EX-10.54



 





Exhibit 10.54




L E A S E




	 	 	 
	LANDLORD:

	 	AMERICAN SIGNATURE, INC.
	 

	 	1800 Moler Road
	 

	 	Columbus, Ohio 43207
	 
	 	 
	TENANT:

	 	DSW SHOE WAREHOUSE, INC.
	 

	 	4150 East Fifth Avenue
	 

	 	Columbus, Ohio 43219
	 
	 	 
	PREMISES:

	 	Approximately 23,556 square feet at
	 

	 	Lincoln Plaza, Middletown Township, Bucks County,
	 

	 	Pennsylvania






 









 






TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	SECTION 1.

	 	PREMISES
	 	 	1
	 
	 	 	 	 	 	 
	SECTION 2.

	 	TERM
	 	 	2	 
	 
	 	 	 	 	 	 
	SECTION 3.

	 	COMMENCEMENT DATE
	 	 	2	 
	 
	 	 	 	 	 	 
	SECTION 4.

	 	RENEWAL OPTIONS
	 	 	4
	 
	 	 	 	 	 	 
	SECTION 5.

	 	MINIMUM RENT
	 	 	4
	 
	 	 	 	 	 	 
	SECTION 6.

	 	PERCENTAGE RENT
	 	 	5
	 
	 	 	 	 	 	 
	SECTION 7.

	 	TITLE ENCUMBRANCES
	 	 	7
	 
	 	 	 	 	 	 
	SECTION 8.

	 	RIGHT TO REMODEL
	 	 	7
	 
	 	 	 	 	 	 
	SECTION 9.

	 	UTILITIES
	 	 	8
	 
	 	 	 	 	 	 
	SECTION 10.

	 	GLASS
	 	 	8
	 
	 	 	 	 	 	 
	SECTION 11.

	 	PERSONAL PROPERTY
	 	 	8
	 
	 	 	 	 	 	 
	SECTION 12.

	 	RIGHT TO MORTGAGE
	 	 	9
	 
	 	 	 	 	 	 
	SECTION 13.

	 	SUBLEASE OR ASSIGNMENT
	 	 	9
	 
	 	 	 	 	 	 
	SECTION 14.

	 	COMMON AREAS
	 	 	10
	 
	 	 	 	 	 	 
	SECTION 15.

	 	OPERATION OF COMMON AREAS
	 	 	10
	 
	 	 	 	 	 	 
	SECTION 16.

	 	COMMON AREA MAINTENANCE, TENANT’S SHARE
	 	 	10
	 
	 	 	 	 	 	 
	SECTION 17.

	 	EMINENT DOMAIN
	 	 	12
	 
	 	 	 	 	 	 
	SECTION 18.

	 	TENANT’S TAXES
	 	 	13
	 
	 	 	 	 	 	 
	SECTION 19.

	 	RISK OF GOODS
	 	 	13
	 
	 	 	 	 	 	 
	SECTION 20.

	 	USE AND OCCUPANCY
	 	 	13
	 
	 	 	 	 	 	 
	SECTION 21.

	 	NUISANCES
	 	 	15
	 
	 	 	 	 	 	 
	SECTION 22.

	 	WASTE AND REFUSE REMOVAL
	 	 	15
	 
	 	 	 	 	 	 
	SECTION 23.

	 	DESTRUCTION OF PREMISES
	 	 	15
	 
	 	 	 	 	 	 
	SECTION 24.

	 	LANDLORD REPAIRS
	 	 	16
	 
	 	 	 	 	 	 
	SECTION 25.

	 	TENANT’S REPAIRS
	 	 	17
	 
	 	 	 	 	 	 
	SECTION 26.

	 	COVENANT OF TITLE AND PEACEFUL POSSESSION
	 	 	18
	 
	 	 	 	 	 	 
	SECTION 27.

	 	TENANT’S AND LANDLORD’S INSURANCE; INDEMNITY
	 	 	19
	 
	 	 	 	 	 	 
	SECTION 28.

	 	REAL ESTATE TAXES
	 	 	22
	 
	 	 	 	 	 	 
	SECTION 29.

	 	TENANT’S INSURANCE CONTRIBUTION
	 	 	23
	 
	 	 	 	 	 	 
	SECTION 30.

	 	FIXTURES
	 	 	24
	 
	 	 	 	 	 	 
	SECTION 31.

	 	SURRENDER
	 	 	24
	 
	 	 	 	 	 	 
	SECTION 32.

	 	HOLDING OVER
	 	 	24






i









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	SECTION 33.

	 	NOTICE
	 	 	24
	 
	 	 	 	 	 	 
	SECTION 34.

	 	DEFAULT
	 	 	24
	 
	 	 	 	 	 	 
	SECTION 35.

	 	WAIVER OF SUBROGATION
	 	 	28
	 
	 	 	 	 	 	 
	SECTION 36.

	 	LIABILITY OF LANDLORD; EXCULPATION
	 	 	28
	 
	 	 	 	 	 	 
	SECTION 37.

	 	RIGHTS CUMULATIVE
	 	 	29
	 
	 	 	 	 	 	 
	SECTION 38.

	 	MITIGATION OF DAMAGES
	 	 	29
	 
	 	 	 	 	 	 
	SECTION 39.

	 	SIGNS
	 	 	29
	 
	 	 	 	 	 	 
	SECTION 40.

	 	ENTIRE AGREEMENT
	 	 	29
	 
	 	 	 	 	 	 
	SECTION 41.

	 	LANDLORD’S LIEN — DELETED BY INTENTION
	 	 	29
	 
	 	 	 	 	 	 
	SECTION 42.

	 	BINDING UPON SUCCESSORS
	 	 	29
	 
	 	 	 	 	 	 
	SECTION 43.

	 	HAZARDOUS SUBSTANCES
	 	 	30
	 
	 	 	 	 	 	 
	SECTION 44.

	 	TRANSFER OF INTEREST
	 	 	31
	 
	 	 	 	 	 	 
	SECTION 45.

	 	ACCESS TO PREMISES
	 	 	31
	 
	 	 	 	 	 	 
	SECTION 46.

	 	HEADINGS
	 	 	31
	 
	 	 	 	 	 	 
	SECTION 47.

	 	NON-WAIVER
	 	 	32
	 
	 	 	 	 	 	 
	SECTION 48.

	 	SHORT FORM LEASE
	 	 	32
	 
	 	 	 	 	 	 
	SECTION 49.

	 	ESTOPPEL CERTIFICATE
	 	 	32
	 
	 	 	 	 	 	 
	SECTION 50.

	 	MASTER LEASE CONTINGENCIES
	 	 	32
	 
	 	 	 	 	 	 
	SECTION 51.

	 	PROVISIONS WITH RESPECT TO MASTER LEASE
	 	 	33
	 
	 	 	 	 	 	 
	SECTION 52.

	 	BROKER
	 	 	33
	 
	 	 	 	 	 	 
	SECTION 53.

	 	UNAVOIDABLE DELAYS
	 	 	34
	 
	 	 	 	 	 	 
	SECTION 54.

	 	TIMELY EXECUTION OF LEASE
	 	 	34
	 
	 	 	 	 	 	 
	SECTION 55.

	 	ACCORD AND SATISFACTION
	 	 	34
	 
	 	 	 	 	 	 
	SECTION 56.

	 	WAIVER OF JURY TRIAL
	 	 	34
	 
	 	 	 	 	 	 
	SECTION 57.

	 	LEASEHOLD FINANCING
	 	 	35
	 
	 	 	 	 	 	 
	SECTION 58.

	 	TENANT’S REIMBURSEMENT
	 	 	35






LIST OF EXHIBITS:




	 	 	 
	EXHIBIT “A-1”

	 	SITE PLAN
	EXHIBIT “A-2”

	 	LEGAL DESCRIPTION
	EXHIBIT “B”

	 	LANDLORD’S WORK
	EXHIBIT “C”

	 	TENANT’S WORK
	EXHIBIT “D”

	 	EXISTING USE EXCLUSIVES AND PROHIBITED USES
	EXHIBIT “E”

	 	TENANT PROTOTYPICAL SIGNAGE






ii









 





L E A S E



THIS AGREEMENT OF LEASE, made this 15th day of December, 2006, by and between American Signature,
Inc. (hereinafter referred to as “Landlord”), with offices at 1800 Moler Road, Columbus, Ohio 43207
and DSW SHOE WAREHOUSE, INC., a Missouri corporation (hereinafter referred to as
“Tenant”) with offices at 4150 East Fifth Avenue, Columbus, Ohio 43219.




W I T N E S S E T H:




SECTION 1. PREMISES




     (a) Landlord, in consideration of the rents to be paid and covenants and agreements to be
performed by Tenant, does hereby lease unto Tenant approximately 23,556 square feet of leasable
space (hereinafter referred to as the “premises” or “demised premises”) on the ground floor of an
existing multi-tenant building (the “Building”) in the shopping center commonly known as Lincoln
Plaza, Township of Middletown, County of Bucks and Commonwealth of Pennsylvania (hereinafter
referred to as the “Shopping Center” or “Center”). The location, size, and area of the demised
premises and of the Shopping Center shall be substantially as shown on Exhibit “A-1”
attached hereto and made a part hereof. A legal description of the Shopping Center is shown on
Exhibit “A-2”, attached hereto and made a part hereof. Landlord shall not change the
configuration of the Shopping Center so as to materially adversely affect access to, visibility of
or parking for the premises without the prior written consent of Tenant, nor to the extent that it
has the authority to do so under the Master Lease (as hereinafter defined), shall Landlord consent
to or permit any such change in configuration.



     (b) Landlord and Tenant acknowledge that, notwithstanding any reference herein to the
contrary, this Lease is in fact a sub, sublease. Landlord holds a leasehold interest in the
Building and the premises pursuant to the Master Lease. For purposes hereof, the “Master Lease” is
that certain Lease dated April 20, 1993, as amended by letter agreements dated April 20, 1993,
March 7, 1996 and January 15, 1997, and by Amendment to Lease dated 4/15/03, between Lincoln Plaza
Associates (“Master Landlord”) and Builders Square, Inc. Landlord is the successor in interest to
the interest of Builders Square, Inc. under the Master Lease. This Lease is subject and
subordinate to the Master Lease.



     (c) Landlord covenants and agrees that Landlord shall at all times comply with and fully
perform all of its obligations under the Master Lease. Landlord shall not, during the term hereof,
(i) do or suffer or permit anything to be done which would constitute a default under the Master
Lease or would cause the Master Lease to be canceled, terminated or forfeited by virtue of any
rights of cancellation, termination, or forfeiture reserved or vested in Master Landlord under the
Master Lease, (ii) exercise any right reserved or vested in Landlord to cancel, terminate or
forfeit the Master Lease, including, without limitation, any termination rights for casualty or
condemnation or (iii) modify, amend or terminate the Master Lease.



     (d) Landlord agrees to forward to Tenant, upon receipt thereof from Master Landlord, a copy of
each notice of default received by Landlord in its capacity as tenant under the Master Lease.



 









 





SECTION 2. TERM




     The term of this Lease shall be for a period beginning on the commencement date (as
hereinafter defined) and ending on April 28, 2013, unless earlier terminated or extended as herein
provided.



SECTION 3. COMMENCEMENT DATE




     (a) As herein used, the phrase “commencement date” shall mean the earlier of: (i) the day
Tenant opens for business in the demised premises, or (ii) sixty (60) days after Landlord has
delivered to Tenant possession of the demised premises as same are to be substantially completed by
Landlord and ready for occupancy, as set forth in (b) below. Landlord agrees to deliver the
demised premises to Tenant with Landlord’s Work (as set forth on Exhibit “B”, attached
hereto and made a part hereof) completed between August 1, 2006 and September 15, 2006 (the
“Delivery Period”). Landlord shall give Tenant notice (the “Estimated Delivery Notice”) no later
than October 6, 2006 of the status of Landlord’s construction and the estimated date that Landlord
shall deliver the Premises to Tenant with Landlord’s Work substantially completed (the “Estimated
Delivery Date”). Landlord may, but is under no obligation, to revise the Estimated Delivery Date
any time prior to thirty (30) days prior to the Estimated Delivery Date (the “Final Delivery Notice
Date”), by which time Landlord shall have given Tenant a final notice (the “Final Delivery Notice”)
of a firm delivery date (the “Final Delivery Date”) upon which the Landlord’s Work shall be
substantially completed and the Leased Premises delivered to Tenant. Upon the sending of the Final
Delivery Notice, Landlord shall have no further right to modify the Final Delivery Date. However,
if Landlord has not delivered a Final Delivery Notice by the Final Delivery Notice Date, then the
Estimated Delivery Notice shall be the Final Delivery Notice and the Estimated Delivery Date shall
be the Final Delivery Date. The Final Delivery Date shall not be earlier than (i) thirty (30) days
after the date Tenant receives the Final Delivery Notice, or (ii) the first day of the Delivery
Period. If Landlord does not deliver the demised premises to Tenant as required herein by October
1, 2006, Tenant may defer delivery until January 2, 2007. If Landlord does not deliver the demised
premises to Tenant thereafter on or before March 1, 2007, Tenant may terminate this Lease or defer
delivery until June 1, 2007. If Landlord does not deliver the demised premises to Tenant
thereafter on or before June 1, 2007, Tenant may terminate this Lease. In the event that the
demised premises and Landlord’s Work are not substantially completed and delivered to Tenant on or
before the Final Delivery Date, the minimum rent due hereunder shall be adjusted so that, after the
Rent Commencement Date, the Tenant shall receive a credit against minimum rent thereafter due
Landlord equal to one (1) day of minimum rent for each day after the Final Delivery Date until
delivery of the demised premises is made to Tenant consistent with the terms of this Lease,
including substantial completion of the Landlord’s Work. Tenant shall not be obligated to accept
possession of the demised premises prior to the later of (a) substantial completion of Landlord’s
Work, (b) the first day of the Delivery Period and (c) the Final Delivery Date. Time is of the
essence regarding all dates set forth in this Section 3(a). Landlord shall obtain a certificate of
occupancy or completion, permit or the local equivalent that is required for Landlord’s Work at the
demised premises so that Tenant may obtain a building permit for Tenant’s Work and commence
performance of the same.



 









 





     (b) Possession of the demised premises shall not be deemed to have been given to Tenant unless
the demised premises are ready for the installation of Tenant’s fixtures and finishing work by
Tenant, and are free of any violation of laws, ordinances, regulations and building restrictions
relating to the possession or use of or construction upon the demised premises, and until Landlord
has substantially completed Landlord’s Work. Tenant shall supply Landlord with Tenant’s
prototypical plans and specifications, and Landlord shall prepare plans and specifications for the
Premises at Landlord’s expense, for Tenant’s approval. All such Landlord’s Work shall be done at
Landlord’s expense and in compliance with all applicable federal, state and local laws, rules,
regulations and code requirements.



     (c) Prior to the date on which possession is delivered to Tenant as aforesaid, Tenant shall
have the right to enter the demised premises at its own risk rent-free for the purpose of preparing
for its occupancy, installing fixtures and equipment, and receiving merchandise and other property,
provided that it does not unreasonably interfere with Landlord’s construction activities. All work
other than that to be performed by Landlord is to be done by Tenant within ninety (90) days after
the date possession of the demised premises has been delivered to Tenant, at Tenant’s expense in
accordance with the provisions of this Lease and as set forth in the schedule entitled Description
of Tenant’s Work and attached hereto as Exhibit “C” and made a part hereof. All Tenant’s
Work shall be performed lien free by Tenant, in a good and workmanlike manner (employing materials
of good quality) in compliance with all governmental requirements. In the event a mechanic’s lien
is filed against the demised premises or the Shopping Center on account of Tenant’s Work, Tenant
shall discharge or bond off same within thirty (30) days from the filing thereof. If Tenant fails
to discharge 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.



     (d) From the date upon which the demised premises are delivered to Tenant for its work or such
earlier time that Tenant enters the demised premises to prepare for its occupancy until the
commencement date of the lease term, Tenant shall observe and perform all of its obligations under
this Lease (except Tenant’s obligation to operate and pay minimum rent, percentage rent and
“Tenant’s Proportionate Share” (defined in Section 16(c) below) of “Maintenance Costs” (defined and
provided for in Section 16(b) hereof) “real estate taxes” (defined and provided for in Section
28(b) hereof) and insurance (provided for in Section 29 hereof). In the event Tenant fails to open
for business within one hundred twenty (120) days after the date possession of the demised premises
has been delivered to Tenant, Landlord, in addition to any and all other available remedies, may
require Tenant to pay to Landlord, in addition to all other rent and charges herein, as liquidated
damages and not as a penalty, an amount equal to one-three hundred sixty five thousandths (1/365)
of the annual minimum rent for each day such failure to open continues.



     (e) Landlord represents that all requirements set forth in the Master Lease for the
performance of Landlord’s Work and Tenant’s Work have been satisfied and all approvals required
from Master Landlord for the performance thereof have been obtained.



 









 





SECTION 4. RENEWAL OPTIONS




     (a) Provided Tenant has fully complied with all of the terms, provisions, and conditions on
its part to be performed under this Lease and is not in default under this Lease, Tenant may, by
giving written notice to the Landlord at least six (6) months on or before the expiration of the
initial term of this Lease, extend such term for a period of five (5) years upon the same covenants
and agreements as are herein set forth, except that the minimum rent during the first renewal term
shall be increased to $31,408.00 each month.



     (b) Provided Tenant has fully complied with all of the terms, provisions and conditions on its
part to be performed under this Lease, is not in default under this Lease and has exercised its
first option to renew hereunder, Tenant may, by giving written notice to the Landlord at least six
(6) months on or before the expiration of the first extended term of this Lease, extend such term
for an additional period of four (4) years upon the same covenants and agreements as the first
extended term except that the minimum rent (as increased pursuant to Section 4(a) above) during
this second renewal term shall be further increased to $33,371.00 each month.



     (c) The initial term and any renewal term(s) are hereinafter collectively referred to as the
“term”.



     (d) Landlord agrees that it shall timely exercise any and all options under the Master Lease
so as to extend the term thereof for a period of time equal to or greater than the term hereof, as
extended by the exercise by Tenant of any of its rights under this Section 4.



SECTION 5. MINIMUM RENT




     (a) Tenant agrees to pay to Landlord, as minimum rent for the demised premises, equal
consecutive monthly installments of $27,482.00, commencing on the commencement date, and continuing
on the first day of each calendar month during years one (1) through five (5) of the initial term
of this Lease, monthly installments of $29,445.00 each calendar month during the balance of the
initial term of this Lease. All such rental shall be payable to Landlord in advance, without prior
written notice or demand and without any right of deduction, abatement, counterclaim or offset
whatsoever (unless specifically permitted in this Lease). In no event shall Tenant have the right
to offset more than twenty-five percent (25%) of minimum rent in any calendar month, and Tenant
shall have no right to offset against any additional rent other than any percentage rent payable
hereunder. As used in this Lease, the terms “minimum rent” and “minimum rental” mean the minimum
rental set forth in this Section 5(a) as adjusted pursuant to Section 4 hereof. As used in this
Lease, the terms “rent and “rental” mean minimum rental, percentage rental, additional rental and
all other sums due and owing from Tenant to Landlord under this Lease.



     (b) If the Lease term shall commence on a day other than the first day of a calendar month or
shall end on a day other than the last day of a calendar month, the minimum rental for such first
or last fractional month shall be such proportion of the monthly minimum rental as the
number of days in such fractional month bears to the total number of days in such calendar
month.



 









 





     (c) Until further notice to Tenant, all rental payable under this Lease shall be payable to
Landlord and mailed to Landlord at 1800 Moler Road, Columbus, Ohio 43207.



     (d) In the event any sums required under this Lease to be paid are not received when due, then
all such amounts shall bear interest from the due date thereof until the date paid at the rate of
interest equal to two percent (2%) over the prime rate in effect from time to time as established
by National City Bank, Columbus, Ohio (the “Interest Rate”), and shall be due and payable by Tenant
without notice or demand, Tenant shall pay the foregoing interest thereon in addition to all
default remedies of Landlord pursuant to Section 34 below.



     (e) In addition to minimum rent as set forth in this Section 5, Tenant shall initially pay to
Landlord as additional rental, simultaneously with the payment of minimum rental called for under
Section 5(a) above, (i) $1.50 per square foot, payable in equal monthly installments of $2,944.50,
as the estimated monthly amount of Tenant’s Proportionate Share of Maintenance Costs (provided for
in Section 16 hereof), (ii) $2.00 per square foot, payable in equal monthly installments of
$3,926.00), as the estimated monthly amount of Tenant’s Proportionate Tax Share (provided for in
Section 28 hereof) and (iii) $0.25 per square foot, payable in equal monthly installments of
$490.75, as the estimated monthly amount of Tenant’s Proportionate Insurance Share (provided for in
Section 29 hereof).



     (f) For purposes hereof, a lease year shall consist of a consecutive twelve (12) calendar
month period commencing on the commencement of the term of this Lease; provided, however, that if
this Lease commences on a day other than the first day of a calendar month, then the first lease
year shall consist of such fractional month plus the next succeeding twelve (12) full calendar
months, and the last lease year shall consist of the period commencing from the end of the
preceding lease year and ending with the end of the term of the Lease, whether by expiration of
term or otherwise. In the event percentage rental shall commence to accrue on a day other than the
first day of a lease year, the percentage rental for such lease year shall be adjusted on a pro
rata basis, based upon the actual number of days in such lease year.



SECTION 6. PERCENTAGE RENT




     (a) Subject to the provisions of subsection 6(b) below, Tenant shall pay to the Landlord, in
addition to minimum rent, upon the conditions and at the times hereinafter set forth, percentage
rent equal to the amount by which two percent (2%) of Tenant’s gross sales (as hereinafter defined)
in each Percentage Rent Year (as hereinafter defined) exceeds $6,500,000 ($6,500,000 shall
constitute the “Breakpoint Amount” for purposes hereof, except with respect to Percentage Rent
Years which are greater than or less than fifty-two [52] weeks, as provided in subsection 6(b)
below); notwithstanding the foregoing, however, Tenant shall have liability for the payment of
percentage rent in a particular Percentage Rent Year only if Landlord has liability to Master
Landlord for the payment of percentage rent under the Master Lease for the corresponding Percentage
Rent Year, based upon the gross sales during such Percentage Rent Year of all occupants of the
Building. Within thirty (30) days after the end of each Percentage
Rent Year, Tenant shall deliver to Landlord a statement signed by an authorized representative
of Tenant setting forth Tenant’s gross sales for such Percentage Rent Year. In the event that
Tenant’s gross sales for such Percentage Rent Year exceeded the applicable Breakpoint Amount,



 









 




Landlord shall, within thirty (30) days after receipt of such statement, deliver to Tenant a
statement signed by an authorized representative of Landlord setting forth the gross sales of all
occupants of the Building for such Percentage Rent Year and a calculation of the percentage rent,
if any, payable by Landlord to Master Landlord for such Percentage Rent Year. In the event that
percentage rent shall be payable by Tenant for such Percentage Rent Year, it shall be paid by
Tenant to the Landlord within thirty (30) days after receipt of Landlord’s statement. In the
event that Landlord fails to provide any such statement to Tenant within ninety (90) days after
receipt of Tenant’s statement of gross sales, it shall be conclusively presumed that no percentage
rent is due from Tenant for such Percentage Rent Year.




     (b) For purposes hereof, a Percentage Rent Year shall correspond to the Percentage Rent Year
under the Master Lease, being a fifty-two (52) week period commencing on February 1; provided,
however, that if the commencement date is a day other than February 1, then the first Percentage
Rent Year shall consist of the period from the commencement date through the next following January
31, plus the next succeeding fifty-two week period, and the last Percentage Rent Year shall consist
of the period commencing from the end of the preceding Percentage Rent Year and ending with the end
of the term of the Lease, whether by expiration of term or otherwise. Percentage rent for any
Percentage Rent Year which is greater than or less than fifty-two (52) weeks shall be calculated
based upon the amount by which two percent (2%) of Tenant’s gross sales for such Percentage Rent
Year exceeds a Breakpoint Amount equal to $6,500,000, multiplied by a fraction, the numerator of
which is the number of days in such Percentage Rent Year and denominator of which is 365.



     (c) For purposes of permitting verification by the Landlord of the gross sales reported by
Tenant, the Landlord shall have the right, not more than one (1) time per Percentage Rent Year,
upon not less than five (5) business days notice to Tenant, to audit during normal business hours
in Tenant’s corporate office, Tenant’s books and records relating to Tenant’s gross sales for a
period of two (2) years after the end of each Percentage Rent Year. Landlord agrees that no
contingency fee auditor shall be employed by Landlord for the purpose of conducting any such audit.
If such an audit reveals that Tenant has understated its gross sales by more than three percent
(3%) for any Percentage Rent Year, Tenant, in addition to paying the additional percentage rent
due, shall pay the reasonable cost of the audit within thirty (30) days of Tenant’s receipt of
Landlord’s demand for the same and copies of all bills or invoices on which such cost is based.



     (d) Each Percentage Rent Year shall constitute a separate accounting period, and the
computation of percentage rental due for any one period shall be based on the gross sales for such
Percentage Rent Year.



     (e) The term “gross sales” as used in this Lease is hereby defined to mean the gross dollar
aggregate of all sales or rental or manufacture or production of merchandise and all services,
income and other receipts whatsoever of all business conducted in, at or from any part of the
demised premises, whether for cash, credit, check, charge account, gift or merchandise
certificate purchased or for other disposition of value regardless of collection. Should any
departments, divisions or parts of Lessee’s business be conducted by any subleases,
concessionaires, licensees, assignees or others, then there shall be included in Lessee’s gross



 









 




sales, all “gross sales” of such department, division or part, whether the receipts be obtained at
the demised premises or elsewhere in the same manner as if such business had been conducted by
Lessee. Gross sales shall exclude the following: (i) any amount representing sales, use, excise or
similar taxes; (ii) the amount of refunds, exchanges or returns by customers or allowances to
customers.




     (f) Tenant shall keep at its principal executive offices, where now or hereafter located, true
and accurate accounts of all receipts from the demised premises. Landlord, its agents and
accountants, shall have access to such records at any and all times during regular business hours
for the purpose of examining or auditing the same. Tenant shall also furnish to Landlord any and
all supporting data in its possession relating to gross sales and any deductions therefrom as
Landlord may reasonably require. Landlord agrees to keep any information obtained therefrom
confidential, except as may be required for Landlord’s tax returns, or in the event of litigation
or arbitration where such matters are material.



SECTION 7. TITLE ENCUMBRANCES




     Tenant’s rights under this Lease are subject and subordinate to those title matters set forth
in Landlord’s owner’s title insurance policy issued by First American Title Insurance Company,
being Policy No. NCS-224805-PHIL, dated June 30, 2006, specifically including but not limited to
the terms and conditions of (i) a certain Agreement dated February 15, 2978 among Bucks Associates,
FML Associates, Lincoln Plaza Associates, and FML Middletown Associates, recorded in Deed Book
2324, Page 1079 of the Bucks County, Pennsylvania Recorder’s Office, and (ii) a certain Declaration
of Easements dated December 10, 1971 among McStone, John W. Messium, Bucks Associates, and The
Fidelity Bank, recorded in Deed Book 2027, Page 733 of the Bucks County, Pennsylvania Recorder’s
Office (the foregoing items (i) and (ii), collectively, the “OEA”). Tenant agrees that it shall
abide by the terms and conditions of the OEA.



SECTION 8. RIGHT TO REMODEL




     (a) Tenant may, at Tenant’s expense, make repairs and alterations to the interior
non-structural portions of the demised premises and remodel the interior of the demised premises,
in such manner and to such extent as may from time to time be deemed necessary by Tenant for
adapting the demised premises to the requirements and uses of Tenant and for the installation of
its fixtures, appliances and equipment. Any structural or exterior alteration may only be made by
Tenant upon compliance with the requirements of the Master Lease and with the prior written
approval of Master Landlord, which approval may be granted or withheld in Landlord’s sole
discretion. All plans for any structural alterations shall be submitted to Landlord for
endorsement of its approval prior to commencement of work. Upon Landlord’s request, Tenant shall
be obligated, if it remodels and/or alters the demised premises, to restore the demised premises
upon vacating the same. Tenant will indemnify and save harmless the Landlord from and against all
mechanics liens or claims by reason of repairs, alterations or improvements which may be made by
Tenant to the demised premises. Inasmuch as any such alterations, additions or
other work in or to the demised premises may constitute or create a hazard, inconvenience or
annoyance to the public and other tenants in the Shopping Center, Tenant shall, if so directed in



 









 




writing by Landlord, erect barricades, temporarily close the demised premises, or affected portion
thereof, to the public or take whatever measures are necessary to protect the building containing
the demised premises, the public and the other tenants of the Shopping Center for the duration of
such alterations, additions or other work. If Landlord determines, in its sole judgment, that
Tenant has failed to take any of such necessary protective measures, and Tenant fails to cure same
within ten (10) days after notice thereof, Landlord may do so and Tenant shall reimburse Landlord
for the cost thereof within ten (10) days after Landlord bills Tenant therefor.




     (b) All such work, including Tenant’s Work pursuant to Exhibit “C” shall be performed
lien free by Tenant. In the event a mechanic’s lien is filed against the premises or the Shopping
Center, Tenant shall discharge or bond off same within thirty (30) days from the filing thereof.
If Tenant fails to discharge 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.



SECTION 9. UTILITIES




     (a) The Tenant agrees to be responsible and pay for all public utility services rendered or
furnished to the demised premises during the term hereof, including, but not limited to, heat,
water, gas, electric, steam, telephone service and sewer services, together with all taxes, levies
or other charges on such utility services when the same become due and payable. Landlord will
separately meter or submeter utilities prior to delivery. Landlord shall provide, or cause to be
provided, all such utility services to the premises during the term of this Lease. Tenant shall be
responsible for all utility services and costs inside the premises. Landlord shall not be liable
for the quality or quantity of or interference involving such utilities unless due directly to
Landlord’s negligence.



     (b) During the term hereof, whether the demised premises are occupied or unoccupied, Tenant
agrees to maintain heat sufficient to heat the demised premises so as to avert any damage to the
demised premises on account of cold weather.



SECTION 10. GLASS




     The Tenant shall maintain the glass part of the demised premises, promptly replacing any
breakage and fully saving the Landlord harmless from any loss, cost or damage resulting from such
breakage or the replacement thereof.



SECTION 11. PERSONAL PROPERTY




     The Tenant further agrees that all personal property of every kind or description that may at
any time be in or on the demised premises shall be at the Tenant’s sole risk, or at the risk of
those claiming under the Tenant, and that the Landlord shall not be liable for any damage to said
property or loss suffered by the business or occupation of the Tenant caused in any manner
whatsoever.



 









 





SECTION 12. RIGHT TO MORTGAGE




     (a) Landlord reserves the right to subject and subordinate this Lease at all times to the lien
of any leasehold deed of trust, mortgage or mortgages now or hereafter placed upon Landlord’s
interest in the Master Lease; 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. Any such subordination shall be contingent upon Tenant receiving a commercially
reasonable non-disturbance agreement. 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.



     (b) Wherever notice is required to be given to Landlord pursuant to the terms of this Lease,
Tenant will likewise give such notice to any mortgagee of Landlord’s interest in the Master Lease
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.



SECTION 13. SUBLEASE OR ASSIGNMENT




     (a) Subject to the provisions of the Master Lease, and upon obtaining the consent of Master
Landlord if required by the provisions thereof, Tenant may assign Tenant’s interest in this Lease
or sublet all or any portion of the demised premises for any lawful retail use.



     Tenant may grant licenses and/or concessions within the demised premises. Any such assignee
or subtenant shall be bound by the terms of this Lease. Tenant shall deliver to Landlord in the
ordinary course of its business an instrument whereby the assignee or entity succeeding to Tenant’s
interest hereunder agrees to be bound by the terms of this Lease.



     In the event of any assignment of this Lease or subletting of the demised premises, in whole
or in part, Tenant shall remain fully and primarily liable hereunder.



     (b) Landlord may assign Landlord’s interest in this Lease without the consent of Tenant (a) to
any entity to which Landlord transfers its Master Lease leasehold interest in the Master Lease
provided such entity (i) agrees in writing to be bound by all the terms of this Lease and (ii) such
assignment is pursuant to a bona fide arm’s length transaction not designed to reduce Landlord’s
liability or to otherwise exempt Landlord from any provision of this Lease or (b) subject to
Section 12, as security for any indebtedness undertaken by Landlord.



 









 





SECTION 14. COMMON AREAS




     Common areas means all areas and facilities in the Shopping Center provided and so designated
by Master Landlord and made available by Master Landlord in the exercise of good business judgment
for the common use and benefit of tenants of the Shopping Center and their customers, employees and
invitees. Common areas shall include (to the extent the same are constructed), but not be limited
to, the parking areas, sidewalks, landscaped areas, corridors, stairways, boundary walls and
fences, incinerators, truckways, service roads, and service areas not reserved for the exclusive
use of Tenant or other tenants, all as more fully defined in the Master Lease.



SECTION 15. OPERATION OF COMMON AREAS




     (a) Subject to the provisions of the Master Lease, Master Landlord shall at all times have
exclusive control of the common areas. Landlord shall diligently exercise all of its rights under
the Master Lease to cause Master Landlord to operate and maintain all or any part of the common
areas, on such terms and conditions as is required of Master Landlord under the Master Lease and
shall enforce the obligation of Master Landlord to so perform the same for the benefit of Tenant
and other tenants of the Shopping Center.



     (b) Subject to the rights granted in the Master Lease to conduct sidewalk sales and otherwise
use the common areas for sales purposes, Tenant shall keep all common areas free of obstructions
created or permitted by Tenant. Except as aforesaid, Tenant shall permit the use of the common
areas only for normal parking and ingress and egress by its customers and suppliers to and from the
demised premises. If in Landlord’s opinion unauthorized persons are using any of the common areas
by reason of Tenant’s occupancy of the demised premises, Landlord shall have the right at any time
to remove any such unauthorized persons from said areas or to restrain unauthorized persons from
said areas. Landlord, Tenant, and others constructing improvements or making repairs or
alterations in the Shopping Center shall have the right to make reasonable use of portions of the
common areas.



SECTION 16. COMMON AREA MAINTENANCE, TENANT’S SHARE




     (a) Tenant shall initially pay as additional rental, simultaneously with the payment of
minimum rental called for under Section 5(a), the estimated monthly amount of Tenant’s
Proportionate Share of the “Maintenance Costs” (as defined in Section 16(c) below) for the
operation and maintenance of the common areas as set forth in Section 5(e), $1.50 per square foot,
payable in equal monthly installments of Two Thousand Nine Hundred Forty-four and 50/100 Dollars
($2,944.50), as the estimated monthly amount of Tenant’s Proportionate Share of the “Maintenance
Costs” (as defined in Section 16(c) below) for the operation and maintenance of the common areas
during the initial Maintenance Cost Year. For purposes hereof, a Maintenance Cost Year shall
correspond to the “Lease Year” or other accounting period for which Master Landlord accounts for
and invoices Landlord for “Common Area Charges” under the Master Lease. Unless otherwise directed
to the contrary by Landlord in writing, Tenant shall make such payments directly to Landlord.



 









 





     (b) The Maintenance Costs for the common areas shall be computed in accordance with the
provisions of the Master Lease and shall include all costs of operating, maintaining, repairing and
replacing the common areas, to the extent provided in the Master Lease (the foregoing are
collectively referred to herein as “Maintenance Costs”).



     (c) Landlord shall to the extent permitted by the Master Lease require that Master Landlord
maintain accurate and detailed records of all Maintenance Costs for the common areas in accordance
with generally accepted accounting principles and as provided in the Master Lease. For purposes of
this section, “Tenant’s Proportionate Share of Maintenance Costs” shall be the product of the
Maintenance Costs properly billed to Landlord by Master Landlord under the Master Lease as
Landlord’s proportionate share of Maintenance Costs, multiplied by a fraction, the numerator of
which shall be the gross leasable area (expressed in square feet) of the demised premises and the
denominator of which shall be the gross leasable area (expressed in square feet) of all leasable
space in the Building. Tenant’s Proportionate Share is presently twenty-two and one-half percent
(22.5%) which amount is subject to change from time to time during the term of this Lease.



     (d) The actual amount of Tenant’s Proportionate Share of Maintenance Costs shall be computed
by the Landlord within ninety (90) days after the receipt of an invoice therefor from Master
Landlord. At that time Landlord shall furnish to Tenant a statement showing in reasonable detail
the actual Maintenance Costs incurred during such Maintenance Cost Year, a copy of the invoice
therefor from Master Landlord and Tenant’s Proportionate Share thereof (prorated to the extent that
the term of this Lease was not in effect for the entire Maintenance Cost Year, with appropriate
adjustments to reflect any change in the floor area of the premises or the gross leasable area of a
building occurring during such accounting year). Any excess payments from Tenant shall be applied
to the next installments of the Maintenance Costs hereunder, or refunded by Landlord. Any
underpayments by Tenant shall be paid to Landlord within thirty (30) days after receipt of such
reconciliation statement. Tenant’s estimated monthly Maintenance Cost hereunder may be adjusted by
written notice from Landlord.



     (e) If Tenant, for any reason in the exercise of good business judgment, questions or disputes
any statement of Maintenance Costs prepared by Master Landlord/Landlord, then Tenant, at its own
expense and to the extent permitted by the Master Lease and subject to the terms of the Master
Lease, may employ such accountants as Tenant may select to review Master Landlord/Landlord’s books
and records solely with respect to Maintenance Costs during the prior two Maintenance Cost Years
and to determine the amount of Maintenance Costs for the period or periods covered by such
statements. In such event, Landlord shall exercise such rights as it has under the Master Lease so
as to permit the review by Tenant of Master Landlord’s books and records. If the report of the
accountants employed by Tenant shall show any overcharge paid by Tenant, then Tenant shall receive
a credit from Landlord for such difference; Landlord shall have such rights against Master Landlord
as are provided in the Master Lease. Any underpayment shall be paid by Tenant. Tenant agrees that
no contingency fee auditors shall be employed by Tenant for the purpose of conducting any such
audit. In the event that Landlord questions or disputes the correctness of such report, the
accountants employed by Tenant and the accountants employed by Landlord shall endeavor to reconcile
the question(s) or dispute(s) within thirty (30) days after the notice from Tenant questioning or
disputing the report of



 









 




Landlord’s accountants. In the event
that it is finally determined by the parties that Master Landlord has overstated Maintenance
Costs for any Maintenance Cost Year by an amount requiring the Master Landlord to reimburse
Landlord for the costs of the audit, Landlord shall exercise such right for the benefit of Tenant,
and pay to Tenant any amount it receives from Master Landlord as reimbursement. Furthermore, if
Maintenance Costs cannot be verified due to the insufficiency or inadequacy of Master
Landlord/Landlord’s records, then Landlord shall pay the cost of the audit. Landlord shall have
such rights against Master Landlord with respect to the foregoing as are provided in the Master
Lease.




SECTION 17. EMINENT DOMAIN




     (a) In the event the entire premises or any part thereof shall be taken or condemned either
permanently or temporarily for any public or quasi-public use or purpose by any competent authority
in appropriation proceedings or by any right of eminent domain, the entire compensation or award
therefore, including leasehold, reversion and fee, shall belong to the Landlord and Tenant hereby
assigns to Landlord all of Tenant’s right, title and interest in and to such award.



     (b) In the event that only a portion of the demised premises, not exceeding twenty percent
(20%) of same, shall be so taken or condemned, and the portion of the demised premises not taken
can be repaired within ninety (90) days from the date of which possession is taken for the public
use so as to be commercially fit for the operation of Tenant’s business, the Landlord at its own
expense shall so repair the portion of the demised premises not taken and there shall be an
equitable abatement of rent for the remainder of the term and/or extended terms. The entire award
paid on account thereof shall be paid to the Landlord. If the portion of the demised premises not
taken cannot be repaired within ninety (90) days from the date of which possession is taken so as
to be commercially fit for the operation of Tenant’s business, then this Lease shall terminate and
become null and void from the time possession of the portion taken is required for public use, and
from that date on the parties hereto shall be released from all further obligations hereunder
except as herein stated and Tenant shall have no claim for any compensation on account of its
leasehold interest. Any such appropriation or condemnation proceedings shall not operate as or be
deemed an eviction of Tenant or a breach of Landlord’s covenant of quiet enjoyment and Tenant shall
have no claim for any compensation on account of its leasehold interest.



     (c) In the event that more than 20% of the demised premises shall at any time be taken by
public or quasi-public use or condemned under eminent domain, then at the option of the Landlord or
Tenant upon the giving of thirty (30) days written notice (after such taking or condemnation), this
Lease shall terminate and expire as of the date of such taking and any prepaid rental shall be
prorated as of the effective date of such termination.



     (d) The rights of Landlord and Tenant set forth in this Section 17 are subject to the rights
of the Master Landlord to terminate the Master Lease, as therein provided, in which event this
Lease shall terminate simultaneously therewith.



 









 





SECTION 18. TENANT’S 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 demised premises
during the term of this Lease.



SECTION 19. RISK OF GOODS




     All personal property, goods, machinery, and merchandise in said demised premises shall be at
Tenant’s risk if damaged by water, fire, explosion, wind or accident of any kind, and Landlord
shall have no responsibility therefore or liability for any of the foregoing and Tenant hereby
releases Landlord from such liability.



SECTION 20. USE AND OCCUPANCY




     (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other
footwear in the demised premises, fully staffed and stocked and equivalent to other DSW stores
operated by Tenant in the Commonwealth of Pennsylvania (the “Permitted Use”). Tenant may
thereafter change its use to any other lawful retail use, subject to (i) any restriction on use
imposed by the Master Lease, and (ii) those exclusives and prohibited uses set forth on Exhibit
“D”, attached hereto and made a part hereof, which are the exclusives and prohibited uses in
effect for the Building as of the date hereof, for so long as and to the extent said exclusives and
prohibited uses are still in full force and effect.



     Landlord represents and warrants to Tenant that there is no restriction in the OEA, Master
Lease, zoning laws or other applicable instrument or laws or regulations, on the use of the demised
premises by Tenant for the Permitted Use.



     (b) For so long as Tenant is continuously and regularly operating its business in the demised
premises, Landlord will not lease any space within the Building or permit any space within the
Building to be used by any person, persons, partnership or entity who devotes five percent (5%) or
more of its selling area to the sale of footwear (the “Exclusive Use”). The foregoing limitation
shall not apply to typical shoe departments found in department stores, junior department stores,
general merchandise and discount stores, and clothing retailers, such as Target, Marshalls and
similar type stores. Tenant acknowledges that this Section 20(b) applies only to the Building and
that Master Landlord is not restricted by the terms hereof.



     (c) Tenant shall at all times conduct its operations on the demised premises in a lawful
manner and shall, at Tenant’s expense, comply with all laws, rules, orders, ordinances, directions,
regulations, and requirements of all governmental authorities, now in force or which may hereafter
be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of
Tenant and the use, occupancy or alteration of the demised premises. Tenant shall comply with all
requirements of the Americans with Disabilities Act, and shall be solely responsible for all
alterations within the demised premises in connection therewith. Tenant covenants and agrees that
the demised premises shall not be abandoned or left vacant and that
only minor portions of the demised premises shall be used for office or storage space in
connection with Tenant’s business conducted in the demised premises.



 









 





     Without being in default of this Lease, Tenant shall have the right to cease operating (go
dark) at any time and for whatever reason after the first day of operations. Notwithstanding the
foregoing, Tenant’s right to vacate (go dark), shall not release or excuse the Tenant from any
obligations or liabilities, including the payment of minimum rent and additional rent and other
charges, under this Lease without the express written consent of Landlord. In the event Tenant
fails to (i) open and operate within ninety (90) days after delivery of the demised premises or
(ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right,
effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as
Landlord’s sole remedy, provided that if Tenant recommences operating fully stocked in
substantially all of the premises within such thirty (30) days, Landlord’s termination shall be
null and void. In the event Tenant fails to open and operate as provided above or shall cease
operating as provided above, Landlord’s sole remedy on account thereof shall be limited to the
right to elect to recapture the premises and terminate the Lease, whereupon there shall be no
further liability of the parties hereunder. Such termination shall be effective upon written
notice to Tenant any time prior to Tenant reopening for business in the demised premises.
Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right
to notify Landlord of Tenant’s intention to reopen for business in the demised premises within
sixty (60) days, followed by Tenant’s actually reopening for business fully stocked in
substantially all of the demised premises within such sixty (60) day period, which notice and
actual reopening shall toll Landlord’s right to recapture.



     (d) Landlord and Tenant each agree that during the term of this Lease, it shall not use or
permit to be used any space in the Building for any use prohibited by the Master Lease or for the
operation of a bingo parlor, bar, tavern, restaurant, cocktail lounge, adult book or adult video
store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor
space to offering books and/or video materials for sale or for rent which are directed to or
restricted to adult customers due to sexually explicit subject matter or for any other reason
making it inappropriate for general use), adult theater or “strip-tease” establishment, automotive
maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service,
establishment selling second hand goods, flea market, entertainment or recreational facility (as
defined below), training or educational facility (as defined below); the renting, leasing, selling
or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a
carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use
with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall,
auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of
fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to
be sold from the Center; a video rental store, karate center, central laundry or dry cleaning
plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits
offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community
oriented shopping centers. For the purposes of this Section 20(d), the phrase “entertainment or
recreational facility” shall include, without limitation, a movie or live theater or cinema,
bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool
hall, massage parlor, health club, game parlor or video arcade (which shall be defined as
any store containing more than five (5) electronic games) or any other facility operated
solely for entertainment purposes (such as a “laser tag” or “virtual reality” theme operation).
For the purposes of this Section 20(d), the phrase “training or educational facility”



 









 




shall
include, without limitation, a beauty school, nail salon, barber college, reading room, place of
instruction or any other operation catering primarily to students or trainees as opposed to
customers.




SECTION 21. NUISANCES




     Tenant shall not perform any acts or carry on any practice which may injure the demised
premises or be a nuisance or menace to other tenants in the Shopping Center.



SECTION 22. WASTE AND REFUSE REMOVAL




     Tenant covenants that it will use, maintain and occupy said demised premises in a careful,
safe, lawful and proper manner and will not commit waste therein. Landlord or its agent shall have
access at all reasonable times to the demised premises for purposes of inspecting and examining the
condition and maintenance of the demised premises. Tenant agrees to remove all refuse from the
demised premises in a timely, clean and sanitary manner. Tenant shall provide a refuse collection
container at the rear of the demised premises to accommodate Tenant’s refuse and Tenant shall
routinely clean up around trash containers. Tenant shall contract with a licensed and insured
refuse collection contractor to timely remove refuse therefrom and the location of the container
shall be approved by Landlord.



SECTION 23. DESTRUCTION OF PREMISES




     (a) Landlord shall at all times during the term of this Lease carry property insurance on the
Building, including the “Structural Portions” (defined in Section 24(a) below) and common utility
lines up to the point they serve individual tenant’s premises. Landlord shall be under no
obligation to maintain insurance on any improvements installed by or for the benefit of Tenant’s
use of the premises or otherwise owned by Tenant. Landlord may elect to self-insure its
obligations hereunder and/or use whatever deductibles as Landlord deems appropriate, in its sole
discretion.



     (b) If the demised premises shall be damaged, destroyed, or rendered untenantable, in whole or
in part, by or as the result or consequence of fire or other casualty during the term hereof,
Landlord shall repair and restore the same to a good tenantable condition with reasonable dispatch.
During such period of repair, the rent herein provided for in this Lease shall abate (i) entirely
in case all of the demised premises are untenantable; and (ii) proportionately if only a portion of
the demised premises is untenantable and Tenant is able to economically conduct its business from
the undamaged portion of the demised premises. The abatement shall be based upon a fraction, the
numerator of which shall be the square footage of the damaged and unusable area of the demised
premises and the denominator shall be the total square footage of the demised premises. Said
abatement shall cease at such time as the demised premises shall be restored to a tenantable
condition.



     (c) In the event the demised premises, because of such damage or destruction, cannot be
repaired and restored to a tenantable condition with reasonable dispatch within one hundred fifty
(150) days from the date of receipt of insurance proceeds for such damage or destruction, as
reasonably determined by an independent contractor selected by Landlord, Tenant or Landlord



 









 





     may, at
their option, terminate this Lease within sixty (60) days following receipt of such contractor’s
determination; further, in the event that this Lease is not terminated as above provided, but the
premises are not restored within one hundred fifty (150) days from the date of receipt of insurance
proceeds, Tenant may terminate this Lease by notice given to Landlord after the expiration of such
one hundred fifty (150) day period but prior to the repair and restoration of same and thereupon
Landlord and Tenant shall be released from all future liability and obligations under this Lease.



     (d) If one-third (1/3) or more of the ground floor area of the demised premises are damaged or
destroyed during the last two (2) years of the original or any extended term of this Lease,
Landlord shall have the right to terminate this Lease by written notice to Tenant within sixty (60)
days following such damage or destruction, unless Tenant shall, within thirty (30) days following
receipt of such notice, offer to extend the term of this Lease for an additional period of five (5)
years from the date such damage or destruction is repaired and restored. If Tenant makes said
offer to extend, Landlord and Tenant shall determine the terms and conditions of said extension
within thirty (30) days thereafter or Tenant’s offer shall not be deemed to prevent Landlord from
canceling this Lease. If such terms and conditions have been mutually agreed to by the parties,
then Landlord shall accept Tenant’s offer and shall repair and restore the demised premises with
reasonable dispatch thereafter.



     (e) If Landlord is required or elects to repair and restore the demised premises as herein
provided, Tenant shall repair or replace its stock in trade, trade fixtures, furniture, furnishings
and equipment and other improvements including floor coverings, and if Tenant has closed, Tenant
shall promptly reopen for business. Anything contained in this Section 23 to the contrary
notwithstanding, Landlord’s restoration and repair obligations under Section 23 shall in no event
include restoration or repair of Tenant’s Work or improvements.



     (f) The rights of Landlord and Tenant under this Section 23 are subject to the rights of
Master Landlord to terminate the Master Lease pursuant to the provisions thereof, in which event
this Lease shall terminate simultaneously therewith.



SECTION 24. LANDLORD REPAIRS




     (a) Landlord shall keep, or cause Master Landlord to keep, in good order, condition, and
repair the following: (i) structural portions of the demised premises and/or the Building; (ii)
downspouts; (iii) gutters; (iv) the roof of the Building of which the demised premises forms a
part; and (v) the plumbing and sewage system serving the demised premises but located outside of
the demised premises, except (as to all items) for damage caused by any negligent act or omission
of Tenant or its customers, employees, agents, invitees, licensees or contractors, which shall be
repaired or replaced as necessary, at the sole cost and expense of Tenant. “Structural Portions”
shall mean only the following: (vi) foundations; (vii) exterior walls except for interior
faces); (viii) concrete slabs; (ix) the beams and columns bearing the main load of the roof;
and (x) the floors (but not floor coverings).



     (b) Notwithstanding the provisions of Section 24(a) above, Landlord shall not be obligated to
repair the following: (i) the exterior or interior of any doors, windows, plate glass, or



 









 




showcases
surrounding the demised premises or the store front; or (ii) damage to Tenant’s improvements or
personal property caused by any casualty, burglary, break-in, vandalism, acts of terrorism, war or
act of God. Landlord shall, in any event, have ten (10) days after notice from Tenant stating the
need for repairs to complete same, or commence and proceed with due diligence to complete same.
Prior to delivery of possession of the demised premises, Landlord shall, at its expense, cause the
HVAC unit(s), equipment and systems (including all components thereof) in the demised premises to
be in good working order and condition. In the event the HVAC systems are not new and have not
been replaced by Landlord immediately prior to the Commencement Date, then Landlord shall warrant
and perform all maintenance and repair of the HVAC systems for the first year next following the
Rent Commencement Date. Thereafter Tenant shall be responsible for maintenance and repair of the
HVAC system(s). If such systems are not new as of the Commencement Date and require replacement
during the term hereof, including replacement of any major component, then Landlord shall be
responsible for the cost to replace the same, as and when necessary, so long as Tenant has
fulfilled its obligations under Section 25(a)(ii) below, and provided such replacements did not
arise from (x) repairs, installations, alterations, or improvements made by or for Tenant or anyone
claiming under Tenant, or (y) the fault or misuse of Tenant or anyone claiming under Tenant.
Except as specifically set forth in this Lease, Tenant expressly hereby waives the provisions of
any law permitting repairs by a tenant at Landlord’s expense.




     (b) The provisions of this Section 24 shall not apply in the case of damage or destruction by
fire or other casualty or a taking under the power of eminent domain in which events the
obligations of Landlord shall be controlled by Section 23 and Section 17 respectively.



     (c) Landlord shall assign to Tenant all warranties covering all matters required by the terms
hereof to be repaired and maintained by Tenant.



SECTION 25. TENANT’S REPAIRS




     (a) Tenant shall keep and maintain, at Tenant’s expense, all and every other part of the
demised premises in good order, condition and repair, including, by way of example but not
limitation: (i) all leasehold improvements; (ii) except as otherwise provided in Section 24(b)
above, all HVAC unit(s), equipment and systems (including all components thereof) serving the
demised premises; (iii) interior plumbing and sewage facilities; (iv) all interior lighting; (v)
electric signs; (vi) all interior walls; (vii) floor coverings; (viii) ceilings; (ix) appliances
and equipment; (x) all doors, exterior entrances, windows and window moldings; (xi) plate glass;
(xii) signs and showcases surrounding and within the demised premises; (xiii) the store front;
(xiv) sprinkler systems including supervisory alarm service in accordance with National Fire
Protection Association standards and current local and state fire protection standards to ensure
property operation, and as required by Section 25(b) below.



     (b) Sprinkler systems, if any, located in Tenant’s area shall be maintained in accordance with
National Fire Protection Association standards to ensure proper operation. Sprinkler control
valves (interior and exterior) located in Tenant’s area shall be monitored by supervisory alarm
service. In the event local or state codes do not require alarm systems, Tenant shall provide
alarm service on all sprinkler systems to detect water flow and tampering with



 









 




exterior and
interior main control valves of the sprinkler system servicing Tenant’s premises. Moreover, it
shall be Tenant’s responsibility to contact the Landlord’s property manager, Chuck Seal, at (614)
449-6853, in the event the sprinkler system in the demised premises is ever shut off for any
reason, and advise same of any damage occasioned or caused by the actions of Tenant, its agents,
invitees, or employees, and/or as a result of Tenant’s repair obligations hereunder. In the event
fifty percent (50%) or more of the total number of sprinkler heads require replacement at any one
time as part of ordinary maintenance, but excluding repairs or replacements that arise from (x)
repairs, installations alterations, or improvements made by or for Tenant or anyone claiming under
Tenant, or (y) the fault or misuse of Tenant or anyone claiming under Tenant, such cost shall be
fifty percent (50%) borne by Landlord and fifty percent (50%) borne by Tenant. Tenant, at Tenant’s
sole cost and expense, shall replace all sprinkler heads due to repairs, installations,
alterations, or improvements made by or for Tenant or anyone claiming under Tenant, the fault or
misuse of Tenant or anyone claiming under Tenant, painting or environmental exposure from Tenant’s
operations. All other costs of maintaining the sprinkler system in the demised premises shall be
paid by Tenant.




     (c) If Landlord deems any repair which Tenant is required to make hereunder to be necessary,
Landlord may demand that Tenant make such repair immediately. If Tenant refuses or neglects to
make such repair and to complete the same with reasonable dispatch, Landlord may make such repair
and Tenant shall, on demand, immediately pay to Landlord the cost of said repair, together with
annual interest at the Interest Rate, unless it is thereafter determined that such repair was not
necessary. Landlord shall not be liable to Tenant for any loss or damage that may accrue to
Tenant’s stock or business by reason of such work or its results.



     (d) Neither Tenant nor any of its contractors are permitted access to or permitted to perform
alterations of any kind to the roof of the building.



     (e) Tenant shall pay promptly when due the entire cost of work in the demised premises
undertaken by Tenant under this Lease (including, but not limited to, Tenant’s Work and/or
alterations permitted under Section 8 of this Lease) so that the demised premises and the Shopping
Center shall at all times be free of liens for labor and materials arising from such work; to
procure all necessary permits before undertaking any such work; to do all of such work in a good
and workmanlike manner, employing materials of good quality; to perform such work only with
contractors previously reasonably approved of in writing by Landlord; to comply with all
governmental requirements; and save Landlord and its agents, officers, employees, contractors and
invitees harmless and indemnified from all liability, injury, loss, cost, damage and/or expense
(including reasonable attorneys’ fees and expenses) in respect of any injury to, or death of, any
person, and/or damage to, or loss or destruction of, any property occasioned by or growing out of
any such work.



SECTION 26. COVENANT OF TITLE AND PEACEFUL POSSESSION




     So long as Tenant is not in default hereunder beyond applicable notice and cure periods, but
subject to the terms and conditions of this Lease, Tenant shall have quiet and peaceful possession
of the premises from and against anyone acting by, through or under Landlord, and, except for such
obligations which are to be performed by Tenant under this Lease, Landlord



 









 




shall perform all of its
obligations under the Master Lease. Landlord expressly warrants and represents to Tenant that: (i)
the Master Lease is a valid and binding lease agreement which is in full force and effect and is
enforceable against Landlord and Master Landlord in accordance with its terms; (ii) Landlord has a
good and valid leasehold interest in the premises pursuant to the Master Lease; (iii) no event has
occurred, which with the giving of notice or the passage of time would constitute a default by
either Master Landlord or Landlord under the Master Lease; (iv) a true, correct and complete copy
of the Master Lease has been provided to Tenant; and (v) Landlord has the right to enter into this
Lease.




SECTION 27. TENANT’S AND LANDLORD’S INSURANCE; INDEMNITY




     (a) Tenant’s Property Insurance. Tenant agrees to procure and maintain during the demised
term a property insurance policy written on the causes of loss-special form (also referred to as
the special extended coverage form), or the most broad property insurance form then available,
insuring against loss of, or damage to, Tenant’s property, in, on or about the demised premises.
Such property insurance shall include coverage (whether by additional policies, endorsements or
otherwise): (i) against earthquake and flood; (ii) for plate glass; (iii) in an amount equal to the
full insurable replacement cost, without deduction for depreciation; (iv) with an agreed valuation
provision in lieu of, or in an amount sufficient to satisfy, any co-insurance clause; (v) against
inflation (also known as inflation guard); (vi) for any costs due to ordinances or laws; and (vii)
as Landlord may from time to time reasonably require Tenant to procure and maintain. Landlord
shall not be liable for any damage to Tenant’s property in, on or about the demised premises caused
by fire or other insurable hazards regardless of the nature or cause of such fire or other
casualty, and regardless of whether any negligence of Landlord or Landlord’s employees or agents
contributed thereto. Tenant expressly releases Landlord of and from all liability for any such
damage and Tenant agrees that its property insurance policies required hereunder shall include a
waiver of subrogation recognizing this release from liability.



     (b) Boiler and Machinery Insurance. Tenant agrees to maintain a comprehensive boiler and
machinery policy on a full repair and replacement cost basis, and further in accordance with the
requirements of Section 27(a)(iii)-(vi) above, with an admitted, reputable insurance carrier
covering property damage as a result of a loss from boiler(s), pressure vessel(s), HVAC equipment,
or other electrical or mechanical apparatus within or servicing the demised premises, furniture,
fixtures, equipment and inventory together with property of others in the care, custody and control
of Tenant. The deductible for property damage under such policy shall not exceed Five Thousand
Dollars ($5,000.00) per occurrence.



     (c) Additional Tenant Insurance. Tenant’s insurance required under Section (27(a) and (b)
above shall also include business income coverage against any interruption (including utility
interruption) in Tenant’s business (whether direct, indirect, contingent or interdependent),
including, but not limited to, coverage for Tenant’s leasehold interests and obligations to
continue paying all rental amounts hereunder, lost revenues and income, and extra expense. Such
coverage should be for a period of at least twelve (12) months, with an extended period of
indemnity of at least thirty (30) days. The deductible for such coverage may not exceed
twenty-four (24) hours.



 









 





     (d) Tenant’s Commercial General Liability Insurance. Tenant agrees to procure and maintain
during the demised term commercial general liability insurance by a responsible insurance company
or companies, with policy limits of not less than the greater of any requirement imposed on
Landlord under the Master Lease or $1,000,000.00 per occurrence and $2,000,000.00 annual aggregate,
and $500,000.00 limits for fire and legal liability, insuring against liability for losses, claims,
demands or actions for bodily injury (including death) and property damage arising from Tenant’s
conduct and operation of its business in and Tenant’s use, maintenance and occupancy of, the
demised premises and any areas adjacent thereto, or the acts or omissions of Tenant’s employees and
agents. Such commercial general liability policy may be written on a blanket basis to include the
demised premises in conjunction with other premises owned or operated by Tenant but shall be
written such that the required policy limits herein specifically apply on a per location basis to
the demised premises. Tenant’s commercial general liability insurance policy shall further
provide: (i) coverage for defense costs (in excess of policy limits); (ii) contractual liability
coverage; (iii) cross-liability coverage; and, (iv) that Landlord, its shareholders, officers,
directors, employees, and agents, Master Landlord, and Master Landlord’s mortgagee, if any, are
named as additional insureds such that (Y) Tenant’s policy shall be the primary source of insurance
for such additional insured and (Z) any liability policy carried by such additional insureds shall
be in excess of, and will not contribute with or to, Tenant’s commercial general liability
insurance required to be maintained hereunder. At the time this Lease is executed and thirty (30)
days prior to the expiration of such insurance policy, Tenant shall furnish to Landlord, Master
Landlord, and Master Landlord’s mortgagee, if any, certificates of insurance evidencing the
continuous existence during the term of this Lease of Tenant’s commercial general liability
insurance coverage, which certificates shall include attachment of additional insured endorsement,
name any and all non-standard exclusions or limitations, and provide not less than thirty (30) days
notice of cancellation or termination to Landlord (and any other additional insured, if
applicable). All insurance companies must be licensed to do business in the state where the
premises are located. Tenant shall further procure and maintain other liability insurance
(including, but not limited to, liquor and pollution insurance) as Landlord may from time to time
reasonably require.



     (e) Worker’s Compensation. Tenant agrees to provide and keep in force at all times worker’s
compensation insurance complying with the law of the state in which the premises are located.
Tenant agrees to defend, indemnify and hold harmless Landlord from all actions or claims of
Tenant’s employees or employee’s family members. Tenant agrees to provide a certificate as
evidence of proof of worker’s compensation coverage.



     If Tenant hires contractors to do any improvements on the demised premises, each contractor
must provide proof of worker’s compensation coverage on its employees and agents to Landlord.



     (f) Contingent Liability and Builder’s Risk Insurance. With respect to any alterations or
improvements by Tenant, Tenant shall maintain contingent liability and builder’s risk coverage
naming Landlord as an additional insured, in compliance with the additional insured requirements
set forth in Section 27(d).



 









 





     (g) Landlord’s Property Insurance. Commencing as of the Commencement Date, and thereafter
throughout the term of this Lease, Landlord shall, at Landlord’s sole cost and expense, provide and
maintain or cause to be provided and maintained a property insurance policy insuring the Building
(including any permanent improvements to the demised premises paid for by the Tenant Reimbursement
but excluding those items insured by Tenant as required under this Section 27) for all the hazards
and perils normally covered by the Causes of Loss-Special Form. Said property insurance policy
shall include endorsements for coverage against: (i) earthquake and flood (including, but not
limited to, mud slide, flood hazard or fault area(s), as designated on any map prepared or issued
for such purpose by any governmental authority); and (ii) increased costs of construction and
demolition due to law and ordinance. The foregoing property coverage shall be provided in amounts
sufficient to provide one hundred percent (100%) of the full replacement cost of all buildings (and
building additions) and other improvements in the Center and in the demised premises and Tenant’s
store building (including any permanent improvements to the demised premises paid for by Tenant
Reimbursement but excluding those items insured by Tenant as required under this Section 27). If
for any reason the Causes of Loss-Special Form is not customarily used in the insurance industry,
then the property insurance policy then in effect shall at least provide coverage for the following
perils: fire, lightning, windstorm and hail, explosion, smoke, aircraft and vehicles, riot and
civil commotion, vandalism and malicious mischief, sprinkler leakage, sinkhole and collapse,
volcanic action, earthquake or earth movement, and flood, and increased costs of construction and
demolition due to law, ordinance and inflation. Neither Tenant nor any of its affiliates or
subtenants shall be liable to Landlord for any loss or damage (including loss of income),
regardless of cause, resulting from fire, flood, act of God or other casualty.



     (h) Landlord’s Commercial General Liability Insurance. Commencing as of the Commencement
Date, and thereafter throughout the term of this Lease, Landlord shall, at Landlord’s sole cost and
expense, provide and maintain or cause to be provided and maintained a commercial general liability
policy, naming Landlord as an insured (and naming Tenant as an additional insured, said additional
insured’s coverage under Landlord’s commercial general liability policy to be primary), protecting
Landlord, the business operated by Landlord, and any additional insureds (including Tenant) against
claims for bodily injury (including death) and property damage occurring upon, in or about the
Center (other than the demised premises and those areas insured by other tenants at the Center),
including Common Areas. Such insurance shall afford protection to the limits of not less than the
greater of any requirement imposed upon Landlord by the Master Lease or One Million Dollars
($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, and Five
Hundred Thousand Dollars ($500,000.00) with respect to property damage for fire legal liability.
All liability policies shall be written on an occurrence form unless such form is no longer
customarily used in the insurance industry. Landlord may use commercially reasonable deductibles
Landlord customarily carries in the conduct of its business; however, the amount of such
deductibles which may be charged to
Tenant pursuant to Section 12.09 below may not exceed $0.20 per square foot of gross leasable
area of the demised premises in any lease year.



     (i) Landlord’s Umbrella. Commencing as of the Commencement Date, and thereafter throughout
the term of this Lease, Landlord shall, at Landlord’s sole cost and expense, provide and maintain
or cause to be provided and maintained an umbrella liability insurance



 









 




policy with a Ten Million
Dollar ($10,000,000.00) minimum annual aggregate, which umbrella policy (or policies) shall list
Landlord’s commercial general liability policy required under this Section 27 and any other
liability policy or policies carried by, or for the benefit of, Landlord as underlying policies.
Said umbrella liability policy shall also name Tenant as an additional insured (said additional
insured’s coverage under Landlord’s umbrella liability policy to be primary). All liability
policies shall be written on an occurrence form unless such form is no longer customarily used in
the insurance industry.




     (j) Tenant Indemnity. Tenant shall indemnify Landlord, Landlord’s agents, employees,
officers or directors, against all damages, claims and liabilities arising from any alleged
products liability or from any accident or injury whatsoever caused to any person, firm or
corporation during the demised term in the demised premises, unless such claim arises from a breach
or default in the performance by Landlord of any covenant or agreement on its part to be performed
under this Lease or, to the extent not required to be insured hereunder, the negligence of
Landlord. The indemnification herein provided shall include all reasonable costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or any action or proceeding
brought thereon.



     (k) Landlord Indemnity. Landlord shall indemnify Tenant, Tenant’s officers, directors,
employees and agents against all damages, claims and liabilities arising from any accident or
injury whatsoever caused to any person, firm or corporation during the demised term in the common
areas of the Shopping Center, unless such claim arises from a breach or default in the performance
by Tenant of any covenant or agreement on Tenant’s part to perform under this Lease or, to the
extent not required to be insured hereunder, the negligence of Tenant. The indemnification herein
provided shall include all reasonable costs, counsel fees, expenses and liabilities incurred in
connection with any such claim or any action or proceeding brought thereon.



SECTION 28. REAL ESTATE TAXES




     (a) Tenant shall pay Tenant’s Proportionate Tax Share of any “real estate taxes” (defined in
Section 28(b) below) for which Landlord has a payment or reimbursement obligation pursuant to the
Master Lease. Tenant’s Proportionate Tax Share shall be equal to the real estate taxes payable by
Landlord to Master Landlord for the applicable Tax Year, as established by the Master Lease,
multiplied by a fraction, the numerator of which shall be the leasable square feet in the demised
premises and the denominator of which shall be the leasable square feet in the Building (prorated
to the extent that the term of this Lease was not in effect for the entire Tax Year, with
appropriate adjustments to reflect any change in the floor area of the premises or the gross
leasable area of a building occurring during such accounting year). Tenant shall initially pay to
Landlord as additional rental, simultaneously with the payment of minimum rental called
for under Section 5(a), the estimated monthly amount of Tenant’s Proportionate Tax Share of
real estate taxes as set forth in Section 5(e) of Two Dollars ($2.00) per square foot, payable in
equal monthly installments of Three Thousand Nine Hundred Twenty-Six Dollars ($3,926.00) as the
estimated amount of Tenant’s Proportionate Tax Share. Within one hundred twenty (120) days after
the end of each Tax Year, Landlord shall provide Tenant with an annual reconciliation of real
estate taxes and a statement of the actual amount of Tenant’s Proportionate Share thereof.



 









 




Any
excess payments from Tenant shall be applied to the next installments of real estate taxes
hereunder, or refunded by Landlord. Any underpayments by Tenant shall be paid to Landlord within
thirty (30) days after receipt of such reconciliation statement. Tenant’s estimated monthly
installment of real estate taxes payable hereunder may be adjusted by written notice from Landlord.




     (b) For the purpose of this Lease, the term “real estate taxes” shall include “Real Estate
Taxes” as defined in the Master Lease. The real estate taxes for any Tax Year shall be the real
estate taxes for which Landlord has a payment or reimbursement obligation pursuant to the Master
Lease during such Tax Year.



     (c) Upon request, Landlord shall submit to Tenant true copies of the real estate tax bills
submitted to Landlord by Master Landlord for each Tax Year or portion of a Tax Year included within
the term of this Lease and shall bill Tenant for the amount to be paid by Tenant hereunder. Said
bill shall be accompanied by a computation of the amount payable by Tenant and such amount shall be
paid by Tenant within thirty (30) days after receipt of said bill.



SECTION 29. TENANT’S INSURANCE CONTRIBUTION




     Tenant shall pay as additional rent, Tenant’s Proportionate Insurance Share of (i) the
premiums for the insurance maintained by Landlord on the Building pursuant to Section 27(g) hereof,
(ii) the insurance premiums for the liability insurance maintained by Landlord on the Center
pursuant to Section 27(h) for each lease year during the term of this Lease, and (iii) any
insurance premiums paid by Master Landlord for which Landlord has a payment or reimbursement
obligation pursuant to the Master Lease (collectively, the “Insurance Charges”). Tenant’s
Proportionate Insurance Share shall be equal to the Insurance Charges multiplied by a fraction, the
numerator of which shall be the leasable square feet in the demised premises and the denominator of
which shall be the leasable square feet in the Building. The premiums for the first and
last lease years shall be prorated. Tenant shall pay Tenant’s Proportionate Share of such premiums
annually upon demand for such payment by Landlord. Tenant’s Proportionate Share thereof shall be
paid by Tenant within thirty (30) days after Landlord’s demand therefore. Tenant shall initially
pay to Landlord as additional rental, simultaneously with the payment of minimum rental called for
under Section 5(a), the estimated monthly amount of Tenant’s Proportionate Share of such insurance
premiums as set forth in Section 5(e), of Twenty-five Cents ($.25) per square foot, payable in
equal monthly installments of Four Hundred Ninety and 75/100 Dollars ($490.75) as the estimated
amount of Tenant’s Proportionate Share of such insurance premiums. Within one hundred twenty (120)
days after the end of each accounting year (which Landlord may change from time to time), Landlord
shall provide Tenant with a reconciliation of the premiums for the insurance maintained by Landlord
hereunder and a statement of the actual amount of Tenant’s Proportionate Share thereof. Any excess
payments from Tenant shall be
applied to the next installments of insurance premiums payable by Tenant hereunder, or
refunded by Landlord. Any underpayments by Tenant shall be paid to Landlord within thirty (30)
days after receipt of such reconciliation statement. Tenant’s monthly installment of insurance
premiums payable hereunder may be adjusted by written notice from Landlord.



 









 





SECTION 30. FIXTURES




     Provided that Tenant shall repair any damage caused by removal of its property and provided
that the Tenant is not in default under this Lease, Tenant shall have the right to remove from the
demised premises all of its signs, shelving, electrical, and other fixtures and equipment, window
reflectors and backgrounds and any and all other trade fixtures which it has installed in and upon
the demised premises.



SECTION 31. SURRENDER




     The Tenant covenants and agrees to deliver up and surrender to the Landlord the physical
possession of the demised premises upon the expiration of this Lease or its termination as herein
provided in as good condition and repair as the same shall be at the commencement of the initial
term, loss by fire and/or ordinary wear and tear excepted, and to deliver all of the keys to
Landlord or Landlord’s agents.



SECTION 32. HOLDING OVER




     There shall be no privilege of renewal hereunder (except as specifically set forth in this
Lease) and any holding over after the expiration by the Tenant shall be from day to day on the same
terms and conditions (with the exception of rental which shall be prorated on a daily basis at
twice the daily rental rate of the most recent expired term) at Landlord’s option; and no
acceptance of rent by or act or statement whatsoever on the part of the Landlord or his duly
authorized agent in the absence of a written contract signed by Landlord shall be construed as an
extension of the term or as a consent for any further occupancy.



SECTION 33. NOTICE




     Whenever under this Lease provisions are made for notice of any kind to Landlord, it shall be
deemed sufficient notice and sufficient service thereof if such notice to Landlord is in writing,
addressed to Landlord at 1800 Moler Road, Columbus, Ohio 43207, or at such address as Landlord may
notify Tenant in writing, 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, with a copy of same sent in like manner to
President, Real Estate, 1800 Moler Road, Columbus, Ohio 43207. Notice to Tenant shall be sent in
like manner to 4150 East Fifth Avenue, Columbus, Ohio 43219, with copies of same sent to (i)
General Counsel, 3241 Westerville Road, Columbus, Ohio 43224-3751 and (ii) Randall S. Arndt, Esq.,
Schottenstein Zox & Dunn, 250 West Street, Columbus, Ohio 43215. All notices shall be effective
upon receipt or refusal of receipt. Either party may change the place for service of notice by
notice to the other party.



SECTION 34. DEFAULT




     (a) Elements of Default: The occurrence of any one or more of the following events shall
constitute a default of this Lease by Tenant:



 









 





     1. Tenant fails to pay any monthly installment of rent within ten (10) days after the same
shall be due and payable, except for the first two (2) times in any consecutive twelve (12) month
period, in which event Tenant shall have five (5) days after receipt of written notice of such
failure to pay before such failure shall constitute a default;



     2. Tenant fails to perform or observe any term, condition, covenant or obligation required to
be performed or observed by it under this Lease for a period of twenty (20) days after notice
thereof from Landlord; provided, however, that if the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably be cured within twenty (20)
days and if Tenant commences such performance or cure within said twenty (20) day period and
thereafter diligently undertakes to complete the same, then such failure shall not be a default
hereunder if it is cured within a reasonable time following Landlord’s notice, but in no event
later than forty-five (45) days after Landlord’s notice.



     3. If Tenant refuses to take possession of the demised premises as required pursuant to this
Lease or abandons the demised premises for a period of thirty (30) days or substantially ceases to
operate its business or to carry on its normal activities in the demised premises as required
pursuant to this Lease.



     4. A trustee or receiver is appointed to take possession of substantially all of Tenant’s
assets in, on or about the demised premises or of Tenant’s interest in this Lease (and Tenant or
any guarantor of Tenant’s obligations under this Lease does not regain possession within sixty (60)
days after such appointment); Tenant makes an assignment for the benefit of creditors; or
substantially all of Tenant’s assets in, on or about the demised premises or Tenant’s interest in
this Lease are attached or levied upon under execution (and Tenant does not discharge the same
within sixty (60) days thereafter).



     5. A petition in bankruptcy, insolvency, or for reorganization or arrangement is filed by or
against Tenant or any guarantor of Tenant’s obligations under this Lease pursuant to any Federal or
state statute, and, with respect to any such petition filed against it, Tenant or such guarantor
fails to secure a stay or discharge thereof within sixty (60) days after the filing of the same.



     (b) Landlord’s Remedies: Upon the occurrence of any event of default, Landlord shall have the
following rights and remedies, any one or more of which may be exercised without further notice to
or demand upon Tenant:



     1. Landlord may re-enter the demised premises and cure any default of Tenant, in which event
Tenant shall reimburse Landlord for any cost and expenses which Landlord may incur to cure such
default; and Landlord shall not be liable to Tenant for any loss or damage which Tenant may sustain
by reason of Landlord’s action.



     2. Landlord may terminate this Lease or Tenant’s right to possession under this Lease as of
the date of such default, without terminating Tenant’s obligation to pay rent due hereunder, in
which event (A): neither Tenant nor any person claiming under or through Tenant shall thereafter be
entitled to possession of the demised premises, and Tenant shall immediately thereafter surrender
the demised premises to Landlord; (B) Landlord may re-enter the demised



 









 




premises and dispose Tenant
or any other occupants of the demised premises by force, summary proceedings, ejectment or
otherwise, and may remove their effects, without prejudice to any other remedy which Landlord may
have for possession or arrearages in rent; and (C) notwithstanding a termination of this Lease,
Landlord may re-let all or any part of the demised premises for a term different from that which
would otherwise have constituted the balance of the term of this Lease and for rent and on terms
and conditions different from those contained herein, whereupon Tenant shall immediately be
obligated to pay to Landlord as liquidated damages the difference between the rent provided for
herein and that provided for in any lease covering a subsequent re-letting of the demised premises,
for the period which would otherwise have constituted the balance of the term of this Lease,
together with all of Landlord’s costs and expenses for preparing the demised premises for
re-letting, including all repairs, tenant finish improvements, broker’s and attorney’s fees, and
all loss or damage which Landlord may sustain by reason of such termination, re-entry and
re-letting, it being expressly understood and agreed that the liabilities and remedies specified
herein shall survive the termination of this Lease. Notwithstanding a termination of this Lease by
Landlord, Tenant shall remain liable for payment of all rentals and other charges and costs imposed
on Tenant herein, in the amounts, at the times and upon the conditions as herein provided.
Landlord shall credit against such liability of the Tenant all amounts received by Landlord from
such re-letting after first reimbursing itself for all reasonable costs incurred in curing Tenant’s
defaults and re-entering, preparing and refinishing the demised premises for re-letting, and
re-letting the demised premises.




     3. Upon termination of this Lease pursuant to Section 34(b)2, Landlord may recover possession
of the demised premises under and by virtue of the provisions of the laws of the Commonwealth of
Pennsylvania, or by such other proceedings, including reentry and possession, as may be applicable.



     4. If the Tenant shall not remove all of Tenant’s property from said demised premises as
provided in this Lease, Landlord, at its option, may remove any or all of said property in any
manner that Landlord shall choose and store same without liability for loss thereof, and Tenant
will pay the Landlord, on demand, any and all reasonable expenses incurred in such removal and
storage of said property for any length of time during which the same shall be in possession of
Landlord or in storage, or Landlord may, upon thirty (30) days prior notice to Tenant, sell any or
all of said property in such manner and for such price as the Landlord may reasonably deem best and
apply the proceeds of such sale upon any amounts due under this Lease from the Tenant to the
Landlord, including the reasonable expenses of removal and sale.



     5. Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at
Landlord’s option, at the time of the reletting, or in separate actions, from time to time, as said
damage shall have been made more easily ascertainable by successive relettings, or at Landlord’s
option in a single proceeding deferred until the expiration of the term of this Lease (in which
event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the
date of expiration of said term) or in a single proceeding prior to either the time of
reletting or the expiration of the term of this Lease.



     6. In the event of a breach by Tenant of any of the covenants or provisions hereof, Landlord
shall have the right of injunction and the right to invoke any remedy allowed at law or



 









 




in equity
as if reentry, summary proceedings, and other remedies were not provided for herein. Mention in
this Lease of any particular remedy shall not preclude Landlord from any other remedy, in law or in
equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in
the event of Landlord obtaining possession of the demised premises by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or other use.




     7. Tenant hereby expressly waives any and all rights of redemption granted by or under any
present or future laws, in the event of eviction or dispossession of Tenant by Landlord under any
provision of this Lease. No receipt of monies by Landlord from or for the account of Tenant or
from anyone in possession or occupancy of the demised premises after the termination of this Lease
or after the giving of any notice shall reinstate, continue or extend the term of this Lease or
affect any notice given to the Tenant prior to the receipt of such money, it being agreed that
after the service of notice or the commencement of a suit, or after final judgment for possession
of said demised premises, the Landlord may receive and collect any rent or other amounts due
Landlord and such payment shall not waive or affect said notice, said suit or said judgment.



     (c) Additional Remedies and Waivers: The rights and remedies of Landlord set forth herein
shall be in addition to any other right and remedy now or hereinafter provided by law and/or equity
and all such rights and remedies shall be cumulative and shall not be deemed inconsistent with each
other, and any two or more or all of said rights and remedies may be exercised at the same time or
at different times and from time to time without waiver thereof of any right or remedy provided or
reserved to Landlord. No action or inaction by Landlord shall constitute a waiver of a default and
no waiver of default shall be effective unless it is in writing, signed by the Landlord.



     (d) Default by Landlord. Any failure by Landlord to observe or perform any provision,
covenant or condition of this Lease to be observed or performed by Landlord, if such 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.



     (e) Interest on Past Due Obligations: All monetary amounts required to be paid by Tenant or
Landlord hereunder which are not paid on or before the due date thereof shall, from and after such
due date, bear interest at the Interest Rate, and shall be due and payable by such party without
notice or demand.



     (f) Tenant’s Remedies. In the event of default by the Landlord with respect to the demised
premises, Tenant shall have the option to cure said default. Landlord shall reimburse Tenant for
the reasonable costs incurred by Tenant in curing such default within thirty (30) days after
invoice thereof by Tenant, together with reasonable evidence supporting such invoiced amount. In
the event Landlord fails to timely reimburse Tenant for any such amounts, Tenant shall have the
right to offset the same against twenty-five percent (25%) of the minimum rent



 









 




and percentage rent
payable hereunder, until such amount has been fully recovered by Tenant. Tenant shall also have
any and all rights available under the laws of the state in which the demised premises are
situated; provided, however, that any additional right of offset available to Tenant shall be
subject to the provisions of Section 36 below.




SECTION 35. WAIVER OF SUBROGATION




     Landlord and Tenant, and all parties claiming under each of them, mutually release 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 demised premises or in connection with
the Shopping Center or activities conducted with the demised premises, and waive any right of
subrogation which might otherwise exist in or accrue to any person on account thereof. All
policies of insurance required to be maintained by the parties hereunder shall contain waiver of
subrogation provisions so long as the same are available.



SECTION 36. LIABILITY OF LANDLORD; EXCULPATION




     (a) Except with respect to any damages resulting from the gross negligence of Landlord, 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, 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 to the extent permitted by law, of every sort, if any, is hereby expressly
waived by Tenant, and by every person now or hereafter claiming any right or security hereunder.



     (b) If the Tenant obtains a money judgment against Landlord, any of its officers, directors,
shareholders, partners, members or their successors or assigns under any provisions of or 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 leasehold estate created by the Master Lease, Tenant shall be entitled to have
execution upon any such final, unappealable judgment only upon Landlord’s leasehold estate in the
Shopping Center (whichever is applicable) and not out of any other assets of Landlord, or any of
its officers, directors, shareholders, members or partners, or their successor or assigns; and
Landlord shall be entitled to have any such judgment so qualified as to constitute a lien only on
said fee simple or leasehold estate.



     Notwithstanding the above, Tenant shall have the right to offset any final, unappealable
judgment against twenty-five percent (25%) of all minimum rent and all percentage rental (but no
other additional rent components) if not paid to Tenant by Landlord within thirty (30) days
thereafter.



 









 





     (c) It is expressly agreed that nothing in this Lease shall be construed as creating any
personal liability of any kind against the assets of any of the officers, directors, members,
partners or shareholders of Tenant, or their successors and assigns.



SECTION 37. RIGHTS CUMULATIVE




     Unless expressly provided to the contrary in this Lease, each and every one of the rights,
remedies and benefits provided by this Lease shall be cumulative and shall not be exclusive of any
other of such rights, remedies and benefits or of any other rights, remedies and benefits allowed
by law.



SECTION 38. MITIGATION OF DAMAGES




     Notwithstanding any of the terms and provisions herein contained to the contrary, Landlord and
Tenant shall each have the duty and obligation to mitigate, in every reasonable manner, any and all
damages that may or shall be caused or suffered by virtue of defaults under or violation of any of
the terms and provisions of this Lease agreement committed by the other.



SECTION 39. SIGNS




     No signs shall be placed on the demised premises by Tenant except as shall comply with all
applicable governmental codes, restrictions of record in accordance with Section 7 above, sign
criteria established by Master Landlord for the Shopping Center or Landlord for the Building, and
with the prior written consent of Landlord (not to be unreasonably withheld) after sign drawings
have been submitted to Landlord by Tenant. Subject to the foregoing, Tenant shall have the right
to install its prototypical signage and awnings on the front of the demised premises as described
on Exhibit “E” attached hereto and made a part hereof. Tenant shall be entitled to pylon,
monument or other freestanding signage as shown on Exhibit “E” (and any future replacement
signage therefore).



SECTION 40. ENTIRE AGREEMENT




     This Lease shall constitute the entire agreement of the parties hereto; all prior agreements
between the parties, whether written or oral, are merged herein and shall be of no force and
effect. This Lease cannot be changed, modified, or discharged orally but only by an agreement in
writing signed by the party against whom enforcement of the change, modification or discharge is
sought.



SECTION 41. LANDLORD’S LIEN — DELETED BY INTENTION




SECTION 42. BINDING UPON SUCCESSORS




     The covenants, conditions, and agreements made and entered into by the parties hereto shall be
binding upon and inure to the benefit of their respective heirs, representatives, successor and
assigns.



 









 





SECTION 43. HAZARDOUS SUBSTANCES




     (a) During the term of this Lease, Tenant shall not suffer, allow, permit or cause the
generation, accumulation, storage, possession, release or threat of release of any hazardous
substance or toxic material, as those terms are used in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and any regulations promulgated thereunder, or
any other present or future federal, state or local laws, ordinances, rules, and regulations.
Tenant shall indemnify and hold Landlord harmless from any and all liabilities, penalties, demands,
actions, costs and expenses (including without limitation reasonable attorney fees), remediation
and response costs incurred or suffered by Landlord directly or indirectly arising due to the
breach of Tenant’s obligations set forth in this Section. Such indemnification shall survive
expiration or earlier termination of this Lease. At the expiration or sooner termination hereof,
Tenant shall return the demised premises to Landlord in substantially the same condition as existed
on the date of commencement hereof free of any hazardous substances in, on or from the demised
premises.



     (b) Landlord hereby represents and warrants that, except as set forth in that certain Phase I
Environmental Site Assessment dated                                         : (i) it has not used, generated,
discharged, released or stored any hazardous substances on, in or under the Shopping Center and has
received no notice and has no knowledge of the presence in, on or under the Shopping Center of any
such hazardous substances; (ii) to Landlord’s knowledge there have never been any underground
storage tanks at the Shopping Center, whether owned by the Landlord or its predecessors in
interest; (iii) to Landlord’s knowledge there have never been accumulated tires, spent batteries,
mining spoil, debris or other solid waste (except for rubbish and containers for normal scheduled
disposal in compliance with all applicable laws) in, on or under the Shopping Center; (iv) to
Landlord’s knowledge it has not spilled, discharged or leaked petroleum products other than de
minimis quantities in connection with the operation of motor vehicles on the Shopping Center; (v)
to Landlord’s knowledge there has been no graining, filling or modification of wetlands (as defined
by federal, state or local law, regulation or ordinance) at the Shopping Center; and (vi) to
Landlord’s knowledge there is no asbestos or asbestos-containing material in the demised premises.
The representations and warranties set forth in this subparagraph shall apply to any contiguous or
adjacent property owed by the Landlord. Landlord hereby indemnifies Tenant for any and all loss,
cost, damage or expense to Tenant resulting from any misrepresentation or breach of the foregoing
representations and warranties.



     (c) If any such hazardous substances are discovered at the Shopping Center (unless introduced
by the Tenant, its agents or employees) or if any asbestos or asbestos containing material is
discovered in the demised premises (unless introduced by the Tenant, its agents or employees), and
removal, encapsulation or other remediation is required by applicable laws, the Landlord
immediately and with all due diligence and at no expense to the Tenant shall take all measures
necessary to comply with all applicable laws and to remove such hazardous substances or asbestos
from the Shopping Center and/or encapsulate or remediate such hazardous substances or asbestos,
which removal and/or encapsulation or remediation shall be in



 









 




compliance with all environmental
laws and regulations, and the Landlord shall repair and restore the Shopping Center at its expense.
From the date such encapsulation, remediation and restoration is complete, the rent due hereunder
shall be reduced by the same percentage as the percentage of the demised premises which, in the
Tenant’s reasonable judgment, cannot be safely, economically or practically used for the operation
of the Tenant’s business. Anything herein to the contrary notwithstanding, if in the Tenant’s
reasonable judgment, such removal, encapsulation, remediation and restoration cannot be completed
within one hundred eighty (180) days or the same is not actually completed by Landlord within such
one hundred eighty (180) day period following the date such hazardous substances or asbestos are
discovered and such condition materially adversely affects Tenant’s ability to conduct normal
business operations in the premises, then the Tenant may terminate this Lease by written notice to
the Landlord within thirty (30) days after such 180 day period, which notice shall be effective on
Landlord’s receipt thereof. Landlord shall comply with OSHA 29 CFR 1910.1001 (j) to notify
tenants, including Tenant, of asbestos related activities in the demised premises and the Shopping
Center including, but not limited to, selection of the certified/licensed asbestos abatement
contractor, scope of the abatement work, and final clearance testing procedures and results.




SECTION 44. TRANSFER OF INTEREST




     If Landlord should sell or otherwise transfer its interest in the demised premises, upon an
undertaking by the purchaser or transferee to be responsible for all the covenants and undertakings
of Landlord accruing subsequent to the date of such sale or transfer, Tenant agrees that Landlord
shall thereafter have no liability to Tenant under this Lease or any modifications or amendments
thereof, or extensions thereof, except for such liabilities which might have accrued prior to the
date of such sale or transfer of its interest by Landlord.



SECTION 45. ACCESS TO PREMISES




     Landlord and its representatives shall have free access to the demised premises at all
reasonable times for the purpose of: (a) examining the same or to make any alterations or repairs
to the demised premises that Landlord may deem necessary for its safety or preservation; (b)
exhibiting the demised premises for sale or mortgage financing; (c) during the last three (3)
months of the term of this Lease, for the purpose of exhibiting the demised premises and putting up
the usual notice “for rent” which notice shall not be removed, obliterated or hidden by Tenant,
provided, however, that any such action by Landlord shall cause as little inconvenience as
reasonably practicable and such action shall not be deemed an eviction or disturbance of Tenant nor
shall Tenant be allowed any abatement of rent, or damages for an injury or inconvenience occasioned
thereby.



SECTION 46. HEADINGS




     The headings are inserted only as a matter of convenience and for reference and in no way
define, limit or describe the scope or intent of this Lease.



 









 





SECTION 47. NON-WAIVER




     No payment by Tenant or receipt by Landlord or its agents of a lesser amount than the rent in
this Lease stipulated shall be deemed to be other than on account of the stipulated rent nor shall
an endorsement or statement on any check or any letter accompanying any check or payment of rent be
deemed an accord and satisfaction and Landlord or its agents may accept such check or payment
without prejudice to Landlord’s right to recover the balance of such rent or pursue any other
remedy in this Lease provided.



SECTION 48. SHORT FORM LEASE




     This Lease shall not be recorded, but a short form lease, which describes the property herein
demised, gives the term of this Lease and refers to this Lease, shall be executed by the parties
hereto, upon demand of either party and such short form lease may be recorded by Landlord or Tenant
at any time either deems it appropriate to do so. The cost and recording of such short form lease
shall belong to the requesting party.



SECTION 49. ESTOPPEL CERTIFICATE




     Each party agrees that at any time and from time to time on ten (10) days prior written
request by the other, it will execute, acknowledge and deliver to the requesting party a statement
in writing stating that this Lease is unmodified and in full force and effect (or, if there have
been modifications, stating the modifications, and that the Lease as so modified is in full force
and effect, and the dates to which the rent and other charges hereunder have been paid, and such
other information as may reasonably re requested, it being intended that any such statements
delivered pursuant to this Section may be relied upon by any current or prospective purchaser of or
any prospective holder of a mortgage or a deed of trust upon or any interest in the fee or any
leasehold or by the mortgagee, beneficiary or grantee of any security or interest, or any assignee
of any thereof or under any mortgage, deed of trust or conveyance for security purposes now or
hereafter done or made with respect to the fee of or any leasehold interest in the demised
premises.



SECTION 50. MASTER LEASE CONTINGENCIES 




     This Lease and the liability of Tenant hereunder is and shall be wholly contingent upon Tenant
obtaining, on or before November 1, 2006, the following:




	 	(i)	 	an Estoppel Certificate in form and substance reasonably acceptable to Tenant
executed by Master Landlord stating that the Master Lease is in good standing, with no
defaults thereunder, and addressing such other matters pertaining to the Master Lease
as Landlord may require in its reasonable discretion;
	 
	 	(ii)	 	a copy of a Subordination, Non-disturbance and Attornment Agreement in form
and substance reasonably acceptable to Tenant, duly executed by the holder of any
mortgage or deed of trust on the Project, pursuant to which the lender agrees to
recognize the leasehold rights created by the Master Lease in the event that Master
Landlord shall default under such mortgage or deed of trust;





 









 






	 	(iii)	 	any consents to Landlord’s Work, Tenant’s Work or Tenant’s signage required
by the Master Lease; and
	 
	 	(iv)	 	such other consents, approvals or information that Tenant may reasonably
require pursuant to its review of the Master Lease.





SECTION 51. PROVISIONS WITH RESPECT TO MASTER LEASE




     (a) Consents and Approvals. Wherever pursuant to the Master Lease and this Lease the
consent and/or approval of the Master Landlord and Landlord is required, Landlord’s refusal to
consent to or approve any matter or thing shall be deemed reasonable if the consent or approval of
Master Landlord is required, and despite Landlord’s commercially reasonable efforts, such consent
or approval has not been obtained from Master Landlord. In the event that Tenant seeks the
consent or approval of Master Landlord, Tenant shall submit such request to Landlord and Landlord
shall promptly thereafter submit such request to Master Landlord and use commercially reasonable
efforts to obtain on behalf of Tenant such consent or approval of Master Landlord, but at no cost
or expense to Landlord.



     (b) Master Landlord Default and Remedy. If Master Landlord fails to perform any
obligation which it has under the Master Lease and such failure materially adversely effects the
rights of Tenant hereunder or its ability to use, operate and maintain its business in the
premises, then Tenant shall prepare and deliver to Landlord a written notice specifying such
failure to perform in reasonable detail. Landlord shall promptly thereafter transmit such notice
to Master Landlord and shall use commercially reasonable efforts to cause Master Landlord to
perform such obligation. If, despite Landlord’s reasonable efforts, Master Landlord fails to timely
perform such obligation as required by the Master Lease, Landlord hereby assigns to Tenant the
right, at Landlord’s expense, to enforce such obligations against Master Landlord on behalf of
Landlord. Landlord agrees to cooperate with Tenant in such enforcement efforts, at no expense to
Tenant, and shall permit Tenant to undertake such efforts in Landlord’s name, if necessary in order
to effectively prosecute such enforcement actions. The foregoing is in addition to any and all
other remedies available to Tenant under this Sublease or at law or in equity, including but not
limited to, exercise of “self-help” remedies.



SECTION 52. BROKER




     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 to any broker other than CAMM Management and Metro Commercial.
Landlord agrees to be solely responsible for any and all commission due to
such broker pursuant to a separate written agreement between Landlord and such broker. Each
party shall indemnify and hold the other party harmless from and against any claim or demand by any
broker or other person for bringing about this Lease who claims to have dealt with such
indemnifying party, including all expenses incurred in defending any such claim or demand
(including reasonable attorney’s fees).



 









 





SECTION 53. UNAVOIDABLE DELAYS




     In the event either party hereto (the “Delayed Party”) shall be delayed or hindered in 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 52 shall not operate to excuse either party
from the payment of any rental or other monetary sums due under the terms of this Lease.



SECTION 54. TIMELY EXECUTION OF LEASE




     Landlord and Tenant agree that this Lease, and the parties’ obligations hereunder, shall
automatically be null and void and this Lease shall terminate automatically without further action
of the parties if both parties do not execute this Lease and both parties have not received an
original thereof within sixty (60) days after the date of execution hereof by the first party to
execute this Lease.



SECTION 55. ACCORD AND SATISFACTION




     No payment by Tenant or receipt by Landlord of a lesser amount than the entire rent and all
other additional rents and charges hereunder shall be deemed to be other than payment on account of
the earliest stipulated rent and other additional rents and charges hereunder, nor shall any
endorsement or statement on any check or any letter accompanying any check or payment for rent or
other additional rent and charges be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord’s right to recover the balance of such rent and
other additional rents and charges or pursue any other right or remedy available to the Landlord.



SECTION 56. WAIVER OF JURY TRIAL




     The Landlord, Tenant any Guarantor(s) do hereby knowingly, voluntarily and intentionally waive
the right to a trial by jury of any and all issues either now or hereinafter provided by law in any
action or proceeding between the parties hereto, or their successors, arising directly or
indirectly out of or in any way connected with this Lease or any of its provisions, the Tenant’s
use or occupancy of said premises and/or any claim for personal injury
or property damage including, without limitation, any action to rescind or cancel this Lease,
and any claim or defense asserting that this Lease was fraudulently induced or is otherwise void or
voidable. It is intended that said waiver shall apply to any and all defenses, rights and/or
counterclaims in any action or proceeding at law or in equity. This waiver is a material
inducement for Landlord and Tenant to enter into this Lease.



 









 





SECTION 57. LEASEHOLD FINANCING




     (a) Tenant’s Financing Rights. Landlord acknowledges and agrees that Tenant may from time to
time during the term, without the consent of Landlord, mortgage or otherwise finance and encumber,
whether by leasehold deed of trust or mortgage, collateral assignment of this Lease,
lease/sublease-back, and/or assignment/leaseback, any and/or all of its leasehold estate hereunder,
and property and rights in and to the Leased Premises granted to it under this Lease, as security
for the payment of an indebtedness (any and all of which are herein referred to as a “Leasehold
Mortgage” and the holder thereof is herein referred to as “Leasehold Mortgagee”). Any such
Leasehold Mortgage shall be a lien only upon Tenant’s leasehold estate hereunder and Tenant’s
interests in this Lease. Leasehold Mortgagee or its assigns may enforce such Leasehold Mortgage and
acquire title to the leasehold estate and Tenant’s interest in the Leased Premises in any lawful
way, and in connection therewith Leasehold Mortgagee may take possession of and rent the Leased
Premises.



     (b) Cooperation with Leasehold Mortgagee. Tenant shall notify Landlord (and any Fee Mortgagee,
as hereinafter defined in Section 57(c) below), in the manner hereinafter provided for the giving
of notice, of the execution of such Leasehold Mortgage and the name and place for service of notice
upon Leasehold Mortgagee. Upon such notification of Landlord that Tenant has entered into a
Leasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and upon
written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee: (i) a
commercially reasonable “Landlord’s Agreement” and (ii) a commercially reasonable “Landlord’s
Waiver”, as described in Section 57(d) below. Landlord further agrees that it will comply with all
of the covenants and obligations contained in said documents.



     (c) Tenant shall notify Landlord (and any Landlord Mortgagee, as hereinafter defined in
Section 57(e) below), in the manner hereinafter provided for the giving of notice, of the execution
of such Leasehold Mortgage and the name and place for service of notice upon Leasehold Mortgagee.
Upon such notification of Landlord that Tenant has entered into a Leasehold Mortgage, Landlord
hereby agrees for the benefit of such Leasehold Mortgagee, and upon written request by Tenant, to
execute and deliver to Tenant and Leasehold Mortgagee a “Landlord’s Agreement” whereby Landlord
agrees to recognize the interest of Leasehold Mortgagee and any Successor-Tenant hereunder, on
commercially reasonable terms and conditions acceptable to Leasehold Mortgagee.



     (d) Landlord does hereby waive any statutory or other lien of the Landlord in Tenant’s present
and after-acquired assets, including among other things, Tenant’s inventory and equipment. To
evidence such waiver for the benefit of any lender of Tenant, Landlord shall, upon request, execute
and deliver to Tenant a commercially reasonable “Landlord’s Waiver”.



     (e) Landlord represents to Tenant that as of the date of this Lease there is no mortgage
encumbering Landlord’s leasehold interest in the Building or common areas, and that there will not
be such a mortgage for at least sixty (60) days after the date this Lease is fully executed by
Landlord and Tenant.



 









 





SECTION 58. TENANT’S REIMBURSEMENT




     (a) Landlord shall pay Tenant Two Hundred Eighty Thousand Dollars ($280,000.00) (the “Tenant
Reimbursement”), as payment for a portion of the actual cost incurred by Tenant to complete
Tenant’s Work within the demised premises as detailed on Exhibit C. The Tenant Reimbursement shall
be paid by Landlord to Tenant within ten (10) days of the later of (i) Tenant opening for business
in the demised premises and (ii) Tenant providing to Landlord a lien waiver from Tenant’s general
contractor. In the event Landlord does not timely pay the Tenant Reimbursement to Tenant, (a)
Landlord shall pay to Tenant interest on such unpaid amounts at the Interest Rate and (b) 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.



     (b) 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 Improvement.