216 Jamaica Avenue v. S & R Playhouse Realty Co.

Filing 33

Motion for leave to File Supplemental Brief in Opposition to Defendant's Instanter Motion for Leave to File Supplement To Defendant's Motion for SUmmary Judgment filed by 216 Jamaica Avenue. (Attachments: # 1 Exhibit A - Supplemental Brief# 2 Exhibit B - Ketteler Deposition)(Cooper, Charles)

Exhibit B

Thomas R. Ketteler

December 19, 2006
Page 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ----216 Jamaica Avenue, LLC, Plaintiff, vs. S&R Playhouse Realty Company, Defendant. : : : Case No. 06-1288 : Judge Boyko : :

----DEPOSITION OF THOMAS R. KETTELER ----Taken at Schottenstein, Zox & Dunn Co., LPA 250 West Street, 7th Floor; P.O. Box 165020 Columbus, OH 43215 December 19, 2006, 9:27 a.m. ----Spectrum Reporting LLC 333 Stewart Avenue, Columbus, Ohio 43206 614-444-1000 or 800-635-9071 www.spectrumreporting.com

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Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
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December 19, 2006
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APPEARANCES ON BEHALF OF PLAINTIFF: Cooper & Kirk 555 11th St. N.W., Ste. 750 Washington, D.C. 20004 By David M. Lehn, Esq. ON BEHALF OF DEFENDANT: Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, OH 44114 By Gary L. Walters, Esq. ON BEHALF OF THE WITNESS: Schottenstein, Zox & Dunn Co., LPA 250 West Street, 7th Floor Columbus, OH 43215 By Russell J. Kutell, Esq.

INDEX Examination By Mr. Lehn - Cross Mr. Walters - Cross

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Exhibits 1 - 1912 Lease 2 - Mr. Ketteler's Affidavit

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(Exhibits attached to original transcript.)

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Tuesday Morning Session December 19, 2006, 9:27 a.m. ----STIPULATIONS ----It is stipulated by counsel in attendance that the deposition of Thomas R. Ketteler, a witness herein, called by the Plaintiff for cross-examination, may be taken at this time by the notary pursuant to notice and subsequent agreement of counsel that said deposition may be reduced to writing in stenotypy by the notary, whose notes may thereafter be transcribed out of the presence of the witness; that proof of the official character and qualification of the notary is waived. -----

09:27:35 09:27:35 09:27:36 09:27:36 09:27:40 09:27:41 09:27:47 09:27:51 09:27:54 09:27:58 09:28:02 09:28:05 09:28:06 09:28:07 09:28:11 09:28:17 09:28:21 09:28:24 09:28:26 09:28:29

THOMAS R. KETTELER being first duly sworn, testifies and says as follows: CROSS-EXAMINATION BY MR. LEHN: Q. Would you please state your name for the record? A. My name is Thomas R. Ketteler. Q. And your residence? A. 22270 Banyan, B-A-N-Y-A-N, Hideaway Drive, Bonita Springs, Florida 43135. Q. Okay. Mr. Ketteler, I'm David Lehn, and I represent the plaintiff in this lawsuit. This is going to be, I think, a fairly painless deposition for you. Have you been deposed before? A. Yes, I have. Q. What was that in? A. Oh, various business matters. Q. Okay. I'm going to just refresh the rules of the deposition for you. I'm going to ask a question; you provide the answer. I'll try -- we should try to speak one at a time. If I interrupt you, please let me know and I will stop and you can finish your answer. If you want to

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Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
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December 19, 2006
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take a break at any point, just let me know. I am not going to try to probe into communications that you've had with your lawyer or any lawyer. So if I ask you a question and the answer seems to call for you to disclose confidential communication with a lawyer, just tell me and we can deal with that. I'm not trying to sneak anything by you with a privileged question. Okay. Another important thing is, let me know when you are answering -- primarily, you should be answering based on your own personal knowledge, what somebody told you might have happened. But if that is the only answer you have, then just let me know that that's the basis of your answer. MR. WALTERS: Objection. Q. And if any lawyer objects to something that I say, you should still proceed with answering my question. Is there anything -- I apologize. It's not meant to be an offensive question. But is there anything that would impair your ability to tell the truth today, any medication or anything

worked in public accounting approximately 15 years, through approximately 1981, when I joined the Schottenstein Stores Corporation and its affiliates as chief financial officer. I stayed in that position with Schottenstein until I retired in January of 2005. And presently I function as a consultant, primarily to the Schottenstein organizations. Q. At any point were you -- let me take this in pieces. When you were CFO of Schottenstein Stores, was S&R under your auspices? MR. KUTELL: When you say "S&R" -Q. S&R Playhouse Realty Company. A. Could you explain that? Q. I guess what I'm asking about is the corporate structure, because I know S&R Playhouse is, in part, I believe, owned by Mr. Schottenstein. So I'm asking whether it is related to Schottenstein entities, or is there some connection? So I'm asking if you -- if you can explain the relationship between S&R and the company you worked for, Schottenstein Stores, if there is one.

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like that? A. No. Q. Okay. Did you do anything to prepare for this deposition? A. I talked with counsel. Q. Okay. Did you review any documents? A. Well, I -- besides my affidavit, I glanced at the lease and the assignment. Q. Okay. Did you bring any documents with you to the deposition? A. No, I did not. Q. Do you have any documents that are -A. I do not have any documents. MR. KUTELL: Tom, just a little pointer, just wait for Mr. Lehn to complete the question. THE WITNESS: Okay. Q. Let's do a little bit of background on you. Could you give me, almost like a resumé here, educational and professional history since college? A. I graduated from Thomas Moore College in 1964 with a bachelor's degree in accounting. Two years later I passed the CPA exam, and I

A. Well, I oversaw the information that was passed on to Mr. Schottenstein, in that regard. Q. Information pertaining to S&R Playhouse? A. Financial information, yes. Q. Are you aware of the nature of this lawsuit? A. Yes. Q. Could you describe it for me, please? A. Very simply, it's a question on the amount of rent due under the lease. Q. Okay. So at Schottenstein Stores, were you the CFO for your entire duration of employment with them? A. Yes. Q. CFO. I'm sorry if I misspoke. And the time frame was approximately 1981 until 2005? A. Correct. Q. Could you also explain for me the relationship between the brothers Cleveland and Schottenstein Stores -- Halle Brothers Company. A. Well, Halle Brothers Company was a

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Spectrum Reporting LLC

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21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
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December 19, 2006
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retailer based in Cleveland, Ohio, that at the time Schottenstein got involved, was owned by Marshall Fields & Company. Q. And then Mr. Schottenstein purchased -A. Yes. MR. KUTELL: Just for the record, there are lots of Schottensteins out there. When you are talking about Mr. Schottenstein, I take it you are talking about Mr. Jerome Schottenstein, correct? MR. LEHN: Yes, that's correct. Q. Was Halle Brothers Companies a subsidiary of Schottenstein Stores? A. No. Q. Did you have any responsibilities with respect to Halle Brothers Company? A. Yes. Q. What were those responsibilities? A. I oversaw the financial records, established banking relationships. Q. Was S&R Playhouse a subsidiary of Schottenstein Stores? A. No.

communications with the owner of the property, with the lessor? A. I don't recall any contact. Q. Do you recall hearing from other people about such contacts -MR. KUTELL: Objection to form. What time are we talking about? Q. At any point after the acquisition of Halle Brothers. A. Would you explain it better, please? Q. Sure. Between 1981 and 2005, when you were the CFO of Schottenstein Stores, do you recall hearing about or being informed in any way of communications between anyone responsible for managing the Halle building or the property underlying it and the owner of that property? A. Are you referring to the building or the ground lease? Q. Well, when I say the owner of the property, I'm talking about the owner of the ground, the lessor. A. No, I don't recall any. Q. Okay. Prior to preparing for this deposition, had you ever read the lease that is

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Q. So your responsibilities, even though you were CFO for Schottenstein Stores, your responsibilities extended beyond just Schottenstein Stores and its subsidiaries to other entities? A. Yes. Q. Okay. Did you have any responsibility with respect to the property that's the subject of this lawsuit or the Halle building? A. No. Q. Do you know who was responsible for managing that property? A. I don't recall. Q. Do you know what they used the building for? A. It was a retail store, department store. Q. That was before it was acquired by Mr. Schottenstein or also after -A. Before and after. Q. Do you know what it's used for today? A. I believe it was converted into an office building. Q. Did you ever have any contacts or

the subject of this lawsuit? A. I don't recall. Q. Were you aware of the existence of a gold clause in the lease prior to this lawsuit? A. I don't recall. Q. So I take it you don't recall discussing the gold clause with anyone prior to this lawsuit. A. That's correct. Q. I'd like to talk to you about the assignment and assumption of the lease between Halle Brothers and S&R Playhouse that occurred in 1982. And just for convenience, I'll refer to it as the assignment or the 1982 assignment. Did you have any role in this transaction, the assignment? A. As I recall, I worked with Jerome Schottenstein on the transaction. Q. By "worked with," can you give me some examples of specific things you might have done? A. At that time, it was reviewing tax implications of the transaction. Q. Who decided to do this assignment? A. Jerome Schottenstein.

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Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
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December 19, 2006
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Q. Were there any negotiations with anyone on behalf -- anyone who was representing S&R Playhouse? A. I don't recall. Q. Do you recall who might have represented S&R if there were such negotiations if -A. No, I don't. Q. Who else was involved in the process of deciding to assign the property, assign the lease? A. The decision was made by Jerome Schottenstein. Q. Did he consult anyone? A. I don't recall that he did. Q. Did you have -- strike that. You said that Mr. Schottenstein consulted you about tax implications, is that correct, related to the assignment? A. Well, I looked at tax considerations, yes. Q. What did you discover? A. At this time, I don't recall. Q. Did you look at anything else besides the tax implications?

MR. LEHN: Certainly. Halle Brothers is the entity I meant. MR. WALTERS: Objection; foundation. Q. Was the assignment of the lease a necessary component of Mr. Schottenstein's plan to convert the use of the Halle building? A. Yes. Q. And why was it a necessary component? A. It was a necessary component because we did not have the expertise of developing -- or redeveloping property like that. Q. Who did? MR. WALTERS: Objection. Q. You may answer. MR. KUTELL: If you know. A. Mr. Schottenstein worked with the Ratners. Q. Jim Ratner? A. I don't recall the first name. Q. Do you know who drafted the assignment, the contract itself? A. At what point in time? Do I know now or back at that time? Q. If you know now -- well, do you know Q.

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A. I don't recall. Q. Do you recall what period of time these -- over which you were doing these investigations into the tax implications? Was it a week, was it a month? A. I don't recall. Q. Do you know why Mr. Schottenstein wanted to assign the property? A. Yes. We -- the downtown Halle Brothers store was losing approximately $6 million a year. And he felt that that real estate would be put to a better use, rather than running a department store. At the time there was a lot of redevelopment going on in downtown Cleveland. Q. Why was the assignment a necessary component to that? Why not just have Halle Cleveland convert their building into an office or some other use? MR. WALTERS: Objection. MR. KUTELL: Halle Cleveland? MR. LEHN: Halle Brothers. Excuse me. We have quite a few Halle entities. MR. KUTELL: I know. That's why I wanted the record to be clean.

now? A.

Yes -- sorry. MR. KUTELL: Objection, again, foundation. I don't know if you actually have your own personal knowledge of that or not. Q. Well, do you know now, today? A. It was drafted by Schottenstein, Zox & Dunn back in 1982. Q. Okay. Do you know -- did you know that at the time or -A. I don't recall that at the time. But when I looked at the document, I saw the address of the law firm. Q. When you looked at the document, meaning in preparation for this deposition? A. Yes. Q. Did you ever review the contract at the time of the transaction? A. I don't recall. Q. Would Mr. Schottenstein -- would Mr. Schottenstein have reviewed that document? MR. WALTERS: Objection. Q. You may answer. MR. KUTELL: To the extent you know.

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Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
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December 19, 2006
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A. I don't know. Q. Do you know if anyone else reviewed that document? MR. WALTERS: Objection. A. I don't recall. Q. That is, at the time of the -- at the time of the 1982 assignment not, you know, last week or something, do you know whether -A. I don't recall names. I can only speculate, which I'm not going to do. Q. Well, you can speculate. MR. KUTELL: You said -Q. If you can speculate, please speculate, and you can qualify it. A. It would just be a guess. Q. Take a guess. A. We had an attorney, Lou Pearlman. Q. He is in-house counsel? A. Yes. Q. At Schottenstein Stores? A. Uh-huh. ----Thereupon, Exhibit 1 is marked for purposes of identification.

A. Yes. Q. Okay. Do you recall having any discussions with anyone at Schottenstein Stores during the time of the 1982 transaction about that clause of the lease? A. I don't recall. Q. Do you recall hearing about any discussions between anyone else at Schottenstein Stores at the time of the 1982 assignment about that clause of the lease? A. I don't recall. Q. Okay. Do you recall participating in any discussions, generally, about the rent on this property during the time of the 1982 assignment? A. Not at the time of the 1982 assignment. Q. Do you recall participating in any discussions about the rent on the property at any time other than the 1982 assignment or in anticipation of this litigation? MR. WALTERS: Objection. Q. You may answer. A. Would you repeat that again, please? Q. Sure. Do you recall having any discussions about the rent on the property that is

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----Q. I'm marking as Exhibit 1, this is the original 1912 lease that is the subject of this lawsuit. If you want to take a minute and peruse it, feel free. Would you turn to page 2? It's about the 10th or 12th line down from the top. I'm going to read it. It says, "The lessees shall pay or cause to be paid unto the lessor, its successors and ensigns, during the continuance of this lease, rental as follows: For the first two (2) years ending on the 31st day of March, 1914, the sum of ten thousand dollars (10,000.00)." Then it goes on to define the rent for various other years. And then, maybe about ten lines farther down it says, "For the remaindor of said term, to wit: Eighty nine (89) years the sum of thirty five thousand dollars ($35000.00) per year, payable in advance in quarterly installments of eight thousand seven hundred and fifty dollars ($8,750.00) each upon the first day of April, July, October and January in each year." Do you have that?

the subject of this lawsuit at any time other than in anticipation of this litigation? MR. KUTELL: I would just remind you not to disclose any sort of attorney-client communications. A. When we acquired Halle Brothers, what I recall is that the personnel we worked with from Marshall Fields indicated in a meeting that I attended with Jerome that it was a very cheap lease. Q. Did they explain why it was a cheap lease? A. I don't recall at this time. Q. Did you inquire yourself into why it was a cheap lease? A. I don't recall. Q. Do you recall whether anyone else at Schottenstein Stores inquired as to whether it was a cheap lease? A. I don't recall. Q. And by "cheap lease," what do you mean? A. The dollar amount paid over the period of time. Q. Okay. Back to page 2 of the exhibit,

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Spectrum Reporting LLC

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Thomas R. Ketteler
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December 19, 2006
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Exhibit 1, after the last sentence that we just read, it says -- I'm going to read the next one. "All of said rents shall be paid in a gold coin of the United States of the present standard of weight and fineness by depositing it to the credit of the lessor, its successors or assigns, with the Citizens Savings & Trust Company of Cleveland, Ohio, of at such other place in the City of Cleveland as the said lessor, it successors and assigns, may from time to time designate." I'm going to refer to that as the gold clause. Do you recall having any discussions with anyone at Schottenstein Stores about the gold clause at the time of the 1982 assignment? A. I don't recall. Q. Do you recall having any conversations with anyone at Schottenstein Stores about the gold clause at any other time other than in anticipation of this lawsuit? A. I don't recall. Q. Do you recall having any conversations about a gold clause with anyone not at Schottenstein Stores about the gold clause other than in anticipation of this deposition?

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for in Article IV hereof the lessees agree to keep the building and improvements on said premises insured against loss by fire for an amount equal to the full insurable value thereof or, if such insurable value exceeds one hundred thousand dollars ($100,000.00) then for an amount not less than one hundred thousand dollars ($100,000.00) in responsible insurance companies authorized to do business in the State of Ohio or in such companies as may be from time to time approved by the lessor." I'll call that the insurance clause. MR. KUTELL: I'll note for the record that the word "be" was handwritten in there, I'm not sure by whom and when. MR. LEHN: Okay. MR. KUTELL: It may be typed. MR. LEHN: I think it's typed. MR. KUTELL: I'm not sure. Q. Do you recall having any conversations with anyone other than in anticipation of this litigation about the insurance clause? A. No, I don't. Q. Okay. Farther down the page, maybe about ten lines up from the bottom or so, "It is

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A. I don't recall. Q. Okay. I'm going to return to page 2 of Exhibit 1. The next sentence, "As a part of the consideration for this lease and in addition to the rentals hereinbefore provided, the lessees hereby covenant and agree to indemnify and save harmless the lessor, its successors and assigns, from any and all taxes, assessments or levies on or against this lease (expecting, however, any income tax that may be levied against the lessor by reason of this lease) the lessees estate hereunder and the premises hereby leased and all improvements thereon, for the full term of this lease and of any and all extensions thereof, beginning with the taxes, assessments and levies due and payable in December 1012." I'm going to call that the indemnification clause. Do you recall having conversations with anyone other than in anticipation of this lawsuit about the indemnification clause? A. No, I don't. Q. On page 3 of Exhibit 1, about the middle of the page, it says, "From and after the erection and completion of the building provided

further mutually agreed that in case the building or buildings and improvements upon said premises shall be at any time damaged or this lease shall not be terminated, the laws of the State of Ohio to the contrary notwithstanding, and that neither of the parties hereto shall be released by reason of any such damage or destruction from any obligation created or imposed by virtue of this instrument." Are you with me? A. Yes. Q. Do you recall having conversations about that clause with anyone other than in anticipation of this lawsuit? A. No, I don't. Q. On page 5 of Exhibit 1, in the middle of the page, "The lessor, for itself, its successors and assigns, further expressly agrees that the lessees shall have the right and option, which is hereby granted, to extend and renew this lease for a further period of twenty five (25) years or of fifty (50) years" -- I believe it says of, but I think I'll read it as or, -- "ninety nine (99) years, from and after the expiration of the said term herein, granted if the lessees shall

7 (Pages 22 to 25)

Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
Page 26
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December 19, 2006
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desire an extension thereof for either of said additional periods." I'll call this the renewal clause. Do you recall having conversations with anyone other than in anticipation of this lawsuit about the renewal clause? A. I do not recall. Q. Do you recall hearing about conversations or discussions about the rent between other people at any point other than in anticipation of this lawsuit? A. No, I don't recall. Q. Do you recall hearing about conversations or discussions about the gold clause at any point other than in anticipation of this lawsuit? A. No. Q. Do you recall hearing about conversations or discussions about the indemnification clause at any point other than in anticipation of this lawsuit? A. No. Q. Do you recall hearing about conversations or discussions pertaining to the

conversations about the renewal clause at any point other than in anticipation of this lawsuit? A. No, I don't recall. Q. I believe that you said when Schottenstein purchased Halle Brothers from Marshall Fields, Marshall Fields indicated that it was a cheap lease; is that correct? A. Yes. Q. Okay. Do you recall any other conversations that you participated in or that you heard about between others that referred to any aspect of the lease at any point other than in anticipation of this litigation? A. No, I don't recall. MR. LEHN: Could we take a ten-minute break, five-minute break? THE WITNESS: Sure. MR. KUTELL: Sure. (A brief recess is taken.) Q. Just a few more questions, Mr. Ketteler. In your affidavit you said in paragraph 3, "On behalf of Halle Brothers Company, I participated in the negotiations of the transfer

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insurance clause other than in anticipation of this lawsuit? A. No, I don't recall. Q. Do you recall any conversations about the -- I forgot what I termed it, but the clause that pertained to if the building was destroyed, it doesn't discharge any obligations? We can go back and look at it, since I have forgotten what I termed it. It was on page 3, towards the bottom, "It is further mutually agreed that in case the building or buildings and improvements upon said premises shall be at any time damaged or destroyed this lease shall not be terminated, the laws of the State of the Ohio to the contrary notwithstanding, and that neither of the parties hereto shall be released by reason of any such damage or destruction from any obligation created or imposed by virtue of this instrument." Do you recall hearing about conversations or discussions between others at any point other than in anticipation of this lawsuit about this clause? A. No, I don't recall. Q. Do you recall hearing about

of that leasehold." MR. KUTELL: Do you have a copy of the affidavit? MR. LEHN: I don't have a copy. I'm sorry. MR. KUTELL: Why don't we mark a copy so he can take a look at it. MR. WALTERS: I'm happy to give you a copy. ----Thereupon, Exhibit 2 is marked for purposes of identification. ----MR. LEHN: So the affidavit is Exhibit 2. Q. Paragraph 3, it's the last sentence. Okay. I believe you said previously that you don't recall who participated in the negotiations besides yourself; is that correct? MR. KUTELL: Objection. Q. You may answer. A. I think what I said was Jerome Schottenstein did the negotiations.

8 (Pages 26 to 29)

Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
Page 30
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December 19, 2006
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Q. On behalf of Schottenstein Stores? A. Yes. Q. Or on behalf of Halle Brothers Company? A. Well, both, really. But it would be Halle Brothers Company, yes. Q. Do you remember who did the negotiations on behalf of S&R Playhouse? A. No, I don't. Q. Okay. And by participate in the negotiations, what did you do to participate? A. I assisted Jerome Schottenstein at the time. Q. Can you give me some examples of things you did? A. He may have asked me a question regarding it. As I mentioned before, he was concerned with the tax ramifications of the transfer, that type of thing. Q. Okay. At no point did you discuss the lease with him? A. I don't recall at this time. Q. Okay. After the assignment in 1982, did you have responsibility for -- financial responsibility for S&R Playhouse?

Walters. ----CROSS-EXAMINATION BY MR. WALTERS: Q. We met for the first time this morning, correct? A. That's correct. Q. And I represent S&R Playhouse Realty Company. I'm from Thompson Hine, for the record. Did you generally advise Mr. Jerome Schottenstein with respect to his business financial affairs? A. Yes, I did. Q. And in your deposition, which has been marked here today as Plaintiff's Exhibit 2 -MR. LEHN: In his affidavit? MR. WALTERS: Affidavit, yes. Thank you. Let me back up just a second. Q. Mr. Lehn had shown you today in Plaintiff's Exhibit 1 the 1912 lease. And he has read to you at least part of the rental provision from that lease. Do you recall that? A. Yes. Q. Does that refresh your memory that rent

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A. No. Q. But you did see financial information from S&R Playhouse? A. As I recall, we got a report every so often. Q. What would be the content of that report? A. It had to do with the renovation of the building. Q. The costs? A. Costs. Q. Okay. Would the report include any reference to rental payments made on the lease? A. I don't recall. Q. Do you recall ever seeing any financial information that contained a record of the rent that S&R Playhouse was paying on the lease? A. I don't recall. Q. At any point? A. At any point. Q. Okay. MR. LEHN: I don't think I have anything further. MR. WALTERS: Mr. Ketteler, I'm Gary

under the lease was $35,000 per year? A. Yes. Q. Were you generally involved with the Halle building just before the time of the 1982 assignment in 1982 and then just after the 1982 assignment in 1982? A. Yes. Q. Sir, would you know if there were any discussions respecting plaintiff's theory in this case in which under this gold clause theory rent at the time in 1982 would have been in excess of half a million dollars per year? A. I don't recall any such conversations. Q. Would that have been a rather astounding development in the course of negotiating the 1982 assignment? A. Yes. Q. It would have been an increase in rent of at least 17 times, wouldn't it? A. I believe that's correct, yes. Q. And that would have been remarkable, correct, sir? A. Yes. Q. To your knowledge, sir, no one at any

9 (Pages 30 to 33)

Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615

Thomas R. Ketteler
Page 34
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December 19, 2006
Page 36
Witness Errata and Signature Sheet Spectrum Reporting LLC Correction or Change Reason Code 333 East Stewart Avenue 1 - Misspelling 2 - Word Omitted Columbus, Ohio 43206 3 - Wrong Word 4 Clarification Phone - 614-444-1000 Fax - 614-444-3340 5 - Other Correction (Please explain) Email - [e-mail] R Sheet _____ of _____ Page/Line Correction, Addition, or Change Reason Code _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ _________ _________________________________________ ___________ I, Thomas R. Ketteler, have read the entire transcript of my deposition taken in this matter, or the same has been read to me. I request that the changes noted on my errata sheet(s) be entered into the record for the reasons indicated. Date ____________________ Signature ___________________________________________________________ The witness has failed to sign his deposition within the time allowed. Date ___________________ Signature ___________________________________________________________

time ever raised an issue that rent under the 1912 lease was variable under a gold clause theory, did they? A. I don't recall anyone raising that. Q. To your knowledge, was rent prior to the 1982 assignment being paid at the rate of $35,000 per year or approximately that amount? A. I don't recall at this time. MR. WALTERS: I have no further questions. MR. KUTELL: We're not going to waive. ----Thereupon, the foregoing proceedings concluded at 10:21 a.m. -----

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State of Ohio : CERTIFICATE County of Franklin: SS I, Carmen G. Maley, a Notary Public in and for the State of Ohio, certify that Thomas R. Ketteler was by me duly sworn to testify to the whole truth in the cause aforesaid; testimony then given was reduced to stenotype in the presence of said witness, afterwards transcribed by me; the foregoing is a true record of the testimony so given; and this deposition was taken at the time and place specified on the title page. Pursuant to Rule 30(e) of the Fed. R. Civ. P., the witness and/or the parties have not waived review of the deposition transcript. I certify I am not a relative, employee, attorney or counsel of any of the parties hereto, and further I am not a relative or employee of any attorney or counsel employed by the parties hereto, or financially interested in the action. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Columbus, Ohio, on December 19, 2006. ______________________________________________ Carmen G. Maley, Notary Public - State of Ohio

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Spectrum Reporting LLC

614-444-1000

21149940-478f-494a-85b2-b310b1822615