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UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 19, 2023
Faraday Future Intelligent Electric
Inc.
(Exact name of registrant as specified
in its charter)
Delaware |
|
001-39395 |
|
84-4720320 |
(State or other jurisdiction |
|
(Commission File Number) |
|
(I.R.S. Employer |
of incorporation) |
|
|
|
Identification No.) |
18455 S. Figueroa Street
Gardena, CA |
|
90248 |
(Address of principal executive offices) |
|
(Zip Code) |
(424) 276-7616
(Registrant’s telephone number,
including area code)
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the
Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Class A common stock, par value $0.0001 per share |
|
FFIE |
|
The Nasdaq Stock Market LLC |
Redeemable warrants, exercisable for shares of Class A common stock at an exercise price of $11.50 per share |
|
FFIEW |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into
a Material Definitive Agreement.
On October 19, 2023, Faraday&Future
Inc. (the “Tenant”), a subsidiary of Faraday Future Intelligent Electric Inc. (the “Company), entered into a sale leaseback
transaction whereby it has exercised its option to purchase its Hanford manufacturing facility (the “Property”) and simultaneously
completed a sale leaseback to Ocean West Capital Partners (“Landlord”) pursuant to that certain Lease Agreement, dated as
of October 19, 2023, by and between the Tenant and 10701 Idaho Owner, LLC (the “Lease Agreement”). This Lease Agreement also
allows the Tenant to access to up to $12 million of tenant improvement allowance for the Property. The new lease will be for a term of
five years, with a monthly lease rate of $355,197, with a five-year extension option, and the Tenant has an option to purchase
the fee interest in the Property at any time after the second year of the lease term. Furthermore, the Tenant has a right of first offer
to purchase the Property in the event Landlord desires to sell the Property. The obligations of the Tenant under the lease are guaranteed
by the Company pursuant to that certain Guaranty of Lease made by the Company to 10701 Idaho Owner, LLC.
The foregoing description of the Lease
Agreement and Guaranty of Lease does not purport to be complete and is qualified in its entirety by the full text of the Lease Agreement
and Guaranty of Lease filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Item
2.03. Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in item 1.01
of this Current Report on Form 8-K is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On October 19, 2023, the Company issued
a press release related to the matters described in Item 1.01. A copy of the press release is included as Exhibit 99.1 and incorporated
herein by reference. The information contained in this Current Report on Form 8-K, including Exhibit 99.1, is being furnished and
shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under
the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 9.01. Financial
Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed with this Current Report on Form 8-K:
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
FARADAY FUTURE INTELLIGENT ELECTRIC INC. |
|
|
Date: October 19, 2023 |
By: |
/s/ Jonathan Maroko |
|
Name: |
Jonathan Maroko |
|
Title: |
Interim Chief Financial Officer |
3
Exhibit 10.1
LEASE AGREEMENT
by and between
10701 IDAHO OWNER, LLC,
a Delaware limited liability company
and
FARADAY&FUTURE INC.,
a California corporation
TABLE OF CONTENTS
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Page |
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1. |
PROPERTY |
2 |
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|
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2. |
TERM |
2 |
|
|
|
3. |
RENT |
2 |
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|
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4. |
SECURITY DEPOSIT; LETTER OF CREDIT; GUARANTY |
4 |
|
|
|
5. |
PROJECT MAINTENANCE AND EXPENSES |
4 |
|
|
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6. |
PARKING |
6 |
|
|
|
7. |
PERMITTED USES |
7 |
|
|
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8. |
ENVIRONMENTAL COMPLIANCE/HAZARDOUS MATERIALS |
7 |
|
|
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9. |
UTILITIES |
10 |
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|
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10. |
INTENTIONALLY DELETED |
10 |
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11. |
AS-IS CONDITION |
10 |
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12. |
TAXES AND ASSESSMENTS |
11 |
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13. |
ALTERATION OF PROPERTY |
11 |
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|
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14. |
INSURANCE |
12 |
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15. |
WAIVER, EXCULPATION AND INDEMNITY |
15 |
|
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16. |
CONSTRUCTION LIENS |
17 |
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17. |
QUIET ENJOYMENT |
18 |
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18. |
LANDLORD’S RIGHT OF ENTRY |
18 |
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|
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19. |
DESTRUCTION OF BUILDINGS |
19 |
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20. |
EMINENT DOMAIN |
20 |
21. |
BANKRUPTCY |
20 |
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22. |
DEFAULT |
20 |
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23. |
SURRENDER OF PROPERTY |
21 |
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24. |
HOLDING OVER |
22 |
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25. |
SURRENDER OF LEASE |
22 |
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26. |
TENANT IMPROVEMENT COSTS |
22 |
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27. |
RULES AND REGULATIONS |
23 |
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28. |
NOTICE |
23 |
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29. |
ASSIGNMENT AND SUBLETTING |
24 |
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30. |
ATTORNEY’S FEES |
24 |
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31. |
JUDGMENT COSTS |
25 |
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32. |
BROKERS |
25 |
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33. |
SUBORDINATION OF LEASE |
25 |
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34. |
OPTION TO EXTEND |
25 |
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35. |
ESTOPPEL CERTIFICATES |
27 |
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36. |
SHORT FORM OF LEASE |
27 |
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37. |
SIGNS |
27 |
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38. |
OPTION TO PURCHASE PROPERTY |
28 |
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39. |
RIGHT OF FIRST OFFER |
30 |
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40. |
FORCE MAJEURE |
30 |
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41. |
GENERAL PROVISIONS |
31 |
Exhibits
Exhibit “A” Property
Exhibit “B” Work Letter
Exhibit “C” Guaranty
Exhibit “D” Letter of Credit
Exhibit “E” Purchase Agreement
LEASE SUMMARY
Set forth below is a summary
of certain terms and conditions of the Lease Agreement between 10701 IDAHO OWNER, LLC, a Delaware limited liability company, as Landlord,
and FARADAY&FUTURE INC., a California corporation, as Tenant, solely for the convenience of the parties. In the event there is a conflict
between this Lease Summary and the terms and conditions of the Lease Agreement, the terms and conditions of the Lease Agreement shall
prevail.
| A. | Building(s) mean one or more of those certain buildings containing approximately 1,070,000 total
rentable square feet. See Paragraph 1. |
| B. | Property means that certain real property described as Parcel 2 (APN 028-030-046-000) and having
the street address of 10701 Idaho Avenue, Hanford, California 93230, as outlined in the site plan attached hereto as Exhibit “A”.
See Paragraph 1. |
| C. | Term means sixty-two (62) months from the Commencement Date, unless extended or terminated earlier
by law or any provision of the Lease. See Paragraph 2.1. |
| D. | Commencement Date means the Effective Date. See Paragraph 2.2. |
| E. | Base Rent initially means $355,197.17 per month for the Property beginning on the Commencement
Date, and subject to increases in accordance with Paragraph 3. All Base Rent is due on the first day of each month and shall be
paid to Landlord in accordance with Paragraph 3. See Paragraph 3. |
| F. | Letter of Credit. On or before the Effective Date, Tenant has provided to Landlord an irrevocable
and unconditional standby Letter of Credit in the initial amount of $600,000.00. This Letter of Credit may from time to time be increased
and/or reduced pursuant to the provisions of Paragraph 4, but in no event be reduced to less than $600,000.00. See Paragraph
4. |
| G. | Security Deposit. On or before the Effective Date, Tenant has deposited (or caused to be deposited)
with Landlord, an amount equal to $1,500,000.00 as security for the performance of Tenant’s obligations hereunder (the “Security
Deposit”). Tenant may direct the Security Deposit to be used to make the “SD Applications” (as defined in
Paragraph 3.1), provided that in no event shall the Security Deposit ever be less than $500,000.00. See Paragraph 4. |
| H. | Additional Rent means the Project Expenses, payable monthly in advance together with Base Rent.
See Paragraph 5.2.C. |
| I. | “Bond-Type” Lease. This Lease is a “bond type” lease in which Tenant will
pay any and all Project Expenses. Project Expenses means the sum of all Taxes, Insurance Expenses, and Property Expenses related to the
Property. See Paragraph 5. |
| J. | Permitted Use means warehousing, distribution, manufacturing and office use for automotive technology
products purposes and uses customarily associated therewith. See Paragraph 7. |
| K. | Utilities. Tenant shall pay the cost of all Utilities. See Paragraph 9. |
| L. | Option To Extend. Tenant shall have one (1) option to extend the Term for five (5) additional years
per Option to Extend. Base Rent during the first Lease Year of the Option Term shall equal the greater of (a) Fair Market Rental Rate,
or (b) one hundred three percent (103%) of the Base Rent applicable during the immediately preceding Lease Year, and Base Rent shall increase
by three percent (3%) annually during such Option Term. See Paragraph 34. |
| M. | Tenant Improvement Costs. Landlord shall fund the Tenant Improvement Costs identified in Paragraph
26. See Paragraph 26. |
| N. | Option to Purchase. Tenant shall have an option to purchase the Property. See Paragraph 38. |
| O. | Right of First Offer. Tenant shall have a right of first offer for the purchase of the Property.
See Paragraph 39. |
| P. | Guarantor. Faraday Future Intelligent Electric Inc., a Delaware corporation. |
| Q. | Taxpayer Identification Number. For Tenant: 47-1223806 | For Guarantor: 84-4720320. |
LEASE AGREEMENT
THIS LEASE AGREEMENT (“Lease”),
dated as of October 19, 2023 (the “Effective Date”), is made by and between 10701 IDAHO OWNER, LLC, a Delaware limited
liability company (“Landlord”), and FARADAY&FUTURE INC., a California corporation (“Tenant”).
WITNESSETH
1.1 Property.
Landlord owns that certain real property described as Parcel 2 (APN 028-030-046-000), improved with one or more multi-tenant buildings
(“Buildings”), located at 10701 Idaho Avenue, Hanford, California 93230 (“Land”). The Buildings
and the Land are collectively referred to as the “Property”, as outlined in the site plan attached as Exhibit
“A”.
1.2 Lease
of Property. Landlord, for and in consideration of the rents, covenants, agreements, and stipulations contained herein, to be paid,
kept and performed by Tenant, leases and rents to Tenant, and Tenant hereby leases and takes from Landlord upon the terms and conditions
contained herein, the Property.
1.3 Tenant
as Prior Occupant. Prior to the Effective Date, Tenant occupied and operated the Property, either as a tenant under a prior lease
or as a prior owner of the Property. Accordingly, Tenant is fully familiar with the condition of the Property, including, without limitation,
zoning, physical condition, title issues, seismic condition, soils conditions, presence of hazardous materials, financial performance,
and all other matters relating to the Property, and Tenant is not relying on any statement, representation or warranty of Landlord relating
to any such matters.
1.4 True
Lease. Landlord and Tenant agree and acknowledge that they each intend this Lease to be a “true lease” under the United
States Bankruptcy Code, applicable State law, and for Federal income tax purposes and not a joint venture, partnership (either de jure
or de facto), equitable mortgage, trust, financing agreement, device or arrangement, security interest or other non-lease transaction.
This Lease shall not be construed in any manner so as to create any relationship between the parties hereto other than a landlord/tenant
relationship.
2.1 Term.
The term of the Lease shall be for five (5) years beginning on the Commencement Date (“Term”), unless extended or sooner
terminated pursuant to the terms of this Lease. The term “Lease Year” as used herein shall mean any 365-consecutive-day
period beginning on the Commencement Date, or any anniversary thereafter.
2.2 Commencement
Date. It is acknowledged by the parties that Landlord is purchasing the Property from Tenant, and the “Commencement Date”
shall be the Effective Date.
3.1 Rent.
Base Rent shall be due and payable in lawful money of the United States in advance on the first day of each month after the Commencement
Date. Tenant shall pay to Landlord as base rent (“Base Rent”) for the Property, without notice or demand and, except
as otherwise expressly set forth herein, without abatement, deduction, offset or set off, the following sums:
A. $355,197.17
per month beginning on the Commencement Date and continuing through October 31, 2024;
B. $365,853.08
per month beginning on November 1, 2024 and continuing through October 31, 2025;
C. $376,828.67
per month beginning November 1, 2025 and continuing through October 31, 2026;
D. $388,133.53
per month beginning on November 1, 2026 and continuing through October 31, 2027;
E. $399,777.54
per month beginning on November 1, 2027 and continuing through October 31, 2028;
Base Rent for any period during the Term hereof
which is for less than one (1) full calendar month shall be prorated based upon the actual number of days of the calendar month involved.
Tenant shall pay all Taxes, Insurance Expenses, Base Rent and other charges due and payable by Tenant to Landlord during the first full
month of the Term upon execution of this Lease, and furnish to Landlord evidence of such payment. Notwithstanding the above, Tenant’s
obligation to pay Base Rent for the first full month and month fifty-four (54) of the Term (i.e., November 2023 and May 2028) shall be
abated and forgiven provided, however, in the event Landlord elects to terminate the Lease due to a default of the Lease by Tenant which
remains uncured after all applicable notice and cure periods, then $355,197.17 of Base Rent shall not be deemed to have been forgiven
or abated and Tenant shall be liable for such amount that would have otherwise been abated and forgiven and such amount shall become immediately
due and payable as unpaid rent which shall be deemed earned at the date of Lease termination. Additionally, provided that no default or
Event of Default has occurred and is then continuing hereunder as of the date Base Rent is first due in respect of the applicable month,
Tenant may elect in writing to Landlord to apply amounts being held by Landlord as the Security Deposit to the Base Rent for each of months
25 and 37 of the Term (i.e., November, 2025 and November, 2026) in accordance with the terms and conditions of Paragraph 4 hereof
(each such payment being, a “SD Application”); provided, however, that in no event shall the Security Deposit be in
an amount less than $500,000. Concurrently with an SD Application, Tenant shall present evidence to Landlord that the Letter of Credit
has been increased by the amount of the applicable SD Application.
3.2 Place
of Payment. All payments under this Lease to be made by Tenant to Landlord shall be made via ACH pursuant to wire instructions provided
by Landlord to Tenant.
3.3 Late
Payment. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent (as defined in Paragraph 5.2.E herein)
pursuant to this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Accordingly, if any installment of Rent or other payment under this Lease is not received by Landlord, within
five (5) days after the date on which such Rent or other payment is due, Landlord shall have discretion to impose, and if imposed Tenant
shall thereafter pay, a late charge equal to five percent (5%) of such overdue amounts. Tenant shall also be responsible for a service
fee equal to fifty dollars ($50.00) for any check returned for insufficient funds together with such other costs and expenses as may be
imposed by Landlord’s bank on Landlord. The payment to and acceptance by Landlord of such late charge shall in no event constitute
a waiver by Landlord of Tenant’s default with respect to such overdue amounts, nor prevent Landlord from exercising any of the other
rights and remedies granted at law or equity or pursuant to this Lease.
3.4 Payment
on Account. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent actually due hereunder shall be deemed to
be other than a payment on account. No restrictive endorsement or statement on any check or any letter accompanying any check or payment
shall be deemed to effect an accord and satisfaction or have any effect whatsoever. Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance or pursue any other remedy in this Lease or at law or in equity provided.
3.5 Offset
for TI Disbursements. To the extent that Landlord has not funded its portion of a TI Disbursement (as hereinafter defined) within
thirty (30) days after the satisfaction of the TI Disbursement Conditions (as hereinafter defined) and the same results in default interest
being imposed by a Tenant Contractor (as hereinafter defined), the Tenant may pay the TI Disbursement directly to the Tenant Contractor
and, following delivery of evidence of the same, offset the Base Rent by the amount of such payment, including default interest from the
date such Tenant Contractor imposed default interest under its contract through the date of payment at a rate equal to the default rate
in the applicable contract not to exceed eighteen percent (18%) per annum, provided such interest rate shall not exceed the maximum interest
rate permitted by law and provided that such offset must occur on the first date that Base Rent becomes due and payable following Landlord’s
failure to pay.
| 4. | SECURITY DEPOSIT; LETTER OF CREDIT; GUARANTY |
4.1 Landlord
acknowledges that on or before the Effective Date (“Security Deposit/LC Due Date”), Tenant has provided to Landlord,
and hereafter shall maintain in full effect without any lapse of negotiability for the entire Term plus thirty (30) days after the expiration
thereof, (a) an irrevocable and unconditional standby letter of credit in the initial amount of $600,000.00 (“Original LC Value”),
from a federally insured banking institution (and in such form) as reasonably acceptable to Landlord (“Letter of Credit”)
for the faithful performance of Tenant’s obligations under this Lease, and (b) a deposit in the amount of $1,500,000.00 (“Security
Deposit”). Landlord agrees that the Letter of Credit in the form set forth in Exhibit D attached hereto and made
a part hereof is acceptable to Landlord and the issuing bank referenced therein (East West Bank) is acceptable to Landlord and satisfies
the requirements in this Paragraph 4.1. If Tenant makes a SD Application (as permitted by and in accordance with Paragraph 2
hereof), Tenant shall increase the amount of the Letter of Credit by the amount of such SD Application. Notwithstanding the foregoing,
from and after the 48th month of the Lease Term, provided that no default or Event of Default has occurred and is then continuing
hereunder, the Letter of Credit may be reduced by Tenant, in its sole discretion, to an amount equal to the Original LC Value. If Tenant
fails to pay Rent or other charges due hereunder, or otherwise defaults under this Lease, Landlord may immediately use, apply or retain
all or a portion of the Security Deposit and/or Letter of Credit to compensate Landlord for the amount due by Tenant (including reasonable
attorneys’ fees) under this Lease, provided that Landlord has adhered to the notice and cure requirements set forth in Paragraph
22. If Landlord uses or otherwise applies all or any portion of the Security Deposit and/or Letter of Credit (each such use or application
being, an “Application”), within seven (7) days after notice from Landlord, Tenant shall restore such Letter of Credit
and/or replenish the Security Deposit such that the aggregate amount available under the Letter of Credit and the Security Deposit is
greater than or equal to the aggregate amount available prior to the such Application (provided that in no event shall the Security Deposit
ever be less than $500,000.00, and in no event shall the Letter of Credit ever be reduced to less than $600,000.00). Notwithstanding anything
above or in this Lease to the contrary, in the event the Letter of Credit, reasonably acceptable to Landlord as set forth above, is not
received by Landlord prior to the Security Deposit/LC Due Date and thereafter if Tenant does not deliver a new or replacement Letter of
Credit within thirty (30) days of the expiration of the then applicable Letter of Credit, Landlord shall have the option, in Landlord’s
sole discretion, to draw on the then applicable Letter of Credit and hold such cash drawn as an additional Security Deposit; provided
that if Tenant provides a new or replacement Letter of Credit within sixty (60) days after the date Landlord drew on the Letter of Credit,
then the amount of cash drawn and held as a Security Deposit by Landlord shall be credited back to Tenant for Base Rent obligations for
the first calendar month following delivery of the new or replacement Letter of Credit.
4.2 The
obligations of Tenant under this Lease shall be guaranteed by Faraday Future Intelligent Electric Inc., a Delaware corporation using the
form of Guaranty attached to this Lease as “Exhibit C”.
| 5. | PROJECT MAINTENANCE AND EXPENSES |
5.1 “Bond
Type” Lease. This Lease is a “bond type” lease in which Tenant, in addition to the payment of Base Rent, shall (i)
be directly responsible for the payment of any and all Property Expenses (as defined in Paragraph 5.2.D) and all Utilities (as
defined in Paragraph 9) with respect to the Property, and (ii) be responsible for payment to Landlord for the payment of any and
all Taxes and Insurance Expenses (as defined in Paragraph 5.2.B and Paragraph 5.2.F) with respect to the Property; provided,
that except as otherwise specifically provided in this Lease or as otherwise required by applicable law (provided, that Tenant shall reimburse
or otherwise compensate Landlord for compliance with such requirements), Landlord shall have no obligations of any nature with respect
to the Property. Except as otherwise set forth in this Lease, Tenant shall be responsible for all repair, maintenance, restoration, replacement,
and construction with respect to the Property. Tenant shall, in keeping the Property in good working order, condition and repair, exercise
and perform good maintenance practices. Tenant’s obligations shall include restorations, replacements or renewals when necessary
to keep the Property and all improvements thereon or a part thereof in good order, condition and state of repair. At the expiration of
the Term or any prior termination of this Lease, Tenant shall return the Property to Landlord in broom swept condition and in at least
as good a condition as the condition of the Property on the Commencement Date, reasonable wear and tear excepted, and in accordance with
Paragraph 23.
5.2 Definitions.
A. “Computation
Year” shall mean each twelve (12) consecutive month period commencing January 1 of each year during the Term.
B. “Insurance
Expenses” shall mean the aggregate amount of the cost of fire, extended coverage, boiler, sprinkler, commercial general liability,
property damage, rent, earthquake, terrorism and other insurance obtained by Landlord in connection with the Property that is not already
being provided by Tenant to Landlord’s satisfaction, including insurance required pursuant to Paragraph 14.1 or Paragraph
14.2 hereof, as applicable, and the deductible portion of any insured loss otherwise covered by such insurance. All Insurance Expenses
shall be paid by Tenant to Landlord in accordance with Paragraph 5.3.
C. “Project
Expenses” shall mean and include all Property Expenses, Insurance Expenses, and Taxes related to the Property.
D. “Property
Expenses” shall mean all costs and expenses connected with or related to the operation, maintenance, repair and/or restoration
of the Property and the systems and facilities within the Property, including, without limitation, (i) electricity, gas, water, sewer,
other Utilities, utility sub-stations (to the extent not maintained or provided by a utility provider), trash removal, security, snow
plowing, landscaping, mowing and weed removal, sweeping and janitorial services, electrical, plumbing, sprinkler and HVAC maintenance
and/or repair, alarm and sprinkler system testing, maintenance and/or repair, (ii) the maintenance, repair, resurfacing and/or restriping
of all parking areas, loading and unloading areas, trash areas, roadways, driveways, and/or walkways, (iii) maintenance and/or repair
of any signage, (iv) painting of the Buildings and Property, (v) maintenance, repair, and/or replacement of any fences or gates, (vi)
maintenance, repair and/or replacement of any lighting facilities, (vii) maintenance, repair and/or replacement of all portions of the
Buildings whether structural or nonstructural, including without limitation all roofs, foundations and the structural soundness of the
foundation and walls of the Buildings, (viii) maintenance, repair and/or replacement of all equipment, facilities and components related
to the Property, including but not limited to fixtures, walls (interior), finish work, ceilings, floors, utility connections and facilities,
windows, glass, doors, and plate glass, downspouts, gutters, truck doors, dock levelers, bumpers, seals and enclosures, and termite and
pest extermination and (ix) Landlord’s property management fee not to exceed 1.5% of the applicable Base Rent.
E. “Rent”
or “rent” shall mean the total of all sums due to Landlord from Tenant hereunder, including but not limited to Base
Rent, Insurance Expenses payable by Tenant to Landlord in accordance with Paragraph 5.3, and all other fees and charges payable
by or owed by Tenant to Landlord as well as all damages, costs, expenses, and sums that Landlord may suffer or incur, or that may become
due, by reason of any default of Tenant or failure by Tenant to comply with the terms and conditions of this Lease.
F. “Taxes”
shall mean all taxes, assessments and charges in the nature of a tax levied by a taxing authority upon or with respect to the Property
or any personal property of Landlord used in the operation thereof, or Landlord’s interest in the Property or such personal property.
Taxes shall include, without limitation, all general real property taxes and general and special assessments, occupancy taxes, commercial
rental taxes, commercial rental taxes, charges, fees or assessments for transit, housing, police, fire or other governmental services
or purported benefits to the Property, and any tax or excise on the act of entering into any lease for space in the Property, or on the
use or occupancy of the Property or any part thereof, that are now or hereafter levied or assessed against Landlord by the United States
of America, the state in which the Property is located, or any political subdivision, public corporation, district or other political
or public entity, whether due to increased rate and/or valuation, additional improvements, change of ownership, or any other events or
circumstances, and shall also include any other tax or other excise, however described, that may be levied or assessed as a substitute
for or as an addition to, as a whole or in part, any other Taxes whether or not now customary or in the contemplation of the parties on
the date of this Lease. Notwithstanding the foregoing, Taxes shall not include any (i) franchise, transfer, inheritance or capital stock
taxes or income taxes measured by the gross or net income, or gross or net worth, of Landlord from all sources (unless, due to a change
in the method of taxation, any of such taxes is levied or assessed against Landlord as a substitute for or as an addition to, as a whole
or in part, any other tax that would otherwise constitute a Tax), (ii) sales, use, rental, gross receipt or similar taxes imposed on payments
of Rent, or (iii) real estate transfer or similar taxes imposed with respect to any sale, exchange, transfer or other disposition by Landlord,
in whole or in part, of the Property or Landlord’s interest in this Lease following the date hereof (unless such sale, exchange,
transfer or other disposition by Landlord is to Tenant or an affiliate of Tenant, or is otherwise made at Tenant’s request), or
(iv) incremental increase in any taxes, assessments and charges solely arising as a result of a transfer or assignment of the Property
by Landlord to an entity or person that is an affiliate of Landlord immediately prior to a transfer causing the Property to be reassessed
under the terms of Proposition 13 (as adopted by the voters of the State of California in the June 1978 election) or any successor or
similar provision of applicable law.
5.3 Payments
of Taxes and Insurance Expenses. In addition to Base Rent, and beginning on the Commencement Date, Tenant shall pay to Landlord, in
advance, one-twelfth (1/12) of the Taxes and Insurance Expenses due for each Computation Year, in an amount estimated by Landlord and
invoiced by Landlord to Tenant on a monthly basis (“Estimated Expenses”). Landlord shall have the right to revise the
Estimated Expenses from time to time and to adjust Tenant’s monthly payments accordingly. If either the Commencement Date or the
expiration of the Term shall occur on a date other than the first or last day of a Computation Year, respectively, the Taxes or Insurance
Expenses for such Computation Year shall be in the proportion that the number of days this Lease was in effect during such Computation
Year bears to 365. With reasonable promptness after the end of each Computation Year, Landlord shall furnish Tenant with a statement setting
forth in reasonable detail the actual Taxes and Insurance Expenses for such Computation Year (“Actual Expenses”). If
the Actual Expenses for such Computation Year exceeds the Estimated Expenses paid by Tenant for such Computation Year, then Tenant shall,
within thirty (30) days after the receipt of the Actual Expenses statement, pay to Landlord the difference between the amount paid by
Tenant and the Actual Expenses. If the Estimated Expenses paid by Tenant for such Computation Year exceed the Actual Expenses for such
Computation Year, then such excess shall be credited against the next installments of Estimated Expenses due from Tenant to Landlord hereunder
or, if no further installments of Estimated Expenses are due from Tenant, such excess shall be paid by Landlord to Tenant within thirty
(30) days after the receipt of the Actual Expenses statement. Neither Landlord’s failure to deliver, nor late delivery of, the Estimated
Expenses or Actual Expenses shall constitute a default by Landlord hereunder or a waiver of Landlord’s right to collect any payment
provided for herein. If Tenant is required to pay any Taxes on behalf of Landlord directly to any taxing authority (and does in fact pay
such Taxes), the amount of such Taxes paid by Tenant shall be treated as a payment of Estimated Expenses and Actual Expenses (as applicable)
by Tenant for all purposes of this Lease and shall reduce the amount of Estimated Expenses and Actual Expenses (as applicable) otherwise
payable by Tenant. Notwithstanding anything to the contrary herein, Tenant shall only be obligated to make any payments required under
an Actual Expenses statement that is furnished by Landlord within eighteen (18) months after the end of the applicable Computation Year
to which such expenses relate. In the event Tenant disputes the amount set forth in the Actual Expenses statement, Tenant shall have the
right not later than ninety (90) days following receipt of such statement to cause Landlord’s books and records with respect to
the preceding Computation Year to be audited by a certified public accountant that is a member of a nationally or regionally recognized
accounting firm that is not retained on a contingency fee basis. Landlord shall cooperate in good faith with Tenant and its accountant
in connection with any such audit. The amounts payable under this Paragraph 5.3 by Landlord to Tenant or by Tenant to Landlord
shall be appropriately adjusted on the basis of such audit. If such audit discloses a liability for further refund by Landlord to Tenant
in excess of five percent (5%) of the payments previously made by Tenant for such calendar year, the cost of such audit shall be borne
by Landlord; otherwise the cost of such audit shall be borne by Tenant.
All automobiles, trucks, trailers
and/or other vehicles on the Property, except those being manufactured in the normal course of Tenant’s business or as otherwise
consistent with Tenant’s Permitted Use, shall be in operable condition, and shall be licensed and insured, as required under applicable
law. Tenant assumes total responsibility and liability for all vehicles parked or stored on the Property, and Landlord assumes no liability
whatsoever for any damage to, loss of, or theft of any such vehicles or any personal property in such vehicles, except to the proportionate
extent arising from the gross negligence or willful acts of Landlord. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY,
TENANT ACKNOWLEDGES AND AGREES THAT IT SHALL USE THE PROPERTY AT ITS SOLE RISK AND THAT LANDLORD SHALL HAVE NO RESPONSIBILITY TO PREVENT,
AND SHALL NOT BE LIABLE TO TENANT OR ANY TENANT REPRESENTATIVES FOR, DAMAGES OR INJURIES TO PERSONS OR PROPERTY PARKED OR OTHERWISE LOCATED
ON OR ABOUT THE PROPERTY, EXCEPT TO THE PROPORTIONATE EXTENT ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL ACTS OF LANDLORD AND/OR LANDLORD
PARTIES (AS HEREINAFTER DEFINED).
Tenant shall use and occupy
the Property throughout the term of the Lease for warehousing, distribution, manufacturing and office use for automotive technology products
purposes and uses customarily associated and incidental therewith (“Permitted Use”) and for no other purpose; in particular
no use shall be made or permitted to be made of the Property, nor acts done which will cause a cancellation of any insurance policy covering
the Buildings, or any part thereof, nor shall Tenant sell, or permit to be kept, used, or sold, in or about the Property, any article
which may be prohibited by the standard form of fire insurance policies. Tenant shall comply with all laws, ordinances, rules, regulations
and codes of all municipal, county, state and federal authorities pertaining to Tenant’s use and occupation of the Property. Tenant
shall not commit, or suffer to be committed, any waste upon the Property or any public or private nuisance, or other act or thing which
disturbs the quiet enjoyment of any nearby property. Tenant shall also specifically not permit the long-term storage of tires, flammable
products, batteries, fertilizer, charcoal or any other similar items that cause objectionable odors to escape or be emitted from the Property,
in any manner inconsistent with Tenant’s Permitted Use; Tenant shall insure sanitation and freedom from odor, smell and infestation
from rodents or insects. Tenant, at its expense, shall provide (and enclose if required by applicable laws or regulations or by Landlord)
a dumpster or dumpsters for Tenant’s trash in a location and manner approved by Landlord, and shall cause its trash to be removed
at intervals reasonably satisfactory to Landlord. In connection therewith, Tenant shall keep the dumpster(s) clean and insect, rodent
and odor free.
| 8. | ENVIRONMENTAL COMPLIANCE/HAZARDOUS MATERIALS |
8.1 Definitions.
“Hazardous Materials” shall mean any (i) material, substance or waste that is or has the characteristic of being hazardous,
toxic, ignitable, reactive, flammable, explosive, radioactive, mutagenic or corrosive, including, without limitation, petroleum, or any
petroleum derivative, solvents, heavy metals, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause
cancer or reproductive problems and those materials, substances and/or wastes, including wastes which are or later become regulated by
any local governmental authority, the state in which the Property is located or the United States Government, including, but not limited
to, substances defined as “hazardous substances,” “hazardous materials,” “toxic substances” or “hazardous
wastes” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental
laws of the state where the Property is located, and any other environmental law, regulation or ordinance now existing or hereinafter
enacted, (ii) any other substance or matter which results in liability to any person or entity from exposure to such substance or matter
under any statutory or common law theory, and (iii) any substance or matter which is in excess of legally permitted levels applicable
to the Permitted Use set forth in, or that would reasonably be expected to give rise to liability under, any applicable federal, state
or local law or regulation pertaining to any hazardous or toxic substance, material or waste, or for which any applicable federal, state
or local agency orders or otherwise requires removal, remediation or treatment. “Hazardous Materials Laws” shall mean
all present and future federal, state and local laws, ordinances and regulations, and other binding requirements of governmental entities,
relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or
transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding
sentence.
8.2 Use
of Property by Tenant. Tenant hereby agrees that Tenant and Tenant’s officers, employees, and agents shall not cause or permit,
and Tenant shall use commercially reasonable efforts to cause its representatives, consultants, contractors, subcontractors, successors,
assigns, subtenants, concessionaires, invitees, any other occupants of the Property, and any others acting for or on behalf of Tenant
(collectively, “Tenant Representatives”) to not cause or permit, any Hazardous Materials to be used, generated, manufactured,
refined, produced, processed, stored or disposed of, on, under or about the Property or transport to or from the Property unless consistent
with the Permitted Use and in compliance with Hazardous Materials Laws, which Tenant shall comply with during the Term. Notwithstanding
the above, Tenant shall be permitted to use and store on the Property: (i) any products, lubricants, fuels or other materials consistent
with Tenant’s Permitted Use; (ii) reasonable quantities of consumer cleaning products and other over-the-counter consumer products
as are reasonably necessary to clean and maintain the Property, without first being required to obtain the Landlord’s prior written
consent; and (iii) other materials approved by Landlord in writing (which approval shall not be unreasonably withheld provided that Tenant
provides Landlord with evidence that the use of such other materials shall be in compliance with Hazardous Materials Laws); provided,
however, that Tenant stores the foregoing items in appropriate containers and in appropriate areas and complies with all Hazardous Materials
Laws with respect thereto. Subject to the foregoing, Landlord may, in its sole discretion, place reasonable conditions with respect to
such Hazardous Materials, which are reasonable rules, regulations and safeguards as may be required by any insurance carrier, environmental
consultant or lender of Landlord, or environmental consultant retained by any lender of Landlord. Tenant understands that Landlord may
utilize an environmental consultant to assist in determining conditions of approval and monitoring in connection with the presence, storage,
generation or use of Hazardous Materials on or about the Property by Tenant, provided that Landlord shall pay all costs of such review,
except that Tenant agrees that any costs reasonably incurred by Landlord in connection with any such environmental consultant’s
services shall be reimbursed by Tenant to Landlord upon demand if the consultant has identified a violation of this Paragraph 8
by Tenant and reasonably documented such violation. Landlord shall require (i) any environmental consultant performing such review to
maintain the confidentiality of information provided to it that is identified as confidential (subject to any exceptions in this Lease
Agreement applicable to Landlord with respect to confidential information), and (ii) any environmental consultant entering the Property
on behalf of Landlord to comply with Paragraph 18. Tenant shall comply with all Hazardous Materials Laws affecting the Property,
the business conducted thereon by Tenant or any of Tenant’s Representatives, or any activity or condition on or in the Property
during the Term. In connection therewith, Tenant shall at its own expense procure, maintain in effect and comply with all conditions of
any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Tenant or any of Tenant’s
Representatives of Hazardous Materials on the Property, including without limitation, discharge of (appropriately treated) materials or
wastes into or through any sanitary sewer serving the Property with all required permits.
8.3 Remediation.
If at any time any Hazardous Materials released by Tenant in, on, under or about the Property in violation of applicable Hazardous Materials
Laws (a “Contamination”) are required by Hazardous Materials Laws to be removed, then Tenant, at Tenant’s sole
cost and expense, shall promptly and diligently remove, to the extent required by Hazardous Materials Laws, such Hazardous Materials from
the Property or the groundwater underlying the Property and remediate such Contamination to the extent required to comply with applicable
Hazardous Materials Laws to restore the Property to at least the same condition which existed before such Contamination. Tenant shall
not take any required remedial action in response to any Contamination in or about the Property, or enter into any settlement agreement,
consent, decree or other compromise in respect to any claims relating to any Contamination without first obtaining the prior written consent
of Landlord, which may be subject to conditions imposed by Landlord as determined in Landlord’s sole discretion, provided, however,
Landlord’s prior written consent shall not be necessary in the event that the presence of Hazardous Materials on, under or about
the Property (i) poses an immediate threat to the health, safety or welfare of any individual or (ii) is of such a nature that an immediate
remedial response is necessary, including without limitation to prevent restrictions on operations, and it is not possible to obtain Landlord’s
consent before taking such action. To the extent required by Hazardous Materials Laws for the foregoing removal or remediation, Tenant
shall prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this Lease. In addition to all
other rights and remedies of Landlord hereunder, if Tenant does not promptly and diligently commence taking all steps for the remediation
required by Hazardous Materials Laws of any Hazardous Materials released or discharged in connection with any Contamination within thirty
(30) days after all necessary approvals and consents required by Hazardous Materials Laws have been obtained and thereafter continue to
prosecute such remediation to completion in accordance with Hazardous Materials Laws, then Landlord, at its sole discretion, shall have
the right, but not the obligation, to cause such remediation to be accomplished, and Tenant shall reimburse Landlord within thirty (30)
days of Landlord’s demand for reimbursement of all amounts reasonably paid by Landlord (together with interest on such amounts at
the highest lawful rate until paid), when such demand is accompanied by reasonable proof of payment by Landlord of the amounts actually
incurred by Landlord for any such remediation. Tenant shall promptly deliver to Landlord legible copies of hazardous waste manifests reflecting
the legal and proper disposal of all Hazardous Materials removed from the Property as part of Tenant’s remediation of any Tenant’s
Contamination.
8.4 Disposition
of Hazardous Materials. Except as discharged into the sanitary sewer in strict accordance and conformity with Paragraph 8.2
herein and all applicable Hazardous Materials Laws, Tenant shall cause any and all Hazardous Materials removed from the Property by it
or Tenant’s Representatives (including without limitation all Hazardous Materials removed from the Property as part of the required
remediation of a Contamination) to be removed and transported solely by duly licensed haulers to duly licensed facilities for recycling
or final disposal of such materials and wastes. Tenant is and shall be deemed to be the “operator” “in charge”
of Tenant’s “facility” and the “owner,” as such terms are used in the Hazardous Materials Laws, of all Hazardous
Materials and any wastes generated or resulting therefrom. Tenant or Tenant’s Representatives shall be designated as the “generator,”
as such terms are used in the Hazardous Materials Laws, on all manifests relating to such Hazardous Materials or wastes.
8.5 Notice
of Hazardous Materials Matters. Tenant shall promptly notify Landlord in writing of any of the following of which Tenant has knowledge:
(i) any enforcement, clean up, removal or other governmental or regulatory action instituted, known by Tenant to have been contemplated
or threatened in writing concerning the Property pursuant to any Hazardous Materials Laws; (ii) any claim made or threatened by any person
against Tenant or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from or claimed
to result from any Hazardous Materials on or about the Property; (iii) any known reports made to any environmental agency arising out
of or in connection with any Hazardous Materials in or removed from the Property including any complaints, notices, warnings or asserted
violations in connection therewith; and (iv) any known spill, release, discharge or disposal of any Hazardous Materials in, on or under
the Property, or any portion thereof, in each case, in violation of Hazardous Materials Laws and for which remediation is required by
Hazardous Materials Laws.
8.6 Indemnification
by Tenant. Tenant shall indemnify, defend (by counsel reasonably acceptable to Landlord), protect, and hold Landlord, and each of
Landlord’s employees, representatives, agents, attorneys, successors and assigns, and its directors, officers, partners, representatives,
any lender having a lien on or covering the Property or any part thereof, and any entity or person named or required to be named as an
additional insured in Paragraph 14.2 of this Lease free and harmless from and against any and all claims, actions (including, without
limitation, the cost of investigation and testing, consultant’s and attorney’s fees, remedial and enforcement actions of any
kind, administrative (informal or otherwise) or judicial proceedings and orders or judgments arising therefrom), causes of action, liabilities,
penalties, forfeitures, damages (including, but not limited to, damages for the loss or restriction or use of rentable space or any amenity
of the Property, or damages arising from any adverse impact on marketing of space in the Property), diminution in the value of the Property,
fines, injunctive relief, losses or expenses (including, without limitation, reasonable attorneys’ fees and costs) or death of or
injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly by (i) any
Contamination required by Hazardous Materials Laws to be removed or remediated to the extent required to comply with applicable Hazardous
Materials Laws to restore the Property to a standard that will allow the Permitted Use, (ii) Tenant’s or Tenant’s Representatives
failure to comply with any Hazardous Materials Laws with respect to the Property, or (iii) offsite disposal or transportation of Hazardous
Materials on, from, under or about the Property by Tenant or Tenant’s Representatives. Tenant shall be obligated for the indemnifications
of this Paragraph 8.6 regardless of whether or not Tenant is in compliance with the other terms and conditions of this Lease. Tenant’s
obligations hereunder shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary
repair, clean up or detoxification or decontamination of the Property, and the preparation and implementation of any closure, remedial
action or other required plans in connection therewith. For purposes of the indemnity provisions hereof, any acts or omissions of Tenant,
or by employees, agents, assignees, contractors or subcontractors of Tenant or others acting for or on behalf of Tenant (whether or not
they are negligent, intentional, willful or unlawful), shall be strictly attributable to Tenant.
8.7 Intentionally
Omitted.
8.8 Tenant
Certifications. Within ninety (90) days prior to the expiration of the Term, Tenant shall certify to Landlord in writing that, to
the best of its knowledge, (i) the Property is free from all Hazardous Materials whose presence was caused by Tenant or Tenant’s
Representatives (“Tenant Hazardous Materials”), except for Hazardous Materials reasonably needed for the Permitted
Use during the remainder of the Term (“Permitted Hazardous Materials”), and (ii) no such Hazardous Materials exist on, under
or about the Property other than as specifically identified to Landlord by Tenant in writing. If Landlord reasonably believes that such
certification is inaccurate, or if an environmental report is required by law, Landlord shall give notice to Tenant within thirty (30)
days after receipt of Tenant’s certification that Tenant shall have the Property thoroughly inspected by an environmental consultant
acceptable to Landlord for purposes of determining whether the Property is free from all Tenant Hazardous Materials, excepts Permitted
Hazardous Materials. If Landlord fails to timely give such notice, the requirement for an environmental inspection report is not required
of Tenant unless such report is otherwise required by Tenant under this Paragraph 8. Landlord’s failure to request an environmental
inspection report shall in no way alter, abridge or limit Tenant’s indemnity obligation hereunder. Tenant shall deliver to Landlord
a copy of the environmental consultant’s report forty-five (45) days prior to the expiration of the Lease, or such longer period
of time as reasonably required to complete such report. In the event the report discloses the existence of any Tenant Hazardous Materials
(other than Permitted Hazardous Materials) for which Hazardous Materials Laws requires any clean up or any other form of response (collectively
“Clean-up”), Tenant shall promptly and diligently perform such clean up or response and deliver the Property with the
conditions specified in the report “cleaned up”, to the full extent required by Hazardous Materials Laws. In the event the
conditions specified in the report requires Clean-up which cannot be completed prior to the expiration of the Term, Tenant shall be obligated
to pay Landlord the rent hereunder, as adjusted, for each day delivery of the Property in the required condition to Landlord is delayed
beyond the expiration of the Term.
8.9 Exclusivity.
The allocations of responsibility between, obligations and liabilities undertaken by, and indemnifications given by Landlord and Tenant
under this Paragraph 8 and Paragraph 18, shall be the exclusive provisions under this Lease, applicable to the subject matter treated
in this Paragraph 8 and Paragraph 18, and any other conflicting or inconsistent provisions contained in this Lease shall
not apply with respect to the subject matter.
8.10 Compliance
with Environmental Laws. Tenant shall at all times and in all material respects comply with all Hazardous Materials Laws applicable
to its operations and activities on the Property. All reporting obligations imposed by Hazardous Materials Laws relating to Tenant’s
operations and activities on the Property in any respect are strictly the responsibility of Tenant. Tenant and Landlord have been informed
that certain judicial decisions have held that, notwithstanding the specific language of a lease, courts may impose the responsibility
for complying with legal requirements and for performing improvements, maintenance and repairs on a landlord or tenant based on the court’s
assessment of the parties’ intent in light of certain equitable factors. Tenant and Landlord have each been advised by their respective
legal counsel about the provisions of this Lease allocating responsibility for compliance with laws and for performing improvements, maintenance
and repairs between Tenant and Landlord. Tenant and Landlord expressly agree that the allocation of responsibility for compliance with
laws and for performing improvements, maintenance and repairs set forth in this Lease represents Tenant’s and Landlord’s intent
with respect to this issue.
8.11 Asbestos.
If, in performing improvements, maintenance and repairs on a landlord or tenant based on the court’s assessment of the parties’
intent in light of certain equitable factors. Tenant and Landlord have each been advised by their respective legal counsel about the provisions
of this Lease allocating responsibility for compliance with laws and for performing improvements, maintenance and repairs between Tenant
and Landlord. Tenant and Landlord expressly agree that the allocation of responsibility for compliance with laws and for performing improvements,
maintenance and repairs set forth in this Lease represents Tenant’s and Landlord’s intent with respect to this issue.
8.12 Survival
and Duration of Obligations. All covenants, representations, warranties, obligations and indemnities made or given under this Paragraph
8 shall survive the expiration or earlier termination of this Lease.
Tenant shall pay all service
charges and utility deposits and fees, for water, electricity, sewage, janitorial, trash removal, gas, telephone, pest control and any
other utility services furnished to the Property and the improvements on the Property during the entire term of this Lease (“Utilities”).
Tenant shall pay for all Utilities directly to the provider. Landlord shall not be liable for any reason for any loss or damage resulting
from an interruption of any of the Utility services.
Except as otherwise set forth
herein, Tenant accepts the Property in its present “As-Is”, “Where-Is” and “With- All-Faults” condition
and specifically acknowledges that the Property is suited for the uses intended by Tenant. Landlord makes no representation or warranty,
implied or otherwise, as to the quality or condition of the Property, as to whether Tenant’s intended use complies with applicable
laws, or as to the suitability of the Property for Tenant’s intended use. Subject to the provisions of Paragraph 13, Tenant
shall make any other desired or required improvements to the Property. Tenant shall be responsible for all repair, maintenance, restoration,
replacement, and construction with respect to the Property, as described in Paragraph 5.
12.1 Tenant
covenants and agrees to pay promptly, when due, all personal property taxes or other taxes and assessments levied and assessed by any
governmental authority upon the removable property of Tenant in, upon or about the Property. Landlord hereby warrants and represents that
all Taxes and installments of special assessments regarding the Property, then due and payable, have been paid or will be current as of
the Commencement Date.
12.2 With
the prior written consent of Landlord (not to be unreasonably withheld, conditioned, or delayed) Tenant shall have the right to undertake
an action or proceeding against the applicable collecting authority (i) seeking an abatement of Taxes or a reduction in the valuation
of the Property, and (ii) to contest the applicability of any Taxes; provided, however, that Tenant has paid timely (and continues to
pay timely) all Taxes that it is responsible for paying pursuant to Paragraph 5.3 of this Lease to the extent required by applicable
law. Tenant shall deliver to Landlord (i) a copy of all correspondence and filings made by the applicable collecting authority in any
action, (ii) copies of all written correspondence from the applicable collecting authority to Tenant with respect to such action, (iii)
copies of (x) any emails relating to any settlement offers and (y) any other material emails from the applicable collecting authority
to Tenant, (iv) copies of all proposed filings to be made by Tenant in any such action, and (v) copies of all proposed settlement offers
to be made by Tenant. For the avoidance of doubt, Tenant shall deliver the materials in (iv) and (v) prior to filing or submitting the
same, and shall reasonably consult with Landlord with respect to the content of such filings or settlement offers. Landlord may deliver
to Tenant written requests from time to time, for information regarding any such action or proceeding by Tenant. Tenant shall respond
in good faith with all information reasonably requested by Landlord within 5 days after receipt of Landlord’s written request. In
any instance where any such permitted action or proceeding is being undertaken by Tenant, Landlord shall cooperate reasonably with Tenant,
at no cost or expense to Landlord, execute any and all documents approved by Landlord and reasonably required in connection therewith
and, to the extent required by the collecting authority, agrees to file at Tenant’s request any action or proceeding against the
collecting authority in its own name. Provided that Tenant is not in default under this Lease, Tenant shall be entitled to any refund
arising from Taxes actually paid by Tenant (after the deduction therefrom of all expenses incurred by Landlord in connection therewith)
of any Taxes (including, without limitation, penalties or interest thereon) received by Tenant or Landlord, whether or not such refund
was a result of actions or proceedings instituted by Tenant. Additionally, Tenant shall indemnify, defend (by counsel reasonably acceptable
to Landlord as promptly as possible), protect, and in any event within hold Landlord, and each of Landlord’s employees, representatives,
agents, attorneys, successors and assigns, and its directors, officers, partners, representatives, any lender having a lien on or covering
the Property or any part thereof, and any entity or person named or required to be named as an additional insured in Paragraph 14.2
of this Lease free and harmless from and against any and all claims, actions (including, without limitation, the cost of investigation
and testing, consultant’s and attorney’s fees, enforcement actions of any kind, administrative (informal or otherwise) or
judicial proceedings and orders or judgments arising therefrom), causes of action, liabilities, penalties, forfeitures, damages (including,
but not limited to, damages for the loss or restriction or use of rentable space or any amenity of the Property, or damages arising from
any adverse impact on marketing of space in the Property), diminution in the value of the Property, fines, injunctive relief, losses or
expenses (including, without limitation, reasonable attorneys’ fees and costs), arising from or caused in whole or in part, directly
or indirectly by any contest initiated by Tenant pursuant to this Paragraph 12.2.
| 13. | ALTERATION OF PROPERTY |
Tenant shall not make any
alterations, repairs or changes to the Property (“Tenant Repairs”) that are structural in nature or any other material
changes to the Property without the prior written consent of Landlord which shall not be unreasonably withheld; provided, however, that
for purposes of this Paragraph 13, “material changes” shall include, without limitation, any Tenant Repairs that affect
the main utility or similar infrastructure of the Property. In addition, Tenant shall make a good-faith effort to provide advance notice
to Landlord of any Tenant Repairs in the event such Tenant Repairs require a building or similar permit. All Tenant Repairs shall remain
a part of and be surrendered with the Property, unless Landlord directs its removal under Paragraph 23 of this Lease. Notwithstanding
anything to the contrary herein, Tenant shall promptly provide to Landlord copies of all permits, licenses, plans, and any other governmental
and regulatory approvals required for any Tenant Repairs. All Tenant Repairs shall remain a part of and be surrendered with the Property,
(i) unless Landlord directs their removal under Paragraph 23, or (ii) unless Landlord and Tenant agree otherwise prior to installation
of such Tenant Repairs. Tenant shall procure and keep in force, at Tenant’s sole cost and expense, any permits, licenses, and other
governmental and regulatory approvals required for any Tenant Repairs, which shall be performed by licensed contractors, who shall satisfy
the insurance requirements in Paragraph 14.4.
14.1 Landlord’s
Insurance. Subject to Paragraph 14.3, below in respect of the Insurance Services Agreement, Landlord shall maintain in full
force and effect throughout the entire term of this Lease general comprehensive liability insurance for the Buildings and common areas
and general fire and extended coverage insurance, including vandalism and special form or such other or broader coverage as may from time
to time be customary on the Buildings and the common areas and other areas of land within which the Buildings are located in such amounts
determined by Landlord. Copies of all such insurance policies or certificates thereof endorsed to show payment of the premium shall be
available for inspection by Tenant and such policies and certificates shall show Landlord and the beneficiary of any mortgage or deed
of trust on the Property to be additional insureds as their interests may exist (or a mortgagee loss payable endorsement). Such insurance
may be provided by a blanket insurance policy covering the Property, so long as the coverage on the Property is at all times at least
as great as required by this Paragraph. Such insurance obtained by Landlord under this Paragraph 14.1 shall be “Landlord’s
Insurance”, and the costs of Landlord’s Insurance obtained by Landlord shall be included in the Insurance Expenses. Landlord
shall provide notice to Tenant: (i) at least thirty (30) days prior to any expiration of Landlord’s Insurance or any portion thereof,
or (ii) as soon as reasonably practicable after Landlord learns of any potential inability of Landlord to continue to maintain Landlord’s
Insurance or any portion thereof (each “Notice of Landlord’s Insurance”). In the event Tenant receives Notice
of Landlord’s Insurance, Landlord and Tenant shall each work in good faith to obtain Landlord’s Insurance as promptly as possible,
and if Landlord is unable to obtain Landlord’s Insurance after using good faith efforts to do so, Landlord shall notify Tenant and
Tenant shall be required, no later than thirty (30) days after receipt of the Notice of Landlord’s Insurance, to purchase and maintain
or otherwise cause to be maintained, at its sole cost and expense, Landlord’s Insurance.
14.2 Tenant’s
Insurance. Tenant shall purchase and maintain or otherwise cause to be maintained, at its sole cost and expense, the following insurance
during the entire Term and any period Tenant (or any party claiming by, through, or under Tenant) occupies any portion of the Premises,
for the benefit of Tenant and Landlord with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum
A.M. Best’s rating of at least A-VIII, (or its equivalent if such guide ceases to be published) and with minimum limits of not less
than the greater of (i) those set forth hereunder; (ii) those evidenced on the declaration page of the pertinent insurance policy; and
(iii) those required by law, unless otherwise approved in writing by Landlord:
General Liability
(GL) Per Occ/Agg | |
Umbrella /
Excess | |
Workers’ Comp | |
Employers Liability | |
Auto (and Gatekeepers’ if applicable) | |
Host Liquor Liability | |
Property Insurance |
$1MM/$2MM | |
$5MM | |
Statutory | |
$1MM | |
$1MM | |
$1MM | |
Full Replacement Cost and Business Income (see below) |
A. Commercial
Property Insurance - Coverage shall be maintained covering property damage to the entire Premises (as herein defined). Such coverage shall
insure the full replacement cost, without deduction for depreciation, of the Property, Buildings, improvements, betterments, alterations,
fit-out, personal property, machinery, equipment, office furniture, trade fixtures, office equipment, contents, products, molds, and all
other personal property in, on, or about the Property and Buildings including the roof and rooftop equipment (all the foregoing, including
for the avoidance of doubt the Buildings, the “Premises”). Such insurance shall name Tenant as the named insured, with
Landlord and Landlord’s mortgagee(s) named as additional insureds and loss payees as their interests may appear. Such policy shall
(i) be written on “special form” basis (also referred to as “all risk”) including, but not limited to coverage
for the perils of fire, explosion, smoke, aircraft, vehicles, civil commotion, hail, windstorm, named storm, theft, water damage, sewer
backup, vandalism, malicious mischief, sprinkler leakage, debris removal, and other endorsements as Landlord shall reasonably request
from time to time; (ii) not contain any co-insurance requirements or penalties; (iii) not contain any deductibles exceeding one hundred
thousand dollars $100,000 per occurrence, unless otherwise approved by Landlord; (iv) include coverage for business interruption, with
a limit sufficient to cover not less than twelve (12) months from time of loss and containing a 365 day extended period of indemnity.
It is understood and agreed that Tenant assumes all risk of damage to its own property (including its business interruption) arising from
any cause whatsoever, including, without limitation, loss by theft, water damage, vandalism, and the other perils listed in the foregoing
subsection (i). As a condition to the commencement of any Alterations, either Tenant shall maintain (or cause to be maintained), or if
the applicable contract for such Alterations is in Landlord’s name pursuant to Section 8 of the Work Letter, Landlord shall maintain
(or cause to be maintained), during any period when Tenant is performing Alterations: builder’s risk insurance on a 100% replacement
cost (and completed value, non-reporting) coverage basis, including hard and soft costs coverages with such endorsements as Landlord may
reasonably require. Such builder’s risk insurance shall protect and insure Landlord, Landlord’s agents, Tenant and Tenant’s
contractors, as their interests may appear, against loss or damage by fire, water damage, vandalism and malicious mischief, and such other
risks as are customarily covered by so-called “special form” builder’s risk coverage. Such builder’s risk coverage
shall be approved by Landlord and may be provided by Landlord at the mutual agreement of Tenant and Landlord.
B. Commercial
General Liability Insurance - Coverage shall be issued on a form that is equivalent to the most recently filed ISO CG 00 01 occurrence
form, with limits of liability not less than what is listed in the chart above. Such policy shall include coverage for premises/operations,
bodily injury (including death and mental anguish), personal and advertising injury, property damage, host liquor liability (unless separately
insured), damage to Premises rented to Tenant and insured contracts (as defined by the most recently filed CG 00 01 form or equivalent).
C. Intentionally
Deleted;
D. Loss
of income or business interruption insurance in such amounts as will reimburse Tenant for direct or indirect loss of earnings attributable
to all perils commonly insured against by prudent tenants or attributable to prevention of access to the Property as a result of such
perils, but in no event in an amount less than the total gross revenues of Tenant from the Property for twelve (12) months, and shall
include a 365-day extended period of indemnity;
E. Loss
of income or business interruption insurance covering loss of Rents due to fire and the risks now or hereafter embraced by Extended Coverage
for the annual amount of Rents for a minimum of one (1) year, and the rental value shall include the Base Rent and any other payments
payable under the terms of this Lease. Said insurance shall provide that in the event this Lease is terminated or in the event Rent is
abated by reason of an insured loss, the period of indemnity for such coverage shall be extended beyond the date of the completion of
repairs or replacement of the Property, to provide for one full year’s loss of Rent from the date of any such loss. Said insurance
shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to
reflect the projected Rent otherwise payable by Tenant, for the next twelve (12) month period];
F. Workers
Compensation - coverage shall be provided with statutory limits and Employers Liability Insurance with limits of liability for Employers
Liability not less than what is listed in the chart above; and
G. Automobile
Liability - coverage shall be issued on a form equivalent to the recently filed CA 00 01 form, with limits of liability not less than
what is listed in the chart above; such coverage shall include hired and non-owned automobiles. If the Tenant removes and transports hazardous
materials from the Property, such coverage must be included and noted specifically on Tenant’s certificate of insurance.
H. Umbrella
/ Excess liability Insurance - coverage shall be provided with limits of liability not less than $5,000,000 per occurrence and in the
aggregate on a per location basis, unless otherwise approved by Landlord. Coverage shall provide excess liability coverage over the underlying
commercial general liability, automobile liability, liquor liability (if applicable), and employer’s liability policies and must be endorsed
to provide that this insurance contains the same Additional Insureds provisions as the listed underlying Primary policies.
I. Pollution
Legal Liability - unless waived by Landlord, in writing, and Tenant shall provide occurrence-based Pollution Liability insurance with
limits of liability no less than $5,000,000, per claim and annual aggregate. Coverage must include, but shall not be limited to Liability
to third parties for bodily injury, property damage, remediation, and clean-up costs arising from pollution events or conditions on, at,
under, or migrating from the Project site and from transportation and disposal of pollutants and/or anything contaminated by pollution;
defense costs; fines or penalties; costs of responding to a government entity investigation; and emergency response costs coverage arising
out of a pollution condition, including, but not limited to mold, silica, asbestos, lead, arsenic, chromate, sulfates, vapor, smoke, soot,
dust, and/or fumes.
The costs of the insurance
obtained by Tenant under this Paragraph 14.2, to the extent not paid directly by Tenant, shall be included in the Insurance Expenses.
For the avoidance of doubt, to the extent that Landlord is providing all or a portion of the coverage for which Tenant is responsible
hereunder, failure by Landlord to maintain such coverage, in whole or in part, shall not relieve Tenant of its obligations hereunder.
The “Post-Closing
Insurance Items” shall mean, collectively, (i) Commercial Property Insurance set forth in Paragraph 14.2(A) solely to the extent
that it is required to insure the “full replacement cost” and not contain any deductibles exceeding $100,000 (with Tenant
and Landlord agreeing that as of the Effective Date, Tenant shall carry Commercial Property Insurance that otherwise meets the requirements
set forth in Paragraph 14.2(A) and which shall not contain any deductibles exceeding $500,000), (ii) the Commercial General Liability
insurance set forth in Paragraph 14.2(B) above solely to the extent that it is required to be on an “occurrence form” (with
Tenant and Landlord agreeing that as of the Effective Date, Tenant shall carry Commercial General Liability insurance on a claims-made
basis), and (iii) the Pollution Legal Liability insurance set forth in Paragraph 14.2(I) above.
14.3 Certificates
of Insurance. The parties hereto agree that any and all such insurance policies required to be carried by either shall be endorsed
with a waiver of subrogation clause that shall provide that such party’s insurer waives any right of recovery against the other
party in connection with any such loss or damage. All liability insurance policies required herein (except for Workers’ Compensation)
shall name Landlord, Landlord’s management, leasing and development agents, Landlord’s mortgagee(s) and ground lessor(s) (if
applicable), Landlord’s affiliates, OW Management Services, Inc., and other entities Landlord reasonably requests from time to time
(collectively, the “Additional Insureds”) as additional insureds on a primary and non-contributory basis without any
privity of contract requirement. A waiver of subrogation shall apply in favor of the Landlord and the other Additional Insureds on all
insurance required to be carried by Tenant herein. Tenant shall be solely responsible for its own deductibles and self-insured retentions.
Any insurance limits required by this Lease are minimum limits only and not intended to restrict the liability imposed on Tenant under
this Lease. The parties acknowledge that at commencement of the Term, Landlord is arranging for insurance coverage in respect of Paragraphs
14.1 and 14.2 hereof through an Insurance Services Agreement dated as of the date hereof (the “Insurance Services Agreement”)
with IRG Realty Advisors, LLC (“IRG”) in the form attached hereto as Exhibit “F”. To the extent
that Landlord is unable to maintain insurance through the Insurance Services Agreement with IRG (for any reason whatsoever) or IRG is
unable to confirm renewal of such policies on or prior to thirty (30) days prior to the expiration of such policies, Tenant shall be obligated
to provide evidence that it has procured the same prior to any such insurance coverage lapsing. No later than five (5) days prior to each
anniversary of the Term Commencement Date and/or renewal date thereof, Tenant shall furnish to Landlord certificate(s) of insurance (together
with Landlord-specific endorsements, upon request) acceptable to Landlord, evidencing such coverage required herein. Copies of policies
required herein shall be made available to Landlord by reasonable request as soon as practical. Tenant shall not allow any insurance coverage
required herein to be materially changed, non-renewed, or canceled without at least thirty (30) days’ prior written notice to Landlord
(ten (10) days’ prior written notice in the event of non-payment of premium). The insurance maintained by Tenant shall be deemed
to be primary insurance and any insurance maintained by Landlord or the other Additional Insureds (acknowledging that they have no obligation
to maintain any such insurance) shall be deemed secondary and non-contributory thereto. Tenant shall cooperate, fully, and in all respects
and at Tenant’s sole cost and expense, with Landlord in connection with any efforts of Landlord to receive prompt payment of any proceeds
required to be paid to Landlord pursuant to the terms and conditions of this Lease regarding insurance policies covering the Premises.
Tenant shall comply with all applicable Laws, all orders, and decrees of court and all requirements of other governmental authorities,
and shall not, directly or indirectly, make any use of the Premises which may thereby be prohibited or be dangerous to person or property
or which may jeopardize any insurance coverage or may increase the cost of insurance or require additional insurance coverage. If Tenant
fails to comply with the provisions of Agreement and (i) any insurance coverage is jeopardized and Tenant fails to correct such dangerous
or prohibited use following ten (10) days’ notice, or (ii) insurance premiums are increased and Tenant fails, following ten (10)
days’ notice, to cease such use, then in each event such failure shall constitute an Event of Default by Tenant under this Lease,
without any further notice or cure right, and Landlord shall have all of its remedies as set forth in the Lease. In the event Tenant breaches
any covenant or fails to observe any condition set forth with respect to the insurance required to be maintained by Tenant (directly or
indirectly), then the same shall constitute an Event of Default by Tenant under this Lease; provided, however, and without limiting any
other right or remedy, and notwithstanding any other provision herein concerning notice and cure of defaults or Events of Default, Landlord
may immediately and without notice to Tenant obtain such insurance, and Tenant shall pay the cost thereof and Landlord’s expenses related
thereto upon demand as an Insurance Expense. Notwithstanding anything to the contrary herein, Landlord and Tenant acknowledge and agree
that: (i) Tenant is not required to carry such Post-Closing Insurance Items as of the Effective Date, (ii) Landlord shall not be required
to fund any Tenant Improvement Allowance until all such Post-Closing Insurance Items are in place, (iii) Tenant shall use commercially
reasonable efforts to obtain the Post-Closing Insurance Items within forty-five (45) days after the Effective Date, and (iv) once Tenant
has obtained the Post-Closing Insurance Items, it shall be required to continue to maintain such Post-Closing Insurance Items for the
remainder of the Term in accordance with the terms of this Lease.
14.4 Contractors’
Insurance. Tenant, via written executed contract, shall require and cause its contractors, vendors, consultants, and subcontractors
of every tier to maintain the following minimum insurance, inclusive of additional insured status and waiver of subrogation requirements:
(i) Commercial General Liability Insurance written on a current ISO CG 00 01 occurrence based policy form with limits of not less than
$1,000,000 per occurrence for bodily injury (including death and mental anguish) and property damage, $1,000,000 each person or organization
for personal and advertising injury, $2,000,000 general aggregate per location or project, and $2,000,000 products-completed operations
aggregate, and such policy shall include contractual liability coverage arising out of work performed by you or on your behalf including
indemnity for injuries to the insured’s employees; (ii) Workers Compensation Insurance covering statutory benefits in all states
where the insured’s operations are to being performed, and such policy shall include an Employers Liability Insurance coverage part
with limits of not less than $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee and policy limit for
bodily injury by accident; (iii) Automobile Liability Insurance covering the ownership, maintenance, and operations of any automobile
or automotive equipment, whether such auto is owned, hired, leased, or non-owned, with a combined single limit for bodily injury and property
damage of not less than $1,000,000 per accident; (iv) Umbrella / Excess Liability Insurance with limits appropriate for the project and
hazards associated with the insured’s operations, but in no event less than $2,000,000 per occurrence and in the aggregate on a
follow form basis; and (v) “All Risk” Property Insurance coverage for tools and equipment brought onto and/or used at the
Property, the amount of which is equal to the replacement costs of all such tools and equipment. Certificates of insurance shall be made
available to Landlord prior to work commencing on site evidencing all insurances as required herein. Such insurance (except for Workers’
Compensation / Employers Liability) shall include Tenant, Landlord and the Additional Insureds as additional insureds (including, with
respect to Commercial General Liability, for ongoing and completed operations) on a primary and non-contributory basis and without any
requirement for contractual privity. Coverage provided shall not contain any exclusions pertaining to the work contemplated by the third
parties’ respective agreement. The required limits listed above are minimum limits established by Landlord and nothing contained
herein shall be construed to mean the required limits are adequate or appropriate to protect Tenant or contractors of any type from greater
loss.
| 15. | WAIVER, EXCULPATION AND INDEMNITY |
15.1 Definitions.
For purposes of this Paragraph 15, (i) “Tenant Parties” shall mean, singularly and collectively, Tenant and
Tenant’s officers, directors, shareholders, partners, members, trustees, agents, employees, independent contractors, consultants,
licensees, concessionaires, customers, guests, invitees or visitors as well as to all persons and entities claiming through any of the
foregoing persons or entities, and (ii) “Landlord Parties” shall mean singularly and collectively, Landlord and Landlord’s,
mortgagees, officers, directors, shareholders, partners, members, trustees, agents, employees, independent contractors, and consultants,
as well as to all persons and entities claiming through any of the foregoing persons or entities, but expressly excluding any other tenant
or occupant of the Property.
15.2 Exculpation.
Tenant, on behalf of itself and of all Tenant Parties, and as a material part of the consideration to be rendered to Landlord under this
Lease, hereby waives, to the fullest extent permitted by law, all claims against Landlord for loss, theft or damage to goods, wares, merchandise
or other property (whether tangible or intangible) in and about the Property, for loss or damage to Tenant’s business or other economic
loss (whether direct, indirect or consequential), and for the injury or death to any persons in, on or about the Property, except for
damage or loss directly caused by the gross negligence or willful misconduct of Landlord and/or Landlord Parties.
15.3 Landlord’s
Indemnity. Except to the extent arising out of Tenant’s and/or Tenant Parties’ gross negligence or willful misconduct,
Landlord shall indemnify, defend (by an attorney of Landlord’s choice, reasonably acceptable to Tenant), reimburse, protect and
hold harmless Tenant and all Tenant Parties from and against all third party claims, liability and/or damages arising from or related
any breach by Landlord of its obligations under this Lease, to the extent that such liability or damage is covered by Landlord’s
insurance (or would have been covered had Landlord carried the insurance as required under this Lease). It is specifically understood
and agreed that Landlord shall not be liable or responsible for the acts or omissions of any agents, independent contractors, consultants,
licensees, concessionaires, customers, guests, invitees or visitors of persons other than Landlord.
15.4 Tenant’s
Indemnity. Except to the extent arising out of Landlord’s and/or Landlord Parties’ gross negligence or willful misconduct,
Tenant shall indemnify, defend (by an attorney of Tenant’s choice, reasonably acceptable to Landlord), reimburse, protect and hold
harmless Landlord and all Landlord Parties from and against all third party claims, liability and/or damages arising from or related to
the negligence, acts or omissions of Tenant or any Tenant Parties relating to their use, possession, or occupancy of the Property or,
Tenant’s obligations under this Lease, or to any work done, permitted or contracted for by any of them on or about the Property,
to the extent that such liability or damage is covered by Tenant’s insurance (or would have been covered had Tenant carried the
insurance as required under this Lease). Tenant shall cause any independent contractor or other person who performs any construction,
work of repair, maintenance, restoration, replacement, alteration, or other work on or about the Property by or under the control or direction
of Tenant (“Tenant Contractors”) to comply with the insurance requirements set forth in Paragraph 14.4.
15.5 Waiver
of Subrogation. To the extent of any and all insurance maintained, or required to be maintained, by either Landlord or Tenant in any
way connected with the Property, Landlord and Tenant hereby waive on behalf of their respective insurance carriers, to the fullest extent
permitted by law, any right of subrogation that may exist or arise as against the other party to this Lease. Landlord and Tenant shall
cause the insurance companies issuing their insurance policies with respect to the Property to waive any subrogation rights that the companies
may have against Tenant and Landlord, respectively, which waivers shall be specifically stated in the respective policies.
15.6 Survival
and Duration of Obligations. All representations, warranties, obligations and indemnities made or given under this Paragraph 15
shall survive the expiration or earlier termination of this Lease.
16.1 Tenant
shall not suffer or permit any construction liens, mechanic’s liens or materialman’s liens to be filed against Landlord’s
interest in the real property of which the Property forms a part nor against Tenant’s leasehold interest on the Property (“Tenant
Lien”), except as may be required in the ordinary course of business by virtue of California construction statutes, provided
Tenant shall promptly and fully pay and discharge any and all claims upon which any such lien may or could be based. Landlord shall have
the right at all reasonable times to post and keep posted on the Property, any notices which it deems necessary for protection from such
liens, or take such other action as applicable law may require to protect from such liens. In connection therewith, Tenant shall cooperate
with Landlord and shall sign any notice or other documents reasonably required by Landlord to comply with such applicable law. Tenant
shall have the right to contest by proper proceedings any Tenant Lien, provided that Tenant shall prosecute such contest diligently and
in good faith and such contest shall not expose Landlord to any civil or criminal penalty or liability in connection therewith. In such
case, within ten (10) days after Landlord’s demand, Tenant shall furnish Landlord a surety bond or other adequate security satisfactory
to Landlord in an amount equal to one hundred twenty-five percent (125%) of the amount of such claim or such higher amount as may be reasonably
required to both to indemnify Landlord against liability and hold the Property free from adverse effect in the event the contest is not
successful (“Lien Bond”). The Lien Bond may be retained by Landlord until the Tenant Lien has been removed of record
or until judgment has been rendered on such claim and such judgment has become final, at which time Landlord shall have the right to apply
such Lien Bond in discharge of the judgment on the Tenant Lien and to any actual costs, including reasonable attorneys’ fees incurred
by Landlord, and shall remit the balance thereof to Tenant. In the event that a Tenant Lien is filed and Tenant does not properly contest
such lien or timely post the Lien Bond, Landlord, at its election, and upon not less than five (5) days prior written notice to Tenant,
may pay and satisfy the Tenant Lien and, in such event the sums so paid by Landlord, including all actual expenses, including reasonable
attorney’s fees, so paid by Landlord, shall be payable by Tenant at once without notice or demand together with interest thereon
from the date of payment at the rate of eighteen percent (18%) per annum, provided such interest rate shall not exceed the maximum interest
rate permitted by law. Notwithstanding the foregoing, Tenant shall have no responsibility for discharge of any mechanics’ liens
filed by a contractor, subcontractor, materialman, or laborer of Landlord.
16.2 Tenant
agrees to give Landlord written notice not less than five (5) business days in advance of the commencement of any Tenant Repairs in order
that Landlord may post appropriate notices of Landlord’s non-responsibility. Promptly after the Tenant Repairs are completed, Tenant
shall file a Notice of Completion.
Landlord covenants and agrees
that Tenant, unless an Event of Default has occurred and is then continuing, shall peaceably and quietly hold, occupy and enjoy the Property
during the term of this Lease as extended by the options described herein, if any, subject to the terms and provisions of this Lease (including
Landlord’s right of entry in Paragraph 18 below).
| 18. | LANDLORD’S RIGHT OF ENTRY |
Landlord or his agents shall
have the right to enter the Property at reasonable times upon reasonable advance notice of no less than forty eight (48) hours in order
to examine it or to show it to prospective lenders, consultants, buyers, or, during the last twelve (12) months of the Term or at any
time during the pendency of an Event of Default, prospective tenants, to place “For Rent” or “For Sale” signs
on or about the Property, provided, however, Landlord shall use its best efforts to minimize the effect of any such entry or any interference
with Tenant’s use of the Property. Landlord must at all times be accompanied by a designated representative of Tenant when showing
the Property to any third party and shall be strictly prohibited from taking any photographs of the building interior that capture, reflect
or otherwise reveal any of Tenant’s proprietary materials, trade secrets or information that should reasonably understood by Landlord
to constitute Tenant’s non-public, confidential information, without Tenant’s prior written consent, which consent may be
withheld in Tenant’s sole discretion. Landlord’s right of reentry shall not be deemed to impose upon Landlord any obligation,
responsibility, or liability for the care, supervision or repair of the Property other than as herein provided; except that Landlord shall
use reasonable care to prevent loss or damage to Tenant’s property resulting from Landlord’s entry. Notwithstanding the foregoing,
Landlord shall have the right to enter the Property without first giving notice to Tenant in the event of an emergency where the nature
of the emergency will not reasonably permit the giving of notice. Notwithstanding the foregoing, Landlord shall not have any sampling
performed on the Property unless: (i) Landlord has reasonable grounds for conducting the same; (ii) upon Tenant’s written request,
Landlord shall provide a copy of the sampling results to Tenant and/or an environmental consultant engaged by Tenant; (iii) Landlord provides
Tenant the right to have its environmental consultant conduct simultaneous sampling of the same nature, (iv) no invasive testing is completed
unless the same is recommended by a Phase I environmental site assessment conducted pursuant to this section (or required by applicable
law following the initial sampling conducted pursuant to this section), (v) unless sampling is required by an emergency, prior to conducting
sampling Landlord’s environmental consultant shall use reasonable efforts to confer with Tenant’s environmental consultant
about an appropriate sampling work plan, and (vi) all individuals who enter the Property to conduct the sampling comply with any written
safety procedures for the Property provided to them by Tenant, follow all applicable provisions in this Paragraph 18, and maintain
the confidentiality of any information provided to them that is marked “confidential” (subject to any exceptions in this Lease
applicable to Landlord in respect of such confidentiality).
| 19. | DESTRUCTION OF BUILDINGS |
19.1 Notice
of Damage. If either party becomes aware of damage to the Property by fire, earthquake or other casualty (“Casualty Damage”),
such party shall give prompt written and telephonic notice to the other party.
19.2 Tenant
to Restrict Entry to Property. In the event of an earthquake or other casualty that may affect the safety of persons or property in
the Property, Tenant shall request an inspection of the Property by appropriate governmental inspectors as soon as possible. If Tenant
in good faith believes there is a risk of injuries to natural persons or damage to property from entry into the Property prior to governmental
inspection, Tenant shall temporarily restrict entry into the Property by Tenant’s employees, guests, contractors, subtenants and
other occupants in a nondiscriminatory manner until safe entry can be restored, subject to the establishment of safe methods of entry
into the Property in order to retrieve files, data in computers and inventory. Tenant shall indemnify, defend and hold harmless Landlord
from and against any Claims relating to entry into the Property following an earthquake or other casualty. Tenant shall comply with all
applicable orders of governmental officials regarding safe entry into the Property following an earthquake or other casualty. The decision
of any appropriate governmental inspector regarding safe entry shall be binding on the parties unless subsequently amended or revoked.
19.3 Tenant’s
Obligation to Repair. Tenant shall, at its sole cost and expense, repair such Casualty Damage substantially to its condition immediately
prior to such fire or other casualty.
19.4 Rent
Abatement. In the event of any Casualty Damage to the Property, upon condition that Tenant shall have provided the rent insurance
required under Paragraph 14 hereof and Landlord is then collecting its proceeds equal to the amount abated, this Lease shall nevertheless
continue in effect and Tenant shall remain and continue to be liable for the performance of all the terms, covenants and conditions of
this Lease, except that the Rent payable during the period of repair or rebuilding shall be abated based upon the extent to which the
Casualty Damage and the repairs interfere with the usefulness of the Property for the business carried on by Tenant, but in no event shall
such abatement of Rent exceed the proceeds Landlord is able to collect from such rent insurance.
19.5 Mortgagee
Requirements. All of the foregoing sections are subject to the rights of Landlord’s lenders under the terms of deeds of trust
or mortgages now or hereafter affecting the Property with respect to the payment of the proceeds of insurance policies to be maintained
provided in this Lease.
19.6 Escrow
Account. For the purpose of paying the cost of repair, replacement or rebuilding, all insurance proceeds relating to a Casualty Damage
shall be kept in an escrow account to be established with an escrow company selected by Landlord, and such escrow company shall disburse
such proceeds during the course of the work on an as needed basis. If the proceeds are insufficient to pay the costs of the work, Tenant
shall pay the deficiency. If the proceeds exceed the cost of such work, Tenant may retain the excess.
19.7 Damage
Threshold. If more than seventy-five percent (75%) of the floor area of the Building shall be destroyed by fire of other casualty,
Tenant shall have the right to terminate this Lease by giving written notice of termination to Landlord within thirty (30) days thereof
and paying to Landlord all amounts that would then become due and payable under this Lease through the end of the Term. Upon receipt of
any such payment the Lease shall be deemed terminated and of no further force and effect, except for those provisions that expressly survive
the expiration or termination of this Lease, which provisions shall continue in full force and effect.
19.8 Waiver
of Statutes. The provisions of this Lease, including this Paragraph 19, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part of the Property, and any statute or regulation of the
State of California, including, without limitation, Sections 1932 and 1933 of the California Civil Code, with respect to any rights or
obligations concerning damage or destruction in the absence of an express agreement between the parties, and any other statute or regulation,
now or hereafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Property.
20.1 Definitions.
For purposes of this Lease, the word “condemned” is co-extensive with the phrase “right of eminent domain”,
that is, the right of the government to take property for public use, and shall include the intention to condemn expressed in writing
as well as the filing of any action or proceeding for condemnation.
20.2 Exercise
of Condemnation. If any action or proceeding is commenced for the condemnation of the Property or any portion thereof, or if Landlord
is advised in writing by any government (federal, state or local) agency or department or bureau thereof, or any entity or body having
the right or power of condemnation, of its intention to condemn all or any portion of the Property at the time thereof, or if the Property
or any part or portion thereof be condemned through such action, then and in any of such events Landlord may, without any obligation or
liability to Tenant, and without affecting the validity and existence of this Lease other than as hereafter expressly provided, agree
to sell and/or convey to the condemnor, without first requiring that any action or proceeding be instituted, or if such action or proceeding
shall have been instituted, without requiring any trial or hearing thereof, and Landlord is expressly empowered to stipulate to judgment
therein, the part and portion of the Property sought by the condemnor, free from this Lease and the rights of Tenant hereunder. Tenant
shall have no claim against Landlord nor be entitled to any part or portion of the amount that may be paid or awarded as a result of the
sale, for the reasons as aforesaid, or condemnation of the Property or any part or portion thereof, except that Tenant shall be entitled
to recover from the condemnor and Landlord shall have no claim therefore or thereto for Tenant’s relocation costs, loss of goodwill,
for Tenant’s trade fixtures, any removable structures and improvements erected and made by Tenant to or upon the Property which
Tenant is or may be entitled to remove at the expiration of this Lease and Tenant’s leasehold estate hereunder.
20.3 Effect
on Lease. If the entire Property is condemned, this Lease shall terminate as of the earlier of such taking or loss of possession.
If only a part of the Property is condemned and taken and the remaining portion thereof is in Tenant’s reasonable discretion not
suitable for purposes for which Tenant has leased the Property, either Landlord or Tenant shall have the option to terminate this Lease
effective as of the earlier of such taking or loss of possession. If by such condemnation and taking only a part of the Property is taken,
and the remaining part thereof is in Tenant’s reasonable discretion suitable for the purposes for which Tenant has leased the Property,
this Lease shall continue, but the rental shall be reduced in an amount proportionate to the percentage that the floor area of that portion
of the Property physically taken by eminent domain bears to the floor area of the entire Property.
If a general assignment is
made by Tenant for the benefit of creditors, or any action is taken by Tenant as debtor under any insolvency or bankruptcy act, or if
a receiver is appointed to take possession of all or substantially all of the assets of Tenant (and Tenant fails to terminate such receivership
within ninety (90) days after such appointment), or if any action is taken by a creditor of Tenant against Tenant as debtor under any
insolvency or bankruptcy act, and such action is not dismissed or vacated within forty-five (45) days after the date of such filing, then
this Lease shall terminate at the option of Landlord upon the occurrence of any such contingency and shall expire as fully and completely
as if the day of the occurrence of such contingency was the date specified in this Lease for the expiration thereof. In such event, Tenant
shall then quit and surrender the Property to Landlord.
If Tenant fails to pay any
rent or other sum due hereunder when due, or in the event Tenant breaches the terms of the Side Letter or fails to perform any other covenant
to be performed by Tenant under this Lease and continues to fail to perform the same for a period of five (5) business days after receipt
of written notice from Landlord pertaining thereto (or a reasonable period of time, using due diligence, if any non-monetary default cannot
be cured within such five (5) business days period, not to exceed thirty (30) days (with the exception that, in the event of a default
occurring under Paragraph 8 of this Lease, Tenant shall have a reasonable period to cure such default provided that it promptly
commences such cure, does not commit violations of law in connection with such cure, and works diligently and expeditiously without interruption
to cure such default)), then an “Event of Default” shall be deemed to have occurred. During the continuance of any
Event of Default, Landlord, at its option, without further notice or demand to Tenant, shall have, in addition to all other rights and
remedies provided in this Lease, at law or in equity, the option to pursue any one or more of the following remedies, each and all of
which shall be cumulative and nonexclusive:
A. Landlord
shall have the remedy described in California Civil Code 1951.4, and may continue this Lease in effect by not terminating Tenant’s
right to possession of the Property, and thereby be entitled to enforce all Landlord’s rights and remedies under this Lease, including
the right to recover the Rent specified in this Lease as it becomes due under this Lease; or
B. Landlord
may terminate Tenant’s right to possession of the Property, thereby terminating this Lease, and recover from Tenant:
(i.) The
worth at the time of award of the unpaid Rent which had been earned at the time of termination of the Lease;
(ii.) The
worth at the time of award of the amount by which the unpaid rent which would have been earned after termination of the Lease until the
time of award exceeds the amount of rental loss that Tenant proves could have been reasonably avoided through a reasonable attempt by
Landlord to mitigate its damages;
(iii.) The
worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount
of rental loss that Tenant proves could be reasonably avoided through a reasonable attempt by Landlord to mitigate its damage; and
(iv.) Any
other amount necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform its obligations
under this Lease; or
C. In
lieu of, or in addition to, bringing an action for any or all of the recoveries described in subparagraph B above, bring an action
to recover and regain possession of the Property in the manner provided by the laws of unlawful detainer then in effect in the state where
the Property is located. If Landlord makes any expenditure required of Tenant hereunder, or if Tenant fails to make any payment or expenditure
required of Tenant hereunder, such amount shall be payable by Tenant to Landlord as Rent, and Landlord shall have sole discretion to also
charge, and if charged Tenant shall thereafter pay, interest from the date due at the rate of eighteen percent (18%) per annum, provided
such interest rate shall not exceed the maximum interest rate permitted by law, and Landlord shall have the same remedies as on the default
in payment of Rent. The payment of interest required hereunder shall be in addition to the late charge set forth in Paragraph 3.3.
Notwithstanding any other provisions of this Lease, under no circumstances shall Landlord or Tenant be liable to the other for any consequential
damages arising out of the acts or omissions of Landlord or Tenant or a breach of this Lease by either party.
“Side Letter” means that certain
Letter Agreement dated as of the Commencement Date among Landlord, Tenant, and Guarantor.
On or before the expiration
of the Term, Tenant shall vacate the Property in broom clean condition and otherwise in the same condition as existed on the Commencement
Date, ordinary wear and tear and fire and casualty loss excepted (subject to Paragraph 19), except that any improvements made within
and on the Property by Tenant shall remain, in the same condition and repair as when constructed or installed, reasonable wear and tear
and fire and casualty loss excepted; provided that (A) if Tenant has made any improvements or alterations within or on the Property
without Landlord’s prior written consent (or without other prior written notice to Landlord), then Tenant shall remove any such
improvements on or before the expiration of the Term if Landlord gives written notice to Tenant, at least thirty (30) days before the
expiration of the Term, directing such removal, (B) if Tenant has made any improvements or alterations within or on the Property with
Landlord’s prior written consent (or with other prior written notice to Landlord), then Tenant shall remove any such improvements
on or before the expiration of the Term if Landlord notifies Tenant in writing, at the time Landlord consents to such improvements or
alterations (or within thirty (30) days after Landlord receives other written notice of such improvements or alterations), that such improvements
or alterations must be removed on or before the expiration of the Term, and (C) to the extent that Tenant or Landlord has replaced or
otherwise installed a new roof of the Property (including under Paragraph 26 hereof), Tenant shall restore the roofs to the condition
immediately following such replacement or installation (ordinary wear and tear excepted). In addition, Tenant shall remove from the Property
all of Tenant’s or any of its affiliates’ personal property and trade fixtures (including without limitation any manufacturing
and related machines, equipment, parts, trade fixtures, and inventory) in order that Landlord can repossess the Property on the day this
Lease or any extension hereof expires or is sooner terminated. Any removal of Tenant’s or its affiliates’ improvements, Tenant’s
or its affiliates’ property and/or trade fixtures as identified herein by Tenant shall be accomplished in a manner which will minimize
any damage or injury to the Property, and any such damage or injury shall be repaired by Tenant at its sole cost and expense within the
earlier of (x) thirty (30) days after Tenant vacates or (y) the expiration of the term. Failure to so remove any such items by such deadline
shall result in surrender of such property to Landlord and Landlord may liquidate or remove the same at Tenant’s sole cost and expense.
If Tenant shall not immediately
surrender the Property to Landlord on the expiration date of the Term or earlier termination of this Lease, Tenant’s continued possession
shall be that of a holdover tenant and an unlawful detainer. No holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend the Term of this Lease, create a month-to-month tenancy or affect Landlord’s rights under this Lease. No tenancy
or interest shall result from such holding over, and Tenant shall be subject to immediate eviction and removal. During such period of
holdover, Tenant shall continue to comply with all of the terms and provisions of this Lease, except the monthly Base Rent shall be 150%
of the monthly Base Rent in effect during the last month of the Term. Tenant shall also be liable for, and hereby agrees to indemnify
Landlord again, any and all damages (including, without limitation, consequential damages and lost profits), costs and liabilities sustained
by Landlord as a result of such holdover. If Tenant shall hold over after the expiration date of the Term or earlier termination of this
Lease, and Landlord shall desire to regain possession of the Property, then Landlord may forthwith re-enter and take possession of the
Property by any legal process in force in the State of California.
The voluntary or other surrender
of this Lease by Tenant, or mutual cancellation thereof, shall not work a merger and may, at the option of Landlord, terminate all or
any existing subleases or subtenancies or may operate as an assignment of any or all such subleases or subtenancies to Landlord.
| 26. | TENANT IMPROVEMENT COSTS |
26.1 Subject
to the terms and conditions hereof, Tenant (a) shall (subject to Landlord funding the Category 1 Improvements as and to the extent required
below) cause the completion of the “Category 1 Improvements” (as defined in the “Work Letter” attached
as Exhibit “B”) with Landlord agreeing to fund the first Seven Million Five Hundred Thousand and No/100 Dollars
($7,500,000.00) of costs associated therewith; and (b) may undertake the “Category 2 Improvements” (as defined in the Work
Letter) with Landlord agreeing to fund up to a maximum amount of Four Million Five Hundred Thousand and No/100 Dollars ($4,500,000.00)
in respect thereof; provided, however, that (i) with respect to such Category 1 Improvements, to the extent that Tenant has not commenced
the same within a reasonable period of time following the commencement of the Term, Landlord may commence the same, (ii) with respect
to such Category 2 Improvements, Landlord shall be under no obligation to fund such amounts unless and until Tenant provides evidence
that it has funded Sixty-Six and Two-Thirds percent (66.67%) of the required funding for any applicable Category 2 Improvements prior
to or simultaneous with Landlord’s payment (which Tenant’s funding may have occurred prior to the Effective Date), and (iii)
to the extent that Landlord funds amounts for a Category 1 Improvement in excess of its obligations therefor, the amount (and percentage)
that Landlord must fund in respect of a Category 2 Improvement shall decrease on a dollar for dollar basis (and vice versa), with Tenant
responsible for any additional amounts. The amounts to be funded by Landlord pursuant to this Paragraph 26.1 are referred to as the “Tenant
Improvement Costs”, and shall be funded pursuant to, and subject to all the conditions contained in, the Work Letter. Notwithstanding
anything herein to the contrary, Landlord shall have no obligation to fund (I) any Category 1 Improvements if a Material Default, Bankruptcy
Default, or Event of Default under this Lease then exists and is continuing (but Landlord shall be obligated to fund such Category 1 Improvements,
in accordance with the provisions of this Lease, if any default (other than an Event of Default, Material Default or a Bankruptcy Default)
under this Lease then exists and is continuing and Tenant has provided Landlord notice thereof and the actions that Tenant has taken or
proposes to take with respect thereto), and (II) any Category 2 Improvements if any default or Event of Default (including without limitation
a Material Default or Bankruptcy Default) under this Lease then exists and is continuing; provided, however, that, notwithstanding any
default by Tenant hereunder (including, without limitation, any Material Default) other than a Bankruptcy Default, solely to the extent
that Landlord funding such Category 1 Improvements or Category 2 Improvements would cure such default, Landlord shall be obligated to
cure the same. As used solely in this Paragraph 26.1, (1) “Material Default” means a default by Tenant under this Lease
that (i) would require the expenditure of an amount greater than the then-current amount of monthly Base Rent to cure, or (ii) is a default
by Tenant of its obligation to pay Base Rent or Project Expenses under this Lease, and (2) “Bankruptcy Default” means
(i) the filing of an involuntary bankruptcy petition against Tenant or any legal action is commenced against Tenant which would constitute
a default under Paragraph 21 of the Lease if not dismissed or vacated or (ii) a default by Tenant under Paragraph 21 of this Lease (including,
without limitation, the filing of a voluntary bankruptcy petition by Tenant).
26.2 As security
for the payment and performance of all amounts and obligations of Tenant and Guarantor due Landlord hereunder, Tenant hereby grants to
Landlord a security interest in all of Tenant’s right title, and interest in and to all property acquired by Tenant or otherwise
attached, present or fixed at the Property in respect of or with the use of any Tenant Improvement Costs and any proceeds, products, and
books and records in respect thereof. Tenant agrees that Landlord may file a fixture filing or a UCC-1 financing statement reasonably
describing the collateral to perfect the Landlord’s security interest in the Collateral. Tenant acknowledges that the Tenant Improvement
Costs may constitute future advances and financial accommodations and this Lease may secure payment and performance of the same.
Tenant shall comply with all
reasonable and nondiscriminatory rules and regulations now or hereinafter adopted by Landlord during the existence of this Lease, both
in regard to the Property, the Buildings as a whole and to the Property herein leased. In the event of any inconsistency between the provisions
of this Lease and the provisions of any such rules and regulations, the provisions of this Lease shall control.
Any notice, request, demand,
instruction or other document or communication required or permitted to be given hereunder shall be in writing addressed to the respective
party as set forth below and may be personally served, sent by facsimile, email, or sent by a nationally recognized overnight courier
or by U.S. Mail, first class, addressed as follows:
|
TO LANDLORD: |
c/o 10701 Idaho Owner, LLC |
|
|
600 California Street, Suite 1100 |
|
|
San Francisco, CA 94014 |
|
|
Attention: Sam Hooker |
|
|
Email: shooker@oceanwestcp.com |
|
|
|
|
|
And to: |
|
|
|
|
|
Maritime Management, LLC |
|
|
One Maritime Plaza, Suite 2100 |
|
|
San Francisco, California 94111 |
|
|
Attention: Nicholas Carbone |
|
|
Email: ncarbone@faralloncapital.com |
|
|
|
|
with a copy to: |
Holland & Knight LLP |
|
|
1801 California Street, Suite 5000 |
|
|
Denver, CO 80202 |
|
|
Attention: Keith N. Sambur |
|
|
Email: keith.sambur@hklaw.com |
|
|
|
|
TO TENANT: |
Faraday&Future Inc. |
|
|
18455 S. Figueroa St. |
|
|
Gardena, CA 90248 |
|
|
Attention: Jonathan Maroko, CFO |
|
|
Email: jonathan.maroko@ff.com |
|
with a copy to: |
Faraday&Future Inc. |
|
|
18455 S. Figueroa St. |
|
|
Gardena, CA 90248 |
|
|
Attention: Legal |
|
|
Email: Legal@ff.com |
Any party may change their
notice or email address and/or facsimile number by giving written notice thereof in accordance with this Paragraph. All notices hereunder
shall be deemed given: (1) if served in person, when served; (2) if sent by facsimile or email, on the date of transmission if before
6:00 p.m. P.S.T.; provided that a hard copy of such notice is also sent by either a nationally recognized overnight courier or by U.S.
Mail, first class; (3) if by overnight courier, by a nationally recognized courier which has a system of providing evidence of delivery,
on the first business day after delivery to the courier; or (4) if by U.S. Mail, on the third day after deposit in the mail, postage prepaid,
certified mail, return receipt requested.
| 29. | ASSIGNMENT AND SUBLETTING |
29.1 No
Assignment. Tenant shall not directly or indirectly, voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise
transfer or hypothecate all or any part of the Property or Tenant’s leasehold estate hereunder (collectively, “Assignment”),
or permit the Property to be occupied by anyone other than Tenant (including Tenant’s employees, affiliates, agents, contractors
and invitees) or sublet the Property (collectively, “Sublease”) or any portion thereof without Landlord’s prior
written consent in its sole and absolute discretion in each instance, provided that Landlord’s consent may not be unreasonably withheld,
conditioned or delayed by Landlord with respect to (i) an Assignment to an assignee that is a public reporting company with a market-capitalization
of such assignee and its guarantor (if applicable) (as reasonably determined by Landlord) of not less than the greater of (a) the market-capitalization
(as reasonably determined by Landlord) of Guarantor and Tenant (but without duplication) as of the date of the request for an Assignment
(provided, that Tenant shall be obligated to provide Landlord with evidence, on the date prior to the Assignment, that the foregoing test
is satisfied), and (b) One Hundred Million and No/100 Dollars ($100,000,000.00), or (ii) an Assignment to an assignee that is not a public
reporting company with an aggregate tangible net worth of such assignee and its guarantor (if applicable) (as determined by Landlord in
accordance with GAAP) of not less than the greater of (a) the aggregate tangible net worth (as determined by Landlord in accordance with
GAAP) of Guarantor and Tenant (but without duplication) as of the date of the request for an Assignment (provided, that Tenant shall be
obligated to provide Landlord with evidence, on the date prior to the Assignment, that the foregoing test is satisfied), and (b) One Hundred
Million and No/100 Dollars ($100,000,000.00). Notwithstanding the foregoing, Tenant may engage in the following transfers (each, a “Permitted
Transfer” and any such transferee a “Permitted Transferee”): (i) an Assignment, Sublease or other transfer
to a direct or indirect wholly-owned subsidiary of Guarantor (so long as Guarantor reaffirms its guaranty), (ii) a transfer of a majority
of the interests in the capital stock of Tenant (whether direct or indirect), (iii) a purchase, merger, consolidation or reorganization
of Tenant (other than a reorganization following, effectuated under or in connection with a proceeding that would otherwise constitute
a breach of Paragraph 21 hereof), or (iv) a sale of all or substantially all of Tenant’s assets, provided, however, that
in each case, Tenant shall be required to provide Landlord prompt written notice of the foregoing.
29.2 No
Relief of Obligations. No consent by Landlord to any Assignment or Sublease by Tenant shall relieve Tenant of any obligation to be
performed by Tenant under this Lease, whether arising before or after the Assignment or Sublease. The consent by Landlord to any Assignment
or Sublease shall not relieve Tenant of the obligation to obtain Landlord’s express written consent to any other Assignment or Sublease.
Any Assignment or Sublease that is not in compliance with this Paragraph 29 shall be void and, at the option of Landlord, shall
constitute a material default by Tenant under this Lease. The acceptance of Rent by Landlord from a proposed assignee or sublessee shall
not constitute the consent by Landlord to such Assignment or Sublease.
In the event of any legal
or equitable action arising out of this Lease, the prevailing party shall be entitled to recover all reasonable fees, costs and expenses,
together with reasonable attorneys’ fees incurred in connection with such action. The fees, costs and expenses so recovered shall
include those incurred in prosecuting or defending any appeal. The prevailing party shall also be entitled to reasonable attorneys’
fees incurred to collect or enforce any judgment.
31.1 Landlord.
Should Landlord, without fault on Landlord’s part, be made a party to any litigation instituted by or against Tenant, or by or against
any person holding the Property by license of Tenant, or for foreclosure of any lien for labor or material furnished to or for Tenant,
or any such person, or otherwise arising out of or resulting from any act or transaction of Tenant, or of any such person, Tenant covenants
to pay to Landlord, the amount of any judgment rendered against Landlord or the Property or any part thereof, and all reasonable costs
and expenses, including reasonable out-of-pocket attorneys’ fees incurred by Landlord in connection with such litigation.
31.2 Tenant.
Should Tenant, without fault on Tenant’s part, be made a party to any litigation instituted by or against Landlord, or by or against
any person holding the Property by license of Landlord, or for foreclosure of any lien for labor or material furnished to or for Landlord,
or any such person, or otherwise arising out of or resulting from any act or transaction of Landlord, or of any such person, Landlord
covenants to pay to Tenant, the amount of any judgment rendered against Tenant or the Property or any part thereof, and all reasonable
costs and expenses, including reasonable out-of-pocket attorney’s fees incurred by Tenant in connection with such litigation.
Tenant represents and warrants
to Landlord that, other than RDO Investments, Tenant has not engaged or been represented by any real estate broker in connection with
this Lease. Landlord represents and warrants to Tenant that, other than Jennifer Stein Real Estate, Inc., in association with Bear Real
Estate Advisors, Landlord has not engaged or been represented by any real estate broker in connection with this Lease. Each of Tenant
and Landlord shall indemnify and hold the other harmless from and against any brokerage fee, broker’s commission or finder’s
fee which may be claimed by any person or broker with respect to this transaction as a result of its breach of the foregoing representation.
Each party shall be responsible for payment for its respective broker pursuant to a separate written agreement.
| 33. | SUBORDINATION OF LEASE |
Subject to Tenant’s
receipt of an SNDA (as hereinafter defined), this Lease shall be subject and subordinate to any mortgages which may now or hereafter be
placed upon or affect the Property or Buildings, and to all renewals, modifications, consolidations, replacements and extensions hereof,
provided that the holder(s) of such mortgage(s) shall agree in writing not to disturb the possession of the Property by Tenant or the
rights of Tenant under this Lease and shall recognize Tenant’s Purchase Option, ROFO, rent abatement rights, SD Application rights,
and rights to Tenant Improvement Costs, so long as there is no Event of Default occurring and then continuing and, in the event of foreclosure,
Tenant agrees to look solely to the mortgagee’s interest in the Property for the payment and discharge of any obligations imposed
upon the mortgagee or Landlord under this Lease, and otherwise on commercially reasonable terms (“SNDA”). In the event
that a Successor Landlord (as hereinafter defined) takes title to the Property, (i) Successor Landlord shall be bound to Tenant under
all of the terms and conditions of this Lease, (ii) Tenant shall recognize and attorn to Successor Landlord as Tenant’s direct landlord
under this Lease, and (iii) this Lease shall continue in full force and effect, in accordance with its terms, as a direct lease between
Successor Landlord and Tenant. For purposes of this Paragraph 33, “Successor Landlord” shall mean any party
that becomes owner of the Property as the result of a (i) foreclosure under any mortgage or deed of trust; (ii) any other exercise by
a lender of rights and remedies (whether under any security instrument or under applicable law, including bankruptcy law) as a result
of which such lender becomes owner of the Property; or (iii) delivery by Landlord to any lender (or its designee or nominee) of a deed
or other conveyance of Landlord’s interest in the Property in lieu of any of the foregoing.
34.1 Extension
Option. Landlord hereby grants to Tenant one (1) option to extend (“Option to Extend”) the Term of this Lease for
an additional five (5) year term (“Option Term”), upon each and all of the terms and conditions of this Lease as amended
below; provided, however, that no Event of Default has occurred and is then continuing hereunder on the date of exercise of the Option
to Extend. Tenant shall (a) give to Landlord written notice (“Extension Notice”) on or prior to twelve (12) months
before expiration of the then current Term of the exercise of the Option to Extend for an Option Term, time being of the essence, and
(b) simultaneously with the Extension Notice, pay to Landlord an amount equal to Twelve Million and No/100 Dollars ($12,000,000.00) (the
“Extension Payment”). If Tenant fails to make the Extension Payment, Tenant will be deemed to have failed to give an
Extension Notice. The Term, as defined in Paragraph 2 hereof, shall also include the Option to Extend properly exercised hereunder.
If notice of exercise of any Option to Extend is not timely given, Tenant may not give another notice of exercise of an Option to Extend,
and Tenant shall have no right to extend the Term. The rent for the each Option Term shall consist of Base Rent, Project Expenses pursuant
to Paragraph 5, and any other charges under this Lease. Base Rent during the first (1st) Lease Year of the Option Term shall equal
the greater of (a) the Fair Market Rental Rate and (b) one hundred three percent (103%) of the Base Rent applicable during the immediately
preceding Lease Year. The Base Rent during the Option Term shall increase by three percent (3%) each Lease Year. The Option to Extend
is personal to Tenant (except to any assignee approved in writing by Lender, or to any Permitted Transferee) and may not be assigned without
Landlord’s written consent which may be withheld in its sole discretion.
34.2 Fair
Market Rental Rate. “Fair Market Rental Rate” shall be the dollar amount per square foot, projected during the
Option Term that a willing, non-equity renewal tenant (excluding sublease and assignment transactions) would pay, and a willing, institutional
landlord of a comparable industrial buildings located in the counties of King, Stanislaus, Tulare, Kern and San Joaquin, CA (the “Comparison
Area”) would accept, in an arm’s length transaction, for space of comparable size, quality, condition and use of the Property,
taking into account the age, quality and layout of the existing improvements in the Property, and taking into account items that professional
real estate brokers or professional real estate appraisers customarily consider, including, but not limited to, rental rates, space availability,
tenant improvement allowances, parking charges and any other lease considerations, if any, then being charged or granted by Landlord or
the lessors of such similar properties.
34.3 Determination
of Fair Market Rental Rate. Landlord shall provide written notice of Landlord’s determination of the Fair Market Rental Rate
(“Landlord Rent Notice”) not later than thirty (30) days following Landlord’s receipt of Tenant’s Extension
Notice. Tenant shall have ten (10) business days after receipt of Landlord’s notice of the fair market rental rate within which
to accept or reject such fair market rental rate by delivering written notice (“Tenant Rent Response Notice”) thereof
to Landlord. The last day of such 10-business day period shall be referred herein as the “Objection Date”. Tenant’s
failure to deliver the Tenant Rent Response Notice on or before the Objection Date shall be deemed to constitute Tenant’s acceptance
of the Fair Market Rental Rate set forth in the Landlord Rent Notice. If Tenant timely objects in the Tenant Rent Response Notice to Landlord’s
Fair Market Rental Rate, Landlord and Tenant shall attempt in good faith to agree upon the Fair Market Rental Rate. If Landlord and Tenant
fail to reach agreement within twenty-one (21) days following the delivery of the Tenant Rent Response Notice (“Outside
Agreement Date”), then Tenant shall make its separate determination of the Fair Market Rental Rate which shall be submitted
to Landlord and the parties shall submit to arbitration as follows:
A. Landlord
and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current
real estate broker or appraiser of comparable commercial properties in the vicinity of the Property, and who has been active in such field
over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s
or Tenant’s submitted fair market rental rate is the closest to the actual fair market rental rate as determined by the arbitrators,
taking into account the requirements of Paragraph 34.2 above (i.e., the arbitrators may only select Landlord’s
or Tenant’s determination of the Fair Market Rental Rate and shall not be entitled to make a compromise determination).
B. The
two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator
agree upon and appoint a third (3rd) arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification
of the initial two (2) arbitrators.
C. The
three (3) arbitrators shall within fifteen (15) days of the appointment of the third (3rd) arbitrator reach a decision as to whether the
parties shall use Landlord’s or Tenant’s submitted Fair Market Rental Rate, and shall notify Landlord and Tenant thereof.
The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Fair
Market Rental Rate is the closest to the actual Fair Market Rental Rate, taking into account the requirements of Paragraph 34.2
above (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of the Fair Market Rental Rate and shall
not be entitled to make a compromise determination).
D. The
decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
E. If
either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator
appointed by one (1) of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall
be binding upon Landlord and Tenant.
F. If
the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator,
then the appointment of the third (3rd) arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith
submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this
Paragraph 34.
G. Landlord
and Tenant shall each be responsible for the cost of the arbitrator that they each individually appoint. The cost of the third arbitrator
shall be paid by the party whose submitted Fair Market Rental Rate is not selected by a majority of the arbitrators pursuant to this Paragraph
34 above.
35.1 Estoppel
Certificate. Tenant shall, at any time and from time to time, upon not less than ten (10) business days’ prior request by Landlord,
execute, acknowledge and deliver to Landlord, or to such other persons who may be designated in such request, a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications) and, if so, the dates to which the rent and any other charges have been paid in advance, and
such other items requested by Landlord, including without limitation, the lease commencement date and expiration date, rent amounts, and
that no defaults, offsets or counterclaims are present. It is intended that any such statement delivered pursuant to this Paragraph may
be relied upon by any prospective lender, purchaser or encumbrancer (including assignee) of the Property. Landlord shall, not more than
once per calendar month, deliver to Tenant a statement in writing (which may come in email form) stating Landlord’s best estimate
of the Purchase Price (as defined in Paragraph 38.2 below).
35.2 Financial
Statements. If Landlord desires to finance, refinance, or sell the Buildings, or the Property, or any part thereof, Tenant shall deliver
to Landlord, or to such potential lender or purchaser designated by Landlord, within fifteen (15) days after Landlord’s request
(but in no event more than two times per calendar year), such available financial information regarding Tenant which Tenant then has in
its possession or control, as may reasonably be required to establish Tenant’s creditworthiness. All financial information provided
by Tenant to Landlord or any lender or potential purchaser shall be held by the recipient in strict confidence, using the same degree
of care that Landlord uses to protect its own confidential information, but in no event using a standard less than reasonable care, and
may not be used or disclosed by the recipient except for the purpose of determining Tenant’s creditworthiness in connection with
Tenant’s obligations under this Lease. For the avoidance of doubt, Tenant shall be deemed to have satisfied all the requirements
of this Paragraph 35.2 so long as either Tenant or Guarantor is a public reporting company and has timely made all required financial
disclosures.
Tenant and Landlord agree
to execute, deliver and acknowledge, concurrently with the execution of this Lease, a short form of this Lease, provided that such short
form of Lease accurately reflects the terms of this Lease (including, but not limited to, the Purchase Option and the ROFO), and Tenant
and Landlord shall record such short form in the County where the Property is located.
Tenant may install reasonable
exterior signs on the Property in compliance with all applicable laws and regulations, at Tenant’s sole expense. The installation
of any sign on the Property by or for Tenant shall be subject to the provisions of Paragraph 23. Tenant shall maintain any such
signs installed on the Property.
| 38. | OPTION TO PURCHASE PROPERTY |
38.1 Purchase
Option.
At any time following two
(2) years from the Commencement Date, Tenant shall have the right to exercise an option to purchase the Property and related personal
property (including all Tenant Improvements) (“Purchase Option”) for an amount equal to the Purchase Price (as defined
in Paragraph 38.2). Tenant’s purchase of the Property shall be upon and subject to the terms as set forth in this Paragraph
38 and subject to such other reasonable terms agreed to between Landlord and Tenant. The Purchase Option shall be exercised by Tenant,
if at all, in the following manner: (i) provided that no Event of Default has occurred and is then continuing hereunder on the delivery
date of the Purchase Option Notice (as defined below), and (ii) Tenant shall deliver to Landlord: (a) written notice (“Purchase
Option Notice”) stating that Tenant desires to exercise the Purchase Option, and (b) concurrently with delivery of the Purchase
Option Notice, Tenant shall deliver an earnest money deposit of $500,000 (the “Deposit”), which Tenant shall place
into escrow with an Escrow Holder (defined in Paragraph 38.4 below). Thereafter, Tenant (as “Buyer”) and Landlord
(as “Seller”) shall enter into a purchase and sale agreement in form substantially similar to the purchase agreement
set forth in Exhibit E attached hereto and made a part hereof (“Purchase Agreement”). With respect to
the Purchase Option, the close of escrow (“Closing”) shall occur no later than forty-five days following the Purchase
Option Notice. Until the sale of the Property closes, this Lease shall remain in full force and effect according to the terms hereof.
Upon Closing, this Lease shall automatically terminate without any further action by the parties. The rights granted in this Paragraph
38 and the Purchase Option are assignable by Tenant (provided that entering into a transaction with the proposed assignee is cannot
be expected to expose Landlord to a violation of applicable law). Tenant’s failure to deliver the Purchase Option Notice on or before
the last day of the Lease Term shall be deemed to constitute Tenant’s election not to exercise the Purchase Option. In no event,
shall the Closing occur following the end of the Lease Term. The Purchase Option shall remain in full force and effect in the event of
any foreclosure, any sale in connection with any foreclosure, or any similar remedy exercised by any lender or mortgagee of Landlord,
or in the event of any sale or transfer of the Property by Landlord.
38.2 Purchase
of the Property.
The purchase price of the
Property (“Purchase Price”) shall mean an amount equal to the greater of: (X) the amount that would result
in the Required IRR (as hereinafter defined), and (Y) an amount equal to one hundred and fifty percent (150%) of the Lease Consideration
(as hereinafter defined). Notwithstanding the foregoing, if Tenant has timely and properly exercised its Extension Option pursuant to
Paragraph 34 prior to its exercise of the Purchase Option, the Purchase Price shall be reduced by an amount equal to the Extension
Payment paid to Landlord by Tenant.
38.3 Definitions.
As used herein:
A. “Internal
Rate of Return” means, as of any date, the discount rate, using semi-annual compounding, at which the net present value of the
Lease Consideration provided by Landlord, and all applicable payments received by Landlord from Tenant (including without limitation,
all Rent and the Purchase Price), equals zero. Each applicable item of Lease Consideration from Landlord shall be an “outflow”
as of the date such item of Lease Consideration was provided and each applicable payment actually made from the Tenant to Landlord shall
be an “inflow” as of the date such distribution or payment is received in good funds by Landlord. Internal Rate of Return
shall be calculated on the basis of the actual number of days elapsed over a 365 or 366 day year, as the case may be. For the avoidance
of doubt, it is acknowledged that Landlord will not have received a positive Internal Rate of Return until such time as the aggregate
applicable payments actually received by Landlord from the Tenant exceed the aggregate applicable Lease Consideration provided by Landlord.
The Internal Rate of Return for Landlord shall be calculated by Landlord in good faith in a manner consistent with this Lease and using
the latest version of Microsoft Excel electronic spreadsheet XIRR Financial Function (or an equivalent program used by Landlord or its
Affiliates generally with respect to their real estate investments), and such calculation shall be conclusive absent manifest error. It
is acknowledged that the XIRR function generates an effective annual rate; thus, if the stated annual target IRR is r, compounded semi-annually,
then the monthly target IRR is r/2, compounded semi-annually, and the target IRR rate that must be achieved under the XIRR calculation
is the effective annual rate, namely (1 + r/2)^2-1. Amounts paid by Tenant on account of late payment fees pursuant to Paragraph 3.3
or expenditures incurred by Landlord and charges therein in accordance with Paragraph 22C. shall not be taken into account as outflows
or inflows in calculating Internal Rate of Return.
B. “Lease
Consideration” means an amount equal to the sum of: (A) $23,500,000 (base purchase price of Property) plus $45,000 plus $625,000
plus $754,974.71 (abatement value) or the purchase price for the Property paid by the then applicable Landlord, plus (B) the amount of
all Tenant Improvement Costs actually funded by Landlord (or by the then applicable Landlord) at the time of the exercise of the Purchase
Option (but without duplication for the amount of any Tenant Improvement Costs reflected in the purchase price for the Property by any
subsequent Landlord), plus (C) all remaining amounts then due and payable by Tenant under this Lease at the time of the exercise of the
Purchase Option, plus (D) all amounts expended by Landlord (or any subsequent Landlord, as applicable) on account of any default or failure
by Tenant to perform any obligations under this Lease which have not been repaid by Tenant in accordance with Paragraph 22C. (regardless
of whether Landlord has waived Tenant’s repayment obligation), plus (E) all amounts paid by Landlord upon acquisition of the Property
(including amounts funded for Tenant’s benefit, the Security Deposit, and all other closing costs of Landlord or Tenant paid by
Landlord) as shown on the settlement statement for the acquisition of the Property or as otherwise agreed upon by Tenant and Landlord
in writing within ten (10) Business Days of the date hereof.
C. “Required
IRR” shall mean an Internal Rate of Return equal to twenty percent (20%) per annum.
38.4 Escrow
and Closing Procedure. Escrow will be opened with First American Title Company, Los Angeles (“Escrow Holder”).
The Deposit shall be held by Escrow Holder in an interest-bearing account insured by the federal government in an institution as directed
by Landlord. If the purchase and sale of the Property is consummated as contemplated hereunder, the Deposit plus all interest accrued
thereon shall be paid to Landlord and credited against the Purchase Price. If the purchase and sale of the Property is not consummated
because of any reason except solely for a default under this Lease on the part of Buyer, then the Deposit (but no interest accrued thereon)
shall be immediately refunded to Buyer. If the purchase and sale of the Property is not consummated solely because of a default by Buyer
under the purchase and sale agreement, then the Deposit plus all interest accrued thereon shall be paid to and retained by Seller and,
to the extent that the forfeiture of such Deposit is insufficient to compensate Seller for any reasonable out of pocket costs and expenses
incurred in connection with the proposed purchase, Buyer shall indemnify Seller for the same. Buyer shall deposit the balance of the Purchase
Price in cash with Escrow Holder at least two (2) business days prior to the Closing. Buyer and Seller shall execute a purchase and sale
agreement within a timely manner, as time is of the essence.
38.4.1. Title
to the Property will be conveyed to Buyer by grant deed on close of escrow subject to matters of title approved by Buyer. Title shall
be conveyed subject to no monetary liens except for the payment of non-delinquent real property taxes. Title insurance shall be provided
by First American Title Company, Los Angeles. All closing costs, transfer taxes, title insurance policy costs, commissions, recording
fees and the like shall be paid by Buyer.
38.4.2. Buyer
is purchasing property “AS-IS”. Any investigation of the Property prior to the exercise of the Purchase Option will be conducted
at Buyer’s sole expense. Buyer may request prior to Buyer’s exercise of the Purchase Option but Seller shall not be obligated
to provide to Buyer until after Seller’s receipt of Buyer’s Purchase Option Notice, and to the extent in Seller’s possession,
the following: one (1) set of copies of documents relating to the Property, including any maintenance records, prior soils and engineering
reports, Certificate of Occupancy, final inspection card, and property improvement plans to the extent any such documents are in Seller’s
possession. If Landlord delivers any such reports or Property information, it shall be without any representation or warranty by Landlord
as to accuracy or completeness. Buyer shall indemnify Seller and its agents, etc. from and against all claims, actions, losses, liabilities,
damages, costs and expenses (including, but not limited to, attorneys’ fees and costs) incurred, suffered by, or claimed against
the Seller, etc. or any of them, by reason of any reliance on any information contained in the reports, damage to the Property or injury
to persons caused by Buyer and/or its agents, representatives or consultants in investigating the Property. The foregoing provisions shall
survive the Closing or any termination of the purchase and sale agreement.
38.4.3. The
parties shall represent and warrant that neither party has incurred any obligations for each real estate broker’s commissions, finder’s
fees or any similar fees in connection with the transaction contemplated by the sale of the Property except for a commission, if any,
due pursuant to a separate commission agreement. If any person asserts a claim for commission or finder’s fee based upon any contact
or dealings with Buyer or Seller, the party through whom that person makes his claim will indemnify, hold harmless and defend that other
party from such claim and all expenses, including reasonable attorneys’ fees, incurred by the other party in defending the claim.
38.4.4. The
parties agree to cooperate with each other in accomplishing a tax-deferred exchange for either party under Section 1031 of the Internal
Revenue Code, which shall include the signing of reasonably necessary exchange documents; provided, however, that (i) neither party shall
incur any additional liability or financial obligations as a consequence of such exchange, (ii) such exchange shall not delay the Closing,
and (iii) neither party shall be required to take title to any property as part of an exchange other than Buyer receiving title to the
subject property herein.
39.1 ROFO
Purchase. Tenant shall have a right of first offer to purchase the Property from Landlord (“ROFO”), upon the terms
and conditions in this Paragraph 39.1. In the event that, Landlord intends to sell the Property, Landlord shall deliver a written
notice to Tenant (“Sale Initiation Notice”), which shall set forth the price at which Landlord desires to sell the
Property. Tenant shall have the right to exercise its ROFO by performing both of the following: (i) Tenant shall provide Landlord with
written notice (“ROFO Acceptance Notice”), no later than ten (10) business days after Tenant’s receipt of the
Sale Initiation Notice, indicating that Tenant agrees to purchase the Property at the price and pursuant to all the terms set forth in
the Sale Initiation Notice; and (ii) Tenant and Landlord shall negotiate in good faith to enter into a Purchase Agreement within thirty
(30) days after the delivery of the ROFO Acceptance Notice, which Purchase Agreement shall be generally on the terms and conditions set
forth in Paragraph 38, as applicable and modified to reflect the terms of the Sale Initiation Notice. The Purchase Agreement shall
describe the purchase price, the deposit, contingencies and contingency periods, and the other terms and conditions applicable to Tenant’s
purchase of the Property (as described in the Sale Initiation Notice or as otherwise agreed to between Landlord and Tenant). Time is of
the essence with regard to Tenant’s obligations hereunder. Accordingly, if Landlord does not timely receive the ROFO Acceptance
Notice or the Purchase Agreement within the applicable time periods set forth herein, then Landlord shall have the right to sell the Property
provided that (i) such sale is to a third party unaffiliated with Landlord, (ii) such sale is consummated within twelve (12) months after
the outside date that Tenant fails to send the ROFO Acceptance Notice or fails to enter into the Purchase Agreement, and (iii) such sale
is for a purchase price (taking into account both cash and non-cash consideration) no less than ninety-five (95%) of the price offered
to Tenant in the Sale Initiation Notice. Tenant shall not have the right to exercise its ROFO if an Event of Default has occurred and
is then continuing hereunder on the date of such exercise. The ROFO is personal to Tenant (and to any assignee approved in writing by
Lender, or to any Permitted Transferee) and may not be assigned without Landlord’s written consent, which consent shall not be unreasonably
withheld, conditioned or delayed following identification of the proposed assignee so long as entering into a transaction with the proposed
assignee could not reasonably be expected to expose Landlord to a violation of applicable law). The ROFO shall not apply in the event
of any foreclosure, any sale in connection with any foreclosure, or any similar remedy exercised by any lender or mortgagee of Landlord,
or in the event of any sale or transfer of the Property to an affiliate of Landlord.
In discharging its duties
and obligations hereunder (other than monetary obligations), Landlord and Tenant shall be held to a standard of reasonableness and shall
not be liable to the other party for matters outside its control, including, but not limited to, acts of God, civil riot, war, strikes,
labor unrest, pandemics or other public health emergencies, or shortage of material (“Force Majeure Event”), provided
that such party provides prompt written notice to the other party in the event it becomes aware of any Force Majeure Event and works in
good faith to cure such Force Majeure Event to the extent reasonably possible. Landlord or Tenant (as applicable) shall also be required
to promptly resume performance upon the cessation of any Force Majeure Event, and provided that with respect to any of Tenant’s
duties and obligations hereunder (other than monetary obligations), this provision shall not excuse such duty or obligation for more than
ninety (90) days. In no event shall either party be liable to the other for incidental damages, including, but not limited to, loss of
business or business interruption.
41.1 Waiver
of Jury Trial; Governing Law; Venue. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY TO THIS LEASE HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LEASE OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THIS LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA. THE PARTIES HERETO AGREE THAT VENUE SHALL BE PROPER IN ANY
STATE OR FEDERAL COURT LOCATED WITHIN, OR HAVING JURISDICTION OVER, KINGS COUNTY, CALIFORNIA.
41.2 Waiver.
The waiver by either party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition contained herein. The acceptance of rent hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, condition or covenant of this Lease.
41.3 Remedies
Cumulative. It is understood and agreed that the remedies herein given to each party shall be cumulative, and the exercise of any
one remedy of a party shall not be to the exclusion of any other remedy.
41.4 Successors
and Assigns. The covenants and conditions herein contained shall, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of all of the parties hereto; if Landlord or Tenant is comprised of multiple
parties, each of such parties hereto shall be jointly and severally liable hereunder.
41.5 No
Personal Liability. No individual member, manager, manager of a member, partner, shareholder, director, officer, employee, trustee,
investment advisor, consultant or agent of Landlord or Tenant, respectively, or individual member of a joint venture, tenancy in common,
firm, limited liability company or partnership (general or limited), which constitutes Landlord or Tenant, respectively, or any successor
interest thereof, shall be subject to personal liability with respect to any of the covenants or conditions of this Lease. Tenant shall
look solely to the equity of Landlord in the Property or to the proceeds on any insurance policy that Landlord holds with respect to the
Property and to no other assets of Landlord for the satisfaction of any remedies of Tenant in the event of any breach by Landlord. It
is mutually agreed by Tenant and Landlord that this paragraph is and shall be deemed to be a material and integral part of this Lease.
All obligations of Landlord shall be binding upon Landlord only during the period of Landlord’s ownership of the Property and not
thereafter.
41.6 Entire
Agreement. This Lease, the Work Letter, the schedules and exhibits referred to herein and therein, and any addendum executed concurrently
herewith, are the final, complete and exclusive agreement between the parties and cover in full each and every agreement of every kind
or nature, whatsoever, concerning the Property and all preliminary negotiations and agreements of whatsoever kind or nature, are merged
herein. Landlord has made no representations or promises whatsoever with respect to the Property, except those contained herein, and no
other person, firm or corporation has at any time had any authority from Landlord to make any representations or promises on behalf of
Landlord, and Tenant expressly agrees that if any such representations or promises have been made by others, Tenant hereby waives all
right to rely thereon. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statute, law or custom
to the contrary notwithstanding. Unless otherwise provided herein, no supplement, modification, or amendment of this Lease shall be binding
unless executed in writing by the parties.
41.7 Captions.
The captions of paragraphs of this Lease are for convenience only, and do not in any way limit or amplify the terms and provisions of
this Lease.
41.8 Partial
Invalidity. If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
41.9 Authority.
The person(s) executing this Lease warrants that he or she has the authority to execute this Lease and has obtained or has the requisite
corporate or other authority to do the same.
41.10 Approvals.
Any consent or approval required hereunder shall not be unreasonably withheld, conditioned or delayed by the party from whom such consent
or approval is requested unless this Lease expressly provides otherwise.
41.11 Counterparts
and Electronic Signatures. This Lease may be executed in any number of counterparts, each of which so executed shall be deemed to
be an original, and such counterparts shall together constitute but one and the same Lease. The parties shall be entitled to sign and
transmit an electronic signature of this Lease (whether by facsimile, PDF or other email transmission), which signature shall be binding
on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver to the
other parties an original signed Lease upon request.
41.12 Intentionally
Omitted.
41.13 OFAC
Certification. Tenant represents and warrants to Landlord that neither Tenant nor any person or entity that owns or controls, is owned
or controlled by or is under common ownership or control with Tenant, and Landlord represents and warrants to Tenant that neither Landlord
nor any person or entity that owns or controls, is owned or controlled by or is under common ownership or control with Landlord: (a) is
listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, Department of
the Treasury pursuant to Executive Order No. 13224, 66 Federal Register 49079 (September 25, 2001) or (b) has been convicted, pleaded
nolo contendere, indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering.
41.14 Certified
Access Specialist (CASp). Landlord states that the Property has not been inspected by a Certified Access Specialist (CASp). Pursuant
to California Civil Code Section 1983, “a Certified Access Specialist” (“CASp”) can inspect the Property
and determine whether the Property complies with all of the applicable construction-related accessibility standards under state law. Although
state law does not require a CASp inspection of the Property, the commercial property owner or lessor may not prohibit the lessee or tenant
from obtaining a CASp inspection of the Property for the occupancy or potential occupancy of the lessee or tenant, if requested by the
lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of
the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility
standards within the Property.
[Signatures contained on the following page]
In WITNESS WHEREOF, the parties
hereto have executed this Lease Agreement in duplicate as of the day and year first above written.
LANDLORD: |
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10701 IDAHO OWNER, LLC, |
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a Delaware limited liability company |
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By: |
Hanford REIT Associates, LLC, |
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a Delaware limited liability company |
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its sole member |
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By: |
Hanford REIT Investors, LLC, |
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a Delaware limited liability company |
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its managing member |
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By: |
Maritime Management, LLC, |
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a Delaware limited liability company, |
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its Manager |
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By: |
/s/ Richard B. Fried |
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Name: |
Richard B. Fried |
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Title: |
Authorized Signatory |
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[Signature Pages Continue on Next Page]
TENANT:
FARADAY&FUTURE INC.,
a California corporation
By: |
/s/
Matthias Aydt |
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Name: |
Matthias Aydt |
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Title: |
Executive Chairperson |
|
EXHIBIT “A”
PROPERTY
The Land referred to herein below is situated in the City of Hanford,
County of Kings, State of California, and is described as follows:
PARCEL 2 OF PARCEL MAP, IN THE CITY OF HANFORD, COUNTY OF KINGS, STATE
OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED DECEMBER 13, 2006 IN BOOK 18, PAGE 32 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM 1/2 OF ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES
IN, UPON OR UNDER SAID LAND, AS RESERVED IN THE DEED FROM JOHN A. BENNINGER, ADMINISTRATION, DATED DECEMBER 17, 1943 AND RECORDED DECEMBER
21, 1943 IN BOOK 299, PAGE 162 OF OFFICIAL RECORDS, SUBJECT TO THE RESTRICTIONS AND PROVISIONS AGAINST SURFACE AND SUBSURFACE USE BY THE
THEN OWNERS THEREOF WHICH ARE CONTAINED IN THOSE CERTAIN QUITCLAIM DEEDS FROM SAID OWNERS RECORDED MAY 18, 1960 IN BOOK 759 AT PAGE 249
OF OFFICIAL RECORDS AND JUNE 10, 1960 IN BOOK 760 AT PAGE 324 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM AN UNDIVIDED 1/2 INTEREST IN AND TO ALL OIL,
GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY TIME HEREAFTER SITUATE THEREIN AND THEREUNDER AS CONVEYED TO THE CAPITAL COMPANY,
A CORPORATION, ITS SUCCESSORS AND/OR ASSIGNS, BY DEED RECORDED JUNE 10, 1960 IN BOOK 760 AT PAGE 322 OF OFFICIAL RECORDS, SUBJECT TO THE
RESTRICTIONS AND PROVISIONS AGAINST SURFACE AND SUBSURFACE USE BY SAID CAPITAL COMPANY, ITS SUCCESSORS AND/OR ASSIGNS, WHICH ARE CONTAINED
IN SAID DEED.
ALSO EXCEPTING FROM PARCEL 1, AN UNDIVIDED ONE-EIGHTH INTEREST IN AND
TO ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES AS CONVEYED TO AL C. BOINDIGER, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS
TO AN UNDIVIDED ONE-HALF INTEREST, ANDREW FROWSING, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS TO AN UNDIVIDED ONE-QUARTER INTEREST,
AND RICHARD FROWSING, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS TO AN UNDIVIDED ONE-QUARTER INTEREST AS CONVEYED IN GRANT DEED
RECORDED MAY 19, 1997 AS INSTRUMENT NO. 9709501, OFFICIAL RECORDS.
APN 028-030-046-000
EXHIBIT “B”
WORK LETTER
This exhibit (this “Work Letter”)
sets forth the terms and conditions relating to the construction of the tenant improvements on the Property described in Paragraph
26 of the Lease. This Work Letter is essentially organized chronologically and addresses the issues of the construction of the Tenant
Improvements on the Property, in sequence, as such issues will arise during the actual construction of the Tenant Improvements Property.
All references in this Work Letter to Articles, Sections, or Paragraphs of the “Lease” shall mean the relevant portion
of the Lease Agreement to which this Work Letter is attached as Exhibit “B” and of which this Work Letter forms a part, and
all references in this Work Letter to Sections of “this Work Letter” shall mean the relevant portion of this Work Letter.
| 1.1 | Tenant shall have the right, subject to the terms and conditions of this Work Letter, to install certain
“Tenant Improvements” on the Property. |
| 1.2 | The term “Tenant Improvements” shall mean all of the improvements, fixtures and equipment
to be constructed or installed by Tenant pursuant to the Space Plan and the Tenant Work Plans (as defined below). The Tenant Improvements
are divided into the “Category 1 Improvements” and the “Category 2 Improvements”, as each are outlined
on Schedule 1 below. The Category 1 Improvements, together with the roof work designated in the Category 2 Improvements, shall together
be the “Phase I Improvements”. The City Offsite Improvements designated in the Category 2 Improvements shall be the “Phase
II Improvements”. |
| 1.3 | The term “Tenant Work” shall mean all work to be performed in connection with the construction
and installation of the Tenant Improvements. |
| 1.4 | The term “Tenant’s Design Professionals” shall mean such California licensed
architect or engineer as Tenant shall engage to prepare the Tenant Work Plans and such other architects and engineers as shall be directly
or indirectly engaged by Tenant in connection with the Tenant Improvements. |
| 1.5 | All capitalized terms used and not otherwise defined in this Work Letter, but defined in the Lease, shall
have the meanings set forth in the Lease. |
| 2.1 | Right to Construct. Tenant shall have the right to construct the Tenant Improvements on and subject
to the terms and conditions stated in this Work Letter. |
| 2.2 | Approval of Plans and Specifications. |
| 2.2.1 | Prior to full execution of this Lease by both Landlord and Tenant, Tenant has prepared and Landlord has
approved tenant work plans for the Phase I Improvements (“Phase I Tenant Work Plans”) for the construction and installation
of the Category 1 Improvements and a portion of the Category 2 Improvements based upon the Space Plan. Tenant shall prepare tenant work
plans for the remaining Category 2 Improvements (the “Phase II Tenant Work Plans”, and together with the Phase I Tenant Work
Plans, the “Tenant Work Plans”). The Phase II Tenant Work Plans shall include architectural, mechanical and electrical construction
drawings for the Phase II Tenant Work. The Phase II Tenant Work Plans shall: (1) include preliminary locations and dimensions; (2) contain
sufficient content and detail for use to obtain any required building permits and preparation of “shop drawings” (if applicable);
and (3) show all items of such work in reasonable detail (collectively, the “Tenant Building Plan Requirements”). The
Phase II Tenant Work Plans shall be prepared by Tenant’s Design Professionals at Tenant’s sole cost and expense. |
| 2.2.2 | Landlord shall have fifteen (15) business days from its receipt of the Phase II Tenant Work Plans to approve
or disapprove the Phase II Tenant Work Plans so submitted to Landlord, and to notify Tenant of its reasons for withholding approval. If
Landlord disapproves the Phase II Tenant Work Plans, Landlord shall deliver to Tenant, concurrently with its notice of disapproval, a
reasonably specific statement of its reasons for disapproval and of any specific revisions which Landlord proposes to remedy the matter
(it being understood that Landlord shall not be required to propose any such specific revisions). If Landlord fails to respond to Tenant
within such fifteen (15) business day period in accordance with this Section 2.2.2, the Phase II Tenant Work Plans shall be deemed approved
by Landlord. |
| 2.2.3 | Provided that the Tenant Work Plans submitted to Landlord conform to the Tenant Building Plan Requirements,
Landlord will not unreasonably withhold its approval of the Phase II Tenant Work Plans. |
| 2.2.4 | If Landlord disapproves of the Phase II Tenant Work Plans and requests any specific revisions to the Phase
II Tenant Work Plans, Tenant shall make such changes and shall submit the revised Phase II Tenant Work Plans to Landlord. If Landlord
fails to respond to Tenant within five (5) business days, the revised Phase II Tenant Work Plans shall be deemed approved by Landlord. |
| 2.2.5 | The procedure provided for in Sections 2.2.1 through 2.2.4 above shall be repeated for each
revised and resubmitted version of the Phase II Tenant Work Plans until Landlord shall have approved (or be deemed to have approved) the
Phase II Tenant Work Plans. |
| 2.3 | Tenant Work. Tenant shall perform the Tenant Work at its sole cost and expense (subject to reimbursement
as set forth in Section 8 below) and in accordance with Tenant Work Plans approved by Landlord and the requirements of this Work
Letter. Tenant shall not construct or install any portion of the Tenant Improvements until Landlord shall have approved the Tenant Work
Plans for such portion thereof. Tenant shall prosecute all Tenant Work with commercially reasonable diligence. |
| 2.4 | Invoices. Tenant shall request that each Tenant Contractor provide a contemporaneous invoice to
Landlord at the time each Tenant Contractor provides an invoice to Tenant. |
| 2.5 | Insurance Requirements. No contractor and/or subcontractor of Tenant performing the Tenant Work
(“Tenant Contractor”) shall commence performance of Tenant Work unless Tenant and such Tenant Contractor shall have
submitted to Landlord certificates of insurance demonstrating compliance with the requirement of Section 7 of this Work Letter. |
| 2.6 | Governmental Approvals. Tenant shall not perform any portion of the Tenant Work for which any permits,
licenses or other approvals by any governmental authority (each a “Governmental Approval”) is required to be obtained
prior to the performance thereof unless Tenant shall have obtained (and furnished Landlord with a copy of) such Governmental Approval. |
| 2.7.1 | The term “Tenant Work Changes” shall mean any change in the Tenant Work Plans for any
portion of the Tenant Work (or in any portion of the Tenant Work) after Landlord shall have approved the Tenant Work Plans for such portion
of the Tenant Work. |
| 2.7.2 | All Tenant Work Changes shall be subject to Landlord’s approval in accordance with Section 2.2
of this Work Letter, except the time period within which Landlord shall respond shall be reduced from fifteen (15) business days to ten
(10) business days. If Landlord fails to respond to Tenant within the applicable period in accordance with this Section 2.7.2, the Tenant
Work Changes shall be deemed approved by Landlord. |
| 2.8 | Improper Work. If Tenant performs any work not reflected on Tenant Work Plans approved by Landlord
or a Tenant Work Change not approved by Landlord (any such work being herein called “Improper Work by Tenant”) then
Tenant, upon Landlord’s demand, shall remove or correct the same. |
| 2.9 | Effect of Landlord’s Approval. Landlord shall have no liability to Tenant or to any third
party by virtue of the existence or exercise of its consent or approval rights in this Section 2. Additionally, neither review
nor approval by Landlord of any of the Tenant Work Plans shall constitute a representation or warranty by Landlord that such items either
(i) are complete or suitable for their intended purpose, (ii) comply with applicable Laws and any insurance requirements, or (iii) conform
to the requirements of this Exhibit, it being expressly agreed by Tenant that Landlord assumes no responsibility or liability whatsoever
to Tenant or to any other person or entity for such completeness, suitability, compliance or conformance. |
| 2.10 | Landlord Costs and Expenses. Within thirty (30) days of receipt of an invoice from Landlord, Tenant
shall pay Landlord all costs and expenses reasonably incurred by Landlord and/or Landlord’s Space Planner in connection with reviewing
and approving the Tenant Work Plans and any other submittal pursuant to this Exhibit. |
| 2.11 | Protection of Building and Removal of Construction Debris. Tenant will take all commercially reasonable
and customary precautionary steps to protect its facilities and the facilities of others affected by the Tenant Work and to properly oversee
same. Tenant shall keep the Tenant Improvements and the Property, fire stairs, and adjacent areas free from accumulations of waste materials
or rubbish caused by Tenant or Tenant Contractors. Landlord may require daily removal of waste materials and rubbish if required for fire
prevention and life safety reasons or applicable Laws, and reserves the right to remove such waste materials and rubbish at the expense
of Tenant if Tenant, after written notice of such failure from Landlord, fails to comply with Landlord’s reasonable requirements
relating to such removal. At the completion of the Tenant Work, Tenant Contractors shall forthwith remove all rubbish and all tools, equipment
and surplus materials from and about the Property and Building. |
| 2.12 | Damage by Tenant Contractors. Tenant shall include in any written agreement it enters into with
a Tenant Contractor a provision that requires such Tenant Contractor to repair any damage caused by such Tenant Contractor (or any other
Tenant Contractors with which such Tenant Contractor has subcontracted) to any portion of the Building or to any property of Landlord
or other tenants of the Building in connection with the performance by such Tenant Contractors of the Tenant Work, and Tenant shall use
commercially reasonable efforts to cause such Tenant Contractors to repair such damages. |
| 2.13 | Accidents. Tenant shall cause Tenant Contractors to take all reasonable safety precautions with
respect to the Tenant Work, and to comply with all applicable Laws for the safety of persons or property. Tenant shall report (and shall
require Tenant Contractors to report) to Landlord any property damage or injury to any of Tenant’s agents or employees and shall
furnish Landlord a copy of any accident report filed with its insurance carrier promptly after its occurrence. |
| 2.14 | Mechanics’ Liens. Tenant shall give Landlord written notice in the TI Request (as defined
below) of Tenant’s intention to perform any work on the Property which might result in any claim of lien to enable Landlord to post
and record a notice of non-responsibility or other notice Landlord deems proper prior to the commencement of any such work. Tenant shall
not permit any mechanic’s, materialmen’s or other liens to be filed against the Property against Tenant’s leasehold
interest in the Property. If Tenant fails to cause the release of record of any lien(s) filed against the Property or its leasehold estate
therein by payment or posting of a proper bond within ten (10) days from the date of the lien filing(s), then Landlord may, at Tenant’s
expense, cause such lien(s) to be released by any means Landlord deems proper, including, but not limited to, payment of or defense against
the claim giving rise to the lien(s). All sums reasonably disbursed, deposited or incurred by Landlord in connection with the release
of the lien(s), including, but not limited to, all costs, expenses and actual attorneys’ fees, shall be due and payable by Tenant
to Landlord on demand by Landlord, together with interest thereon at the rate of 10% per annum from the date of such demand until paid
by Tenant. |
| 3. | Landlord’s Right of Entry; Governmental Inspections. |
| 3.1 | Landlord’s Right of Entry. During the construction of, and upon completion of, the Tenant
Work, Landlord and its representatives shall have the right, upon reasonable prior notice to Tenant and at reasonable times, to enter
the Property in order to inspect the Tenant Work. |
| 3.2 | Governmental Inspections. Tenant shall endeavor to cause any governmental authority required to
have issued a Governmental Approval to perform inspections of the Tenant Work, and Tenant shall make available to Landlord copies of all
written inspection reports issued relative to the Tenant Work upon request from Landlord. |
| 3.3 | Notice of Completion; Delivery of As Built Plans. Promptly after Tenant shall have substantially
completed the applicable Tenant Work, Tenant shall notify Landlord of the date of such substantial completion. Tenant shall furnish to
Landlord, in both paper and electronic format, at Tenant’s cost, “as built” drawings of the applicable Tenant Work within
90 days after completion of the applicable Tenant Work. |
| 4. | Standards of Performance. All of the Tenant Work shall be done according to the standards set forth
in this Section 4. |
| 4.1 | Compliance with Laws. Tenant shall cause the Tenant Work Plans and the Tenant Work to comply with
all Laws applicable thereto, including, without limitation, all applicable building and fire codes of the City or other municipality in
which the Property is located and all other governmental authorities having jurisdiction, and with all requirements of the Americans with
Disabilities Act of 1990, 42 U.S.C. §§12 101 et seq. |
| 4.2 | Intentionally Deleted. |
| 4.3 | Building Permits. Tenant, at its own cost and expense, shall obtain from any governmental authority
having jurisdiction all applicable Governmental Approvals required for the Tenant Work. |
| 4.4 | Certificate of Occupancy. If the Tenant Work is required to obtain a certificate of occupancy,
upon completion of the Tenant Work, Tenant, at its own cost and expense, shall apply for and diligently pursue such application until
it obtains such certificate of occupancy. |
| 7. | Insurance. Tenant shall require each Tenant Contractor entering the Property or Building hereunder
in connection with the performance of the Tenant Work to secure, pay for, and maintain during the continuance of its work within the Property
or the Building, policies of insurance in the following minimum coverages and minimum limits of liability: |
| 7.1 | Worker’s Compensation and Occupational Disease Insurance at statutory limits as provided by the
laws of the State of California and Employer’s Liability Insurance with limits of not less than $1,000,000, for all costs arising
from each accident or occupational disease. |
| 7.2 | Commercial General Liability Insurance (including Contractors’ Protective Liability) in an amount
not less than $2,000,000 per occurrence, whether involving bodily injury liability (or death resulting therefrom) or property damage liability
or a combination thereof and with a minimum aggregate limit of $5,000,000, together with umbrella coverage with limits of (1) not less
than $2,000,000 in the case of general contractors, and (2) not less than $1,000,000 in the case of subcontractors. Such insurance shall
provide for explosion and collapse, completed operations coverage and broad form blanket contractual liability coverage and shall insure
for claims for bodily injury, including death resulting therefrom, and damage to the property of others and arising from operations of
each Tenant Contractor, and shall also name Tenant and Landlord as additional insureds. |
| 7.3 | Comprehensive Automobile Liability Insurance, including the ownership, maintenance and operation of any
automotive equipment, owned, hired, or non-owned in an amount not less than $1,000,000 combined single limit for each accident. |
| 8. | Tenant Improvement Allowance. Subject to the terms and conditions set forth below, Landlord shall
make disbursements (including directly to vendors at Tenant’s request) on account of costs to be incurred in connection with the
Tenant Work, not to exceed Twelve Million Dollars ($12,000,000.00) in the aggregate and to be allocated between the Category 1 Improvements
and the Category 2 Improvements in accordance with Paragraph 26 of the Lease (the “Tenant Improvement Allowance” and
each disbursement from the Tenant Improvement Allowance being a “TI Disbursement”). TI Disbursements shall be made
within ten (10) days after the satisfaction of the following conditions (the “TI Disbursement Conditions”): |
| (1) | Receipt by Landlord of a request for TI Disbursement from Tenant (a “TI Request”),
detailing and or including, at a minimum, (a) the items of Tenant Work with respect to which the TI Disbursement is sought, (b) whether
each item constitutes a Category 1 Improvement or Category 2 Improvement, (c) complete or partial lien waivers reasonably acceptable to
Landlord in respect of any amounts subject to the TI Request, and (d) (x) a copy of all invoices (or other evidence that Tenant owes or
has already made such payment) that Tenant wishes to be paid in whole or in part from the Tenant Improvement Allowance, (y) evidence that
Tenant has paid (or will pay contemporaneously with Landlord’s disbursement) an amount equal to Sixty-Six and Two-Thirds Percent
(66.67%) of any Category 2 Improvements to be funded with the TI Disbursement, and (z) a certification by Tenant that the TI Disbursement
shall only be used for the purposes of paying for the Tenant Work identified in the TI Request, and that each of the other TI Disbursement
Conditions have been satisfied. |
| (2) | Tenant cannot make more than one request per month for a TI Disbursement. |
| (3) | The Property shall not have been materially injured, damaged or destroyed by any casualty, nor shall any
part of the Property be subject to any condemnation proceedings or negotiations for sale in lieu thereof; |
| (4) | The Lease and this Work Letter shall be and remain outstanding and enforceable in accordance with each
of their terms; |
| (5) | To the extent that the Tenant requests direct payment by Landlord, the Tenant Contractor must provide
a W-9 and other payment information reasonably requested by Landlord; |
| (6) | No default or Event of Default shall have occurred and then be continuing; |
| (7) | No liens shall have been recorded or filed against the Property or any Tenant Improvements in connection
with the Tenant Work (except for any liens satisfying each of the following conditions: (a) Landlord has received prior written notice
of such lien, (b) such lien has been bonded or discharged to the satisfaction of Landlord (in its sole or absolute discretion), and (c)
Landlord has provided written notice to Tenant evidencing its approval of the bonding or discharge of such liens). |
Upon the full disbursement of all funds
in the Tenant Improvement Allowance (or completion of all of the Tenant Work if less than the full Tenant Improvement Allowance has been
disbursed), Tenant shall promptly provide to Landlord: (x) the Certificate of Occupancy for the Property and any amendments thereto, and
(y) a submissions by Tenant to Landlord of Tenant’s contractor sworn statement that all Tenant Work has been paid for in full which
shall include unconditional final lien releases for all Tenant Work substantiating that all Tenant Work has been paid in full, and all
other evidence reasonably necessary to evidence Tenant’s compliance with Section 2.14 of this Work Letter. Furthermore, Landlord
and/or its architect shall be permitted to inspect to determine whether Tenant Work complies with the Tenant Work Plans. If Landlord reasonably
determines that Tenant Work does not comply with the Tenant Work Plans, Tenant shall promptly take all commercially reasonable steps to
cause compliance with the same, and following completion shall submit the documents in (x) and (y) above to Landlord. No unused portion
of the Tenant Improvement Allowance shall be applied to offset rent, and in no event will Landlord be required to reimburse Tenant for
any amounts in excess of the Tenant Improvement Allowance.
To the extent that Tenant has expended
funds that would constitute a Tenant Improvement Allowance prior to the Commencement Date, Tenant can request a TI Disbursement on the
Commencement Date so long as on or prior to the Commencement Date Tenant satisfies the TI Disbursement Conditions in respect of the same.
Notwithstanding anything herein to the
contrary, at the request of a Tenant Contractor or at Landlord’s request of a Tenant Contractor, Landlord may elect, in its sole
and absolute discretion, to enter into a contract for Category I Improvements relating to any Tenant Work subject to a Tenant Improvement
Allowance in Landlord’s name; provided, however, that (i) such contract shall be on terms substantially similar to Tenant’s
contract or proposal, (ii) Landlord may not amend or terminate such contract without Tenant’s prior written approval (not to be
unreasonably withheld, conditioned or delayed), (iii) if a contractor terminates the contract due to a default by Landlord, then Tenant
shall have the right to enter into a replacement contract with such contractor (and Landlord shall not subsequently have the right to
enter into a contract with such contractor), (iv) Landlord shall request that Tenant be named as an additional insured under such contract,
simultaneously receive any notices given under the contract, and be the beneficiary of any warranty for any work performed under such
contract, and (v) any additional fees, penalties, costs or other payments to the extent arising out of Landlord’s amendment, breach
or termination thereof (so long as not caused by Tenant) shall not be counted against the amount of Tenant Improvement Costs.
| 10 | Delays Caused by Force Majeure Events. Paragraph 40 of the Lease is hereby incorporated into this
Work Letter. |
| 11. | Construction Representatives. Landlord’s and Tenant’s representatives for coordination
of construction and approval of change orders will be as follows, provided that either party may change its representative upon written
notice to the other: |
|
Landlord’s Representative: |
|
|
|
c/o OW Management Services, Inc. |
|
|
600 California Street, Suite 1100 |
|
|
San Francisco, CA 94014 |
|
|
Attention: Sam Hooker |
|
|
Email: shooker@oceanwestcp.com |
|
|
And to: |
|
|
|
|
|
Maritime Management, LLC |
|
|
One Maritime Plaza, Suite 2100 |
|
|
San Francisco, California 94111 |
|
|
Attention: Nicholas Carbone |
|
|
Email: ncarbone@faralloncapital.com |
|
|
|
|
Tenant’s Representative: |
Faraday&Future Inc. |
|
|
18455 S. Figueroa St. Gardena, CA 90248 |
|
|
Attention: Charles Hsieh |
|
|
Email: charles.hsieh@ff.com |
SCHEDULE 1
TENANT IMPROVEMENTS AND CATEGORIES
Description | |
Cost | |
Category 1 | |
| |
Smoke and Heat Vents | |
$ | 121,461 | |
Storm Drain | |
$ | 97,975 | |
Sanitary Installation | |
$ | 584,627 | |
Provide Corrections to Lift Station | |
$ | 150,000 | |
BK Line Sanitary Re-Routh for Sink West of Conference Rooms | |
$ | 20,000 | |
RFI 129 Slopes WH to Paint and VA | |
$ | 50,000 | |
Exterior Sanitary Corrections and Grade Work | |
$ | 524,319 | |
Fire Alarm Procurement and Installation Body, WH, VA | |
$ | 4,500,000 | |
Electrical for Lights Warehouse, Vehicle Assembly,
Water Test, Emergency Lights, Concrete Bumpout, Min Restrooms According to Code | |
$ | 1,500,000 | |
Category 2 | |
| | |
City Offsite Improvements (Idaho Road) – Bond | |
$ | 7,000,000 | |
Roof | |
$ | 10,000,000 | |
EXHIBIT “C”
GUARANTY
GUARANTY OF LEASE
THIS GUARANTY OF LEASE (this
“Guaranty”) is made by FARADAY FUTURE INTELLIGENT ELECTRIC, INC., a Delaware corporation (the “Guarantor”),
to 10701 IDAHO OWNER, LLC (the “Landlord”), with respect to the Lease Agreement (the “Lease”) dated
________________, 2023 between Landlord and FARADAY&FUTURE INC., a Delaware corporation (the “Tenant”), relating
to certain premises located at 10701 Idaho Ave, Hanford, CA (the “Property”).
In consideration of the Lease,
and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Guarantor hereby covenants and
agrees for the benefit of Landlord, as a material inducement to Landlord’s execution of the Lease, as follows:
1. The
Guarantor absolutely, unconditionally and fully guarantees: (i) the payment of all rent, monies and charges expressed to be payable by
Tenant under the Lease at the times the same are required to be paid thereunder; (ii) the performance when due of all and each of the
covenants, conditions and obligations contained in the Lease to be kept, performed or observed by Tenant; and (iii) all damages owing
to Landlord by Tenant after termination of the Lease following a default thereof by Tenant. The Guarantor agrees that if Tenant fails
to pay any monetary obligation as required by the Lease, the Guarantor, after receipt of written demand therefor by Landlord, shall pay
such obligation when required of Tenant under the Lease as if such obligation constituted the direct and primary obligation of the Guarantor.
The Guarantor shall indemnify, defend and hold Landlord harmless from any and all losses, liabilities, costs and damages arising out of
any failure by Tenant to pay or perform as required hereunder, or the recapture of any rent, monies or charges as a preferential transfer
pursuant to any state or federal bankruptcy law.
2. In
such manner, upon such terms and at such times as Landlord shall deem best, and without notice to or the consent of the Guarantor, Landlord
may alter, compromise, extend or change the time or manner for the performance of any obligation hereby guaranteed, substitute or add
any one or more the Guarantors, accept additional or substituted security for the performance of any such obligation, or release or subordinate
any security therefor, any and all of which may be accomplished without any effect on the obligations of the Guarantor hereunder. No exercise
or non-exercise by Landlord of any right hereby given, no dealing by Landlord with Tenant, any other guarantor or other person, and no
change, impairment or suspension of any right or remedy of Landlord shall in any way affect any of the obligations of the Guarantor hereunder
or any security furnished by the Guarantor or give the Guarantor any recourse against Landlord.
3. The
Guarantor hereby waives and agrees not to assert or take advantage of the following:
(a) any
right to require Landlord to proceed against Tenant or any other person or to proceed or exhaust any security held by Landlord at any
time or to pursue any other remedy in Landlord’s power before proceeding against the Guarantor.
(b) any
defense based on the statute of limitation in any action hereunder or in any action for the performance of any obligation hereby guaranteed;
(c) any
defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or persons or the failure
of Landlord to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person
or persons;
(d) any
right to receive demands, protests and notices of any kind including, but not limited to, notice of the existence, creation or incurring
of any new or additional obligation or of any action or non-action on the part of Tenant, Landlord or any other person;
(e) any
defense based on an election of remedies including, but not limited to, any action by Landlord which shall destroy or otherwise impair
any subrogation right of the Guarantor or the right of the Guarantor to proceed against Tenant for reimbursement or contribution or any
rights or benefits under any provisions of California law in any way qualifying, conditioning or limiting the obligations of the Guarantor
based on any steps or procedures that Landlord should take before proceeding against the Guarantor; the Guarantor wishes by this paragraph
to waive the rights and defenses permitted to be waived under Section 2856 of the California Civil Code, by which the Guarantor may provide
the following:
The Guarantor waives all rights and defenses
arising out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the
principal by operation of Section 580d of the Code of Civil Procedure or otherwise;
(f) any
duty on the part of Landlord to disclose to the Guarantor any facts Landlord may now or hereafter know about Tenant, regardless of whether
Landlord has reason to believe that such facts materially increase the risk beyond that which the Guarantor intends to assume or has reason
to believe that such facts are unknown to the Guarantor or has a reasonable opportunity to communicate such facts to the Guarantor, it
being understood and agreed that the Guarantor is fully responsible for being and keeping informed of the financial condition of Tenant
and of all circumstances bearing on the risk of non-performance of any obligation hereby guaranteed;
(g) any
rights or benefits in favor of the Guarantor under Sections 2815, 2819, 2839, 2845, 2849 or 2850 of the California Civil Code or under
Sections 364 or 1111(b) of 11 U.S.C.;
(h) any
transfer of Landlord’s interest in the premises demised pursuant to the Lease;
(i) any
transfer of Tenant’s interest as tenant under the Lease or any part thereof or any sublease or assignment by Tenant;
(j) any
merger or consolidation of Tenant or sale of all or a substantial portion of Tenant’s assets;
(k) any
sale of all or any portion of any capital stock of Tenant or partnership interest in Tenant owned by the Guarantor; or
(l) any
prior or concurrent representation, understanding, promise or condition concerning the subject matter hereof which is not expressed herein,
which are of no effect.
In addition to the foregoing,
the Guarantor hereby waives notice of acceptance of this Guaranty of Lease by Landlord and this Guaranty of Lease shall immediately be
binding upon the Guarantor.
4. Until
all obligations hereby guaranteed shall have been fully performed, the Guarantor shall have no right of subrogation and waives any right
to enforce any remedy which Landlord now has or may hereafter have against Tenant and any benefit of, and any right to participate in,
any security now or hereafter held by Landlord.
5. All
existing and future obligations of Tenant to the Guarantor or any person owned in whole or in part by the Guarantor and the right of the
Guarantor to cause or permit itself or such person to withdraw any capital invested in Tenant are hereby subordinated to all obligations
hereby guaranteed and, without the prior written consent of Landlord, such obligations to the Guarantor shall not be performed and such
capital shall not be withdrawn, in whole or in part, while Tenant is in default under the Lease.
6. The
amount of the Guarantor’s liability and all rights, powers and remedies of Landlord hereunder and under any other agreement now
or at any time hereafter in force between Landlord and the Guarantor shall be cumulative and not alternative, and such rights, powers
and remedies shall be in addition to all rights, powers and remedies given to Landlord at law or in equity. This Guaranty of Lease is
in addition to and exclusive of the guaranty of any other guarantor of any obligation of Tenant to Landlord.
7. The
obligations of the Guarantor hereunder are independent of the obligations of Tenant under the Lease and, in the event of any default hereunder
or under the Lease, a separate action or actions may be brought and prosecuted against the Guarantor, whether or not Tenant is joined
therein or a separate action or actions are brought against Tenant. Landlord may maintain successive actions for other defaults. Landlord’s
rights hereunder shall not be exhausted by its exercise of any of its rights or remedies or by any such action or by any number of successive
actions until and unless all obligations hereby guaranteed shall have been fully performed.
8. The
Guarantor shall pay to Landlord, upon demand, reasonable attorneys’ fees and all costs and other expenses which Landlord shall expend
or incur in collecting or compromising any obligation hereby guaranteed or in enforcing this Guaranty of Lease against the Guarantor,
whether or not suit is filed including, but not limited to, reasonable attorneys’ fees, costs and other expenses incurred by Landlord
in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceeding involving the Guarantor which in
any way affects the exercise by Landlord of its rights and remedies hereunder.
9. Should
any one or more provisions of this Guaranty of Lease be determined to be illegal or unenforceable, all other provisions shall nevertheless
be effective.
10. This
Guaranty of Lease shall inure to the benefit of Landlord and its successors and assigns and shall bind the heirs, legal representatives,
executors, administrators, successors and assigns of the Guarantor. This Guaranty of Lease may be assigned by Landlord concurrently with
the transfer of title to property covered by the Lease and, when so assigned, the Guarantor shall be liable to the assignee without in
any manner affecting the liability of the Guarantor hereunder. The acceptance by Landlord of the performance of any of Tenant’s
obligations under the Lease by the Guarantor, including, without limitation, the acceptance of rent payments, shall not constitute an
assignment of the Lease to the Guarantor or Landlord’s consent to such assignment.
11. Satisfaction
by the Guarantor of any liability hereunder incident to a particular default shall not discharge the Guarantor except for the default
satisfied. This Guaranty of Lease and the obligations of the Guarantor hereunder shall be continuing and irrevocable until: (i) Landlord
has received full payment of all rents, monies and charges due under the Lease and full performance of all of the obligations due under
the Lease or to become due during the term of the Lease, including any option to extend thereunder; (ii) any applicable preference period
under state or federal bankruptcy law has expired; or (iii) Landlord has released the Guarantor from the obligations of Tenant under the
Lease, which may be accomplished by only an instrument in writing signed by Landlord. Upon full performance of all obligations hereby
guaranteed, this Guaranty of Lease shall be of no further force or effect.
12. No
provision of this Guaranty of Lease or right of Landlord hereunder can be waived or modified, nor can the Guarantor be released from the
Guarantor’s obligations hereunder, except by a writing duly executed by Landlord.
13. When
the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural and the
masculine shall include the feminine and neuter and vice versa. The word “person” as used herein shall include any individual,
company, firm, association, partnership, corporation, trust or other legal entity of any kind whatsoever.
14. If
two (2) or more persons are signing this Guaranty of Lease as the Guarantor, then all such persons shall be jointly and severally liable
for the obligations of the Guarantor hereunder.
15. This
Guaranty of Lease shall be governed by and construed in accordance with the laws of the State of California. In any action brought under
or arising out of this Guaranty of Lease, the Guarantor hereby consents to the jurisdiction of any competent court within the State of
California and hereby consents to service of process by any means authorized by California law. This Guaranty of Lease shall constitute
the entire agreement of the Guarantor with respect to the subject matter hereof and no representation, understanding, promise or condition
concerning the subject matter hereof shall be binding upon Landlord unless expressed herein.
16. Without
limiting the generality of the foregoing, the liability of the Guarantor under this Guaranty shall not be deemed to have been waived,
released, discharged, impaired or affected by reason of: (a) the termination of the term of the Lease; (b) the release or discharge of
Tenant in any receivership, bankruptcy, winding-up or other creditors’ proceedings or the rejection, disaffirmance or disclaimer
of the Lease by any party in any such proceeding; (c) the repossession of the Property demised under the Lease by Landlord, provided,
however, that the net payments received by Landlord after deducting all costs and expenses of repossessions and/or reletting such Property
shall be credited from time to time by Landlord to the account of the Guarantor; or (d) any amendment of the terms of the Lease without
the Guarantor’s consent; provided, however, the Guarantor reserves the right to assert defenses which Tenant may have had to payment
of any of the guaranteed obligations other than defenses arising from the bankruptcy, insolvency or reorganization of Tenant and other
defenses expressly waived hereby.
17. The
Guarantor, promptly from time to time upon request, shall execute and deliver to Landlord: (a) an estoppel certificate containing such
truthful information as Landlord may reasonably request; and (b) such further instruments or documentation as may reasonably be requested
by Landlord to ratify and confirm this Guaranty of Lease and the continuing liability of the Guarantor hereunder.
DATED: ___________________, 20_____.
[INSERT GUARANTOR SIGNATURE BLOCK]
EXHIBIT “D”
FORM OF LETTER OF CREDIT
LETTER OF CREDIT
East West Bank
International Operations
135 N. Los Robles Ave., 2nd Floor
Pasadena, CA 91101
Attn: Standby Letter of Credit Unit
Tel No. 626-768-6608 Fax No. 626-817-8856
Irrevocable Standby Letter of Credit No. XXXXX
Date of Issue: ______, 2023
Beneficiary: |
10701 Idaho Owner, LLC
600 California Street, Suite 1100
San Francisco, CA 94014
Attn: Sam Hooker |
|
|
Applicant: |
Faraday&Future Inc.
18455 S Figueroa Street
Gardena, CA 90248 |
Amount: USD600,000.00 (U.S. Dollars Six Hundred
Thousand and 00/100)
Date and Place of Expiry: ______, 2024 at East
West Bank’s above address
Ladies and Gentlemen:
At the request and for the account of Faraday &
Future Inc. (the “Applicant”), we hereby issue our Irrevocable Standby Letter of Credit No. XXXXX in favor of 10701 Idaho
Owner, LLC (“Beneficiary”) for the aggregate amount of USD600,000.00 (U.S. Dollars Six Hundred Thousand and 00/100) available
with ourselves by payment against presentation of the following documents:
1. Beneficiary’s
sight draft(s) bearing the clause “Drawn under East West Bank Letter of Credit No. XXXXX dated XXXXXX.”
2. The
original of this Letter of Credit and all original amendment(s), if any.
3. Beneficiary’s
dated statement signed by a person purported to be an authorized signer of the Beneficiary stating:
“We hereby demand payment of USD___________(insert
claim amount) under East West Bank Letter of Credit No. XXXXX (“LC”) pursuant to the terms of the Lease between Landlord and
Tenant as described in said LC..”
We have been informed by the Applicant, but do not independently
verify, that, this LC is in connection with the certain lease agreement (as the same may be amended, modified or replaced, the “Lease”)
by and between 10701 Idaho Owner, LLC, as Landlord and Faraday & Future Inc., as Tenant, for certain premises located at 10701 Idaho
Avenue, Hanford, California.
Partial drawings and multiple presentations are
permitted.
Beneficiary may make presentation under this Letter
of Credit entirely by facsimile transmission. Such facsimile transmission shall be addressed to us Attention: Standby Letter of Credit
Unit and transmitted to (626) 242-9610 . No mail confirmation is necessary and the facsimile transmission will constitute the operative
drawing documents. Beneficiary may contact the Bank at (626) 768-6615 or (626) 768-6416 to confirm receipt of the transmission.
Beneficiary’s failure to seek such a telephone confirmation does not affect the Bank’s obligation to honor such presentation,
if such drawing is otherwise in compliance with the terms and conditions of this irrevocable Letter of Credit.
This Letter of Credit will expire on ______, 2024,
however, it is condition of this Letter of Credit that it shall be deemed automatically extended for successive one-year periods without
amendment from the expiry date hereof or any future expiry date unless at least sixty (60) days prior to the then current expiration date
we send to the Beneficiary a notice in writing by Certified Mail with return receipt requested, or overnight courier service to your above
address that we elect not to extend this Letter of Credit for any such additional period.
A copy of our notice of election not to extend
this Letter of Credit shall be sent to the Applicant for information only. Failure to provide the copy of such notice does not affect
our notice of non-extension.
It is a condition of this Letter of Credit that
it may be transferred in its entirety (not in part) from time to time and more than one time only up to the then available amount at Beneficiary’s
request to any successor-in-interest of the Beneficiary under the Lease.
We shall not recognize any transfer of this Letter
of Credit until this original Letter of Credit together with all original amendments (if any) and a signed and completed transfer form
in the form attached hereto as Exhibit “A” are received by us. Under no circumstances shall this Letter of Credit
be transferred to any person or entity with which U.S. persons or entities are prohibited from conducting business under the U.S. Foreign
Asset Control Regulations and other applicable U.S. laws and regulations. In case this Letter of Credit is transferred, the name and address
of the original beneficiary will be replaced by the name and address of the transferee wherever it appears in the text of this Letter
of Credit (as well as amendments, if any) and the transferee shall have sole rights as beneficiary thereof, including sole rights relating
to any amendments whether increases or extensions or other amendments and whether existing or hereafter made and the word “beneficiary”
wherever it appears in the text of this Letter of Credit and amendments means the transferee. The correctness and authenticity of the
signature and title of the person signing the transfer form must be verified by beneficiary’s bank.
Except Discrepancy Fee, all banking charges including
transfer fee are for account of the applicant, however the transfer shall not be contingent upon the payment of such transfer fee. Discrepancy
fee is for Beneficiary’ account.
This Letter of Credit may be cancelled prior to
its expiration date upon our receipt of the original of this Letter of Credit and all original amendments, if any, together with Beneficiary’s
written agreement to the cancellation of this Letter of Credit. Such written agreement to cancel this Letter of Credit must specifically
reference this Letter of Credit number XXXXX, clearly indicate that the Letter of Credit is being returned for cancellation, and identify
the person signing the letter as authorized to sign for the Beneficiary.
We engage with Beneficiary that all draft(s) and
documents presented hereunder in conformity with the terms and conditions of this Letter of Credit will be duly honored, if presented
to East West Bank, International Operations, 135 N. Los Robles Ave., 2nd Floor, Pasadena, CA 91101, Attn: Standby Letter of Credit Unit
on or before the expiry date indicated above or any automatically extended expiry date.
Except so far as otherwise stated herein, this
Letter of Credit is subject to the International Standby Practices 1998, International Chamber of Commerce Publication No. 590.
ALL TERMS AND CONDITIONS HEREIN ACCEPTED BY:
Faraday & Future Inc.
Exhibit A
(ON BENEFICIARY’S LETTERHEAD)
REQUEST FOR TRANSFER OF LETTER OF CREDIT
Date: __________________
East West Bank
International Operations
135 N. Los Robles Ave. 2nd Floor
Pasadena, CA 91101
Attn: Standby Letter of Credit Unit
Re: Irrevocable Letter of Credit No. ________________
We request you to transfer all of our rights as beneficiary under the
Letter of Credit referenced above to the transferee, named below:
_____________________________________________________________________________
Name of Transferee
_____________________________________________________________________________
Address
By this transfer all our rights as the transferor, including all rights
to make drawings under the Letter of Credit, go to the transferee. The transferee shall have sole rights as beneficiary, whether existing
now or in the future, including sole rights to agree to any amendments, including increases or extensions or other changes. All amendments
will be sent directly to the transferee without the necessity of consent by or notice to us.
We enclose the original letter of credit and any amendments. Please
indicate your acceptance of our request for the transfer by endorsing the letter of credit and sending it to the transferee with your
customary notice of transfer.
The signature and title at the right conform with those shown in our files as authorized to sign for the beneficiary. Policies governing signature authorization as required for withdrawals from customer accounts shall also be applied to the authorization of signatures on this form. The authorization of the Beneficiary’s signature and title on this form also acts to certify that the authorizing financial institution (i) is regulated by a U.S. federal banking agency; (ii) has implemented anti-money laundering policies and procedures that comply with applicable requirements of law, including a Customer Identification Program (CIP) in accordance with Section 326 of the USA PATRIOT Act; (iii) has approved the Beneficiary under its anti-money laundering compliance program; and (iv) acknowledges that East West Bank is relying on the foregoing certifications pursuant to 31 C.F.R. Section 103.121 (b)(6). |
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NAME OF AUTHORIZED SIGNER AND TITLE |
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AUTHORIZED SIGNATURE AND TITLE |
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EXHIBIT “E”
FORM OF PURCHASE AGREEMENT
PURCHASE AGREEMENT
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT
(“Agreement"), dated as of October __, 2023 for reference purposes only (“Effective Date”), is entered
into by and between [], a Delaware limited liability company (“Seller”), and FARADAY&FUTURE INC., a California
corporation (“Buyer”).
RECITALS:
A. Seller
is the fee simple owner of the Property, as hereinafter defined, consisting of approximately 67.05 acres of real property known as “Parcel
2” improved with one or more buildings containing approximately 1,070,000 total rentable square feet of warehouse/industrial/office
space and located at 10701 Idaho Avenue, Hanford, California 93230.
B. Buyer
holds a leasehold interest in Parcel 2 pursuant to that certain Lease Agreement between Seller, as landlord, and Buyer, as tenant, dated
as of July 28, 2017 (as modified or extended from time to time, the “Lease”).
C. Under
Section 38 of the Lease, Buyer has an option to purchase the Property (the “Purchase Option”).
D. Buyer
desires to exercise the Purchase Option and to purchase the Property from Seller and Seller is willing to sell the Property to Buyer on
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals
and mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Purchase and Sale.
Buyer hereby exercises the Purchase Option, and
Buyer and Seller acknowledge and agree that (i) Buyer’s execution of this Agreement shall constitute Buyer’s exercise of the
Purchase Option, and (ii) the time periods described in Section 38 of the Lease are waived and the terms of this Agreement shall control.
Seller agrees to sell the Property to Buyer and
Buyer agrees to purchase the Property from Seller, all on the terms, covenants and conditions set forth in this Agreement. The “Property”
includes the following:
A. Land.
The land (“Land”) consisting of approximately 67.05 acres of land and located at 10701 Idaho Avenue, Hanford, California
93230 and legally described as set forth on Exhibit “A” attached to this Agreement and made a part hereof, together
with all of Seller’s right, title and interest in and to all easements, utility reservations, mineral rights, rights of way, strips
of land, tenements, hereditaments, privileges, licenses, appurtenances, reversions, remainders in any way belonging, remaining or appertaining
thereto;
B. Improvements.
The buildings, consisting of approximately 1,070,000 total rentable square feet, and all other structures and improvements (collectively,
“Improvements”) now situated on the Land including, but not limited to, fixtures and equipment, elevators, heating,
air conditioning, plumbing, mechanical, electrical, drainage, security, life safety and fire alarm systems, and their component parts;
C. Personal
Property. All of Seller’s interest in fixtures, furnishings, equipment, appliances, machinery, tools and other personal property
of every kind and character (collectively, “Personal Property”) owned by Seller and currently attached to, located
on or used in connection with the ownership, management, maintenance and operation of the Improvements and the Land;
D. Intangible
Property. Any and all right, title and interest of Seller in all (i) development rights and entitlements and other intangible property
owned by Seller; (ii) guaranties and warranties issued to Seller and with respect to the Improvements or the Personal Property; and (iii)
any reports, studies, surveys and other comparable analysis, depictions or examinations of the Land or the Improvements, or pertaining
to the Land, the Improvements or the Personal Property or use thereof and which in anyway relates to the ownership, management or operation
of the Property (collectively, “Intangible Property”);
E. Contracts.
Those certain operating contracts, service contracts, management agreements and other comparable agreements described on Exhibit
“B” attached hereto (collectively, “Contracts”) that Buyer expressly elects to assume; and
2. Purchase Price.
The purchase price for the Property shall be $[]
(“Purchase Price”).
3. Payment of Purchase
Price.
The Purchase Price shall be paid to Seller by Buyer
as follows:
A. Escrow.
The parties acknowledge that an escrow (“Escrow”) shall be opened with an escrow agent (“Escrow Agent”)
at First American Title Insurance Company [insert details] (“Title Company”). If Escrow Agent requires any supplemental
or additional instructions, then Seller and Buyer shall promptly provide the same consistent with the provisions of this Agreement.
B. Intentionally
Deleted.
C. Balance
of Purchase Price. Buyer shall pay the Purchase Price, plus or minus Buyer’s share of closing costs, prorations and other charges
or amounts payable pursuant to this Agreement, to Seller in immediately available funds through the Escrow at the Closing Date.
4. Title.
A. Title
Policy. Seller shall cause good and marketable title to the Property to be conveyed to Buyer or Third Party Buyer (as hereinafter
defined), pursuant to a grant deed (the “Grant Deed”), subject only to the following exceptions to title (“Permitted
Exceptions”):
(i) A lien to secure
payment of real estate taxes, personal property taxes, water and sewer charges, and assessments related thereto not yet due and payable;
and
(ii) The exceptions
set forth in the Owner’s Policy (as hereinafter defined).
Provided, however, that the Permitted
Exceptions shall not include (a) any mechanic’s liens or any monetary liens (including, without limitation, judgments,
tax liens and violations), or (b) any deeds of trust, mortgage, or other loan documents secured by the Property, or (c) any memorandum
of lease or other recorded evidence of a lease, license or other occupancy agreement encumbering the Property.
On the Closing Date (as defined in Paragraph
8), the Title Company shall issue to Buyer or Third Party Buyer (as defined below) its ALTA extended coverage owner’s policy
of title insurance (“Owner’s Policy”) in the face amount of the Purchase Price, showing title to the Property
vested of record in Buyer or Third Party Buyer, subject only to the Permitted Exceptions. On or before the Closing Date, Seller shall
provide to the Title Company an executed copy of the Title Company’s standard owner’s affidavit. Notwithstanding anything
to the contrary herein, to the extent that Title Company requires any reasonable certificates, affidavits, or other documentation from
Buyer, Third Party Buyer, and/or Seller in order to issue the Owner’s Policy at Closing, the applicable party will promptly execute
and deliver the same to Title Company.
B. Survey
and Title Documents. Buyer acknowledges receipt of a preliminary title report from the Escrow Agent for the issuance of the Owner’s
Policy (“Title Report”) together with legible copies of all title exception documents shown thereon (“Title
Documents”).
5. Intentionally Deleted.
6. Conditions Precedent
to Buyer’s Obligation.
The obligation of Buyer to buy the Property shall be subject
to timely satisfaction or waiver of the following conditions precedent:
A. The
Title Company’s commitment to issue the Owner’s Policy, subject only to the Permitted Exceptions.
B. The
truth and accuracy of each representation and warranty of Seller contained herein as if made on and as of the Closing Date.
C. Delivery
by Seller to Escrow Agent of the Grant Deed and a bill of sale in the form attached hereto as Exhibit “C” with
respect to the Improvements, Personal Property and Intangible Property.
D. Buyer’s
approval of a settlement statement with respect to the Closing, which shall be separate from Seller’s settlement statement.
E. Delivery
by Seller of a non-foreign affidavit in respect of Section 1445 of the Internal Revenue Code, in form acceptable to Buyer.
Buyer may waive any of the conditions precedent
to Buyer’s obligation to perform under this Agreement. If the conditions set forth in Paragraphs 6.A through 6.B
are not satisfied or waived by Buyer, then this Agreement shall terminate, and the parties shall have no further obligations to each other
except for such provisions that specifically survive the termination of this Agreement.
7. Conditions Precedent
to Seller’s Obligation to Close.
The obligation of Seller to sell the Property shall be subject
to timely satisfaction or waiver of the following conditions precedent:
A. Buyer’s
timely delivery to Escrow Agent of the Purchase Price and any other funds required of Buyer under this Agreement.
B. The
truth and accuracy of each representation and warranty of Buyer contained herein as if made on and as of the Closing Date.
C. Seller’s
approval of a settlement statement with respect to the Closing, which shall be separate from Buyer’s settlement statement.
Seller may waive any of the conditions precedent
to Seller’s obligation to perform under this Agreement. If the conditions set forth in Paragraphs 7.A through 7.B
are not satisfied or waived by Seller, then this Agreement shall terminate, and the parties shall have no further obligations to each
other except for such provisions that specifically survive the termination of this Agreement.
8. Closing.
The sale and purchase of the Property provided
herein shall be consummated at a closing (“Closing”), which shall be held on the same date as the Effective Date (“Closing
Date”) at the offices of Title Company, or at such other time and place as Seller and Buyer may agree upon. At the Closing,
Seller and Buyer shall deliver to the other party such documents as are typical and customary for transactions involving properties of
similar size, type and location as the Property, and as may be necessary or appropriate to consummate the transactions contemplated in
this Agreement. Buyer and Seller agree and acknowledge that immediately upon occurrence of the Closing, the Lease shall be terminated
as of the Closing Date.
9. Closing Costs and
Prorations.
Buyer shall pay all costs and expenses relating
to the transaction, including all escrow fees, the costs of the Owner’s Policy together with any special title endorsements requested
by Buyer, the recording fees, and all transfer taxes; provided, however, that Seller shall pay its attorney’s fees. Real estate
taxes, operating expenses and utility charges shall not be prorated as of the Closing Date, but shall be payable by Buyer. It is the intent
of the parties that all property taxes be the responsibility of Buyer. All prorations as of the Closing Date shall be made as of 12:01
a.m. on the Closing Date.
10. Representations
and Warranties by Seller.
Effective as of the Closing Date, Seller hereby
represents and warrants to Buyer, which representations and warranties shall be accurate and true in all material respects, and acknowledges
that Buyer is relying upon such representations and warranties in purchasing the Property, as follows:
A. Seller
is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Seller
has full power and authority to execute and deliver this Agreement and all of Seller’s closing documents, to engage in the transactions
contemplated by this Agreement, and to perform and observe all of Seller’s obligations under this Agreement.
B. Seller
and the persons signing this Agreement for Seller have the authority and power to sign this Agreement, to perform all of Seller’s
obligations under this Agreement and to sign and deliver all of the documents required to be signed and delivered by Seller without the
consent or approval of any other person.
C. This
Agreement has been duly executed and delivered by Seller and is a legal, valid and binding instrument, enforceable against Seller in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
D. Seller
is not a “foreign person” and is not subject to withholding within the meaning of Section 1445 of the Internal Revenue Code.
Seller will execute and deliver to Buyer through and at the Close of Escrow a non-foreign affidavit in form acceptable to Buyer.
E. Other
than the Contracts, Seller has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding
upon Buyer after the Closing.
F. Seller
has not granted to any person or entity (other than Buyer under the Lease) any lease, license, or occupancy right with respect to the
Property.
G. Seller
has not adopted or entered into a plan of, liquidation, dissolution, merger, consolidation or other reorganization; or, or filed a petition
in bankruptcy under any provisions of federal, state or provincial bankruptcy or insolvency law, or consented to the filing of any bankruptcy
petition against it under any similar law.
H. Seller
is not engaging in the transactions contemplated hereunder, directly or indirectly, in violation of any laws relating to drug trafficking,
money laundering or predicate crimes to money laundering or drug trafficking. The Property to be transferred to Buyer hereunder has not
been derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Seller is prohibited
by laws or that the transactions contemplated hereunder or this Agreement is or will be in violation of laws.
I. Seller
is not in violation of, has been charged with or is under indictment for the violation of, or has pled guilty to or been found guilty
of the violation of, any laws relating to anti-corruption, anti-bribery, terrorism, money laundering, drug-trafficking or the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Action of 2001, Public Law 107-56,
as amended, and Executive Order No. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit,
or Support Terrorism) (the “Executive Order”) (collectively, the “Anti-Bribery, Anti-Money Laundering and
Anti-Terrorism Laws”).
J. Seller
is not acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons
or entities that appear on the Annex to the Executive Order, or are included on any relevant lists maintained by the Office of Foreign
Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from
time to time.
K. Neither
Seller, nor any person controlling or controlled by Seller, is a country, territory, individual or entity named on a Government List,
and the monies used in connection with this Agreement and amounts committed with respect thereto, were not and are not derived from any
activities that contravene any of the Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws or any other applicable anti-money laundering
or anti-bribery Laws and regulations (including funds being derived from any person, entity, country or territory on a Government List
or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)).
All of the representations
and warranties set forth herein shall survive the Closing and the delivery of the grant deed for a period of one (1) year. No claim for
a breach of any representation or warranty shall be actionable or payable if the breach in question results from or is based on a condition,
state of facts or other matter which was known to Buyer or Buyer is deemed to know, including the existence of hazardous materials within
the boundaries of the Property or within the improvements thereon; provided, however, that nothing herein shall relieve Buyer of any of
its obligations under the Lease. As used in this provision, “deemed to know” has the following meaning: Buyer shall be deemed
to know of the existence of a fact or circumstance to the extent that such fact or circumstance would be known by an occupant of the Property.
Notwithstanding anything herein to the contrary, Seller shall not be deemed to be in breach of any representation or warranty set forth
herein to the extent that such breach is caused by or the result of a condition caused by Buyer or any affiliate.
11. Representations
and Warranties by Buyer.
Effective as of the Closing Date, Buyer hereby
represents and warrants to Seller, which representations and warranties shall be accurate and true in all material respects, and acknowledges
that Seller is relying upon such representations and warranties in selling the Property, as follows:
A. Buyer
is a corporation, duly organized, validly existing, and in good standing under the laws of the State of California. Buyer has full power
and authority to execute and deliver this Agreement and all of Buyer’s closing documents, to engage in the transactions contemplated
by this Agreement, and to perform and observe all of Buyer’s obligations under this Agreement.
B. Buyer
and the persons signing this Agreement for Buyer have the authority and power to sign this Agreement, to perform all of Buyer’s
obligations under this Agreement and to sign and deliver all of the documents required to be signed and delivered by Buyer without the
consent or approval of any other person.
C. This
Agreement has been duly executed and delivered by Buyer and is a legal, valid and binding instrument, enforceable against Buyer in accordance
with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
12. Intentionally Deleted.
13. Intentionally Deleted.
14. Specific Performance.
If Seller is in breach or default of this Agreement
or fails to close the transaction for purchase of the Property when required by this Agreement, Buyer, as its sole and exclusive remedy
hereunder, may either elect to:
A. Terminate
this Agreement; or
B. Enforce
Seller’s obligation to convey the Property; provided, however, that no action for specific performance shall require Seller to do
any of the following (i) change the condition of the Property in any way or restore the Property after any fire or other casualty,
(ii) expend money or post a bond to remove any title encumbrance or defect or to correct any matter shown on a survey of the Property,
(iii) expend money or post a bond to remedy any environmental condition of the Property, or (iv) secure any permit, approval
or consent with respect to the Property or Seller’s conveyance of the Property. If Buyer elects specific performance as its remedy,
then Buyer shall not be entitled to recover any damages (whether actual, direct, indirect, consequential, punitive or otherwise), notwithstanding
such failure to close, breach or default by Seller.
Upon the exercise of Buyer’s remedies hereunder,
this Agreement shall terminate and the parties shall have no further obligations to each other except for such provisions that specifically
survive the termination of this Agreement.
15. Buyer Failure to
Close.
If Buyer fails to close the transaction for purchase
of the Property when required by this Agreement, as Seller’s sole and exclusive remedy for Buyer’s breach or default, this
Agreement shall terminate and the parties shall have no further obligations to each other except for such provisions that specifically
survive the termination of this Agreement. Seller and Buyer acknowledge that it would be extremely impractical and difficult to ascertain
actual damages that would be suffered by Seller if Buyer fails to consummate the purchase of the Property as and when contemplated by
this Agreement. This liquidated damages provision shall not limit Seller’s right to (i) receive reimbursement for or recover
damages in connection with any obligations of Buyer that survive the Closing or the termination of this Agreement (such as the indemnities
set forth in Paragraph 19.F) or (ii) pursue any and all remedies available at law or in equity in the event that,
following any termination of this Agreement, Buyer or any party related to or affiliated with Buyer asserts any claims or right to the
Property that would otherwise delay or prevent Seller from having clear, indefeasible and marketable title to the Property.
16. Possession.
Buyer is currently in possession of the Property
as Tenant under the Lease, and Buyer shall remain in possession of the Property upon Closing.
17. Sale “As Is”.
Except as specifically
set forth in this Agreement, Buyer represents that it is a knowledgeable and experienced buyer of real estate and that, in purchasing
the Property, Buyer shall rely solely on (i) its own expertise and that of its consultants, and (ii) its own knowledge of the
Property based on its investigations and inspections of the Property. Buyer has conducted or will conduct such inspections and investigations
of the Property as Buyer has deemed or will deem necessary, including the physical and environmental conditions thereof and shall rely
upon such independent investigation of the Property. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD
AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER, EXPRESSED
OR IMPLIED, AS TO HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Upon Closing, Buyer
shall assume the risk that adverse matters and physical and environmental conditions may not have been revealed by Buyer’s inspections
and investigations. Buyer acknowledges and agrees that upon closing, Seller shall sell and convey to Buyer and Buyer shall accept the
Property in its “AS-IS, WHERE-IS,” condition WITH ALL FAULTS, subject to any and all defects (latent and apparent). The terms
and conditions of this Paragraph 17 shall expressly survive the Closing or earlier termination of this Agreement. Seller is
not liable or bound in any manner by any oral or written statements, representations, or information pertaining to the Property furnished
by Seller, any real estate broker, contractor, agent, employee, servant or other person, unless the same are specifically set forth in
this Agreement. Buyer acknowledges that the Purchase Price reflects the “As Is, Where Is” nature of this sale and any faults,
liabilities, defects or other adverse matters that may be associated with the Property.
18. Confidentiality.
A. Buyer
acknowledges and agrees that any and all information, whether written or verbal, regarding the physical condition or environmental status
of the Property, provided to Buyer by Seller or by any employee, agent, environmental consultant or attorney of Seller (collectively,
a “Seller Party”), shall be considered the sole and exclusive property of Seller and is considered and will be kept
confidential by Buyer in perpetuity and will not be discussed with or provided to any third party, other than those employees or agents
of Buyer who are essential to completing the transactions contemplated by the Purchase and Sale Agreement, without the prior written consent
of Seller, which consent shall not be unreasonably withheld. With respect to any reports provided to Buyer by Seller or by any Seller
Party, Buyer specifically acknowledges that (i) Seller makes no representations or warranties of any kind whatsoever with respect
to the truth, accuracy, or completeness of any such reports; (ii) such reports are not intended to be relied upon by Buyer or as
a substitute for the complete and thorough investigation of the Property by Buyer; and (iii) Buyer assumes all risks of relying upon
such reports.
B. Buyer
agrees that any and all information obtained by Buyer relating to Buyer’s inspection and investigation of the Property, including
the results of the Inspection or the Environmental Testing, shall be deemed confidential and subject to the terms of this Agreement as
if supplied to Buyer by Seller hereunder.
C. Buyer
acknowledges and agrees that any and all information regarding the physical condition or the environmental status of the Property provided
to Buyer, essential employees or agents of Buyer, or other acceptable third parties under this Agreement, shall be promptly turned over
to Seller as directed in writing by Seller’s counsel in the event Buyer does not proceed with its proposed purchase of the Property.
D. Notwithstanding
anything herein contained to the contrary, in the event Buyer is required to disclose any such information to any governmental authority
pursuant to applicable law, prior to disclosing the same, Buyer shall notify Seller in writing and provide Seller with copies of all information
that Buyer intends to disclose. Such notice and information shall be provided to Seller by Buyer in writing at least ten (10) days
prior to the disclosure of the same to any such governmental authority. Buyer shall cooperate with Seller to the extent permitted by applicable
law if Seller notifies Buyer that Buyer wishes to enjoin or otherwise prevent disclosure to any such governmental authority.
E. Seller
shall be entitled to injunctive relief if Buyer fails to comply with any of its obligations pursuant to this Paragraph 18.
F. Notwithstanding
anything to the contrary herein, Buyer shall not be prohibited from making any disclosures or delivering any information to the Third
Party Buyer, including, without limitation, its employees, agents, consultants, and attorneys.
19. Miscellaneous.
A. Final
and Entire Agreement; Integration. This Agreement is the final, entire and exclusive agreement between the parties and supersedes
any and all prior agreements (including the Lease), negotiations and communications, oral or written, with respect to the transactions
contemplated herein. No representation, promise, inducement or statement of intention has been made by any of the parties not embodied
in this Agreement or in the documents referred to herein, and no party shall be bound by or liable for any alleged representation, promise,
inducement or statements of intention not set forth or referred to in this Agreement. No supplement, modification, or amendment to this
Agreement shall be binding or effective unless executed in writing by the parties and by no other means.
B. Successors
and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective shareholders,
partners, directors, officers, heirs, beneficiaries, successors, representatives and assigns.
C. Assignment.
No party to this Agreement may assign its rights or delegate its duties hereunder without the prior written consent of all parties to
this Agreement; provided, however, that Seller agrees that Buyer may designate in writing an unaffiliated third party (“Third
Party Buyer”) as the grantee under the Grant Deed to be delivered by Seller at Closing, and Seller shall name Third Party Buyer
as the grantee under the Grant Deed, but any such designation shall not relieve Buyer of its obligations hereunder.
D. Notices.
Any notice, demand, consent, approval or documents which any party is required or may desire to give or deliver to the other shall be
given in writing by (i) personal delivery; (ii) certified mail, return receipt requested, postage prepaid; (iii) a national
overnight courier service that provides written evidence of delivery; or (iv) facsimile or email transmission and addressed as follows:
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To Seller: |
[] |
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With a copy to: |
[] |
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To Buyer: |
Faraday & Future Inc. |
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18455 S. Figueroa St. |
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Gardena, CA 90248 |
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Attention: Jonathan Maroko |
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Email: jonathan.maroko@ff.com |
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With a copy to: |
Sidley Austin LLP |
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1999 Avenue of the Stars, 17th Floor |
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Los Angeles, CA 90067 |
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Attention: Keith Del Prete, Esq. |
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Email: kdelprete@sidley.com |
Any party may change its notice or email address, and/or
facsimile number by giving written notice thereof in accordance with this paragraph. All notices hereunder shall be deemed given: (a) if
delivered personally, when delivered; (b) if sent by certified mail, return receipt requested, postage prepaid, on the third day
after deposit in the U.S. mail; (c) if sent by overnight courier, on the first business day after delivery to the courier; and
(d) if sent by facsimile or email, on the date of transmission if sent on a business day before 5:00 p.m. Pacific time,
or on the next business day; if sent on a day other than a business day or if sent after 5:00 p.m. Pacific time, provided that a
hard copy of such notice is also sent by either a nationally recognized overnight courier or by U.S. mail, first class, postage prepaid.
E. Attorneys’
Fees. In the event any suit, action or proceeding is instituted by any party in connection with the breach, enforcement or interpretation
of this Agreement, the prevailing party therein shall be entitled to the award of reasonable attorneys’ fees and related costs in
addition to whatever relief the prevailing party may be awarded.
F. Real
Estate Commission. Buyer represents and warrants to Seller that no broker has been engaged by it in connection with the transaction
contemplated by this Agreement. Seller represents and warrants to Buyer that no broker has been engaged by it in connection with the transaction
contemplated by this Agreement. Buyer covenants and agrees to pay any and all commissions due to Buyer’s Broker in connection with
this Agreement pursuant to a separate written commission agreement and any other broker or finder claiming a commission or fee through
Buyer. Each party shall indemnify, protect, defend and hold harmless the other party, including reasonable attorneys’ fees, in respect
of any breach of such representation and warranty, which indemnity shall survive the Closing or earlier termination of this Agreement.
G. Severability.
The invalidity, illegality, or unenforceability of any provision of this Agreement shall in no way affect the validity of any other provision
of this Agreement. In the event that any provision of this Agreement is contrary to any present or future statute, law, ordinance, or
regulation, the latter shall prevail, but in any such event the provisions of this Agreement affected shall be curtailed and limited only
to the extent necessary to bring it within the requirements of the law.
H. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of any
legal action arising from this Agreement, the parties agree that venue shall be proper in any state or federal court located in Kings
County, California.
I. Waiver.
The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of such provision
or any other provision hereof. No waiver shall be binding unless executed in writing by the party making the waiver. The failure of either
party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be
deemed a waiver of that term, covenant, or condition.
J. Counterparts
and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed
to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign
and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other e-mail transmission), which signature shall
be binding on the party whose name is contained therein. Any party providing an electronic signature agrees to promptly execute and deliver
to the other parties an original signed Agreement.
K. Review;
Interpretation. Each party to this Agreement has carefully reviewed this Agreement, is familiar with the terms and conditions herein,
and was advised by legal counsel of his or its own choice with respect thereto. This Agreement is the product of negotiation among the
parties hereto and is not to be interpreted or construed against any party hereto.
L. Headings;
Constructions. The headings which have been used throughout this Agreement have been inserted for convenience of reference only and
do not constitute matter to be construed in interpreting this Agreement. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the
context requires otherwise. The words “herein”, “hereof”, “hereunder” and other similar compounds
of the word “here” when used in this Agreement shall refer to the entire Agreement and not to any particular provision or
section. If the last day of any time period stated herein shall fall on a Saturday, Sunday or legal holiday, then the duration of such
time period shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sunday or legal holiday.
M. Nonliability.
The parties agree that, in the event any party is a corporation, neither the directors, officers, employees, shareholders nor any agents
of any such corporation shall have any personal liability or obligation hereunder, and that each party shall not seek to assert any claim
or enforce any of its rights hereunder against such directors, officers, employees, shareholders or agents, whether disclosed or undisclosed.
N. Survival.
All of the representations, warranties, covenants, indemnities and agreements set forth herein shall survive the closing of the transaction
and the delivery of the deed for a period of one (1) year. No claim for a breach of any representation or warranty of Seller shall be
actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was known
to Buyer prior to Closing, including the existence of hazardous materials within the boundaries of the Land or within the Improvements
from any source (including any environmental reports).
O. Number,
Gender and Tense. All words used in this Agreement shall be construed to include the plural as well as the singular number, the present
tense shall include the past and future tense, and the masculine gender shall include the feminine and neuter gender.
P. Mutual
Cooperation. The parties agree to cooperate with each other to effectuate this Agreement and to execute any and all additional documents
and to take such additional action as may be necessary or appropriate to accomplish the intent and purposes of this Agreement.
Q. Independent
Counsel. Each party to this Agreement represents and warrants that he has carefully reviewed and understands this Agreement, acknowledges
that he has been advised to seek his own independent legal counsel with respect to this Agreement and the transactions contemplated hereby,
has sought the advice of independent counsel of his own choosing or has knowingly and voluntarily declined the opportunity to obtain such
counsel and signs this Agreement freely, knowingly and voluntarily. Buyer hereby represents and warrants to Seller that: (i) Buyer
is not in a significantly disparate bargaining position in relation to Seller, and (ii) Buyer is purchasing the Property for business,
commercial, investment or other similar purpose.
R. Time
of Essence. Time is of the essence with respect to all matters contained in this Agreement.
S. Limitation
of Damages. Notwithstanding anything in this Agreement to the contrary, Seller shall not be liable for any consequential, punitive
or other such damages for any failure to close, to breach, or default of this Agreement.
T. Exchange
Cooperation. Buyer and Seller agree to cooperate with each other in accomplishing a tax-deferred exchange for either party under Section 1031
of the Internal Revenue Code, which shall include the signing of reasonably necessary exchange documents; provided, however, that (i) neither
party shall incur any additional liability or financial obligations as a consequence of such exchange, (ii) such exchange shall not
delay the Closing Date, and (iii) neither party shall be required to take title to any property as part of an exchange other than
Buyer receiving title to the subject property herein. This Agreement is not subject to or contingent upon either party’s ability
to effectuate a deferred exchange. In the event any exchange contemplated by either party should fail to occur, for whatever reason, the
sale of the subject property shall nonetheless be consummated as provided herein.
U. Further
Acts. The parties agree to cooperate with each other to effectuate this Agreement. In addition to the acts recited in this Agreement
to be performed by Seller and Buyer, Seller and Buyer agree to perform or cause to be performed before or after the Closing any and all
such further acts as may be reasonably necessary or appropriate to accomplish the intent and purposes of this Agreement and to consummate
the transaction contemplated hereby.
[Signatures on the following page]
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
SELLER:
[]
BUYER:
FARADAY&FUTURE INC.,
a California corporation
EXHIBIT “A”
Legal Description of Land
The Land referred to herein below is situated in the City of Hanford,
County of Kings, State of California, and is described as follows:
PARCEL 2 OF PARCEL MAP, IN THE CITY OF HANFORD, COUNTY OF KINGS, STATE
OF CALIFORNIA, ACCORDING TO THE MAP THEREOF RECORDED DECEMBER 13, 2006 IN BOOK 18, PAGE 32 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM 1/2 OF ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES
IN, UPON OR UNDER SAID LAND, AS RESERVED IN THE DEED FROM JOHN A. BENNINGER, ADMINISTRATION, DATED DECEMBER 17, 1943 AND RECORDED DECEMBER
21, 1943 IN BOOK 299, PAGE 162 OF OFFICIAL RECORDS, SUBJECT TO THE RESTRICTIONS AND PROVISIONS AGAINST SURFACE AND SUBSURFACE USE BY THE
THEN OWNERS THEREOF WHICH ARE CONTAINED IN THOSE CERTAIN QUITCLAIM DEEDS FROM SAID OWNERS RECORDED MAY 18, 1960 IN BOOK 759 AT PAGE 249
OF OFFICIAL RECORDS AND JUNE 10, 1960 IN BOOK 760 AT PAGE 324 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM AN UNDIVIDED 1/2 INTEREST IN AND TO ALL OIL,
GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY TIME HEREAFTER SITUATE THEREIN AND THEREUNDER AS CONVEYED TO THE CAPITAL COMPANY,
A CORPORATION, ITS SUCCESSORS AND/OR ASSIGNS, BY DEED RECORDED JUNE 10, 1960 IN BOOK 760 AT PAGE 322 OF OFFICIAL RECORDS, SUBJECT TO THE
RESTRICTIONS AND PROVISIONS AGAINST SURFACE AND SUBSURFACE USE BY SAID CAPITAL COMPANY, ITS SUCCESSORS AND/OR ASSIGNS, WHICH ARE CONTAINED
IN SAID DEED.
ALSO EXCEPTING FROM PARCEL 1, AN UNDIVIDED ONE-EIGHTH INTEREST IN AND
TO ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES AS CONVEYED TO AL C. BOINDIGER, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS
TO AN UNDIVIDED ONE-HALF INTEREST, ANDREW FROWSING, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS TO AN UNDIVIDED ONE-QUARTER INTEREST,
AND RICHARD FROWSING, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, AS TO AN UNDIVIDED ONE-QUARTER INTEREST AS CONVEYED IN GRANT DEED
RECORDED MAY 19, 1997 AS INSTRUMENT NO. 9709501, OFFICIAL RECORDS.
APN 028-030-046-000
EXHIBIT “B”
Contracts
None.
EXHIBIT “C”
Bill of Sale
BILL OF SALE
For and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration (including the Purchase Price), the receipt and sufficiency of which are hereby acknowledged,
Hanford Business Park, LLC, a Delaware limited liability company (“Seller”), does hereby assign, grant, bargain, sell,
transfer, convey, and deliver to [] (“Buyer”), all of Seller’s right, title and interest in and to any and all
Personal Property, Improvements, and Intangible Property in connection with that certain real property known as 10701 Idaho Avenue, Hanford,
California 93230.
Capitalized terms used in this Bill of Sale and
not otherwise defined herein or therein shall have the meaning ascribed thereto in that certain Purchase and Sale Agreement, dated as
of October________ __, 2023, between Seller and Faraday&Future, Inc., a California corporation (collectively, the “Purchase
and Sale Agreement”). Except as explicitly set forth in the Purchase and Sale Agreement, the property transferred hereby is
transferred “as-is” and “where-is,” without any representations or warranties express or implied, including, without
limitation, implied warranties of fitness for any particular purpose or merchantability or any other warranties whatsoever. Signatures
to this Bill of Sale transmitted by electronic transmission, PDF format, facsimile or DocuSign shall be valid and effective to bind the
parties so signing and transmitting.
Date: _________, 2023
EXHIBIT “F”
FORM OF INSURANCE SERVICES AGREEMENT
Exhibit F-1
Exhibit 10.2
GUARANTY OF LEASE
THIS GUARANTY OF LEASE (this
“Guaranty”) is made by FARADAY FUTURE INTELLIGENT ELECTRIC, INC., a Delaware corporation (the “Guarantor”),
to 10701 IDAHO OWNER, LLC (the “Landlord”), with respect to the Lease Agreement (the “Lease”) dated
October 19, 2023 between Landlord and FARADAY&FUTURE INC., a Delaware corporation (the “Tenant”), relating to certain
premises located at 10701 Idaho Ave, Hanford, CA (the “Property”).
In consideration of the Lease,
and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Guarantor hereby covenants and
agrees for the benefit of Landlord, as a material inducement to Landlord’s execution of the Lease, as follows:
1. The
Guarantor absolutely, unconditionally and fully guarantees: (i) the payment of all rent, monies and charges expressed to be payable by
Tenant under the Lease at the times the same are required to be paid thereunder; (ii) the performance when due of all and each of the
covenants, conditions and obligations contained in the Lease to be kept, performed or observed by Tenant; and (iii) all damages owing
to Landlord by Tenant after termination of the Lease following a default thereof by Tenant. The Guarantor agrees that if Tenant fails
to pay any monetary obligation as required by the Lease, the Guarantor, after receipt of written demand therefor by Landlord, shall pay
such obligation when required of Tenant under the Lease as if such obligation constituted the direct and primary obligation of the Guarantor.
The Guarantor shall indemnify, defend and hold Landlord harmless from any and all losses, liabilities, costs and damages arising out of
any failure by Tenant to pay or perform as required hereunder, or the recapture of any rent, monies or charges as a preferential transfer
pursuant to any state or federal bankruptcy law.
2. In
such manner, upon such terms and at such times as Landlord shall deem best, and without notice to or the consent of the Guarantor, Landlord
may alter, compromise, extend or change the time or manner for the performance of any obligation hereby guaranteed, substitute or add
any one or more the Guarantors, accept additional or substituted security for the performance of any such obligation, or release or subordinate
any security therefor, any and all of which may be accomplished without any effect on the obligations of the Guarantor hereunder. No exercise
or non-exercise by Landlord of any right hereby given, no dealing by Landlord with Tenant, any other guarantor or other person, and no
change, impairment or suspension of any right or remedy of Landlord shall in any way affect any of the obligations of the Guarantor hereunder
or any security furnished by the Guarantor or give the Guarantor any recourse against Landlord.
3. The
Guarantor hereby waives and agrees not to assert or take advantage of the following:
(a) any
right to require Landlord to proceed against Tenant or any other person or to proceed or exhaust any security held by Landlord at any
time or to pursue any other remedy in Landlord’s power before proceeding against the Guarantor.
(b) any
defense based on the statute of limitation in any action hereunder or in any action for the performance of any obligation hereby guaranteed;
(c) any
defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or persons or the failure
of Landlord to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person
or persons;
(d) any
right to receive demands, protests and notices of any kind including, but not limited to, notice of the existence, creation or incurring
of any new or additional obligation or of any action or non-action on the part of Tenant, Landlord or any other person;
Lease Guaranty
10701 Idaho Ave, Hanford, CA
(e) any
defense based on an election of remedies including, but not limited to, any action by Landlord which shall destroy or otherwise impair
any subrogation right of the Guarantor or the right of the Guarantor to proceed against Tenant for reimbursement or contribution or any
rights or benefits under any provisions of California law in any way qualifying, conditioning or limiting the obligations of the Guarantor
based on any steps or procedures that Landlord should take before proceeding against the Guarantor; the Guarantor wishes by this paragraph
to waive the rights and defenses permitted to be waived under Section 2856 of the California Civil Code, by which the Guarantor may provide
the following:
The Guarantor waives all rights and defenses arising
out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect
to security for a guaranteed obligation, has destroyed the Guarantor’s rights of subrogation and reimbursement against the principal
by operation of Section 580d of the Code of Civil Procedure or otherwise;
(f) any
duty on the part of Landlord to disclose to the Guarantor any facts Landlord may now or hereafter know about Tenant, regardless of whether
Landlord has reason to believe that such facts materially increase the risk beyond that which the Guarantor intends to assume or has reason
to believe that such facts are unknown to the Guarantor or has a reasonable opportunity to communicate such facts to the Guarantor, it
being understood and agreed that the Guarantor is fully responsible for being and keeping informed of the financial condition of Tenant
and of all circumstances bearing on the risk of non-performance of any obligation hereby guaranteed;
(g) any
rights or benefits in favor of the Guarantor under Sections 2815, 2819, 2839, 2845, 2849 or 2850 of the California Civil Code or under
Sections 364 or 1111(b) of 11 U.S.C.;
(h) any
transfer of Landlord’s interest in the premises demised pursuant to the Lease;
(i) any
transfer of Tenant’s interest as tenant under the Lease or any part thereof or any sublease or assignment by Tenant;
(j) any
merger or consolidation of Tenant or sale of all or a substantial portion of Tenant’s assets;
(k) any
sale of all or any portion of any capital stock of Tenant or partnership interest in Tenant owned by the Guarantor; or
(l) any
prior or concurrent representation, understanding, promise or condition concerning the subject matter hereof which is not expressed herein,
which are of no effect.
In addition to the foregoing,
the Guarantor hereby waives notice of acceptance of this Guaranty of Lease by Landlord and this Guaranty of Lease shall immediately be
binding upon the Guarantor.
4. Until
all obligations hereby guaranteed shall have been fully performed, the Guarantor shall have no right of subrogation and waives any right
to enforce any remedy which Landlord now has or may hereafter have against Tenant and any benefit of, and any right to participate in,
any security now or hereafter held by Landlord.
5. All
existing and future obligations of Tenant to the Guarantor or any person owned in whole or in part by the Guarantor and the right of the
Guarantor to cause or permit itself or such person to withdraw any capital invested in Tenant are hereby subordinated to all obligations
hereby guaranteed and, without the prior written consent of Landlord, such obligations to the Guarantor shall not be performed and such
capital shall not be withdrawn, in whole or in part, while Tenant is in default under the Lease.
Lease Guaranty
10701 Idaho Ave, Hanford, CA
6. The
amount of the Guarantor’s liability and all rights, powers and remedies of Landlord hereunder and under any other agreement now
or at any time hereafter in force between Landlord and the Guarantor shall be cumulative and not alternative, and such rights, powers
and remedies shall be in addition to all rights, powers and remedies given to Landlord at law or in equity. This Guaranty of Lease is
in addition to and exclusive of the guaranty of any other guarantor of any obligation of Tenant to Landlord.
7. The
obligations of the Guarantor hereunder are independent of the obligations of Tenant under the Lease and, in the event of any default hereunder
or under the Lease, a separate action or actions may be brought and prosecuted against the Guarantor, whether or not Tenant is joined
therein or a separate action or actions are brought against Tenant. Landlord may maintain successive actions for other defaults. Landlord’s
rights hereunder shall not be exhausted by its exercise of any of its rights or remedies or by any such action or by any number of successive
actions until and unless all obligations hereby guaranteed shall have been fully performed.
8. The
Guarantor shall pay to Landlord, upon demand, reasonable attorneys’ fees and all costs and other expenses which Landlord shall expend
or incur in collecting or compromising any obligation hereby guaranteed or in enforcing this Guaranty of Lease against the Guarantor,
whether or not suit is filed including, but not limited to, reasonable attorneys’ fees, costs and other expenses incurred by Landlord
in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceeding involving the Guarantor which in
any way affects the exercise by Landlord of its rights and remedies hereunder.
9. Should
any one or more provisions of this Guaranty of Lease be determined to be illegal or unenforceable, all other provisions shall nevertheless
be effective.
10. This
Guaranty of Lease shall inure to the benefit of Landlord and its successors and assigns and shall bind the heirs, legal representatives,
executors, administrators, successors and assigns of the Guarantor. This Guaranty of Lease may be assigned by Landlord concurrently with
the transfer of title to property covered by the Lease and, when so assigned, the Guarantor shall be liable to the assignee without in
any manner affecting the liability of the Guarantor hereunder. The acceptance by Landlord of the performance of any of Tenant’s
obligations under the Lease by the Guarantor, including, without limitation, the acceptance of rent payments, shall not constitute an
assignment of the Lease to the Guarantor or Landlord’s consent to such assignment.
11. Satisfaction
by the Guarantor of any liability hereunder incident to a particular default shall not discharge the Guarantor except for the default
satisfied. This Guaranty of Lease and the obligations of the Guarantor hereunder shall be continuing and irrevocable until: (i) Landlord
has received full payment of all rents, monies and charges due under the Lease and full performance of all of the obligations due under
the Lease or to become due during the term of the Lease, including any option to extend thereunder; (ii) any applicable preference period
under state or federal bankruptcy law has expired; or (iii) Landlord has released the Guarantor from the obligations of Tenant under the
Lease, which may be accomplished by only an instrument in writing signed by Landlord. Upon full performance of all obligations hereby
guaranteed, this Guaranty of Lease shall be of no further force or effect.
12. No
provision of this Guaranty of Lease or right of Landlord hereunder can be waived or modified, nor can the Guarantor be released from the
Guarantor’s obligations hereunder, except by a writing duly executed by Landlord.
Lease Guaranty
10701 Idaho Ave, Hanford, CA
13. When
the context and construction so require, all words used in the singular herein shall be deemed to have been used in the plural and the
masculine shall include the feminine and neuter and vice versa. The word “person” as used herein shall include any individual,
company, firm, association, partnership, corporation, trust or other legal entity of any kind whatsoever.
14. If
two (2) or more persons are signing this Guaranty of Lease as the Guarantor, then all such persons shall be jointly and severally liable
for the obligations of the Guarantor hereunder.
15. This
Guaranty of Lease shall be governed by and construed in accordance with the laws of the State of California. In any action brought under
or arising out of this Guaranty of Lease, the Guarantor hereby consents to the jurisdiction of any competent court within the State of
California and hereby consents to service of process by any means authorized by California law. This Guaranty of Lease shall constitute
the entire agreement of the Guarantor with respect to the subject matter hereof and no representation, understanding, promise or condition
concerning the subject matter hereof shall be binding upon Landlord unless expressed herein.
16. Without
limiting the generality of the foregoing, the liability of the Guarantor under this Guaranty shall not be deemed to have been waived,
released, discharged, impaired or affected by reason of: (a) the termination of the term of the Lease; (b) the release or discharge of
Tenant in any receivership, bankruptcy, winding-up or other creditors’ proceedings or the rejection, disaffirmance or disclaimer
of the Lease by any party in any such proceeding; (c) the repossession of the Property demised under the Lease by Landlord, provided,
however, that the net payments received by Landlord after deducting all costs and expenses of repossessions and/or reletting such Property
shall be credited from time to time by Landlord to the account of the Guarantor; or (d) any amendment of the terms of the Lease without
the Guarantor’s consent; provided, however, the Guarantor reserves the right to assert defenses which Tenant may have had to payment
of any of the guaranteed obligations other than defenses arising from the bankruptcy, insolvency or reorganization of Tenant and other
defenses expressly waived hereby.
17. The
Guarantor, promptly from time to time upon request, shall execute and deliver to Landlord: (a) an estoppel certificate containing such
truthful information as Landlord may reasonably request; and (b) such further instruments or documentation as may reasonably be requested
by Landlord to ratify and confirm this Guaranty of Lease and the continuing liability of the Guarantor hereunder.
DATED: October 19, 2023.
[SIGNATURE ON IMMEDIATELY
FOLLOWING PAGE]
Lease Guaranty
10701 Idaho Ave, Hanford, CA
|
GUARANTOR |
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FARADAY FUTURE INTELLIGENT ELECTRIC INC., |
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a Delaware corporation |
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By: |
/s/ Matthias Aydt |
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Name: |
Matthias Aydt |
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Title: |
Global Chief Executive Officer |
Lease Guaranty
10701 Idaho Ave, Hanford, CA
5
Exhibit 99.1
Faraday
Future Completes the Sale-Leaseback of its Hanford, California
Manufacturing Facility
| ● | Expected to generate up to $12 million of capital for facility improvements
supporting vehicle production ramp-up |
Los Angeles, CA (Oct. 19, 2023) -- Faraday Future Intelligent
Electric Inc. (NASDAQ: FFIE) (“Faraday Future”, “FF” or “Company”), a California-based global shared
intelligent electric mobility ecosystem company, today announced that it has exercised its option to purchase its Hanford, California
manufacturing facility and simultaneously completed a sale leaseback. This transaction is expected to generate up to $12 million
of non-dilutive capital that can be used toward the completion of plant improvements and infrastructure enhancements to facilitate FF
91 2.0 Futurist Alliance production ramp-up.
The Hanford manufacturing plant, officially
called ‘FF ieFactory California’ is a one million square foot state-of-the-art facility that uses highly skilled
craftsmanship and leading-edge automated production. The facility, where the Ultimate AI TechLuxury FF 91 2.0 Futurist Alliance is
currently produced, is situated between technology-focused Silicon Valley and FF’s Global HQ in Los Angeles. It is expected
that the plant, upon completion of the factory build-out, will have the capacity to produce approximately 10,000 vehicles per year.
FF announced the start of production and completion of its first production build vehicle coming off its production line at FF
ieFactory California earlier this year.
“Our Hanford manufacturing facility is an integral part of our
overall operations and has been manufacturing production series models of our FF 91 2.0 Futurist Alliance since earlier this year,”
said Matthias Aydt, Global CEO of FF. “This agreement will help us make the necessary continued investments and improvements to
the Hanford plant that will facilitate increased production and deliveries of the FF 91 2.0 Futurist Alliance.”
The Company recently announced the
continuation of its Co-Creation program and preliminary upcoming FF 91 2.0 Futurist Alliance deliveries for October as part of its
ongoing ‘Delivery Co-Creation Day’ plans. Specifically, the Company recently delivered the FF 91 2.0 Futurist Alliance
to its founder YT Jia and expects to deliver to global superstar and entrepreneur Chris Brown, and world champion race car driver
Justin Bell next. Large-scale deliveries remain one of the Company's top strategic goals.
Users can preorder
an FF 91 vehicle via the FF Intelligent App or through the Company’s website at: (English):
https://www.ff.com/us/preorder/ or (Chinese): https://www.ff.com/cn/preorder/
Download the new FF Intelligent App: http://appdownload.ff.com
ABOUT FARADAY FUTURE
Faraday Future is the pioneer of the Ultimate AI TechLuxury ultra spire
market in the intelligent EV era, and the disruptor of the traditional ultra-luxury car civilization epitomized by Ferrari and Maybach.
FF is not just an EV company, but also a software-driven intelligent internet company. Ultimately FF aims to become a User Company by
offering a shared intelligent mobility ecosystem.
FOLLOW FARADAY FUTURE
https://www.ff.com/
https://www.ff.com/us/mobile-app/
https://twitter.com/FaradayFuture
https://www.facebook.com/faradayfuture/
https://www.instagram.com/faradayfuture/
www.linkedin.com/company/faradayfuture/
FORWARD LOOKING STATEMENTS
This press release includes “forward looking
statements” within the meaning of the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995.
When used in this press release the words “estimates,” “projected,” “expects,” “anticipates,”
“forecasts,” “plans,” “intends,” “believes,” “seeks,” “may,” “will,”
“should,” “future,” “propose” and variations of these words or similar expressions (or the negative
versions of such words or expressions) are intended to identify forward-looking statements. These forward-looking statements involve a
number of known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside the Company’s
control, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. Important
factors, among others, that may affect actual results or outcomes include, among others: the Company’s ability to continue as a
going concern and improve its liquidity and financial position; the Company’s ability to execute on its plans to develop and market
its vehicles and the timing of these development programs; the Company’s estimates of the size of the markets for its vehicles and
cost to bring those vehicles to market; the rate and degree of market acceptance of the Company’s vehicles; the success of other
competing manufacturers; the performance and security of the Company’s vehicles; potential litigation involving the Company; the
Company’s ability to satisfy the conditions precedent and close on the various financings described elsewhere by the Company; the
result of future financing efforts, the failure of any of which could result in the Company seeking protection under the Bankruptcy Code;
general economic and market conditions impacting demand for the Company’s products; potential cost, headcount and salary reduction
actions may not be sufficient or may not achieve their expected results; and the ability of the Company to attract and retain employees,
any adverse developments in existing legal proceedings or the initiation of new legal proceedings, and volatility of the Company’s
stock price. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors”
section of the Company’s Form 10-K/A filed with the Securities and Exchange Commission (“SEC”) on August 21, 2023, and
other documents filed by the Company from time to time with the SEC. These filings identify and address other important risks and uncertainties
that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking
statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and
the Company does not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information,
future events or otherwise, except as required by law.
CONTACTS
Investors (English): ir@faradayfuture.com
Investors (Chinese): cn-ir@faradayfuture.com
Media: john.schilling@ff.com
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