Ex-10.1



 





Exhibit 10.1




INDUSTRIAL LEASE — NET




	 	 	 
	 
	 	 
	LANDLORD:

	 	4300 Venture 34910 LLC

1798 Frebis Avenue

Columbus, Ohio 43206-0410
	 
	 	 
	TENANT:

	 	eTailDirect LLC

810 DSW Drive

Columbus, Ohio 43219
	 
	 	 
	LEASED PREMISES:

	 	Up to 811,000 square feet in

Building 3

4314 East Fifth Avenue

Columbus International Aircenter

Columbus, Ohio 43219






 









 






INDUSTRIAL LEASE — NET

TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	I.	 	GRANT, TERM, DEFINITIONS AND BASIC LEASE PROVISIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1	 	Grant	 	 	1	 
	 
	 	1.2	 	Delivery	 	 	2	 
	 
	 	1.3	 	Term; Options to Extend; Options to Terminate	 	 	2	 
	 
	 	1.4	 	Tenant's Pro Rata Share	 	 	3	 
	 
	 	1.5	 	Agent	 	 	3	 
	 
	 	1.6	 	Basic Lease Provisions	 	 	3	 
	 
	 	1.7	 	Conditions to Lease; Indemnifications	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	II.	 	POSSESSION	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1	 	Possession	 	 	6	 
	 
	 	2.2	 	Tenant’s Work	 	 	6	 
	 
	 	2.3	 	Landlord’s Work	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	III.	 	PURPOSE	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1	 	Purpose	 	 	8	 
	 
	 	3.2	 	Use of Real Estate	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	IV.	 	RENT	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1	 	Annual Rent	 	 	9	 
	 
	 	4.2	 	Interest on Late Payments	 	 	10	 
	 
	 	4.3	 	Additional Rent	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	V.	 	IMPOSITIONS	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1	 	Payment by Tenant	 	 	10	 
	 
	 	5.2	 	Alternative Taxes	 	 	12	 
	 
	 	5.3	 	Other Taxes	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	VI.	 	RISK ALLOCATION AND INSURANCE	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.1	 	Allocation of Risks	 	 	12	 
	 
	 	6.2	 	Tenant's Insurance	 	 	13	 
	 
	 	6.3	 	Landlord's Insurance	 	 	15	 
	 
	 	6.4	 	Form of Insurance	 	 	15	 
	 
	 	6.5	 	Insurance Premiums	 	 	16	 
	 
	 	6.6	 	Fire Protection	 	 	16	 
	 
	 	6.7	 	Waiver of Subrogation	 	 	17	 
	 
	 	6.8	 	Disclaimer of Liability	 	 	17	 






i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	VII.	 	DAMAGE OR DESTRUCTION	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1	 	Landlord’s Obligation to Rebuild	 	 	18	 
	 
	 	7.2	 	Tenant’s Rights After Casualty	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	VIII.	 	CONDEMNATION	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.1	 	Taking of Whole	 	 	19	 
	 
	 	8.2	 	Partial Taking	 	 	19	 
	 
	 	8.3	 	Temporary Taking	 	 	19	 
	 
	 	8.4	 	Payment to Tenant	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	IX.	 	MAINTENANCE AND ALTERATIONS	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	 
	 	9.1	 	Landlord’s Maintenance.	 	 	20	 
	 
	 	9.2	 	Tenant’s Maintenance.	 	 	20	 
	 
	 	9.3	 	HVAC Maintenance, Repair and Replacement	 	 	21	 
	 
	 	9.4	 	Alterations	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	X.	 	ASSIGNMENT AND SUBLETTING	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.1	 	Consent Required	 	 	23	 
	 
	 	10.2	 	Other Transfer of Lease	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	XI.	 	LIENS AND ENCUMBRANCES	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 
	 	11.1	 	Encumbering Title	 	 	24	 
	 
	 	11.2	 	Liens and Right to Contest	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	XII.	 	UTILITIES	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	 
	 	12.1	 	Utilities	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	XIII.	 	INDEMNITY	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	 
	 	13.1	 	Indemnity	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	XIV.	 	RIGHTS RESERVED TO LANDLORD	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	14.1	 	Rights Reserved to Landlord	 	 	27	 
	 
	 	14.2	 	Maintenance Costs	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	XV.	 	QUIET ENJOYMENT	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 
	 	15.1	 	Quiet Enjoyment	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	XVI.	 	SUBORDINATION OR SUPERIORITY	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	 
	 	16.1	 	Subordination or Superiority	 	 	29	 






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	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	XVII.	 	SURRENDER	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.1	 	Surrender	 	 	30	 
	 
	 	17.2	 	Removal of Tenant’s Property	 	 	31	 
	 
	 	17.3	 	Holding Over	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	XVIII.	 	ENVIRONMENTAL CONDITIONS	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 
	 	18.1	 	“Environmental Condition” Defined	 	 	31	 
	 
	 	18.2	 	Compliance by Tenant	 	 	32	 
	 
	 	18.3	 	Environmental Indemnity	 	 	32	 
	 
	 	18.4	 	Testing and Remedial Work	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	XIX.	 	REMEDIES	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 
	 	19.1	 	Defaults	 	 	34	 
	 
	 	19.2	 	Remedies	 	 	35	 
	 
	 	19.3	 	Remedies Cumulative	 	 	36	 
	 
	 	19.4	 	No Waiver	 	 	37	 
	 
	 	19.5	 	Intentionally Deleted	 	 	37	 
	 
	 	19.6	 	Delinquent Rent	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	XX.	 	SECURITY DEPOSIT	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	XXI.	 	MISCELLANEOUS	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.1	 	Intentionally Deleted	 	 	37	 
	 
	 	21.2	 	Estoppel Certificates	 	 	37	 
	 
	 	21.3	 	Landlord’s and Tenant’s Right to Cure/Landlord Default	 	 	38	 
	 
	 	21.4	 	Amendments Must Be in Writing	 	 	38	 
	 
	 	21.5	 	Notices	 	 	39	 
	 
	 	21.6	 	Short Form Lease	 	 	39	 
	 
	 	21.7	 	Time of Essence	 	 	39	 
	 
	 	21.8	 	Relationship of Parties	 	 	39	 
	 
	 	21.9	 	Captions	 	 	39	 
	 
	 	21.10	 	Severability	 	 	39	 
	 
	 	21.11	 	Law Applicable	 	 	40	 
	 
	 	21.12	 	Covenants Binding on Successors	 	 	40	 
	 
	 	21.13	 	Brokerage	 	 	40	 
	 
	 	21.14	 	Landlord Means Owner	 	 	40	 
	 
	 	21.15	 	Lender’s Requirements	 	 	40	 
	 
	 	21.16	 	Signs	 	 	41	 
	 
	 	21.17	 	Parking Areas; Truck Trailer Parking Lease	 	 	41	 
	 
	 	21.18	 	Force Majeure	 	 	42	 
	 
	 	21.19	 	Landlord’s and Tenant’s Expenses	 	 	42	 
	 
	 	21.20	 	Execution of Lease by Landlord	 	 	43	 
	 
	 	21.21	 	Exculpatory Clause	 	 	43	 
	 
	 	21.22	 	Airport Access	 	 	43	 






iii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	21.23	 	Amendments to Other Leases; Failure of Lenders to Consent	 	 	44	 
	 
	 	21.24	 	Consent	 	 	45	 
	 
	 	21.25	 	Lease Guaranty	 	 	45	 






	 	 	 	 	 
	Exhibit A

	 	—
	 	Legal Description
	Exhibit B

	 	—
	 	Site Plan and Leased Premises
	Exhibit C

	 	—
	 	Landlord’s Work
	Exhibit D

	 	—
	 	Subordination, Non-Disturbance and Attornment Agreement
	Exhibit E

	 	—
	 	DSW Access Route and Future Reserve Area
	Exhibit F

	 	—
	 	Memorandum of Lease
	Exhibit G

	 	—
	 	Form of Lease Guaranty







iv











 





INDUSTRIAL LEASE — NET




          THIS LEASE is made as of this 1st day of October, 2007 (the “Effective Date”), by
and between 4300 Venture 34910 LLC, a Delaware limited liability company (hereinafter sometimes
referred to as “Landlord”), with offices at 1798 Frebis Avenue, Columbus, Ohio 43206-0410, and
eTailDirect LLC, an Ohio limited liability company (hereinafter sometimes referred to as “Tenant”),
with offices at 810 DSW Drive, Columbus, Ohio 43219, who hereby mutually covenant and agree as
follows:




          I. GRANT, TERM, DEFINITIONS AND BASIC LEASE PROVISIONS






          1.1
Grant.




          Landlord, for and in consideration of the rents herein reserved and of the covenants and
agreements herein contained on the part of Tenant to be performed, hereby leases to Tenant, and
Tenant hereby lets from Landlord, premises consisting of the approximate square footage set forth
in the table in Section 1.2 below of area in Building No. 3 of the Columbus International
Aircenter, which premises are commonly known as 4314 East Fifth Avenue, Columbus, Ohio 43219. The
Columbus International Aircenter comprises approximately 2,819,647 square feet of leasable space on
171 acres, more or less, of real property in Franklin County, Ohio, which real property is legally
described on Exhibit A, attached hereto and made a part hereof (hereinafter sometimes
referred to as the “Real Estate”). The premises are outlined on the site plan attached hereto as
Exhibit B and made a part hereof (the “Site Plan”). Said premises, together with all
improvements now located or to be located on said premises during the term of this Lease, shall
collectively be referred to herein as the “Leased Premises”.




          Tenant shall also have the non-exclusive right to use all common areas of the Real Estate, as
the same may be modified, altered and reduced from time to time during the term hereof (the “Common
Areas”). Said Common Areas include all taxiways and airplane parking and servicing areas
designated from time to time by Landlord. Tenant acknowledges that Landlord may promulgate
reasonable rules and regulations in connection with the use of all such Common Areas, and Tenant’s
use thereof shall not unreasonably interfere with the use of said Common Areas by Landlord or other
tenants, occupants or users of the Real Estate, as well as their respective customers, employees,
agents, licensees, contractors, subcontractors and invitees (hereinafter collectively the
“Permitted Parties”), so long as Landlord has provided a copy of same to Tenant, nor shall Tenant’s
use interfere with the environmental remediation activities of the United States of America, as
hereinafter set forth. Tenant acknowledges that this Lease is subject to the terms and conditions
of the Declaration of Restrictions and Easements, dated October 17, 1997, and recorded as
Instrument No. 199710170122036, Recorder’s Office, Franklin County, Ohio and Tenant agrees to
comply with all provisions thereof.




 









 









	 	1.2	 	Delivery.





          Landlord agrees to deliver the Leased Premises in its existing condition and free and clear of
current tenant encumbrances or other occupancies on or about October 1, 2007 (the “Delivery Date”)
and shall deliver each additional portion of the Leased Premises on the date set forth in the table
below. In the event that the Leased Premises are not delivered to Tenant on or before the Delivery
Date, the rent due hereunder shall be adjusted so that, after the Rent Commencement Date, the
Tenant shall receive a credit against rent thereafter due Landlord equal to one (1) day of rent for
each day after the Delivery Date until delivery of the Leased Premises is made to Tenant consistent
with the terms of this Lease.




	 	 	 	 	 	 	 	 	 
	Date of Delivery by 	 	Approx. Square Footage	 	Approx. Total Square
	Landlord 	 	Delivered	 	Footage
	October 1, 2007

	 	 	265,000	 	 	 	265,000	 
	February 28, 2009

	 	 	100,000	 	 	 	365,000	 
	February 28, 2010

	 	 	200,000	 	 	 	565,000	 
	February 28, 2011

	 	 	62,000	 	 	 	627,000	 
	February 28, 2013

	 	 	184,000	 	 	 	811,000	 







	 	1.3	 	Term; Options to Extend; Options to Terminate.





          The term of this Lease shall commence on the Delivery Date (hereinafter sometimes referred to
as “Commencement Date”) and shall end on September 30, 2017, unless sooner terminated as herein set
forth. The term “Lease Year” shall be defined as each successive period of twelve (12) consecutive
calendar months, with the first Lease Year commencing on October 1, 2007.




          Landlord hereby grants to Tenant the option to extend the Term of this Lease for two (2)
consecutive option terms of five (5) years each, referred to herein as “First Option Term” and
“Second Option Term”. The First Option Term shall commence at the end of the original Term of this
Lease, and the Second Option Term shall commence at the end of the First Option Term. So long as
Tenant is then in possession of the Leased Premises and is not in default hereunder, Tenant may
elect to exercise each option by giving the Landlord written notice at least six (6) months prior
to the expiration of the original Term or the then existing Option Term. Said Option Terms shall
be upon the same terms, covenants and agreements as are herein set forth, including, without
limitation, increases in annual rent as set forth in Section 1.6(b) below.




          Tenant shall have the right to terminate this Lease effective either February 28, 2010 or
February 28, 2013; provided however that (i) Tenant shall give written notice of Tenant’s election
to terminate not less than 180 days prior to the effective date of termination, and (ii) Tenant
shall pay to Landlord by the effective date of termination a fee equal to Two Hundred Fifty
Thousand Dollars ($250,000) if Tenant terminates on February 28, 2010, or equal to One Hundred
Twenty-Five Thousand Dollars ($125,000) if Tenant terminates on February 28, 2013, and (iii) Tenant
shall pay to Landlord by the effective
date of termination




 









 







the unamortized portion of the Tenant Reimbursement (as defined in Section
2.2(b)) where the Tenant Reimbursement is amortized on a straight-line basis over the initial Term.





	 	1.4	 	Tenant’s Pro Rata Share.





          As used in this Lease, “Tenant’s Pro Rata Share” shall initially be Nine and 398/1000ths
percent (9.398%). Tenant’s Pro Rata Share shall be based upon a fraction, the numerator of which
is the number of leasable square feet in the Leased Premises, and the denominator of which is the
number of leasable square feet of building space on the Real Estate, which is approximately
2,819,647 square feet as of the date hereof, as the same shall be adjusted, from time to time,
during the Term hereof to reflect (i) the increased square footage of the Leased Premises, and (ii)
the then existing number of leasable square feet of building space on the Real Estate.





	 	1.5	 	Agent.





          As used in this Lease, the term “Agent” shall mean the agent of Landlord. Until otherwise
designated by notice in writing from Landlord, Agent shall be Schottenstein Property Group, 1800
Moler Road, Columbus, Ohio 43207, Attn: President, Real Estate. Tenant may rely upon any consent
or approval given in writing by Agent or upon notice from Agent or from the attorneys for Agent or
Landlord.





	 	1.6	 	Basic Lease Provisions.





          These basic lease provisions are intended for convenience only, and any conflict between these
provisions and the body of the Lease shall be resolved in favor of the body of the Lease.





	 	(a)	 	Purpose (See Section 3.1): The Leased Premises shall be used for warehouse or
distribution only, and any other use shall require Landlord’s prior consent, which
consent shall not be unreasonably withheld, conditioned or delayed.
	 
	 	(b)	 	Annual Rent (See Section 4.1): Annual Rent shall commence on February 1, 2008
(the “Rent Commencement Date”). The Annual Rent shall be as set forth in the table
below; provided, however, (i) that Annual Rent for additional portions of the Leased
Premises shall commence early upon Landlord’s delivery of such additional portions in
the condition stated in 1.6(b)(ii), but only if prior to such delivery Tenant gave
notice of Tenant’s desired early delivery with respect to such specific additional
portions, and (ii) that Annual Rent for additional portions of the Leased Premises
shall not commence until such additional portions are delivered by Landlord to Tenant
in the condition required by Sections 2.1, 2.3(a), 2.3(b), 9.1(b), 9.3, 12.1(a) and
Exhibit C of this Lease, and (iii) if portions of the Leased Premises other
than the initial Leased Premises are not delivered to Tenant at the time and in the
condition stated in 1.6(b)(ii), then the Rent for such portions of the Leased Premises
shall abate until such requirements are satisfied:




 









 











	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Total 1st	 	1st Floor	 	Basement	 	Basement	 	 	 	 	 	Monthly
	Period:	 	Floor SF	 	$/SF/yr	 	SF	 	$/SF/yr	 	Annual Rent	 	Installments:
	2/01/2008 to
12/31/2008
	 	 	265,000	 	 	$	2.25	 	 	 	 	 	 	 	 	 	 	$	596,250.00	 	 	$	49,687.50	 
	1/01/2009 to
2/28/2009
	 	 	265,000	 	 	$	2.10	 	 	 	 	 	 	 	 	 	 	$	556,500.00	 	 	$	46,375.00	 
	3/01/2009 to
2/28/2010
	 	 	365,000	 	 	$	2.00	 	 	 	 	 	 	 	 	 	 	$	730,000.00	 	 	$	60,833.33	 
	3/01/2010 to
2/28/2011
	 	 	565,000	 	 	$	2.00	 	 	 	 	 	 	 	 	 	 	$	1,130,000.00	 	 	$	94,166.67	 
	3/01/2011 to
2/29/2012
	 	 	627,000	 	 	$	2.00	 	 	 	 	 	 	 	 	 	 	$	1,254,000.00	 	 	$	104,500.00	 
	3/01/2012 to
2/28/2013
	 	 	627,000	 	 	$	2.00	 	 	 	 	 	 	 	 	 	 	$	1,254,000.00	 	 	$	104,500.00	 
	3/01/2013 to
2/28/2014
	 	 	627,000	 	 	$	2.00	 	 	 	184,000	 	 	$	0.30	 	 	$	1,309,200.00	 	 	$	109,100.00	 
	3/01/2014 to
2/28/2015
	 	 	627,000	 	 	$	2.00	 	 	 	184,000	 	 	$	0.35	 	 	$	1,318,400.00	 	 	$	109,866.67	 
	3/01/2015 to
2/28/2016
	 	 	627,000	 	 	$	2.00	 	 	 	184,000	 	 	$	0.40	 	 	$	1,327,600.00	 	 	$	110,633.33	 
	3/01/2016 to
2/28/2017
	 	 	627,000	 	 	$	2.00	 	 	 	184,000	 	 	$	0.45	 	 	$	1,336,800.00	 	 	$	111,400.00	 
	3/01/2017 to
9/15/2017
	 	 	627,000	 	 	$	2.00	 	 	 	184,000	 	 	$	0.50	 	 	$	1,346,000.00	 	 	$	112,166.67	 
	First Option Term
(5yrs.)
	 	 	627,000	 	 	$	2.40	 	 	 	184,000	 	 	$	0.50	 	 	$	1,596,800.00	 	 	$	133,066.67	 
	Second Option Term
(5 yrs.)
	 	 	627,000	 	 	$	2.70	 	 	 	184,000	 	 	$	0.50	 	 	$	1,784,900.00	 	 	$	148,741.67	 







	 	(c)	 	Payee (See Section 4.1): 4300 Venture 34910 LLC.
	 
	 	(d)	 	Payee’s Address (See Sections 4.1 and 4.2): 1798 Frebis Avenue, Columbus, Ohio
43206-0410.
	 
	 	(e)	 	Form of Insurance (See Article VI): The insurance specified in Section 6.1
shall comply with the provisions of Section 6.2. Initial Tenant’s Monthly Pro Rata
Share of Insurance Premiums (See Sections 4.3 and 6.5): $0.15/SF.
	 
	 	(f)	 	Initial Monitoring Service Charge (See Sections 4.3 and 6.6): N/A.
	 
	 	(g)	 	Water and Sewerage Charge (See Sections 4.3 and 12.1): Tenant to pay its
proportionate share on the Leased Premises, and one-third of the share on future
portions of the Leased Premises not yet delivered to Tenant.
	 
	 	(h)	 	Initial Tenant’s Pro Rata Share of Monthly Impositions (See Sections 4.3 and
5.1): $5,520.83 ($0.25/SF).
	 
	 	(i)	 	Initial Tenant’s Pro Rata Share of Monthly Maintenance Costs (See Sections 4.3,
9.1 and 14.2): $8,833.33($0.40/SF).
	 
	 	(j)	 	Tenant’s Address (for notices) (See Section 21.5): Chief Financial Officer,




 









 






	 		 	810 DSW Drive, Columbus, Ohio 43219, with a copy to General Counsel, 810 DSW Drive,
Columbus, Ohio 43219.
	 
	 	(k)	 	Landlord’s Address (for notices) (See Sections 21.5 regarding notices and
16.1(c) regarding notices to Landlord’s lender): President, Real Estate,1800 Moler
Road, Columbus, Ohio 43207, and to 1800 Moler Road, Columbus, Ohio 43207, Attn: Law
Department.
	 
	 	(l)	 	Broker(s) (See Section 21.13): None.
	 
	 	(m)	 	Guarantor’s Name and Address: DSW Inc., an Ohio corporation, 810 DSW Drive,
Columbus, Ohio 43219.
	 
	 	(n)	 	Rider: List any Riders that are attached: None.
	 
	 	1.7	 	Conditions to Lease; Indemnifications
	 
	 	(a)	 	Landlord shall use all reasonable commercial efforts and due diligence in good
faith to expedite the issuance of both a temporary and permanent certificate of
occupancy for the Leased Premises use for the Purpose. As a condition to this Lease,
Landlord shall cause the building containing the Leased Premises and the Real Estate,
as the case may be, to be in the condition necessary for a temporary certificate of
occupancy, or the equivalent, to be issued by the City of Columbus or applicable
governmental entity no later than December 15, 2007, the effect of which is to allow
Tenant to operate in the Premises for the Purpose without any material limitation or
condition. If either (i) such temporary certificate or equivalent is not issued by
December 15, 2007, or (ii) a permanent certificate of occupancy without condition is
not issued by June 15, 2008, then in either event Landlord shall indemnify, defend and
hold harmless Tenant for all costs, expenses, losses, damages, judgments, injuries,
liabilities and penalties, or other damage related to or arising from the failure of
such certificates to be issued, but specifically excluding indirect, incidental and
consequential damages.
	 
	 	(b)	 	This Lease is contingent upon approval by Landlord’s lender of this Lease.
Landlord shall use all due diligence and commercially reasonable efforts in good faith
to obtain such consent. If such consent is not obtained by December 31, 2007, then
Tenant may terminate this Lease by notice to Landlord. Upon such termination under
this Section 1.7(b) the parties shall have no further obligations to each other, except
as set forth in Section 1.7(c).
	 
	 	(c)	 	In the event that the consent of Landlord’s lender to this Lease cannot be
obtained, or in the event that Landlord’s lender requires modification of this Lease
for its consent, then Landlord shall indemnify, defend and hold harmless Tenant from
all costs, expenses, losses, damages, judgments,
injuries, liabilities and penalties, whether in contract or tort (including strict




 









 






	 	 	 	liability and negligence), such as, but not limited to, recovery of capital
investment, cost to relocate or other damage related to or arising from Landlord’s
lender’s failure to consent or modifications to this Lease required by Landlord’s
lender for its consent, but specifically excluding indirect, incidental and
consequential damages.





II. POSSESSION





	 	2.1	 	Possession.





          Except as otherwise expressly provided herein, Landlord shall deliver possession of the Leased
Premises free and clear of current tenant encumbrances or other occupancies to Tenant upon full
execution of this Lease and on the dates for delivery of the other portions of the Leased Premises,
all in good working order and condition and in compliance with all applicable federal, state or
local laws, rules, regulations, code requirements, orders, permits and licenses, including but not
limited to building, fire, safety and ADA codes (“Laws”) applicable to the Leased Premises or
required for the Purpose. Tenant acknowledges that as of October 1, 2007 Landlord has performed
its obligations under Sections 2.1, 2.3(a), 2.3(b), 9.1(b), 9.3, 12.1(a) and Exhibit C with
respect to the initial portion of the Leased Premises.





	 	2.2	 	Tenant’s Work
	 
	 	(a)	 	Tenant shall prepare drawings of certain real property improvements to the
Leased Premises desired by Tenant (“Tenant’s Work”), and Tenant shall submit same to
Landlord for approval. Tenant’s Work shall be done in a good and workmanlike manner in
accordance with the plans and specifications approved by Landlord, which approval shall
not be unreasonably withheld (upon approval, the “Approved Plans”). Tenant’s Work
shall comply with Laws. Any structural or exterior changes to the Approved Plans by
Tenant shall be approved in advance by Landlord, which approval shall not be
unreasonably withheld or delayed, and shall be in compliance with all Laws.
Notwithstanding anything to the contrary contained in this Lease, the Tenant
Improvements shall, at all times during the term of this Lease and upon the expiration
or earlier termination of this Lease, be the property of Landlord. Tenant shall not
acquire any interest, equitable or otherwise, in any Tenant Improvements. Tenant
agrees that the Tenant Reimbursement shall be used for improvements to the Leased
Premises, which shall be affixed to the Real Estate and the improvements constructed
thereon, and shall not be used for the purchase of Tenant’s personal property.
	 
	 	(b)	 	Landlord shall pay Tenant up to Seven Hundred Thousand Dollars ($700,000.00)
(the “Tenant Reimbursement”), as contribution to Tenant for Tenant’s Work for
furnishing, constructing and installing the work comprising Tenant’s Work (“Tenant
Improvements”). The Tenant Reimbursement shall




 









 






	 	 	 	be paid by Landlord to Tenant within
ten (10) days of the later of: (i) receipt by Landlord of Tenant’s request for payment
together with (A) lien waivers from each contractor or supplier providing more than
$10,000 in work or materials and (B) reasonable documentation evidencing Tenant’s
payment of amounts equaling up to the amount of the Tenant Reimbursement requested;
(ii) substantial completion of the Tenant Improvements; and (iii) Tenant opening for
business in the Leased Premises. Tenant, at Tenant’s option, may request reimbursement
in portions following delivery of the initial portion of the Leased Premises or
delivery of the additional portions of the Leased Premises, or any combination. In the
event Landlord does not timely pay any installment of the Tenant Reimbursement to
Tenant, (1) Landlord shall pay to Tenant interest on such unpaid amounts at a rate of
interest equal to four percent (4%) over the prime rate in effect from time to time as
established by National City Bank, Columbus, Ohio and (2) Tenant shall have the right
to deduct any and all such amounts owed Tenant against payments of rent thereafter due
Landlord until such time as Tenant has been credited the full amount of the Tenant
Reimbursement plus applicable interest.
	 
	 	2.3	 	Landlord’s Work
	 
	 	(a)	 	Landlord agrees to make the improvements to the Leased Premises described in
this Section 2.3 and the attached Exhibit C to this Lease, which is made a part
hereof (“Landlord’s Work”). Landlord’s Work in the initial Leased Premises shall be
substantially complete prior to December 15, 2007 (including but not limited to
replacement of the roof), and Landlord’s Work in the portions of the Leased Premises
other than the initial Leased Premises shall be substantially complete prior to
delivery of possession of same to Tenant. All elements of Landlord’s Work shall be
scheduled, coordinated and performed to minimize any negative effect on Tenant’s
operations. Landlord’s Work shall be done in a good and workmanlike manner in
accordance with plans and specifications approved by Tenant, which approval shall not
be unreasonably withheld (upon approval, the “Approved Plans”). Landlord’s Work shall
comply with all Laws. Any changes to the Approved Plans shall be approved in advance
by Tenant, which approval shall not be unreasonably withheld or delayed. Any changes
to the Approved Plans shall be in compliance with all Laws.
	 
	 	(b)	 	Landlord’s performance of the portion of Landlord’s Work set forth in
Exhibit C labeled “Code Compliance Improvements by Landlord” and “Roof
Replacement by Landlord” shall be at Landlord’s sole cost. Landlord’s performance of
the portion of Landlord’s Work set forth in Exhibit C labeled
“Building Repairs and Improvements by Landlord” shall be at Landlord’s sole cost;
provided however, Landlord shall not be required to spend in excess of Two Hundred
Seventy-five Thousand Dollars ($275,000) for such portion of Landlord’s Work.
Within five (5) business days of Landlord and Tenant finalizing the Agreed Plans,
Landlord shall notify Tenant of the excess cost, if




 









 






	 	 	 	any, of the “Building Repairs
and Improvements by Landlord” over $275,000. Within five (5) business days of such
notice Tenant shall, at Tenant’s option, either cooperate with Landlord to revise
the Approved Plans to reduce or eliminate such excess costs, or Tenant shall approve
the excess costs, or a combination of both. Any such approved excess costs shall be
paid by Tenant to Landlord within 30 days of an invoice therefor following
completion of the Landlord’s Work as relates to the initial Leased Premises or such
additional portion of the Leased Premises, or, at Tenant’s option, such excess costs
shall be amortized on a straight-line basis over the initial Term and the monthly
portion of same shall be added to, become and be paid as the monthly installments of
Annual Rent. If the cost of Landlord’s Work in the initial portion of the Leased
Premises does not meet the $275,000 amount, then Landlord’s Work shall continue in
the same fashion as set forth above as to the additional portions of the Leased
Premises until such amount is reached.
	 
	 	(c)	 	As a part of “Code Compliance Improvements by Landlord” Landlord, at Landlord’s
sole cost, agrees to provide all required fire/life safety improvements to the extent
required by the Laws for the initial Leased Premises and for each additional portion of
the Leased Premises. Following delivery of the initial portion of the Leased Premises,
Landlord agrees to diligently pursue until same are issued in good faith using all
reasonable commercial efforts all permits, licenses, certificates or the like relating
to fire/life safety requirements required by governmental entities for Tenant’s
intended use of the entire Leased Premises as set forth in the drawing titled Designer
Shoe Warehouse E-Tail Direct Facility — Future Expansion Composite Layout, last
revision dated October 25, 2007, prepared by Vargo Companies (drawing no.
P7062-C001-01). Tenant shall reasonably cooperate in good faith with Landlord in
Landlord’s efforts under this subsection. Landlord may elect to pursue a variance(s)
relating to such fire/life safety requirements as relates to certain elements of
Landlord’s Work. The parties shall cooperate to approach the City of Columbus and
other applicable governmental authorities together for such variance(s), provided that
such efforts shall be at Landlord’s cost. Landlord agrees that such efforts and any
failure to obtain such variance(s) shall not operate to excuse or extend the time for
Landlord’s performance of Landlord’s obligations under this Lease.





III. PURPOSE





	 	3.1	 	Purpose.





          The Leased Premises shall be used and occupied only for the Purpose set forth in Section
1.6(a) hereof, except that no such use shall (a) violate any certificate of occupancy or Law,
ordinance or other governmental regulation in effect from time to time affecting the Leased
Premises or the use thereof, including all recorded instruments of record, (b) cause





 









 







injury to the
improvements, (c) cause the value or usefulness of the Real Estate or any part thereof to diminish,
(d) constitute a public or private nuisance or waste, (e) authorize Tenant to use, treat, store or
dispose of hazardous or toxic materials on the Real Estate, or (f) render the insurance on the
Leased Premises void or the insurance risk more hazardous, provided, however, that if Tenant’s use
of the Leased Premises does make the insurance risk more hazardous then, without prejudice to any
other remedy of Landlord for such breach, Tenant shall pay to Landlord, on demand, the amount by
which Landlord’s insurance premiums are increased as a result of such use, which payment shall be
in addition to the payment by Tenant for premiums as provided in Section 6.3 hereof. Tenant shall
not use or occupy the Leased Premises contrary to any statute, rule, order, ordinance, requirement
or regulation applicable thereto.





	 	3.2	 	Use of Real Estate.





          Tenant acknowledges that the Real Estate is adjacent to the Columbus International Airport
(the “Airport”) and that portions of the Real Estate may be used for storage, repair, loading and
unloading of airplanes and other services associated with the Airport and airplanes. To the extent
applicable to either Landlord or Tenant the parties agree to the following: (i) Tenant’s operations
in accordance with its permitted Purpose at the Real Estate and the Airport, including the hiring
of employees or contractors, shall be in full compliance with all security, safety and other
regulations of the Federal Aviation Administration, United States State Department or other
applicable governmental or quasi-governmental authorities having jurisdiction over the Real Estate
and/or the Airport; (ii) Landlord hereby represents to Tenant that, as of the date of execution
hereof, Landlord is not aware of any such regulations or restrictions which would be violated by
Tenant’s operation of the Leased Premises for the Purpose, and Landlord further agrees that it
shall promptly advise Tenant at such time as Landlord becomes aware of any such regulations or
restrictions; (iii) Tenant further acknowledges that these uses generate substantial noise and
other emissions and covenants that Tenant will not interfere with these uses of the Real Estate;
(iv) Tenant consents to the above uses of the Real Estate and agrees that such use shall not
interfere with its use of the Leased Premises nor shall Tenant permit any use of the Leased
Premises which shall be inconsistent with the use of the Real Estate and the adjacent Airport; and
(v) Tenant acknowledges and consents to any expansion of the Airport, including without limitation
one which includes a major runway, or a portion thereof, between the current Airport runways and
the Leased Premises.




IV. RENT





	 	4.1	 	Annual Rent.





          Beginning with the Rent Commencement Date, Tenant shall pay, without demand, annual rent as
set forth in Section 1.6(b) hereof payable monthly in advance on or before the first day of each
month during the term of this Lease in installments as set forth in said Section. Rent shall be
paid to or upon the order of Payee at the Payee’s Address. Landlord shall have the right to change
the Payee or the Payee’s Address by giving written notice thereof to Tenant. All payments of rent
shall be made in lawful money of the United




 









 







States without any deduction, set off, discount or
abatement whatsoever except as specifically set forth herein.





	 	4.2	 	Interest on Late Payments.





          Each and every installment of rent and each and every payment of other charges hereunder which
shall not be paid when due and not paid within five (5) days after notice thereof shall bear
interest at the highest rate then payable by Tenant in the state in which the Leased Premises are
located or, in the absence of such a maximum rate, at a rate per annum equal to four percent (4%)
in excess of the announced prime rate of interest of National City Bank, Columbus, Ohio, in effect
on the due date of such installment(s), from the date when the same is payable under the terms of
this Lease until the same shall be paid; provided that payment of such interest shall not excuse
default in the payment of rent or other sums due hereunder.





	 	4.3	 	Additional Rent.





          Beginning with the Rent Commencement Date, Tenant shall also pay to Landlord as additional
rent the sum of Tenant’s Pro Rata Share of Impositions (defined in Section 5.1), Landlord’s
insurance (pursuant to Article 6), Common Area utility charges, and Landlord’s Maintenance Costs
(defined in Section 14.2). The amounts payable pursuant to the preceding sentence shall be paid to
Landlord each month on the dates and at the place specified for the payment of annual rent, unless
Landlord notifies Tenant in writing of a different address therefor.




          During the Term of this Lease, including any and all Option Terms, the sum of Tenant’s Pro
Rata Share of (i) Landlord’s Maintenance Costs (defined in Section 14.2) (excluding the cost for
snow and ice removal), and (ii) Landlord’s insurance, shall not exceed $0.85 per square foot for
the first Lease Year and shall not increase by more than three and 00/100ths percent (3.00%) in any
Lease Year over the previous Lease Year.




V. IMPOSITIONS





	 	5.1	 	Payment by Tenant.
	 
	 	(a)	 	Definition of Impositions. Tenant shall pay to Landlord, as additional rent
for the Leased Premises, Tenant’s Pro Rata Share of all (i) taxes and assessments,
general and special, water rates and all other impositions, ordinary and extraordinary,
of every kind and nature whatsoever, which are payable during the term of this Lease
upon the Real Estate or any part thereof or upon any improvements at any time situated
thereon, (ii) any assessment by any association of owners of property in the complex of
which the Real Estate is a part which is payable during the term of this Lease and
(iii) all fees and costs incurred by Landlord during the Lease term for the purpose of
contesting or protesting tax assessments or rates (“Impositions”). For the purpose of
determining the amount of Impositions payable by Landlord during any year, there shall
be added and or credited, as applicable,




 









 






	 	 	 	to the amount of Impositions paid or payable
by Landlord an amount equal to any tax abatements or comparable credits allowed to
Landlord by the City of Columbus or other applicable governmental jurisdiction for such
year. Tenant’s Pro Rata Share of such Impositions shall be prorated between Landlord
and Tenant for the first Lease Year and as of the expiration date of the Lease Term for
the last year of the Lease Term (on the basis of Landlord’s reasonable estimate
thereof). Landlord may take the benefit of the provisions of any statute or ordinance
permitting any assessment to be paid over a period of years, in which event Tenant
shall be obligated to pay its Pro Rata Share of only those installments paid during the
term of this Lease and any extensions thereof. There shall be excluded from
Impositions all federal income taxes, state and local net income taxes, federal excess
profit taxes, franchise, capital stock and federal or state estate or inheritance taxes
of Landlord.
	 
	 	(b)	 	Calculation of Tenant’s Pro Rata Share of Impositions. Tenant’s Pro Rata Share
of such Impositions shall be determined by (i) multiplying Tenant’s Pro Rata Share (as
set forth in Section 1.4 hereof) by the amount of Impositions (as defined in Section
5.1(a) above) paid or payable in a Lease Year and (ii) subtracting from the result
thereof the amount of any tax abatement or comparable credit specifically applicable to
the Leased Premises. If any such tax abatement or other credit includes the Leased
Premises and other portions of the Real Estate, the amount of such abatement or credit
to be subtracted in (ii) above shall be the amount of such tax abatement or credit,
multiplied by a fraction, the numerator of which shall be the number of
square feet of leasable space in the Leased Premises and the denominator of which
shall be the number of square feet of leasable space in the portion of the Real
Estate for which the tax abatement or credit was given. Subject to the limitation
set forth in Section 4.3, Tenant’s Pro Rata Share of Impositions shall be paid by
Tenant to Landlord within thirty (30) days after Landlord bills Tenant therefor (but
in no event earlier than twenty-one (21) days prior to the due date thereof) or, at
Landlord’s election in monthly installments in amounts reasonably estimated by
Landlord. Tenant’s Pro Rata Share of all Impositions shall be computed by Landlord
within ninety (90) days after the end of each accounting year (which Landlord may
change from time to time). Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual Impositions incurred during such accounting year and
Tenant’s Pro Rata Share thereof. To the extent Tenant’s Pro Rata Share of such
costs is greater than the sums paid by Tenant for such year, the difference shall be
billed to and paid by Tenant within thirty (30) days after Tenant’s receipt of said
bill. Any excess payment made by Tenant shall be credited against future
installments of rent. Tenant’s estimated monthly Pro Rata Share of Impositions may
thereafter be adjusted by written notice from Landlord. Landlord estimates Tenant’s
initial Pro Rata Share of the Impositions to be Twenty-five cents ($0.25) per square
foot per annum.
	 
	 	(c)	 	Real Estate Tax Appeals. Tenant shall have the right to compel Landlord to




 









 






	 	 	 	appeal Impositions if Tenant notifies Landlord in writing that Tenant has made a good
faith determination that Impositions exceed an amount which Tenant believes are
consistent with the fair market value of the Real Estate. In the event Landlord
receives such notice, Landlord shall contest such Impositions by counsel reasonably
satisfactory to Landlord. The cost to contest the Impositions shall be added to
Impositions and Tenant shall pay its Pro Rata Share thereof; provided, however, that
Tenant shall receive a Pro Rata Share of any reduction in Impositions based upon the
leasable square footage of those tenants leasing portions of the Real Estate which is
the subject of such appeal of Impositions, prorated to reflect the term of the Lease.
	 
	 	5.2	 	Alternative Taxes.





          If at any time during the term of this Lease the method of taxation prevailing at the
commencement of the term hereof shall be altered so that any new tax, assessment, levy, imposition,
or charge, or any part thereof, shall be measured by or be based in whole or in part upon the
Lease, or the Leased Premises, or the Real Estate, or the rent, additional rent or other income
therefrom and shall be imposed upon Landlord, in lieu of or in substitution for previously existing
Impositions, then all such taxes, assessments, levies, impositions or charges, or the part thereof,
to the extent that they are so measured or based, shall be deemed to be included within the term
“Impositions” for the purpose hereof, to the extent that such Impositions would be payable if the
Real Estate were the only property of Landlord subject to such Impositions, and Tenant shall pay
its Pro Rata Share of Impositions as so defined.





	 	5.3	 	Other Taxes.





          Tenant further covenants and agrees to pay promptly when due all taxes assessed against
Tenant’s fixtures, furnishings, equipment and stock-in trade placed in or on the Leased Premises
during the term of this Lease.




VI. RISK ALLOCATION AND INSURANCE





	 	6.1	 	Allocation of Risks.





          The parties desire, to the extent permitted by Laws, to allocate certain risks of personal
injury, bodily injury or property damage, and risks of loss of real or personal property by reason
of fire, explosion or other casualty, and to provide for the responsibility for insuring those
risks. It is the intent of the parties that, to the extent any event is required by the terms
hereof to be covered by insurance, any loss, cost, damage or expense, including, without
limitation, the expense of defense against claims or suits, be covered by insurance, without regard
to the fault of Tenant, its officers, employees, agents, contractors and customers (“Tenant
Protected Parties”), and without regard to the fault of Landlord, Agent, their respective members,
officers, directors, employees, agents and contractors (“Landlord Protected Parties”). As between
Landlord Protected Parties and Tenant Protected Parties, such risks are allocated as follows:




 









 









	 	(a)	 	Tenant shall bear the risk of bodily injury, personal injury or death, or
damage to property, or to third persons, occasioned by events occurring within, on or
about the Leased Premises, regardless of the party at fault, if any. Said risks shall
be insured as provided in Section 6.2(a).
	 
	 	(b)	 	Landlord shall bear the risk of bodily injury, personal injury, or death or
damage to property, or to third persons, occasioned by events occurring on or about the
Real Estate (other than premises leased to tenants), regardless of the party at fault,
if any; provided, however, Landlord shall not bear the risk for the Ramp Area,
including but not limited to all aircraft thereon and the loading dock area, as such
area is designated on the Tenant Parking Area (defined in Section 21.17 below). Said
risk shall be insured against as provided in Section 6.3(a).
	 
	 	(c)	 	Tenant shall bear the risk of bodily injury, personal injury, or death or
damage to property, or to third persons, occasioned by any event occurring on or about
the Ramp Area and the loading dock area as designated on the Tenant Parking Area
(defined in Section 21.17 below) provided that as to the
Ramp Area only, such event is occasioned by the wrongful act or omission of any of
Tenant Protected Parties. Said risk shall be insured against as provided in Section
6.2(a).
	 
	 	(d)	 	Tenant shall bear the risk of damage to contents, trade fixtures, machinery,
equipment, furniture, furnishings and property of Tenant, Tenant’s Protected Parties
and property in Tenant’s control, care and custody in the Leased Premises arising out
of loss by all events required to be insured against pursuant to Section 6.2(b)
	 
	 	(e)	 	Landlord shall bear the risk of damage to the building on the Real Estate
arising out of loss by events required to be insured against pursuant to Section
6.3(b).




Notwithstanding the foregoing, provided the party required to carry insurance under Section 6.2(a)
or Section 6.3(a) hereof does not default in its obligation to do so, if and to the extent that any
loss occasioned by any event of the type described in Section 6.1(a) or Section 6.1(b) exceeds the
coverage or amount of insurance actually carried, or results from an event not required to be
insured against and not actually insured against, the party at fault shall pay the amount not
actually covered under these respective policies.





	 	6.2	 	Tenant’s Insurance.





          Tenant shall procure and maintain policies of insurance, at its own cost and expense,
insuring:





	 	(a)	 	The Landlord Protected Parties as “additional insureds”, and Landlord’s
mortgagee, if any, of which Tenant is given written notice, and Tenant




 









 






	 	 	 	Protected
Parties, from all claims, demands or actions made by or on behalf of any person or
persons, firm, corporation or entity and arising from, related to or connected with the
Leased Premises, Tenant’s use thereof or operations therein for bodily injury to or
personal injury to or death of any person, or more than one (1) person, or for damage
to property in an amount of not less than One Million Dollars ($1,000,000.00) per
occurrence and not less than Two Million Dollars ($2,000,000.00) policy aggregate
limit. Said insurance shall be written on an “occurrence” basis and not on a “claims
made” basis, and such liability policies shall include products and completed
operations liability insurance. If at any time during the term of this Lease, Tenant
owns or rents more than one location, the policy shall contain an endorsement to the
effect that the aggregate limit in the policy shall apply separately to each location
owned or rented by Tenant. Landlord shall have the right, exercisable by giving
written notice thereof to Tenant, to require Tenant to increase such limit if, in
Landlord’s reasonable judgment, the amount thereof is insufficient to protect the
Landlord Protected Parties and Tenant Protected Parties from judgments which might
result from such claims, demands or actions. Tenant shall cause its liability
insurance to
include contractual liability coverage fully covering the indemnity set forth above
and in Section 13.1 below.
	 
	 	(b)	 	All contents and Tenant’s trade fixtures, machinery, equipment, furniture and
furnishings in the Leased Premises to the extent of at least ninety percent (90%) of
their replacement cost under Standard Fire and Extended Coverage Policy and all other
risks of direct physical loss as insured against under Special Form (“all risk”
coverage). Said insurance shall contain an endorsement waiving the insurer’s right of
subrogation against any Landlord Protected Party.
	 
	 	(c)	 	Tenant Protected Parties from all worker’s compensation claims, including
employer’s liability with minimum limits of $500,000.00 per occurrence.
	 
	 	(d)	 	Landlord and Tenant against breakage of all plate glass utilized in the
improvements on the Leased Premises.
	 
	 	(e)	 	Tenant agrees to maintain, at its own expense, for the benefit of itself,
Tenant’s Protected Parties and Landlord’s Protected Parties, excess and/or umbrella
liability insurance of such types and with limits not less than Twenty Five Million
Dollars ($25,000,000.00) as may be approved by Landlord, insuring against liability for
damage or loss to property, and against liability for personal injury or death, arising
from acts or omissions of Tenant, its agents, employees or invitees. Said excess
and/or umbrella policies shall include all liability policies in Section 6.2(a) and
employer’s liability in Section 6.2(c) as underlying policies.





          Tenant agrees to provide Landlord with notice of any self-insurance programs and Landlord
shall have the right to approve any such programs. Any insurance deductibles or




 









 







self-insurance
amounts shall be the responsibility of Tenant, and any deductibles or self-insurance amounts in
excess of $250,000 shall be approved in advance by Landlord.





	 	6.3	 	Landlord’s Insurance.





          Landlord shall procure and maintain policies of insurance insuring:





	 	(a)	 	Commercial general liability (including products and completed operations) or
other policy forms which would provide similar coverages on behalf of Landlord and
Landlord’s Protected Parties for those claims of bodily injury or property damage
arising from the Real Estate (including all Common Areas and the parking lots therein)
and the operations of the Landlord and Landlord’s Protected Parties. Said liability
insurance policy shall be written on an “occurrence” basis with a combined single limit
of One Million Dollars ($1,000,000.00) per occurrence and not less than Two Million
Dollars ($2,000,000.00) policy aggregate limit, and One Million Dollars ($1,000,000.00)
limit for products and completed operations.
	 
	 	(b)	 	Umbrella liability insurance providing a minimum of Fifty Million Dollars
($50,000,000.00) limit naming the commercial general liability policy (Section
6.3(a)(i)) as an underlying policy.
	 
	 	(c)	 	The building containing the Leased Premises, and any improvements therein,
including Landlord’s Work, against loss or damage by fire, lightning, wind storm, hail
storm, aircraft, vehicles, smoke, explosion, riot or civil commotion as provided by the
Standard Fire and Extended Coverage Policy and all other risks of direct physical loss
as insured against under Special Form (“all risk” coverage). The insurance coverage
shall be for not less than 90% of the full replacement cost of the Leased Premises for
an agreed amount basis with the insurance carrier, with sufficient limits to replace
the Leased Premises of similar utility purpose. Landlord shall be named as the insured
and all proceeds of insurance shall be payable to Landlord. Said insurance shall
contain an endorsement waiving the insurer’s right of subrogation against any Tenant
Protected Party.
	 
	 	(d)	 	Landlord’s business income, protecting Landlord from loss of rents and other
charges during the period while the Leased Premises are untenantable due to fire or
other casualty (for the period reasonably determined by Landlord).
	 
	 	(e)	 	Flood or earthquake insurance whenever, in the reasonable judgment of Landlord,
such protection is necessary and it is available at commercially reasonable cost.
	 
	 	6.4	 	Form of Insurance.





          All of the aforesaid insurance shall be in reputable companies licensed to do business in the
State of Ohio with a minimum A.M. Best rating of “A”. Landlord shall have





 









 







the right to self-insure
and use high deductibles or self-insured retention levels to help control the cost of insurance
premiums. As to Tenant’s insurance, the insurer and the form, substance and amount (where not
stated above) shall be satisfactory from time to time to Landlord and any mortgagee of Landlord,
and shall unconditionally provide that it is not subject to cancellation or non-renewal except
after at least thirty (30) days prior written notice to Landlord and any mortgagee of Landlord.
Originals of Tenant’s insurance policies (or certificates thereof satisfactory to Landlord),
together with satisfactory evidence of payment of the premiums thereon, shall be deposited with
Landlord at the Commencement Date and renewals thereof not less than thirty (30) days prior to the
end of the term of such coverage. Landlord shall have the right, from time to time, to increase
the occurrence limits and/or policy limits of Landlord and/or Tenant hereunder, as Landlord may
reasonably determine.





	 	6.5	 	Insurance Premiums.





          Tenant shall pay to Landlord, as additional rent for the Leased Premises, Tenant’s Pro Rata
Share of any premiums for all property, boiler and machinery, worker’s compensation, crime
insurance, business income and liability insurance (with all endorsements) paid annually by
Landlord with respect to the Real Estate (collectively,
“Insurance Premiums”). Tenant shall be obligated to pay its Pro Rata Share of only those
annual premiums which relate to insurance coverage during the term of this Lease. Subject to the
limitation set forth in Section 4.3, Tenant’s Pro Rata Share of such premiums shall be paid by
Tenant to Landlord in monthly installments in amounts estimated by Landlord. Tenant’s Pro Rata
Share of all insurance costs shall be computed by Landlord within ninety (90) days after the end of
each accounting year (which Landlord may change from time to time). Landlord shall furnish to
Tenant a statement showing in reasonable detail the actual insurance costs incurred during such
accounting year and Tenant’s Pro Rata Share thereof. To the extent Tenant’s Pro Rata Share of such
costs is greater than the sums paid by Tenant for such year, the difference shall be billed to and
paid by Tenant within thirty (30) days after Tenant’s receipt of said bill. Any shortfall shall be
credited against future installments of rent. Tenant’s estimated monthly insurance costs
thereafter may be adjusted by written notice from Landlord.





	 	6.6	 	Fire Protection.





          Tenant shall conform the Leased Premises with all applicable fire codes of any governmental
authority, and with the rules and regulations of Landlord’s fire underwriters and their fire
protection engineers, including, without limitation, the installation and maintenance of adequate
fire extinguishers, and/or any other unique requirements based on Tenant’s occupancy. Landlord
agrees to coordinate the installation and/or modification of the sprinkler systems, alarms and/or
special hazards fire protection for the Leased Premises provided that Tenant shall be responsible
for any additional cost caused solely on account of Tenant’s particular use of the Leased Premises.
Landlord is providing a sprinkler monitoring system with a direct connection to the local fire
department or monitoring service. In the event of impairment of the sprinkler system, the party
discovering such impairment shall immediately notify the other party hereto. During the period of
any such




 









 







impairment or shutdown of the fire protection system(s), Tenant shall cease any operations
which may create any form of flame, spark, combustible risk or explosive atmosphere.




          Tenant shall, upon invoice therefor, reimburse Landlord for Landlord’s costs incurred in
maintaining and repairing any sprinkler or other fire suppression system, such costs to be prorated
based upon Tenant’s proportionate share of the floor space in the Building in which the Leased
Premises is situated. Landlord and Tenant hereby agree that all maintenance and repair on the
sprinkler systems, alarms and/or special hazard fire protection shall be the responsibility of the
Tenant for those systems affording protection to the Leased Premises.





	 	6.7	 	Waiver of Subrogation.





          Landlord and Tenant, and all parties claiming under each of them, mutually release and
discharge each other from all claims and liabilities arising from or caused by any casualty or
hazard covered or required hereunder to be covered in whole or in part by insurance coverage
required to be maintained by the terms of this Lease on the Leased Premises or in connection with
the Real Estate or activities conducted thereon or therewith, and waive any right of subrogation
which might otherwise exist in or accrue to any person
on account thereof, including all other tenants of the Building. All policies of insurance
required to be maintained by the parties hereunder shall contain waiver of subrogation provisions
in accordance with the foregoing so long as the same are available.




	 	6.8	 	Disclaimer of Liability.





          To the extent of the insurance carried by Tenant or required by the terms of this Lease to be
carried by Tenant, Tenant hereby disclaims, and releases Landlord and Landlord’s Protected Parties
from any and all liability, whether in contract or tort (including strict liability and
negligence), for any loss, damage, or injury of any nature whatsoever sustained by Tenant and
Tenant’s Protected Parties, during the term of this Lease. The parties hereby agree that under no
circumstances shall Landlord be liable for indirect, consequential, special, or exemplary damages,
whether in contract or tort (including strict liability and negligence), such as, but not limited
to, loss of revenue or anticipated profits or other damage related to the leasing of the Premises
under this Lease. Tenant shall also hold Landlord and Landlord’s Protected Parties harmless from
and against any and all liability, fines, or other charges incurred as a result of alleged
violations of airport security regulations (FAR parts 107 and 139) by Tenant and Tenant’s Protected
Parties.




          To the extent of the insurance carried by Landlord or required by the terms of this Lease to
be carried by Landlord, Landlord hereby disclaims, and releases Tenant from any and all liability,
whether in contract or tort (including strict liability and negligence), for any loss, damage, or
injury of any nature whatsoever sustained by Landlord and Landlord’s Protected Parties, during the
term of this Lease. The parties hereby agree that under no circumstances shall Tenant be liable
for indirect, consequential, special, or exemplary damages, whether in contract or tort (including
strict liability and negligence), such as, but not limited to, loss of revenue or anticipated
profits or other damage related to this Lease. Landlord shall also hold Tenant and Tenant’s
Protected Parties harmless from and against





 









 







any and all liability, fines, or other charges incurred
as a result of alleged violations of airport security regulations (FAR parts 107 and 139) by
Landlord and Landlord’s Protected Parties.




VII. DAMAGE OR DESTRUCTION





	 	7.1	 	Landlord’s Obligation to Rebuild.





          In the event the Leased Premises are damaged by fire, explosion or other casualty, Landlord
shall commence the repair, restoration or rebuilding thereof within sixty (60) days after such
damage and shall complete such restoration, repair or rebuilding within one
hundred fifty (150) days after the commencement thereof, provided that if construction is
delayed because of changes, deletions, or additions in construction requested by Tenant, strikes,
lockouts, casualties, acts of God, war, material or labor shortages, governmental regulation or
control or other causes beyond the control of Landlord, the period for restoration, repair or
rebuilding shall be extended for the amount of time Landlord is so delayed. If the casualty or the
repair, restoration or rebuilding caused thereby shall render the Leased Premises untenantable, in
whole or in part, rent shall be equitably abated during the period of untenantability and Tenant
shall have no liability for the abated rent. If such a fire, explosion or other casualty damages
the building in which the Leased Premises are located in a material or substantial way during the
last two (2) years of the original Term or the then applicable Option Term, then unless Tenant
exercises an outstanding option for an Option Term, Landlord may, in lieu of repairing, restoring
or rebuilding the same, terminate this Lease within sixty (60) days after the occurrence of the
event causing the damage by notice to Tenant. In such event, the obligation of Tenant to pay rent
and other charges hereunder shall end as of the date when the damage occurred.





	 	7.2	 	Tenant’s Rights After Casualty.





          In the event of any substantial damage or destruction to the Leased Premises, Landlord shall
notify Tenant within thirty (30) days thereafter of the anticipated time to complete the repair,
restoration or rebuilding thereof. In the event the anticipated time is greater than one hundred
fifty (150) days from the date of such casualty, then in such event Tenant shall have the right to
elect to terminate this Lease by notice to Landlord within thirty (30) days after receipt of
Landlord’s estimate of the anticipated time to restore the Leased Premises. Additionally, in the
event any damage or destruction to the Leased Premises is not repaired, restored or rebuilt, as the
case may be, within one hundred fifty (150) days after such damage or destruction, then in such
event Tenant shall have the right and option to elect to terminate this Lease by notice to Landlord
at any time prior to substantial completion of such work by Landlord; provided, however, that upon
receipt of any such notice, Landlord shall have the right to nullify such election by notice to
Tenant so long as Landlord substantially completes the repair, restoration or rebuilding of the
Leased Premises within thirty (30) days after receipt of Tenant’s notice.




 









 








VIII. CONDEMNATION





	 	8.1	 	Taking of Whole.





          If the whole of the Leased Premises shall be taken or condemned for a public or quasi-public
use or purpose by a competent authority, or if such a portion of the Leased Premises shall be so
taken that as a result thereof the balance cannot be used for the same purpose and with
substantially the same utility to Tenant as immediately prior to such taking, then in either of
such events, the Lease term shall terminate upon delivery of possession to the condemning
authority, and any award, compensation or damages (hereinafter sometimes called the “Award”) shall
be paid to and be the sole property of Landlord whether the Award shall be made as compensation for
diminution of the value of the leasehold estate or the fee of the Real Estate or otherwise. Tenant
shall continue to pay rent and other charges hereunder until the Lease term is terminated and any
Impositions and premiums prepaid by Tenant, or which accrue prior to the termination, shall be
adjusted between the parties.





	 	8.2	 	Partial Taking.





          If only a part of the Leased Premises shall be so taken or condemned, but the Lease is not
terminated pursuant to Section 8.1 hereof, Landlord shall repair and restore the Leased Premises
and all improvements thereon, to the extent reasonably practicable, provided that Landlord shall
not hereby be required to expend for repair and restoration any sum in excess of the Award. Any
portion of the Award which has not been expended by Landlord for such repairing or restoration
shall be retained by Landlord as Landlord’s sole property. The rent shall be equitably abated
following delivery of possession to the condemning body. If the portion of the building within
which the Leased Premises are located shall be so taken or condemned in a material or substantial
way, Landlord may terminate this Lease by giving written notice thereof to Tenant within sixty (60)
days after such taking. In such event, the Award shall be paid to and be the sole property of
Landlord except that Tenant shall be entitled to the unamortized portion of the cost of Tenant’s
alterations or improvements performed after the first Lease Year, if any, in the same manner and
under the same conditions as set forth in Section 8.1 above.





	 	8.3	 	Temporary Taking.





          If the whole or a part of the Leased Premises shall be taken or condemned for a public or
quasi-public use or purpose by a competent authority, but only on a temporary basis, then in such
event this Lease shall continue in full force and effect, without any abatement of rent whatsoever,
but the Award paid on account of such temporary taking shall be paid to Tenant in full satisfaction
of all claims of Tenant on account thereof.





	 	8.4	 	Payment to Tenant.





          Notwithstanding the provisions of this Article VIII, in the event of a termination of this
Lease on account of a taking, then in such event Landlord agrees that Tenant may prosecute a claim
in such condemnation proceeding for (a) the reasonable relocation and





 









 







moving costs incurred by
Tenant on account thereof, (b) the unamortized balance of Tenant’s leasehold improvements to the
Leased Premises, which balance shall be
calculated by amortizing such costs on a straight-line basis over the initial fifteen (15)
year Lease term, and (c) the value of the remaining leasehold interest of Tenant for the then
existing term of this Lease. Tenant agrees that it shall not have the right to claim any other
compensation in such proceeding.




IX. MAINTENANCE AND ALTERATIONS





	 	9.1	 	Landlord’s Maintenance.
	 
	 	(a)	 	Landlord shall perform all maintenance, repairs and replacements of the roof,
including the heat/smoke evacuation fans and vents, the utility lines (as the same may
be upgraded by Tenant) leading to the Leased Premises up to the point of entry, the
foundation, floor slabs, parking and dock areas and all exterior and structural
components of the Leased Premises (unless caused by Tenant’s use of or alterations to
the Leased Premises). Subject to the limitation set forth in Section 4.3, Tenant shall
pay to Landlord Tenant’s Pro Rata Share of the costs and expenses incurred by Landlord
in fulfilling its obligations under this Section 9.1 pursuant to the reimbursement
provisions set forth in Section 14.2 below, except that, subject to Section 6.1(d)
hereof, if the necessity for any such maintenance, repairs or replacements results from
any act or omission or negligence of Tenant, its agents, employees, contractors,
customers or invitees, Tenant shall pay to Landlord all of the costs and expenses
incurred by Landlord in performing such work. Such payment shall be additional rent
hereunder and shall be paid to Landlord within thirty (30) days after Landlord bills
Tenant therefor. Landlord shall, in any event, have ten (10) days after notice from
Tenant stating the need for repairs to commence such repairs (unless an emergency in
which event Landlord shall proceed forthwith), and Landlord shall thereafter proceed
with due diligence to complete same.
	 
	 	(b)	 	Notwithstanding the provisions of Paragraph (a) above, Landlord shall not be
obligated to repair the following: (i) the dock doors, dock seals or dock bumpers, (ii)
elevators or material lifts, (iii) exterior or interior of any doors, windows and plate
glass surrounding the Leased Premises; (iv) HVAC in the Leased Premises, except as set
forth in Section 9.3 below; and (v) damage to Tenant’s improvements or personal
property caused by any casualty, burglary, break-in, vandalism, war or act of God.
Landlord represents and
warrants that as of the completion of Landlord’s Work in the initial Leased Premises
and as of the delivery to Tenant of the additional portions of the Leased Premises
that the items in (ii) and (iii) above are in good working order and repair.
	 
	 	9.2	 	Tenant’s Maintenance.






          Except as provided in Section 9.1 and 9.3 hereof, Tenant shall keep and



 









 






maintain the
entire interior of the Leased Premises, specifically including, without limitation, pipes
and conduits in good condition and repair and all interior utility systems exclusively
serving the Leased Premises. Landlord shall assign to Tenant any existing warranties
covering all matters to be repaired and maintained by Tenant. Tenant shall keep the Leased
Premises from falling out of repair or deteriorating and shall keep the same safe, secure
and clean and in full compliance with all health and safety regulations in force. Nothing
in Section 1.6(a) shall be deemed to limit Tenant’s obligation under this Section 9.2.
Tenant shall promptly remove any debris left by Tenant, its employees, agents, contractors
or invitees in the parking area or other exterior areas of the Real Estate. Tenant agrees
to cooperate with any other tenants on the Real Estate in connection with exterior
maintenance and repairs not performed by Landlord hereunder to the end that any exterior
repairs and maintenance will be performed in a uniform manner acceptable to Landlord. In
connection therewith, Tenant and such other tenants may agree among themselves as to the
allocation of costs and responsibilities.




	 	9.3	 	HVAC Maintenance, Repair and Replacement.





          Landlord shall deliver all the heating, ventilating and air conditioning units and related
equipment and elements (collectively, “HVAC”) in the initial Leased Premises and in each additional
portion of the Leased Premises to Tenant on the Delivery Date in good working order and condition
as of the date of delivery of same to Tenant. Thereafter, Tenant shall maintain the HVAC at
Tenant’s cost and shall also maintain a preventative maintenance program with a service level at
least as set forth in that Mechanical Equipment Inventory dated October 4, 2007 prepared by
Engineering Excellence, Inc. Tenant shall perform any needed repairs to the HVAC, and Landlord
shall reimburse Tenant for the cost of such repairs only to the extent that during Lease Years 1
through 5, either (i) the repair cost for any individual unit exceeds $2,000 per repair occurrence,
or (ii) the collective cost of repair for all units exceeds $10,000 annually during Lease Years 1
and 2 or $20,000 annually during Lease Years 3, 4 and 5. Upon receipt of a reasonably detailed
invoice from Tenant, Landlord shall reimburse Tenant within 30 days.




          If replacement of HVAC units or elements is required, as determined by Tenant in Tenant’s
reasonable judgment, then Tenant shall perform such replacement. For replacements occurring in (i)
Lease Years 1 and 2, Landlord shall reimburse Tenant 100% of the cost of such replacements, (ii)
Lease Years 3, 4 and 5, Landlord shall reimburse Tenant 50% of the cost of such replacements, and
(iii) Lease Year 6 and thereafter, Landlord shall have no obligation to reimburse Tenant.
Notwithstanding the foregoing, if
Tenant performs any replacement of HVAC units or elements that may be capitalized under
generally accepted accounting principles, then Landlord shall reimburse Tenant for the portion of
the cost of such replacement calculated as follows: the cost of such replacement shall be
amortized over its useful life on a straight-line basis (but in no event less than 120 months), and
Landlord’s portion shall be the per month cost multiplied by the number of months of useful life in
excess of the months remaining in the Term or Option Term as the case may be. Upon receipt of a
reasonably detailed invoice from Tenant, Landlord shall reimburse Tenant within 30 days.




 









 









	 	9.4	 	Alterations.
	 
	 	(a)	 	Subsequent to the completion of Landlord’s Work, Tenant shall thereafter make
all additions, improvements and alterations on the Leased Premises, and on and to the
appurtenances and equipment thereof, required on account of Tenant’s particular use of
the Leased Premises and required by any governmental authority or which may be made
necessary by the act or neglect of Tenant, its employees, agents or contractors, or any
persons, firm or corporation claiming by, through or under Tenant. Tenant shall also
be entitled to construct non-load bearing partition walls without Landlord’s consent.
Except as provided in the immediately preceding sentences, Tenant shall not create any
openings in the roof or exterior walls, or make any other exterior or structural
alterations to the Leased Premises (hereinafter “Alterations”) without Landlord’s prior
written consent, which consent shall not be unreasonably withheld by Landlord. Any
alterations or improvements by Tenant which alter the location of partition walls, fire
walls or other fire protection shall require the prior written consent of the Landlord,
which consent shall not be unreasonably withheld.
	 
	 	(b)	 	As to any Alterations which Tenant is required hereunder to perform or to which
Landlord consents and as to work performed pursuant to Article XVIII hereof, such work
shall be performed with new materials, in a workman-like manner, strictly in accordance
with plans and specifications therefor first approved in writing by Landlord, which
approval shall not be unreasonably withheld, and in accordance with all applicable
Laws. Tenant shall, prior to the commencement of such work, deliver to Landlord copies
of all required permits, and builders risk (or installation floater) insurance coverage
to the extent of the cost of the Alterations. Tenant shall permit Landlord to monitor
construction operations in connection with such work, and to restrict, as may
reasonably be required, the passage of manpower and materials, and the conducting of
construction activity in order to avoid unreasonable disruption, hazard or
inconvenience to Landlord or other tenants of the Real Estate or to Permitted Parties
or damage to the Real Estate or the Leased Premises. Upon completion of any such work
by or on behalf of Tenant, Tenant shall provide Landlord with such documents as
Landlord may reasonably require (including, without limitation, sworn contractors’
statements and supporting lien waivers) evidencing payment in full for such work, and
“as built” working
drawings or final working drawings marked by the general contractor to show changes
made in the field. In the event Tenant performs any work not in compliance with the
provisions of this Section 9.3(b), Tenant shall, upon written notice from Landlord,
immediately remove such work and restore the Leased Premises to their condition
immediately prior to the performance thereof. If Tenant fails so to remove such
work and restore the Leased Premises as aforesaid, Landlord may, at its option, and
in addition to all other rights or remedies of Landlord under this Lease, at law or
in equity, enter the Leased Premises and perform said obligation of Tenant and
Tenant shall




 









 






	 	 	 	reimburse Landlord for the cost to the Landlord thereof, immediately
upon being billed therefor by Landlord. Such entry by Landlord shall not be deemed
an eviction or disturbance of Tenant’s use or possession of the Leased Premises nor
render Landlord liable in any manner to Tenant.
	 
	 	(c)	 	In no event shall Tenant be entitled to use the roof of the Leased Premises or
any other roof on the Real Estate without the prior written consent of Landlord, which
consent may be granted or withheld in Landlord’s sole discretion. In the event Tenant
obtains Landlord’s consent to utilize the roof of the Leased Premises or any other roof
of a building on the Real Estate, Tenant shall only use Landlord’s roofing contractor
for all purposes for which Landlord has consented.
	 
	 	(d)	 	All improvements and Alterations made to the Leased Premises by Tenant shall,
immediately upon attachment to the Leased Premises or installation thereof, be deemed
the property of Landlord and Tenant shall have no further right or claim to the title
thereof.
	 
	 	(e)	 	Tenant shall have the right upon written notice to Landlord to install
satellite equipment upon the roof of the Leased Premises, subject to Landlord’s
approval of the equipment and the manner of installation, which approval shall not be
unreasonably withheld or delayed. Tenant agrees to indemnify and hold harmless
Landlord and Landlord’s Protected Parties from any loss, cost or expense (including
damage to property and injury to person) arising out of the installation, maintenance,
operation, repair, replacement and removal of such equipment. Tenant further agrees
that such equipment shall not (i) violate any Laws, including, without limitation,
those promulgated by the Federal Aviation Administration (“FAA”), (ii) interfere with
any other tenants located at the Columbus International Aircenter, or (iii) result in
an unsightly condition. Tenant shall be fully responsible for the maintenance and
repair of such equipment and shall remove such equipment at the expiration or early
termination of the Term of the Lease.





X. ASSIGNMENT AND SUBLETTING





	 	10.1	 	Consent Required.
	 
	 	(a)	 	Tenant may assign, sublet, convey or mortgage its leasehold interest in the
Leased Premises only with the consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed, and Tenant shall remain fully liable
hereunder. If Tenant assigns the Lease or enters into any sublease of the Leased
Premises, Tenant shall deliver written notice thereof to Landlord within thirty (30)
days after the effective date thereof. Any proposed assignment or sublease shall be
expressly subject to the terms, conditions and covenants of this Lease and the use of
such sublessee or assignee shall be compatible with the general character of the Real
Estate. Any proposed assignment shall contain a written assumption by assignee of




 









 






	 	 	 	all
of Tenant’s obligations under this Lease. Any sublease shall (i) provide that the
sublease is subject and subordinate to this Lease; (ii) provide that the sublessee
shall procure and maintain the insurance required of Tenant in accordance with the
terms of Section 6.2(b) and Section 9.4(b) hereof, and (iii) provide for a copy to
Landlord of notice of default by either party.
	 
	 	(b)	 	No permitted assignment shall be effective and no permitted sublease shall
commence unless and until any default by Tenant hereunder shall have been cured. No
permitted assignment or subletting shall relieve Tenant from Tenant’s obligations and
agreements hereunder and Tenant shall continue to be liable as a principal and not as a
guarantor or surety to the same extent as though no assignment or subletting had been
made.
	 
	 	10.2	 	Other Transfer of Lease.





          Tenant shall not allow or permit any transfer of this Lease, or any interest hereunder, by
operation of law, or convey, mortgage, pledge, or encumber this Lease or any interest therein.




XI. LIENS AND ENCUMBRANCES





	 	11.1	 	Encumbering Title.





          Tenant shall not do any act which shall in any way encumber the title of Landlord in and to
the Leased Premises or the Real Estate, nor shall the interest or estate of Landlord in the Leased
Premises or the Real Estate be in any way subject to any claim by way of lien or encumbrance,
whether by operation of law or by virtue of any express or implied contract by Tenant. Any claim
to, or lien upon, the Leased Premises or the Real Estate arising from any act or omission of Tenant
shall accrue only against the leasehold estate of Tenant and shall be subject and subordinate to
the paramount title and rights of Landlord in and to the Leased Premises and the Real Estate.
Tenant shall have the option to record a Notice of Commencement, approved in advance by Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed.





	 	11.2	 	Liens and Right to Contest.





          Tenant shall not permit the Leased Premises or the Real Estate to become subject to any
mechanics’, laborers’ or materialmen’s lien on account of labor or material furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any character performed or
claimed to have been performed on the Leased Premises by, or at the direction or sufferance of
Tenant. In the event a mechanic’s lien is filed against the Leased Premises or the Real Estate
due to work performed by or on behalf of Tenant, Tenant shall discharge or bond off same within
fifteen (15) days from Tenant’s receipt of written evidence of the filing thereof. If Tenant fails
to discharge or bond off said lien, Landlord may bond off or pay same without inquiring into the
validity or merits of such lien, and all sums so advanced shall be paid on demand by Tenant as
additional rent. Tenant hereby agrees to indemnify and hold Landlord harmless for any liability,
cost, damage and




 









 







expense occasioned by any mechanic’s lien filed against the Leased Premises or the
Real Estate on account of labor or material furnished to Tenant or claimed to have been furnished
to Tenant in connection with the Leased Premises or the Real Estate.




XII. UTILITIES





	 	12.1	 	Utilities.
	 
	 	(a)	 	Prior to the Commencement Date, Landlord shall provide water, sewer, electric
and gas service to the Leased Premises. Tenant acknowledges that electric, gas, water
and sewer utilities for the Leased Premises are provided by Landlord and billed by
Landlord or its agent to Tenant (i) for water and sewer service, as calculated below in
Section 12.1(d), and (ii) for electric and gas service based upon Tenant’s
proportionate share computed by multiplying the cost of gas and electrical service for
Building 3 of the Columbus International Aircenter by a fraction the numerator of which
is the square footage of the Premises and the denominator of which is the square
footage of said Building 3, which building square footage for purposes of this Section
12.1 shall be 811,000 square feet. Landlord shall not be liable for the quality or
quantity of or interference involving any such utilities. During the term hereof,
whether the Leased Premises are occupied or unoccupied, Tenant agrees to maintain heat
sufficient to heat the Leased Premises so as to avert any damage to the Leased Premises
on account of cold weather.
	 
	 	(b)	 	Except as provided herein, Landlord shall not be liable in damages or otherwise
for any failure or interruption of any utility service being furnished to the Leased
Premises. In the event any utility service to the Leased Premises shall be interrupted
(a) for seventy-two (72) hours or more or (b) due to the negligent act or omission of
the Landlord, its agents, contractors, or employees, rent and all charges payable
hereunder shall equitably abate until such services are fully restored.
	 
	 	(c)	 	Tenant agrees to be responsible for its rubbish removal for the Leased
Premises.
	 
	 	(d)	 	Tenant’s obligation to Landlord for water and sewer utilities shall be 100% for
the Leased Premises and 33.3% for the future Leased Premises not then delivered to
Tenant. Tenant’s obligation shall be computed as the sum of (i) Tenant’s Pro Rata
Share for usage of water and sewer utilities, plus (ii) one-third of the Pro Rata Share
for usage of water and sewer utilities for an area equal to 811,000 sf minus the then
leaseable area of the Leased Premises. Simultaneous with the billing to Tenant of its
water and sewer charges for the Leased Premises, Landlord shall provide Tenant with
details regarding the calculations used by Landlord in computing Tenant’s proportionate
share of same. Tenant shall pay for such usage within 30 days of receipt of a
reasonably detailed invoice therefore from Landlord.




 









 











XIII. INDEMNITY





	 	13.1	 	Indemnity.





          Tenant will protect, indemnify and save harmless Landlord Protected Parties (as defined in
Section 6.1) from and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses)
imposed upon or incurred by or asserted against Landlord by reason of (i) any failure on the part
of Tenant to perform or comply with any of the terms of this Lease; (ii) performance of any labor
or services or the furnishing of any materials or other property in respect of the Leased Premises
or any part thereof; (iii) any violations or alleged violations of airport security regulations by
Tenant and all Permitted Parties of Tenant; (iv) any use of the Leased Premises by Tenant,
including but not limited to, the use of electronic or radar monitoring or transmission equipment
or related transmissions; or (v) any and all liability, fines or other charges incurred as a result
of alleged violations of airport or aviation security regulations by Tenant and its Permitted
Parties. In case any action, suit or proceeding is brought against Landlord by reason of any
occurrence described in this Section 13.1, Tenant will, at Tenant’s expense, by counsel approved by
Landlord, resist and defend such action, suit or proceeding, or cause the same to be resisted and
defended. The costs indemnified against hereunder and assumed under Article VI include, without
limitation, any claims due to loss suffered by the Landlord, Landlord’s other tenants, the
Permitted Parties, the Columbus Regional Airport Authority, the tenants of the Columbus Airport
Authority, or the City of Columbus, Ohio. The obligations of Tenant under this Section 13.1 shall
survive the expiration or earlier termination of this Lease.




          Landlord will protect, indemnify and save harmless Tenant Protected Parties (as defined in
Section 6.1) from and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses)
imposed upon or incurred by or asserted against Tenant by reason of (i) any failure on the part of
Landlord to perform or comply with any of the terms of this Lease, (ii) performance of any labor or
services or the furnishing of any materials or other property in respect of the Leased Premises or
any part thereof by Landlord, or (iii)
any violations or alleged violations of airport security regulations by Landlord and all
Permitted Parties of Landlord. In case any action, suit or proceeding is brought against Tenant by
reason of any occurrence described in this Section 13.1, Landlord will, at Landlord’s expense, by
counsel approved by Tenant, resist and defend such action, suit or proceeding, or cause the same to
be resisted and defended. The costs indemnified against hereunder and assumed under Article VI
include, without limitation, any claims due to loss suffered by the Tenant, the Permitted Parties,
the Columbus Regional Airport Authority, the tenants of the Columbus Regional Airport Authority, or
the City of Columbus, Ohio. The obligations of Landlord under this Section 13.1 shall survive the
expiration or earlier termination of this Lease.





 









 








XIV. RIGHTS RESERVED TO LANDLORD





	 	14.1	 	Rights Reserved to Landlord.





          Without limiting any other rights reserved or available to Landlord under this Lease, at law
or in equity, Landlord, on behalf of itself and Agent reserves the following rights to be exercised
at Landlord’s election:





	 	(a)	 	Upon reasonable advance notice to inspect the Leased Premises;
	 
	 	(b)	 	Upon reasonable advance notice and with appropriate supervision, to show the
Leased Premises to prospective purchasers, mortgagees, or other persons having a
legitimate interest in viewing the same, and, at any time within one (1) year prior to
the expiration of the Lease term, to persons wishing to rent the Leased Premises;
	 
	 	(c)	 	During the last year of the Lease term, to place and maintain the usual “For
Rent” sign on the Real Estate (but not in or on the Leased Premises), and at any time
during the Lease term to place and maintain “For Sale” signs on the Real Estate (but
not in or on the Leased Premises); and
	 
	 	(d)	 	If Tenant shall theretofore have vacated the Leased Premises (but not earlier
than during the last ninety (90) days of the Lease term), to decorate, remodel, repair,
alter or otherwise prepare the Leased Premises for new occupancy.
	 
	 	(e)	 	To promulgate rules and regulations for the operation and use of the Common
Areas, including the parking areas for the common use and benefit of the tenants of the
Real Estate and their customers and invitees. Subject to the limitations set forth in
Section 21.17 regarding parking and access, Landlord shall at all times have exclusive
control of the Common Areas and may at any time and from time to time: (i) modify and
amend reasonable rules and regulations for the use of the Common Areas, which rules and
regulations shall be binding upon the Tenant upon delivery of a copy thereof to the
Tenant; (ii) temporarily close any part of the Common Areas, including but not limited
to closing the streets, sidewalks, road or other facilities to the extent necessary to
prevent a dedication thereof or the accrual of rights of any person or of the public
therein; (iii) exclude and restrain anyone from the use or occupancy of the Common
Areas or any part thereof except bona fide employees, invitees, guests, customers and
suppliers of the tenants of the Real Estate who use said areas in accordance with the
rules and regulations established by Landlord; (iv) engage others to operate and
maintain all or any part of the Common Areas, on such terms and conditions as Landlord
shall, in its sole judgment, deem reasonable and proper; and (v) make such changes in
the Common Areas as in its opinion are in the best interest of the Real Estate,
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 flow of traffic and establishing prohibited areas.
	 
	 	(f)	 	Remove any obstructions in the Common Areas created or permitted by Tenant,
including towing vehicles parked in restricted parking zones at Tenant’s sole cost and
expense.




Upon reasonable advance notice and with appropriate supervision, Landlord may enter upon the Leased
Premises for any and all of said purposes and may exercise any and all of the foregoing rights
hereby reserved, during normal business hours unless an emergency exists, without being deemed
guilty of any eviction or disturbance of Tenant’s use or possession of the Leased Premises, and
without being liable in any manner to Tenant.





	 	14.2	 	Maintenance Costs.
	 
	 	(a)	 	Subject to the limitation set forth in Section 4.3, Tenant shall pay to
Landlord, as additional rental, in monthly installments based on Landlord’s estimates,
from time to time, simultaneously with payment of minimum rental called for under
Article IV, Tenant’s Pro Rata Share of the “Maintenance Cost” for the operation,
maintenance, repair and replacement of the Common Areas and
those costs incurred by Landlord pursuant to Section 9.1 above.
	 
	 	(b)	 	The Maintenance Costs for the Common Areas shall be computed on an accrual
basis, and shall include all costs incurred by Landlord in connection with operating,
securing, maintaining, repairing and replacing the Common Areas, including by way of
example but not limitation: (i) cost of labor (including workmen’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) to the extent not
included in Section 12.1(b), 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 the Common Areas; (v) the cost of repairing and/or replacing
paving, curbs, walkways, parking lots, markings, directional or other signs;
landscaping, and drainage and lighting facilities; (vi) rental paid for maintenance of
machinery and equipment; (vii) to the extent not included in Section 6.5, cost of
insurance for public liability and property insurance and boiler and machinery
insurance for property in the Common Areas which are not part of the building, and
crime insurance; (viii) one-half (1/2) of all costs properly chargeable to a capital
account and (ix) a reasonable allowance to Landlord for Landlord’s supervision, which
allowance shall not in an accounting year exceed ten percent (10%) of the total of all
Maintenance Costs (excluding item (vii) above) for such accounting year (all of the
foregoing are collectively referred to herein as “Maintenance Costs.” Maintenance Costs
shall not include greater than one-half (1/2) of any costs incurred by Landlord properly
chargeable to a capital account.
	 
	 	(c)	 	Landlord shall maintain accurate and detailed records of all Maintenance




 









 






	 	 	 	Costs for the Common Areas.
	 
	 	(d)	 	Tenant’s Pro Rata Share of all Maintenance Costs shall be computed by Landlord
within ninety (90) days after the end of each accounting year (which Landlord may
change from time to time). Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual Maintenance Costs incurred during such accounting year and
Tenant’s Pro Rata Share thereof. To the extent Tenant’s Pro Rata Share of such costs
is greater than the sums paid by Tenant for such year, the difference shall be billed
to and paid by Tenant within thirty (30) days after Tenant’s receipt of said bill. Any
shortfall shall be credited against future installments of rent. Tenant’s estimated
monthly Maintenance Costs thereafter may be adjusted by written notice from Landlord.





XV. QUIET ENJOYMENT





	 	15.1	 	Quiet Enjoyment.





          So long as Tenant is not in default under the covenants and agreements of this Lease, Tenant’s
quiet and peaceable enjoyment of the Leased Premises shall not be disturbed or interfered with by
Landlord or by any person claiming by, through or under Landlord.




XVI. SUBORDINATION OR SUPERIORITY





	 	16.1	 	Subordination or Superiority.
	 
	 	(a)	 	This Lease is subject and subordinate to the lien of any deed of trust,
mortgage or mortgages now placed upon Landlord’s interest in the Real Estate. Landlord
shall use good faith efforts to obtain a commercially reasonable non-disturbance
agreement for Tenant from its existing lender on or before the Rent Commencement Date.
The parties agree that the non-disturbance agreement attached hereto as Exhibit
D is commercially
reasonable. In the event Tenant has not received a fully executed commercially
reasonable non-disturbance agreement within six (6) months from the date of this
Lease, Tenant’s obligation to pay Annual Rent (but not Additional Rent) hereunder
shall be deferred commencing upon the expiration of such six (6) month period until
such time as said non-disturbance agreement is fully executed and delivered to
Tenant.
	 
	 	(b)	 	Landlord reserves the right to subject and subordinate this Lease at all times
to the lien of any deed of trust, mortgage or mortgages hereafter placed upon
Landlord’s interest in the Leased Premises; provided, however, that no default by
Landlord, under any deed of trust, mortgage or mortgages, shall affect Tenant’s rights
under this Lease, so long as Tenant performs the obligations imposed upon it hereunder
and is not in default hereunder, and Tenant attorns to the holder of such deed of trust
or mortgage, its assignee




 









 






	 		 	or the purchaser at any foreclosure sale. Tenant shall
execute a commercially reasonable instrument presented to Tenant for the purpose of
effecting such subordination so long as the subordination is substantially in the form
attached as Exhibit D. It is a condition, however, to the subordination and
lien provisions herein provided, that Landlord shall procure from any such mortgagee an
agreement in writing, 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 its part to be kept and performed under the terms of this
Lease and is not in default under the terms hereof, its tenancy will not be disturbed
nor this Lease affected by any default under such mortgage.
	 
	 	(c)	 	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 Leased Premises upon notice of such mortgagee’s name and address from
Landlord. Furthermore, such mortgagee shall have the same rights to cure any default
on the part of Landlord that Landlord would have had.





XVII. SURRENDER





	 	17.1	 	Surrender.





          Upon the termination of this Lease, whether by forfeiture, lapse of time or otherwise, or upon
termination of Tenant’s right to possession of the Leased Premises, Tenant will at once surrender
and deliver up the Leased Premises, together with all improvements thereon, to Landlord, in good
condition and repair, reasonable wear and tear and loss by fire or other casualty excepted;
conditions existing because of Tenant’s failure to perform maintenance, repairs or replacements as
required herein, or because of Tenant’s particular use of the Leased Premises (even if permitted
pursuant to Section 1.6(a) hereof), shall not be deemed “reasonable wear and tear.” Tenant shall
deliver to Agent all keys to all doors therein. As used herein, the term “improvements” shall
include, without limitation, all plumbing, lighting, electrical, heating, cooling and ventilating
fixtures and equipment, and all Alterations (as said term is defined in Section 9.4 hereof) whether
or not permitted under said Section 9.4. All alterations, including the Alterations, improvements
and additions, temporary or permanent, made in or upon the Leased Premises by Tenant, or made by
Landlord on Tenant’s behalf, shall become Landlord’s property immediately upon installation thereof
and shall remain upon the Leased Premises on any such termination without compensation, allowance
or credit to Tenant; provided, however, that Landlord shall have the right to require Tenant to
remove any alterations, including the Alterations, and to restore the Leased Premises to their
condition prior to the making of any such alterations, repairing any damage occasioned by such
removal and restoration, unless Landlord has consented to the installation thereof, in which event
no such removal may be required by Landlord. If Landlord requires removal of any alterations and
Tenant does not make such removal in accordance with this Section at the time of such termination,
or within thirty (30) days after such request, whichever is later, Landlord may remove the same
(and repair any damage occasioned thereby), and dispose thereof or, at its election, deliver the
same to





 









 







any other place of business of Tenant or warehouse the same. Tenant shall pay the
reasonable costs of such removal, repair, delivery and warehousing to Landlord on demand.





	 	17.2	 	Removal of Tenant’s Property.





          Upon the termination of this Lease by lapse of time, Tenant shall remove Tenant’s articles of
personal property incident to Tenant’s business (“Trade Fixtures”); provided, however, that Tenant
shall repair any damage to the Leased Premises which may result from such removal, and shall
restore the Leased Premises to the same condition as prior to the installation thereof. If Tenant
does not remove Tenant’s Trade Fixtures from the Leased Premises prior to the expiration or earlier
termination of the Lease Term, Landlord, may, at its option, remove the same (and repair any damage
occasioned thereby) and dispose thereof or deliver the same to any other place of business of
Tenant or warehouse the same, and Tenant shall pay the cost of such removal, repair, delivery and
warehousing
to Landlord on demand, or Landlord may treat such Trade Fixtures as having been conveyed to
Landlord with this Lease as a bill of sale, without further payment or credit by Landlord to
Tenant.





	 	17.3	 	Holding Over.





          Tenant shall have no right to occupy the Leased Premises or any portion thereof after the
expiration of the Lease or after termination of the Lease or of Tenant’s right to possession
pursuant to Section 19.2 hereof. In the event Tenant or any party claiming by, through or under
Tenant holds over, Landlord may exercise any and all remedies available to it at law or in equity
to recover possession of the Leased Premises. For each month or partial month that Tenant or any
party claiming by, through or under Tenant remains in occupancy of all or any portion of the Leased
Premises after the expiration of the Lease or after termination of the Lease or Tenant’s right to
possession, Tenant shall pay monthly rental at a rate equal to 125% of the rate of rent and other
charges payable by Tenant hereunder immediately prior to the expiration or other termination of the
Lease or of Tenant’s right to possession. The acceptance by Landlord of any lesser sum shall be
construed as a payment on account and not in satisfaction of damages for such holding over.




XVIII. ENVIRONMENTAL CONDITIONS





	 	18.1	 	“Environmental Condition” Defined.





          As used in this Lease, the phrase “Environmental Condition” shall mean: (a) any adverse
condition relating to surface water, ground water, drinking water supply, land, surface or
subsurface strata or the ambient air, and includes, without limitation, air, land and water
pollutants, noise, vibration, light and odors, or (b) any condition which may result
in a claim of liability under the Comprehensive Environment Response Compensation and
Liability Act, as amended (“CERCLA”), or the Resource Conservation and Recovery Act (“RCRA”), or
any claim of violation of the Clean Air Act, the Clean Water Act, the Toxic Substance Control Act
(“TOSCA”), or (c) any claim of liability or of violation under any





 









 







federal statute hereafter
enacted dealing with the protection of the environment or with the health and safety of employees
or members of the general public, or under any rule, regulation, permit or plan under any of the
foregoing, or under any Laws now or hereafter promulgated by the state in which the Leased Premises
are located, or any political subdivision thereof, relating to such matters (collectively
“Environmental Laws”). Except as disclosed to Tenant in writing prior to the execution of this
Lease in the (i) Building 3, Columbus International Aircenter, Project EC 072607 by Edgecon, Inc.
dated August 28, 2007, and (ii) Building 3 Air Sampling Reports — August 2007, Columbus,
International Aircenter, Columbus, Ohio by Brown and Caldwell Ohio LLC dated September 5, 2007,
Landlord hereby represents and warrants to Tenant that there is no Environmental Condition known to
Landlord which would prevent the use of the Building by Tenant for the Purpose or adversely affect
any of Tenant’s employees, contractors, agents, invitees.





	 	18.2	 	Compliance by Tenant.





          Tenant shall, at all times during the Lease term, comply with all Environmental Laws
applicable to the Leased Premises and shall not, in the use and occupancy of the Leased Premises,
cause or contribute to, or permit or suffer any other party to cause or contribute to any
Environmental Condition on or about the Leased Premises. Tenant shall not, however, be responsible
for environmental conditions existing prior to Tenant’s possession of the Leased Premises except
for Tenant’s acts or omissions that worsen, in any way, said conditions, and only to the extent of
the worsening. Landlord shall use its best efforts to cause its predecessor in interest, the
United States of America, to be responsible for all monitoring, remediation or other obligations
regarding the pre-existing Environmental Conditions which it is to perform. Landlord shall be
responsible for all pre-existing Environmental Conditions other than those which the United States
of America is to perform. In the event that the United States of America fails to perform as
provided above, Landlord agrees that Landlord and not Tenant shall be responsible for said
pre-existing Environmental Conditions. Without limiting the generality of the foregoing, Tenant
shall not, without the prior written consent of Landlord, receive, keep, maintain or use on or
about Leased Premises any substance as to which a filing with a local emergency planning committee,
the State Emergency Response Commission or the fire department having jurisdiction over the Leased
Premises is required pursuant to ‘311 and/or ‘312 of the Comprehensive Environmental Response,
Compensation or Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization
Act of 1986 (“SARA”) (which latter Act includes the Emergency Planning and Community Right-To-Know
Act of 1986); in the event Tenant makes a filing pursuant to SARA or maintains substances as to
which a filing would be required, Tenant shall simultaneously deliver copies thereof to Agent, or
notify Agent in writing of the presence of those substances.





	 	18.3	 	Environmental Indemnity.





          Tenant shall protect, indemnify and save harmless Landlord, Agent and all of their respective
members, directors, officers, employees and agents from and against all liabilities, obligations,
claims damages, penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys’ fees and expenses) of whatever kind or nature, contingent or otherwise, known
or unknown, incurred or imposed, based upon any




 









 







Environmental Laws or resulting from any
Environmental Condition on or about the Leased Premises which occurs due to the acts or omissions
of Tenant or the Permitted Parties of Tenant (“Tenant Contamination”). In case any action, suit or
proceeding is brought against any of the parties indemnified herein by reason of any Tenant
Contamination, Tenant will, at Tenant’s expense, by counsel reasonably approved by Landlord, resist
and defend such action, suit or proceeding, or cause the same to be resisted and defended. The
obligations of Tenant under this Section 18.3 shall survive the expiration or earlier termination
of this Lease, and Tenant shall, notwithstanding a termination of this Lease, continue to pay rent
for the Leased Premises in the same amount paid during the last year of the term hereof until such
time as all remediation work required to cure such matter has been completed.




          Landlord shall protect, indemnify and save harmless Tenant and all of its respective members,
directors, officers, employees and agents from and against all liabilities, obligations, claims
damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable
attorneys’ fees and expenses) of whatever kind or nature, contingent or otherwise, known or
unknown, incurred or imposed, based upon any Environmental Laws or resulting from any Environmental
Condition on or about the Leased Premises which occurs due to the acts or omissions of Landlord or
the Permitted Parties of Landlord (“Landlord Contamination”). In case any action, suit or
proceeding is brought against any of the parties indemnified herein by reason of any Landlord
Contamination, Landlord will, at Landlord’s expense, by counsel reasonably approved by Tenant,
resist and defend such action, suit or proceeding, or cause the same to be resisted and defended.
During any remediation necessitated of any Landlord Contamination, the rent payable hereunder shall
be equitably adjusted to the extent of any material adverse interference with Tenant’s use and
occupancy of the Leased Premises. The obligations of Landlord under this Section 18.3 shall
survive the expiration or earlier termination of this Lease.





	 	18.4	 	Testing and Remedial Work.





          Landlord may conduct tests and routine audits on or about the Leased Premises for the purpose
of determining the presence of any Environmental Condition. If such tests and/or audits indicate
the presence of an Environmental Condition on or about the Leased Premises which occurs due to the
acts or omissions of Tenant or its Permitted Parties, Tenant shall, in addition to its other
obligations hereunder, reimburse Landlord for the cost of conducting such tests. Without limiting
Tenant’s liability under Section 18.3 hereof, in the event of any such Environmental Condition,
Tenant shall promptly and at its sole cost and expense, take any and all steps necessary to remedy
the same, complying with all provisions of applicable Laws and with Section 9.4(b) hereof. If
Tenant fails to promptly remedy same, then Tenant shall deposit with Landlord an amount sufficient
to cause the
remediation of same, based upon Landlord’s reasonable estimate of the cost thereof, and upon
completion of such work by Landlord, Tenant shall pay to Landlord any shortfall promptly after
Landlord bills Tenant therefor, or Landlord shall promptly refund to Tenant any excess deposit, as
the case may be. Additionally, pursuant to a deed filed for record on October 17, 1997 as
Instrument Number 199710170122033, Recorder’s Office, Franklin County, Ohio (“Deed”), it is the
obligation of the United States of America to undertake certain environmental remediation on the
Real Estate, which obligation may interfere with Tenant’s use of the Leased Premises. Tenant
agrees to make no claim against the United




 









 







States of America as a result of such interference so
long as such remediation is in accordance with the terms of the Deed.




XIX. REMEDIES





	 	19.1	 	Defaults.





          Tenant agrees that any one or more of the following events shall be considered events of
default as said term is used herein:





	 	(a)	 	Tenant shall be adjudged an involuntary bankrupt, or a decree or rider
approving, as properly filed, a petition or answer filed against Tenant asking
reorganization of Tenant under the Federal bankruptcy laws as now or hereafter amended,
or under the Laws of any state, shall be entered, and any such decree or judgment or
order shall not have been vacated or set aside within sixty (60) days from the date of
entry or granting thereof; or
	 
	 	(b)	 	Tenant shall file or admit the jurisdiction of the court and the material
allegations contained in any petition in bankruptcy or any petition pursuant to
or purporting to be pursuant to the Federal bankruptcy laws as now or hereafter
amended, or Tenant shall institute any proceeding or shall give its consent to the
institution of any proceedings for any relief of Tenant under any bankruptcy or
insolvency laws or any laws relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangements, composition or extension; or
	 
	 	(c)	 	Tenant shall make any assignment for the benefit of creditors or shall apply
for or consent to the appointment of a receiver for Tenant or any of the property of
Tenant; or
	 
	 	(d)	 	The Leased Premises are levied upon by any revenue officer or similar officer
on account of the actions of Tenant; or
	 
	 	(e)	 	A decree or order appointing a receiver of the property of Tenant shall be made
and such decree or order shall not have been vacated or set aside within sixty (60)
days from the date of entry or granting thereof;
	 
	 	(f)	 	Tenant shall abandon the Leased Premises during the term hereof; or
	 
	 	(g)	 	Tenant shall default in any payment of rent or in any other payment required to
be made by Tenant hereunder when due as herein provided (all of which other payments
shall be deemed “additional rent” payable hereunder), or shall default under Sections
6.1 or 6.2 hereof, and any such default shall continue for five (5) business days after
notice thereof in writing to Tenant; or
	 
	 	(h)	 	Tenant shall fail to contest the validity of any lien or claimed lien and give
security to Landlord to assure payment thereof, or, having commenced to contest the
same and having given such security, shall fail to prosecute such




 









 






	 	 	 	contest with
diligence, or shall fail to have the same released and satisfy any judgment rendered
thereon, and such default continues for ten (10) days after notice thereof in writing
to Tenant; or
	 
	 	(i)	 	Tenant shall default in keeping, observing or performing any of the other
covenants or agreements herein contained to be kept, observed and performed by Tenant,
and such default shall continue for thirty (30) days after notice thereof in writing to
Tenant, provided, however, that if the nature of such default is such that the same
cannot reasonably be cured within a thirty (30) day period, Tenant shall not be deemed
to be in default if it shall commence such cure within such thirty (30) day period and
thereafter rectify and cure such default with due diligence; or
	 
	 	(j)	 	Tenant shall default under any agreement with the Columbus Regional Airport
Authority, the Federal Aviation Administration, the Ohio Environmental Protection
Agency, or with any other governmental entity with respect to its operation and use of
the Leased Premises.
	 
	 	(k)	 	Tenant shall violate any provision of the Declaration of Restrictions and
Easements and such violation shall continue for fifteen (15) days after notice
thereof from Landlord to Tenant.
	 
	 	19.2	 	Remedies.





          Upon the occurrence of any one or more of such events of default, Landlord may at its election
terminate this Lease or terminate Tenant’s right to possession only, without terminating the Lease.
Upon termination of the Lease, or upon any termination of Tenant’s right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the Leased Premises
immediately, and deliver possession thereof to Landlord, and hereby grants to Landlord the full and
free right, without demand or notice of any kind to Tenant except as hereinabove expressly provided
for, to enter into and upon the Leased Premises in such event with or without process of law and to
repossess the Leased Premises by force, self-help or otherwise without process of law as Landlord’s
former estate and to expel or remove Tenant and any other who may be occupying or within the Leased
Premises without being deemed in any manner guilty of trespass, eviction, or forcible entry or
detainer, without incurring any liability for any damages resulting therefrom and without
relinquishing Landlord’s rights to rent or any other right given to Landlord hereunder or by
operation of law. Upon termination of the Lease, Landlord shall be entitled to recover as damages
all rent and other sums due and payable by Tenant on the date of termination, plus (a) an amount
equal to the value of the rent and other sums provided herein to be paid by Tenant for the residue
of the stated term hereof, less the fair rental value of the Leased Premises for the residue of the
stated term (taking into account the time and expenses necessary to obtain a replacement tenant or
tenants, including expenses hereinafter described relating to recovery of the Leased Premises,
preparation for reletting and for reletting itself), and (b) the cost of performing any other
covenants to be performed by Tenant. If Landlord elects to terminate Tenant’s right to possession
only without terminating the Lease, Landlord may, at Landlord’s option, enter into the Leased





 









 







Premises, remove Tenant’s signs and other evidences of tenancy, and take and hold possession
thereof as hereinabove provided, without such entry and possession terminating the Lease or
releasing Tenant, in whole or in part, from Tenant’s obligations to pay the rent hereunder for the
full term or from any other of its obligations under this Lease. Landlord may relet all or any
part of the Leased Premises for such rent and upon such terms as shall be satisfactory to Landlord
(including the right to relet the Leased Premises for a term greater or lesser than that remaining
under the Lease term, and the right to relet the Leased Premises as a part of a larger area, and
the right to change the character or use made of the Leased Premises). For the purpose of such
reletting, Landlord may decorate or make any repairs, changes, alterations or additions in or to
the Leased Premises that may be necessary or convenient. If Landlord does not relet the Leased
Premises, notwithstanding good faith efforts to do so, Tenant shall continue to pay to Landlord on
demand the monthly rent due hereunder, and other sums provided herein to be paid by Tenant. If the
Leased Premises are relet and a sufficient sum shall not be realized from such reletting after
paying all of the expenses of such decorations, repairs, changes, alterations, additions, the
expenses of such reletting and the collection of the rent accruing therefrom (including, but not by
way of limitation, attorneys’ fees and brokers’ commissions), to satisfy the rent and other charges
herein provided to be paid for the remainder of the Lease term, Tenant shall pay to Landlord on
demand any deficiency and
Tenant agrees that Landlord shall use reasonable efforts to mitigate its damages arising out
of Tenant’s default; Landlord shall not be deemed to have failed to use such reasonable efforts by
reason of the fact that Landlord has leased or sought to lease other vacant premises owned by
Landlord, whether on the Real Estate or not, in preference to reletting the Leased Premises, or by
reason of the fact that Landlord has sought to relet the Leased Premises at a rental rate higher
than that payable by Tenant under the Lease (but not in excess of the then current market rental
rate). If Tenant shall default under Section 19.1(i) and if such default cannot with due diligence
be cured within said period of thirty (30) days after notice in writing shall have been given to
Tenant, and if Tenant promptly commences to eliminate such default, and vigorously pursues such
cure to completion thereafter, then Landlord shall not have the right to declare said term ended by
reason of such default or to repossess without terminating the Lease so long as Tenant is
proceeding diligently and with reasonable dispatch to take all steps and do all work required to
cure such default, and does so cure such default, provided, however, that the curing of any default
in such manner shall not be construed to limit or restrict the right of Landlord to declare the
said term ended or to repossess without terminating the Lease, and to enforce all of its rights and
remedies hereunder for any other default not timely cured.





	 	19.3	 	Remedies Cumulative.





          No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered to
exclude or suspend any other remedy but the same shall be cumulative and shall be in addition to
every other remedy given hereunder, or now or hereafter existing at law or in equity or by statute,
and every power and remedy given by this Lease to Landlord may be exercised from time to time and
so often as occasion may arise or as may be deemed expedient.





 









 









	 	19.4	 	No Waiver.





          No delay or omission of Landlord to exercise any right or power arising from any default shall
impair any such right or power to be construed to be a waiver of any such default or any
acquiescence therein. No waiver of any breach of any of the covenants of this Lease shall be
construed, taken or held to be a waiver of any other breach, or as a waiver, acquiescence in or
consent to any further or succeeding breach of the same covenant. The acceptance by Landlord of
any payment of rent or other charges hereunder after the termination by Landlord of this Lease or
of Tenant’s right to possession hereunder shall not, in the absence of agreement in writing to the
contrary to Landlord, be deemed to restore this Lease or Tenant’s right to possession hereunder, as
the case may be, but shall be construed as a payment on account, and not in satisfaction of damages
due from Tenant to Landlord.





	 	19.5	 	Intentionally Deleted.
	 
	 	19.6	 	Delinquent Rent.





          In the event Tenant shall be late in the payment of rent or other charges required to be paid
hereunder more than two (2) times in any twelve (12) calendar month period
(provided notice of such payment or other monetary default shall have been given to Tenant,
but regardless of whether Tenant shall have timely cured any such payment or other defaults of
which notice was given), and in addition to the other remedies set forth herein, Tenant shall pay
to Landlord, as liquidated damages, ten percent (10%) of such delinquent amount, together with such
delinquent amount.




XX. SECURITY DEPOSIT




[Intentionally Deleted]




XXI. MISCELLANEOUS





	 	21.1	 	Intentionally Deleted.
	 
	 	21.2	 	Estoppel Certificates.





          Landlord and Tenant shall, at any time and from time to time upon not less than ten (10) days’
prior written request from the other, execute, acknowledge and deliver to the requesting party, in
form reasonably satisfactory to the requesting party, a written statement certifying (if true) that
Tenant has accepted the Leased Premises, that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force and effect as modified and
stating the modifications), that the other party is not in default hereunder, the date to which the
rental and other charges have been paid in advance, if any, whether Tenant has any rights of setoff
or self-help under this
Lease, and such other accurate certifications as may reasonably be required by the requesting
party or its mortgagee, agreeing to give copies to any mortgagee of all notices required under this





 









 







Lease and agreeing to afford the requesting party’s mortgagee a reasonable opportunity to cure any
default. It is intended that any such statement delivered pursuant to this subsection may be
relied upon by any prospective purchaser or mortgagee of the Leased Premises or Real Estate and
their respective successors and assigns.





	 	21.3	 	Landlord’s and Tenant’s Right to Cure/Landlord Default.





          Landlord may, but shall not be obligated to, cure any default by Tenant (specifically
including, but not by way of limitation, Tenant’s failure to obtain insurance, make repairs, or
satisfy lien claims); and whenever Landlord so elects, all costs and expenses paid by Landlord in
curing such default, including without limitation reasonable attorneys’ fees, shall be so much
additional rent due on the next rent date after such payment together with interest (except in the
case of said attorneys’ fees) at the highest rate then payable by Tenant in the State of Ohio, or,
in the absence of such a maximum rate, at a rate per annum equal to four percent (4%) in excess of
the announced prime rate of interest of National City Bank of Columbus, Columbus, Ohio in effect on
the date of such advance, from the date of the advance to the date of repayment by Tenant to
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 failure continues for thirty (30) days after
written notice thereof from Tenant to Landlord, shall constitute a default by Landlord under this
Lease, provided, however, that if the nature of such default is such that the same cannot
reasonably be cured within a thirty (30) day period, Landlord shall not be deemed to be in default
if it shall commence such cure within such thirty (30) day period and thereafter rectify and cure
such default with due diligence.




          Tenant may, but shall not be obligated to, cure any default by Landlord solely with respect to
the Leased Premises (specifically including, but not by way of limitation, Landlord’s failure to
obtain insurance or make repairs); and whenever Tenant so elects, all reasonable costs and expenses
are paid by Tenant in curing such default, including without limitation reasonable attorney’s fees,
shall be reimbursed by Landlord to Tenant within thirty (30) days after demand therefor, together
with copies of all invoices evidencing such expenditures, together with interest (except in the
case of said attorneys’ fees) at the highest rate then payable by Landlord in the State of Ohio,
or, in the absence of such a maximum rate, at a rate per annum equal to four percent (4%) in excess
of the announced prime rate of interest of National City Bank of Columbus, Columbus, Ohio in effect
on the date of such advance, from the date of the advance to the date of repayment by Landlord to
Tenant. In the event Landlord fails to reimburse Tenant within such thirty (30) days, Tenant shall
have the option to deduct the reasonable cost of the cure from twenty-five percent (25%) of the
rent and charges otherwise due hereunder. Tenant shall also have any and all rights available under
the Laws of the state in which the Leased Premises are situated.





	 	21.4	 	Amendments Must Be in Writing.





          This document contains the entire agreement between the parties hereto with respect to the
subject matter hereof. None of the covenants, terms or conditions of this





 









 







Lease, to be kept and
performed by either party, shall in any manner be altered, waived, modified, changed or abandoned
except by a written instrument, duly signed and delivered by both parties hereto.





	 	21.5	 	Notices.





          Whenever under this Lease provisions are made for notice of any kind, it shall be deemed
sufficient notice and sufficient service thereof if such notice is in writing, addressed to
Landlord or Tenant, respectively, at the addresses set forth in Section 1.6(j) and (k), and
deposited in the United States mail by certified mail, return receipt requested, with postage
prepaid or Federal Express, Express Mail or such other expedited mail service as normally results
in overnight delivery. 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.





	 	21.6	 	Short Form Lease.





          This Lease shall not be recorded, but the parties agree, at the request of either of them, to
execute a Memorandum of Lease for recording, containing the names of the parties, the legal
description and the term of the Lease, similar in form and substance to that attached hereto as
Exhibit F.





	 	21.7	 	Time of Essence.





          Time is of the essence of this Lease, and all provisions herein relating thereto shall be
strictly construed.





	 	21.8	 	Relationship of Parties.





          Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third
party, as creating the relationship of principal and agent or of partnership, or of joint venture,
by the parties hereto, it being understood and agreed that no provision contained in this Lease or
any acts of the parties hereto shall be deemed to create any relationship other than the
relationship of Landlord and Tenant.





	 	21.9	 	Captions.





          The captions of this Lease are for convenience only and are not to be construed as part of
this Lease and shall not be construed as defining or limiting in any way the scope or intent of
the provisions hereof.





	 	21.10	 	Severability.





          If any term or provision of this Lease shall to any extent be held invalid or unenforceable,
the remaining terms and provisions of this Lease shall not be affected thereby, but each term and
provision of this Lease shall be valid and be enforced to the fullest extent permitted by Laws.





 









 









	 	21.11	 	Law Applicable.





          This Lease shall be construed and enforced in accordance with the Laws of the state where the
Leased Premises are located.





	 	21.12	 	Covenants Binding on Successors.





          All of the covenants, agreements, conditions, and undertakings contained in this Lease shall
extend and inure to and be binding upon the heirs, executors, administrators, successors and
assigns of the respective parties hereto, the same as if they were in every case specifically
named, and wherever in this Lease reference is made to either of the parties hereto, it shall be
held to include and apply to, wherever applicable, the heirs, executors, administrators, successors
and assigns of such party. Nothing herein contained shall be construed to grant or confer upon any
person or persons, firm, corporation or governmental authority, other than the parties hereto,
their heirs, executors, administrators, successors and assigns, any right, claim or privilege by
virtue of any covenant, agreement, condition or undertaking in this Lease contained.





	 	21.13	 	Brokerage.





          Landlord and Tenant each represent to the other that they have not entered into any agreement
or incurred any obligation in connection with this transaction which might result in the obligation
to pay a brokerage commission. Landlord and Tenant hereby covenant to pay, hold harmless,
indemnify and defend the other party from and against any and all costs, expenses or liability for
any compensation, commissions and charges claimed by any broker or agent with respect to this Lease
or the negotiation thereof on account of the actions of the indemnifying party.





	 	21.14	 	Landlord Means Owner.





          The term “Landlord” as used in this Lease, so far as covenants or obligations on the part of
Landlord are concerned, shall be limited to mean and include only the owner or owners at the time
in question of the fee of the Real Estate, and in the event of any transfer or transfers of the
title to such fee, Landlord herein named (and in case of any subsequent transfer or conveyances,
the then grantor) shall be automatically freed and relieved, from and after the date of such
transfer or conveyance, of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be performed; provided
that any funds in the hands of such Landlord or the then grantor at the time of such transfer, in
which Tenant has an interest, shall be
turned over to the grantee, and any amount then due and payable to Tenant by Landlord or the
then grantor under any provisions of this Lease shall be paid to Tenant.





	 	21.15	 	Lender’s Requirements.





          If any mortgagee or committed financier of Landlord should require, as a condition precedent
to the closing of any loan or the disbursal of any money under any loan, that this





 









 







Lease be amended
or supplemented in any manner (other than in the description of the Leased Premises, the term, the
purpose or the rent or other changes hereunder, or in any other regard as will substantially or
materially affect the rights of Tenant under this Lease), Landlord shall give written notice
thereof to Tenant, which notice shall be accompanied by a Lease Supplement Agreement embodying such
amendments and supplements. Tenant shall, within ten (10) days after the effective date of
Landlord’s notice, either consent to such amendments and supplements (which consent shall not be
unreasonably withheld) and execute the tendered Lease Supplement Agreement, or deliver to Landlord
a written statement of its reason or reasons for refusing to so consent and execute. Failure of
Tenant to respond within said ten (10) day period shall be a default under this Lease without
further notice.





	 	21.16	 	Signs.






Tenant’s signage shall require Landlord’s prior written consent, which shall be in
Landlord’s discretion. Tenant shall be responsible for obtaining all permissions,
approvals, permits and licenses required or deemed necessary by Tenant relating to the
signs desired by Tenant. Landlord shall reasonably cooperate with Tenant’s efforts;
provided however, all such cooperation shall be at Tenant’s expense.




	 	21.17	 	Parking Areas; Truck Trailer Parking Lease.
	 
	 	(a)	 	It is understood by and between the parties hereto that parking on the Real
Estate, unless as otherwise specifically designated by Landlord as exclusive parking,
is allocated to the tenants thereof on an unreserved basis. Throughout the term of
this Lease, Landlord shall provide to Tenant, its employees and invitees the continuous
use of not less than four hundred (400) automobile parking spaces within the area (the
“Tenant Parking Area”) bounded (A) on the north by the northerly property line of the
fee parcel containing the Leased Premises, (B) on the east by a line created by
extending the centerline of Yearling Road northward to said property line, (C) on the
south by the northerly right of way of East Fifth Avenue, and (D) on the west by Airway
Drive . Prior to August 1, 2008, Landlord shall reseal and restripe the automobile
parking lots to the north and south of the Leased Premises. Landlord agrees that (i)
Tenant shall have continuous truck access to the loading dock areas on the north side
of the Leased Premises and the west side of the Leased Premises to the extent that such
are immediately adjacent to and contiguous with such portions of the building than a
part of the Leased Premises; (ii) Landlord shall not cause or allow,
and shall use all commercially reasonable efforts to prevent, any material adverse
interference with Tenant’s use of the DSW Access Route (as identified on Exhibit
E) for two-way truck traffic on a continuous basis, 24 hour per day, 7 days per
week, 365 days per year; provided however, that notwithstanding the foregoing,
Landlord may temporarily re-route Tenant’s truck traffic during periods of
Landlord’s construction within the Columbus International Aircenter so long as (x)
Landlord reasonably minimizes the




 









 






	 	 	 	duration and interference of such re-routing, and
(y) such re-routing is within the Columbus International Aircenter and does not
utilize any public roadways; (iii) the passenger automobile parking areas to the
immediate south and west of the Leased Premises shall have lighting not less than a
minimum foot candle level of one (1) foot candle per square foot, and (iv) Landlord
shall not otherwise materially adversely affect parking, ingress, egress or access
to the Leased Premises.
	 
	 	(b)	 	Notwithstanding Section 21.17(a), Landlord shall have the right to restrict
Tenant’s use of the portion of parking area labeled on Exhibit E as the “Future
Reserve Area” by giving Tenant 90 days advance notice.
	 
	 	21.18	 	Force Majeure.





          In the event either party hereto (the “Delayed Party”) shall be delayed or hindered in or
prevented 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 of
restrictive governmental Laws or regulations, riots, insurrection, war, acts of terrorism or other
reason of a like nature not the fault of the Delayed Party in performing work or doing acts
required under the terms of this Lease, then performance of such act shall be excused for the
period of the delay, and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay, provided that the Delayed Party notified the other
party within fifteen (15) days of the Delayed Party being informed of the occurrence of the event
causing such delay. The provisions of this section shall not operate to excuse either party from
the payment of any monetary sums due under the terms of this Lease.





	 	21.19	 	Landlord’s and Tenant’s Expenses.





          Tenant agrees to pay on demand Landlord’s expenses, including reasonable attorneys’ fees,
expenses and administrative hearing and court costs incurred either directly or indirectly in
enforcing any obligation of Tenant under this Lease, in curing any default by Tenant as provided in
Section 19.2 hereof or in connection with appearing, defending or otherwise participating in any
action or proceeding arising from the filing, imposition, contesting, discharging or satisfaction
of any lien or claim for lien, in defending or otherwise participating in any legal proceedings
initiated by or on behalf of Tenant wherein Landlord is not adjudicated to be in default under this
Lease, or in connection with any investigation or review of any conditions or documents in the
event Tenant requests
Landlord’s agreement, approval or consent to any action of Tenant which may be desired by
Tenant or required of Tenant hereunder.




          Landlord agrees to pay on demand Tenant’s expenses, including reasonable attorneys’ fees,
expenses and administrative hearing and court costs incurred either directly or indirectly in
enforcing any obligation of Landlord under this Lease, in curing any default by Landlord in the
Leased Premises or in connection with appearing, defending or otherwise participating in any action
or proceeding arising from the filing, imposition,




 









 







contesting, discharging or satisfaction of any
lien or claim for lien, in defending or otherwise participating in any legal proceedings initiated
by or on behalf of Landlord wherein Tenant is not adjudicated to be in default under this Lease, or
in connection with any investigation or review of any conditions or documents in the event Landlord
requests Tenant’s agreement, approval or consent to any action of Landlord which may be desired by
Landlord or required of Landlord hereunder.





	 	21.20	 	Execution of Lease by Landlord.





          The submission of this document for examination and negotiation does not constitute an offer
to lease, or a reservation of, or option for, the Leased Premises and this document shall become
effective and binding only upon the execution and delivery hereof by Landlord and by Tenant. All
negotiations, considerations, representations and understandings between Landlord and Tenant are
incorporated herein.





	 	21.21	 	Exculpatory Clause.





          Except with respect to any damages resulting from the gross negligence of Landlord, its
agents, or employees, Landlord shall not be liable to Tenant, its agents, employees, or customers
for any damages, losses, compensation, accidents, or claims whatsoever. The foregoing
notwithstanding, it is expressly understood and agreed that nothing in this Lease contained shall
be construed as creating any liability whatsoever against Landlord personally, its members,
officers, directors, shareholders or partners, and in particular without limiting the generality of
the foregoing, there shall be no personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained, or to keep, preserve or
sequester any property of Landlord, and that all personal liability of Landlord of every sort, if
any, is hereby expressly waived by Tenant, to the extent permitted by law, and by every person now
or hereafter claiming any right or security hereunder; and that so far as the parties hereto are
concerned, the owner of any indebtedness or liability accruing hereunder shall look solely to the
Leased Premises for the payment thereof.




          If the Tenant obtains a money judgment against Landlord, any of its officers, directors,
shareholders, partners, or their successors or assigns under any provisions of or with respect to
this Lease or on account of any matter, condition or circumstance arising out of the relationship
of the parties under this Lease, Tenant’s occupancy of the building or Landlord’s ownership of the
Leased Premises, Tenant shall be entitled to have execution upon any such final, unappealable
judgment only upon Landlord’s fee simple estate in the Real Estate and the rents and profits
thereof, and not out of any other assets
of Landlord, or any of its members, officers, directors, shareholders or partners, or their
successor or assigns; and Landlord shall be entitled to have any such judgment so qualified as to
constitute a lien only on said fee simple estate and the rents and profits thereof.





	 	21.22	 	Airport Access.





          Except as set forth in the parking agreements between Landlord and the Columbus Regional Air
Authority, Tenant acknowledges that it shall have no right of access to Port





 









 







Columbus International
Airport by virtue of this Lease. Any such access shall be pursuant to the terms of a separate
agreement between Tenant and the Columbus Regional Airport Authority. In the event Tenant enters
into such an agreement with the Columbus Regional Airport Authority, Tenant agrees to abide by all
of the terms and conditions thereof, and Tenant shall indemnify Landlord in the event of any
liability to Landlord on account of Tenant’s non-compliance therewith.





	 	21.23	 	Amendments to Other Leases; Failure of Lenders to Consent.
	 
	 	(a)	 	Landlord, 4300 Venture 6729 LLC (Landlord’s affiliate) and DSW Inc. (Tenant’s
affiliate) shall execute simultaneously with this Lease an amendment to each of (i)
that certain Industrial Space Lease — Net dated March 22, 2000, as assigned and
amended, between 4300 East Fifth Avenue LLC, successor in interest to 4300 Venture 6729
LLC and Shonac Corporation n/k/a DSW Inc. for 4150 East Fifth Avenue, Columbus, Ohio
43219 (Aircenter Building No. 6), and (ii) that certain Office Space Lease — Net
dated November 30, 2006 between Landlord and DSW Inc. for 810 DSW Drive, Columbus, Ohio
43219 (Aircenter Building No. 4). The effect of such amendments shall be to limit to
Three and 00/100ths percent (3.00%) the annual increase of the sum of Tenant’s Prorata
Share of Maintenance Costs and Insurance Premiums (as defined in each respective lease)
under each respective lease; provided however, such cap shall not apply to Tenant’s Pro
Rata share of Impositions or of Landlord’s costs for snow and ice removal. Landlord
represents to Tenant that the lenders’ consents of said Landlord’s affiliates are
required for said lease amendments. Landlord shall use all due diligence and
commercially reasonable efforts in good faith to obtain any necessary lender’s
approvals to such amendments.
	 
	 	(b)	 	In the event that the lenders’ consents required under section 21.23 cannot be
obtained, or in the event that said lender(s) require modification of said amendment(s)
prior to giving consent(s), then:






	 	(i)	 	Landlord shall indemnify, defend and hold harmless Tenant for
all costs, expenses, losses, damages, judgments, injuries, liabilities,
penalties, including but not limited to increased expenses or other damages
related to or arising from said lenders’ failure to consent or Landlord’s
lender’s required modifications to this Lease, but
specifically excluding indirect, incidental and consequential damages, and
	 
	 	(ii)	 	As to the amendment(s) contemplated in subsections (a)(i) and
(a)(ii) above relating to the 3% cap on increases in certain expenses, Landlord
and Tenant shall negotiate in good faith and agree upon such equitable
adjustments under this Lease to give Tenant the net economic benefit of said
proposed amendment(s).





 









 






	 	(c)	 	Also simultaneously with this Lease and said amendments, 4300 East Fifth Avenue
LLC (Landlord’s affiliate) and DSW Inc. shall execute an amendment to that certain
Trailer Parking Lot Lease Agreement dated November 30, 2006 the effect of which is to
finalize the amount of the Tenant Reimbursement to be $224,759.80 (as defined in
Section 6 of said agreement). Landlord represents and warrants to Tenant that no
lender consent is required for the amendment contemplated by this Section 21.23(c).
	 
	 	21.24	 	Consent.




          Whenever this Lease requires the consent of either party hereto, such consent shall not be
unreasonably withheld, delayed or conditioned; provided, however, that this provision shall not
apply where a specific standard is otherwise set forth for granting or withholding consent in this
Lease.





	 	21.25	 	Lease Guaranty.





          Simultaneous with the execution of this Lease, Tenant’s corporate parent, DSW Inc., an Ohio
corporation, shall execute a Lease Guaranty in the form of Exhibit G, to induce Landlord to
enter into this Lease.




[signatures appear on the following page]




 









 








     IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and year first above
written.



	 	 	 	 	 
	 	LANDLORD:

4300 VENTURE 34910 LLC,

a Delaware limited liability company

 	 
	 	By: 	4300 EAST FIFTH AVENUE LLC, 	 
	 	 	an Ohio limited liability company,
 	 
	 	 	its Member 	 
	 
	 	 	 
	 	By:  	JUBILEE-AIRCENTER, L.L.C., 	 
	 	 	a Delaware limited liability company, 	 
	 	 	its Managing Member 	 
	 
	 	 	 
	 	By:  	JUBILEE LIMITED PARTNERSHIP, 	 
	 	 	an Ohio limited partnership, 	 
	 	 	its Managing Member 	 
	 
	 	 	 
	 	By:  	SCHOTTENSTEIN PROFESSIONAL 	 
	 	 	ASSET MANAGEMENT CORPORATION,

a  Delaware corporation,	 
	 	 	its General Partner 	 
	 
	 	 	 
	 	By: 	/s/ Jay
Schottenstein	 
	 	 	Print Name:  	Jay
Schottenstein 	 
	 	 	Title:  	President 	 
	 
	 	TENANT:

eTAILDIRECT LLC,

an Ohio limited liability company

 	 
	 	By:  	/s/ William
L. Jordan	 
	 	 	Print Name:  	William
L. Jordan 	 
	 	 	Title:  	VP/General
Councel