and this Amendment, the terms and provisions of this Amendment shall control. Each Party hereto represents to the other that the execution and delivery of this Amendment has been fully authorized by all necessary corporate or limited liability company action, and (ii) that the person signing this Amendment on behalf of such Party has the requisite authority to do so and the authority and power to bind such Party to this Amendment by the execution thereof, all in accordance with such Party?s governing and/or charter documents. ISTAMDT T0 LEASE REHAB BURGER BRICK man 3 The Parties have executed this FIRST AMENDMENT TO RETAIL LEASE as of the Effective Date. ggngiorg": ARIZONA BOARD OF REGENTS, a body corporate, for and an behalf of Arizona State University . P. Green Assistant Vice fident, University Real Estate .velopment, Arizona State University LEASE REHA BURGER "Tenant": REHAB BURGER THERAPY 2, LLC, an Arizona limited liability company dba REHAB BURGER THERAPY M?Iw?j Wiley Amen, Member i? )Cmf?u?ij Mil paw? 1 Danise Nslson, Member f: :13 MW Kenneth L. Likewise, Mam ber CONSENT OF GUARANTORS T0 FIRST AMENDMENT TO LEASE The undersigned have executed a Guaranty (the ?Guaranty") with respect to the obligations of Rehab Burger 2 Therapy, LLC, an Arizona limited liability company I under that certain Retail Lease dated January 1, 20%, by and between Tenant and Arizona Board of Regents, a body corporate, for and on behalf of Arizona State University. In connection with the foregoing First Amendment to Retail Lease (the "Amendment"), to which this (30113th of Guarantors (this "Consent") is attached, the undersigned hereby approve, authorize and consent to the Amendment, and agree that the Guaranty executed by the undersigned remains in full force and effect with respect to the Lease, as amended by the Amendment. This Consent may be executed in any number of counterparts, all of which together shall be deemed to constitute tine instrument, and each of which shall be deemed an original. Aaron Nelson . Kenneth L. Likewise nit/J.) fe?Mf?M Julie Likewise ISTAMM To Muse Rem BURGER 5 ARIZONA STATE UNIVERSITY October 4, 2019 ALL NOTICES SENT VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED, AND BY REGULAR U.S. MAIL Rehab Burger Aston E. Nelson Attn: Wiley Arnett Denise Nelson 7210 2"c1 Street 7525 E. Highland Avenue Seotlsdale,AZ 85251 Scottsdale,AZ 85251 Wiley Arnett, Kenneth L. Likewise Paula C. Amett Julie S. Likewise 1823 North 77th Street 1706 S. Granada Drive Scottsdale, AZ 85257 Tempe, AZ 85281 RE: NOTICE OF DEFAULT AND NOTICE OF LANDLORD RETAKING THE DEMAND FOR PAYNIENT Lease dated Jan nary I, 2016, as amended by that First Amendment dated February 27, 2019 (as so amended, the ?Lease?), by and beaveen Arizona Board of Regents, a body corporate, acting for and on behalf of Arizona State University (?Landlord?), and Rehab Burger Therapy 2, LLC, an A rizona Limited Liab?ity Company (?Tenant?), and Lease Guaranty dated January I, 2016 (the ?Guamnty?), signed by Aaron E. Nelson and Denise Nelson, husband and wife; Kenneth L. Likewise and Julie S. Likewise, husband and wife; and Wiiey A mett and Paula C. Arnett; husband and wife (coiiectiveiy, the ?Gnarantors?9, regarding the leased premises located at Suite I46, 21 East Street, Tempe, Arizona (the ?Leased Premises?) Dear Tenant and Guarantors: This letter is to notify you that Tenant has committed multiple Events of Default under the Lease, including, but not limited to, the nonpayment of Total Rent in a timely manner and (ii) the vacating or abandonment of the Leased Premises by Tenant or. the cessation by Tenant of its usual and customary business on the Leased Premises. UNIVERSITY REAL ESTATE DEVELOPMENT- PO Box 873908, Tempe AZ 85287-3908 Phone (480) 965?6300 Fax (489) 727-6210 Rehab Burger Re. Notice of Default October 4, 2019 Page 2 As a result of Tenants defaults, Landlord is entitled to exercise any and all of its rights and remedies under the Lease and the Guaranty, in such order and manner as Landlord may elect, in its sole discretion. Guarantors have been added as parties to this letter to put them on notice of their direct liability for all amounts owing on the Lease. Landlord's immediate rights under the Lease include, among other rights, the right to re-enter and take possession of the Leased Premises and of all equipment and ?xtures of Tenant located therein. Landlord has exercised its right of re? entry and repossession to retake possession of the Leased Premises. As a result of Tenant?s default, Landlord also is entitled to terminate the forbearance rights previously provided to Tenant in the First Amendment. Notice is hereby given that pursuant to Section 5 of that First Amendment, the Forbearance Period is hereby terminated. As of September 30, 2019, Tenant owes the amount of $85,677.43 under the Lease, which amount includes Base Rent and components of Additional Rent, including taxes, applicable Late Fees and interest at the Default Interest Rate payable in connection with such late payments, as required by Articles 1.19 and 1.20 of the Leas e. Tenant also owes any additional amounts accruing under the Lease after September 30, 2019, until all such sums are paid in full. Demand is hereby made that you pay in full all sums owing on the Lease immediately and in any event on or before October 31, 2019. Please contact Barbara Lloyd at 480-965-9080 to make arrangements for payment. This notice of default and demand for payment is not a waiver of any other event of default that may exist, whether known or unknown. Nothing contained herein shall in any way be construed as a waiver by Landlord of any of the remedies available to it at law or in equity or under the Lease or Guaranty. Nothing contained herein shall in any way be construed as a waiver of Landlord's right to insist on strict performance by you of your obligations in connection with the Lease and Guaranty. To the extent time is of the essence has been previously waived, it is hereby fully reinstated with respect to all your obligations under the Lease and Guaranty. All capitalized terms not otherwise de?ned herein shall have the meanings ascribed to such terms as set forth in the Lease. 786908 Rehab Burger Re. Notice of Default October 4, 2019 Page 3 Sincexel - 30h P. eer A535. VP 1? University Real Estate Development 00: Barbara Lloyd, University Real Estate Development enm'fer Wittmalm, University Real Estate Development Mary Grace MeNear, ASU Of?ce of General Counsel 786998 ARIZONA STATE UNIVERSITY November 1, 2019 ALL NOTICES SENT VIA CERTIFIED MAIL. RETURN RECEIPT REQUESTED, AND BY REGULAR U.S. MAJL Rehab Burger Therapy 2, LLC Aaron E. Nelson Attn: Wiley Arnett Denise Nelson 7210 E. 2nd Street 7525 E. Highland Avenue Scottsdale, AZ 85251 Scottsdale, AZ 85251 Wiley Arnett, Kenneth L. Likewise Paula C. Arnett Julie S. Likewise 1323 North 77th Street - 1706 s. Granada Drive Scottsdale, AZ 85257 Tempe, AZ 85281 RE: NOTICE OF TERMINATION OF LEASE Lease dated January I, 2016, as amended by that First Amendment dated February 27, 2019 (as so amended, the ?Lease?), by and benveen Arizona Board of Regents, a body corporate, acting for and on behalf of Arizona State University (?Landiord?9, and Rehab Burger Tkerapy 2, LLC, an A rizona Limited Liability Company (?Tenant?), and Lease Guaranty dated January 1, 2016 (the ?Guaraniy?), signed by Aaron E. Nelson and Denise Neison, husband and wife; Kenneth L. Likewise and Juiie S. Likewise, husband and nge; and Wiley Arnea? and Paula C. Arneit, husband and wife (coiiectivebi, the ?Guamniors?9, regarding the leased premises iocated at Suite 146, 21 East Street, Tempe, Arizona (the ?Leased Premises?) Dear Tenant and Guarantors: This letter gives notice that Landlord is terminating the Lease, effective immediately. Landlord is pursuing this remedy based on Tenant?s defaults under the Lease, as more speci?cally described in the Notice of Default and Notice of Landlord Retaking the Premises and Demand for Payment letter Landlord sent to Tenant and the Guarantors dated October 4, 2019. This notice of termination is not a waiver of any other event of default that may exist, whether known or unknown. Nothing contained herein shall in any way be construed as a waiver by Landlord of any of the remedies available to it at law or in equity or under the Lease or Guaranty. Nothing contained herein shall in any way be construed as a waiver of Landlord's right UNIVERSITY REAL ESTATE DEVELOPMENT PO Box 873908, Tempe AZ 85287-3908 Phone (480) 965?6700 Fax (480) 727-6210 Rehab Burger Therapy 2, LLC Re: Notice of Termination November 1, 2019 Page 2 to insist on strict performance by you of your obligations in connection with the Lease and Guaranty. To the extent time is of the essence has been previously waived, it is hereby fully reinstated with respect to all your obligations under the Lease and Guaranty. All capitalized terms not otherwise de?ned herein shall have the meanings ascribed to such terms as set forth in the Lease. Please contact me if you have any questions or concerns regarding this matter. -. of University Real Estate Development Barbara Lloyd, University Real Estate Development Jennifer Wittm ann, University Real Estate Development Mary Grace MeNear, ASU Of?ce of General Counsel Rehab Burger (via US. Mail) Aaron E. and Denise Nelson (via US. Mail) Kenneth L. and Julie S. Likewise (via U.S. Mail) Wiley Amen, Ill and Paula C. Amett (via U.S. Mail) 786908 GUARANTY . This Guaranty is entered into as of January 1, 2016 (the "Effective Date?), by Aaron Nelson and Denise Nelson, husband and wife; Kenneth Likewise and Julie Likewise, husband and wife; Wiley Amett and Paula C. Arnett, husband and wife (each jointly and severally a "Guarantor" hereunder), for the bene?t of the ARIZONA BOARD OF REGENTS, A BODY CORPORATE, FOR AND ON BEHALF OF ARIZONA STATE UNIVERSITY RECITALS: A. Rehab Burger 2, Therapy, LLC, an Arizona limited liability company (?Tenant?) is desirous of entering into that certain Lease dated January 1, 2016 (?Lease?), whereby Tenant: will lease from. landlord that certain real property known as Suite 146, 21 East 6? Street, Tempe, Arizona. and all improvements located thereon (the ?Leased. l?remises?). B. Landlord has required Aaron E. Nelson and Denise Nelson, husband and wife; Kenneth L. Likewise and Julie S. Likewise. husband and wife; and Wiley Amett Eli and Paula C. Amett, husband and wife (collectively, the ?Guarantees?, and each jointly and severally a uarantor?) to execute this Guaranty {the ?Guaranty"; as a condition of Landlord entering into the Lease. C. To induce Landlord to enter into the Lease which is being executed simultaneously herewith, the undersigned Guarantors have agreed to execute this Guaranty. NOW, THERE. FORE, in consideration of the foregoing, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned Guarantors hereby agree as follows: 1. Guarantors jointly and severally each absolutely and unconditionally guarantee the timely performance and completion of the construction of Tenant Improvements as described on Exhibit of the Lease and Tenant?s opening for business in the Leased Premises, (ii) the complete and appropriate trade fixturization of the Leased Premises for Tenant?s Permitted Use prior to said opening for business, and that there will be no mechanic?s, materialmen?s or other liens ?led against the Leased Premises as a result of the foregoing performance of Tenant or any Guarantor. Guarantors jointly and severally each absolutely and unconditionally guarantees the availability of unencumbered cash to Tenant, for Tenant?s use in completing Tenant Improvements (as de?ned in the Lease), when and as required by the Lease, in an amount not less than the amount required of Tenant under Exhibit of the Lease, including but not limited to the Tenant?s Additional Funds described therein. 3. Guarantors jointly and severally each unconditionally guarantee that Tenant will operate the Permitted Use (as defined in the Lease) in the entirety of the Leased Premises throughout the entire Lease Term, subject to casualty and Force Majeure as de?ned in Param .11. i953. of the Lease. Guarantors jointly and severally each absolutely and unconditionally guarantee and promise to Landlord the due, punctual and full performance by Tenant of each and all of the covenants, obligations, liabilities and promises of Tenant and the truth and accuracy of" each and all of the representations and warranties of Tenant contained in the Lease, including, without limitation, the sis-muse; G?l payment of Total Rent (as defined in the Lease) and any and all other sums payable thereunder. For the purposes of this Guaranty, the term of the Lease refers to any renewals, extensions, modi?cations, reinstatements and holdings over thereof. Guarantors hereby covenant and agree with Landlord: if not done by Tenant, to make the due and punctual payment of all rent, expenses, costs, monies and charges expressed to be payable under the Lease; (ii) if not done by Tenant, to render prompt and complete performance of all and each of the terms, covenants, conditions and provisions contained in the LeaSe on the part of Tenant to be kept, observed and performed; and to indemnify and save harmless Landlord from any loss, costs or damages arising out of any failure by Tenant to pay the rent, expenses, costs, monies and charges payable under the Lease or the failure by Tenant to perform any of the terms, covenants, conditions and provisions contained in the Lease. S. Guarantors acknowledge that all of their reSpective obligations under this Guaranty are independent of and joint and several with the obligations of Tenant under the Lease and the obligations of each Guarantor signing this Guaranty are joint and several with the obligations of every other Guarantor hereunder or under any separate guaranty. in the event of a default under the Lease, each Guarantor waives any right to require Landlord to: ?rst proceed against Tenant or any other Guarantor or pUI?Sue any rights or remedies under or with respect to the Lease; (ii) proceed against or exhaust any security that Landlord holds from Tenant or any other Guarantor; or pursue any other remedy whatsoever in Landlord?s power. Landlord will have the right to enforce this Guaranty regardless of the acceptance of additional security from Tenant or any other Guarantor and regardless of the release or discharge of Tenant or any other Guarantor by Landlord or by others, or by operation of law. This is a Guaranty of payment and performance, not of collection. In any action to enforce this Guaranty, Guarantors may assert and raise any defenses available to Tenant relating to negotiations, discussions and circumstances preceding or surrounding, and related to, the execution of the Lease and the terms thereof; the terms, provisions, conditions and requirements of the Lease, including the obligations of Landlord and Tenant under the Lease; and the nature or condition of the Leased Premises, but Guarantors may speci?cally and expressly not assert, raise, rely on or otherwise utilize or attempt to utilize any other defenses, justi?cations or excuses For their non-perfonnance of this Guaranty, including but not limited to any related to bankruptcy, reorganization, insolvency, readjustment of debt, winding up, dissolution, liquidation or receivership by or for Tenant, or (ii) inability of Tenant to pay or perform its debts or obligations, including but not limited to Tenant?s inability to pay or perform its debts or obligations under or in connection with the Lease. 6. Guarantors hereby expressly waive any right of setoff against amounts due under this Guaranty; (ii) notice of the acceptance of this Guaranty; notice of non-peribnnance of or demand on Tenant; and (iv) the provisions of A.R.S. 12-1641, 12-1642, 124644, l2-?1645 and 12-1646 and Arizona Rules of Civil Procedure, Rule and any successor statutes or rules. Guarantors waive any homestead or exemption right. Any married person who is a Guarantor agrees that recourse may be had against all separate and community property of such person. 7. Without limiting the generality of the foregoing, the liability of Guarantors under this Guaranty will not be deemed to have been waived, released, discharged, impaired or affected by reason of any waiver or failure to enforce any of the obligations of' the Tenant under the Lease, or assignment of the Lease, or the subletting of the Leased Premises by Tenant, or the release or discharge of Tenant in any receivership, bankruptcy, windingaup or other creditors? proceedings or the rejection, disaf?rmance or disclaimer of the Lease by any party in any action or proceeding, and shall continue with respect to the periods prior thereto and thereafter. Guarantors? liability for obligations of Tenant arising or accruing during the term of the Lease shall not be affected by the subsequent expiration or termination of the term of the Lease, and alter any expiration or termination of the Lease, Guarantors will be fully responsible for a: 5.0 t33622 (3-2 all post-eXpiraticn or post-termination obligations of Tenant pursuant to the Lease. The liability of the Guarantors will not be afi?ected by any repossession of the Leased Premises by Landlord. Guarantors will pay when due from Tenant any balance owing to Landlord from time to time, immediately upon being given written notice of demand by Landlord in the manner for providing notice set forth in the Lease, at its address set forth below. 8. Guarantors agree that, without the consent of or notice to Guarantors and without affecting any of the obligations of Guarantors under this Guaranty: any term, covenant or condition of the Lease may be amended, compromised, released or otherwise altered by Landlord and Tenant, and Guarantors guarantee and promise to perform all the obligations of Tenant under the Lease as so amended, compromised, released or altered; any other Guarantor of or party to the Lease may be released, substituted or added; any right or remedy under the Lease, this Guaranty or any other instrument or agreement may be exercised, not exercised, impaired, modi?ed, limited, destroyed, or suspended; and Landlord or any other person may deal in any manner with Tenant, any guarantor, any party to the Lease or any other person. 9. Guarantors will pay landlord?s reasonable attorneys? fees and all costs and other expenses incurred in any collection or attempted collection of this Guaranty or in any negotiations relative to the obligations hereby guaranteed. it). Until all the covenants and conditions in the Lease on Tenant?s part to be performed and observed are fully performed and observed, Guarantors: will have no right of subrogation against Tenant by reason of any payments or acts of performance by any Guarantor in compliance with the obligations of the Guarantors hereunder; (ii) waives any right to enforce any remedy which Guarantors now or hereafter will have against Tenant by reason of any one or more payments or acts of performance in compliance with the obligations of Guarantors hereunder; and subordinates any liability or indebtedness of Tenant now or hereafter held by Guarantors to the obligations of Tenant to the Landlord under the Lease. Notwithstanding any provision to the contrary contained herein, Guarantors unconditionally and irrevocably waive any and all rights of subtogation (whether arising under contract, 11 U.S.C. 509 or otherwise) to the claims, whether existing now or arising hereafter, Landlord may have against Tenant, and any all rights of reimbursement, contribution or indemnity against Tenant which may have heretofore arisen or may hereafter arise in connection with any guaranty or pledge or grant of any lien or security interest made in connection with the Lease. Guarantors acknowledge that the waiver contained in the preceding sentence (the ?Subrogation Waiver") is given as an inducement to Landlord to enter into the Lease and, in consideration of Landlord?s willingness to enter into the Lease, Guarantors agree not to amend or modify in any way the Subrogation Waiver without Landlord?s prior written consent. If any amount is paid to Gnarantors (or any of them) by Tenant on account or any claim set forth at any time when all the liabilities of Tenant shall have been paid in full, such amount shall be held in trust by such Guarantors for Landlord?s benefit, will be segregated from the other funds of Guarantors and shall forthwith be paid over to Landlord to be applied in whole or in part by Landlord?s right, title or interest in the Lease, Guaranty; all such rights of subrogation and participation being hereby expressly waived and released. 11. The liability of Guarantors under this Guaranty shall continue until the expiration of all periods within which any amount at any time paid on account of the obligations guaranteed hereby may be required to be restored or returned by Landlord upon the bankruptcy, insolvency or reorganization of Tenant, any other guarantor or any other person. If any amount at any time paid on account of the obligations guaranteed hereby is required to be restored or returned by Landlord as a result of any such bankruptcy, insolvency or reorganization, Guarantors will; be liable under this Guaranty with respect to such amount as if such amount was never paid. #15-0i33622 (3-3 12. This instrument may not be changed, modi?ed, discharged or terminated orally or in any manner other than by an agreement in writing signed by Guarantors and the Landlord. Notices shall be given pursuant to Article of the Lease, with Guarantors' addresses as speci?ed below, subject to change pursuant to ?rticlc 1.13, of the Lease. 13. All of the terms, agreements and conditions of this Guaranty shall extend to and be binding upon Guarantors, and the successors and assigns of Guarantors and shall inure to the bene?t of and may be enforced by landlord, its successors and assigns as the ownerts} of the property containing the Leased Premises, and the holder of any mortgage to which the Leased Premises may be subject at any time or from time to time. Without limiting the generality of the foregoing, Landlord may, without notice, assign this Guaranty to any party to whom its interests in the lease have been assigned, or have been otherwise transferred, or to any party succeeding in any manner to the interest of Landlord. Upon request, Guarantors will execute a new Guaranty, in the form hereof, in favor oi?any such successor. l4. Guarantors represent and warrant to Landlord that the execution of this Guaranty and the performance of their respective obligations hereunder will not result in any breach of, constitute a default under, or be a violation of any government statute, ordinance, rule or regulation, or any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Guarantors are a party or by which Guarantors are bound. 15. The use of the singular herein shall include the plural. This Guaranty shall be governed by the laws of the State of Arizona. Guarantors consent to and agree that the courts in Mari copa County, Arizona shall have proper jurisdiction and venue for any actions brought to enforce or with respect to this Guaranty. This is a continuing and irrevocable Guaranty and shall remain in full force until each of the obligations guaranteed hereby is satis?ed in full. 16. Time is of the essence with respect to each obligation set forth herein. Guarantors agree and acknowledge that Landlord is relying on the assets of each Guarantor as presented by Guarantors to Landlord as of the date of this Guaranty. Guarantors will not transfer any assets to any af?liated entity, other af?liate or other party, except upon receipt of reasonable consideration representing the full value thereof. 18. ?ggmn? Tgrmingtinn Data. Provided that Tenant has fully performed and is current with respect to aft of its obligations under the Lease prior to and including those arising as of December 1, 2020 (the "Guaranty Termination Date"), this Guaranty will terminate and be of no further force of effect on the Guaranty Termination Date. if Tenant has not fully performed or is not current with respect to all of its obligations under the Lease as of the Guaranty Termination Date, this provision will be null, void and of no further force or effect, and this Guaranty will continue until Tenant fully performs all its obligations under the Lease. Provided that Tenant has Fully performed and is current with respect to all of its obligations under the Lease as of the Guaranty Termination Date, the Guarantors may request that Landlord provide written con?rmation that this Guaranty has terminated in accordance with this provrsron. 1N WITNESS WHEREOF, the undersigned Guarantors have executed this Guaranty as of the Effective Date. ON 3 msoossaz 0-4 SIGNATURE PAGE TO GUARANTY OF RETAIL LEASE 0F REHAB BURGER THERAPY 2, LLC, an Arizona limited liability company Aaron Nelson andI IDenige Nelson husband and wife Aaron Nelsen By: Denise Nelson Guarantor?s Notice Address: gym; a? {4,123. m. ?25? STATE OF ARIZONA 55 County of Maricopa The Foregoing instrument was acknowledged before me this; day of; AARON E. NELSON and DENISE NELSON. I .131}. ANDRES FRANCO @ng Notary Public? Ariznna Maricopa County pal-2:4 My Comm Expires Aug 5. 201? #15-0133622 SIGNATURE PAGE TO GUARANTY OF RETAIL LEASE 0F REHAB BURGER THERAPY 2, LLC, an Arizona limited liability company "1 . Wiie} 111 and Pant; AmetL husband and M113 1 M1 1"me C. Amati; Notice Address: 1.823 North 77th Strum! Scottsdale) AZ 85257 OF ARIZQNA $5 Camry of Maricopa WILEY ARNE and PAULA .ARNETT AM My NotaQPubhc 1.5.121 3352.2 SIGNATURE PAGE TO GUARAN TY 0F RETAIL LEASE 0F REHAB BURGER THERAPY 2, LLC. an Arizona limited company Kenneth L. Likewise and Julie S. Likewise ?13? 'l I 1 By; if 15"" Kenneth L. Likewise 5/ By: {Wigg?gy 99.993.599.96 Jui it: ?jl?ikewi se Gnarantor?s Notice Aggress: 1706 South Granada Drive Tempe, AZ 85281 STATE OF ARIZONA 53 County of Marionpa The foregoing instrument was acknowledged bcfore me this-3;; day of W, 2015, by KENNETH L. LIKEWISE and JULIE S. LIKEWISE. 4?52: - WRNDA KAEHR Notary Public - Arizona mama County 39;- Comm. xpires May 23. 2018-..- ., Nota?x Public 1115-0133622