**Exhibit10.8**

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**ADDENDUM TO**

**STANDARD INDUSTRIAL/COMMERCIAL SINGLE-TENANT LEASE - NET**

**BY AND BETWEEN BFG2011 LIMITED LIABILITY COMPANY (LESSOR)**

**AND SUPREME INDIANA OPERATIONS, INC. (LESSEE)**

** FOR THE PREMISES LOCATED**

**AT 22201 and 22135 ALESSANDRO BLVD., MORENO VALLEY, CALIFORNIA**

 

THIS ADDENDUM TO STANDARD INDUSTRIAL COMMERCIAL SINGLE-TENANT LEASE-NET (“Addendum”) is made and entered into as of May 12, 2011 by and between BFG2011 LIMITED LIABILITY COMPANY, a New Jersey limited liability company, doing business in California as “22135 ALESSANDRO, LLC” (“Lessor”), and SUPREME INDIANA OPERATIONS, INC., a Delaware corporation (“Lessee”), and is attached to and incorporated into that certain Standard Industrial Commercial Single-Tenant Lease-Net (the “Form Agreement”).  The Form Agreement and this Addendum are collectively referred to as this “Lease.”  Except as otherwise defined herein, all capitalized terms used herein shall have the meanings ascribed to them in the Form Agreement.  To the extent that the provisions of this Addendum are inconsistent with the terms and conditions of the Form Agreement, the terms of this Addendum shall control.

 

51.           Rent.

 

(a)           Adjustment of Base Rent for Additional Financing Costs.  Concurrently with this Lease, Lessor is obtaining a loan in the original principal of $2,200,000 from Rumson Fair Haven Bank and Trust Company that shall be secured by the Premises (the “Loan”).  Commencing as of May 1, 2016, the Base Rent shall increase from time to time by the amount that Lessor’s Financing Costs during any Lease Year exceeds the amount of Lessor’s Financing Costs for the Premises during the Base Year.  Such excess is referred to herein as the “Excess Financing Costs.”  If Lessor reasonably believes there to be Excess Financing Costs during a Lease Year, Lessor shall deliver written notice to Lessee estimating the amount of the Excess Financing Costs and the monthly increase in the Base Rent to pay such Excess Financing Costs over such Lease Year.  Lessee shall pay such Excess Financing Costs as set forth in the written notice from Lessor; provided, however, that within ninety (90) days following the end of a Lease Year during which Lessee has made payments for Excess Financing Costs, Lessor shall provide a written reconciliation of the actual amount of the Excess Financing Costs.  If the amounts paid by Lessee for Excess Financing Costs exceed the actual amount of the Excess Financing Costs, then Lessee shall receive a credit in the amount of the overpayment by Lessee.  If the amounts paid by Lessee for the Excess Financing Costs are less than the actual amount of the Excess Financing Costs, then Lessee shall, within ten (10) days after the delivery of the written reconciliation, pay to Lessor the outstanding balance of the Excess Financing Costs.

 

(i)            “Lessor’s Financing Costs” are hereby defined as any and all costs and expenses incurred (directly or indirectly) by Lessor in connection with any loan made by a commercial lender that is secured by a deed of trust, mortgage or similar instrument encumbering the Premises (including, without limitation, interest, points and 

 

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fees but excluding any fees that are required to be paid under Paragraph 54(a) below or that Lessee is expressly not required to pay under Paragraph 54(a) below); provided however, in the event that the aggregate principal amount for any such loan(s) exceed $3,000,000 (the “Maximum Principal”), Lessee shall be only be responsible for the payment of the portion the Excess Financing Costs that is based upon the Maximum Principal.

 

(ii)           “Lease Year” shall mean the period between May 1st and April 30th during each year during the Term of this Lease.

 

(iii)          “Base Year” shall mean May 1, 2011 through April 30, 2012.

 

(iv)          For purposes of this Paragraph 51(a), Lessee acknowledges and understands that (A) the Loan will mature approximately ten (10) years after Lease Commencement Date; (B) the terms of the Loan contemplate that the rate of interest on amounts owing under the Loan may be adjusted starting as of the sixth (6th) year of the term of the Loan; and (C) after the Loan matures, Lessor may obtain new financing that will be subject to this Paragraph.

 

For purposes of the this Paragraph 51(a), under the financing that Lessor is contemplating to obtain for the Premises, Lessor anticipates that during years 6 through 10 of the Lease the interest rate of the Loan shall be increased; provided that in no event shall the Base Rent be decreased from the Base Rent in effect immediately preceding the adjustment.  Any delay by Lessor in notifying Lessee of any increase in the amount of Lessor’s Financing Costs will not impair Lessor’s rights under this Paragraph 51(a).  The parties further agree that (1) any reduction in Lessor’s Financing Costs will not result in any decrease of the amount of the Base Rent under this Paragraph 51(a), and (2) any increase under this Paragraph 51(a) shall be cumulative with any increase under Paragraph 51(b) and Paragraph 51 (c).

 

(b)           Scheduled Adjustments to Base Rent during the Term.  Base Rent shall be adjusted to be equal to the “Fair Market Rental Value” as defined below, provided that in no event shall the Base Rent be decreased from the Base Rent in effect immediately preceding the adjustment.  The adjustment of Base Rent to Fair Market Rental Value shall be effective on the fifth anniversary of the Commencement Date, and at the election of Lessor each year thereafter.

 

(i)            Definition of Fair Market Rental Value.  The “Fair Market Rental Value” of the Premises shall be the rental rate, determined in accordance with this Paragraph 51(b) for similar industrial space in the Moreno Valley, California area that is: (A) not subleased; (B) not subject to another tenant’s expansion rights; (C) comparable in size, location, and quality to the Premises; and (D) leased for a term comparable to the remaining term of the Original Term.

 

(ii)           Rental Rate of Comparable Space.  In determining the rental rate of comparable space, the parties shall include all escalations and take into consideration the following concessions: (A) rental abatement concessions, if any, being 

 

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granted to tenants in connection with the comparable space; and (B) tenant improvements or allowances provided or to be provided for the comparable space, taking into account the value of the existing improvements in the Premises, based on the age, quality, and layout of the improvements.

 

(iii)          Notice of Lessor’s Estimate of Fair Market Rental Value.  Within thirty (30) days after Lessor delivers to Lessee Lessor’s written notice electing to adjust the Base Rent under this Paragraph 51(b), Lessor shall deliver to Lessee a written notice (“Lessor’s Rent Notice”) to Lessee setting forth Lessor’s belief as to the Fair Market Rental Rate.  If Lessee agrees with the Fair Market Rental Value of Premises as set forth in the Lessor’s Rent Notice, then the Base Rent for the Premises shall be as set forth in the Lessor’s Rent Notice.

 

(iv)          Objection to Lessor’s Rent Notice.  If Lessee does not agree with Lessor’s belief as to the Fair Market Rental Value as set forth in the Lessor’s Rent Notice and if Lessee wishes to contest Lessor’s belief as to the Fair Market Rental Value in the Lessor’s Rent Notice, then Lessee must provide written notice to Lessor (within ten (10) days after Lessor’s delivery of the Lessor’s Rent Notice) stating that Lessee objects to Lessor’s belief as to the Fair Market Rental Rate.  If Lessee timely provides such written objection, the parties shall follow the procedure described in Paragraph 51(b)(v) below.  If Lessee fails to deliver a timely a written objection to Lessor’s Rent Notice, then, Lessee shall be deemed have accepted Lessor’s belief as to the Fair Market Rental Value of the Premises.

 

(v)           Dispute Resolution.  If Lessee timely and effectively objects to Lessor’s determination of Fair Market Rental Value under Paragraph 51(b)(iv), the disagreement shall be resolved under this Paragraph 51(b)(v).

 

(A)          Negotiated Agreement.  Lessor and Lessee shall diligently attempt in good faith to agree on the Fair Market Rental Value on or before the tenth (10th) day after Lessee’s objection to the Fair Market Rental Value under Paragraph 51(b)(iv) (the “Outside Agreement Date”).

 

(B)           Arbitration.  If Lessor and Lessee fail to reach agreement on or before the Outside Agreement Date, the Fair Market Rental Value shall be determined by arbitration under this Paragraph 51(b)(v)(B).

 

(1)           Parties’ Appointment of Arbitrators.  Within fifteen (15) days after the Outside Agreement Date, Lessor and Lessee shall each appoint one arbitrator and notify the other party of the arbitrator’s name and business address.  Each of the arbitrators must be a licensed real estate broker who has been active in the leasing of industrial properties in the Moreno Valley, California metropolitan area over the five-year (5-year) period ending on the date of his/her appointment as arbitrator(s).

 

(2)           Appointment of Third Arbitrator.  If each party timely appoints an arbitrator, the two (2) arbitrators shall, within ten (10) days after the appointment of the second arbitrator, agree on and appoint a third arbitrator (who shall be qualified under the same criteria set forth above for qualification of the initial 

 

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two (2) arbitrators but shall not have been employed by Lessor or Lessee during the immediately preceding five-year period) and provide notice to Lessor and Lessee of the arbitrator’s name and business address.

 

(3)           Arbitrators’ Decision.  Within thirty (30) days after the appointment of the third arbitrator, the three (3) arbitrators shall determine the Fair Market Rental Value and shall notify Lessor and Lessee of their decision.  The decision of the majority of the three (3) arbitrators shall be binding on Lessor and Lessee

 

(4)           If Only One Arbitrator Is Appointed.  If either Lessor or Lessee fails to appoint an arbitrator within fifteen (15) days after the Outside Agreement Date, the arbitrator timely appointed by one of them shall reach a decision and notify Lessor and Lessee of that decision within thirty (30) days after the arbitrator’s appointment.  The arbitrator’s decision shall be binding on Lessor and Lessee.

 

(5)           Cost of Arbitration.  The cost of the arbitration and the arbitrator shall be paid by Lessee.

 

(c)           Adjustment of Base Rent under Paragraph 57 and Paragraph 58.  If Lessor elects to adjust the Base Rent under Paragraph 57(a), or Paragraph 58 of this Lease, the Base Rent shall be adjusted to be equal to the Fair Market Rental Value as defined above.  The adjustment of the Base Rent shall be first effective upon the earlier of (1) upon the occurrence of the assignment consented to by Lessor under Paragraph 57 or a Permitted Transfer and (2) upon the transfer of the Premises by Lessor under Paragraph 58.  Commencing on this 5th anniversary, the Base Rent shall be adjusted, if at all, under Paragraph 51 (b) and not this Paragraph 51(c).

 

52.           Condition of Premises.  Lessee is the previous owner of the Premises and has been in continuous possession of the Premises prior to the Commencement Date.  Lessee accepts the Premises in “AS IS” condition.  Lessor makes no representations, covenants or warranties whatsoever concerning the condition of the Premises, and has no obligation to construct, remodel, improve, repair, decorate or paint the Premises, except as specifically set forth in this Lease.  Lessee confirms that it has inspected the Premises prior to execution of this Lease, and that Lessee is relying upon its own inspection in executing this Lease and not any statement, representation or warranty of Lessee, its agents, employees or contractors.  Lessee’s taking possession of the Premises shall be deemed to constitute conclusive evidence that as of the date of taking possession the Premises are in good order and satisfactory condition.

 

53.           Restrictions of Record.  Lessee acknowledges and understands the Project is subject to certain existing restrictions of record (including, without limitation, a declaration of covenants, conditions and restrictions).  Without limiting any of the other provisions in this Lease, Lessee acknowledges that it has an opportunity to review such existing restrictions of record and Lessee agrees that it shall not use or occupy the Premises in a manner that violates the terms and conditions of such restrictions of record.

 

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54.           Costs of Transaction.

 

(a)           The parties expressly acknowledge and agree that the intention of this Lease is to be a net lease under which Lessee is responsible for all costs and expenses relating to this Lease and the transactions contemplated herein.  Notwithstanding any provision in this Lease to the contrary, the parties agree that Lessee shall be responsible for all costs and expenses relating to the ownership, lease, use, maintenance, repair and restoration of the Premises, including, without limitation: any real property taxes; any gross receipt taxes incurred by Lessor as a result of the amounts paid by Lessee in connection with the Lease; any insurance premiums paid by Lessor in connection with the Premises (including, without limitation, any insurance maintained by Lessor under Paragraph 8 of the Form Lease); any capital expenditures required to be made in connection with the Building or any other improvements on the Premises, including, but not limited, all equipment, systems or other items referenced under Paragraph 7.1(b) of the Form Lease; subject to the limitations in Section 51, any points, fees (including, without limitation any fees in lieu of lender required compensating balances or similar requirements), or penalties (including, without limitation, prepayment penalties, yield maintenance payments or similar amounts) required to be paid by Lessor under any loan secured by a deed of trust, mortgage or similar instrument encumbering the Premises (but excluding any late charge or other penalty under any loan that is assessed as a result of Lessor’s failure to timely make a loan payment so long as Lessee has timely paid the Base Rent directly to Lessor), any brokerage commissions or finder’s fees resulting from Lessee’s failure to pay Base Rent relating to this Lease and the transactions contemplated herein; any commercially reasonable costs incurred by Lessor to inspect the Premises from time to time upon receipt by Lessor of written notice from a third party identifying issues with the condition of the Premises or as may be required by any commercial lender making, modifying or extending any loan secured by a deed of trust or mortgage encumbering the Premises; and any other costs incurred by Lessor (including, without limitation, attorneys’ fees) relating to or arising out of the preparation, negotiation and enforcement of this Lease and/or any other transactions contemplated under this Lease.

 

(b)           Without limiting any provision in this Lease to the contrary, with respect to any tax, fee, cost or expense for which Lessee is responsible, Lessor may (by written notice delivered to Lessee) elect from time to time to cause Lessee to be directly responsible to pay such costs and expenses to the appropriate authority (in the event of any taxes or fees) and/or vendor.  If Lessee is required to pay any taxes, fees, costs or expenses directly, then Lessee shall be required to provide Lessor with written evidence of the payment of such amounts at least five (5) days prior to the date such amounts are due.

 

55.           Property Insurance.  Lessee, as the Insuring Party under this Lease, shall (i) obtain Lessor’s prior written consent to the insurance required to be maintained by Lessee under Paragraph 8.3 of the Form Lease; and (ii) cause Lessor to be named as an additional named insured on the insurance required to be maintained under Paragraph 8.3 of the Form Lease.

 

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56.           Casualty Damage.

 

(a)           Obligation to Restore.  If the whole or any part of the Building or other improvements on the Premises are damaged or destroyed during the Original Term as a result of any casualty (including, without limitation, fire, flood or earthquake), then, except as otherwise provided in this Lease:

 

(i)            Lessee, at its sole cost and expense, shall repair, restore or rebuild the Building and all the improvements on the Premises to substantially the condition that existed prior to such damage or destruction; provided that Lessee shall also be responsible for constructing any additional improvements that may be required by any applicable governmental authorities in connection with the repair and/or restoration of the Building and all other improvements on the Premises, and

 

(ii)           Notwithstanding part (i), if the damage or destruction occurs during the last sixty (60) months of the Original Term and if cost to repair and/or restore the damaged improvements exceeds twenty-five percent (25%) of the value of the Property (in Lessor’s reasonable discretion), then Lessor, at its sole and absolute discretion may terminate this Lease.

 

(b)           No Abatement.  There shall be no abatement of the Base Rent or other amounts required to be paid by Lessee under this Lease as a result of any damage or destruction of the Building or other improvements.

 

(c)           Disposition of Insurance Proceeds on Termination.  Upon termination as aforesaid, this Lease and the Original Term hereof shall cease and come to an end, any unearned rent or other charges paid in advance by Lessee shall be refunded to Lessee and Lessor shall be entitled to receive and retain any and all insurance proceeds.

 

(d)           Disbursement of Insurance Proceeds.  All proceeds of fire and extended coverage insurance collected as a result of any casualty damage to the improvements on the Premises shall be held by Lessor or such other person as may be designated by Lessor, and such proceeds shall be disbursed by Lessor or such other person in progress payments to Lessee for the repair and/or restoration of the Building and other improvements on the Premises under Paragraph 56(a)(i) above.

 

(e)           Further Assurances.   Lessee shall execute and deliver to Lessor and perform such other obligations as Lessor may request in connection with the disbursement and application of any insurance proceeds.

 

(f)            Waiver.  This Lease sets forth the terms and conditions upon which this Lease may terminate in the event of any damage or destruction.  Accordingly, the parties hereby waive the provisions of California Civil Code Section 1932, Subsection 2, and Section 1933, Subsection 4 (and any successor statutes thereof permitting the parties to terminate this Lease as a result of any damage or destruction).

 

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57.           Lessor’s Rights upon an Assignment.

 

(a)           Without limiting any rights or remedies of Lessor under this Lease, upon either (i) a written request by Lessee to assign its rights under this Lease (other than Permitted Assignments, as defined in Paragraph 57(b) below), or (ii) the occurrence of any assignment other than Permitted Assignments (including, without limitation, as a result of any “change in the control of Lessee” as defined in Paragraph 66(e)), then Lessor may, at its sole and absolute discretion delivered by written notice within 30 days after Lessor becomes aware of the events in either (i) or (ii), either (1) elect to terminate this Lease effective within one hundred eighty (180) days after Lessor’s notice (or such longer period as may be elected by Lessor by written notice to Lessee (the “Assignment Termination Date”), or (2) elect to cause the Base Rent to be increased pursuant to Paragraph 51(c) of this Addendum.

 

(b)           Notwithstanding any provision in the Lease to the contrary, Lessor hereby consents to any assignment or transfer of Lessee’s entire right, title and interest in and to this Lease to any entity owned, controlled, or under common control with Lessee (“Permitted Assignments”).

 

(c)           No assignment of Lessee’s rights hereunder shall relieve Lessee of its liabilities and obligations under this Lease.

 

(d)           Notwithstanding Lessor’s election to terminate the Lease pursuant to Paragraph 57(a) above, if the Purchase Option Date (as defined in Paragraph 62(a) below) and Assignment Termination Date have not yet occurred, Lessee may notify Lessor that it has elected to exercise the Purchase Option (as provided in Paragraph 62).  For purposes of Lessee’s election under this Paragraph 57 (d), the closing of the purchase and sale of the Premises shall occur no later than One Hundred Eighty (180) days from the date of the written notice delivered under part (1) of Paragraph 57(a) above.

 

58.           Sale of the Premises by Lessor.  Upon the first sale of the Premises by Lessor after the date of this Lease, Lessor may cause the Base Rent to be increased pursuant to Paragraph 51(c) of this Addendum.

 

59.           Lessor’s Reservation of Rights.  Notwithstanding any provision in the Lease Agreement to the contrary, Lessee acknowledges and understands that Lessor is expressly reserving the following rights with respect to the Premises:

 

(a)           The right to install solar, wind and other energy producing equipment for the purpose of (i) servicing the Premises and/or (ii) producing power for third parties.

 

(b)           The right to lease or license portions of the Premises (including areas on the roof of the Building and areas in the parking lot of the Premises) to wireless communications providers for the installation and operation of communications facilities.

 

(c)           Lessee shall reasonably cooperate with Lessor’s exercise of its reserved rights under this Paragraph.  If and to the extent Lessor receives rent or other 

 

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compensation as a result of the rights reserved under this Paragraph, Lessee shall not be entitled to receive any amounts received by Lessor and/or to receive a deduction or abatement of any amounts required to be paid by Lessee under this Lease Agreement.

 

Lessor’s use of the Premises under (a) and (b) of this Paragraph 59 shall not unreasonably interfere with Lessee’s use of the Premises.

 

60.           Limitation on Liability for Lessor Affiliates**. **No present or future member, manager, shareholder, director officer, employee or agent of Lessor shall (a) have any personal liability in connection with this Lease, (b) be personally liable for any claim, demand or action arising out of or related to this Lease, or (c) be personally liable for any default or breach of this Lease by Lessor or Lessor’s contractors, agents, representatives, employees or invitees.  Lessee agrees that it will look solely to the assets of Lessor in the event of any default or breach by Lessor or any claim by Lessee under this Lease.

 

61.           Lessor Exculpation and Limitation on Liability.

 

(a)           Exculpation.   Except for claims directly attributable to the active gross negligence of Lessor as evidenced by a final judgment by a court of competent jurisdiction after the expiration of all applicable appeal periods, Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of damage to the Premises, injury and death to persons and all claims of any other nature resulting from Lessee’s use of all or any part of the Premises, and, notwithstanding the negligence or breach of this Lease by Lessor or its agents, Lessee hereby waives all claims in respect thereof against Lessor, Lessor’s property manager, any other occupant or tenant of the Project or any other person, to the extent permitted by law.  Neither Lessor nor its agents or employees shall be liable for loss of or damage to any property of Lessee by theft or otherwise.  Neither Lessor nor its employees or agents shall be liable for any defects in the Premises, nor shall Lessor be liable for the negligence or misconduct, including, but not limited to, criminal acts, by maintenance or other personnel or contractors serving the Premises or third parties.  All property of Lessee kept or stored on the Premises shall be so kept or stored at the risk of Lessee only, and Lessee shall indemnify, defend and hold Lessor harmless for, from and against, and shall be responsible for, any claims arising out of damage to the same, including subrogation claims by Lessee’s insurance carriers.  None of the events or conditions set forth in this Paragraph or in Paragraph 8.8 of the Form Lease shall be deemed a constructive or actual eviction or result in a termination of the Lease Agreement, nor shall Lessee be entitled to any abatement or reduction of Rent by reason thereof.

 

(b)           Limitation on Liability.  Notwithstanding anything to the contrary in the Lease Agreement, Lessor and Lessee agree that neither Lessor nor its members, managers, officers, employees, or agents will be liable and Lessee hereby waives and releases all claims, causes of action, or other rights of recovery it may ever have against Lessor or its members, managers, officers, employees, and agents for (i) theft or other crimes or similar misconduct on the Premises; (ii) negligent or other acts or omissions by occupants, users or contractors on the Premises or their employees, agents, contractors, customers, or visitors; (iii) loss or damage to Premises or injury or death to persons 

 

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resulting to any extent from any negligent or other act or omission of Lessee or its employees, agents, invitees, representatives, licensees or contractors at the Premises, from any failure of Lessee to comply with or perform its obligations under the Lease Agreement, or from the use and occupancy of the Premises by Lessee; (iv) any loss of business or profits of Lessee or other consequential damages; or (v) exemplary, punitive, or other special damages of any kind.

 

62.           Purchase Option.  Lessor grants to Lessee an option to purchase the Premises until April 30, 2016 (the “Purchase Option Date”) upon the terms and conditions set forth in the “Option to Purchase” attached hereto as Rider “1” attached hereto and incorporated by this reference (the “Purchase Option”).  If Tenant elects to exercise the Purchase Option, Tenant shall provide to Lessor written notice of Lessee’s election to purchase the Premises sixty (60) days prior to the Purchase Option Date.  The closing of the purchase and sale of the Premises under the Purchase Agreement (as defined in Rider “1”) shall occur on or before the Purchase Option Date through an escrow to be held at a Chicago Title Insurance Company.

 

(a)           Lessor shall execute and deliver to Lessee a memorandum of the Purchase Option in the form attached hereto as Rider “2” and incorporated by reference (the “Memorandum of Purchase Option”).  The Memorandum of Purchase Option shall be recorded in the Official Records of Riverside County, California.

 

(b)           If and to the extent that the Premises has been subject to a casualty or condemnation prior to the closing of the purchase under the Purchase Option, then all proceeds from such casualty shall be (i) assigned to Lessee to the extent that such amounts had not been paid to Lessor, and (ii) be credited against the purchase price to the extent such amounts had been paid to Lessor.

 

(c)           Without limiting the foregoing provisions of this Paragraph, the Purchase Agreement shall contain the following terms and conditions: (i) there shall be no right on the part of the Lessee to terminate the Purchase Agreement (as such term is defined in Rider “1) based upon a feasibility inspection; and (ii) the representations and warranties made by Lessor herein regarding the legal and physical condition of the Premises shall be restated in the Purchase Agreement.

 

(d)           Prior to termination of the Purchase Option or the purchase of the Premises pursuant to the Purchase Agreement, Lessor shall not place any lien or encumbrance against the Premises or otherwise cause or permit any document, agreement, restriction, and/or instrument to be recorded against the Premises (other than the memorandum of the Purchase Option) without Lessee’s prior written consent; provided, however, that Lessee shall consent to any lien or encumbrance for which a Non-Disturbance Agreement is executed between Lessee and the holder of such lien or encumbrance pursuant to Paragraph 30.3 of the Form Lease.

 

(e)           As part of the Purchase Agreement, Lessor shall convey any and all rights that the Lessor may have in any personal property relating to the use or operation of the Premises.

 

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63.          Right of First Refusal.

 

(a)           Grant of Right to Lessee.  Lessor hereby grants Lessee until April 30, 2016 (the “Right of First Refusal Expiration Date”) a right of first refusal to purchase the Premises upon the terms and conditions set forth in this Paragraph 63 (the “Right of First Refusal”).  Lessor shall execute and deliver to Lessee a memorandum of the Right of First Refusal in the form attached hereto as Rider “2” and incorporated by reference (the “Memorandum of Right of First Refusal”).  The Memorandum of the Right of First Refusal shall be recorded in the Official Records of Riverside County, California.

 

(b)           No Transfer Without Notice.  Without first giving Lessee the “Proposed Sale Notice” (as defined below) and complying with the other provisions of this Agreement, Lessor shall not undertake any Sale of the Premises (as defined below).

 

(c)           Giving of Notice.  In the event of a Proposed Sale (as defined below), Lessor immediately shall give Lessee written notice of the Proposed Sale (the “Proposed Sale Notice”), which sets forth the proposed transferee’s name, and a summary of the terms of the Proposed Sale, including without limitation, the purchase price, method of payment and closing date.  Lessor shall attach to the Proposed Sale Notice the following:  (1) a copy (if available) of the agreement of purchase and sale, offer to purchase or similar transfer agreement, which has signed by the proposed transferee (the “Proposed Sale Agreement”); and (2) a copy of any fully signed letter of intent relating thereto received by~~~~Lessor incident to the Proposed Sale.

 

(d)           Purchase of the Premises.

 

(i)            Lessee’s Notice of Purchase.  If Lessee, within thirty (30) days after receipt of the Proposed Sale Notice (“Lessee’s Election Period”), elects to purchase the Premises by written notice to Lessor (the “Purchase Notice”), Lessor shall sell and convey the Premises to Lessee on the same terms and conditions as set forth in the Proposed Sale Notice.  If the purchase price or the method of payment of the purchase price in the Proposed Sale Notice changes prior to the closing of the Proposed Sale, Lessor shall give to Lessee a revised Proposed Sale Notice with the revised purchase price and/or method of payment of purchase price (the “Revised Proposed Sale Notice”).  Lessee shall have ten (10) days after receipt of the Revised Proposed Sale Notice (“Lessee’s Revised Election Period”), to elect to purchase the Premises by written notice to Lessor (the “Revised Purchase Notice”).  If Lessee does not elect to exercise its Right of First Refusal then, for a period of three (3) months after the Lessee’s Election Period or Lessee’s Revised Election Period, as applicable, Lessor may complete the Sale free of this Right of First Refusal on the same terms and conditions offered to Lessee as set forth in the Proposed Sale Notice.

 

(ii)           Termination of Right to Purchase.  The Right of First Refusal shall terminate and extinguish upon any of the following:  (A) if Lessee fails to exercise the Right of First Refusal within Lessee’s Election Period provided the offer from the transferee presented to Lessee in the Proposed Sale Notice was a valid, bona

 

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fide and binding third party offer; (B) April 30, 2016 or (C) Lessor’s completion of a Sale pursuant to the terms of this Paragraph 63.  Upon any such termination, Lessee shall execute a quitclaim deed to evidence Lessee’s relinquishment in the Premises.

 

(e)           Definitions.  For purposes of this Paragraph 63, the following terms are hereby defined:

 

(i)            “Proposed Sale” shall mean a Sale that Lessor proposes to undertake.

 

(ii)           “Sale” shall mean any transfer, sale, lease, or other conveyance of any portion of the Premises, whether by agreement for sale or in any other manner.

 

64.          Statement of Interest by Lessor for Sale of the Premises.   After expiration of the Purchase Option and Right of First Refusal, Lessor hereby acknowledges that it will have a continuing interest (but not an obligation) to sell the Premises to Lessee from time to time at a purchase price equal to the greater of (i) $4,100,000 increased by a 4% percent increase per year from the Lease Commencement Date or (ii) the then-existing fair market value (as determined by Lessor (in its sole and absolute discretion).  If Lessee desires to purchase the Premises from Lessor, Lessee may make a written offer to Lessor (based upon a minimum of the foregoing terms) and Lessor may (in its sole and absolute discretion) either elect to accept or reject such offer.

 

65.          Subordination, Attornment and Non-Disturbance Agreement.  In connection with its original financing of the Premises, Lessor shall request that its lender agree to execute a non-disturbance agreement in favor of Lessee so long as Lessee agrees to acknowledge the subordination of this Lease and Lessee’s agreement to attorn to such lender or other purchaser at a foreclosure sale under the lender’s deed of trust.

 

66.          Definitions.  For purposes of the Lease, the following definitions shall apply:

 

(a)           “HVAC” shall mean any existing heating, ventilating and air conditioning systems located at the Premises.

 

(b)           “Building” shall mean the structural elements of the roof, bearing walls and foundations of any buildings located on the Premises.

 

(c)           “Applicable Requirements” shall mean any applicable laws, covenants or restrictions of record, regulations and ordinances.

 

(d)           “Capital Expenditure” shall mean the construction of an addition or an alteration of the Premises and/or Building, the remediation of any Hazardous Substance, or the reinforcement or other physical modification of the Premises and/or Building.

 

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(e)           “change in control of Lessee” shall mean either:

 

(i)            Lessee ceases to be wholly owned directly or indirectly by the parent company that owns Lessee as of the date of this Lease, or

 

(ii)           a Parent Company Voting Control Change occurs.

 

(f)            “Related Person” shall mean:

 

(1)           Any immediate family member or descendent of William J. Barrett, Herbert M. Gardner or Edward T. Flynn, and the respective heirs, executors and administrators and beneficiaries of the estates of William J. Barrett, Herbert M. Gardner or Edward T. Flynn or any such family members.

 

(2)           Any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or persons beneficially holding an 80% or more controlling interest of William J. Barrett, Herbert M. Gardner or Edward T. Flynn or any Related Person identified in clause (1) above.

 

(g)           “Permitted Holder” means William J. Barrett, Herbert M. Gardner, Edward T. Flynn or any Related Person.

 

(h)           “Person” means any individual, corporation, association, partnership, joint venture, limited liability company, trust, estate, or other legal entity or organization.

 

(i)            “Affiliate” means with respect to a specified Person, any Person that directly or indirectly controls, is controlled by, or is under common control with, the specified Person.

 

(j)            “Parent Company Voting Control Change” shall mean a transfer, on a cumulative basis, of voting stock which results in any Person and such Person’s Affiliates (other than a Permitted Holder) holding 35% of the voting stock of the parent company of the Lessee.

 

67.          Lessor Liability upon Transfer.  In the event of any transfer of the Premises, the parties agree that Lessor shall remain responsible for its obligations during the period in which Lessor was the owner of record of the Premises.  To the extent that

 

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Lessor fails to transfer to any transferee or assignee the Security Deposit (including a transfer as a result of a foreclosure of the Premises), Lessor shall remain liable to Lessee for any unused Security Deposit.

 

68.          Right of First Offer. Lessee shall have a one time right of first offer (“ROFO”) for purchase of the Premises for a period from the Commencement Date of the Lease and continuing until the Expiration Date of the Lease (the “Right of First Offer Period”).  If Lessor desires to sell the Premises during the Right of First Offer Period to any third parties, Lessor shall notify Lessee in writing of such desire. Lessee may, within 30 days of receipt of such notice from Lessor, submit to Lessor a written “First Offer” for the purchase of the Premises.  Lessor shall have five (5) days after receipt of the First Offer during which to accept or reject such offer; provided that Lessor shall have no obligation to accept such offer and that Lessor’s failure to respond to Lessee’s offer will be deemed to constitute Lessor’s rejection of Lessee’s First Offer.  If Lessee fails to give such First Offer, then Lessee shall have no further rights under this ROFO.  If Lessor rejects Lessee’s First Offer, for four (4) months following the date of Lessee’s First Offer, Lessor shall not sell the Premises to a third party for a purchase price less than the purchase price set for in Lessee’s First Offer.   After such fourth month, Lessor shall have the right to sell the Premises upon such terms and conditions as Lessor may desire.  Lessee shall not have the right to submit more than one First Offer during the Right of First Offer Period.

 

[Signatures on next page.]

 

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IN WITNESS WHEREOF, the parties have executed this Addendum to Standard Industrial Commercial Single-Tenant Lease-Net concurrently with the execution of the Standard Industrial Commercial Single-Tenant Lease-Net.

 
| LESSOR: | BFG2011   LIMITED LIABILITY COMPANY,      |
|---------|-------------------------------------------|
|    | a   New Jersey limited liability company, |
|    | doing   business in California as         |
|    | “22135   Alessandro, LLC”       |
|    |                                      |   |
|    |                                      |   |
|    | By:                                       | /s/   William J. Barrett |
|    | Name:                                     | William   J. Barrett |
|    | Title:                                    | President |
|    |                                      |
|    |                                      |
|    | By:                                       | /s/   Ann C. W. Green |
|    | Name:                                     | Ann   C. W. Green |
|    | Title:                                    | Secretary |
|    |                                      |
|    |                                      |
| LESSEE: | Supreme Indiana Operations, Inc.,    |
|    | a   Delaware corporation                  |
|    |                                      |   |
|    |                                      |   |
|    | By:                                       | /s/   Kim Korth |
|    | Name:                                     | Kim   Korth |
|    | Title:                                    | President |
|    |                                      |   |
|    |                                      |   |
|    | By:                                       | /s/   Matthew W. Long |
|    | Name:                                     | Matthew   W. Long |
|    | Title:                                    | Assistant   Secretary |
|         |                                           |  |  |  |  |

 

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EXHIBIT “A”

 

Legal Description

 

The land referred to in this Commitment is in the State of California, County of Riverside and is described as follows:

 

PARCEL 1:

 

THAT PORTION OF LOT 2 OF BLOCK 13 OF THE ALESSANDRO TRACT, IN THE CITY OF MORENO VALLEY, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 6 PAGE 13 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:

 

BEGINNING AT A POINT ON THE EAST LINE OF SAID LOT 2 ALONG THE SOUTH LINE OF THE NORTHERLY RECTANGULAR 60.00 FEET CONVEYED TO THE COUNTY OF RIVERSIDE PER INSTRUMENT NO. 65695, RECORDED JUNE 18, 1971, SAID POINT ALSO SHOWN AS THE NORTHEAST CORNER OF SAID LOT AND DESCRIBED WITH A “FOUND 1” I.P. AND PLASTIC PLUG RCE 13116.. .“ ON RECORD OF SURVEY RECORDED IN BOOK 84 PAGE 1, RECORDS OF RIVERSIDE COUNTY CALIFORNIA;

 

THENCE SOUTH 88° 42’ 32” WEST ALONG THE NORTH LINE OF SAID LOT AS SHOWN ON SAID RECORD OF SURVEY A DISTANCE OF 495.56 FEET; THENCE SOUTH 01° 17’ 29” EAST A DISTANCE OF 80.00 FEET; THENCE SOUTH 56° 38’ 33” WEST A DISTANCE OF 161.29 FEET; THENCE SOUTH 00° 12’ 45” WEST A DISTANCE OF 424.18 FEET; THENCE NORTH 88° 43’ 24” EAST A DISTANCE OF 627.22 FEET TO A POINT ALONG THE EAST LINE OF SAID LOT 2; THENCE NORTH 0° 16’ 40” EAST ALONG SAID EAST LINE A DISTANCE OF 590.05 FEET TO THE POINT OF BEGINNING AND THE END OF THIS DESCRIPTION.

 

SAID DESCRIPTION IS ALSO KNOWN AS PARCEL 1 OF PARCEL MAP WAIVER/CERTIFICATE OF COMPLIANCE NO. 2114, RECORDED JUNE 23, 1995 AS INSTRUMENT NO. 204095 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.

 

PARCEL 2:

 

THAT PORTION OF LOT 2 OF BLOCK 13 OF THE ALESSANDRO TRACT, IN THE CITY OF MORENO VALLEY, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 6 PAGE 13 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:

 

COMMENCING AT A POINT ON THE EAST LINE OF SAID LOT 2 ALONG THE SOUTH LINE OF THE NORTHERLY RECTANGULAR 60.00 FEET CONVEYED TO THE COUNTY OF RIVERSIDE AS INSTRUMENT NO. 65695, RECORDED JUNE 18, 1971, SAID POINT ALSO SHOWN AS THE NORTHEAST CORNER OF SAID LOT AND DESCRIBED WITH A “FOUND 1” I.P. AND PLASTIC PLUG RCE 13116. .“ ON RECORD OF SURVEY RECORDED IN BOOK 84 PAGE 1, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;

 

THENCE SOUTH 88° 42’ 32” WEST ALONG THE NORTH LINE OF SAID LOT AS SHOWN ON SAID RECORD OF SURVEY A DISTANCE OF 495.56 FEET; THENCE SOUTH 01° 17’ 29” 

EAST 

DISTANCE OF 80.00 FEET; THENCE SOUTH 56° 38’ 33” WEST A DISTANCE OF 161.29 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 0° 12’ 45” WEST A DISTANCE OF 424.18 FEET; THENCE NORTH 88° 43’ 24” EAST A DISTANCE OF 627.22 FEET TO A POINT ON THE EAST LINE OF SAID LOT 2; THENCE SOUTH 00° 16’ 40” WEST ALONG SAID EAST LINE A DISTANCE OF 656.41 FEET TO THE SOUTHEAST CORNER OF SAID LOT 2;

 

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THENCE SOUTH 89° 44’ 11” WEST ALONG THE SOUTH LINE OF SAID LOT 2 A DISTANCE OF 698.00 FEET TO A POINT LYING 624.81 FEET FROM THE SOUTHWEST CORNER OF SAID LOT 2, AS MEASURED ALONG SAID SOUTH LINE; THENCE NORTH 01° 11’00” WEST A DISTANCE OF 613.83 FEET; THENCE NORTH 88° 43’ 24” EAST A DISTANCE OF 39.84 FEET; THENCE NORTH 00° 26’ 21” WEST A DISTANCE OF 455.44 FEET; THENCE SOUTH 89° 47’ 15” EAST A DISTANCE OF 52.02 FEET TO THE POINT OF BEGINNING AND THE END OF THIS DESCRIPTION.

 

SAID DESCRIPTION IS ALSO KNOWN AS PARCEL 4 OF PARCEL MAP WAIVER/CERTIFICATE OF COMPLIANCE NO. 2114, RECORDED JUNE 23, 1995 AS INSTRUMENT NO. 204095 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.

 

PARCEL 3:

 

AN UNDIVIDED 2/3RDS INTEREST IN AND TO THE FOLLOWING DESCRIBED PROPERTY:

THAT PORTION OF LOT 2 OF BLOCK 13 OF THE ALESSANDRO TRACT, IN THE CITY OF MORENO VALLEY, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 6 PAGE 13 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:

 

COMMENCING AT A POINT ON THE EAST LINE OF SAID LOT 2 ALONG THE SOUTH LINE OF THE NORTHERLY RECTANGULAR 60.00 FEET CONVEYED TO THE COUNTY OF RIVERSIDE, AS INSTRUMENT NO. 65695 RECORDED JUNE18, 1971, SAID POINT ALSO SHOWN AS THE NORTHEAST CORNER OF SAID LOT AND DESCRIBED WITH A “FOUND 1” I.P. AND PLASTIC PLUG RCE 13116. . .“ ON RECORD OF SURVEY RECORDED IN BOOK 84 PAGE 1, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA;

 

THENCE SOUTH 88° 42’ 32” WEST ALONG THE NORTH LINE OF SAID LOT AS SHOWN ON SAID RECORD OF SURVEY A DISTANCE OF 495.56 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 01° 17’ 29” EAST A DISTANCE OF 80.00 FEET; THENCE SOUTH 56° 38’ 33” WEST A DISTANCE OF 161.29 FEET; THENCE NORTH 89° 47’ 15” WEST A DISTANCE OF 52.02 FEET; THENCE NORTH 47° 36’ 28” EAST A DISTANCE OF 170.77 FEET; THENCE NORTH 01° 17’ 29” WEST A DISTANCE OF 52.00 FEET TO A POINT ON SAID NORTH LINE; THENCE NORTH 88° 42’ 32” EAST ALONG SAID NORTH LINE A DISTANCE OF 60.00 FEET TO THE POINT OF BEGINNING AND THE END OF THIS DESCRIPTION.

 

SAID DESCRIPTION IS ALSO KNOWN AS PARCEL A OF PARCEL MAP WAIVER/ CERTIFICATE OF COMPLIANCE NO. 2114, RECORDED JUNE 23, 1995 AS INSTRUMENT NO. 204095 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.

 

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RIDER 1

 

**OPTION TO PURCHASE**

 

This **Rider 1** is attached to, made a part of, incorporated into, and amends and supplements, that certain AIR Standard Industrial/Commercial Single-Tenant Lease — Net dated May             , 2011 (the “Lease”), by and between BFG2011 LIMITED LIABILITY COMPANY, a New Jersey limited liability company, doing business in California as “22135 ALESSANDRO, LLC” (“Lessor”), and SUPREME INDIANA OPERATIONS, INC., a Delaware corporation (“Lessee”). Lessor and Lessee agree that, notwithstanding anything contained in the Lease to the contrary, the provisions set forth in this **Rider 1** will be deemed to be a part of the Lease and will supersede any contrary provisions in the Lease and shall prevail and control for all purposes. All references in the Lease and in this **Rider 1** to the defined term “Lease” are to be construed to mean the Lease as amended and supplemented by this **Rider 1**. Capitalized terms which are not defined in this **Rider 1** have the meanings given to them in the Lease.

 

1.             OPTION TO PURCHASE. Lessor desires to grant an option to Lessee to acquire the Premises (the “Purchase Option”) and Lessee hereby accepts said Purchase Option at the Purchase Price (as defined below) and upon the other terms and conditions stated herein. Lessee’s Purchase Option and the acquisition of the Premises by Lessee shall be subject to this Rider “1” and the Purchase Agreement as defined below.

 

(a)      The “Purchase Price” under the Purchase Option from the Commencement Date of the Lease until April 30, 2013 shall be the amount of Four Million One Hundred Thousand Dollars ($4,100,000.00). For the remaining term of the Purchase Option, the Purchase Price shall be as follows: (i) from May 1, 2013 through April 30, 2014, the Purchase Price shall be ninety percent (90%) of the Fair Market Value of the Premises as defined below, but in no event less than Four Million One Hundred Thousand Dollars ($4,100,000), (ii) from May 1, 2014 through April 30, 2015, the Purchase Price shall be ninety-three percent (93%) of the Fair Market Value of the Premises, but in no event shall not be less than Four Million One Hundred Thousand Dollars ($4,100,000), and (iii) from May 1, 2015 through April 30, 2016, the Purchase Price shall be ninety-six percent (96%) of the Fair Market Value of the Premises, but in no event shall be less than Four Million One Hundred Thousand Dollars ($4,100,000).

 

1)        For purposes of this Agreement, the “Fair Market Value of the Premises” shall be the amount that a willing seller would accept from a willing buyer and that a willing buyer would pay to a willing seller for a industrial commercial real property similarly situated in Riverside County, California, taking into account all of the conditions currently affecting the Premises. The Fair Market Value of the Premises shall be determined as of the date of close of escrow for the purchase of the Premises and not at the date that the Purchase Option is exercised. Lessor and Lessee hereby agree that the Fair Market Value of the Premises shall be determined in accordance with this Paragraph 1(a)(1):

 

(A)  Within ten (10) days after Lessee delivers to Lessor, Lessee’s written notice electing to exercise the Purchase Option, Lessor shall deliver to Lessee a written notice to Lessee stating Lessor’s belief as to the Fair Market Value of the Premises (“Lessor’s FMV Notice”). If Lessee agrees with Lessor’s FMV Notice, then the Fair Market Value of the Premises shall be as set forth in the Lessor’s FMV Notice.

 

(B)  If Lessee does not agree with Lessor’s belief as to the Fair Market Value of the Premises as set forth in the Lessor’s FMV Notice and if Lessee wishes to contest Lessor’s belief as to the Fair Market Value in the Lessor’s FMV Notice, then Lessee must provide written notice to Lessor (within ten (10) days after Lessor’s delivery of the Lessor’s FMV Notice) stating that Lessee objects to Lessor’s belief as to the Fair Market Value of the Premises. If Lessee timely provides such written objection, the parties shall follow the procedure described in Paragraph 1(a)(1)(C) below. If Lessee fails to deliver a timely a written objection to Lessor’s FMV Notice, then, Lessee shall be deemed have accepted Lessor’s belief as to the Fair Market Value of the Premises.

 

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Rider 1

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(C)  If Lessee timely and effectively objects to Lessor’s determination of Fair Market Value under this Paragraph, the disagreement shall be resolved as follows:

 

(1)  Lessor and Lessee shall diligently attempt in good faith to agree on the Fair Market Value on or before the tenth (10th) day after Lessee’s objection to the Fair Market Value (the “Outside Agreement Date”).

 

(2)  If Lessor and Lessee fail to reach agreement on or before the Outside Agreement Date, the Fair Market Value shall be determined by arbitration under this Paragraph 1(a)(1)(C)(2).

 

A.       Within fifteen (15) days after the Outside Agreement Date, Lessor and Lessee shall each appoint one arbitrator and notify the other party of the arbitrator’s name and business address. Each of the arbitrators must be a licensed real estate broker who has been active in the leasing of industrial properties in the Moreno Valley, California metropolitan area over the five-year (5-year) period ending on the date of his/her appointment as arbitrator(s).

 

B.       If each party timely appoints an arbitrator, the two (2) arbitrators shall, within ten (10) days after the appointment of the second arbitrator, agree on and appoint a third arbitrator (who shall be qualified under the same criteria set forth above for qualification of the initial two (2) arbitrators but shall not have been employed by Lessor or Lessee during the immediately preceding five-year period) and provide notice to Lessor and Lessee of the arbitrator’s name and business address.

 

C.       Within thirty (30) days**after the appointment of the third arbitrator, the three (3) arbitrators shall determine the Fair Market Value of the Premises and shall notify Lessor and Lessee of their decision. The decision of the majority of the three (3) arbitrators shall be binding on Lessor and Lessee

 

D.       If either Lessor or Lessee fails to appoint an arbitrator within fifteen (15) days after the Outside Agreement Date, the arbitrator timely appointed by one of them shall reach a decision and notify Lessor and Lessee of that decision within thirty (30) days after the arbitrator’s appointment. The arbitrator’s decision shall be binding on Lessor and Lessee.

 

E.      The cost of the arbitration and the arbitrator shall be paid by Lessee.

 

(b)    The term of the Purchase Option shall commence on the Commencement Date of the Lease and shall terminate on the earlier of (i) April 30, 2016, and (ii) the date Lessee exercises the Purchase Option (the “Purchase Option Term”). The Purchase Option must be exercised, if at all, by written notice delivered by Lessee to Lessor no later than the expiration of the Purchase Option Term.

 

(c)    The closing of the sale of the Premises pursuant to this Paragraph 1 shall occur no later than that date which is the earlier of (i) April 30, 2016, and (ii) sixty days following Lessee’s exercise of the Purchase Option (the “Purchase Option Outside Date”).

 

(d)     If the Purchase Option is not exercised in accordance with the terms and conditions of this Paragraph 1 prior to the expiration of the Purchase Option Term, or if the closing of the sale of the Premises shall not occur on or before the Purchase Option Outside Date, or if Lessee defaults under any of the terms or provisions contained in the Lease as amended hereby beyond any applicable notice and cure period (whether or not Lessee has

 

2

Rider 1

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exercised the Purchase Option), then the Purchase Option shall automatically and immediately terminate without notice and, thereafter, Lessee shall have no right or interest whatsoever to purchase the Premises. Lessee acknowledges that, once terminated, the Purchase Option may not be revived by any subsequent act of Lessee.

 

(e)     Lessee agrees, concurrent with the execution of this Lease, to execute, acknowledge and deliver to Lessor a “Quitclaim Deed,” in the form attached hereto as Schedule “1,” conveying to Lessor any and all rights of Lessee to acquire the Premises pursuant to the terms of this Rider 1 or the Purchase Agreement, as defined below. Lessor shall not record the Quitclaim Deed until (i) after the expiration of the Purchase Option Outside Date, or (ii) a Breach as provided in Paragraph 13.1 of the Form Lease. After the Purchase Option Outside Date or a Breach, Lessee agrees, within ten (10) days after receipt of written request from Lessor, to execute, acknowledge and deliver any other instruments reasonably required by Lessor or any title company to remove the cloud of this Purchase Option from title to the Premises. In the event, Lessee exercises the Purchase Option, concurrent with the “Closing,” as such term is defined in the Purchase Agreement, Lessor shall return the original Quitclaim Deed to Lessee.

 

(f)     The Purchase Option shall be exercised by Lessee, if at all, by Lessee delivering, prior to the expiration of the Purchase Option Term, to “Escrow Agent,” as such term is defined in the Purchase Agreement, Lessee’s good faith deposit in the amount of $100,000.00 (the “Deposit”) and a duly executed counterpart of a purchase agreement in the form of the then current AIR Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate (the “Purchase Agreement”) (with a copy to Lessor), dated as of the date of Lessee’s delivery of the Purchase Agreement to Escrow Holder. Lessor shall then deliver to Escrow Holder (with a copy to Lessee). Lessee shall be responsible for all costs, fees and expenses in connection with the Purchase Option and the close of escrow of the purchase of the Premises, including, without limitation, any loan fees, prepayment penalties or fees, breakage fees, recording fees, documentary tax transfer fees, escrow fees, title charges, and all other costs and expenses under any loan secured by the Premises.

 

2.             OPTION.

 

(a)         As used in this Paragraph, the word “Option” means the Purchase Option pursuant to Paragraph 1 herein.

 

(b)         The Option is personal to the original Lessee executing the Lease and/or any transferee whose transfer was consented to by Lessor pursuant to Paragraph 12 of the Lease (the “Permitted Transferee”) and may be exercised only by the original Lessee executing the Lease and/or any Permitted Transferee while occupying the entire Premises and without the intent of thereafter assigning the Lease or subletting the Premises and may not be exercised or be assigned, voluntarily or involuntarily, by any person or entity other than the original Lessee executing the Lease and/or any Permitted Transferee. The Option is not assignable separate and apart from this Lease, nor may the Option be separated from the Lease in any manner, either by reservation or otherwise.

 

(c)          Lessee shall have no right to exercise the Option, notwithstanding any provision of the grant of Option to the contrary, and Lessee’s exercise of the Option may be nullified by Lessor and deemed of no further force or effect, if (i) Lessee shall be in default of any monetary obligation or material non-monetary obligation beyond any applicable notice and cure periods under the terms of the Lease as of Lessee’s exercise of the Option or at any time after the exercise of such Option and prior to the commencement of the Option event, or (ii) Lessor has given Lessee two (2) or more notices of default and Lessee has failed to cure same on or before the expiration of any applicable cure period, during any twelve (12) consecutive month period.

 

3.             LESSEE’S INSPECTIONS AND OTHER DUE DILIGENCE.

 

(a)           General Due Diligence. Except for title and survey matters (which shall be governed by the provisions of Paragraph 4 below), Lessee shall have until the expiration of the Purchase Option Term, TIME BEING OF THE ESSENCE (the period of time commencing upon the date hereof and continuing through and including such time on such date being herein called the “Due Diligence Period”) within which to perform and complete all of Lessee’s due diligence examinations, reviews and inspections of all matters pertaining to the purchase of the Premises (as defined in the Purchase Agreement), including all leases and service contracts, and all physical, environmental and compliance matters and conditions respecting the Premises (collectively, the “Investigations”),

 

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which Investigations shall at all times be subject to Lessee’s compliance with the provisions of this Paragraph 3 and all other terms and conditions of this Lease. During the Due Diligence Period, Lessee shall maintain reasonable access to the Premises pursuant to the terms of this Lease and Lessor shall also make available to Lessee, at the offices of Lessor and/or the property manager of the Premises, access to such leases, service contracts, and other contracts and agreements with respect to the Premises in Lessor’s possession as Lessee shall reasonably request, all upon reasonable advance written notice; provided, however, in no event shall Lessor be obligated to make available (1) any document or correspondence which would be subject to the attorney-client privilege; (2) any document or item which Lessor is contractually or otherwise bound to keep confidential; (3) any documents pertaining to the marketing of the Premises for sale to prospective purchasers; (4) any internal memoranda, reports or assessments of Lessor or Lessor’s affiliates relating to Lessor’s valuation of the Premises; (5) appraisals of the Premises whether prepared internally by Lessor or Lessor’s affiliates or externally; or (6) any documents which Lessor considers confidential or proprietary. Lessee shall furnish to Lessor, at no cost or expense to Lessor, copies of all surveys, soil test results, engineering, asbestos, environmental and other studies and reports (other than internal analysis and proprietary information of the Lessee) relating to the Investigations which Lessee shall obtain with respect to the Premises promptly after Lessee’s receipt of same.

 

Without limiting the foregoing, in no event shall Lessee or Lessee’s Representatives, without the prior written consent of Lessor (which consent may not be unreasonably withheld): (i) make any intrusive physical testing (environmental, structural or otherwise) at the Premises (such as soil borings, water samplings or the like), and/or (ii) contact any governmental authority having jurisdiction over the Premises.

 

The foregoing obligations shall survive the termination of this Lease and/or the Closing (as defined in the Purchase Agreement).

 

(b)             Premises Information and Confidentiality. All Information (as hereinafter defined) provided to Lessee shall be subject to the following terms and conditions:

 

(i)           Neither Lessor nor any Lessor Indemnified Party makes any representation or warranty as to the truth, accuracy or completeness of the Information, or any other studies, documents, reports or other information provided to Lessee hereunder and expressly disclaims any implied representations as to any matter disclosed or omitted.

 

(ii)          Lessee agrees that neither Lessee nor Lessee’s Representatives shall, at any time or in any manner, either directly or indirectly, divulge, disclose or communicate to any person, entity or association the Information, or any other knowledge or information acquired by Lessee or Lessee’s Representatives from Lessor, any Lessor Indemnified Party or by Lessee’s own inspections and investigations, other than matters that were in the public domain at the time of receipt by Lessee or Lessee’s Representatives. Without Lessor’s prior written consent (which consent may not be unreasonably withheld), Lessee shall not disclose and Lessee shall direct Lessee’s Representatives not to disclose to any person, entity or association or any of the terms, conditions or other facts with respect to this Lease or the Purchase Agreement, including, without limitation, the status hereof. Notwithstanding the foregoing, Lessee may disclose such of the Information and its other reports, studies, documents and other matters generated by it and the terms of this Lease and/or the Purchase Agreement (A) as required by law or court order (provided prior written notice of such disclosure shall be provided to Lessor) and (B) as Lessee deems necessary or desirable to Lessee’s Representatives in connection with Lessee’s Investigation and the transaction contemplated hereby, provided that those to whom such Information is disclosed are informed of the confidential nature thereof and agree(s) to keep the same confidential in accordance with the terms and conditions hereof.

 

(iii)         Intentionally Omitted.

 

(iv)         Lessee and Lessee’s Representatives shall use reasonable care to maintain in good condition all of the Information furnished or made available to Lessee and/or Lessee’s Representatives in accordance with this Paragraph 3(b). In the event this Lease and/or the Purchase Agreement is terminated, Lessee and Lessee’s Representatives shall promptly deliver to Lessor all originals and copies of the Information in the possession of Lessee and Lessee’s Representatives.

 

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(v)         As used in this **Rider 1,**the term “Information” shall mean any of the following: (A) all information and documents in any way relating to the Premises, the operation thereof or the sale thereof, including, without limitation, all leases and contracts furnished to, or otherwise made available for review by, Lessee or its directors, officers, employees, affiliates, partners, members, brokers, agents or other representatives, including, without limitation, attorneys, accountants, contractors, consultants, engineers and financial advisors (collectively, “Lessee’s Representatives”), by Lessor or any Lessor Indemnified Party or their agents or representatives, including, without limitation, their contractors, engineers, attorneys, accountants, consultants, brokers or advisors, and (B) all analyses, compilations, data, studies, reports or other information or documents prepared or obtained by Lessee or Lessee’s Representatives containing or based on, in whole or in part, the information or documents described in the preceding clause (A), the Investigations, or otherwise reflecting their review or investigation of the Premises.

 

(vi)        In addition to any other remedies available to Lessor, Lessor shall have the right to seek equitable relief; including, without limitation, injunctive relief or specific performance, against Lessee or Lessee’s Representatives in order to enforce the provisions of this Paragraph 3(b).

 

(vii)       Notwithstanding any terms or conditions in this Lease and/or the Purchase Agreement to the contrary, no conditions of confidentiality within the meaning of IRC §6111(d) or the Treasury Regulations promulgated under IRC Sec. 6011 are intended, and the parties hereto are expressly authorized to disclose every U.S. federal income tax aspect of any transaction covered by the Purchase Agreement with any and all persons, without limitation of any kind.

 

(viii)      The provisions of this Paragraph 3(b) shall survive the termination of this Lease and/or the Closing (as defined in the Purchase Agreement).

 

(c)     In accordance with the foregoing, Lessee acknowledges and agrees that, except for title and survey matters (which shall be governed by the provisions of Paragraph 4 below), upon execution of the Purchase Agreement, Lessee shall be deemed to have (i) performed and completed all of Lessee’s due diligence examinations, reviews and inspections of all matters pertaining to the purchase of the Premises, including all leases and service contracts, and all physical, environmental and compliance matters and conditions respecting the Premises, and (ii) irrevocably approved the then existing condition of the Premises.

 

4.     LESSEE’S REVIEW OF TITLE.

 

(a)     Title to the Premises.

 

(i)            Prior to executing the Purchase Agreement, Lessee shall have confirmed that Chicago Title Insurance Company (the “Title Company”) is committed to insure Lessee as the fee owner of the Premises in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) containing any endorsements desired by Lessee and in the standard form issued by the Title Company in the State of California, subject only to those exceptions acceptable to Lessee.

 

(ii)           In accordance with the foregoing, Lessee shall have ordered, at its sole cost and expense, prior to executing the Purchase Agreement, a commitment for an owner’s fee title insurance policy or policies with respect to the Premises (the “Title Commitment”) from the Title Company, and shall have caused the Title Company to deliver a copy of the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Premises, to Lessor’s attorneys concurrently with delivery of the Title Commitment to Lessee or Lessee’s attorneys. Lessee acknowledges and agrees that, upon execution of the Purchase Agreement, Lessee shall be deemed to have irrevocably approved the (i) the form of Title Commitment and Owner’s Policy Lessee received from Title Company prior to the date of the Purchase Agreement, and (ii) the overall condition of title of the Premises.

 

(b)     Lessee shall be responsible to order, at its sole cost and expense, prior to its execution of the Purchase Agreement, a survey of the Premises prepared by a surveyor registered in the State of California, certified by said surveyor to Lessee and Lessor as having been prepared in accordance with the minimum detail requirements 

 

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of the ALTA land survey requirements, and cause a copy of the survey to be delivered to Lessor and Lessor’s attorneys simultaneously with the delivery of same to Lessee.

 

(c)          Prior to Lessee’s execution of the Purchase Agreement, Lessee shall confirm that the Owner’s Policy shall contain any endorsements desired by Lessee. The issuance of any such endorsements shall not be or be deemed to be a condition to closing the transaction contemplated by the Purchase Agreement and in no event shall Lessor be obligated to provide any indemnity or other document or undertake any obligation in order to issue the same.

 

(d)         In accordance with the foregoing, Lessor shall have no obligation to pay any consideration or incur any liability in order to eliminate or ameliorate any title matters disapproved by Lessee; provided, however, Lessor hereby agrees, at its expense, to cause to be removed or endorsed over prior to the Closing under the Purchase Agreement, any encumbrance recorded by Lessor or recorded as a direct result of Lessor’s actions after the date of this Lease that is not included on the Owner’s Policy (a “Lessor Recorded Encumbrance”), except Lessor shall be required to remove any financial liens that it has caused to be recorded against the Premises. Notwithstanding the foregoing, Lessor shall be entitled to extend the Closing under the Purchase Agreement for up to ninety (90) days in order to attempt to remove or endorse over any Lessor Recorded Encumbrance. Lessee’s failure to disapprove in writing within five (5) days after it has obtained knowledge of a Lessor Recorded Encumbrance (i.e., either by Lessee’s receipt of [i] a copy of the instrument evidencing such encumbrance or [ii] an update to the Owner’s Policy) shall be deemed a waiver by Lessee of such Lessor Recorded Encumbrance. If Lessee obtains knowledge of any Lessor Recorded Encumbrance before the Closing under the Purchase Agreement, but nonetheless elects to proceed with the acquisition of the Premises, Lessor shall have no liability with respect to such Lessor Recorded Encumbrance, notwithstanding any contrary provision, covenant, representation or warranty contained in this Lease and/or the Purchase Agreement or in any other documents.

 

(e)          The provisions of this Paragraph 4 shall survive the termination of this Lease and/or the Closing (as defined in the Purchase Agreement).

 

5.             ADDITIONAL LESSOR COVENANT. Following the execution of this Lease and prior to the expiration of the Option Term and, if the Purchase Option is exercised, prior to the Closing under the Purchase Agreement, Lessor covenants to deliver to Lessee any material documents that Lessor receives regarding the condition of the Premises (other than those documents provided by Lessee pursuant to the terms of this Lease or the Purchase Agreement).

 

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**SCHEDULE 1**

** **

**FORM OF QUITCLAIM DEED**

 

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO:

BFG2011 Limited Liability Company

636 River Road

Fair Haven, NJ 07704

Attention: Ann C. W. Green

 

| Documentary   Transfer Tax is $..Ø...Releasing document of record....... | (Space Above For Recorder’s Use) |
|-------------------------------------------------------------------------------|---------------------------------------|

 

**QUITCLAIM DEED**

 

THIS QUITCLAIM DEED (this “Deed”) is made as of this         day of April, 2011, by SUPREME INDIANA OPERATIONS, INC., a Delaware corporation (“Supreme”), with reference to the following:

 

A.          Supreme maintains an option to purchase (the “Option”) that certain real property (including all improvements thereon) described on Exhibit “A” attached hereto (the “Property”) pursuant to that certain AIR Standard Industrial/Commercial Single-Tenant Lease —Net dated May       , 2011 (the “Lease”) entered into by and between BFG2011 LIMITED LIABILITY COMPANY, a New Jersey limited liability company, doing business in California as “22135 Alessandro, LLC” (“BFG2011”) and Supreme.

 

B.          Supreme desires to confirm that the Option is no longer in effect.

 

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Supreme, as the owner of the Option, does hereby cancel the Option and remise, release and forever quitclaim to BFG2011 all of Supreme’s right, title and interest in, under and to the Option.

 

IN WITNESS WHEREOF, the undersigned has executed this Deed as of the date first set forth above.

 

 
|   | SUPREME   INDIANA OPERATIONS, INC., |
|--------|------------------------------------------|
|   | a   Delaware corporation                 |
|   |                                     |
|   |                                     |
|   |                                     |
|   | By:                                      |   |
|   | Name:                                    | Kim Korth |
|   | Title:                                   | President |
|   |                                     |
|   |                                     |
|   |                                     |
|   | By:                                      |   |
|   | Name:                                    | Matthew   W. Long |
|   | Title:                                   | Assistant   Secretary |
|        |                                          |  |  |

 

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| STATE OF  |                                                                   | ) |
|-----------|------------------------------------------------------------------------|---|
|      | )           ss. |
| COUNTY OF |                                                                   | ) |
|           |                                                                        |   |  |

 

On April           , 2011 before me,                                              , Notary Public, personally appeared Kim Korth, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 
| Signature |   | (Seal) |
|-----------|--------|--------|

 
| STATE OF  |                                                       | ) |
|-----------|------------------------------------------------------------|---|
|      | )         ss. |
| COUNTY OF |                                                       | ) |
|           |                                                            |   |  |

 

On April         , 2011 before me,                                           , Notary Public, personally appeared Matthew W. Long , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 
| Signature |   | (Seal) |
|-----------|--------|--------|

 

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[EXHIBIT A TO BE ATTACHED]

 

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**Rider 2**

 

**FORM OF MEMORANDUM OF LEASE , OPTION TO PURCHASE AND RIGHT OF FIRST REFUSAL**

 

RECORDING REQUESTED

BY AND WHEN RECORDED

MAIL THIS MEMORANDUM

OF LEASE, OPTION TO PURCHASE  AND RIGHT OF FIRST REFUSAL TO:

 

SUPREME INDIANA OPERATIONS, INC. 

2581 Kercher Road

Goshen, Indiana 46528

Attention: Matthew W. Long

 

|   | (Above   Space for Recorder’s Use Only) |
|--------|----------------------------------------------|

 

**MEMORANDUM OF LEASE, OPTION TO PURCHASE AND RIGHT OF FIRST REFUSAL**

 

This Memorandum of Lease and Option to Purchase (this **“Memorandum”)**is made as of the        day of April, 2011, by BFG2011 LIMITED LIABILITY COMPANY, a New Jersey limited liability company, doing business in California as “22135 Alessandro, LLC” (“**Lessor**”) to evidence that certain Lease (the **“Lease”)**dated as of May      , 2011 between Lessor and SUPREME INDIANA OPERATIONS, INC., a Delaware corporation (“**Lessee**”), pursuant to which Lease Lessor has leased certain improved real property owned by Lessor and more particularly described in Exhibit “A” attached hereto and by this reference incorporated herein (the **“Premises”**).

 

Lessor has made this Memorandum to provide notice to any interested party of such demise and of the terms and provisions of the Lease.

 

**NOW, THEREFORE,**Lessor declares as follows:

 

1.           Lessor has leased to Lessee and Lessee has leased from Lessor the Premises described in the Lease on the terms and conditions therein set forth, all as more fully described in the Lease.

 

2.           Lessee has an option to purchase the Premises pursuant to the terms of the Lease.

 

3.           Lessee has a right of first refusal to purchase the Premises pursuant to the terms of the Lease.

 

4.           This Memorandum is subject to all of the terms, conditions and limitations set forth in the Lease and the terms of the Lease are hereby incorporated herein for all purposes with the same effect as though the terms and conditions of the Lease were set forth herein in their entirety.

 

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**IN WITNESS WHEREOF**, Lessor has executed this Memorandum as of the date first written above.

 

 
| “Lessor” | BFG2011   LIMITED LIABILITY COMPANY,      |
|--------------------|-------------------------------------------|
|               | a New   Jersey limited liability company, |
|               | doing   business in California as         |
|               | “22135   Alessandro, LLC”       |
|               |                                      |
|               |                                      |
|               | By:                                       |   |
|               | Name:                                     | William   J. Barrett |
|               | Title:                                    | President |
|               |                                      |
|               |                                      |
|               |                                      |
|               | By:                                       |   |
|               | Name:                                     | Ann C. W.   Green |
|               | Title:                                    | Secretary |
|                    |                                           |  |  |  |  |

 

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| STATE OF  |                                                                                     | ) |
|-----------|------------------------------------------------------------------------------------------|---|
|      | )              SS. |
| COUNTY OF |                                                                                     | ) |
|           |                                                                                          |   |  |

 

On April        , 2011 before me,                                 , Notary Public, personally appeared William J. Barrett, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of         that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 
| Signature |   | (Seal) |
|-----------|--------|--------|

 
| STATE OF  |                                                       | ) |
|-----------|------------------------------------------------------------|---|
|      | )         ss. |
| COUNTY OF |                                                       | ) |
|           |                                                            |   |  |

 

On April          , 2011 before me,                                                , Notary Public, personally appeared Ann C. W. Green, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of                          that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 
| Signature |   | (Seal) |
|-----------|--------|--------|

 

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[EXHIBIT “A” TO BE ATTACHED]

 

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