**Exhibit10.36**

 

**CO M M E R C I A L  L E A S E  A G R E E M E N T**

(Triple Net)

 

THIS LEASE, madethis            day of                  ,2003, by and between **WESTLAND PARK LLC**, an Indiana limitedliability company, of 3112 East SR 124, Bluffton, Indiana 46714 (hereinafter“Landlord”), and **POORE BROTHERS, INC.**, a                          corporation, with principal offices located at 3500 S. La Cometa Drive,Goodyear, AZ  85338 (hereinafter“Tenant”).

 

The partieshereto, in consideration of the leasing by Landlord to Tenant and the taking byTenant from Landlord of the premises hereinafter described and in furtherconsideration of the obligations of each party to the other hereby undertaken,covenant and agree as follows:

 

# 1.                                       **LeasedPremises/Use**.  Landlordleases to Tenant, and Tenant leases from Landlord, 100,000 square-feet (subjectto remeasure upon completion from inside wall to inside wall) of warehouse anddistribution space (“Demised Premises”) located at the northeast corner of theintersection of SR 124 and West Lancaster Street, commonly known as 1955West Lancaster Street, Suite 1, Bluffton, Indiana 46714, and more particularlydescribed on the attached Exhibit “A” . Landlord shall constructapproximately 3,310 sq. ft. of office space as part of the Demised Premises inaccordance with Exhibit “A” and subject to Tenant’s reasonable approvalof same.  Any additional office spacerequired by Tenant shall be constructed by Landlord at Tenant’s expense.  It is understood that the Demised Premisesare to be a part of a larger 200,000 square feet building (“Building”), suchbuilding to be one of two or more buildings to be constructed by Landlord. Thetotal buildings constructed on the premises will form the “Project”. Itis understood that the Tenant will share certain common area elements withfuture tenants of the Project. These elements include, but are not limited to,the parking area and drives for ingress and egress.  Tenant shall have the non-exclusive right to all existing andfuture easements, parking areas and facilities, and all appurtenances andfixtures belonging to or appurtenant to the Building or Project.  Tenant’s use of the Demised Premises, theBuilding or the Project is limited to the operation of a warehouse/distributioncenter, with office administrative use to support such aforementionedoperation.  No other use shall bepermitted without the prior written consent of the Landlord, which consentshall not be unreasonably withheld.  Thewithholding of consent by Landlord for a use which is inconsistent with theindustrial character of the Project shall be deemed reasonable.

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As Landlordconstructs additional warehouses in the warehouse complex and obtainsadditional tenants, Tenant’s pro-rata share of Common Area Maintenance (paragraph5) will be adjusted by an addendum to this Lease to reflect the percentageof the square footage of the Demised Premises as compared to the total squarefeet in the Project.

 

# 2.                                       **Term;Renewal**.  The initialterm of this Lease shall commence December 1, 2003, the “LeaseCommencement Date”, and shall continue for a period of three (3) years, or asextended pursuant to paragraph 26 of this Lease.  If the Demised Premises are notsubstantially completed in accordance with Exhibit “A” byDecember 1, 2003, the Lease Commencement Date shall be changed to thefirst date following December 1, 2003, that the Demised Premises have beensubstantially completed in accordance with Exhibit “A”.  A lease year shall be twelve calendarmonths, beginning with the Lease Commencement Date.  Landlord or Tenant shall

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submit to the other aletter confirming the Lease Commencement Date at such time as the date becomesfinal so that Tenant may establish its account for the payment of Rent(hereinafter defined) as required in paragraph 4.

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# 3.                                       **PeacefulPossession**.  Landlordcovenants that Tenant, upon paying the rental and performing its covenantsherein contained, shall and may peacefully and quietly have, hold, and enjoythe Demised Premises for the term of this Lease.  Tenant shall have access to the Demised Premises duringLandlord’s construction of the Building prior to the Lease Commencement Datefor the sole purpose of Tenant’s installation of wiring and cabling forTenant’s use of the Demised Premises. During the twenty (20) days prior to the Lease Commencement Date, Tenantshall have access to the Demised Premises for the sole purpose of Tenant’sinstallation of floor striping as needed by Tenant for Tenant’s use of theDemised Premises.  During any period ofpossession of the Demised Premises prior to the Lease Commencement Date, Tenantshall have in force the liability insurance required in paragraph 8 ofthis Lease and agrees to indemnify Landlord from such use of the DemisedPremises in accordance with paragraph 15 of this Lease.

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# 4.                                       **Rental**.  Tenant, in consideration of the DemisedPremises and of the covenants and obligations of the Landlord contained in thisLease, shall pay rental for the Demised Premises (subject to the remeasure ofthe completed Demised Premises) during the initial term of this Lease asfollows (“Rent”):

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| **Lease Term**      |   | **Annual** |       | **Monthly** |   | **$/Sq. Ft.** |   |
|---------------------|--------|------------|------------|-------------|--------|---------------|--------|
| Years  1, 2 & 3 |   | $          | 358,100.00 |        | $      | 29,841.67     |   | $ | 3.581 |   |
|                     |        |            |            |             |        |               |        |  |  |  |

 

Beginning on theLease Commencement Date, and on the first day of each month thereafter, Tenantshall pay Rent in monthly installments as indicated in the above table.  Each monthly payment shall be due andpayable in advance on the first day of each month during the term of thisLease.  Any Rent due for partial monthsat the commencement or termination of this Lease, or the beginning or end ofany term hereof, shall be appropriately prorated.  The total annual rent shall not be adjusted, up or down, by theremeasure of the completed Demised Premises unless such remeasure indicates avariance from 100,000 sq. ft. of more than 1,000 sq. ft.

 

Tenant shalldeliver the monthly installments of Rent to Landlord by check, money order, at3112 East SR 124, Bluffton, Indiana 46714, or electronic fund transfer asdirected by Landlord.

 

# 5.                                       **CommonArea Maintenance (CAM)**. Landlord shall operate and maintain the common areas and commonfacilities of the Project at its sole expense, it being acknowledged by theparties that Tenant’s pro rata share of the common area maintenance charges areto be reimbursed by Tenant as additional rent. Common area maintenance (“CAM”) charges shall be the actual amount(without profit or “mark up” by Landlord or any affiliate of Landlord) of allnecessary, competitive and reasonable costs and expenses actually incurred byLandlord in operating and maintaining the common areas of the Project in anappropriate manner commensurate with good business practice; including, but notlimited to the following items:

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The costs of maintenanceand repair of:

 

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## (a)                                  driveways,sidewalks, parking areas and any other paved areas (including patching,sealing, and line painting);

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## (b)                                 buildingmaintenance including repair to roofs, gutters, downspouts, canopies,storefronts, electrical and plumbing system, and exterior painting and sealing;

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## (c)                                  waterand septic system repairs and maintenance;

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## (d)                                 landscaping(including replacement of plant materials);

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## (e)                                  parking lot;

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## (f)                                    Project signage;

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## (g)                                 pestand weed control;

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## (h)                                 security,if provided;

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## (i)                                     fireprotection (sprinkler system), if provided;

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## (j)                                     utilitiesfor the common areas and the water and septic systems;

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## (k)                                  snowremoval;

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## (l)                                     trash,garbage, and refuse removal, if provided;

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## (m)                               powerwashing;

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## (n)                                 windowcleaning; and

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## (o)                                 surfacewater drainage and detention areas.

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Notwithstanding anythingto the contrary herein, the following items and costs shall be excluded fromTenant’s pro-rata share of CAM:

 

## (a)                                  Costsattributable to improvements or work which were part of original plans andspecifications for which building permits were issued, i.e., planting, parkinglot lighting, striping, roads, and other such items of capital improvement.

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## (b)                                 Leasingcosts of any type, be it procuring tenants or re-leasing; as well as retainingexisting tenants.

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## (c)                                  Costsincurred due to Landlord violations of any of the terms and conditions of anyleases with any tenant(s) in the Project.

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## (d)                                 Costsattributable to enforcing leases against any tenants in the Project, such asattorney’s fees, court costs, adverse judgments and similar expenses.

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## (e)                                  Depreciationand amortization of debt, but excluding depreciation and amortization ofcapital improvements.  If the costs ofany repairs, alterations, additions, changes, replacements or other items whichwould otherwise be included in CAM are required and/or are of the type whichshould be capitalized under the Internal Revenue Code (further examples givenbelow), then such costs shall not be included in full as CAM costs, but ratherthe Landlord shall only include in CAM for each fiscal year the annual portionof such costs yielded by amortizing the same over the useful life thereof.

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## (f)                                    Intereston any mortgages of the Landlord and rental under any ground or underlyinglease.

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## (g)                                 Advertisingand promotional expenditures which should be a part of a specific marketingplan agreed upon by the tenants.

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## (h)                                 Repairsand other work occasioned by fire, or other casualty that the Landlord isreimbursed by insurance that was required to be carried under the Lease.

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## (i)                                     Anycosts, fines or penalties, incurred due to violations by Landlord of anygovernmental rule or authority and the defense of same.

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## (j)                                     Repairsand maintenance performed in a tenant exclusive space and not in the commonarea.

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## (k)                                  Anyexpense for which Landlord receives reimbursement by insurance proceeds orcondemnation awards.

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## (l)                                     Anyand all payroll or other benefits, perks, or expenses for employees ofLandlord; provided, however, that Landlord shall be permitted to pass throughreasonable charges relating to third party contractors performing routinemaintenance for the Project, such as mowing the grass, etc.

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Tenant shallreimburse Landlord for it’s pro rata share of the CAM expense commencing withsuch expenses incurred on and after the Lease Commencement Date.  Tenant’s payments of its share of the CAMexpense shall be in accordance with paragraph 31 of this Lease.

 

The trailerparking area designated on Exhibit “A” solely for Tenant’s use shall be maintainedby Landlord at Tenant’s sole expense, and shall not be a part of CAM to beshared by other tenants.

 

# 6.                                       **Taxes andAssessments.**  Landlordshall pay all general real estate taxes and all special assessments levied orassessed against the Project, including the Demised Premises.  Tenant shall reimburse Landlord for Tenant’spro rata share of such general real estate taxes and special assessments paidby Landlord during the term of the Lease, excluding any penalties or interestfor late payment, in accordance with paragraph 31 of this Lease.

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Tenant shall havethe right to contest any real estate tax assessments at its own expense and, ifnecessary, in the name of the Landlord. Any recovery of taxes attributable to Tenant’s

 

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period of occupancy andthe Demised Premises shall belong to and shall become the property of Tenant tothe extent of Tenant’s pro-rata share. Any contest of amounts due by Tenant shall not constitute a default hereunder.  Tenant shall have the right of contributionfrom other tenants for their pro-rata share of Tenant’s costs of any successfulreal estate tax assessment challenge. Tenant may seek contribution from other tenants or request Landlord tocollect such contribution as part of Landlord’s recovery of taxes paid inaccordance with paragraph 31 of this Lease and the similar provisions of othertenants’ leases.

 

Tenant shall payall personal property taxes assessed against personal property and leaseholdimprovements owned or leased by Tenant and located on the Demised Premises.

 

Landlord will makean application to the County Council of Wells County, Indiana, for adetermination that the Building to be constructed on the Demised Premisesqualifies for a deduction from assessed valuation (Tax Abatement).  Landlord cannot guaranty that suchdetermination will be approved.  Tenantagrees to cooperate with Landlord’s application to the extent necessary orrequired under the applicable state law or regulations.  If such application is approved, Tenantagrees to cooperate with any annual filing requirements in order to maintainany such deduction approved.

 

# 7.                                       **Utilities**.  The Demised Premises will be separatelymetered for all utilities. Meters will be installed at Landlord’s expense.   Tenant shall contract for utility service in its name and pay fromthe date of occupancy and during the term, all charges for utilities separatelymetered to the Demised Premises, such as, but not limited to, gas, electricity,lights, heat, fire protection system, power, telephone and other communicationand utility services used, rendered, or supplied upon or in connection with theDemised Premises, and shall indemnify and hold Landlord harmless against anyliability or damages on such accounts.

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# 8.                                       **Insurance**.

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### a.                                       Fireand Extended Coverage Insurance. Landlord shall obtain and keep in effect at all times fire and extendedcoverage insurance on the Building and improvements comprising the DemisedPremises from the date of occupancy and during the term and any renewal termexercised by Tenant in an amount equal to the full replacement value of suchbuildings and improvements.  NeitherTenant nor its agents, employees, or guests shall be liable for any loss ordamage to the Demised Premises by fire or any cause within the scope ofcoverage actually provided by and paid for by such fire and extended coverageinsurance, it being understood that the Landlord shall be looked at solely forreimbursement for such covered loss or damage. Tenant shall have the right torequest and receive evidence of Landlord’s proof of insurance.

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### b.                                      LiabilityInsurance.  Prior to Tenant assumingpossession, complete or partial, of the Demised premises and during the term ofthis Lease, Tenant shall obtain and maintain comprehensive general publicliability insurance against claims for personal injury, death, or propertydamage occurring on, in, or about the Demised Premises, such insurance toafford minimum protection of not less than

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### $1,000,000.00 inrespect of personal injury or death to any one person, and not less than$1,000,000.00 in respect of any one occurrence, and of not less than$1,000,000.00 for property damage. Neither Tenant, its agents, employees, nor guests shall be liable forany claims for personal injury, death, or property damage within the scope ofcoverage actually provided by and paid for by such liability insurance, itbeing understood that the Tenant shall be looked at solely for reimbursementfor such covered claims.  Landlord shallhave the right to request and receive evidence of Tenant’s proof of insurance.

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Landlord shall at alltimes maintain in effect comprehensive public liability insurance with respectto the Demised Premises and the common areas of the Project for personalinjury, bodily injury, and property damage, in amounts of not less than thoserequired of Tenant herein.   NeitherLandlord, its agents, nor employees, shall be liable for any claims for personalinjury, death, or property damage within the scope of coverage actuallyprovided by such liability insurance, it being understood that the Landlordshall be looked at solely for reimbursement for such covered claims.

 

### c.                                       Lossof Rents Insurance.  Landlord maymaintain loss of rents insurance to cover any loss of rents required to be paidby this Lease.

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All insurancerequired by this paragraph shall be placed with responsible companies.  All such policies shall be non-assessableand shall require thirty (30) days’ notice by registered mail to Landlord andTenant of any cancellation thereof or change affecting the coverage thereunder.

 

All insurancerequired by this paragraph shall name both Landlord and Tenant as an insured astheir respective interests may appear.

 

Neither partyshall violate nor permit to be violated any of the conditions or provisions ofany such insurance policy.

 

Landlord andTenant and all parties claiming, by, through or under them mutually release anddischarge each other from all claims and liabilities arising from or caused byany casualty or hazard covered or required hereunder to be covered in whole orin part by insurance on the Demised Premises, or in connection with activitiesconducted on the Demised Premises, or in or on the Project, and waive any rightof subrogation which might otherwise exist in or accrue to any person onaccount thereof and further agree to evidence such waiver by endorsement to therequired insurance policies, provided that such release shall not operate inany case where the effect is to invalidate or increase the cost of suchinsurance coverage. In the case of increased cost, the other party shall havethe right, within thirty (30) days following written notice, to pay suchincreased cost, thereby keeping such release and waiver in full force andeffect.

 

Tenant shallreimburse Landlord for Tenant’s pro rata portion of Landlord’s insuranceexpense in accordance with paragraph 31 of this Lease. Landlord shallreasonably estimate Tenant’s Proportionate Share of the Landlord’s insurancecosts and Tenant shall pay one twelfth (1/12) together with the payment ofRent.

 

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# 9.                                       **Repairand Maintenance**.  Duringthe term of this Lease, Tenant shall, at its expense, maintain and repair theDemised Premises and every part thereof, excluding Landlord’s responsibilitiesas set forth below, and shall use all reasonable precaution to prevent waste,damage, or injury thereto, ordinary wear, tear, use and acts of Godexcepted.  Specifically, but notintended to be limited hereby, Tenant shall be responsible for maintaining theinterior of the Demised Premises, the HVAC systems, the lighting (includingbulb and ballasts replacements), interior plumbing and plumbing fixtures,doors, windows, glass, electrical, and communication wiring located on orwithin the Demised Premises. Warranties in existence during the Lease will beused by Tenant.

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Landlord shall beresponsible for maintenance and repair of the structure, roof and exteriorfoundation of the Demised Premises, the sprinkler system, plumbing for commonareas and all aspects of the remainder of the Project.

 

# 10.                                 **Alterations**.  All alterations or remodeling of the DemisedPremises shall be done at Tenant’s own cost. No alterations or remodeling projects exceeding $2,500 shall occurwithout Landlord’s prior approval of the plans and specifications for suchalteration, which shall not be unreasonably withheld.

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All suchalterations, changes, and improvements to the Demised Premises shall be deemedto be the sole property of the Landlord and a part of the Demised Premises,except that all movable trade fixtures purchased by and installed by Tenantshall be and remain the property of Tenant and shall be removed by Tenant atthe expiration of the term hereof. Tenant shall repair any damage to the Demised Premises resulting fromTenant’s removal of such movable trade fixtures.

 

# 11.                                 **ComplianceWith Laws**.  Except as maybe otherwise provided paragraph 9, during the term, Tenant shall, at its ownexpense, promptly observe and comply with all present and future laws,ordinances and other regulations of all governmental authorities havingjurisdiction over the Demised Premises, Tenant shall not, however, beresponsible for any condition of whatever nature that existed prior to Tenant’sdate of occupancy of the Demised Premises and Landlord hereby agrees toindemnify and hold Tenant harmless on account of same.

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# 12.                                 **Signs**.  Landlord shall erect a sign at the entranceto the Project as specified in the construction specifications document.  The Landlord shall install an electrical boxin the front of the Building for Tenant’s use on or prior to the CommencementDate.  Tenant may erect, at its ownexpense, a sign or signs to identify and advertise Tenant’s business, on andabout the Demised Premises.

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All signsinstalled by Tenant will remain the property of Tenant, removable by Tenantfrom the Demised Premises within thirty (30) days after the expiration ortermination of this Lease. Tenant shall repair any damage to the Demised Premisesresulting from Tenant’s removal of such signs.

 

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# 13.                                 **TitleWarranty**.  Landlordrepresents and covenants that Landlord is fee simple owner of the real estateencompassing the Demised Premises, subject, however, only to existing mortgagesand other encumbrances covering the Demised Premises and leases affecting thecommon areas of the Project.

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# 14.                                 **Damageand Destruction**.  It ismutually agreed that in the event the Demised Premises, or the means of ingressand egress therefrom and thereto are injured by fire or other damage ordestruction during the term of the Lease, the rent provided for herein shallabate entirely in case the entire Demised Premises or any substantial portionthereof is untenantable and, in the case a non-substantial portion of theDemised Premises is untenantable, shall partially abate and shall be proratedfor the portion rendered untenantable, until the Demised Premises are restoredby Landlord to a good, tenantable condition (which Landlord shall undertake todo with due diligence), the Tenant paying during such time the proportion ofrent that the part of the Demised Premises remaining tenantable shall bear tothe entire Demised Premises during such period; provided, however, that thereshall be no abatement of rent on account of the condition of said DemisedPremises by reason of any loss or damage by fire or other damage or destructionif such damage or destruction was caused by the negligent or willful act ofTenant. In the event that the Demised Premises is destroyed or damaged so thatit can not be repaired or reconstructed with reasonable diligence beingexercised within one hundred twenty (120) days from the date of suchdestruction or damage by reason of fire or other casualty, either party mayterminate this Lease by giving written notice to the other party withinforty-five (45) days after the date of such destruction or damage; provided,however, that Tenant may require Landlord to rebuild and restore the DemisedPremises to its previous condition by giving Landlord written notice withinsuch forty-five (45) day period; provided further, however, if there is lessthan one (1) year remaining on the term of this Lease, Landlord shall have theright to terminate this Lease unless Tenant is agreeable to renewing this Leasefor a minimum term of three (3) years, in which event Landlord shall not havethe right to terminate.

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For purposes ofthis paragraph, the term “tenantable condition” shall mean a condition of theDemised Premises for use by Tenant for its active operation of its foodwarehouse as operated immediately prior to the damage or destructioncontemplated hereunder, in Tenant’s reasonable judgment.

 

# 15.                                 **Indemnification**.  Except as caused by the willful or grossnegligent act or omission of Landlord, Tenant agrees, to the extent permittedby law, to protect, defend, indemnify, and hold harmless Landlord, itsshareholders, officers, directors, employees, agents, and servants from andagainst any and all liabilities, losses, damages, claims, actions, suits,decrees, orders, expenses, demands, or judgments of any nature whatsoeverarising from any injury to or the death of any person, or damage to property,in any manner growing out of or in the connection with the use, nonuse,condition, or occupation of the Demised Premises or any part thereof or theownership, occupancy, or use thereof by Tenant from and after the CommencementDate until the Demised Premises are re-delivered to Landlord upon thetermination of this Lease, or any extension thereof; provided, however, Tenantshall be relieved from and shall have no further obligation to defend andindemnify Landlord, its shareholders, officers, directors, employees, agents,or servants as specified herein to the extent of any coverage limits of anyinsurance required of and actually maintained by Tenant.

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Landlord will, tothe extent permitted by law, indemnify, save harmless, and defend Tenant, itsshareholders, officers, directors, employees, agents, and servants, from andagainst any and all liabilities, losses, damages, claims, actions, suits,decrees, orders, expenses, demands, or judgments of any nature whatsoeverarising from any injury to or the death of any person, or damage to propertyarising from or out of any occurrence (i) in, at, or upon the Demised Premiseswhich is occasioned by any willful or gross negligent act or omission ofLandlord, its agents, employees, or servants; (ii) in or upon any of the commonareas or any part thereof; unless, as to items (i) and (ii),the same be causedby the willful or gross negligent act or omission of Tenant, its agents,employees, or servants provided, however, that Landlord shall be relieved fromand shall have no further obligation to defend and indemnify Tenant, itsshareholders, officers, directors, employees, agents, or servants as specifiedherein to the extent of any coverage limits of any insurance required of andactually maintained by Landlord.

 

# 16.                                 **Condemnation**.  In the event that the Demised Premises orthe common area, or any part thereof, shall be taken in condemnationproceedings or by exercise of any right of eminent domain or by agreementbetween Landlord, Tenant, and those authorized to exercise such right, Landlordshall be entitled to collect the entire award made in any such proceedingwithout deduction therefrom for any estate hereby vested in or owned byTenant.  Tenant agrees to execute anyand all documents that may be required in order to facilitate collection byLandlord of any and all such awards. Provided, however, if any part of such award is exclusively identifiedfor Tenant’s relocation expense, Tenant shall be entitled to receive such partof the award.

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If at any timeduring the term of this Lease the whole or substantially all of the DemisedPremises shall be so taken or condemned, this Lease shall terminate and expireon the date upon which title shall vest in the condemning authority and therent provided to be paid by Tenant shall be apportioned and paid to suchdate.  For the purposes of this section,“substantially all of the Demised Premises” shall be deemed to have been takenif, in the judgement of Tenant, the portion of the Demised Premises not sotaken, and taking into consideration the amount of the net award available forsuch purpose, cannot be so repaired or reconstructed as to constitute acomplete, rentable structure capable of producing a proportionately fair andreasonable net annual income after payment of all operating expenses thereofwhen being used by Tenant in the same manner as Tenant was conducting itsbusiness prior to any such taking.

 

In the event of ataking which shall result in the termination of this Lease, the rights ofLandlord and Tenant in any award shall be as follows and in the following orderof priority:

 

### a.                                       Thereshall first be paid to the holder of any mortgage to which the Demised Premisesis subject, the amount necessary to release the Demised Premises from any suchmortgage.

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### b.                                      Landlordshall retain the balance of said award.

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In the event of apartial taking, which shall not result in termination of this Lease, Landlordshall promptly proceed to rebuild, repair, and restore the remainder of anybuilding of the Demised Premises affected thereby to a complete, independent,and self-contained

 

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architectural unit, forthe purposes in use before the taking - to the extent the award for such takingis sufficient to pay for such work.  Ifthe award for such taking is insufficient to pay for such work, Landlord mayterminate this Lease.  The balance ofsuch separate award or allocated amount not so used and the award for theportion of the Demised Premises taken shall be distributed to Landlord.

 

In the event thatsuch repairing, rebuilding, and restoration is such that the Demised Premises,in the judgment of Tenant, may not be restored to a tenantable condition (asdefined in the Damage and Destruction paragraph hereof) within ninety (90) daysfrom the date of taking, then, at the election of Tenant and with noticethereof to Landlord within thirty (30) days from such taking, this Lease may beterminated effective as of the date of such taking, and any rental paid byTenant in advance shall be refunded.

 

If this Lease doesnot terminate as provided in this paragraph, the rent after the date of takingshall be fixed by agreement of the parties or, in the absence of suchagreement, by arbitration pursuant to the provisions of this Lease, provided,however, that the Demised Premises are restored within ninety (90) days to atenantable condition which is the use by Tenant for the purposes in use beforethe taking.  If the Demised Premisescannot be restored within ninety (90) days, rent shall abate absolutely regardlessof the degree or extent of the taking.

 

# 17.                                 **Subordinationto Mortgages**.  This Leaseand all rights of Tenant hereunder are and shall be subject and subordinate tothe lien of any and all mortgage or mortgages, or consolidated mortgage ormortgages, which may now or hereafter affect the Demised Premises, or any partthereof, and to any and all renewals, modifications, consolidations,replacements, and extensions of any such mortgage or mortgages, provided,however, that any and all mortgagees shall provide to Tenant non-disturbanceand attornment agreements satisfactory to Tenant as provided below.

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Tenant shall, upondemand at any time or times, execute, acknowledge, and deliver to Landlord,without expense to Landlord, such reasonable instruments that may be necessaryor proper to reasonably subordinate this Lease and all rights hereunder to thelien of any such mortgage or mortgages and each such renewal, modification,consolidation, replacement, and extension.

 

Landlord agrees tohave included in any existing mortgage or in any renewal, modification,consolidation, replacement, or extension of any such mortgage hereafter made,or in a written instrument in recordable form executed by the mortgagee inconnection therewith, provisions to the effect that so long as there shall beoutstanding no default in any of the terms, conditions, covenants, oragreements of this Lease on the part of Tenant to be performed, said mortgageeshall provide to Tenant written notice of any default by Landlord under theterms of any such mortgage and the leasehold estate of Tenant created hereby,and Tenant’s peaceable and quiet possession of the Demised Premises, shallremain undisturbed by any foreclosure of such mortgage. Tenant’s agreement tosubordinate this Lease to any such mortgage is expressly contingent upon themortgagee agreeing to the above provisions.

 

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# 18.                                 **Access ByLandlord**.  Upon 24 hoursprior notice to Tenant, except in the case of an emergency no prior noticeshall be required, Tenant shall permit Landlord or its agents to enter theDemised Premises during normal business hours for the purpose of inspection, orof making repairs that Tenant may neglect or refuse to make in accordance withthe agreements, terms, conditions, and covenants hereof, and also for thepurpose of showing the Demised Premises to persons wishing to purchase the sameor to make a mortgage loan on the same and, at any time within three (3) monthsprior to the expiration of the term, to persons wishing to rent the same.  Landlord shall take all reasonableprecautions to minimize any interference with Tenant’s business.

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# 19.                                 **Default**.  Each of the following events shall be adefault hereunder by Tenant and a breach of this Lease:

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### a.                                       IfTenant shall file a petition in bankruptcy or insolvency or for reorganizationor arrangement under the bankruptcy laws of the United States or any insolvencyact of any state or shall voluntarily take advantage of any such law or act byanswer or otherwise or shall be dissolved or shall make an assignment for thebenefit of creditors.

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### b.                                      Ifinvoluntary proceedings under any such bankruptcy law or insolvency act or forthe dissolution of a corporation shall be instituted against Tenant or if areceiver or trustee shall be appointed for all or substantially all of theproperty of Tenant and such proceedings shall not be dismissed or suchreceivership or trusteeship vacated within thirty (30) days after suchinstitution or appointment.

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### c.                                       IfTenant shall fail to pay Landlord any rent as and when the same shall becomedue and payable or fails to pay any other sum required to be paid by Tenanthereunder after thirty (30) days’ written notice from Landlord.  Any such payment not received by Landlordwithin or prior to the end of such notice period, if applicable, shall accrueinterest of twelve percent (12%) per annum, commencing with the original duedate, until paid in full.

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### d.                                      IfTenant shall fail to perform any of the agreements, terms, covenants, orconditions hereof on Tenant’s part to be performed and such non-performanceshall continue for a period within which performance is required to be made byspecific provision of this Lease or if no such period is so provided for aperiod of thirty (30) days after written notice thereof by Landlord to Tenant,or if such performance cannot be reasonably had within such thirty (30) dayperiod, Tenant shall not in good faith have commenced such performance withinsuch thirty (30) day period and shall not diligently proceed therewith tocompletion.

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### e.                                       IfTenant shall vacate or abandon the Demised Premises, coupled with thenon-payment of rent.

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### f.                                         Ifthis Lease or the estate of Tenant hereunder shall be transferred to or shallpass to or devolve upon any other person or party, except in a manner permittedunder the Assignment and Subletting paragraph hereof.

###  

### g.                                      IfTenant shall use the Demised Premises in any way which constitutes a nuisanceas defined in IC 32-30-6-6.

###  

If this Leaseshall be held by a permitted assignee or successor of Tenant, the provisions ofsubparagraphs a. and b. above shall apply only to such assignee or successorwhile in possession of the Demised Premises.

 

If any such eventof default shall occur and be continuing, Landlord may elect to terminate thisLease, as well as all of the right, title, and interest of Tenant hereunder bygiving to Tenant not less than thirty (30) days’ notice of such termination,and upon the expiration of the time fixed in such notice, this Lease and theterm hereof, as well as all of the right, title, and interest of Tenanthereunder, shall expire in the same manner and with the same force and effect,as if the expiration of the time fixed in such notice of termination were theend of the term.

 

After expirationof the applicable period of notice specified in subparagraphs c. and d. of thisparagraph, or without notice in the event of any emergency, Landlord, at itsoption, may, but shall not be obligated to, make any payment required of Tenantherein or comply with any agreement, term, covenant, or condition, requiredhereby to be performed by Tenant, and the amount so paid, together withinterest of twelve percent (12%) thereon from the date of such payment byLandlord, shall be deemed to be additional rent hereunder payable by Tenant andcollectible as such by Landlord with the next succeeding monthly installment ofrent.  All payments received shall firstbe applied against such additional rent, then against rent past due, ifapplicable, and last against current rent. Landlord shall have the right to enter the Demised Premises for thepurpose of correcting or remedying any such default and to remain therein untilthe same shall have been corrected or remedied, but neither any suchexpenditure nor any such performance by Landlord shall be deemed to waive orrelease Tenant’s default or the right of Landlord to take such action as may beotherwise permissible hereunder in the case of such default.

 

The subsequentacceptance of rent by Landlord shall not be deemed a waiver of any precedingbreach of any obligation of this Lease by Tenant other than the failure to paythe particular rental so accepted, and waiver of any breach of a covenant orcondition by either party shall not constitute a waiver of any other breach ordefault regardless of knowledge thereof.

 

# 20.                                 **Right toRe-Enter**.  In the eventof termination of this Lease, either by operation of law, by issuance of adispossessory warrant, by service of notice, or termination as herein provided,or otherwise, or in the event of a default referred to in subparagraph c. ande. of the Default paragraph hereof, Landlord shall immediately re-enter andrepossess the Demised Premises in an effort to mitigate, to the fullest extent possible,Landlord’s damages.  Landlord’s duty tore-enter the Demised Premises for the purpose of mitigating Landlord’s damagesis contingent upon Tenant’s vacating and surrendering possession of the DemisedPremises to Landlord.  In the event ofsuch a re-enter by Landlord, Tenant shall be allowed access to the

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Demised Premises for areasonable period of time not to exceed sixty (60) days from such re-enter andupon reasonable prior notice to Landlord for the sole purpose of removingTenant’s trade fixtures, personal property and inventory from the DemisedPremises.  Landlord shall not have alandlord’s lien on Tenant’s trade fixtures, personal property, or inventory andLandlord shall not have the right of seizure or to sell Tenant’s tradefixtures, personal property, or inventory.

#  

Landlord shallrepair and alter the Demised Premises in a reasonable manner and to thecondition of the Premises at lease commencement, and use its best efforts tolet or relet the Demised Premises or any parts thereof for the whole or anypart of the remainder of the then current term or for a longer period, inLandlord’s name or as the agent of Tenant, and out of any rent collected orreceived from subtenants or as a result of such letting or reletting, Landlordshall, first, pay to itself the cost and expense of retaking, repossessing,repairing, and/or altering the Demised Premises, and the cost and expense ofremoving Tenant and property therefrom; second, pay to itself the cost andexpense sustained in securing any new tenant; and, if Landlord shall maintainand operate the Demised Premises, the cost and expense of operating andmaintaining the Demised Premises; and, third, pay to itself any balanceremaining on account of the liability of Tenant to Landlord for the sum equalto all rent and other charges payable hereunder and unpaid by Tenant for theremainder of the term.

 

Should any rentcollected by Landlord as provided in this paragraph after the payments thereinmentioned be insufficient to fully pay to Landlord a sum equal to all rent andother charges payable hereunder for the remainder of the term, the balance ordeficiency shall be paid by Tenant on the rent days herein specified; that is,upon each of such rent days Tenant shall pay to Landlord the amount of thedeficiency then existing; and Tenant shall be and remain liable for any suchdeficiency, and the right of Landlord to recover from Tenant the amountthereof, or a sum equal to all such rent, additional rent, and other chargespayable hereunder, if there shall be no reletting, shall survive the issuanceof any dispossessory warrant or other termination hereof, and Landlord shall beentitled to retain any excess.

 

# 21.                                 **Assignmentand Subletting**.  Tenantmay not assign or sublet all or any portion of the Demised Premises without theprior written consent of Landlord, which consent shall not be unreasonablywithheld.  The parties agree thatLandlord’s refusal to give consent to an assignment or subletting to an entityfor an intended use which is inconsistent with an industrial warehouse facilityor the then current zoning of the Demised Premises shall be deemed reasonable.Tenant shall, however, have the right to assign this Lease to any subsidiary ororganization affiliated with or owned and/or controlled by Tenant without theconsent of Landlord.  The Tenant shallremain primarily liable for the payment of rent herein reserved and for theperformance of all other terms of the Lease required to be performed by the Tenant,notwithstanding any assignment or subletting.

#  

Landlord mayassign its interest in this Lease or convey its interest in the DemisedPremises without Tenant’s consent.  Suchassignment or conveyance shall be effective as to Tenant upon written notice byLandlord to Tenant of such assignment or conveyance and upon such assignment orconveyance Landlord shall have no further liability or obligation to Tenantunder this Lease.  Landlord may assign,from time to time, the whole or part of the rent at any

 

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time payable hereunderwithout Tenant’s consent.  Suchassignment shall be effective as to Tenant upon written notice by Landlord toTenant of such assignment.

 

# 22.                                 **End ofTerm**.  Tenant shall, onthe last day of the term, or upon the sooner termination of the term, peaceablyand quietly surrender and deliver possession of the Demised Premises toLandlord free of subtenancies (unless Landlord shall consent to the continuancethereof), in broom-clean condition, including all buildings, replacements,changes, additions, and improvements constructed, erected, added, or placed byTenant thereon, with all equipment in or appurtenant thereto, except forTenant’s trade fixtures as provided in paragraph 10 (but not includingequipment installed by any subtenant), in good condition, proper working orderand repair, reasonable wear and tear excepted.

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# 23.                                 **Arbitration**.  In such cases where this Lease provides forthe settlement of a dispute or question by arbitration, the same shall besettled by arbitration in accordance with the rules, then obtaining, of theAmerican Arbitration Association, and judgment upon the award rendered may beentered in any court having jurisdiction thereof.  The venue for any such arbitration shall be Fort Wayne, Indiana.

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# 24.                                 **EstoppelCertificate**.  Tenantshall, without charge, at any time and from time to time hereafter, withinfifteen (15) days after request by Landlord, certify by a reasonably writteninstrument duly executed and acknowledged to any mortgagee or purchaser, or anyother person, firm, or corporation specified by Landlord, as to the validityand force and effect of this Lease, in accordance with its tenor, as thenconstituted, as to the existence of any default on the part of any partythereunder, as to the existence of any offsets, counterclaims, or defensesthereto on the part of Tenant, and as to any other matters which may bereasonably requested by Landlord.

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# 25.                                 **Notices**.  Whenever it is provided herein that notice,demand, request, or other communication shall or may be given to or served uponeither of the parties by the other, and whenever either of the parties shalldesire to give or serve upon the other any notice, demand, request, or othercommunication with respect hereto or with respect to the Demised Premises, eachsuch notice, demand, request, or other communication shall be in writing and,any law or statute to the contrary notwithstanding, shall be effective for anypurpose if given or served as follows:

#  

### a.                                       Ifby Landlord, by mailing the same to Tenant by certified or registered mail,postage prepaid, return receipt requested, addressed to **Tom Freeze, Poore****Brothers,Inc.  3500 S. La Cometa Drive, Goodyear,AZ, 85338** or at such other address as Tenant may from time to timedesignate by notice given to Landlord by certified or registered mail with acopy to Lisa Schommer at the same address.

###  

### b.                                      Ifby Tenant, by mailing the same to Landlord by certified or registered mail,postage prepaid, return receipt requested, addressed to **Robert W. Troxel, 3112 East SR 124,Bluffton, Indiana 46714**, or at such other address as Landlord mayfrom time to time designate by notice given to Tenant by certified orregistered mail, with a copy to **Anthony O. Crowell, Gordon & Associates, P.C., 119East Oak Forest Drive, Bluffton, Indiana 46714**.

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Every notice,demand, request, or other communication hereunder shall be deemed to have beengiven or served at the time that the same shall be deposited in the UnitedStates mail, overnight mail, postage prepaid, in the manner aforesaid.  Nothing herein contained, however, shall beconstrued to preclude personal service of any notice, demand, request, or othercommunication in the same manner that personal service of a summons or otherlegal process may be made.

 

# 26.                                 **Option toExtend**.  If this Leaseshall be in full force and effect, and if Tenant shall have fully performed allof its terms and conditions and not be in default hereof, Tenant shall have theoption to extend this Lease for two (2) additional extended terms of three (3)years each, upon the same terms and conditions, except rental.  Rental (subject to the remeasure of thedescribed above) for the extended terms shall be as set forth below:

#  

| **Renewal Term** |   | **Annual** |       | **Monthly** |   | **$/Sq. Ft.** |   |
|------------------|--------|------------|------------|-------------|--------|---------------|--------|
| Years  4 - 6     |   | $          | 362,880.00 |        | $      | 30,240.00     |   | $ | 3.6288 |   |
| Years  7 - 9     |   | $          | 372,960.00 |        | $      | 31,080.00     |   | $ | 3.7296 |   |

 

The option foreach such extended term must be exercised by Tenant by written notice of Tenant’sdesire to extend the term of this Lease to Landlord not less than six (6)months prior to the expiration of the then current term.

 

# 27.                                 **HoldoverTenancy**.  In the eventthe Tenant remains in possession of the Demised Premises after the term of thisLease, or any extension hereof, such holding over shall be construed ascreating a tenancy from month to month and rent therefore shall be increased by6% above the monthly rate in effect as of the month preceding the date of leaseexpiration.  Such increase in rentduring a holdover tenancy shall be on an annual basis and shall be adjustedannually thereafter in the event the holdover tenancy extends beyond a twelvemonth period.

#  

# 28.                                 **PartialInvalidity**.  If any term,covenant, or condition of this Lease or the application thereof to any personor circumstances shall, to any extent, be invalid or unenforceable, theremainder of this Lease, or the application of such term, covenant, orcondition to persons or circumstances other than those as to which it is heldinvalid or unenforceable, shall not be affected thereby and each term,covenant, or condition of this Lease shall be valid and be enforced to thefullest extent permitted by law.

#  

# 29.                                 **Record ofNotice of Lease**. Landlord and Tenant agree that Tenant shall have the right, at Tenant’soption and expense, to record a memorandum hereof, in the office of theappropriate governmental official so as to give record notice to the public ofthe existence of Tenant’s rights pursuant to this Lease.  Landlord agrees to execute such documents asmay be necessary to facilitate the recording of a memorandum thereof.

#  

# 30.                                 **Broker’sCommission**.  Landlord andTenant each agree to be responsible for brokerage commissions or finder’s feesin connection with this Lease as a result of acts or agreements by each party,and each party agrees to indemnify the other and hold it harmless from any andall liabilities arising from any such claim (including, but without limitation,the actual costs of attorney fees in connection therewith), such agreement tosurvive the termination of this lease.

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# 31.                                 **CAM;Insurance; Taxes Reimbursement**. Tenant’s obligation under this Lease to reimburse Landlord for Tenant’spro-rata share of Common Area Maintenance, Insurance, and real property taxesshall be paid to Landlord in accordance with this paragraph.  Landlord estimates that Tenant’s annualpro-rata share of such expenses shall be equal to $0.20/sq. ft. of the DemisedPremises.  Tenant agrees to pay itspro-rata share thereof in advance in twelve (12) equal monthly installments,together with the payment of Rent.  Inthe event the aggregate of Tenant’s installments during the year shall be lessthan the amount of such expenses due from Tenant, such deficiency shall be paidto Landlord within thirty (30) days after demand thereof. In the alternative,Landlord shall credit Tenant’s next payment due with any overpaymentadjustment. Landlord shall provide to Tenant annually a copy of the tax bill anda reasonably detailed breakdown of the pro-ration.  Tenant shall have the right to request detailed substantiationsatisfactory to Tenant in Tenant’s sole discretion of all such expenses.  Any payment not received by Landlord withinsuch thirty (30) days from the invoice date shall accrue interest of 12% perannum until paid in full, provided that Tenant shall have the right to contestsuch invoice in good faith and to pay only such amount as Tenant shall in goodfaith deem reasonable pending resolution of the disputed amount.  Any amount so withheld by Tenant shallaccrue interest only in the event and to the extent that such charges aredetermined by an award of arbitrators, or by the judgment of a court of competentjurisdiction, to be reasonable and proper.

#  

Tenant’s pro-ratashare shall be determined using a fraction, the numerator of which is the grosssquare feet of the Demised Premises (100,000 sq. ft. – subject to the remeasuredescribed above) and the denominator of which is the total gross square feet inthe Project.

 

# 32.                                 **Right ofFirst Refusal**.  Tenantshall have the first right to lease any additional warehouse space containedwithin the Building on the same terms as offered by Landlord to a prospectivetenant.  Landlord shall give Tenantwritten notice of Landlord’s desire to rent additional space in the building inwhich the Demised Premises are located. If Tenant does not provide written notice to Landlord of Tenant’selection to rent all of such warehouse space so offered by Landlord within ten(10) days from the date Tenant receives Landlord’s notice, or if Landlord andTenant are unable to agree on the terms of an addendum to this Lease to addsuch additional warehouse space to this Lease within such ten (10) days fromthe date Tenant receives Landlord’s notice, Tenant shall be deemed to havewaived its right of first refusal as to such additional warehouse space.  If Tenant fails to provide the requiredwritten notice of its desire to rent such additional space or the parties failto agree on the terms for the rental of such additional space as hereinrequired, Landlord shall be permitted to lease such additional space to anytenant or new tenant.

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# 33.                                 **Tenant’sEnvironmental Representations & Indemnification**:

#  

### a.                                       Tenanthereby agrees that its use and alterations of the Demised Premises shall complywith all applicable laws, rules, ordinances, and regulations, includingpermits, during its possession; and Tenant will not store, release, or dispose(or knowingly permit the storage, release, or disposal of) a HazardousSubstance (as such is defined in subsection b. below) in the DemisedPremises, except for cleaning supplies kept and used in the normal course ofbusiness and in compliance with all applicable environmental law and regulations.  Tenant does

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### hereby agree toindemnify and hold Landlord harmless of, from, and against, all claims,actions, liens, demands, costs, expenses, fines and judgments (includingreasonable legal fees and costs) resulting from, or arising out of, Tenant’sviolation of this provision.

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### b.                                      Definitionof Hazardous Substance:  The partiesacknowledge and agree that for purposes of this provision and the Lease, (a)the term “Hazardous Substance(s)” shall mean and include any substance which isor contains: (i) any “Hazardous Substance” as now or hereafter defined in theComprehensive Environmental Response, Compensation, and Liability Act of 1980,as now or hereafter amended (42 U.S.C. Section 9601 et seq.) (“CERCLA”) orany regulations now or hereafter promulgated under CERCLA; (ii) any “HazardousWaste” as now or hereafter defined in the Resource Conservation and RecoveryAct of 1976, as now or hereafter amended (42 U.S.C. Section 6901 et seq.)(“RCRA”) or any regulations now or hereafter promulgated under RCRA; (iii) anysubstance now or hereafter regulated by the Toxic Substances Control Act, asnow or hereinafter amended (15 U.S.C. Section 2601 et seq.) (“TSCA”), orany regulations now or hereafter promulgated under TSCA; (iv) gasoline, dieselfuel, oil or other petroleum products or derivatives or fractions thereof; (v)asbestos or asbestos-containing materials in any form, whether friable ornon-friable; (vi) polychlorinated biphenyls; (vii) radon gas; or (viii) anyother substances, materials or wastes which are now or hereafter regulated orclassified or considered to be mutagenic, carcinogenic, radioactive, hazardousor toxic under any existing or future federal, state or local law, statute,court decision, common law, code, ordinance, order, rule or regulation relatingto hazardous or toxic substances, materials or wastes or the protection of theenvironment or human health, including without limitation any substance thepresence of which on, in, under or in the vicinity of the Demised Premises (A)requires reporting, investigation or remediation, (B) causes or threatens tocause a nuisance on or to the Demised Premises, the warehouse complex, or toany other property in the vicinity thereof, or poses or threatens to pose ahazard to the health or safety of persons on or in the vicinity of the DemisedPremises or the warehouse complex; or (C) which, if released, emanated ormigrated from the non-Demised Premises area of the warehouse complex, couldconstitute a trespass; and (b) the term “Environmental Laws” shall mean andinclude CERCLA, RCRA, TSCA and all other federal, state and local laws,statutes, court decisions, common law, codes, ordinances, orders, rules andregulations relating to Hazardous Substances or the protection of theenvironment or human health, as same now exist and as hereafter adopted,promulgated and amended.

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# 34.                                 **Miscellaneous**.

#  

### a.                                       EntireAgreement.  This Lease contains theentire agreement between the parties and cannot be changed or terminated orallybut only by an instrument in writing executed by the parties.

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### b.                                      Attorneys’Fees.  In the event of anylitigation or arbitration between the parties arising out of this Lease, or inconnection with the Demised Premises, the prevailing party shall be allowed allreasonable attorneys’ fees, and all court costs and incidental expensesincurred or expended in such litigation or arbitration, to be recovered as partof the costs assessed in such action.

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### c.                                       GoverningLaw/Jurisdiction/Venue.  This Leaseshall be governed by and construed in accordance with the laws of the State ofIndiana.  The parties consent to thejurisdiction and preferred venue of Wells County, Indiana for any legal actioncommenced under this Lease.

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### d.                                      BindingAgreement.  The agreements, terms,covenants, and conditions herein shall bind and inure to the benefit ofLandlord and Tenant and their respective parent companies, legalrepresentatives, successors, and, except as otherwise provided herein, theirassigns.

###  

### e.                                       Force Majeure.  Inthe event that either party hereto shall be delayed or hindered in or preventedfrom the performance of any act required under this Lease by reason ofmaterially adverse weather conditions (defined as a catastrophic event and/orsuch severe adverse weather as not reasonably foreseeable to the performingparty), strikes, lockouts, labor troubles, failure of power, restrictivegovernmental laws or regulations, riots, insurrections, acts of war, or otherreasons of a like nature not the fault of the party delayed in performing worksor doing acts required under the terms of this Lease, then performance of suchact shall be extended for a period equivalent to the period of such delay,except as otherwise specifically provided herein to the contrary.  The provisions of this Section shallnot (a) be applicable to delays resulting from the inability of a party toobtain financing or to proceed with its obligations under this Lease because ofa lack of funds; (b) delay or postpone any of the rights specifically grantedto Tenant to terminate this Lease; or (c) be applicable to either party’sperformance of its respective financial obligation pursuant to the terms of theLease.

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**IN WITNESS WHEREOF**,Landlord and Tenant have duly executed this Lease on the day and year firstabove set forth.

 
| WESTLAND PARK, LLC   |   | POORE BROTHERS, INC. |
|----------------------|--------|----------------------|
|                 |   |                 |
|                 |   |                 |
| By:                  |   |                 | By: |   |
| Robert  W. Troxel    |   |                 |
|                 |   | Title:               |   |
| Title: Manager       |   |                 |
|                 |   |                 |
| “Landlord” |   | “Tenant”   |
|                      |        |                      |  |  |  |

 

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**EXHIBIT A**

 

Depiction ofDemised Premises 

 

(See site plan andArchitect’s drawings dated May 12, 2003, as prepared by WKM & Associatesand the attached building specifications)

 

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