**TABLE OF CONTENTS**       Page      SECTION 1. PREMISES  1      SECTION 2. TERM  1      SECTION 3. COMMENCEMENT DATE  1      SECTION 4. RENEWAL OPTIONS  3      SECTION 5. MINIMUM RENT  3      SECTION 6. PERCENTAGE RENT  4      SECTION 7. TITLE ENCUMBRANCES  5      SECTION 8. RIGHT TO REMODEL  6      SECTION 9. UTILITIES  6      SECTION 10. GLASS  6      SECTION 11. PERSONAL PROPERTY  6      SECTION 12. RIGHT TO MORTGAGE  7      SECTION 13. SUBLEASE OR ASSIGNMENT  7      SECTION 14. COMMON AREAS  8      SECTION 15. OPERATION OF COMMON AREAS  8      SECTION 16. COMMON AREA MAINTENANCE, TENANT’S SHARE  9      SECTION 17. EMINENT DOMAIN  11      SECTION 18. TENANT’S TAXES  12      SECTION 19. RISK OF GOODS  12      SECTION 20. USE AND OCCUPANCY  12      SECTION 21. NUISANCES  14      SECTION 22. WASTE AND REFUSE REMOVAL  14      SECTION 23. DESTRUCTION OF PREMISES  14      SECTION 24. LANDLORD REPAIRS  15      SECTION 25. TENANT’S REPAIRS  16      SECTION 26. COVENANT OF TITLE AND PEACEFUL POSSESSION  17      SECTION 27. TENANT’S AND LANDLORD’S INSURANCE; INDEMNITY  17      SECTION 28. REAL ESTATE TAXES  20      SECTION 29. TENANT’S INSURANCE CONTRIBUTION  21      SECTION 30. FIXTURES  21      SECTION 31. SURRENDER  21      SECTION 32. HOLDING OVER  21 
 
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       Page      SECTION 33. NOTICE  21      SECTION 34. DEFAULT  22      SECTION 35. WAIVER OF SUBROGATION  24      SECTION 36. LIABILITY OF LANDLORD; EXCULPATION  24      SECTION 37. RIGHTS CUMULATIVE  25      SECTION 38. MITIGATION OF DAMAGES  25      SECTION 39. SIGNS  25      SECTION 40. ENTIRE AGREEMENT  25      SECTION 41. LANDLORD’S LIEN — DELETED BY INTENTION  25      SECTION 42. BINDING UPON SUCCESSORS  25      SECTION 43. HAZARDOUS SUBSTANCES  26      SECTION 44. TRANSFER OF INTEREST  27      SECTION 45. ACCESS TO PREMISES  27      SECTION 46. HEADINGS  27      SECTION 47. NON-WAIVER  27      SECTION 48. SHORT FORM LEASE  27      SECTION 49. ESTOPPEL CERTIFICATE  27      SECTION 50. TENANT’S REIMBURSEMENT  28      SECTION 51. TENANT’S TERMINATION RIGHT:  28      SECTION 52. NO BROKER  28      SECTION 53. UNAVOIDABLE DELAYS  28      SECTION 54. TIMELY EXECUTION OF LEASE  29      SECTION 55. ACCORD AND SATISFACTION  29      SECTION 56. WAIVER OF JURY TRIAL  29      SECTION 57. LEASEHOLD FINANCING  29 **LIST OF EXHIBITS**:   EXHIBIT “A-1” SITE PLANEXHIBIT “A-2” LEGAL DESCRIPTIONEXHIBIT “B” LANDLORD’S WORKEXHIBIT “C” TENANT’S WORKEXHIBIT “D” EXISTING USE EXCLUSIVES AND PROHIBITED USESEXHIBIT “E” EXCEPTIONS TO TENANT EXCLUSIVEEXHIBIT “F” INTENTIONALLY DELETEDEXHIBIT “G-1” TENANT SIGNAGEEXHIBIT “G-2” TENANT IMPROVEMENTS
 
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**LEASE****THIS AGREEMENT OF LEASE,**made this 27th day of November, 2006, by and between KIMSCHOTTFACTORIA MALL L.L.C., a Delaware limited liability company (hereinafter referred to as “Landlord”),with offices at c/o Kimco Realty Corporation, 3333 New Hyde Park Road, Suite 100, New Hyde Park,New York 11042 and DSW INC., an Ohio corporation (hereinafter referred to as “Tenant”) with officesat 4150 East Fifth Avenue, Columbus, Ohio 43219.**WITNESSETH:****SECTION 1.****PREMISES**(a) Landlord, in consideration of the rents to be paid and covenants and agreements to beperformed by Tenant, does hereby lease unto Tenant the premises (hereinafter referred to as the“premises” or “demised premises”) in the shopping center commonly known as Factoria Mall ShoppingCenter, City of Bellevue, County of King and State of Washington containing approximately 529,108square feet of leasable space (subject to change based upon redevelopment of the Center asdescribed in Section 15(b) hereof, but in no event less than 500,000 square feet of leasable space)on approximately 41 acres (hereinafter referred to as the “Shopping Center” or “Center”). Thelocation, size, and area of the demised premises and of the Shopping Center shall be substantiallyas shown on Exhibit “A-1” attached hereto and made a part hereof subject to changes basedupon the redevelopment of the Shopping Center as described in Section 15(b) hereof. A legaldescription of the Shopping Center is shown on Exhibit “A-2” attached hereto and made apart hereof. Landlord shall not (i) change the configuration of the Shopping Center behind thedemised premises (east side of the Shopping Center) so as to materially adversely affect access tothe “No Build Area” from the east side of the Shopping Center; or (ii) make any changes ormodifications to the parking on the east side of the Shopping Center that result in a parking ratioof less than 3.5 spaces per 1,000 square feet of leasable space for the Shopping Center.Notwithstanding the foregoing, the moving and replacement of the access points to the ShoppingCenter from the public rights of way on the east side of the Shopping Center shall not be deemedmaterial and adverse provided that comparable access points are provided. In addition to theforegoing, Landlord agrees that no modification to the Shopping Center shall (i) alter or make anychanges, including any reduction or rearrangement of parking spaces, to that portion of theShopping Center indicated on the site plan as the “Protected Area”, (ii) materially or adverselyinterfere with truck access to the loading doors of the demised premises, (iii) materially oradversely interfere with customer access to the demised premises, or (iv) result in theconstruction of any buildings to that portion of the Shopping Center indicated on the site plan as“No Build Area” except as specifically permitted during the Renovation Period as set forth inSection 15 hereof.(b) The demised premises shall have a ground floor area of approximately 21,223 square feetwith approximate dimensions of 140' x 150'.**SECTION 2.****TERM**The term of this Lease shall be for a period of fifteen (15) years, beginning on thecommencement date (as hereinafter defined), except that if the commencement date shall be a dayother than the first day of a month, then the period of time between the commencement date and thefirst day of the month next following shall be added to the term of the Lease.**SECTION 3.****COMMENCEMENT DATE**(a) As herein used, the phrase “commencement date” shall mean the earlier of: (i) the dayTenant opens for business in the demised premises, or (ii) one hundred twenty (120) days afterLandlord has delivered to Tenant possession of the demised premises as same are to be substantiallycompleted by Landlord and ready for occupancy, as in (b) below. Landlord agrees to deliver thedemised premises to Tenant with Landlord’s Work (as set forth on Exhibit “B”, attachedhereto and made a part hereof) completed between July 1, 2006 and October 15, 2006 (the “DeliveryPeriod”). Landlord shall give Tenant notice (the “Estimated Delivery Notice”) no
 
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later than July 1, 2006 of the status of Landlord’s construction and the estimated date thatLandlord shall deliver the Premises to Tenant with Landlord’s Work substantially completed (the“Estimated Delivery Date”). Landlord may, but is under no obligation, to revise the EstimatedDelivery Date any time prior to thirty (30) days prior to the Estimated Delivery Date (the “FinalDelivery Notice Date”), by which time Landlord shall have given Tenant a final notice (the “FinalDelivery Notice”) of a firm delivery date (the “Final Delivery Date”) upon which the Landlord’sWork shall be substantially completed and the demised premises delivered to Tenant. Upon thesending of the Final Delivery Notice, Landlord shall have no further right to modify the FinalDelivery Date. However, if Landlord has not delivered a Final Delivery Notice by the FinalDelivery Notice Date, then the Estimated Delivery Notice shall be the Final Delivery Notice and theEstimated Delivery Date shall be the Final Delivery Date. The Final Delivery Date shall not beearlier than (i) thirty (30) days after the date Tenant receives the Final Delivery Notice, or (ii)the first day of the Delivery Period. If Landlord does not deliver the demised premises to Tenantas required herein by October 15, 2006, Tenant may defer delivery until January 2, 2007. IfLandlord does not deliver the demised premises to Tenant thereafter on or before July 1, 2007,Tenant may terminate this Lease. Notwithstanding the foregoing, if Landlord’s failure to deliverthe demised premises to Tenant on or before July 1, 2007 is due to an event of force majeure whichoccurs on or after May 1, 2007, Tenant may not exercise its right to terminate the Lease pursuantto this Section 3(a) for an additional ninety (90) day period. In the event that the demisedpremises and Landlord’s Work are not substantially completed and delivered to Tenant on or beforethe Final Delivery Date, the minimum rent due hereunder shall be adjusted so that, after the RentCommencement Date, the Tenant shall receive a credit against minimum rent thereafter due Landlordequal to one (1) day of minimum rent for each day after the Final Delivery Date until delivery ofthe demised premises is made to Tenant consistent with the terms of this Lease, includingsubstantial completion of the Landlord’s Work (“Late Delivery Credit”). In the event Landlord doesnot provide to Tenant a Final Delivery Notice as required herein and the demised premises andLandlord’s Work is not substantially completed and delivered to Tenant on or before the FinalDelivery Date, the Late Delivery Credit shall not exceed One Hundred Fifty Thousand Dollars and0/00 ($150,000.00). Tenant shall not be obligated to accept possession of the demised premisesprior to the later of (a) substantial completion of Landlord’s Work, (b) the first day of theDelivery Period and (c) the Final Delivery Date. Time is of the essence regarding all dates setforth in this Section 3(a). Landlord shall obtain a certificate of occupancy or completion, permitor the local equivalent that is required for Landlord’s Work at the demised premises so that Tenantmay obtain a building permit for Tenant’s Work and commence performance of the same.(b) Possession of the demised premises shall not be deemed to have been given to Tenant unlessthe demised premises are ready for the installation of Tenant’s fixtures and finishing work byTenant, and are free of any violation of laws, ordinances, regulations and building restrictionsrelating to the possession or use of or construction upon the demised premises, and until Landlordhas substantially completed Landlord’s Work. Tenant shall supply Landlord with Tenant’sprototypical plans and specifications, and Landlord shall prepare plans and specifications for thePremises at Landlord’s expense, for Tenant’s approval. All such Landlord’s Work shall be done atLandlord’s expense and in compliance with all applicable federal, state and local laws, rules,regulations and code requirements. Landlord shall obtain a certificate of occupancy or completion,permit or the local equivalent that is required for Landlord’s Work at the demised premises as partof Landlord’s Work.(c) Prior to the date on which possession is delivered to Tenant as aforesaid, Tenant shallhave the right to enter the demised premises at its own risk rent-free for the purpose of preparingfor its occupancy, installing fixtures and equipment, and receiving merchandise and other property,provided that it does not unreasonably interfere with Landlord’s construction activities. All workother than that to be performed by Landlord is to be done by Tenant within ninety (90) days afterthe date possession of the demised premises has been delivered to Tenant, at Tenant’s expense inaccordance with the provisions of this Lease and as set forth in the schedule entitled Descriptionof Tenant’s Work and attached hereto as Exhibit “C” and made a part hereof. All Tenant’sWork shall be performed lien free by Tenant, in a good and workmanlike manner (employing materialsof good quality) in compliance with all governmental requirements. In the event a mechanic’s lienis filed against the demised premises or the Shopping Center on account of Tenant’s Work, Tenantshall discharge or bond off same within ten (10) days from the filing thereof. If Tenant fails todischarge said lien, Landlord may bondoff or pay same without inquiring into the validity or merits of such lien, and all sums soadvanced shall be paid on demand by Tenant as additional rent.
 
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(d) From the date upon which the demised premises are delivered to Tenant for its work untilthe commencement date of the lease term, Tenant shall observe and perform all of its obligationsunder this Lease (except Tenant’s obligation to operate and pay minimum rent, percentage rent and“Tenant’s Proportionate Share” (defined in Section 16(c) below) of “Maintenance Costs” (defined andprovided for in Section 16(b) hereof) “real estate taxes” (defined and provided for in Section28(b) hereof) and insurance (provided for in Section 28 hereof). In the event Tenant fails to openfor business within one hundred twenty (120) days after the date possession of the demised premiseshas been delivered to Tenant, Landlord, in addition to any and all other available remedies, mayrequire Tenant to pay to Landlord, in addition to all other rent and charges herein, as liquidateddamages and not as a penalty, an amount equal to one-three hundred sixty five thousandths (1/365)of the annual minimum rent for each day such failure to open continues.**SECTION 4.****RENEWAL OPTIONS**(a) Provided Tenant has fully complied with all of the terms, provisions, and conditions onits part to be performed under this Lease and is not in default under this Lease, Tenant may, bygiving written notice to the Landlord at least two hundred seventy (270) days on or before theexpiration of the initial term of this Lease, extend such term for a period of five (5) years uponthe same covenants and agreements as are herein set forth, except that the minimum rent during thefirst renewal term shall be increased to Fifty-seven Thousand Seven Hundred Seventy-nine and 62/100Dollars ($57,779.62) each month.(b) Provided Tenant has fully complied with all of the terms, provisions and conditions on itspart to be performed under this Lease, is not in default under this Lease and has exercised itsfirst option to renew hereunder, Tenant may, by giving written notice to the Landlord at leastseventy (270) days on or before the expiration of the first extended term of this Lease, extendsuch term for an additional period of five (5) years upon the same covenants and agreements as thefirst extended term except that the minimum rent (as increased pursuant to Section 4(a) above)during this second renewal term shall be further increased to Sixty-three Thousand Five HundredSixty-two and 89/100 Dollars ($63,562.89) each month.(c) Provided Tenant has fully complied with all of the terms, provisions and conditions on itspart to be performed under this Lease, is not in default under this Lease and has exercised itssecond option to renew hereunder, Tenant may, by giving written notice to the Landlord at leastseventy (270) days on or before the expiration of the second extended term of this Lease, extendsuch term for an additional period of five (5) years upon the same covenants and agreements as thesecond extended term except that the minimum rent (as increased pursuant to Section 4(b) above)during this third renewal term shall be further increased to Sixty-nine Thousand Nine HundredTwenty-nine and 79/100 Dollars ($69,929.79) each month. The initial term and any renewal term(s)are hereinafter collectively referred to as the “term”.**SECTION 5.****MINIMUM RENT**(a) Tenant agrees to pay to Landlord, as minimum rent for the demised premises, equalconsecutive monthly installments of Forty-three Thousand Four Hundred Eighteen and 72/100 Dollars($43,418.72), commencing on the commencement date, and continuing on the first day of each calendarmonth during years one (1) through five (5) of the initial term of this Lease, monthly installmentsof Forty-seven Thousand Seven Hundred Fifty-one and 75/100 Dollars ($47,751.75) each calendar monthduring years six (6) through ten (10), and monthly installments of Fifty-two Thousand Five HundredTwenty-six and 93/100 Dollars ($52,526.93) each calendar month during years eleven (11) throughfifteen (15) of the initial term of this Lease. All such rental shall be payable to Landlord inadvance, without prior written notice or demand and without any right of deduction, abatement,counterclaim or offset whatsoever (unless specifically permitted in this Lease). In no event shallTenant have the right to offset more than twenty-five percent (25%) of minimum rent in any calendarmonth, and Tenant shall have no right to offset against any additional rent other than anypercentage rent payable hereunder. As used in this Lease, the terms “minimum rent” and “minimumrental” mean the minimum rentalset forth in this Section 5(a) as adjusted pursuant to Section 4 hereof. As used in thisLease, the terms “rent and “rental” mean minimum rental, percentage rental, additional rental andall other sums due and owing from Tenant to Landlord under this Lease.
 
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(b) If the Lease term shall commence on a day other than the first day of a calendar month orshall end on a day other than the last day of a calendar month, the minimum rental for such firstor last fractional month shall be such proportion of the monthly minimum rental as the number ofdays in such fractional month bears to the total number of days in such calendar month.(c) Until further notice to Tenant, all rental payable under this Lease shall be payable toLandlord and mailed to Landlord at c/o Kimco Realty Corporation, 3333 New Hyde Park Road, Suite100, New Hyde Park, New York 11042.(d) In the event any sums required under this Lease to be paid are not received when due, thenall such amounts shall bear interest from the due date thereof until the date paid at the rate ofinterest equal to two percent (2%) over the prime rate in effect from time to time as establishedby National City Bank, Columbus, Ohio (the “Interest Rate”), and shall be due and payable by Tenantwithout notice or demand, Tenant shall pay the foregoing interest thereon in addition to alldefault remedies of Landlord pursuant to Section 34 below.(e) Notwithstanding anything herein contained to the contrary, Tenant shall initially pay toLandlord as additional rental, simultaneously with the payment of minimum rental called for underSection 5(a) above, Five Dollars and 03/100 ($5.03) per square foot, payable in equal monthlyinstallments of Eight Thousand Eight Hundred Ninety-five and 97/100 Dollars ($8,895.97), as theestimated monthly amount of Tenant’s Proportionate Share of Maintenance Costs (provided for inSection 16 hereof), real estate taxes (provided for in Section 28 hereof) and insurance (providedfor in Section 29 hereof). Tenant’s Proportionate Share of Maintenance Costs shall not exceed TwoDollars and 25/100 cents ($2.25) per square foot in the first lease year.**SECTION 6.****PERCENTAGE RENT**(a) Beginning with the first lease year, Tenant shall pay to the Landlord, in addition tominimum rent, upon the conditions and at the times hereinafter set forth, percentage rent equal totwo percent (2%) of Tenant’s gross sales (as hereinafter defined) in excess of the number obtainedby dividing (a) minimum rent for the applicable lease year by (b) the number .04. The annualpercentage rent shall be paid by Tenant to the Landlord within ninety (90) days after the end ofeach lease year. Each such payment shall be accompanied by a statement signed by an authorizedrepresentative of Tenant setting forth Tenant’s gross sales for such lease year. For purposes ofpermitting verification by the Landlord of the gross sales reported by Tenant, the Landlord shallhave the right, not more than one (1) time per lease year, upon not less than five (5) businessdays notice to Tenant, to audit during normal business hours in Tenant’s corporate office, Tenant’sbooks and records relating to Tenant’s gross sales for a period of two (2) years after the end ofeach lease year. Landlord agrees that no contingency fee auditor shall be employed by Landlord forthe purpose of conducting any such audit. If such an audit reveals that Tenant has understated itsgross sales by more than three percent (3%) for any lease year, Tenant, in addition to paying theadditional percentage rent due, shall pay the reasonable cost of the audit within thirty (30) daysof Tenant’s receipt of Landlord’s demand for the same and copies of all bills or invoices on whichsuch cost is based.(b) For purposes hereof, a lease year shall consist of a consecutive twelve (12) calendarmonth period commencing on the commencement of the term of this Lease; provided, however, that ifthis Lease commences on a day other than the first day of a calendar month, then the first leaseyear shall consist of such fractional month plus the next succeeding twelve (12) full calendarmonths, and the last lease year shall consist of the period commencing from the end of thepreceding lease year and ending with the end of the term of the Lease, whether by expiration ofterm or otherwise. In the event percentage rental shall commence to accrue on a day other than thefirst day of a lease year, the percentage rental for such lease year shall be adjusted on a prorata basis, based upon the actual number of days in such lease year.(c) Each lease year shall constitute a separate accounting period, and the computation ofpercentage rental due for any one period shall be based on the gross sales for such lease year.
 
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(d) The term “gross sales” as used in this Lease is hereby defined to mean the gross dollaraggregate of all sales or rental or manufacture or production of merchandise and all services,income and other receipts whatsoever of all business conducted in, at or from any part of thedemised premises, whether for cash, credit, check, charge account, gift or merchandise certificatepurchased or for other disposition of value regardless of collection. Should any departments,divisions or parts of Lessee’s business be conducted by any subleases, concessionaires, licensees,assignees or others, then there shall be included in Lessee’s gross sales, all “gross sales” ofsuch department, division or part, whether the receipts be obtained at the demised premises orelsewhere in the same manner as if such business had been conducted by Lessee. Gross sales shallexclude the following: (i) any amount representing sales, use, excise or similar taxes; (ii) theamount of refunds, exchanges or returns by customers or allowances to customers.(e) The percentage rental, if any, shall be paid within ninety (90) days after the end of eachlease year, accompanied by a statement in writing signed by Tenant setting forth its gross salesfrom the sale of all items for such lease year. Tenant shall keep at its principal executiveoffices, where now or hereafter located, true and accurate accounts of all receipts from thedemised premises. Landlord, its agents and accountants, shall have access to such records at anyand all times during regular business hours for the purpose of examining or auditing the same.Tenant shall also furnish to Landlord any and all supporting data in its possession relating togross sales and any deductions therefrom as Landlord may reasonably require. Landlord agrees tokeep any information obtained therefrom confidential, except as may be required for Landlord’s taxreturns, or in the event of litigation or arbitration where such matters are material.(f) Tenant shall at all times maintain accurate records which shall be available forLandlord’s inspection at any reasonable time.(g) If Landlord, for any reason, questions or disputes any statement of percentage rentalprepared by Tenant, then Landlord, at its own expense, may employ such accountants as Landlord mayselect to audit and determine the amount of gross sales for the period or periods covered by suchstatements. If the report of the accountants employed by Landlord shall show any additionalpercentage rental payable by Tenant, then Tenant shall pay to Landlord such additional percentagerental plus interest at one (1) point over the prime rate, commencing on the date such percentagerentals should have been paid, within thirty (30) days after such report has been forwarded toTenant, unless Tenant shall, within said thirty (30) day period, notify Landlord that Tenantquestions or disputes the correctness of such report. In the event that Tenant questions ordisputes the correctness of such report, the accountants employed by Tenant and the accountantsemployed by Landlord shall endeavor to reconcile the question(s) or dispute(s) within thirty (30)days after the notice from Tenant questioning or disputing the report of Landlord’s accountants.In the event that it is finally determined by the parties that Tenant has understated percentagerent for any Lease year by three percent (3%) or more, Tenant shall pay the cost of the audit.Furthermore, if Tenant’s gross sales cannot be verified due to the insufficiency or inadequacy ofTenant’s records, then Tenant shall pay the cost of the audit. The cost of any audit resultingfrom failure to report percentage rent after written notification of default shall be at the solecost of Tenant.**SECTION 7.****TITLE ENCUMBRANCES**Tenant’s rights under this Lease are subject and subordinate to those title matters set forthin Landlord’s owner’s title insurance policy issued by Chicago Title Insurance Company, beingPolicy No. 1141013, dated December 9, 2004. All of the foregoing are collectively referred toherein as the “Underlying Documents” and Tenant agrees that it shall abide by the terms andconditions of the Underlying Documents.
 
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**SECTION 8.****RIGHT TO REMODEL**(a) Tenant may, at Tenant’s expense, make repairs and alterations to the interiornon-structural portions of the demised premises and remodel the interior of the demised premises,excepting structural and exterior changes, in such manner and to such extent as may from timeto time be deemed necessary by Tenant for adapting to the demised premises to the requirements anduses of Tenant and for the installation of its fixtures, appliances and equipment. Any structuralor exterior alteration may only be made by Tenant with the prior written approval of Landlord,which approval may be granted or withheld in Landlord’s sole discretion. All plans for anystructural alterations shall be submitted to Landlord for endorsement of its approval prior tocommencement of work. Upon Landlord’s request, Tenant shall be obligated, if it remodels and/oralters the demised premises, to restore the demised premises upon vacating the same. Tenant willindemnify and save harmless the Landlord from and against all mechanics liens or claims by reasonof repairs, alterations or improvements which may be made by Tenant to the demised premises.Inasmuch as any such alterations, additions or other work in or to the demised premises mayconstitute or create a hazard, inconvenience or annoyance to the public and other tenants in theShopping Center, Tenant shall, if so directed in writing by Landlord, erect barricades, temporarilyclose the demised premises, or affected portion thereof, to the public or take whatever measuresare necessary to protect the building containing the demised premises, the public and the othertenants of the Shopping Center for the duration of such alterations, additions or other work. IfLandlord determines, in its sole judgment, that Tenant has failed to take any of such necessaryprotective measures, and Tenant fails to cure same within ten (10) days after notice thereof,Landlord may do so and Tenant shall reimburse Landlord for the cost thereof within ten (10) daysafter Landlord bills Tenant therefor.(b) All such work, including Tenant’s Work pursuant to Exhibit “C” shall be performedlien free by Tenant. In the event a mechanic’s lien is filed against the premises or the ShoppingCenter, Tenant shall discharge or bond off same within ten (10) days from the filing thereof. IfTenant fails to discharge said lien, Landlord may bond off or pay same without inquiring into thevalidity or merits of such lien, and all sums so advanced shall be paid on demand by Tenant asadditional rent.**SECTION 9.****UTILITIES**(a) The Tenant agrees to be responsible and pay for all public utility services rendered orfurnished to the demised premises during the term hereof, including, but not limited to, heat,water, gas, electric, steam, telephone service and sewer services, together with all taxes, leviesor other charges on such utility services when the same become due and payable. Landlord willseparately meter utilities prior to delivery. Landlord shall provide, or cause to be provided, allsuch utility services to the premises during the term of this Lease. Tenant shall be responsiblefor all utility services and costs inside the premises. Landlord shall not be liable for thequality or quantity of or interference involving such utilities unless due directly to Landlord’snegligence.(b) During the term hereof, whether the demised premises are occupied or unoccupied, Tenantagrees to maintain heat sufficient to heat the demised premises so as to avert any damage to thedemised premises on account of cold weather.**SECTION 10.****GLASS**The Tenant shall maintain the glass part of the demised premises, promptly replacing anybreakage and fully saving the Landlord harmless from any loss, cost or damage resulting from suchbreakage or the replacement thereof.**SECTION 11.****PERSONAL PROPERTY**The Tenant further agrees that all personal property of every kind or description that may atany time be in or on the demised premises shall be at the Tenant’s sole risk, or at the risk ofthose claiming under the Tenant, and that the Landlord shall not be liable for any damage to saidproperty or loss suffered by the business or occupation of the Tenant caused in any mannerwhatsoever.
 
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**SECTION 12.****RIGHT TO MORTGAGE**(a) Landlord reserves the right to subject and subordinate this Lease at all times to the lienof any deed of trust, mortgage or mortgages now or hereafter placed upon Landlord’s interestin the demised premises; provided, however, that no default by Landlord, under any deed oftrust, mortgage or mortgages, shall affect Tenant’s rights under this Lease, so long as Tenantperforms the obligations imposed upon it hereunder and is not in default hereunder, and Tenantattorns to the holder of such deed of trust or mortgage, its assignee or the purchaser at anyforeclosure sale. Any such subordination shall be contingent upon Tenant receiving a commerciallyreasonable non-disturbance agreement. It is a condition, however, to the subordination and lienprovisions herein provided, that Landlord shall procure from any such mortgagee an agreement inwriting, which shall be delivered to Tenant or contained in the aforesaid subordination agreement,providing in substance that so long as Tenant shall faithfully discharge the obligations on itspart to be kept and performed under the terms of this Lease and is not in default under the termshereof, its tenancy will not be disturbed nor this Lease affected by any default under suchmortgage. Landlord represents and warrants that, as of the commencement date, there shall be nomortgages, ground leases or other encumbrances that could dispossess Tenant’s leasehold interesthereunder (collectively, “Mortgages”) on Landlord’s fee title to the Center other than that certainDeed of Trust and Security Agreement and Fixture Filing and Assignment of Leases and Rents whichwere filed in King County, Washington, on June 15, 2005, between Massachusetts Mutual LifeInsurance Company, as mortgagee, and Landlord, as mortgagor. Landlord agrees that Tenant’sobligations hereunder shall be contingent upon Tenant entering into a commercially reasonablesubordination, non-disturbance and attornment agreement (“SNDA”) with such Mortgage holder on orbefore the commencement date. Further, in the event the conditions set forth herein are notsatisfied, Tenant shall have the right to terminate this Lease upon delivery of notice of suchelection to Landlord any time after the commencement date but prior to Landlord’s satisfaction ofthe conditions set forth herein. In any event, Tenant shall have no obligations hereunder,specifically including the obligation to pay rent, until the conditions set forth herein aresatisfied.(b) Wherever notice is required to be given to Landlord pursuant to the terms of this Lease,Tenant will likewise give such notice to any mortgagee of Landlord’s interest in the demisedpremises upon notice of such mortgagee’s name and address from Landlord. Furthermore, suchmortgagee shall have the same rights to cure any default on the part of Landlord that Landlordwould have had.**SECTION 13.****SUBLEASE OR ASSIGNMENT**(a) Tenant may assign Tenant’s interest in this Lease or sublet all or any portion of thedemised premises to a nationally recognized retailer (defined as a retailer with at least fifty(50) retail stores in the United States) or regionally recognized retailer (defined as a retailerwith at least five (5) retail stores in the State of Washington) customarily found in similarshopping centers without Landlord’s consent. Any other assignment or subletting not specificallyprovided for in this Section 13 shall be subject to Landlord’s prior written consent, which consentshall not be unreasonably withheld. Landlord’s review of the proposed assignee or subtenant shallbe limited to business reputation, business experience, a retail use compatible with then existingtenant mix of the Shopping Center, and financial ability to perform its obligations under thisLease or the proposed sublease, as the case may be. In any such event, Tenant shall remain fullyand primarily liable hereunder. Tenant’s right to assign or sublet shall be subject to thoseexclusives and prohibited uses set forth on Exhibit “D” attached hereto and made a parthereof, which are the exclusives and prohibited uses in effect for the Shopping Center as of thedate hereof, for so long as and to the extent said exclusives and prohibited uses are still in fullforce and effect, as well as exclusives and prohibited uses hereafter granted for tenants leasingmore than 15,000 square feet of space elsewhere within the Shopping Center, for so long as and tothe extent said exclusives are still in full force and effect.In the event Tenant desires to assign the Lease and such assignment requires Landlord’s priorwritten consent, then Landlord shall within fifteen (15) business days of receipt of Tenant’swritten notice to Landlord requesting such consent, either consent to such assignment, or elect toterminate the Lease effective sixty (60) days after notice of such election to terminate. In theevent Landlord terminates the Lease pursuant to this Section 13(a), (i) then effective upon suchtermination date, neither party shall have any further rights or liabilities hereunder arisingafter such termination date, and (ii) Tenant shall have the right to nullify such termination bywithdrawing its assignment request within ten (10) days after receiving Landlord’s terminationnotice and continuing as the direct tenant/occupant hereunder.
 
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(b) Tenant may, without the consent of Landlord, (i) grant licenses and/or concessions withinthe demised premises or (ii) assign or sublet all or any portion of the demised premises to (a) anyparent, affiliate or subsidiary corporation of Tenant; (b) a transferee or successor by merger,consolidation or acquisition of Tenant or its parent or subsidiary; or (c) a transferee with a goodbusiness reputation who is acquiring all or substantially all of the stores of the Tenant in theState of Washington or the assets of the Tenant, its parent or subsidiary. Any such assignee orsublessee shall be bound by the terms of this Lease. Tenant shall deliver to Landlord in theordinary course of its business an instrument whereby the assignee or entity succeeding to Tenant’sinterest hereunder agrees to be bound by the terms of this Lease.In the event of any assignment of this Lease or subletting of the demised premises, in wholeor in part, Tenant shall remain fully and primarily liable hereunder.(c) Landlord may assign Landlord’s interest in this Lease without the consent of Tenant (a) toany entity to which Landlord transfers its fee interest in the demised premises provided suchentity (i) agrees in writing to be bound by all the terms of this Lease and (ii) such assignment ispursuant to a bona fide arm’s length transaction not designed to reduce Landlord’s liability or tootherwise exempt Landlord from any provision of this Lease or (b) subject to Section 12, assecurity for any indebtedness undertaken by Landlord.**SECTION 14.****COMMON AREAS**Common areas means all areas and facilities in the Shopping Center provided and so designatedby Landlord and made available by Landlord in the exercise of good business judgment for the commonuse and benefit of tenants of the Shopping Center and their customers, employees and invitees.Common areas shall include (to the extent the same are constructed), but not be limited to, theparking areas, sidewalks, landscaped areas, corridors, stairways, boundary walls and fences,incinerators, truckways, service roads, and service areas not reserved for the exclusive use ofTenant or other tenants.**SECTION 15.****OPERATION OF COMMON AREAS**(a) Landlord shall, throughout the term hereof, operate and maintain the common areasincluding the parking areas for the use and benefit of the tenants of the Shopping Center and theircustomers and invitees. Landlord shall at all times have exclusive control of the common areas andmay at any time and from time to time: (i) promulgate, modify and amend reasonable rules andregulations for the use of the common areas, which rules and regulations shall be binding upon theTenant upon delivery of a copy thereof to the Tenant; (ii) temporarily close any part of the commonareas, including but not limited to closing the streets, sidewalks, road or other facilities to theextent necessary to prevent a dedication thereof or the accrual of rights of any person or of thepublic therein; (iii) exclude and restrain anyone from the use or occupancy of the common areas orany part thereof except bona fide customers and suppliers of the tenants of the Shopping Center whouse said areas in accordance with the rules and regulations established by Landlord; and (iv)engage others to operate and maintain all or any part of the common areas, on such terms andconditions as Landlord shall, in its sole judgment, deem reasonable and proper; and (v) make suchchanges in the common areas as in its opinion are in the best interest of the Shopping Center,including but not limited to changing the location of walkways, service areas, driveways,entrances, existing automobile parking spaces and other facilities, changing the direction and flowof traffic and establishing prohibited areas; provided, however, Landlord shall not (i) change theconfiguration of the Shopping Center behind the demised premises (east side of the Shopping Center)so as to materially adversely affect access to the “No Build Area” from the east side of theShopping Center; or (ii) make any changes or modifications to the parking on the east side of theShopping Center that result in a parking ratio of less than 3.5 spaces per 1,000 square feet ofleasable space for the Shopping Center. Notwithstanding the foregoing, the moving and replacementof the access points to the Shopping Center from the public rights of way on the east side of theShopping Center shall not be deemed material and adverse provided that comparable access points areprovided. In addition to the foregoing, Landlord shall be permitted to make changes to theShopping Center to the extent necessary during the Renovation Period as set forth in Section 15(b)hereof.
 
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(b) Tenant acknowledges that Landlord will be renovating the Shopping Center, including theCommon Areas, which renovation shall commence during the first five (5) years of the term hereofand once commenced, shall not exceed a period of three and one half (3.5) years (“RenovationPeriod”). Tenant acknowledges that during the Renovation Period the parking field and accesswaysto the demised premises will be renovated and therefore there will be temporary interferences withsame. Notwithstanding the foregoing, during the Renovation Period, the parking for, access to orvisibility or use of the demised premises shall not be interfered with by Landlord for a period ofmore than two hundred seventy (270) consecutive days (the “Tenant Obstruction Period”) and Landlordshall renovate the Common Areas adjacent to and in front of the demised premises in three phasesduring such Tenant Obstruction Period so that parking for and access to the demised premises willalways be available per at least one of the three phases illustrated on the site plan attachedhereto as Exhibit “A-1” and so that any renovation to any one of the three phases shall notlast for more than ninety (90) consecutive days. In the event during the Tenant ObstructionPeriod, Tenant’s gross sales from the demised premises are less than the comparative monthly salesfrom the prior year, Tenant shall be entitled to pay Landlord, in lieu of minimum rent otherwisepayable hereunder, eight percent (8%) of Tenant’s gross sales from the demised premises, ascalculated by Tenant using generally accepted accounting principles consistently applied. Withinthirty (30) days after the end of each month during the Tenant Obstruction Period in which Tenantexercises the foregoing right to abate minimum rent, Tenant shall deliver to Landlord a statementsigned by an authorized representative of the Tenant setting forth the gross sales of Tenant duringsuch month compared to the gross sales from the same month from the prior year and Tenant shall paythe foregoing abatement rent in lieu of the next immediately monthly payment of minimum rent duehereunder.(c) As part of its renovation of the Shopping Center during the Renovation Period, and subjectto all governmental approvals, Landlord shall construct a means of access from Factoria Blvd to thewest side of the demised premises which may or may not be as depicted on the site plan. Upon theexpiration of the Renovation Period, Landlord agrees that no modification to the Shopping Centershall (i) alter or make any changes, including any reduction or rearrangement of parking spaces, tothat portion of the Shopping Center indicated on the site plan as the “Protected Area”, (ii)materially or adversely interfere with truck access to the loading doors of the demised premises,(iii) materially or adversely interfere with customer access to the demised premises, or (iv)result in the construction of any buildings to that portion of the Shopping Center indicated on thesite plan as “No Build Area”.(d) Tenant shall keep all common areas free of obstructions created or permitted by Tenant.Tenant shall permit the use of the common areas only for normal parking and ingress and egress byits customers and suppliers to and from the demised premises. If in Landlord’s opinionunauthorized persons are using any of the common areas by reason of Tenant’s occupancy of thedemised premises, Landlord shall have the right at any time to remove any such unauthorized personsfrom said areas or to restrain unauthorized persons from said areas. Landlord, Tenant, and othersconstructing improvements or making repairs or alterations in the Shopping Center shall have theright to make reasonable use of portions of the common areas.**SECTION 16.****COMMON AREA MAINTENANCE, TENANT’S SHARE**(a) Tenant shall initially pay to Landlord as additional rental, simultaneously with thepayment of minimum rental called for under Section 5(a), the estimated monthly amount of Tenant’sProportionate Share of the “Maintenance Costs” (as defined in Section 16(c) below) for theoperation and maintenance of the common areas as set forth in Section 5(e), Two Dollars and 25/100cents ($2.25) per square foot, payable in equal monthly installments of Three Thousand Nine HundredSeventy-nine and 31/100 Dollars ($3,979.31) as the estimated monthly amount of Tenant’sProportionate Share of the “Maintenance Costs” (as defined in Section 16(c) below) for theoperation and maintenance of the common areas.(b) The Maintenance Costs for the common areas shall be computed on an accrual basis, undergenerally accepted accounting principles, and shall include all costs of operating, maintaining,repairing and replacing the common areas, including by way of example but not limitation: (i) costof labor (including worker’s compensation insurance, employee benefits and payroll taxes); (ii)materials, and supplies used or consumed in the maintenance or operation of the common area; (iii)the cost of operating and repairing of the lighting; (iv) cleaning, painting,removing of rubbish or debris, snow and ice, private security services, and inspecting thecommon areas; (v) the cost of repairing and/or replacing paving, curbs, walkways, markings,directional or other signs; landscaping, and drainage and lighting facilities; (vi) rental paid formaintenance of machinery and equipment; (vii) cost of commercial general liability insurance andproperty insurance for property in the common areas which are not part of the building and/ordemised premises; and (viii) a reasonable allowance to Landlord for Landlord’s supervision, whichallowance shall not in an accounting year exceed fifteen percent (15%) of the total of allMaintenance Costs for such accounting year (all of the foregoing are collectively referred toherein as “Maintenance Costs”).
 
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Notwithstanding the foregoing, the following shall be excluded, deducted or credited fromMaintenance Costs when computing Tenant’s Proportionate Share of same: (i) Net recoveries received by the Landlord from tenants as a result of any act,omission, default or negligence or as the result of breaches by tenants of theprovisions of their leases and/or other amounts received by Landlord from thirdparties, which recoveries and/or amounts reimburse Landlord for or reduce MaintenanceCosts. (ii) Gross revenues from charges, if any, made for the use of the parking facilitiesand other Common Areas or facilities of the Center (including, without limitation, thesale or rental of advertising space). (iii) The cost of the land underlying and the construction of the Center, whetherinitially or in connection with any replacement or expansion thereof. (iv) The depreciation or amortization of the Center or any part thereof or anyequipment or other property used in connection therewith. (v) The initial cost of the installation of the parking areas or facilities or theamortization or depreciation of such initial cost. (vi) The cost of providing or performing improvements, work or repairs to or within(a) any portion of the premises of any other tenants or occupants in the Center, (b)any other building which is not part of the Common Areas or (c) any portion of theCenter the use of which is not available to the public. (vii) Any reserves for future expenditures or liabilities which would be incurredsubsequent to the then current accounting year.(viii) Any bad debt loss, rent loss or reserves for bad debt or rent loss. (ix) Legal fees, audit fees, leasing commissions, advertising expenses and othercosts incurred in connection with (a) the original development or original leasing ofthe Center, (b) the future re-leasing of the Center, (c) any advertising or promotionof the Center or any part thereof, and (d) disputes with other tenants or thirdparties. (x) Costs of repairing or restoring any portion of the Center damaged or destroyedby any casualty or peril. (xi) Costs in connection with the cleanup or removal of hazardous materials;provided, however, that Maintenance Costs may include the costs to remove HazardousSubstances from the surface of the parking lot, such as paint cans and minor motor oilspills, but excluding contamination otherwise addressed in Section 43 below and furtherprovided that Tenant’s Proportionate Share of such costs shall not exceed Five HundredDollars ($500.00) in any one Lease Year. (xii) Net recoveries from insurance policies taken out by the Landlord to the extentthat the proceeds reimburse Landlord for expenses which have previously been includedor which would otherwise be included in Maintenance Costs. (xiii) Contributions to Maintenance Costs by tenants or occupants whose space is excludedfrom the denominator of the Tenant’s Proportionate Share. (xiv) Any management costs or fees of any kind that are paid for management orsupervising functions performed by the Landlord or by some other entity, whether or notthe cost or fee is paid to a third party or paid to the Landlord in excess of thefifteen percent (15%) of Tenant’s Proportionate Share of Maintenance Costs permitted inSection 16(b).
 
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 (xv) Costs of a capital nature, including all capital improvements, alterations,repairs and/or replacements (for purposes of this Lease, “costs of a capital nature”shall mean the cost of any item or service the useful life of which exceeds 36 months). (xvi) Costs relating to the negligence of Landlord or its contractors, agents oremployees or the payment of any claims or damages relating to the same. (xvii) Any insurance costs, except to the extent required to be paid by Tenant pursuant toSection 27.(c) Landlord shall maintain accurate and detailed records of all Maintenance Costs for thecommon areas in accordance with generally accepted accounting principles. For purposes of thisLease, “Tenant’s Proportionate Share” shall be the product of the applicable cost or expensemultiplied by a fraction, the numerator of which shall be the gross leasable area (expressed insquare feet) of the demised premises and the denominator of which shall be the gross leasable area(expressed in square feet) of all leasable space in the Shopping Center. Tenant’s ProportionateShare of that portion of the Shopping Center is presently twenty-four one/hundredths percent(.24%), which amount is subject to change from time to time during the term of this Lease.(d) The actual amount of Tenant’s Proportionate Share of all Maintenance Costs shall becomputed by Landlord within one hundred eighty (180) days after the end of each accounting year(which Landlord may change from time to time). At this time Landlord shall furnish to Tenant astatement showing in reasonable detail the actual Maintenance Costs incurred during such accountingyear and Tenant’s Proportionate Share thereof (prorated for any partial Lease year, withappropriate adjustments to reflect any change in the floor area of the premises or the grossleasable area of a building occurring during such accounting year). Any excess payments fromTenant shall be applied to the next installments of the Maintenance Costs hereunder, or refunded byLandlord. Any underpayments by Tenant shall be paid to Landlord within thirty (30) days afterreceipt of such reconciliation statement. Tenant’s estimated monthly Maintenance Cost hereundermay be adjusted by written notice from Landlord. Notwithstanding anything contained in thisSection 16 to the contrary, Landlord and Tenant agree that the actual amount of Tenant’sProportionate Share of Maintenance Costs, excluding costs for snow and ice removal, common areautilities and common area security shall not increase by more than five percent (5%) in any leaseyear over the previous lease year, and that Tenant’s Proportionate Share of Maintenance Costs forthe first lease year shall not exceed Two Dollars and 25/100 cents ($2.25) per square foot.(e) If Tenant, for any reason in the exercise of good business judgment, questions or disputesany statement of Maintenance Costs prepared by Landlord, then Tenant, at its own expense, mayemploy such accountants as Tenant may select to review Landlord’s books and records solely withrespect to Maintenance Costs during the prior two Lease years and to determine the amount ofMaintenance Costs for the period or periods covered by such statements. If the report of theaccountants employed by Tenant shall show any overcharge paid by Tenant, then Tenant shall receivea credit from Landlord for such difference. Any underpayment shall be paid by Tenant. Tenantagrees that no contingency fee auditors shall be employed by Tenant for the purpose of conductingany such audit. In the event that Landlord questions or disputes the correctness of such report,the accountants employed by Tenant and the accountants employed by Landlord shall endeavor toreconcile the question(s) or dispute(s) within thirty (30) days after the notice from Tenantquestioning or disputing the report of Landlord’s accountants. In the event that it is finallydetermined by the parties that Landlord has overstated Maintenance Costs for any Lease year bythree percent (3%) or more, Landlord shall pay the reasonable cost of the audit. Furthermore, ifLandlord’s Maintenance Costs cannot be verified due to the insufficiency or inadequacy ofLandlord’s records, then Landlord shall pay the cost of the audit.**SECTION 17.****EMINENT DOMAIN**(a) In the event the entire premises or any part thereof shall be taken or condemned eitherpermanently or temporarily for any public or quasi-public use or purpose by any competent authorityin appropriation proceedings or by any right of eminent domain, the entire compensation or awardtherefore, including leasehold, reversion and fee, shall belong to the Landlord and Tenant herebyassigns to Landlord all of Tenant’s right, title and interest in and to such award.
 
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(b) In the event that only a portion of the demised premises, not exceeding twenty percent(20%) of same, shall be so taken or condemned, and the portion of the demised premises not takencan be repaired within ninety (90) days from the date of which possession is taken for the publicuse so as to be commercially fit for the operation of Tenant’s business, the Landlord at its ownexpense shall so repair the portion of the demised premises not taken and there shall be anequitable abatement of rent for the remainder of the term and/or extended terms. The entire awardpaid on account thereof shall be paid to the Landlord. If the portion of the demised premises nottaken cannot be repaired within ninety (90) days from the date of which possession is taken so asto be commercially fit for the operation of Tenant’s business, then this Lease shall terminate andbecome null and void from the time possession of the portion taken is required for public use, andfrom that date on the parties hereto shall be released from all further obligations hereunderexcept as herein stated and Tenant shall have no claim for any compensation on account of itsleasehold interest. No other taking, appropriation or condemnation shall cause this Lease to beterminated. Any such appropriation or condemnation proceedings shall not operate as or be deemedan eviction of Tenant or a breach of Landlord’s covenant of quiet enjoyment and Tenant shall haveno claim for any compensation on account of its leasehold interest.(c) In the event that more than 20% of the demised premises shall at any time be taken bypublic or quasi-public use or condemned under eminent domain, then at the option of the Landlord orTenant upon the giving of thirty (30) days written notice (after such taking or condemnation), thisLease shall terminate and expire as of the date of such taking and any prepaid rental shall beprorated as of the effective date of such termination.**SECTION 18.****TENANT’S TAXES**Tenant further covenants and agrees to pay promptly when due all taxes assessed againstTenant’s fixtures, furnishings, equipment and stock-in trade placed in or on the demised premisesduring the term of this Lease.**SECTION 19.****RISK OF GOODS**All personal property, goods, machinery, and merchandise in said demised premises shall be atTenant’s risk if damaged by water, fire, explosion, wind or accident of any kind, and Landlordshall have no responsibility therefore or liability for any of the foregoing and Tenant herebyreleases Landlord from such liability.**SECTION 20.****USE AND OCCUPANCY**(a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and otherfootwear in the demised premises, fully staffed and stocked and equivalent to other DSW storesoperated by Tenant in the State of Washington (the “Permitted Use”), or for any other lawful retailuse upon obtaining the prior written consent of Landlord, which consent shall not be unreasonablywithheld. Any use other than a retail shoe store shall be consistent with the then existingcharacter of the Shopping Center, and shall not violate those exclusives and prohibited uses setforth on Exhibit “D” attached hereto and made a part hereof, which are the exclusives andprohibited uses in effect for the Shopping Center as of the date hereof, for so long as and to theextent said exclusives and prohibited uses are still in full force and effect, as well asexclusives and prohibited uses hereafter granted for tenants leasing more than 15,000 square feetof space elsewhere within the Shopping Center, for so long as and to the extent said exclusives arestill in full force and effect. In connection with the use exclusives and prohibited uses setforth on Exhibit “D”, Landlord (i) acknowledges that Tenant is not leasing space inBuildings H, F or L as identified and described in the use exclusive for Old Navy, (ii) has notsigned a leasewith TJX as of the date hereof and agrees that upon executing any such lease will provide thatDSW is carved-out as an exception to any use exclusive granted to such tenant, and (iii) Landlordshall indemnify, defend and hold harmless Tenant, Tenant’s officers, directors, employees andagents against any and all damages, claims and liabilities arising from any claim by Nordstrom Rackthat Tenant is operating in violation of the use exclusive granted to such tenant.
 
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(b) For so long as Tenant is continuously and regularly operating its business in the demisedpremises, Landlord will not lease any space within the Shopping Center or permit any space withinthe Shopping Center (to the extent Landlord has control) to be used by any person, persons,partnership or entity who devotes ten percent (10%) or more of its selling area to the sale offootwear (the “Exclusive Use”). The foregoing limitation shall not apply to (i) shoe departmentsfound in department stores, junior department stores, general merchandise and discount departmentstores such as Target, Marshalls, TJX and Kohls provided that such tenants are operating their shoedepartment consistent with their national prototypical shoe department; and (ii) the existingtenants or their successors or assigns at the Shopping Center which presently have the right tosell shoes and other footwear, as set forth on Exhibit “E”, so long as such tenants areoperating their prototypical shoe department consistent with their national prototypical shoedepartment. Notwithstanding the foregoing, in the event an existing tenant at the Shopping Centerwhich presently has the right to engage in the Exclusive Use assigns or sublets its portion of theShopping Center, and the assignment or sublet is subject to Landlord’s consent, Landlord willcondition its consent on such assignment or sublet being subject to the Exclusive Use to the extentLandlord has the right to do so. Any portion of the Shopping Center which is sold by Landlordduring the term shall contain a deed restriction incorporating the foregoing Exclusive Use.(c) Tenant shall at all times conduct its operations on the demised premises in a lawfulmanner and shall, at Tenant’s expense, comply with all laws, rules, orders, ordinances, directions,regulations, and requirements of all governmental authorities, now in force or which may hereafterbe in force, which shall impose any duty upon Landlord or Tenant with respect to the business ofTenant and the use, occupancy or alteration of the demised premises. Tenant shall comply with allrequirements of the Americans with Disabilities Act, and shall be solely responsible for allalterations within the demised premises in connection therewith. Tenant covenants and agrees thatthe demised premises shall not be abandoned or left vacant and that only minor portions of thedemised premises shall be used for office or storage space in connection with Tenant’s businessconducted in the demised premises.Without being in default of this Lease, Tenant shall have the right to cease operating (godark) at any time and for whatever reason after the first (1st) lease year.Notwithstanding the foregoing, Tenant’s right to vacate (go dark), shall not release or excuse theTenant from any obligations or liabilities, including the payment of minimum rent and additionalrent and other charges, under this Lease without the express written consent of Landlord. In theevent Tenant fails to (i) open and operate within ninety (90) days after delivery of the demisedpremises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall havethe right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Leaseas Landlord’s sole remedy, provided that if Tenant recommences operating fully stocked insubstantially all of the premises within such thirty (30) days, Landlord’s termination shall benull and void. In the event Tenant fails to open and operate as provided above or shall ceaseoperating as provided above, Landlord’s sole remedy on account thereof shall be limited to theright to elect to recapture the premises and terminate the Lease, whereupon there shall be nofurther liability of the parties hereunder. Such termination shall be effective upon writtennotice to Tenant any time prior to Tenant reopening for business in the demised premises.Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have rightto notify Landlord of Tenant’s intention to reopen for business in the demised premises withinsixty (60) days, followed by Tenant’s actually reopening for business fully stocked insubstantially all of the demised premises within such sixty (60) day period, which notice andactual reopening shall toll Landlord’s right to recapture.(d) Landlord agrees that during the term of this Lease no space in the Shopping Center(excluding areas of the Shopping Center not owned by Landlord) will be used for a flea market,theater showing either film, television or the like or live entertainment, bar (except as permittedbelow), game/amusement room (except as permitted below), bowling alley, indoorplayground (except as permitted below), or adult bookstore (defined for the purposes hereof asa store devoting ten percent (10%) or more of its floor space to offering books and/or videomaterials for sale or for rent which are directed to or restricted to adult customers due tosexually explicit subject matter or for any other reason making it inappropriate for general use).Landlord agrees that during the term of this Lease the spaces identified on the site plan as“Restaurant-Not Permitted” shall not be used as a restaurant, bar, or any establishment
 
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sellingfood products including but not limited to a coffee shop, candy store, bagel store, ice cream storeor any fast food/sandwich shop establishment. Landlord agrees that during the term of this Leasethe spaces identified on the site plan as “Health Club-Not Permitted” shall not be used as a healthclub, gym, yoga or fitness studio, karate studio, or weight loss clinic. In addition to theforegoing, Landlord and Tenant agree that space outside of the “Restaurant-Not Permitted” area maybe used as a bar, game/amusement room or indoor playground provided that such uses are incidentalto a restaurant use. The aforementioned restrictions shall not apply to the rights of tenant’sunder existing leases at the Shopping Center as the same may be renewed, extended, modified oramended (except that no such renewal, extension, modification or amendment shall grant a tenant theright to engage in any of the aforementioned prohibited uses where such tenant did not previouslyhave that right).(e) Tenant agrees that the demised premises may not be used for the operation of a bingoparlor, bar, tavern, restaurant, cocktail lounge, adult book or adult video store (defined for thepurposes hereof as a store devoting ten percent (10%) or more of its floor space to offering booksand/or video materials for sale or for rent which are directed to or restricted to adult customersdue to sexually explicit subject matter or for any other reason making it inappropriate for generaluse), adult theater or “strip-tease” establishment, automotive maintenance or automotive repairfacility, warehouse, car wash, pawn shop, check cashing service, establishment selling second handgoods, flea market, entertainment or recreational facility (as defined below), training oreducational facility (as defined below); the renting, leasing, selling or displaying of any boat,motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusementpark; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeralhome, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place ofpublic assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinaryhospital or animal raising facility; the storage of goods not intended to be sold from the Center;a video rental store, karate center, central laundry or dry cleaning plant, supermarket or anyfacility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dustor vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. Forthe purposes of this Section 20(e), the phrase “entertainment or recreational facility” shallinclude, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym,health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club,game parlor or video arcade (which shall be defined as any store containing more than five (5)electronic games) or any other facility operated solely for entertainment purposes (such as a“laser tag” or “virtual reality” theme operation). For the purposes of this Section 20(e), thephrase “training or educational facility” shall include, without limitation, a beauty school, nailsalon, barber college, reading room, place of instruction or any other operation catering primarilyto students or trainees as opposed to customers.**SECTION 21.****NUISANCES**Tenant shall not perform any acts or carry on any practice which may injure the demisedpremises or be a nuisance or menace to other tenants in the Shopping Center.**SECTION 22.****WASTE AND REFUSE REMOVAL**Tenant covenants that it will use, maintain and occupy said demised premises in a careful,safe, lawful and proper manner and will not commit waste therein. Landlord or its agent shall haveaccess at all reasonable times to the demised premises for purposes of inspecting and examining thecondition and maintenance of the demised premises. Tenant agrees to remove all refuse from thedemised premises in a timely, clean and sanitary manner. Tenant shall provide a refuse collectioncontainer at the rear of the demised premises to accommodate Tenant’s refuse and Tenant shallroutinely clean up around trash containers. Tenant shall contract with a licensed and insuredrefuse collection contractor to timely remove refuse therefrom and the location of the containershall be approved by Landlord.**SECTION 23.****DESTRUCTION OF PREMISES**(a) Landlord shall at all times during the term of this Lease carry property insurance on thebuilding containing the demised premises, including the “Structural Portions” (defined in Section24(a) below) and common utility lines up to the point they serve individual tenant’s premises.Landlord shall be under no obligation to maintain insurance on any improvements installed by or forthe benefit of Tenant’s use of the premises or otherwise owned by Tenant. Landlord may elect toself-insure its obligations hereunder and/or use whatever deductibles as Landlord deemsappropriate, in its sole discretion.
 
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(b) If the demised premises shall be damaged, destroyed, or rendered untenantable, in whole orin part, by or as the result or consequence of fire or other casualty during the term hereof,Landlord shall repair and restore the same to a good tenantable condition with reasonable dispatch.During such period of repair, the rent herein provided for in this Lease shall abate (i) entirelyin case all of the demised premises are untenantable; and (ii) proportionately if only a portion ofthe demised premises is untenantable and Tenant is able to economically conduct its business fromthe undamaged portion of the demised premises. The abatement shall be based upon a fraction, thenumerator of which shall be the square footage of the damaged and unusable area of the demisedpremises and the denominator shall be the total square footage of the demised premises. Saidabatement shall cease at such time as the demised premises shall be restored to a tenantablecondition.(c) In the event the demised premises, because of such damage or destruction, are not repairedand restored to a tenantable condition with reasonable dispatch within one hundred fifty (150) daysfrom the date of receipt of insurance proceeds for such damage or destruction, Tenant or Landlordmay, at their option, terminate this Lease within sixty (60) days following such one hundred fifty(150) day period but prior to the repair and restoration of same by giving prior written notice tothe other party and thereupon Landlord and Tenant shall be released from all future liability andobligations under this Lease.(d) If one-third (1/3) or more of the ground floor area of the demised premises are damaged ordestroyed during the last two (2) years of the original or any extended term of this Lease,Landlord shall have the right to terminate this Lease by written notice to Tenant within sixty (60)days following such damage or destruction, unless Tenant shall, within thirty (30) days followingreceipt of such notice, offer to extend the term of this Lease for an additional period of five (5)years from the date such damage or destruction is repaired and restored. If Tenant makes saidoffer to extend, Landlord and Tenant shall determine the terms and conditions of said extensionwithin thirty (30) days thereafter or Tenant’s offer shall not be deemed to prevent Landlord fromcanceling this Lease. If such terms and conditions have been mutually agreed to by the parties,then Landlord shall accept Tenant’s offer and shall repair and restore the demised premises withreasonable dispatch thereafter.(e) If Landlord is required or elects to repair and restore the demised premises as hereinprovided, Tenant shall repair or replace its stock in trade, trade fixtures, furniture, furnishingsand equipment and other improvements including floor coverings, and if Tenant has closed, Tenantshall promptly reopen for business. Anything contained in this Section 23 to the contrarynotwithstanding, Landlord’s restoration and repair obligations under Section 23 shall in no eventinclude restoration or repair of Tenant’s Work or improvements.**SECTION 24.****LANDLORD REPAIRS**(a) Landlord shall keep in good order, condition, and repair the following: (i) structuralportions of the demised premises; (ii) downspouts; (iii) gutters; (iv) utility lines leading up tothe point of entry into the demised premises; (v) the roof of the Building of which the demisedpremises forms a part; and (vi) the plumbing and sewage system serving the demised premises butlocated outside of the demised premises, except (as to all items) for damage caused by anynegligent act or omission of Tenant or its customers, employees, agents, invitees, licensees orcontractors, which shall be repaired or replaced as necessary, at the sole cost and expense ofTenant. “Structural Portions” shall mean only the following: (vii) foundations; (viii) exteriorwalls except for interior faces); (ix) concrete slabs; (x) the beams and columns bearing the mainload of the roof; and (xi) the floors (but not floor coverings).
 
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(b) Notwithstanding the provisions of Section 24(a) above, Landlord shall not be obligated torepair the following: (i) the exterior or interior of any doors, windows, plate glass, or showcasessurrounding the demised premises or the store front; (ii) HVAC unit(s), equipment and systems(including all components thereof) in the demised premises; or (iii) damage to Tenant’simprovements or personal property caused by any casualty, burglary, break-in, vandalism, acts ofterrorism, war or act of G-d. Landlord shall, in any event, have ten (10) days after notice fromTenant stating the need for repairs to complete same, or commence andproceed  with due diligence to complete same. Landlord shall be obligated to replace all HVAC components as and when necessaryduring the first ten (10) years of the term hereof so long as Tenant has fulfilled its obligationsunder Section 25(b)(ii) above, and provided such replacements did not arise from (x) repairs,installations, alterations, or improvements made by or for Tenant or anyone claiming under Tenant,or (y) the fault or misuse of Tenant or anyone claiming under Tenant. Provided that the HVACsystem serving the demised premises is for the exclusive use of Tenant, Tenant shall have theobligation to replace all HVAC components as and when necessary after the first ten (10) years ofthe term hereof; however in the event the HVAC system serving the demised premises is not for theexclusive use of Tenant, Landlord shall have the obligation to replace the HVAC system serving thedemised premises after the first ten (10) years of the term hereof. Prior to delivery ofpossession of the demised premises, Landlord shall install, at its expense, a new HVAC unit(s),equipment and systems (including all components thereof) in the demised premises. Except asspecifically set forth in this Lease, Tenant expressly hereby waives the provisions of any lawpermitting repairs by a tenant at Landlord’s expense.(c) The provisions of this Section 24 shall not apply in the case of damage or destruction byfire or other casualty or a taking under the power of eminent domain in which events theobligations of Landlord shall be controlled by Section 23 and Section 17 respectively.(d) Landlord shall assign to Tenant all warranties covering all matters required by the termshereof to be repaired and maintained by Tenant.**SECTION 25.****TENANT’S REPAIRS**(a) Tenant shall keep and maintain, at Tenant’s expense, all and every other part of thedemised premises in good order, condition and repair, including, by way of example but notlimitation: (i) all leasehold improvements; (ii) all HVAC unit(s), equipment and systems (includingall components thereof) serving the demised premises; (iii) interior utility systems exclusivelyserving the demised premises; (iv) plumbing and sewage facilities; (v) all interior lighting; (vi)electric signs; (vii) all interior walls; (viii) floor coverings; (ix) ceilings; (x) appliances andequipment; (xi) all doors, exterior entrances, windows and window moldings; (xii) plate glass;(xiii) signs and showcases surrounding and within the demised premises; (xiv) the store front; (xv)sprinkler systems including supervisory alarm service in accordance with National Fire ProtectionAssociation standards and current local and state fire protection standards to ensure propertyoperation, and as required by Section 27(b) below.(b) Sprinkler systems, if any, located in Tenant’s area shall be maintained in accordance withNational Fire Protection Association standards to ensure proper operation. Sprinkler controlvalves (interior and exterior) located in Tenant’s area shall be monitored by supervisory alarmservice. In the event local or state codes do not require alarm systems, Tenant shall providealarm service on all sprinkler systems to detect water flow and tampering with exterior andinterior main control valves of the sprinkler system servicing Tenant’s premises. Moreover, itshall be Tenant’s responsibility to contact the Landlord’s property manager in the event thesprinkler system in the demised premises is ever shut off for any reason, and advise same of anydamage occasioned or caused by the actions of Tenant, its agents, invitees, or employees, and/or asa result of Tenant’s repair obligations hereunder. In the event fifty percent (50%) or more of thetotal number of sprinkler heads require replacement at any one time as part of ordinarymaintenance, but excluding repairs or replacements that arise from (x) repairs, installationsalterations, or improvements made by or for Tenant or anyone claiming under Tenant, or (y) thefault or misuse of Tenant or anyone claiming under Tenant, such cost shall be fifty percent (50%)borne by Landlord and fifty percent (50%) borne by Tenant. Tenant, at Tenant’s sole cost andexpense, shall replace all sprinkler heads due to repairs, installations, alterations, orimprovements made by or for Tenant or anyone claiming under Tenant, the fault ormisuse of Tenant or anyone claiming under Tenant, painting or environmental exposure fromTenant’s operations. All other costs of maintaining the sprinkler system in the demised premisesshall be paid by Tenant.(c) If Landlord deems any repair which Tenant is required to make hereunder to be necessary,Landlord may demand that Tenant make such repair immediately. If Tenant refuses or neglects tomake such repair and to complete the same with reasonable dispatch, Landlord may make such repairand Tenant shall, on demand, immediately pay to Landlord the cost of said repair, together withannual interest at the Interest Rate. Landlord shall not be liable to Tenant for any loss ordamage that may accrue to Tenant’s stock or business by reason of such work or its results.
 
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(d) Neither Tenant nor any of its contractors are permitted access to or permitted to performalterations of any kind to the roof of the building.(e) Tenant shall pay promptly when due the entire cost of work in the demised premisesundertaken by Tenant under this Lease (including, but not limited to, Tenant’s Work and/oralterations permitted under Section 8 of this Lease) so that the demised premises and the ShoppingCenter shall at all times be free of liens for labor and materials arising from such work; toprocure all necessary permits before undertaking any such work; to do all of such work in a goodand workmanlike manner, employing materials of good quality; to perform such work only withcontractors previously reasonably approved of in writing by Landlord; to comply with allgovernmental requirements; and save Landlord and its agents, officers, employees, contractors andinvitees harmless and indemnified from all liability, injury, loss, cost, damage and/or expense(including reasonable attorneys’ fees and expenses) in respect of any injury to, or death of, anyperson, and/or damage to, or loss or destruction of, any property occasioned by or growing out ofany such work.**SECTION 26.****COVENANT OF TITLE AND PEACEFUL POSSESSION**Subject to the provisions of Section 12 hereof, Landlord shall, on or before the date on whichTenant is permitted to install its merchandise and fixtures in the demised premises, have good andmarketable title to the demised premises in fee simple and the right to make this Lease for theterm aforesaid. At such time, Landlord shall put Tenant into complete and exclusive possession ofthe demised premises, and if Tenant shall pay the rental and perform all the covenants andprovisions of this Lease to be performed by the Tenant, Tenant shall, during the term herebydemised, freely, peaceably, and quietly enjoy and occupy the full possession of the demisedpremises and the common facilities of the Shopping Center, subject, however, to the terms andconditions of this Lease including the Landlord’s right to modify, change or alter the ShoppingCenter during the Renovation Period as set forth in Section 15(b) hereof.**SECTION 27.****TENANT’S AND LANDLORD’S INSURANCE; INDEMNITY**(a) Tenant’s Property Insurance. Tenant agrees to procure and maintain during the demisedterm a property insurance policy written on the causes of loss-special form (also referred to asthe special extended coverage form), or the most broad property insurance form then available,insuring against loss of, or damage to, Tenant’s property, in, on or about the demised premises.Such property insurance shall include coverage (whether by additional policies, endorsements orotherwise): (i) against earthquake and flood; (ii) for plate glass; (iii) in an amount equal to thefull insurable replacement cost, without deduction for depreciation; (iv) with an agreed valuationprovision in lieu of, or in an amount sufficient to satisfy, any co-insurance clause; (v) againstinflation (also known as inflation guard); (vi) for any costs due to ordinances or laws; and (vii)as Landlord may from time to time reasonably require Tenant to procure and maintain. Landlordshall not be liable for any damage to Tenant’s property in, on or about the demised premises causedby fire or other insurable hazards regardless of the nature or cause of such fire or othercasualty, and regardless of whether any negligence of Landlord or Landlord’s employees or agentscontributed thereto. Tenant expressly releases Landlord of and from all liability for any suchdamage and Tenant agrees that its property insurance policies required hereunder shall include awaiver of subrogation recognizing this release from liability.(b) Boiler and Machinery Insurance. Tenant agrees to maintain a comprehensive boiler andmachinery policy on a full repair and replacement cost basis, and further in accordance with therequirements of Section 27(a)(iii)-(vi) above, with an admitted, reputable insurance carriercovering property damage as a result of a loss from boiler(s), pressure vessel(s), HVAC equipment,or other electrical or mechanical apparatus within or servicing the demised premises, furniture,fixtures, equipment and inventory together with property of others in the care, custody and controlof Tenant. The deductible for property damage under such policy shall not exceed Five ThousandDollars ($5,000.00) per occurrence.
 
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(c) Additional Tenant Insurance. Tenant’s insurance required under Section (27(a) and (b)above shall also include business income coverage against any interruption (including utilityinterruption) in Tenant’s business (whether direct, indirect, contingent or interdependent),including, but not limited to, coverage for Tenant’s leasehold interests and obligations tocontinue paying all rental amounts hereunder, lost revenues and income, and extra expense. Suchcoverage should be for a period of at least twelve (12) months, with an extended period ofindemnity of at least thirty (30) days. The deductible for such coverage may not exceedtwenty-four (24) hours.(d) Tenant’s Commercial General Liability Insurance. Tenant agrees to procure and maintainduring the demised term commercial general liability insurance by a responsible insurance companyor companies, with policy limits of not less than $1,000,000.00 per occurrence and $2,000,000.00annual aggregate, and $500,000.00 limits for fire and legal liability, insuring against liabilityfor losses, claims, demands or actions for bodily injury (including death) and property damagearising from Tenant’s conduct and operation of its business in and Tenant’s use, maintenance andoccupancy of, the demised premises and any areas adjacent thereto, or the acts or omissions ofTenant’s employees and agents. Such commercial general liability policy may be written on ablanket basis to include the demised premises in conjunction with other premises owned or operatedby Tenant but shall be written such that the required policy limits herein specifically apply on aper location basis to the demised premises. Tenant’s commercial general liability insurance policyshall further provide: (i) coverage for defense costs (in excess of policy limits); (ii)contractual liability coverage; (iii) cross-liability coverage; and, (iv) that Landlord, itsshareholders, officers, directors, employees, and agents, are named as additional insureds suchthat (Y) Tenant’s policy shall be the primary source of insurance for such additional insured and(Z) any liability policy carried by such additional insureds shall be in excess of, and will notcontribute with or to, Tenant’s commercial general liability insurance required to be maintainedhereunder. At the time this Lease is executed and thirty (30) days prior to the expiration of suchinsurance policy, Tenant shall furnish to Landlord certificates of insurance evidencing thecontinuous existence during the term of this Lease of Tenant’s commercial general liabilityinsurance coverage, which certificates shall include attachment of additional insured endorsement,name any and all non-standard exclusions or limitations, and provide not less than thirty (30) daysnotice of cancellation or termination to Landlord (and any other additional insured, ifapplicable). All insurance companies must be licensed to do business in the state where thepremises are located. Tenant shall further procure and maintain other liability insurance(including, but not limited to, liquor and pollution insurance) as Landlord may from time to timereasonably require.(e) Worker’s Compensation. Tenant agrees to provide and keep in force at all times worker’scompensation insurance complying with the law of the state in which the premises are located.Tenant agrees to defend, indemnify and hold harmless Landlord from all actions or claims ofTenant’s employees or employee’s family members. Tenant agrees to provide a certificate asevidence of proof of worker’s compensation coverage.If Tenant hires contractors to do any improvements on the demised premises, each contractormust provide proof of worker’s compensation coverage on its employees and agents to Landlord.(f) Contingent Liability and Builder’s Risk Insurance. With respect to any alterations orimprovements by Tenant, Tenant shall maintain contingent liability and builder’s risk coveragenaming Landlord as an additional insured, in compliance with the additional insured requirementsset forth in Section 27(d).(g) Landlord’s Property Insurance. Commencing as of the Commencement Date, and thereafterthroughout the term of this Lease, Landlord shall, at Landlord’s sole cost and expense, provide andmaintain or cause to be provided and maintained a property insurance policy insuring all buildings(and building additions) and other improvements in the Center and in the demised premises, andTenant’s store building (including any permanent improvements to the demised premises paid for bythe Tenant Reimbursement but excluding those items insured by Tenant as required under this Section27) for all the hazards and perils normally covered by the Causes of Loss-Special Form. Saidproperty insurance policy shall include endorsements for coverage against: (i) earthquake and flood(including, but not limited to, mud slide, flood hazard or fault area(s), as designated on any mapprepared or issued for such
 
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purposeby any  governmental authority); and (ii) increased costs ofconstruction and demolition due to law and ordinance. The foregoing property coverage shall beprovided in amounts sufficient to provide one hundred percent (100%) of the full replacement costof all buildings (and building additions) and other improvements in the Center and in the demisedpremises and Tenant’s store building (including any permanent improvements to the demised premisespaid for by Tenant Reimbursement but excluding those items insured by Tenant as required under thisSection 27). If for any reason the Causes of Loss-Special Form is not customarily used in theinsurance industry, then the property insurance policy then in effect shall at least providecoverage for the following perils: fire, lightning, windstorm and hail, explosion, smoke, aircraftand vehicles, riot and civil commotion, vandalism and malicious mischief, sprinkler leakage,sinkhole and collapse, volcanic action, earthquake or earth movement, and flood, and increasedcosts of construction and demolition due to law, ordinance and inflation. Neither Tenant nor anyof its affiliates or subtenants shall be liable to Landlord for any loss or damage (including lossof income), regardless of cause, resulting from fire, flood, act of G-d or other casualty.(h) Landlord’s Commercial General Liability Insurance. Commencing as of the CommencementDate, and thereafter throughout the term of this Lease, Landlord shall, at Landlord’s sole cost andexpense, provide and maintain or cause to be provided and maintained a commercial general liabilitypolicy, naming Landlord as an insured (and naming Tenant as an additional insured, said additionalinsured’s coverage under Landlord’s commercial general liability policy to be primary), protectingLandlord, the business operated by Landlord, and any additional insureds (including Tenant) againstclaims for bodily injury (including death) and property damage occurring upon, in or about theCenter (other than the demised premises and those areas insured by other tenants at the Center),including Common Areas. Such insurance shall afford protection to the limits of not less than OneMillion Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annualaggregate, and Five Hundred Thousand Dollars ($500,000.00) with respect to property damage for firelegal liability. All liability policies shall be written on an occurrence form unless such form isno longer customarily used in the insurance industry. Landlord may use commercially reasonabledeductibles Landlord customarily carries in the conduct of its business; however, the amount ofsuch deductibles which may be charged to Tenant pursuant to Section 12.09 below may not exceed$0.20 per square foot of gross leasable area of the demised premises in any lease year.(i) Landlord’s Umbrella. Commencing as of the Commencement Date, and thereafter throughoutthe term of this Lease, Landlord shall, at Landlord’s sole cost and expense, provide and maintainor cause to be provided and maintained an umbrella liability insurance policy with a Ten MillionDollar ($10,000,000.00) minimum annual aggregate, which umbrella policy (or policies) shall listLandlord’s commercial general liability policy required under this Section 27 and any otherliability policy or policies carried by, or for the benefit of, Landlord as underlying policies.Said umbrella liability policy shall also name Tenant as an additional insured (said additionalinsured’s coverage under Landlord’s umbrella liability policy to be primary). All liabilitypolicies shall be written on an occurrence form unless such form is no longer customarily used inthe insurance industry.(j) Tenant Indemnity. Tenant shall indemnify Landlord, Landlord’s agents, employees,officers or directors, against all damages, claims and liabilities arising from any allegedproducts liability or from any accident or injury whatsoever caused to any person, firm orcorporation during the demised term in the demised premises, unless such claim arises from a breachor default in the performance by Landlord of any covenant or agreement on its part to be performedunder this Lease or, to the extent not required to be insured hereunder, the negligence ofLandlord. The indemnification herein provided shall include all reasonable costs, counselfees, expenses and liabilities incurred in connection with any such claim or any action orproceeding brought thereon.(k) Landlord Indemnity. Landlord shall indemnify Tenant, Tenant’s officers, directors,employees and agents against all damages, claims and liabilities arising from any accident orinjury whatsoever caused to any person, firm or corporation during the demised term in the commonareas of the Shopping Center, unless such claim arises from a breach or default in the performanceby Tenant of any covenant or agreement on Tenant’s part to perform under this Lease or, to theextent not required to be insured hereunder, the negligence of Tenant. The indemnification hereinprovided shall include all reasonable costs, counsel fees, expenses and liabilities incurred inconnection with any such claim or any action or proceeding brought thereon.
 
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**SECTION 28.****REAL ESTATE TAXES**(a) Tenant shall pay Tenant’s Proportionate Share (as defined in Section 16(c) above) of any“real estate taxes” (defined in Section 28(b) below) imposed upon the retail portions of theShopping Center that become due and payable during each lease year included within the periodcommencing with the commencement date and ending with the expiration of the term of this Lease.Tenant shall initially pay to landlord as additional rental, simultaneously with the payment ofminimum rental called for under Section 5(a), the estimated monthly amount of Tenant’sProportionate Share of real estate taxes as set forth in Section 5(e) of Two and 50/100 Dollars($2.50) per square foot, payable in equal monthly installments of Four Thousand Four HundredTwenty-one and 46/100 Dollars ($4,421.46) as the estimated amount of Tenant’s Proportionate Shareof real estate taxes. Within one hundred twenty (120) days after the end of each accounting year(which Landlord may change from time to time), Landlord shall provide Tenant with an annualreconciliation of real estate taxes and a statement of the actual amount of Tenant’s ProportionateShare thereof. Any excess payments from Tenant shall be applied to the next installments of realestate taxes hereunder, or refunded by Landlord. Any underpayments by Tenant shall be paid toLandlord within thirty (30) days after receipt of such reconciliation statement. Tenant’s estimatedmonthly installment of real estate taxes payable hereunder may be adjusted by written notice fromLandlord.(b) For the purpose of this Lease, the term “real estate taxes” shall include any special andgeneral assessments, water and sewer rents and other governmental impositions imposed upon oragainst the Shopping Center of every kind and nature whatsoever, extraordinary as well as ordinary,foreseen and unforeseen and each and every installment thereof, which shall or may during the leaseterm be levied, assessed or imposed upon or against such Shopping Center and of all expenses,including reasonable attorneys’ fees, administrative hearing and court costs incurred in contestingor negotiating the amount, assessment or rate of any such real estate taxes, minus any refundreceived by Landlord.(c) Notwithstanding any provision of this Lease to the contrary, Tenant shall not be obligatedto pay for any assessment for special improvements heretofore installed or in the process ofinstallation in connection with the initial development of the Shopping Center, and Landlord herebyagrees to pay for the same.(d) The real estate taxes for any lease year shall be the real estate taxes that become dueand payable during such lease year. If any lease year shall be greater than or less than twelve(12) months, or if the real estate tax year shall be changed, an appropriate adjustment shall bemade. If there shall be more than one taxing authority, the real estate taxes for any period shallbe the sum of the real estate taxes for said period attributable to each taxing authority. If,upon the assessment day for real estate taxes for any tax year fully or partly included within theterm of this Lease, a portion of such assessment shall be attributable to buildings in the processof construction, a fair and reasonable adjustment shall be made to carry out the intent of thisSection 28.(e) Upon request, Landlord shall submit to Tenant true copies of the real estate tax bill foreach tax year or portion of a tax year included within the term of this Lease and shall bill Tenantfor the amount to be paid by Tenant hereunder. Said bill shall be accompanied by acomputation of the amount payable by Tenant and such amount shall be paid by Tenant withinthirty (30) days after receipt of said bill.(f) Should the State of Washington or any political subdivision thereof or any governmentalauthority having jurisdiction thereof, impose a tax and/or assessment (other than an income orfranchise tax) upon or against the rentals payable hereunder, in lieu of or in addition toassessments levied or assessed against the demised premises, or Shopping Center, then such taxand/or assessment shall be deemed to constitute a tax on real estate for the purpose of thisSection 28.
 
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**SECTION 29.****TENANT’S INSURANCE CONTRIBUTION**Tenant shall pay as additional rent, Tenant’s Proportionate Share (as defined in Section 16(c)above) of the premiums for the insurance maintained by Landlord on all buildings and improvements,as well as liability insurance, for the Shopping Center, including the common areas, as set forthabove in Section 16(b), for each lease year during the term of this Lease. The premiums for thefirst and last lease years shall be prorated. Tenant shall pay Tenant’s Proportionate Share ofsuch premiums annually upon demand for such payment by Landlord. Tenant’s Proportionate Sharethereof shall be paid by Tenant within thirty (30) days after Landlord’s demand therefore. Tenantshall initially pay to Landlord as additional rental, simultaneously with the payment of minimumrental called for under Section 5(a), the estimated monthly amount of Tenant’s Proportionate Shareof such insurance premiums as set forth in Section 5(e), of Twenty-eight Cents ($0.28) per squarefoot, payable in equal monthly installments of Four Hundred Ninety-five and 20/100 Dollars($495.20) as the estimated amount of Tenant’s Proportionate Share of such insurance premiums.Within one hundred twenty (120) days after the end of each accounting year (which Landlord maychange from time to time), Landlord shall provide Tenant with a reconciliation of the premiums forthe insurance maintained by Landlord hereunder and a statement of the actual amount of Tenant’sProportionate Share thereof. Any excess payments from Tenant shall be applied to the nextinstallments of insurance premiums payable by Tenant hereunder, or refunded by Landlord. Anyunderpayments by Tenant shall be paid to Landlord within thirty (30) days after receipt of suchreconciliation statement. Tenant’s monthly installment of insurance premiums payable hereunder maybe adjusted by written notice from Landlord.**SECTION 30.****FIXTURES**Provided that Tenant shall repair any damage caused by removal of its property and providedthat the Tenant is not in default under this Lease, Tenant shall have the right to remove from thedemised premises all of its signs, shelving, electrical, and other fixtures and equipment, windowreflectors and backgrounds and any and all other trade fixtures which it has installed in and uponthe demised premises.**SECTION 31.****SURRENDER**The Tenant covenants and agrees to deliver up and surrender to the Landlord the physicalpossession of the demised premises upon the expiration of this Lease or its termination as hereinprovided in as good condition and repair as the same shall be at the commencement of the initialterm, loss by fire and/or ordinary wear and tear excepted, and to deliver all of the keys toLandlord or Landlord’s agents.**SECTION 32.****HOLDING OVER**There shall be no privilege of renewal hereunder (except as specifically set forth in thisLease) and any holding over after the expiration by the Tenant shall be from day to day on the sameterms and conditions (with the exception of rental which shall be prorated on a daily basis attwice the daily rental rate of the most recent expired term) at Landlord’s option; and noacceptance of rent by or act or statement whatsoever on the part of the Landlord or his dulyauthorized agent in the absence of a written contract signed by Landlord shall be construed as anextension of the term or as a consent for any further occupancy.**SECTION 33.****NOTICE**Whenever under this Lease provisions are made for notice of any kind to Landlord, it shall bedeemed sufficient notice and sufficient service thereof if such notice to Landlord is in writing,addressed to Landlord at c/o Kimco Realty Corporation, 3333 New Hyde Park Road, Suite 100, New HydePark, N.Y. 11042, or at such address as Landlord may notify Tenant in writing, and deposited in theUnited States mail by certified mail, return receipt requested, with postage prepaid or FederalExpress, Express Mail or such other expedited mail service as normally results in overnightdelivery, with a copy of same sent in like manner to President, Real Estate, 1800 Moler Road,Columbus, Ohio 43207. Notice to Tenant shall be sent in like manner to Tenant at 4150 East FifthAvenue, Columbus, Ohio 43219, with copies of same sent to (i) General Counsel, 4150 East FifthAvenue, Columbus, Ohio 43219 and (ii) Randall S. Arndt, Esq., Schottenstein Zox & Dunn, 250 WestStreet, Columbus, Ohio 43215. All notices shall be effective upon receipt or refusal of receipt.Either party may change the place for service of notice by notice to the other party.
 
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**SECTION 34.****DEFAULT**(a) Elements of Default: The occurrence of any one or more of the following events shallconstitute a default of this Lease by Tenant:1. Tenant fails to pay any monthly installment of rent within ten (10) days after the sameshall be due and payable, except for the first two (2) times in any consecutive twelve (12) monthperiod, in which event Tenant shall have five (5) days after receipt of written notice of suchfailure to pay before such failure shall constitute a default;2. Tenant fails to perform or observe any term, condition, covenant or obligation required tobe performed or observed by it under this Lease for a period of twenty (20) days after noticethereof from Landlord; provided, however, that if the term, condition, covenant or obligation to beperformed by Tenant is of such nature that the same cannot reasonably be cured within twenty (20)days and if Tenant commences such performance or cure within said twenty (20) day period andthereafter diligently undertakes to complete the same, then such failure shall not be a defaulthereunder if it is cured within a reasonable time following Landlord’s notice, but in no eventlater than forty-five (45) days after Landlord’s notice.3. If Tenant refuses to take possession of the demised premises as required pursuant to thisLease or abandons the demised premises for a period of thirty (30) days or substantially ceases tooperate its business or to carry on its normal activities in the demised premises as requiredpursuant to this Lease.4. A trustee or receiver is appointed to take possession of substantially all of Tenant’sassets in, on or about the demised premises or of Tenant’s interest in this Lease (and Tenant orany guarantor of Tenant’s obligations under this Lease does not regain possession within sixty (60)days after such appointment); Tenant makes an assignment for the benefit of creditors; orsubstantially all of Tenant’s assets in, on or about the demised premises or Tenant’s interest inthis Lease are attached or levied upon under execution (and Tenant does not discharge the samewithin sixty (60) days thereafter).5. A petition in bankruptcy, insolvency, or for reorganization or arrangement is filed by oragainst Tenant or any guarantor of Tenant’s obligations under this Lease pursuant to any Federal orstate statute, and, with respect to any such petition filed against it, Tenant or such guarantorfails to secure a stay or discharge thereof within sixty (60) days after the filing of the same.(b) Landlord’s Remedies: Upon the occurrence of any event of default, Landlord shall have thefollowing rights and remedies, any one or more of which may be exercised without further notice toor demand upon Tenant:1. Landlord may re-enter the demised premises and cure any default of Tenant, in which eventTenant shall reimburse Landlord for any cost and expenses which Landlord may incur to cure suchdefault; and Landlord shall not be liable to Tenant for any loss or damage which Tenant may sustainby reason of Landlord’s action.2. Landlord may terminate this Lease or Tenant’s right to possession under this Lease as ofthe date of such default, without terminating Tenant’s obligation to pay rent due hereunder, inwhich event (A): neither Tenant nor any person claiming under or through Tenant shall thereafter beentitled to possession of the demised premises, and Tenant shall immediately thereafter surrenderthe demised premises to Landlord; (B) Landlord may re-enter the demised premises and dispose Tenantor any other occupants of the demised premises by force, summary proceedings, ejectment orotherwise, and may remove their effects, without prejudice to any other remedy which Landlord mayhave for possession or arrearages in rent; and (C) notwithstanding a termination of this Lease,Landlord may re-let all or any part of the demised premises for a term different from that whichwould otherwise have constituted the balance of the term of this Lease and for rent and on termsand conditions different from those contained herein, whereupon Tenant
 
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shall immediately beobligated to pay to Landlord as liquidated  damages the difference between the rent provided forherein and that provided for in any lease covering a subsequent re-letting of the demised premises,for the period which would otherwise have constituted the balance of the term of this Lease,together with all of Landlord’s costs and expenses for preparing the demised premises forre-letting, including all repairs, tenant finish improvements, broker’s and attorney’s fees, andall loss or damage which Landlord may sustain by reason of such termination, re-entry andre-letting, it being expressly understood and agreed that the liabilities and remedies specifiedherein shall survive the termination of this Lease. Notwithstanding a termination of this Lease byLandlord, Tenant shall remain liable for payment of all rentals and other charges and costs imposedon Tenant herein, in the amounts, at the times and upon the conditions as herein provided.Landlord shall credit against such liability of the Tenant all amounts received by Landlord fromsuch re-letting after first reimbursing itself for all reasonable costs incurred in curing Tenant’sdefaults and re-entering, preparing and refinishing the demised premises for re-letting, andre-letting the demised premises.3. Upon termination of this Lease pursuant to Section 34(b)2, Landlord may recover possessionof the demised premises under and by virtue of the provisions of the laws of the State ofWashington, or by such other proceedings, including reentry and possession, as may be applicable.4. If the Tenant shall not remove all of Tenant’s property from said demised premises asprovided in this Lease, Landlord, at its option, may remove any or all of said property in anymanner that Landlord shall choose and store same without liability for loss thereof, and Tenantwill pay the Landlord, on demand, any and all reasonable expenses incurred in such removal andstorage of said property for any length of time during which the same shall be in possession ofLandlord or in storage, or Landlord may, upon thirty (30) days prior notice to Tenant, sell any orall of said property in such manner and for such price as the Landlord may reasonably deem best andapply the proceeds of such sale upon any amounts due under this Lease from the Tenant to theLandlord, including the reasonable expenses of removal and sale.5. Any damage or loss of rent sustained by Landlord may be recovered by Landlord, atLandlord’s option, at the time of the reletting, or in separate actions, from time to time, as saiddamage shall have been made more easily ascertainable by successive relettings, or at Landlord’soption in a single proceeding deferred until the expiration of the term of this Lease (in whichevent Tenant hereby agrees that the cause of action shall not be deemed to have accrued until thedate of expiration of said term) or in a single proceeding prior to either the time of reletting orthe expiration of the term of this Lease.6. In the event of a breach by Tenant of any of the covenants or provisions hereof, Landlordshall have the right of injunction and the right to invoke any remedy allowed at law or in equityas if reentry, summary proceedings, and other remedies were not provided for herein. Mention inthis Lease of any particular remedy shall not preclude Landlord from any other remedy, in law or inequity. Tenant hereby expressly waives any and all rights of redemption granted by or under anypresent or future laws in the event of Tenant being evicted or dispossessed for any cause, or inthe event of Landlord obtaining possession of the demised premises by reason of the violation byTenant of any of the covenants and conditions of this Lease or other use.7. Tenant hereby expressly waives any and all rights of redemption granted by or under anypresent or future laws, in the event of eviction or dispossession of Tenant by Landlordunder any provision of this Lease. No receipt of monies by Landlord from or for the account ofTenant or from anyone in possession or occupancy of the demised premises after the termination ofthis Lease or after the giving of any notice shall reinstate, continue or extend the term of thisLease or affect any notice given to the Tenant prior to the receipt of such money, it being agreedthat after the service of notice or the commencement of a suit, or after final judgment forpossession of said demised premises, the Landlord may receive and collect any rent or other amountsdue Landlord and such payment shall not waive or affect said notice, said suit or said judgment.(c) Additional Remedies and Waivers: The rights and remedies of Landlord set forth hereinshall be in addition to any other right and remedy now or hereinafter provided by law and/or equityand all such rights and remedies shall be cumulative and shall not be deemed inconsistent with eachother, and any two or more or all of said rights and remedies may be exercised at the same time orat different times and from time to time without waiver thereof of any right or remedy provided orreserved to Landlord. No action or inaction by Landlord shall constitute a waiver of a default andno waiver of default shall be effective unless it is in writing, signed by the Landlord.
 
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(d) Default by Landlord. Any failure by Landlord to observe or perform any provision,covenant or condition of this Lease to be observed or performed by Landlord, if such failurecontinues for thirty (30) days after written notice thereof from Tenant to Landlord, shallconstitute a default by Landlord under this Lease, provided, however, that if the nature of suchdefault is such that the same cannot reasonably be cured within a thirty (30) day period, Landlordshall not be deemed to be in default if it shall commence such cure within such thirty (30) dayperiod and thereafter rectify and cure such default with due diligence.(e) Interest on Past Due Obligations: All monetary amounts required to be paid by Tenant orLandlord hereunder which are not paid on or before the due date thereof shall, from and after suchdue date, bear interest at the Interest Rate, and shall be due and payable by such party withoutnotice or demand.(f) Tenant’s Remedies. In the event of default by the Landlord with respect to the demisedpremises, Tenant shall have the option to cure said default. Landlord shall reimburse Tenant forthe reasonable costs incurred by Tenant in curing such default within thirty (30) days afterinvoice thereof by Tenant, together with reasonable evidence supporting such invoiced amount.Tenant shall also have any and all rights available under the laws of the state in which thedemised premises are situated; provided, however, that any right of offset available to Tenantshall be subject to the provisions of Section 36 below.**SECTION 35.****WAIVER OF SUBROGATION**Landlord and Tenant, and all parties claiming under each of them, mutually release anddischarge each other from all claims and liabilities arising from or caused by any casualty orhazard covered or required hereunder to be covered in whole or in part by insurance coveragerequired to be maintained by the terms of this Lease on the demised premises or in connection withthe Shopping Center or activities conducted with the demised premises, and waive any right ofsubrogation which might otherwise exist in or accrue to any person on account thereof. Allpolicies of insurance required to be maintained by the parties hereunder shall contain waiver ofsubrogation provisions so long as the same are available.**SECTION 36.****LIABILITY OF LANDLORD; EXCULPATION**(a) Except with respect to any damages resulting from the gross negligence of Landlord, itsagents, or employees, Landlord shall not be liable to Tenant, its agents, employees, or customersfor any damages, losses, compensation, accidents, or claims whatsoever. The foregoingnotwithstanding, it is expressly understood and agreed that nothing in this Lease contained shallbe construed as creating any liability whatsoever against Landlord personally, and in particularwithout limiting the generality of the foregoing, there shall be no personal liability to pay anyindebtedness accruing hereunder or to perform any covenant, either express or implied, hereincontained, or to keep, preserve or sequester any property of Landlord and that all personalliability of Landlord to the extent permitted by law, of every sort, if any, is hereby expresslywaived by Tenant, and by every person now or hereafter claiming any right or securityhereunder; and that so far as the parties hereto are concerned, the owner of any indebtedness orliability accruing hereunder shall look solely to the demised premises and the Shopping Center forthe payment thereof.(b) If the Tenant obtains a money judgment against Landlord, any of its officers, directors,shareholders, partners, members or their successors or assigns under any provisions of or withrespect to this Lease or on account of any matter, condition or circumstance arising out of therelationship of the parties under this Lease, Tenant’s occupancy of the building or Landlord’sownership of the Shopping Center, Tenant shall be entitled to have execution upon any such final,unappealable judgment only upon Landlord’s fee simple or leasehold estate in the Shopping Center(whichever is applicable) and not out of any other assets of Landlord, or any of its officers,directors, shareholders, members or partners, or their successor or assigns; and Landlord shall beentitled to have any such judgment so qualified as to constitute a lien only on said fee simple orleasehold estate.
 
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Notwithstanding the above, Tenant shall have the right to offset any final, unappealablejudgment against twenty five percent (25%) of all minimum rent and all percentage rental (but noother additional rent components) if not paid to Tenant by Landlord within thirty (30) daysthereafter.(c) It is expressly agreed that nothing in this Lease shall be construed as creating anypersonal liability of any kind against the assets of any of the officers, directors, members,partners or shareholders of Tenant, or their successors and assigns.**SECTION 37.****RIGHTS CUMULATIVE**Unless expressly provided to the contrary in this Lease, each and every one of the rights,remedies and benefits provided by this Lease shall be cumulative and shall not be exclusive of anyother of such rights, remedies and benefits or of any other rights, remedies and benefits allowedby law.**SECTION 38.****MITIGATION OF DAMAGES**Notwithstanding any of the terms and provisions herein contained to the contrary, Landlord andTenant shall each have the duty and obligation to mitigate, in every reasonable manner, any and alldamages that may or shall be caused or suffered by virtue of defaults under or violation of any ofthe terms and provisions of this Lease agreement committed by the other.**SECTION 39.****SIGNS**No signs shall be placed on the demised premises by Tenant except as shall comply with allapplicable governmental codes, restrictions of record in accordance with Section 7 above, signcriteria established by Landlord for the Shopping Center, and with the prior written consent ofLandlord (not to be unreasonably withheld) after sign drawings have been submitted to Landlord byTenant. Subject to the foregoing, Tenant shall have the right to install its prototypical signageand awnings on the front of the demised premises as described on Exhibit “G-1” attachedhereto and made a part hereof. Tenant acknowledges that it shall not be entitled to pylon signageat the Shopping Center on the commencement date of this Lease. Landlord agrees however, to usecommercially reasonable efforts to provide Tenant pylon sign representation at the Shopping Centerand agrees that no tenant of the Shopping Center leasing the same or less square feet of leasablespace as Tenant shall have representation on the existing pylon sign for the Shopping Center or anynew pylon sign(s) erected for the Shopping Center unless Tenant shall also have representation onsuch sign(s) excluding any existing rights of tenants under existing leases as of the date hereofwhich would have a right to be on such pylon sign(s). Notwithstanding the foregoing, in the eventthree (3) pylon and/or monument signs are erected for the Shopping Center with Tenantidentification thereon, Landlord is not obligated to identify Tenant on any additional pylon and/ormonument signs at the Shopping Center.**SECTION 40.****ENTIRE AGREEMENT**This Lease shall constitute the entire agreement of the parties hereto; all prior agreementsbetween the parties, whether written or oral, are merged herein and shall be of no force andeffect. This Lease cannot be changed, modified, or discharged orally but only by an agreement inwriting signed by the party against whom enforcement of the change, modification or discharge issought.**SECTION 41.****LANDLORD’S LIEN — DELETED BY INTENTION****SECTION 42.****BINDING UPON SUCCESSORS**The covenants, conditions, and agreements made and entered into by the parties hereto shall bebinding upon and inure to the benefit of their respective heirs, representatives, successor andassigns.
 
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**SECTION 43.****HAZARDOUS SUBSTANCES**(a) During the term of this Lease, Tenant shall not suffer, allow, permit or cause thegeneration, accumulation, storage, possession, release or threat of release of any hazardoussubstance or toxic material, as those terms are used in the Comprehensive Environmental ResponseCompensation and Liability Act of 1980, as amended, and any regulations promulgated thereunder, orany other present or future federal, state or local laws, ordinances, rules, and regulations.Tenant shall indemnify and hold Landlord harmless from any and all liabilities, penalties, demands,actions, costs and expenses (including without limitation reasonable attorney fees), remediationand response costs incurred or suffered by Landlord directly or indirectly arising due to thebreach of Tenant’s obligations set forth in this Section. Such indemnification shall surviveexpiration or earlier termination of this Lease. At the expiration or sooner termination hereof,Tenant shall return the demised premises to Landlord in substantially the same condition as existedon the date of commencement hereof free of any hazardous substances in, on or from the demisedpremises.(b) Landlord hereby represents and warrants that, except as set forth in that certain Phase IEnvironmental Site Assessment dated December 20, 2004 prepared by ADR Environmental Group, Inc.,and that certain Subsurface Investigation Results Report dated January 7, 2005 prepared by ADREnvironmental Group, Inc.: (i) it has not used, generated, discharged, released or stored anyhazardous substances on, in or under the Shopping Center and has received no notice and has noknowledge of the presence in, on or under the Shopping Center of any such hazardous substances;(ii) to Landlord’s knowledge there have never been any underground storage tanks at the ShoppingCenter, whether owned by the Landlord or its predecessors in interest; (iii) to Landlord’sknowledge there have never been accumulated tires, spent batteries, mining spoil, debris or othersolid waste (except for rubbish and containers for normal scheduled disposal in compliance with allapplicable laws) in, on or under the Shopping Center; (iv) to Landlord’s knowledge it has notspilled, discharged or leaked petroleum products other than de minimis quantities in connectionwith the operation of motor vehicles on the Shopping Center; (v) to Landlord’s knowledge there hasbeen no graining, filling or modification of wetlands (as defined by federal, state or local law,regulation or ordinance) at the Shopping Center; and (vi) to Landlord’s knowledge there is noasbestos or asbestos-containing material in the demised premises. The representations andwarranties set forth in this subparagraph shall apply to any contiguous or adjacent property owedby the Landlord. Landlord hereby indemnifies Tenant for any and all loss, cost, damage or expenseto Tenant resulting from any misrepresentation or breach of the foregoing representations andwarranties.(c) If any such hazardous substances are discovered at the Shopping Center (unless introducedby the Tenant, its agents or employees) or if any asbestos or asbestos containing material isdiscovered in the demised premises (unless introduced by the Tenant, its agents or employees), andremoval, encapsulation or other remediation is required by applicable laws, the Landlordimmediately and with all due diligence and at no expense to the Tenant shall take all measuresnecessary to comply with all applicable laws and to remove such hazardous substances or asbestosfrom the Shopping Center and/or encapsulate or remediate such hazardous substances or asbestos,which removal and/or encapsulation or remediation shall be in compliance with allenvironmental laws and regulations, and the Landlord shall repair and restore the ShoppingCenter at its expense. From the date such encapsulation, remediation and restoration is complete,the rent due hereunder shall be reduced by the same percentage as the percentage of the demisedpremises which, in the Tenant’s reasonable judgment, cannot be safely, economically or practicallyused for the operation of the Tenant’s business. Anything herein to the contrary notwithstanding,if in the Tenant’s reasonable judgment, such removal, encapsulation, remediation and restorationcannot be completed within one hundred eighty (180) days or the same is not actually completed byLandlord within such one hundred eighty (180) day period following the date such hazardoussubstances or asbestos are discovered and such condition materially adversely affects Tenant’sability to conduct normal business operations in the premises, then the Tenant may terminate thisLease by written notice to the Landlord within thirty (30) days after such 180 day period, whichnotice shall be effective on Landlord’s receipt thereof. Landlord shall comply with OSHA 29 CFR1910.1001 (j) to notify tenants, including Tenant, of asbestos related activities in the demisedpremises and the Shopping Center including, but not limited to, selection of the certified/licensedasbestos abatement contractor, scope of the abatement work, and final clearance testing proceduresand results.
 
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**SECTION 44.****TRANSFER OF INTEREST**If Landlord should sell or otherwise transfer its interest in the demised premises, upon anundertaking by the purchaser or transferee to be responsible for all the covenants and undertakingsof Landlord accruing subsequent to the date of such sale or transfer, Tenant agrees that Landlordshall thereafter have no liability to Tenant under this Lease or any modifications or amendmentsthereof, or extensions thereof, except for such liabilities which might have accrued prior to thedate of such sale or transfer of its interest by Landlord.**SECTION 45.****ACCESS TO PREMISES**Landlord and its representatives shall have free access to the demised premises at allreasonable times for the purpose of: (a) examining the same or to make any alterations or repairsto the demised premises that Landlord may deem necessary for its safety or preservation; (b)exhibiting the demised premises for sale or mortgage financing; (c) during the last three (3)months of the term of this Lease, for the purpose of exhibiting the demised premises and putting upthe usual notice “for rent” which notice shall not be removed, obliterated or hidden by Tenant,provided, however, that any such action by Landlord shall cause as little inconvenience asreasonably practicable and such action shall not be deemed an eviction or disturbance of Tenant norshall Tenant be allowed any abatement of rent, or damages for an injury or inconvenience occasionedthereby.**SECTION 46.****HEADINGS**The headings are inserted only as a matter of convenience and for reference and in no waydefine, limit or describe the scope or intent of this Lease.**SECTION 47.****NON-WAIVER**No payment by Tenant or receipt by Landlord or its agents of a lesser amount than the rent inthis Lease stipulated shall be deemed to be other than on account of the stipulated rent nor shallan endorsement or statement on any check or any letter accompanying any check or payment of rent bedeemed an accord and satisfaction and Landlord or its agents may accept such check or paymentwithout prejudice to Landlord’s right to recover the balance of such rent or pursue any otherremedy in this Lease provided.**SECTION 48.****SHORT FORM LEASE**This Lease shall not be recorded, but a short form lease, which describes the property hereindemised, gives the term of this Lease and refers to this Lease, shall be executed by the partieshereto, upon demand of either party and such short form lease may be recorded by Landlord or Tenantat any time either deems it appropriate to do so. The cost and recording of such short form leaseshall belong to the requesting party.**SECTION 49.****ESTOPPEL CERTIFICATE**Each party agrees that at any time and from time to time on ten (10) days prior writtenrequest by the other, it will execute, acknowledge and deliver to the requesting party a statementin writing stating that this Lease is unmodified and in full force and effect (or, if there havebeen modifications, stating the modifications, and that the Lease as so modified is in full forceand effect, and the dates to which the rent and other charges hereunder have been paid, and suchother information as may reasonably re requested, it being intended that any such statementsdelivered pursuant to this Section may be relied upon by any current or prospective purchaser of orany prospective holder of a mortgage or a deed of trust upon or any interest in the fee or anyleasehold or by the mortgagee, beneficiary or grantee of any security or interest, or any assigneeof any thereof or under any mortgage, deed of trust or conveyance for security purposes now orhereafter done or made with respect to the fee of or any leasehold interest in the demisedpremises.
 
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**SECTION 50.****TENANT’S REIMBURSEMENT**(a) Landlord shall pay Tenant Three Hundred Thousand Dollars ($300,000.00) (the “TenantReimbursement”), as payment for all costs incurred on behalf of Tenant for the purchase, erection,and installation of Tenant Improvements on or within the demised premises. “Tenant Improvements”shall consist of the work described in the attached Exhibit “G-2”. The TenantReimbursement shall be paid by Landlord to Tenant within ten (10) days of the later of (i) Tenantopening for business in the demised premises and (ii) Tenant providing to Landlord a lien waiverfrom Tenant’s general contractor. In the event Landlord does not timely pay the TenantReimbursement to Tenant, (a) Landlord shall pay to Tenant interest on such unpaid amounts at theInterest Rate and (b) Tenant shall have the right to deduct any and all such amounts owed Tenantagainst payments of Rent thereafter due Landlord until such time as Tenant has been credited thefull amount of the Tenant Reimbursement plus applicable interest.(b) Notwithstanding anything to the contrary contained in this Lease, the Tenant Improvementsshall, at all times during the term of this Lease and upon the expiration or earlier termination ofthis Lease, be the property of Landlord. Tenant shall not acquire any interest, equitable orotherwise, in any Tenant Improvement.**SECTION 51.****TENANT’S TERMINATION RIGHT:**In the event (x) that Tenant’s gross sales (as defined in Section 6 of this Lease) shall beless than Eight Million Five Hundred Thousand Dollars ($8,500,000.00) in either of the eighth (8th)or ninth (9th) lease years of the initial term hereof, and (y) Tenant was open and operating forbusiness for the Permitted Use during the Shopping Center’s standard business days and hours duringthe eighth (8th) and ninth (9th) lease years (unless Tenant was not open andoperating on account of casualty or condemnation), Tenant shall have the right, at Tenant’s soleelection, provided that Tenant is not then in default of the terms of this Lease beyond anyapplicable notice and cure periods, on or before the date (the “Last Termination Notice Date”)which is thirty (30) days after the end of the ninth (9th) lease year, to send to Landlord a noticeterminating this Lease as of the last day of the tenth (10th) lease year (the “Tenant’s TerminationDate”). In the event that Tenant shall so terminate this Lease in accordance with the provisionsof this Section 51, then the term of this Lease shall terminate and expire on Tenant’s TerminationDate with the same force and effect as though said date was the scheduled expiration date of theterm under this Lease. Notwithstanding the giving of such termination notice and Tenant’s exerciseof its termination right under this Section 51, Tenant shall perform and observe all of Tenant’sobligations under this Lease through and including the Tenant’s Termination Date and Tenant shallpay to Landlord, on or before the Tenant’s Termination Date, the sum of One Hundred ThousandDollars ($100,000.00). In the event Tenant exercises the termination right provided for in thisSection 51, Landlord shall have the right, upon ten (10) days prior written notice, at Tenant’scorporate headquarters, to examine Tenant’s books and records relating to gross sales at thedemised premises, provided such right shall expire sixty (60) days after Tenant notifies Landlordof Tenant’s exercise of Tenant’s election to terminate the Lease pursuant to the provisions of thisSection 51.**SECTION 52.****NO BROKER**Landlord and Tenant each represent to the other that they have not entered into any agreementor incurred any obligation in connection with this transaction which might result in the obligationto pay a brokerage commission to any broker. Each party shall indemnify and hold the other partyharmless from and against any claim or demand by any broker or other person for bringing about thisLease who claims to have dealt with such indemnifying party, including all expenses incurred indefending any such claim or demand (including reasonable attorney’s fees).**SECTION 53.****UNAVOIDABLE DELAYS**In the event either party hereto (the “Delayed Party”) shall be delayed or hindered in orprevented from the performance of any act required under this Lease by reason of strikes, lockouts,labor troubles, inability to procure materials, failure of power, the unforeseen application ofrestrictive governmental laws or regulations, riots, insurrection, war, acts of terrorism or otherreason of a like nature not the fault of the Delayed Party in performing work or doing actsrequired under the terms of this Lease, then performance of such act shall be excused for theperiod of the delay, and the period for the performance of any such act shall be extended for aperiod equivalent to the period of such delay, provided that the Delayed Party notified the otherparty within fifteen (15) days of the Delayed Party being informed of the occurrence of the eventcausing such delay. The provisions of this Section 53 shall not operate to excuse either partyfrom the payment of any rental or other monetary sums due under the terms of this Lease.
 
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**SECTION 54.****TIMELY EXECUTION OF LEASE**Landlord and Tenant agree that this Lease, and the parties’ obligations hereunder, shallautomatically be null and void and this Lease shall terminate automatically without further actionof the parties if both parties do not execute this Lease and both parties have not received anoriginal thereof within sixty (60) days after the date of execution hereof by the first party toexecute this Lease.**SECTION 55.****ACCORD AND SATISFACTION**No payment by Tenant or receipt by Landlord of a lesser amount than the entire rent and allother additional rents and charges hereunder shall be deemed to be other than payment on account ofthe earliest stipulated rent and other additional rents and charges hereunder, nor shall anyendorsement or statement on any check or any letter accompanying any check or payment for rent orother additional rent and charges be deemed an accord and satisfaction, and Landlord may acceptsuch check or payment without prejudice to Landlord’s right to recover the balance of such rent andother additional rents and charges or pursue any other right or remedy available to the Landlord.**SECTION 56.****WAIVER OF JURY TRIAL**The Landlord, Tenant any Guarantor(s) do hereby knowingly, voluntarily and intentionally waivethe right to a trial by jury of any and all issues either now or hereinafter provided by law in anyaction or proceeding between the parties hereto, or their successors, arising directly orindirectly out of or in any way connected with this Lease or any of its provisions, the Tenant’suse or occupancy of said premises and/or any claim for personal injury or property damageincluding, without limitation, any action to rescind or cancel this Lease, and any claim or defenseasserting that this Lease was fraudulently induced or is otherwise void or voidable. It isintended that said waiver shall apply to any and all defenses, rights and/or counterclaims in anyaction or proceeding at law or in equity. This waiver is a material inducement for Landlord andTenant to enter into this Lease.**SECTION 57.****LEASEHOLD FINANCING**(a) Tenant’s Financing Rights. Landlord acknowledges and agrees that Tenant may from time totime during the term, without the consent of Landlord, mortgage or otherwise finance and encumber,whether by leasehold deed of trust or mortgage, collateral assignment of this Lease,lease/sublease-back, and/or assignment/leaseback, any and/or all of its leaseholdestate hereunder, and property and rights in and to the demised premises granted to it underthis Lease, as security for the payment of an indebtedness (any and all of which are hereinreferred to as a “Leasehold Mortgage” and the holder thereof is herein referred to as “LeaseholdMortgagee”). Any such Leasehold Mortgage shall be a lien only upon Tenant’s leasehold estatehereunder and Tenant’s interests in this Lease. Leasehold Mortgagee or its assigns may enforce suchLeasehold Mortgage and acquire title to the leasehold estate and Tenant’s interest in the demisedpremises in any lawful way, and in connection therewith Leasehold Mortgagee may take possession ofand rent the demised premises.(b) Cooperation with Leasehold Mortgagee. Tenant shall notify Landlord (and any Fee Mortgagee,as hereinafter defined in Section 57(c) below), in the manner hereinafter provided for the givingof notice, of the execution of such Leasehold Mortgage and the name and place for service of noticeupon Leasehold Mortgagee. Upon such notification of Landlord that Tenant has entered into aLeasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and uponwritten request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee a commerciallyreasonable “Landlord’s Agreement” whereby Landlord agrees to recognize the interest of LeaseholdMortgagee thereunder. In addition, Landlord does hereby waive any statutory lien of Landlord inTenant’s present and after-acquired assets, including among other things, Tenant’s inventory andequipment. To evidence such waiver for the benefit of a lender of Tenant, Landlord agrees toexecute and deliver to Tenant and such lender a commercially reasonable “Landlord’s Waiver” wherebyLandlord agrees to waive any lien on Tenant’s assets including its inventory and equipment.**[SIGNATURES ON THE FOLLOWING PAGE]**
 
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**IN WITNESS WHEREOF,**the parties hereto have executed this Lease the day and year first abovewritten.       **Signed and Acknowledgedin the presence of:**  **LANDLORD:**           KIMSCHOTT FACTORIA MALL L.L.C.,a Delaware limited liability company           By: Kimco Factoria 1188, Inc.,a Delaware corporation,Its: Member           By: /s/ Michael J. Flynn         /s/ Betty Ann Lopinto Print Name: Betty Ann Lopinto   Name: Michael J. FlynnTitle:   President         /s/ Christine Boecklin Print Name: Christine Boecklin               **TENANT:**           DSW INC.,an Ohio corporation         /s/ Jeffrey P. Meena Print Name: Jeffrey P. Meena By: /s/ William Jordan Name: William Jordan      Its:       VP & General Counsel         /s/ Melinda Holmes Print Name: Melinda Holmes      
 
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