GROUND LEASE AGREEMENT

EXHIBIT 10.53 GROUND LEASE AGREEMENT ADJACENT SHOPPING CENTER: POLARIS FASHION PLACE LOCATION: COLUMBUS, OHIO LANDLORD: POLARIS MALL, LLC TENANT: SSC - POLARIS LLC LEGAL/DSW12

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iii GROUND LEASE AGREEMENT THIS GROUND LEASE AGREEMENT (this "Lease") is made as of this 30th day of April 2002, by and between POLARIS MALL, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("Landlord"), with its principal office at 20 South Third Street, Columbus, Ohio 43215, and SSC - POLARIS LLC, AN OHIO LIMITED LIABILITY COMPANY ("Tenant"), with its principal office at 1800 Moler Road, Columbus, Ohio 43207. ARTICLE I. GRANT AND TERM SECTION 1.01 - PREMISES: Landlord hereby leases to Tenant for the term and upon the covenants hereinafter set forth, (a) a parcel of property in the City of COLUMBUS, County of DELAWARE, and the State of OHIO, containing FOUR AND THREE HUNDRED FIFTY EIGHT THOUSANDS (4.358) acres of land (the "Premises") located adjacent to the shopping center designated as POLARIS FASHION PLACE, or by such other name as Landlord may, from time to time hereafter designate (the "Shopping Center") and (b) the right and easement to use in common with others entrances, roadways, service drives, parking lots and other access areas located in or serving the Shopping Center and/or located in or serving the outparcels adjacent thereto which are owned by Landlord, as more fully set forth in Article V hereof. The Premises are shown on the site plan attached hereto and made a part hereof as Exhibit "A", and more particularly described in the legal description attached hereto and made a part hereof as Exhibit "B". In the event of any inconsistency between the site plan of the Premises attached hereto as Exhibit "A" and the legal description attached hereto as Exhibit "B", the legal description on Exhibit "B" shall be the authoritative description. Notwithstanding the foregoing, however, Landlord agrees not to modify the Access Easement Area (as defined in Section 5.02 hereof), without the prior written consent of Tenant, which consent Tenant agrees not to unreasonably withhold or delay. Landlord further agrees to use commercially reasonable efforts not to materially interfere with access to, or visibility of, the Premises from the Shopping Center during the term of this Lease as it develops the 1.617 acre parcel adjacent to the Premises shown on Exhibit A, page 2 hereof (hereinafter known as "Parcel C"). SECTION 1.02 - ENCUMBRANCES AND RESTRICTIONS: This Lease and the Premises are subject to all applicable building restrictions, planning and zoning ordinances, governmental rules and regulations, and all other encumbrances, restrictions and easements affecting the Premises and the terms and provisions of any declarations, reciprocal easement and operating agreements or other restrictions of record affecting the Premises, as well as all matters that can be disclosed by inspection or survey of the Premises. SECTION 1.03 - TERM: The term of this Lease shall be for a period of FIFTEEN (15) Lease Years commencing the earlier of (i) the date on which Tenant shall open for business at all or any part of the Premises, or (ii) the date which is 167 days after this Ground Lease is signed and all contingencies to the commencement of construction have been cleared, whichever occurs first (the "Term Commencement Date"), and expiring midnight on the last day of the month in which the FIFTEENTH (15th) anniversary of the Term Commencement Date occurs, unless sooner terminated in accordance with the provisions hereof (the "Expiration Date"). The term "Lease Year" as used in this Lease shall be defined to mean each successive twelve (12) month period commencing on the Term Commencement Date. If the term commences on a day other than the first day of the month, then the first Lease Year shall be extended for such a fractional month. All subsequent Lease Years shall continue for twelve (12) calendar months thereafter, except that the last Lease Year shall terminate on the date this Lease is terminated. Within thirty (30) days after the Term Commencement Date, Landlord and Tenant shall enter into a supplemental agreement prepared by Landlord which affirms the date of expiration of Tenant's Contingency Period, the Term Commencement Date, and the Expiration Date. Notwithstanding anything in the Lease to the contrary, if the Term Commencement Date occurs between November 15 and the immediately following January 31 (the "Window Period"), then the Term Commencement Date shall instead be the earlier of (i) the first day following the end of any such Window Period, or (ii) the date on which Tenant shall open the Premises, or any part thereof, for business to the general public. SECTION 1.04 - OPTIONS: Provided Tenant is open and operating and is not otherwise in Default (hereinafter defined), Tenant shall have, upon the expiration date of the initial term of this Lease, the right to extend the term of this Lease for FOUR (4) additional periods of FIVE (5) Lease Years ("Option Term(s)") upon the same terms, covenants, conditions and provisions of this Lease, except that the Minimum Rent shall be as set forth in Section 2.01 and Percentage Rent shall be as set forth in Section 2.02 of this Lease. The granting of the Option Term shall be null and void should Tenant be in Default upon either the Expiration Date or upon the date of exercise of the Option Term by Tenant. In order to exercise the Option Term, Tenant shall provide Landlord with written notice of such exercise at least one hundred eighty (180) days prior to the Expiration Date (or the end of the current Option Term if Tenant has so extended the initial term). Failure to so provide said notice shall render all subsequent Option Terms null and void. SECTION 1.05 - CONDITIONS PRECEDENT (TITLE NON-DISTURBANCE): This Lease and the obligations of Tenant hereunder shall be contingent upon the satisfaction and/or waiver by Tenant, on or before a date which is thirty (30) days following the Effective Date of this Lease, as defined in Section 19.16 hereof (said date shall hereinafter be referred to as the "Contingency Date"), of the following contingencies (the (DSW12 1 "Contingencies"): (a) the condition of title to the Premises and the Access Easement Areas serving the Premises shall be satisfactory in all respects to Tenant, (b) the environmental condition of the Premises shall be satisfactory in all respects to Tenant, (c) the results of Tenant's Investigations (as defined in Section 3.01 hereof) shall be satisfactory in all respects to Tenant and (d) a Subordination, Non-disturbance and Attornment Agreement ("SNDA) substantially similar to the form of the Subordination, Non-Disturbance and Attornment Agreement attached hereto as Exhibit "F" shall have been executed by any mortgage holder or master Landlord with an interest in the Premises and delivered to Tenant. Landlord shall cooperate with Tenant in the satisfaction of the Contingencies; in connection therewith, Landlord shall, on or before the Effective Date, forward to Tenant a copy of its lender's standard form of SNDA, together with Landlord's most recent owner's title insurance policy, survey and environmental site assessment for the Premises. In the event that the Contingencies are not satisfied or waived by Tenant, on or before the Contingency Date, Tenant shall have the right to terminate this Lease upon written notice given to Landlord by Tenant. Failure by Tenant to give to Landlord written notice of termination on or before the Contingency Date shall be deemed a waiver of such termination rights hereunder. SECTION 1.06 - SURVEY: (a) Within thirty (30) days of the date of this Lease, Landlord shall, at Tenant's sole cost and expense, procure and deliver to Tenant an ALTA Survey of the Premises and Access Easement Area showing no easements or other matters of survey that materially interfere with Tenant's development and use of the Premises or Tenant's use of the Access Easement Area, as contemplated herein. (b) The foregoing survey shall, at Tenant's sole cost and expense, be revised within ninety (90) days following completion of construction of all Improvements by or for Tenant on the Premises and its appurtenances to reflect final as-built conditions within said area, and shall then be recertified to Landlord, Tenant and the Title Company (hereinafter defined) in accordance with the foregoing provisions. Said as-built survey shall demonstrate that Tenant's building and all storm-water retention and detention facilities associated therewith are located entirely within the boundaries of the Premises and do not encroach upon any property outside of said boundaries. ARTICLE II. RENT SECTION 2.01 - MINIMUM RENT: Commencing on the Term Commencement Date and continuing during the entire term of this Lease, Tenant shall pay annual "Minimum Rent" for the Premises payable to Landlord, without demand, deduction, set-off or counterclaim, in equal installments (the "Monthly Minimum Rent") in advance, on or before the first (1st) day of each month, as follows:

The first installment of Minimum Rent shall be paid upon the Term Commencement Date. If the Term Commencement Date occurs on other than the first (1st) day of a month, Minimum Rent shall be prorated on a daily basis on the basis of a thirty (30) day month. Assessment Market Value shall mean the assessed value of the Premises and all improvements situated thereon as reflected on the books of the Delaware County, Ohio auditor on the last day of the 30th Lease Year. SECTION 2.02 - PERCENTAGE RENT: During and for each Lease Year, Tenant shall pay percentage rent ("Percentage Rent") which is defined herein as the Percentage (set forth below) of Gross Sales in excess of a specified Gross Sales break point ("Break Point"), as follows:

(DSW12 2 Percentage Rent, if any, shall be paid by Tenant to the Landlord within ninety (90) days after the end of each Lease Year. In the event that any Lease Year during the term hereof is less than twelve (12) full calendar months, then, for the purpose of computing the Percentage Rent for any such short Lease Year, the Break Point for such short Lease Year shall be adjusted by multiplying the Break Point otherwise applicable for such Lease Year by a fraction, the numerator of which shall be the actual number of days in such short Lease Year, and the denominator of which shall be the number three hundred sixty five (365). Each such payment shall be accompanied by a statement signed by an authorized representative of Tenant setting forth Tenant's Gross Sales for such Lease Year. SECTION 2.03 - GROSS SALES DEFINED: Tenant's "Gross Sales" is defined to mean the total amount, expressed in dollars, of all sales and rentals of merchandise, concessions or services arising out of or payable on account of the business conducted in, on or from the Premises by or on account of Tenant or any subtenant, assignee, licensee or concessionaire of Tenant for cash or credit, including all orders for merchandise taken at or sold from the Premises, and including any fees, such as membership fees. Gross Sales shall exclude the following: (i) proceeds from any sales tax, gross receipts tax or similar tax, by whatever name called, (ii) bona fide transfers of merchandise from the Premises to any other stores or warehouses of Tenant that are not intended to avoid a sale at the Premises, (iii) refunds given to customers for merchandise returned or exchanged, and (iv) sales of Tenant's fixtures and equipment not in the ordinary course of Tenant's business, (v) sums and credits received in the settlement of claims for loss of or damage to merchandise, (vi) receipts from vending machines used for employees only, (vii) sales to Tenant's employees at a discount, not to exceed one percent (1%) of Gross Sales per Lease Year, (viii) bad debts or bad checks when written off the books of Tenant to the extent the same shall not exceed one percent (1%) of Gross Sales per Lease Year, provided, however, if any amounts previously written off are subsequently collected, then such amounts collected shall be included in Gross Sales for the Lease Year in which the same are collected, (ix) delivery charges separately billed to Tenant's customers at no profit to Tenant, and (x) bulk sales of goods in connection with the sale of Tenant's business. SECTION 2.04 - TENANT'S BOOKS AND RECORDS: Tenant shall keep at the Premises or at its principal office within the continental United States, a full and accurate set of books and records adequately showing the amount of Tenant's Gross Sales in each Lease Year. Such books shall be kept in accordance with generally accepted accounting principles, shall be retained by Tenant for a period of not less than three (3) years following the end of the Lease Year to which they have reference, and shall include without limitation (i) detailed original records of all sales at, in or from the Premises, (ii) detailed original records of any exclusions or deductions from Gross Sales, (iii) sales tax records and reports, and (iv) all other records, if any, which would normally be examined by an independent accountant pursuant to accepted auditing standards in performing an audit of Tenant's sales. When and as Landlord may reasonably require, Tenant shall also furnish to Landlord any and all statements, information and copies of sales and income tax reports and returns which separately show financial data for the Premises, and other data evidencing Tenant's Gross Sales. Within fifteen (15) days following the end of each calendar month Tenant shall submit to Landlord an unaudited statement of Tenant's Gross Sales for such calendar month. Within sixty (60) days after the close of each Lease Year, Tenant shall furnish to Landlord a statement certified by an authorized officer or principal of Tenant setting forth the amount of Tenant's Gross Sales during the preceding Lease Year. All Gross Sales statements to be supplied by Tenant to Landlord shall be in such form and with such detail as Landlord shall reasonably deem necessary. Landlord shall have the right, at any time and from time to time upon at least five (5) days prior written notice and not more often than once per Lease Year, to inspect or audit the sales records of Tenant (including the books and records of any concessionaire, subtenant or licensee) at the business office of Tenant or its subtenant. If Tenant's Gross Sales exceed those reported by two percent (2%) or more, Tenant shall pay Landlord's cost of inspection or audit. In the event that Tenant fails to provide such Gross Sales statement(s) within the specified time period(s) after the end of each month and or Lease Year, then, in addition to being in Default, Tenant shall be required to pay Landlord Ten Dollars ($10.00) per late statement for each day that Tenant is delinquent in submitting each statement(s). Notwithstanding the foregoing, Tenant's failure to provide such Gross Sales statement as set forth above shall not be a Default and the aforesaid late statement fee shall be inapplicable in any Lease Year until Landlord shall have provided Tenant with two (2) written notices of such late statements) and a ten (10) day opportunity to cure. Thereafter, no such late statement notice shall be required for the remainder of that Lease Year, regardless of whether Tenant cures within the aforesaid ten (10) day cure period(s). SECTION 2.05 - PAYMENTS BY TENANT: Throughout the term of this Lease, Tenant shall pay to Landlord, without demand, deductions, set-offs or counterclaims (except as expressly set forth herein), the rent, which is hereby defined as the sum of the Minimum Rent, Percentage Rent, and all Additional Rent, when and as the same shall be due and payable hereunder. Unless otherwise stated, all sums of money or charges payable to Landlord from Tenant by this Lease, other than Minimum Rent and Percentage Rent, are defined as "Additional Rent" and are due thirty (30) days after the rendering of an invoice therefor, without any deductions, set-offs or counterclaims (except as expressly set forth herein), and failure to pay such charges carries the same consequences as Tenant's failure to pay Minimum Rent or Percentage Rent. All payments and charges required to be made by Tenant to Landlord hereunder shall be payable in coin or currency of the United States of America, at the address indicated herein. No payment to or receipt by Landlord of a lesser amount than that then amount required to be paid hereunder shall be deemed to be other than on account of the earliest amount of such obligation then due hereunder. No endorsement or statement on any check or other communication accompanying a check for payment of any amounts payable hereunder shall be deemed an accord and satisfaction, and Landlord may accept such check in payment without prejudice to Landlord's right to recover the balance of any sums owed by Tenant hereunder. (DSW12 3 SECTION 2.06 - SECURITY DEPOSIT: Intentionally Omitted. SECTION 2.07 - LATE CHARGE: In the event any sums required hereunder to be paid are not received by Landlord on or before the date the same are due, then, Tenant shall immediately pay, as Additional Rent, a service charge equal to the greater of One Hundred Dollars ($100.00), or five percent (5%) of the past due sum. In addition, interest shall accrue on all past due sums at an annual rate equal to the greater of one and one-half percent (11/2%) per month, or three percent (3%) in excess of the prime rate of interest announced from time to time by The Chase Manhattan Bank N.A., or its successor institution, but not in excess of the maximum legal rate. Such interest shall also be deemed Additional Rent. Notwithstanding this service and interest charge, Tenant shall be in Default if all payments required to be made by Tenant are not made at or before the times herein stipulated. Notwithstanding the foregoing, this Section 2.07 shall be inapplicable in any Lease Year until Landlord shall have provided Tenant with two (2) written notices of such delinquent payment(s) and a ten (10) day opportunity to cure. Thereafter, no notice shall be required for the remainder of that Lease Year, regardless of whether Tenant cures within the aforesaid ten (10) day cure period(s). ARTICLE III. PREPARATION OF PREMISES SECTION 3.01 - EARLY ENTRY: (a) Commencing on the Effective Date and continuing through the Contingency Date ("Tenant's Early Entry Period"), Tenant and its agents, contractors, engineers and other duly authorized representatives shall have the right to enter upon the Premises and, at Tenant's sole cost and expense, to perform such economic, surveying, engineering, topographic, environmental, marketing and other tests, studies and investigations (collectively, "Tenant's Investigations") as Tenant reasonably deems appropriate, provided, all Tenant's Investigations shall be conducted in a manner that minimizes any disruption to the Premises, the Shopping Center, and the activities of Landlord and all of Landlord's tenants and the customers thereof ("Tenant's Early Entry Right"). Tenant shall provide Landlord with copies of any environmental reports derived from Tenant's Investigations within five (5) days after receipt of the same. Tenant's Investigations shall not include any intrusive testing, including, without limitation, a Phase II environmental assessment or boring, without submitting to Landlord the proposed scope and nature of the inspections, and obtaining the prior written consent of Landlord to proceed with the same. In the event this Lease is terminated on or before the Contingency Date as provided in Section 1.05 hereof, Tenant shall promptly (i) restore the Premises to substantially the same condition existing as of the date that Tenant or its agents, contractors, engineers and other duly authorized representatives first entered upon the Premises, and (ii) vacate the Premises (including, without limitation, removal from the Premises of all equipment, debris and waste). Tenant shall hold Landlord harmless and indemnify Landlord from and against any and all liens, claims, demands, judgments, damages, penalties, fines, costs, losses or expenses, including but not limited to reasonable attorneys' fees, that may arise as a result of Tenant's Investigations and/or entry on to the Premises by Tenant or its employees, agents, contractors, engineers or other duly authorized representatives during Tenant's Early Entry Period. Tenant's aforesaid obligations shall survive the termination of this Lease. (b) In the event that the results of Tenant's Investigations are not satisfactory to Tenant, Tenant shall have the right to terminate this Lease in the manner and at the times set forth in Section 1.05 hereof. (c) All information obtained by Tenant from Tenant's Investigations shall be deemed to be "Confidential Information". Except for disclosure to prospective subtenants and prospective lenders (who shall keep such information confidential) and as otherwise required by law, Tenant shall (i) keep confidential all Confidential Information and not disclose of the same without the prior written consent of Landlord, and (ii) use, and permit its representatives to use, Confidential Information exclusively in connection with the transaction contemplated by this Lease. SECTION 3.02 - LANDLORD'S WORK: Landlord has completed work adjacent to the Premises including construction of Entrances 2 and 3 to the Shopping Center and the Ring Road serving the Shopping Center. In order to deliver the Premises in a condition that is graded and ready for Tenant's use thereof, Landlord agrees prior to such delivery to (i) remove all top soil in excess of four inches (4") from the Premises and (ii) cause all fill on the Premises below four inches (4") to be engineered fill. Landlord also agrees to reimburse Tenant or pay Civil and Environmental Consultants, Inc. (CEC) directly for the preparation of amended elevation plans for Tenant's work on the property so that elevation plans for Tenant's work conform to existing compacted soil levels on the property. In addition, Landlord agrees to complete landscaping work in front of the Shopping Center in the area designated on Exhibit A-2 which has not already been completed as set forth below. Except for the foregoing or as otherwise provided herein, Landlord is not required to perform any work whatsoever on, about or adjacent to the Premises, and Tenant hereby agrees to accept the Premises in an "AS IS" condition. Tenant acknowledges that Landlord desires to maintain a uniformity of care and appearance for all landscaped areas within the Shopping Center. Therefore, as set forth hereinabove, Landlord shall install, at Tenant's cost and expense, all landscaping within the area designated on Exhibit A-2 and Tenant shall reimburse Landlord for the same landscaping within sixty (60) days of the receipt of a detailed invoice therefor accompanied by signed lien waivers from the contractors and/or subcontractors that perform such work (but in no event will Tenant be required to make such reimbursement unless and until Tenant takes possession of the Premises), in an amount not to exceed Thirty Five Thousand and 00/100 Dollars ($35,000). Landlord shall also maintain the landscaped area shown on (DSW12 4 Exhibit A-2 in the manner provided for under Section 6.01(c) hereof and be reimbursed for Tenant's portion of the expenditures therefor pursuant to Section 6.01(c) of this Agreement. SECTION 3.03 - TENANT'S WORK: (a) Subject to matters beyond the control of Tenant, as defined in Section 16.01 hereof, Tenant shall, on or before the Term Commencement Date, at Tenant's sole cost and expense, construct a building containing approximately 35,000 square feet which shall be suitable for use for the purposes set forth in Section 4.01(a) hereof, together with a parking lot sufficient to service such building with such use, and all other Improvements (hereinafter defined) on the Premises as described in Exhibit "C" ("Tenant's Work"). Tenant's Work shall be performed in accordance with (i) plans, specifications, and drawings reasonably approved by Landlord and (ii) all applicable federal, state and local codes and regulations and (iii) all applicable restrictions of record, including but not limited to plan approval requirements of the Polaris Design Review Committee ("PDRC"). Landlord's approval of Tenant's plans, specifications, and drawings shall not be unreasonably withheld, provided said submittal is in accordance with the foregoing and a certain Declaration of Outparcel Development Standards and Summary of and Elaboration on Declaration of Outparcel Development Standards (collectively, the "Criteria"), attached hereto as Exhibit "D". (b) Tenant shall submit to Landlord for Landlord's review and approval Tenant's conceptual and preliminary plans, specifications, and drawings for all work to be performed on or about the Premises within forty five (45) days of the date of this Lease, and Tenant shall submit to Landlord for Landlord's review and approval the final plans, specifications, and drawings for all work to be performed on or about the Premises within ninety (90) days of the date of this Lease, which submittal shall also include evidence of prior approval of the same by the PDRC. Landlord shall respond to Tenant's submittal of plans, specifications and drawings within twenty-one (21) days of receipt of same by Landlord. In the event Landlord disapproves Tenant's submittal, then Landlord shall specify said reason, and Tenant shall resubmit the same to Landlord within ten (10) days of receipt of Landlord's disapproval. Tenant shall prepare final working plans, specifications and drawings in accordance with the Criteria, and as required by all applicable governmental agencies and subject to all applicable restrictions of record. Plans, specifications and drawings shall include, but not be limited to, floor plans, criteria requirement drawings, schematic design drawings, site line studies and exterior elevations, equipment drawings, site improvement drawings, site utility plans, landscape and irrigation plans, signage plans, site grading and paving plans, a parking layout, trash storage and screening plans, and ingress/egress and traffic circulation plans, inclusive of signage controls and markings. No material deviations from the final plans, specifications and drawings, once approved by Landlord and the PDRC, shall be permitted. (c) Landlord's review of Tenant's plans, specifications and drawings shall not constitute the assumption of any responsibility by Landlord for their accuracy or sufficiency, and shall in no event create an express or implied confirmation that Tenant's design and/or plans, specifications and drawings have been prepared in accordance with the requirements of applicable laws, codes, ordinances and regulations. Tenant shall obtain, at Tenant's sole expense, all building permits, certificates and approvals which may be necessary so that a certificate of occupancy for the Premises may be issued. Upon the issuance of the certificate of occupancy, a copy thereof shall be immediately delivered to Landlord. (d) Within twenty (20) days after Tenant's completion of its building and all other improvements to the Premises Tenant shall provide Landlord with as-built drawings of the same in Auto Cadd 14 electronic format. (e) In addition to Tenant's Work and the obligations of Tenant to construct a portion of the Access Easement Drive (as provided in Section 5.04 hereof), Tenant shall perform site work in the areas designated as Area A and Area B, shown on Exhibit C-1, pursuant to the provisions of Exhibit C-2. The cost of the site work performed by Tenant in Area A shall be borne by Tenant; the cost of the site work in Area B shall be reimbursed by Landlord within 60 days after the receipt by Landlord of a detailed invoice therefor from Tenant, and lien waivers from the contractor and all subcontractors that performed the work. The cost of construction of a portion of the Access Easement Drive shall be paid for as set forth in Section 5.04 hereof. In the event Landlord fails to reimburse Tenant for the cost of site work in Area B, together with interest thereon at the rate set forth in Section 2.07 hereof, within sixty (60) days after receipt of a detailed invoice therefor, and lien waivers from the contractor and all subcontractors that performed such work, Tenant shall have the right to offset such amount against twenty-five percent (25%) of the next following Minimum Rent installments due hereunder, until the entire obligation has been paid in full. (f) The term "Improvements" as used herein shall mean any improvements, alterations, additions, permanently installed fixtures, HVAC equipment and other permanently-installed items in, on or about the Premises, regardless of who performed or paid for such installation, including but not limited to any building, parking lot and parking lot lighting, road way, sidewalk or landscaping. The term "Tenant's Personal Property" as used herein shall mean any of Tenant's signs, movable trade fixtures, furniture, point of sale system, merchandise and personal property. Except as otherwise provided herein, during the term hereof, the ownership of the Improvements shall be vested in Tenant and at the expiration or earlier termination of this Lease the ownership of all Improvements shall vest in Landlord. The ownership of all Tenant's Personal Property shall remain at all times with Tenant. SECTION 3.04- ALTERATIONS BY TENANT: (a) Tenant shall be permitted to make interior non-structural alterations to the Improvements without notice or written consent by Landlord provided the same does not reduce the value of the Improvements or the Premises and are in accordance with all zoning requirements and other laws and regulations and restrictions of record. Tenant shall be (DSW12 5 permitted to make structural and/or exterior alterations to the Premises, inclusive of Improvements, that are in compliance with any requirements or restrictions of record, including but not limited to receipt of approval from the Polaris Center of Commerce Design Review Committee ("PDRC"), with the prior written consent and approval of Landlord. Landlord's consent and approval for structural and/or exterior alterations shall not be unreasonably withheld provided that: (i) No such alteration shall result in an expansion of the Improvements without Landlord's consent; (ii) Alterations must be consistent, compatible, and harmonious with the type of construction and architectural style originally approved by the Landlord; and (iii) Any such alteration shall be in accordance with all zoning requirements and other laws and regulations, and with any requirements or restrictions of record, including but not limited to receipt of approval from the PDRC. Any such alterations shall be performed in a good and workmanlike manner and shall be subject to and in accordance with the Criteria (as defined in Exhibit "D") applicable legal and insurance requirements, and the terms and provisions of this Lease. Before Landlord is asked for approval and consent, Tenant shall submit to Landlord, in reasonable detail and specification, all plans, specifications and drawings necessary for the proposed alterations. All construction shall be accomplished in a first-class manner. Once started, construction shall proceed diligently to completion and will not disrupt other tenants, occupants, or the operation of the Shopping Center. (b) In the event that any mechanic's lien is filed against the Premises or Shopping Center as a result of any work or act of Tenant, Tenant, at its expense, shall discharge or bond off the same within thirty (30) days from receipt of notice of the filing thereof. If Tenant fails to discharge said mechanic's lien, Landlord may bond or pay without inquiring into the validity of merits of such lien and all sums so advanced shall be paid to Landlord as Additional Rent. (c) Prior to the commencement of any work by Tenant, Tenant or its contractor(s) shall obtain public liability and workers' compensation insurance to cover every contractor to be employed by Tenant, and shall deliver duplicate originals of all certificates of such insurance to Landlord for written approval. (d) If, in an emergency, it shall become necessary to make repairs required to be made by Tenant, Landlord may reenter the Premises and proceed to have such repairs made and pay the costs thereof. Tenant shall pay Landlord the costs of such repairs as Additional Rent. ARTICLE IV. CONDUCT OF BUSINESS Section 4.01 - Use/Exclusive: (a) Tenant shall permit the portion of the Premises designated as Area A on Exhibit A-1 to be used and occupied for the following purpose only, and for no other purpose whatsoever without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed: the retail sale of men's, women's, and children's shoes and, incidental thereto, the retail sale of complementary apparel, including but not limited to hosiery, handbags, umbrellas, hats, gloves and jewelry. (b) If any governmental license or permit shall be required for the proper and lawful conduct of such business or other activity carried on in the Premises, or if a failure to procure such a license or permit might or would in any way adversely affect Landlord, the Shopping Center or the Regional Development, then Tenant, at Tenant's expense, shall cause such license or permit to be duly procured and thereafter maintained and shall submit the same for inspection by Landlord upon written request therefor. Tenant, at Tenant's expense, shall, at all times, cause compliance with the requirements of each such license or permit and with the requirements of the Criteria. (c) Tenant hereby is granted the exclusive right to sell men's, women's and/or children's dress and casual shoes at discount in the peripheral areas designated on Exhibit "A-13". The restriction created by this exclusive right shall apply to stores whose primary business is the sale of men's, women's and/or children's dress and casual shoes at discount. For purposes hereof, a store shall be deemed to have as a primary business the sale of men's, women's and/or children's dress and casual shoes at discount if it utilizes fifteen percent (15%) or more of its floor space for such purposes. It shall not apply to: 1) the sale of athletic footwear; or 2) to the sale of shoes of any type sold at full price. The right is specific to Tenant and will expire if: (1) the Tenant discontinues operation for more than ninety (90) consecutive days, except in the case of reconstruction due to damages or a partial taking; (2) a permitted assignment which provides for a change in use; or (3) a permitted change in use. In the event there is a violation of this exclusive provision, and (i) Tenant's gross sales during any particular month decrease by greater than or equal to fifteen percent (15%) as compared against the same month from the previous twelve (12) month period (as compared on a month by month basis) or (ii) the violation occurs during the first twelve (12) months of the Term of this Lease, then the Minimum Rent set forth in Section 2.01 hereof shall be reduced for that particular month by twenty five percent (25%). In the event that Tenant shall have paid full Minimum Rent for any month during which a violation of such exclusive shall have occurred and shall have thereafter determined that it is entitled to pay reduced Minimum Rent as aforesaid, it shall submit to Landlord (DSW12 6 evidence of the requisite reduction in sales and shall thereupon have the right to reduce the next payment of Minimum Rent due hereunder by twenty-five percent (25%). SECTION 4.02 - OPERATION OF BUSINESS/LANDLORD RECAPTURE: (a) Subject to delays caused by force majeure, Tenant agrees to cause to be opened for business to the public on the Term Commencement Date a store providing for the sale of men's, women's and children's dress and casual shoes. (b) In the event Tenant has not assigned this Lease or sublet the Premises to a third party (other than to Shonac Corporation or to another party that is a parent, affiliate, or subsidiary corporation of Tenant or a successor by merger, acquisition, or consolidation of Tenant, of its parent, or subsidiary or an entity that has acquired all or substantially all of Tenant's assets) and Tenant ceases to operate a store for the sale of men's, women's and/or children's dress and casual shoes in the Premises for a period of at least one hundred twenty (120) consecutive days (excluding any periods of time during which restoration, alterations, or improvements, as are required or permitted in this Lease, are being performed with due diligence) then, at any time thereafter while such cessation of operations continues, Landlord may, as its sole remedy, terminate this Lease and recapture the Premises upon thirty (30) days prior written notice to Tenant provided Landlord pays Tenant the unamortized cost for Tenant's Improvements (amortized on a straight line basis over a fifteen (15) year period). In such event, Tenant shall deliver the Premises to Landlord, along with all Improvements, in the condition required pursuant to Article XVII hereof, as if such termination date was the Expiration Date. Notwithstanding the fact that Landlord shall have the aforesaid right to terminate this Lease, it is understood that Tenant shall not be in default under the terms of this Lease due to the failure to so operate in the Premises. SECTION 4.03 - UTILITIES: (a) Prior to delivering the Premises to Tenant, Landlord shall, at Landlord's expense, provide by separate meter electric, water, sewer and other utilities to the Premises sufficient to meet Tenant's requirements. Tenant, at its expense, shall arrange for and pay all costs of the charges for all utilities and services provided or used in or at the Premises, commencing with the date of this Lease and continuing throughout the term of this Lease, including but not limited to any service capacity and/or connection fees, frontage fees, or permit fees, and in the event that Landlord has prepaid any such fee(s), then Tenant shall reimburse Landlord for the same within twenty (20) days of receipt of written request therefor. Tenant shall pay directly to the public utility companies the installation and service costs for all such utilities. In the event that Landlord supplies or pays for any such utilities, then as Additional Rent, Tenant shall reimburse Landlord for the same. Any utilities provided by Landlord shall be at rates no greater than otherwise available from the public utility company in the area. In the event, for any reason whatsoever, any particular utility is not separately metered, then, and in that event, Tenant shall be responsible for its share based upon the formula that Landlord, in its reasonable discretion, deems appropriate. Tenant agrees to indemnify and hold harmless Landlord from and against any and all claims arising from the installation and maintenance of such utility services and from all costs and charges for utilities consumed on or by the Premises. Landlord shall not be liable to Tenant for damages or otherwise (i) if any utilities shall become unavailable from any public utility company, public authority or any other person or entity supplying or distributing such utility, or (ii) for any interruption in any utility service (including, but without limitation, any heating, ventilation or air conditioning) caused by the making of any necessary repairs or improvements or by any cause beyond Landlord's reasonable control, and the same shall not constitute a default, termination or an eviction. (b) Landlord hereby reserves for the benefit of Landlord's surrounding property, a perpetual, non-exclusive (i) fifty foot (50') easement along the Area A portion of the Premises parallel to Polaris Parkway, (ii) a ten foot (10') easement parallel to Entrance Three to the Shopping Center, (iii) a ten foot (10') easement along the northern property line for the Premises, (iv) an easement for storm sewer lines in the area shown on Exhibit A-15 attached hereto and (v) a non-exclusive perpetual easement anywhere within the Area B portion of the Premises (collectively the "Utility Easement Area") for the construction, installation, operation, inspection, maintenance, repair, and replacement of any utilities, either in place or hereafter added, together with the right to enter upon the Premises to fully enjoy such easement reserved herein. Tenant may landscape or pave the surface of the Utility Easement Area, however, Tenant shall not construct any permanent structure(s) which could restrict Landlord's access to or use of the Utility Easement Area as contemplated above. Landlord shall exercise due care to assure that Tenant's use of the Premises, as contemplated herein, will not be compromised by the placement of the aforesaid utilities, and in the event that Landlord disturbs the surface and/or subsurface of the Utility Easement Area within the Area A portion of the Premises, Landlord shall restore the surface and/or subsurface thereof to the same general condition which existed immediately prior to such disturbance. Landlord shall have the further right with Tenant's consent, which consent shall not be unreasonably withheld, delayed or denied, to extend any utility easement, either presently located on the Premises, or as extended by Tenant, to service Landlord's residual property provided the same does not materially interfere with Tenant's use of the Premises as contemplated herein. Tenant herein covenants to execute any reasonable easement documentation, in recordable form, to allow Landlord to accomplish the same. SECTION 4.04 - SIGNS/AWNINGS: Tenant may install and maintain its prototype signs and awnings affixed to the exterior of the Premises in a location, size and style designated by Tenant, subject to the prior written approval of the Landlord and the Polaris Design Review Committee. Notwithstanding such approval, Tenant's sign and said awnings shall conform to all applicable codes, restrictions of record, and the Criteria. (DSW12 7 SECTION 4.05 - TENANT'S WARRANTIES: Tenant warrants, represents, covenants and agrees to and with Landlord, that throughout the term hereof it shall: (i) keep the Premises and all Improvements in a neat and clean condition, (ii) pay, before delinquent, any and all taxes, assessments and public charges imposed upon Tenant's business or fixtures, and pay when due all fees of similar nature, (iii) observe all restrictive covenants of record which are applicable to the Premises, (iv) not use the parking areas or sidewalks or any space outside the building on the Premises for display, sale, storage, or any other similar undertaking, (v) not use any advertising medium or sound devices inside the building on the Premises which may be heard outside the Premises, or permit any objectionable odors to emanate from the Premises, (vi) keep the building on the Premises sufficiently heated to prevent freezing of water in pipes and fixtures in and about the Premises, and (vii) not commit or suffer to be committed any waste upon the Premises, and not commit or suffer to be committed any nuisance or other act or thing which may disturb the quiet enjoyment of any other occupant or tenant of the Shopping Center. SECTION 4.06 - LEGAL REQUIREMENTS: Throughout the term of this Lease Tenant shall, at its own expense, comply with all laws, orders, ordinances, rules, regulations and requirements of federal, state, and municipal governments and appropriate departments, commissions, boards, and officers of these governmental entities ("Legal Requirements"), whether they are foreseen or unforeseen, or ordinary or extraordinary, respecting all matters of occupancy, condition or maintenance of the Premises or use thereof, whether such orders or directions shall be directed to Tenant or Landlord. Tenant shall have the right, after prior written notice to Landlord, to contest, at Tenant's expense, the validity of any Legal Requirements by appropriate legal proceedings, provided Landlord shall not be subject to any criminal or civil liability as a result of any legal contest. Tenant shall hold Landlord harmless from any and all costs or expenses, including but not limited to reasonable attorneys' fees, related to Tenant's failure to comply with Legal Requirements or any contest relating to Legal Requirements. Tenant shall procure and maintain all licenses and permits legally necessary for the operation of Tenant's business and allow Landlord to inspect them on request. SECTION 4.07 - COMPETITION: INTENTIONALLY OMITTED. SECTION 4.08 - HAZARDOUS MATERIALS: Tenant agrees that it will not use, permit, hold, release or dispose of any Hazardous Material (defined hereinafter) on, under or at the Premises or the Shopping Center and that it will not use or permit the use of the Premises or any other portion of the Shopping Center as a treatment, storage or disposal (whether permanent or temporary) site for any Hazardous Material. Tenant further agrees that it will not cause or allow any asbestos to be incorporated into any improvements or alterations which it makes or causes to be made to the Premises. Tenant hereby holds Landlord harmless from and indemnifies Landlord against any and all losses, liabilities, damages, injuries, costs, expenses, fines, penalties, and claims of any and every kind whatsoever (including, without limitation, court costs and attorneys' fees) which at any time or from time to time may be paid, incurred or suffered by, or asserted against Landlord for, with respect to, or as a direct or indirect result of (i) a breach by Tenant of the foregoing covenants, or (ii) to the extent caused or allowed by Tenant or any agent, contractor, employee, invitee or licensee of Tenant, the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from, onto or into the Premises, the Shopping Center, the atmosphere, or any watercourse, body of water or groundwater, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under the Comprehensive Environmental Response, Compensation and Liability Act, any so-called "Superfund" or "Superlien" law, or any other Federal, state, local or other statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Material); and the provisions of and undertakings and indemnification set out in this paragraph shall survive the termination of this Lease, and shall continue to be the personal liability, obligation and indemnification of Tenant, binding upon Tenant, forever, subject to the applicable statute of limitations. The provisions of the preceding sentence shall govern and control over any inconsistent provision of this Lease. For purposes of this Lease, "Hazardous Material" means and includes any hazardous substance or any pollutant or contaminant defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation, and Liability Act, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control Act, or any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect, or any other hazardous, toxic or dangerous, waste, substance or material. ARTICLE V. EASEMENTS/AREA B SUBLEASE SECTION 5.01 - LANDLORD ACCESS AND MONUMENT SIGN EASEMENTS: (a) The Premises and Tenant's interest therein is subject to an irrevocable, non-exclusive easement for the benefit of Landlord and any tenant or owner of property adjacent to the Premises, in, on, over, through and across the Premises for the limited purpose of pedestrian passage and vehicular ingress and egress between the Shopping Center and the Premises. Landlord and any tenant or owner of the property adjacent to the Premises shall not obstruct or interfere with the free flow of pedestrian and vehicular traffic over such easement area. (DSW12 8 (b) In addition, Landlord reserves a perpetual, non-exclusive easement on that portion of the Premises described and shown on Exhibit A-10 for the purpose of erecting and maintaining a monument sign. Said monument sign easement shall be subject to the terms, provisions and condition of a Declaration of Monument Sign Easements attached hereto and made a part hereof designated as Exhibit A-11. SECTION 5.02 - TENANT EASEMENTS: (a) During the term of this Lease, Tenant and its employees, agents, contractors, licensees, customers and invitees are hereby granted an irrevocable, non-exclusive easement in, on, over, through and across the area shown on Exhibit "A-3" hereto ("the Access Easement Area") for the limited purpose of pedestrian passage and vehicular ingress and egress to and from the Premises. The Access Easement Area is comprised of (i) the ring road and mall entrance drives shown on Exhibit A-4 and (ii) the area depicted on Exhibit A-5 (the "Access Easement Drive"). Subject to any easements and restrictions of record granted or approved by Landlord from time to time, and the provisions of Section 5.03 and 6.01 hereof, the portion of the Access Easement Area shown on Exhibit A-4 shall be subject to the exclusive control and management of Landlord. The Access Easement Drive shown on Exhibit A-5 shall be evidenced by a Declaration of Access Easement which shall be executed and placed of record by Landlord on or before the Effective Date hereof, a copy of which Declaration is attached hereto as Exhibit A-13. Said non-exclusive ingress and egress easement shall be reserved for the benefit of (i) Tenant and the Premises, (ii) the 3.865 acre parcel of property depicted as the Darden Parcels on Exhibit A, page 2 (hereinafter known as the "Darden Parcels") and the owner/tenant thereof and (iii) the 1.617 acre parcel of property depicted as Parcel C on Exhibit A, page 2 ("Parcel C") and the owner/tenant thereof. Neither Tenant nor its employees, agents, contractors, licensees, customers or invitees shall have the right to use the Access Easement Area for parking, nor shall the free flow of pedestrian and vehicular traffic over such Access Easement Area be interfered with or obstructed. (b) During the term of this Lease, Tenant and its employees, agents, contractors, licensees, customers and invitees are also hereby granted an irrevocable, non-exclusive easement in, on, over, through and across the Shopping Center and the outparcels owned by Landlord adjacent thereto for the purpose of the construction, installation, operation, inspection, maintenance, repair, and replacement of any utilities serving the Premises, either in place or hereafter added, together with the right to enter upon the such easement areas to fully enjoy such easement reserved herein. Landlord herein covenants to execute any reasonable easement documentation, in recordable form, to evidence the easements herein granted. (c) During the term of this Lease, Landlord grants to Tenant, for the benefit of the Premises, a non-exclusive easement for the construction, maintenance, repair and replacement of a monument sign for the identification of Tenant's business, in the area shown on Exhibit A, page 2. Said monument sign shall be erected in accordance with this Lease and plans therefor which are approved by Landlord. (d) During the term of this Lease, Tenant and its employees, agents, contractors, licensees, customers and invitees are hereby also granted the irrevocable, non-exclusive easement in, on, over, through and across the parking lots and drive areas within the Shopping Center and within the adjacent outparcels owned by Landlord, for the limited purpose of pedestrian passage and vehicular ingress and egress between the Premises and the remaining portion of the Shopping Center and adjacent outparcels. Neither Tenant nor its employees, agents, contractors licensees, customers and invitees shall use these areas for parking or otherwise interfere with the free flow of pedestrian and vehicular traffic over and through such areas. (e) Landlord herein covenants to execute any reasonable easement documentation, in recordable form, to evidence the easements herein granted. SECTION 5.03 -MAINTENANCE OF RING ROAD AND ENTRANCE DRIVE PORTION OF ACCESS EASEMENT AREA (EXHIBIT A-4): Landlord agrees to maintain and keep in good service and repair that portion of the Access Easement Area shown on Exhibit A-4 attached hereto. The manner in which such area shall be maintained, managed and operated, and the expenditures therefor, shall be at the sole reasonable discretion of Landlord, except that the same shall be maintained at all times (i) in a first-class condition in conformance with the Criteria, (ii) to a standard of care not less than that of the remainder of the Shopping Center and similar regional retail malls and (iii) shall include but not be limited to cleaning, paving, repairing and snow removal. As Tenant's contribution to the costs and expenses incurred by Landlord in operating, managing, maintaining, equipping, lighting, and providing sanitation and sewer and other services to this portion of the Access Easement Area ("Access Easement Expenses"), starting with the Term Commencement Date and continuing throughout the entire term of this Lease, Tenant shall pay Landlord, as Additional Rent, without off-set, abatement or deduction, Six Thousand and 00/100 Dollars ($6,000.00) per annum, payable in equal monthly installments on the first day of each month. The foregoing payment shall be in lieu of any assessment imposed with respect to the Premises pursuant to the Criteria or any other easement or operating agreement applicable thereto. SECTION 5.04 - CONSTRUCTION AND MAINTENANCE OF THE ACCESS EASEMENT DRIVE: (a) The Access Easement Drive is comprised of the following four (4) portions: (i) the portion of the Access Easement Drive shown on Exhibit A-6 (the "Mall Portion"); (ii) the portion of the Access Easement Drive shown on Exhibit A-7 (the "DSW Portion"); (DSW12 9 (iii) the portion of the Access Easement Drive shown on Exhibit A-8 (the "Landlord Portion"); and (iv) the portion of the Access Easement Drive shown on Exhibit A-9 (the "Darden Portion"). (b) Tenant will construct the improvements required by the provisions of Exhibit C-2 hereof over the Mall Portion, the DSW Portion and the Landlord Portion of the Access Easement Drive and Landlord will construct, or cause to be constructed, the improvements required by the provisions of Exhibit C-2 over the Darden Portion of the Access Easement Drive. Subject to delays described in Section 16.01 hereof, Landlord covenants and agrees that Landlord shall cause the Darden Portion of the Access Easement Drive to be substantially completed on or before June 1, 2002. Subject to delays described in Section 16.01 hereof, Tenant covenants and agrees that Tenant will commence construction on the Mall Portion, the DSW Portion and the Landlord Portion of the Access Easement Drive no later than June 1, 2002, that Tenant shall complete the installation of the curbs and base course and open the Mall Portion, DSW Portion and Landlord Portion of the Access Easement Drive no later than July 1, 2002, and that Tenant shall complete work on the finish course of the Mall Portion, DSW Portion and Landlord Portion of the Access Easement Drive prior to August 1, 2002. In the event that either party shall fail to so complete the improvements to the Access Easement Drive, the other party shall have the right to enter upon the applicable property and complete the same in accordance with the requirements hereof. In such event, such party shall be reimbursed the costs incurred in so completing the Access Easement Drive, together with interest thereon at the rate set forth in Section 2.07 hereof, by the other party hereto. In the event Tenant completes that portion of the Access Easement Drive improvements for which Landlord is responsible hereunder and Landlord fails to reimburse Tenant for the cost thereof, together with interest thereon, within sixty (60) days after receipt of a detailed invoice therefor accompanied by lien waivers from the contractor and all subcontractors that performed such work, Tenant shall have the right to offset such amount against twenty-five percent (25%) of the next following Minimum Rent installments due hereunder, until the entire obligation has been paid in full. (c) Upon completion of that portion of the Access Easement Drive for which Tenant is responsible hereunder, Landlord shall reimburse Tenant for (i) one hundred percent (100%) of the costs attributable to the Landlord Portion and (ii) thirty percent (30%) of the costs attributable to the DSW Portion. If Landlord fails to reimburse Tenant for such costs within sixty (60) days after receipt of a detailed invoice therefor accompanied by lien waivers from the contractor and all subcontractors that performed such work, Tenant shall have the right to offset such amount, together with interest at the rate set forth in Section 2.07 hereof, against twenty-five percent (25%) of the next following Minimum Rent installments due hereunder, until the entire obligation has been paid in full. Notwithstanding the foregoing, however, Tenant's right of offset with respect to the costs attributable to the DSW Portion shall not accrue until the earlier of a date thirty days next following execution of a lease with respect to Parcel C or a date six (6) months after receipt of invoice for such costs. (d) Tenant will maintain, repair and replace the improvements constituting the Mall Portion, the DSW Portion and the Landlord Portion of the Access Easement Drive and Landlord will maintain, repair and replace (or cause to be maintained, repaired and replaced) the improvements constituting the Darden Portion of the Access Easement Drive. Such maintenance obligation shall include, but not be limited to, the removal of snow and ice as required by weather conditions. Each party shall maintain their respective portions of the Access Easement Drive in a first class condition consistent with the remainder of the drives in the Shopping Center. Landlord shall reimburse Tenant for (i) one hundred percent (100%) of the costs attributable to maintenance, repair and replacement of the Landlord Portion and (ii) thirty percent (30%) of the costs attributable to maintenance, repair and replacement of the DSW Portion. If the Landlord fails to reimburse Tenant for such costs within sixty (60) days after receipt of a detailed invoice therefor accompanied by lien waivers from the contractor and all subcontractors that performed such work, Tenant shall have the right to offset such amount, together with interest at the rate set forth in Section 2.07 hereof, against twenty-five percent (25%) of the next following Minimum Rent installments due hereunder, until the entire obligation has been paid in full. (e) In the event that the ring road is relocated pursuant to the Criteria or any other instrument applicable to the Ring Road, Landlord agrees to grant an extension to the Access Easement Area to provide Tenant with a connection to the relocated Ring Road. SECTION 5.05 - AREA B SUBLEASE/DARDEN PARCELS PARKING EASEMENT (a) Area B of the Premises as shown on Exhibit A-1 has been included in the Premises in order to facilitate the development of facilities thereon without an initial lot split of Area B into a separate real estate tax parcel. Following the initial development of Area B by Tenant (at Landlord's expense, pursuant to subsection (e) of Section 3.03 hereof), Landlord agrees, at Landlord's sole cost and expense, to employ commercially reasonable, good faith efforts to have Area B split from the rest of the Premises for real estate tax purposes. At such time as such a lot split has occurred, this Lease shall be amended to delete Area B from the Premises. Notwithstanding the foregoing, however, no such lot split shall be permitted if it shall cause the balance of the Premises to not comply with all applicable zoning requirements. (b) It is agreed and understood that the economic benefit and burden of Area B shall be that of Landlord. Accordingly, in the event that such a lot split has not occurred prior to the date Landlord desires to enter into a lease agreement for Area B with a third party, Tenant shall enter into a sublease with Landlord, as sub-tenant, which shall permit Landlord to so lease or sublease Area B to such third party. Landlord shall be wholly responsible for any (DSW12 10 liability related to or arising out of Area B and agrees to indemnify and hold Tenant, Tenant's officers, directors, employees, and agents harmless from and against all claims, losses, liabilities, damages, and expenses (including but not limited to reasonable attorneys' fees) incurred by Tenant arising out of or related to the use, operation or management of Area B, whether pursuant to this Lease or pursuant to any such third party agreement. (c) Tenant acknowledges that a nonexclusive parking easement over a portion of Area B has been granted to GMRI, Inc. by Landlord, pursuant to the Declaration of Easement dated as of November 2, 2001, attached hereto as Exhibit A-14 ARTICLE VI. REPAIRS AND MAINTENANCE SECTION 6.01 - LANDLORD'S MAINTENANCE OBLIGATIONS: (a) Landlord shall, at its sole cost and expense, be responsible for keeping and maintaining the ring road and entrance drive portion of the Access Easement Area shown on Exhibit A-4 in good repair and reasonably free of snow and ice, as set forth in Section 5.03. Such maintenance shall be to a standard of care not less than that of the remainder of the Shopping Center, and shall be performed as and when required in order to maintain the same in a first-class condition, reasonable wear and tear, and casualty loss, excepted (b) In addition, so long as the Area B portion of the Premises remains as part of the Premises, Landlord shall at its sole cost and expense be responsible for keeping and maintaining the Area B portion of the Premises shown on Exhibit A-1 hereof, excluding the Access Easement Drive portion thereof shown on Exhibit A-8 hereof, in good repair and reasonably free of snow and ice. Such maintenance shall be to a standard of care not less than that of the remainder of the Shopping Center, and shall be performed as and when required in order to maintain the same in a first-class condition, reasonable wear and tear, and casualty loss, excepted. (c) Landlord shall also maintain the landscaped area shown on Exhibit A-2. The manner in which such area shall be maintained and the expenditures therefor, shall be at the sole reasonable discretion of Landlord, except that the same shall be maintained at all times in a first-class condition in conformance with the Criteria and otherwise to a standard of care not less than that of the remainder of the Shopping Center. As Tenant's contribution to the costs and expenses incurred by Landlord in maintaining the aforesaid landscaped area, starting with the Term Commencement Date and continuing throughout the entire term of this Lease, Tenant shall pay Landlord, without offset, abatement or deduction, the sum of $ 4.25 per lineal foot of the Premises fronting on Polaris Parkway per annum, payable in equal monthly installments on the first day of each month. (d) If Landlord fails, refuses or neglects to commence or complete any of the repairs or replacements required to be made by Landlord under Section 6.01(b) and/or (c) herein promptly and adequately after written notice and a reasonable opportunity to cure, Tenant may, in addition to any other remedy Tenant may have, make or complete said maintenance, repairs or replacements (but shall not be required to) and Landlord shall pay the cost and expense thereof, plus a charge of fifteen percent (15%) thereof, to Tenant upon demand. If said amount is not paid within thirty (30) days after demand, Tenant may offset the cost thereof against twenty five percent (25%) of the next installments of Minimum Rent, Percentage Rent or Additional Rent payable hereunder until the entire obligation has been paid in full. (e) So long as the Shopping Center and adjacent outparcels thereto are managed by a Glimcher Properties Limited Partnership related entity, if Landlord fails, refuses or neglects to properly maintain the Darden portion of the Access Easement Drive shown on Exhibit A-9 promptly and adequately after written notice and a reasonable opportunity to cure, Tenant may, in addition to any other remedy Tenant may have, offset an amount equal to the reasonable estimate of the cost for such repairs or maintenance against ten percent (10%) of the next following Minimum Rent installments due hereunder until the required maintenance or repairs have been completed. In the event management of the Shopping Center and adjacent outparcels thereto is performed by any other party other than Glimcher Properties Limited Partnership and Landlord fails, refuses or neglects to properly maintain the Darden Portion of the Access Easement Drive shown on Exhibit A-9 promptly and adequately after written notice and a reasonable opportunity to cure, Tenant may, in addition to any other remedy Tenant may have, offset an amount equal to the reasonable estimate of the cost for such repairs or maintenance against twenty-five percent (25%) of the next following Minimum Rent installments due hereunder until the required maintenance or repairs have been completed. SECTION 6.02 - TENANT'S MAINTENANCE OBLIGATIONS: (a) Subject to reimbursement as otherwise provided in Section 5.04 hereof, Tenant shall, at its sole cost and expense, be responsible for keeping and maintaining the Mall Portion, the DSW Portion and the Landlord Portion of the Access Easement Drive, shown on Exhibits A-6, A-7 and A-8 hereof, in good repair and reasonably free of snow and ice, as set forth in Section 5.04. (b) In addition, Tenant shall be responsible for keeping the Area A portion of the Premises maintained, (DSW12 11 repaired and replaced, at its sole cost and expense, inclusive of the parking field and landscaped areas of Area A (other than the portion of the landscaped areas of the Premises which shall be maintained by Landlord pursuant to Section 6.01 (c) hereof), in conformance with the Criteria and otherwise, to a standard of care not less than that of the remainder of the Shopping Center. Such maintenance shall be performed as and when required in order to maintain the same in a first-class condition, reasonable wear and tear, and casualty loss, excepted. Tenant shall maintain such portion of the Premises in a continuous neat and clean condition, including the maintenance and replacement of all landscaping (other than that maintained by Landlord pursuant to Section 6.01 (c) hereof) as reasonably necessary, trash pick-up at such frequency so as to avoid the accumulation of trash and debris, grass mowing and snow and ice removal as reasonably necessary, and otherwise in accordance with all other requirements set forth under this Lease and under applicable zoning laws and regulations, restrictions of record and other governmental laws, rules or regulations. Tenant shall also be responsible for maintenance, repair and replacement of all utility systems which exclusively serve Area A of the Premises. If Tenant fails, refuses or neglects to properly maintain the Area A portion of the Premises and/or the Mall Portion, the DSW Portion and/or the Landlord Portion of the Access Easement Drive inclusive of the improvements or to commence or complete any of the repairs or replacements required to be made by Tenant hereunder promptly and adequately after written notice and reasonable opportunity to cure, Landlord may, in addition to any other remedy Landlord may have, but shall not be required to, make or complete said maintenance, repairs or replacements and Tenant shall pay the cost and expense thereof, plus a charge of fifteen percent (15%) thereof, to Landlord upon demand as Additional Rent. Landlord hereby reserves a perpetual, non-exclusive easement across and over the Premises for the purposes of carrying out the terms and provisions set forth in this paragraph. ARTICLE VII. REAL ESTATE TAXES SECTION 7.01 - LIABILITY: (a) Starting with the Term Commencement Date and continuing throughout the entire term of this Lease, Tenant shall pay to the applicable taxing authority or to Landlord, as set forth below, Taxes, as hereinafter defined, attributable to Area A of the Premises, for each tax year. Taxes shall be prorated for any partial tax year at the commencement or end of the term of this Lease. The term "Taxes" means the total of all taxes and assessments, general and special, ordinary and extraordinary, real and/or personal, foreseen and unforeseen, including assessments for public improvements and betterments, assessed, levied or imposed with respect to the land and improvements included within the Premises, any tax or surcharge of any kind or nature with respect to the parking areas or the number of parking spaces in the Premises and, if applicable, any tax on rents and receipts, excluding from Taxes, however, any capital assessments for the initial development of the Shopping Center and any maintenance or other assessments imposed pursuant to the Criteria or other easement or operating agreement. If at any time during the term of this Lease, the present method of taxation shall be changed so that in lieu of the whole or any part of any Taxes levied, assessed or imposed on real estate and the improvements thereon or imposed upon any personalty used in connection therewith or upon the collection of rents or other sums due hereunder, there shall be levied, assessed or imposed on Landlord a capital levy or other tax directly on the rents received therefrom and/or a franchise tax, assessment, levy or charge measured by or based, in whole or in part, upon such rents for the present or any future building or buildings in the Premises, then all such taxes, assessments, levies or charges, or the part thereof so measured or based, shall be deemed to be included within the term "Taxes" for the purposes hereof. As provided in Section 5.05 hereof, Landlord agrees, at Landlord expense, to use commercially reasonable, good faith efforts to cause the Premises to constitute a separate tax parcel. (b) Starting with the Term Commencement Date and continuing throughout the entire term of this Lease, Landlord shall pay to the applicable taxing authority, as set forth below, Taxes, as herein defined, attributable to Area B of the Premises, for each tax year. (c) Until a separate bill can be obtained for Areas A and B, as provided above, the assessed value of the Improvements on Areas A and B shall be determined using the assessor or auditor notes and records, and the assessed value of the land (exclusive of Improvements) within the respective portions of the Premises shall be determined based upon the ratio of square footage of land within each portion of the Premises to the square footage of land in the Premises as a whole. The applicable tax rate shall then be applied to the resulting total (assessed value of land and Improvements) and Landlord shall then be responsible for payment to Tenant of the portion attributable to Area B. Tenant shall then be responsible for timely payment of the Taxes on the Premises directly to the taxing authority. (d) If a separate tax bill can be obtained for Area A of the Premises, Tenant shall then be responsible for the timely payment of said bill in its entirety directly to the taxing authority. SECTION 7.02 - METHOD OF PAYMENT: Taxes which are payable by Landlord or Tenant directly to the taxing authority shall be paid on time and prior to application of penalty and interest. Each party shall promptly provide to the other party a copy of each tax bill received by such party, and shall provide to the other, promptly upon payment, with a copy of the paid tax bill. If Taxes are payable by Tenant to Landlord then the same shall be due and payable within twenty (20) days of Tenant's receipt of an invoice for the same. SECTION 7.03 - CONTEST: Tenant will have the right at its own cost and expense to initiate and prosecute any proceedings permitted by law for the purpose of obtaining an abatement or of otherwise contesting the validity or amount of any Taxes. If (DSW12 12 required, Tenant may take such action in the name of the Landlord who will cooperate with the Tenant to such extent as the Tenant may reasonably require to the end that such proceedings may be brought to a successful conclusion. Tenant will indemnify and hold Landlord harmless from all loss, cost, damage and expense incurred in the prosecution of the proceedings by Tenant. ARTICLE VIII. INSURANCE SECTION 8.01 - TENANT'S OBLIGATIONS FOR FIRE AND EXTENDED COVERAGE: Tenant, at Tenant's sole cost and expense, shall obtain and maintain for the term of this Lease, insurance covering the Area A portion of the Premises, including, without limitation, all Improvements now located on the Area A portion of the Premises or that may be erected on the Area A portion of the Premises, against loss or damage by fire, vandalism, malicious mischief, windstorm, hail, smoke, explosion, riot, civil commotion, vehicles, aircraft, or earthquake. The insurance shall be carried by insurance companies authorized to transact business and licensed in the state in which the Premises is located, selected by Tenant and approved by Landlord, whose approval shall not be unreasonably withheld. In addition, the following conditions shall be met: (i) The insurance shall be in amounts no less than one hundred percent (100%) of the replacement cost of the buildings and other improvements, exclusive of foundations and below-ground improvements (but sufficient to satisfy the requirements of any coinsurance clause). (ii) The insurance shall be maintained for the mutual benefit of Landlord and Tenant, any succeeding owners of the fee title in the Premises, and any successors and assigns of this Lease. The insurance policy or policies shall name both Landlord, Landlord's requested additional insureds, and Tenant as insureds. (iii) Subject to the provisions of Section 9.02, any and all fire or other insurance proceeds that become payable at any time during the term of this Lease because of damage to or destruction of any Improvements on the Premises, shall be paid to any Leasehold Mortgagee (as hereinafter defined in Article XI hereof) and if none, then to the Landlord's title company. Such proceeds shall be applied toward the cost of repairing, restoring, and replacing the damaged or destroyed Improvements in the manner required by Article IX of this Lease. (iv) The insurance may be subject to Tenant's customary deductibles. SECTION 8.02 - TENANT'S OBLIGATIONS FOR PROPERTY AND LIABILITY INSURANCE: Tenant, at Tenant's sole cost and expense, shall obtain and maintain for the term of this Lease, commercial general liability insurance against claims and liability for personal injury, death and property damage arising from the use, occupancy, disuse, or condition of the Area A portion of the Premises and Improvements, naming Landlord, any mortgagee as additional insureds, which policy is to be in the minimum amount of One Million Dollars ($1,000,000.00) with respect to any one person, in the minimum amount of Three Million Dollars ($3,000,000.00) with respect to any one accident, and in the minimum amount of Three Hundred Thousand Dollars ($300,000.00) with respect to property damage. The aforesaid minimum limits may, at Landlord's option, be increased from time to time, in an amount not to exceed industry standards, to account for inflation, increases in insurance settlements, or jury verdicts. Landlord hereby consents to allow Tenant to meet its obligations, pursuant to this Section 8.02, under an Umbrella policy, insuring the other locations of Tenant, provided the limits set forth herein are not reduced. SECTION 8.03 - BASIC INSURANCE REQUIREMENTS: On or before Tenant's entry onto the Premises and before any such insurance policy shall expire, Tenant shall furnish Landlord with certificates of all insurance required by this Article VIII. Tenant agrees that if it does not keep this insurance in full force and effect, Landlord may notify Tenant of this failure, and if Tenant does not deliver to Landlord certificates showing all of the required insurance to be in full force and effect within ten (10) days after this notice, Landlord may, at its option, take out and pay the premiums on the insurance needed to fulfill Tenant's obligations under the provisions of this Article VIII, and on demand from Landlord, Tenant shall reimburse Landlord the full amount of any insurance premiums paid by Landlord, with interest at the rate set forth in Section 2.07 hereof from the date of Landlord's demand until reimbursement by Tenant, or, in the alternative, declare Tenant in default of this Lease. Insurance required to be provided by Tenant shall be (i) evidenced by certificates of insurance, which certificates shall state that the insurance cannot be canceled and that it shall continue in full force and effect, unless Landlord has received at least thirty (30) days prior written notice of such cancellation or termination, (ii) not be materially changed without at least thirty (30) days prior written notice to Landlord, (iii) shall name Landlord and its mortgagee as additional insureds, and (iv) contain an express waiver of any right of subrogation by the insurance company against Landlord, Landlord's agents and employees, and mortgagees . The insurance shall be carried by insurance companies authorized to transact business and licensed in the state in which the Premises is located. Neither the issuance of any insurance policy required hereunder, nor the minimum limits specified herein with respect to Tenant's insurance coverage, shall be deemed to limit or restrict in any way Tenant's liability arising under or out of this Lease. Notwithstanding the foregoing, however, Tenant may self-insure any of the amounts herein stated pursuant to a bona fide self-insurance retention program so long as the amounts so self-insured by Tenant are guaranteed by an affiliate of Tenant whose net worth exceeds twenty five million dollars ($25,000,000). SECTION 8.04 - WAIVER OF SUBROGATION: Landlord and Tenant each hereby release and waive all rights of subrogation against the other, its officers, directors, employees and agents from any and all liability or responsibility for any loss or damage to property (DSW12 13 covered by valid and collectible fire insurance with standard and extended coverage endorsement, or required to be carried hereunder, even if such fire or other casualties shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible. SECTION 8.05 - COVENANTS TO HOLD HARMLESS: (a) Tenant hereby indemnifies and agrees to save harmless Landlord, Landlord's officers, directors, employees, and agents, and any mortgagee of the Shopping Center (collectively, "the Protected Parties"), from and against all claims, losses, liabilities, damages and expenses (including but not limited to reasonable attorneys' fees) that arise within the Area A portion of the Premises or that arise from or in connection with (i) the possession, use, occupation, management, repairs, maintenance or control of the Area A portion of the Premises, or any portion thereof, by Tenant or its employees, agents, contractors, licensees, or invitees located in the Premises, (ii) any negligent act or omission or wilful misconduct of Tenant, its employees, agents, contractors, licensees, or invitees, or (iii) any violation, breach, or default of this Lease by Tenant after written notice and the expiration of the applicable cure period. Tenant shall, at its own cost and expense, defend any and all actions which may be brought against any of the Protected Parties with respect to the foregoing. Tenant shall pay, satisfy and discharge any and all judgments, orders and decrees which may be recovered against any of the Protected Parties in connection with the foregoing. This Section 8.04(b) shall be inapplicable to events caused by the negligence or wilful misconduct of the Protected Parties. (b) Tenant and all those claiming by, through or under Tenant shall store their property in and shall occupy and use the Area A portion of the Premises and any improvements therein and appurtenances thereto and all other portions of the Shopping Center complex solely at their own risk and Tenant and those claiming by, through or under Tenant hereby release Landlord, to the full extent permitted by law, from all claims of every kind, including loss of life, personal or bodily injury, damage to merchandise, equipment, fixtures or other property, or damage to business or for business interruption arising directly or indirectly out of or from or on account of such occupancy and use resulting from any present or future condition or state of repair thereof. Subject to and subordinate to Section 8.04(a) hereof, this Section 8.04 (c) shall be inapplicable to events directly caused by the negligence or wilful misconduct of Landlord or its agents, employees or contractors. (c) Landlord shall not be responsible or liable at any time to Tenant, or to those claiming by, through or under Tenant, for any loss of life, bodily or personal injury, or damage to property or business, or for business interruption, that may be occasioned by or through the acts, omissions or negligence of any other persons, or any other tenants or occupants of any portion of the Shopping Center. This Section 8.04(d) shall be inapplicable to events caused by the negligence or wilful misconduct of Landlord, or Landlord's agents, employees or contractors. (d) Landlord shall not be responsible or liable at any time for any defects, latent or otherwise, in any buildings or improvements in the Shopping Center or any of the equipment, machinery, utilities, appliances or apparatus therein, nor shall Landlord be responsible or liable at any time for loss of life, injury or damage to any person or to any property or business of Tenant, or those claiming by, through or under Tenant, caused by or resulting from the bursting, breaking, leaking, running, seeping, overflowing or backing up of water, steam, gas, sewage, snow or ice in any part of the Area A portion of the Premises or caused by or resulting from acts of God or the elements, or resulting from any defect or negligence in the occupancy, construction, operation or use of any buildings or improvements in the Shopping Center including the Premises, or any of the equipment, fixtures, machinery, appliances or apparatus therein. Subject to and subordinate to Section 8.04(a) hereof, this Section 8.04(e) shall be inapplicable to events directly caused by the negligence or wilful misconduct of Landlord or its agents, employees or contractors. (e) Except to the extent directly related to the negligent act or omission or wilful misconduct of Tenant, or Tenant's agents, employees, or contractors, Landlord hereby indemnifies and agrees to save harmless Tenant, Tenant's officers, directors, employees, and agents from and against all claims, losses, liabilities, damages, and expenses (including but not limited to reasonable attorneys' fees) that arise from or in connection with (i) the possession, use, occupation, management, repairs, maintenance or control of the common Areas or the Area B portion of the Premises, or any portion thereof, by Landlord or its employees, agents, contractors, licensees, or invitees located in the Area B portion of the Premises, (ii) any negligent act or omission or wilful misconduct of Landlord, its employees, agents, contractors, licensees, or invitees, or (iii) any violation, breach or default of this Lease by Landlord after written notice and the expiration of the applicable cure period. Nothing contained in the preceding sentence shall be deemed to relieve Landlord of liability from damages by Tenant resulting from the act or omission o