**Exhibit 10.1**

FIRST AMENDMENT TO LEASE

THIS FIRST AMENDMENT TO LEASE (this “**Amendment**”)is dated for reference purposes as of July 17, 2006, between I&G PEACHTREECORNERS, L.L.C., a Delaware limited liability company (“**Landlord**”), and XTEND NETWORKS, INC., aDelaware corporation (“**Tenant**”).

RE C I T A L S

A.            Landlord’s predecessor in title and Tenantentered into a certain Lease Agreement, dated as of January 20, 2005 (the “**Lease**”). Under the terms of the Lease, Landlord leases to Tenant approximately5,740 rentable square feet situated in Suite 210  (the “**Existing Premises**”) of the buildingcommonly known as The Corners Office Park located at 6625 The Corners Parkway,Norcross, GA 30092 (the “**Building**”).

B.            The parties desire to amend the Lease toprovide for (i) the relocation of Tenant to certain space on the first floor ofthe Building stipulated to contain 14,654 rentable square feet situated inSuites 100 and 120 (the “**New Premises**”),as outlined on the diagram attached as Exhibit A, (ii) the terminationof the Lease with respect to the Existing Premises, (iii) the extension of theTerm, and (iv) certain other agreements, all as set forth in and subject to theterms and conditions contained in this Amendment.

NOW, THEREFORE, in consideration of these premises and other good andvaluable consideration, the receipt and legal sufficiency of which are herebyacknowledged, the parties agree as follows:

1.             CapitalizedTerms. All capitalized terms which are not specifically defined in thisAmendment and which are defined in the Lease will have the same meaning forpurposes of this Amendment as they have in the Lease.

2.             LeaseTerm. Subject to the terms and conditions set forth in this Amendment, theTerm is hereby extended to expire on the last day of the calendar month inwhich the day immediately preceding the fifth annual anniversary of the RentEffective Date (as defined in Paragraph 3 below) occurs (the “**Revised Term Expiration Date**”).  The period beginning on the New PremisesEffective Date (as defined in Paragraph 3(d) below) and ending on the RevisedTerm Expiration Date is referred to as the “**RevisedTerm**”.

## 3.             New Premises. Effective as of the New Premise Effective Date, Landlord leases toTenant, and Tenant leases from Landlord, the New Premises.  The “**New Premises Effective Date**” means the date which is 60 days after the later to occur of (a) thedate this Amendment is fully executed by the parties hereto, and (b) a buildingpermit has been issued to Landlord for performance of the Work (as defined inthe Work Letter), subject to the provisions of this Amendment.  Except as otherwise expressly provided belowin this Paragraph 3, Landlord will have no liability to Tenant for failure todeliver possession of the New Premises to Tenant with the Work substantiallycompleted by the date set forth above. If Landlord fails to deliver possessionof the New Premises by such date with the Work substantially completed for anyreason other than a Tenant Delay (as defined in the Work Letter), the NewPremises Effective Date will be deferred until Landlord delivers possession ofthe New Premises with the Work substantially completed.  If Landlord fails to

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## deliverpossession of the Premises by such date with the Work substantially completeddue to a Tenant Delay, then the New Premises Effective Date will not bedeferred.  Landlord andTenant agree, upon demand by the other, to execute and deliver a CommencementDate Agreement in the form of Exhibit C attached within 15 daysafter such request.

If Landlord fails to deliver possession of theNew Premises with the Work substantially complete on or before the New PremisesEffective Date (plus one additional day for each day that substantialcompletion of the Work is delayed due to a Tenant Delay, as defined in the WorkLetter, or due to an Unavoidable Delay (as defined in the Lease), Landlord willgrant to Tenant a credit (the “Rent Credit”) equal to $722.66 multiplied by thenumber days in the period beginning on the day immediately following the NewPremises Effective Date and ending on the day on which Landlord delivers toTenant possession of the New Premises with the Work substantially completed,inclusive.  Except for such Rent Credit,as herein provided, there will be no other liability against Landlord forfailure to complete the Work or deliver possession of the New Premises.   Landlord will apply such Rent Credit (ifany) against Base Rent coming due under this Lease in the order in which suchBase Rent becomes due.

Effectiveas of the New Premises Effective Date:

(a)           except as otherwise provided in thisAmendment, all references in the Lease and this Amendment to the term “Premises”will mean the New Premises, and shall not include the Existing Premises.  The Lease, as amended hereby, shall be of nofurther force and effect with respect to the Existing Premises, and Tenantshall not be liable for any obligations under the Lease with respect to theExisting Premises (except for those obligations with respect to the ExistingPremises which would survive the termination of the Lease), but Tenant shall beliable for all obligations under the Lease with respect to the New Premiseswhich accrue from and after the New Premises Effective Date.  Within 15 business days after the New PremisesEffective Date, Tenant will deliver to Landlord possession of the ExistingPremises in the condition required by Section 17 of the Lease.  Section 18 of the Lease (Holding Over) willapply to Tenant’s failure to vacate the Existing Premises within the requiredtime;

(b)           all references in the Lease to the rentablesquare footage of the Premises will be deemed to be 14,654 rentable square feetfor the New Premises;

(c)           Tenant’s Proportionate Share will be deemedto be 14.1908% (14,654 rentable square feet in the New Premises divided by103,264 rentable square feet in the Building); and

(d)           The “**Rent Effective Date**”shall mean the 60th calendar day after the New Premises EffectiveDate, unless the New Premises Effective Date is the first day of a calendarmonth, in which case the “Rent Effective Date” means the first day of the 3rd calendar month of the RevisedTerm.

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4.             Rental.

(a)           Effectiveas of the Rent Effective Date, Tenant shall pay Base Rent for the New Premisesas follows:
| **PERIOD  (may be less than  12 calendar months)**                | ** ** | **BASE RENT  (annualized)** | ** ** | **MONTHLY INSTALLMENTS  OF BASE RENT** | ** **                                  |
|--------------------------------------------------------------------------------------------|------------|----------------------------------|------------|-------------------------------------------------------|---------------------------------------------|
| New Premises  Effective Date through the day immediately preceding the Rent Effective Date |       | $                                | 0.00       |                                                  | $0.00  ($0.00 x 14,654 rsf ÷12)        |   |
| Rent Effective  Date through the last day of the first Lease Year                          |       | $                                | 263,772.00 |                                                  | $21,981.00  ($18.00 x 14,654 rsf ÷ 12) |   |
| First day of the  second Lease Year through the last day of the second Lease Year          |       | $                                | 271,685.16 |                                                  | $22,640.43  ($18.54 x 14,654 rsf ÷ 12) |   |
| First day of the  third Lease Year through the last day of the third Lease Year            |       | $                                | 279,891.36 |                                                  | $23,324.28  ($19.10 x 14,654 rsf ÷ 12) |   |
| First day of the  fourth Lease Year through the last day of the fourth Lease Year          |       | $                                | 288,244.20 |                                                  | $24,020.35  ($19.67 x 14,654 rsf ÷ 12) |   |
| First day of the  fifth Lease Year through the last day of the fifth Lease Year            |       | $                                | 296,890.08 |                                                  | $24,740.84  ($20.26 x 14,654 rsf ÷ 12) |   |
| First day of the sixth  Lease Year through the last day of the Revised Term                |       | $                                | 305,829.00 |                                                  | $25,485.75  ($20.87 x 14,654 rsf ÷ 12) |   |

 

**A “**Lease Year” shall be each twelve (12)month period beginning on the New Premises Effective Date; provided, however,if the New Premises Effective Date is not the first day of the month, the firstLease Year shall commence on the New Premises Effective Date and end on thelast day of the 12th calendar month thereafter and the second andeach succeeding Lease Year shall commence on anniversaries of the first day ofthe calendar month immediately following the calendar month in which the NewPremises Effective Date occurs.

(b)           UnderSection 3(b) of the Lease, beginning on January 1, 2007, Tenant shall continueto pay Tenant’s Proportionate Share of the excess of actual Operating Expensesfor each calendar year over the Operating Expense Base, which shall be theOperating Expenses incurred by Landlord in the base year 2006 and suchOperating Expenses shall continue to be “grossed up” in the manner set forth inthe last grammatical sentence of Section 3(c) of the Lease.

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5.             Preparationand Condition of New Premises.  Commencing on the New Premises EffectiveDate, Landlord is leasing the New Premises to Tenant “AS IS” and “With AllFaults”, without any representations or warranties of any kind (including,without limitation, any express or implied warranties of merchantability,fitness or habitability).  However, tothe extent indicated in the Work Letter attached to this Amendment as ExhibitB (the “**Work Letter**”),Landlord will cause the New Premises to be improved in accordance with thePlans (as defined in the Work Letter) and on the terms, conditions andprovisions as provided in the Work Letter. Landlord will have no responsibility for the cost of the Work except asexpressly provided in the Work Letter. Landlord will use commercially reasonable efforts to complete the Workwithin the time provided in the Work Letter, but Landlord will have noliability to Tenant for any delays in the performance or completion of theWork, except as expressly described in Paragraph 3 above.

Taking possession of the New Premises by Tenant will be conclusiveevidence as against Tenant that the New Premises were in good and satisfactorycondition when possession was so taken, except as otherwise expressly providedin the Work Letter.

6.             Other Provisions. Paragraph 1 (Contingent Right to Terminate) of Exhibit G (SpecialStipulations) to the Lease is hereby deleted in its entirety.

7.             Guaranty.  Contemporaneously with Tenant’sexecution of this Amendment and delivery thereof to Landlord, Tenant willdeliver to Landlord a guaranty from VYYO Inc., (the “**Guarantor**”),guarantying Tenant’s obligations under the Lease, as amended by thisAmendment.  Such guaranty will be in aform reasonably acceptable to Landlord.

8.             Security Deposit.  Theamount of the Security Deposit set forth in Section 1(n) of the Lease shall beamended to be $43,962.00.  Tenant shalldeliver the portion of the Security Deposit not previously delivered toLandlord under the Lease ($35,830.33) to Landlord concurrent with the deliveryof this Amendment executed by Tenant.

9.             Authority;Not Restricted.  Landlord and Tenant each represent andwarrant to the other that this Amendment has been duly authorized, executed anddelivered by and on behalf of each party hereto and constitutes the valid andbinding agreement of Landlord and Tenant in accordance with the terms hereof.  Tenant warrants and represents to Landlordthat Tenant is not, and shall not become, a person or entity with whom Landlordis restricted from doing business with under regulations of the Office ofForeign Asset Control (“**OFAC**”) ofthe Department of the Treasury (including, but not limited to, those named onOFAC’s Specially Designated and Blocked Persons list) or under any statute,executive order (including, but not limited to, the September 24, 2001,Executive Order Blocking Property and Prohibiting Transactions With Persons WhoCommit, Threaten to Commit, or Support Terrorism), or other governmental actionand is not and shall not engage in any dealings or transaction or be otherwiseassociated with such persons or entities.

10.           RealEstate Brokers. Each party heretohereby represents and warrants to the other that in connection with thisAmendment, the party so representing and warranting has not dealt with any realestate broker, agent or finder, except for Jones Lang LaSalle Americas, Inc.and The Staubach Company-Southeast, Inc. (together, the “**Brokers**”), and, to its knowledge no otherbroker initiated or participated in the negotiation of this

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Amendment, submitted or showed the applicablepremises to Tenant or is entitled to any commission in connection with thisAmendment.  Each party hereto willindemnify, defend and hold harmless the other against any and all claims,costs, liabilities and expenses (including, without limitation, reasonableattorneys’ fees) in connection with any inaccuracy in such party’srepresentation.  Landlord hereby agreesthat it will pay a commission to the Brokers according to a separate agreement.

11.           Stipulation.  The New Premises are stipulated for allpurposes to contain the number of rentable square feet as set forth in this Amendment.  Unless otherwise expressly provided herein,any statement of square footage set forth in this Amendment, or that may havebeen used in calculating rental, is an approximation which Landlord and Tenantagree is reasonable and the rental based thereon is not subject to revisionwhether or not the actual square footage is more or less.

12.           Counterparts.  This Amendment may be executed in any numberof counterparts and by each of the undersigned on separate counterparts, andeach such counterpart will be deemed to be an original, but all suchcounterparts will together constitute but one and the same Amendment.

13.           Timeof Essence.  Time is of the essence of this Amendment.

14.           NoOffer. Submission of this instrument for examination or negotiation will notbind Landlord, and no obligation on the part of Landlord will arise until thisAmendment is executed and delivered by both Landlord and Tenant.

15.           EntireAgreement. This Amendment and the Lease contain all the terms, covenants,conditions and agreements between Landlord and Tenant relating to therelocation of the Premises and the extension of the Term and the other mattersprovided for in this instrument.  In theevent of a conflict between the terms of the Lease and the terms of thisAmendment, the terms of this Amendment shall control.  No prior or other agreement or understandingpertaining to such matters other than the Lease will be valid or of any forceor effect.  This Amendment may only bemodified by an agreement in writing signed by Landlord and Tenant.

16.           Limitationon Liability.  The liability of Landlord to Tenant underthis Amendment will be limited asprovided in Section 29(xxi) of the Lease, which Section is incorporated hereinby reference as though fully set forth herein.

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17.           Leasein Full Force and Effect.  As modified hereby, the Lease and all of theterms and provision thereof remain in full force and effect and areincorporated herein as if herein fully recited.

 
|        | TENANT: XTEND NETWORKS, INC., a  Delaware corporation                    |
|--------|--------------------------------------------------------------------------|
|   |                                                                     |
|   | By:                                                                      | /s/ Avner Kol |   |
|   |                                                                     |
|   | Name: Avner Kol  Title: Chief Operating Officer  Date: July 7, 2006      |
|   |                                                                     |
|   |                                                                     |
|   | I&G PEACHTREE CORNERS, L.L.C., a  Delaware limited liability company |
|   |                                                                     |
|   | By:                                                                      | LaSalle Income & Growth Fund IV,  its managing member |
|   |                                                                     |   |
|   |                                                                     | By: | /s/ Allison  McFaul |   |
|   |                                                                     |   |
|   |                                                                     | Name: Allison McFaul  Title: Vice President  Date: July 12, 2006 |
|        |                                                                          |  |  |  |  |  |

 

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Exhibit A

New Premises Floor Plan

 

 

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Exhibit B

Work Letter

1.             PLANNING.

The space plan, dated May 15, 2006 (P-4, P-4A,P-4B) and prepared by Schneider Wright (the “**SpacePlanner**”), is attached to this Work Letter (the “**Space Plan**”).   Within 5 business days after Tenant’sexecution and delivery of this Amendment to Landlord, Tenant will (or willcause the Space Planner to) devote such time in consultation with Landlord andLandlord’s architect (the “**Architect**”)as Landlord deems reasonably necessary to furnish to Landlord or the Architectby such date such other information relative to the New Premises as Landlordmay deem reasonably necessary to enable the Architect to commence on or beforesuch date architectural plans and specifications (the “**Proposed Architectural Plans**”) forimproving the New Premises.  Theinformation to be furnished by Tenant and the Space Planner to the Architectwill include but not be limited to:

a.             Special loading, such as the location of filecabinets or special equipment.

b.             Openings in the walls or floors.

c.             Special electrical, air conditioning or plumbingwork.

d.                                      Location anddimensions of telephone equipment rooms, and telephone and electrical outlets.

e.             Partitions - locations and type, including doorsand hardware.

f.              Color selection of painted areas.

g.                                      Selection of floorcovering (such as, without limitation, carpet color) and any special wallcovering.

Within5 business days after the Proposed Architectural Plans have been submitted toTenant, Tenant agrees to provide the Architect with Tenant’s (a) written approvalof such Proposed Architectural Plans and to redeliver the ProposedArchitectural Plans to the Architect for submission to Landlord for Landlord’sfinal approval, or (b) written disapproval of such Proposed Architectural Plansstating in reasonable detail the reasons for such disapproval and thecorrections necessary, and to redeliver the Proposed Architectural Plans to theArchitect for revision.  Tenant’sapproval of the Proposed Architectural Plans will not be unreasonablywithheld.  If Tenant so disapproves suchProposed Architectural Plans, the Architect will modify the ProposedArchitectural Plans, taking into account the reasons given by Tenant fordisapproval, and will submit the revised Proposed Architectural Plans to Tenantfor approval. Within 5 business days after the revised Proposed ArchitecturalPlans have been submitted to Tenant, Tenant agrees to provide the Architectwith Tenant’s written approval of such revised Proposed Architectural Plans andto redeliver the Proposed Architectural Plans to the Architect for submissionto Landlord for Landlord’s final approval. If Tenant fails to redeliver the Proposed Architectural Plans withTenant’s approval (or disapproval, with reasons stated) to the Architect withinsuch 5 business day period, or after the Architect’s revision of the ProposedArchitectural Plans at Tenant’s request, Tenant fails to redeliver the revisedProposed Architectural Plans with Tenant’s approval to the Architect withinsuch 5 business day period, such failure shall constitute a Tenant Delay (asdefined below).

 

 

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Afterfinal approval of the Proposed Architectural Plans by Landlord (as so approved,the “**Approved Architectural Plans**”),Landlord will cause such Approved Architectural Plans to be delivered to theLandlord’s engineer (the “**Engineer**”)for the preparation of final mechanical and electrical plans and specifications(the “**Engineering Plans**”; theApproved Architectural Plans and the Engineering Plans are referred tocollectively as the “**Plans**”).  For purposes of this Work Letter, the “**Work**” means: (A) purchase and installationof the improvements and items of work shown on the Plans, (B) installation ofall telephone, voice/data and computer cables, conduit and equipment, and (C)any demolition, preparation or other work required in connection therewith.

2.             COST OF THE WORK; ALLOWANCE.

2.1           Cost of the Work.  Except for theAllowance to be provided by Landlord as described below, Tenant will pay allcosts (the “**Cost of the Work**”)associated with the Work whatsoever, including, without limitation, all costsfor or related to:

a.             the so-called “hard costs” of the Work,including, without limitation, costs of labor, hardware, equipment andmaterials, contractors’ charges for overhead and fees, and so-called Ageneral conditions” (including rubbishremoval, utilities, freight elevators, hoisting, field supervision, buildingpermits, occupancy certificates, inspection fees, utility connections, bonds,insurance, and sales taxes);

b.             the so-called “soft costs” of the Work, including,without limitation, the Space Plans, the Proposed Architectural Plans, theApproved Architectural Plans, and the Engineering Plans, and all revisions tothe foregoing, and any and all engineering reports or other studies, reports ortests, air balancing or related work in connection therewith**;**and

c.             an amount equal to4% of the total of the costs described in clauses a. and b. above, to coverLandlord’s overhead expenses and to compensate Landlord for its serviceshereunder.

Within15 days after the Plans are finalized, Landlord will obtain and furnish toTenant written estimates of the hardcosts component of the Cost of the Work. Such estimates will contain a guarantied maximum or fixed price amount(subject to unforeseen conditions, change orders, governmental requirements,and the like).  Such price proposal willbe subject to Tenant’s review and approval, which will not be unreasonablywithheld.  Unless otherwise agreed to inwriting by Tenant, Landlord will request the bids of three responsiblecontractors and will select the lowest responsible bidder as the contractor forthe Work.  If Tenant fails to approve ordisapprove in writing such estimates within 3 business days after Tenant’sreceipt of such estimates, Tenant will be deemed to have approved the lowestbidder, and Landlord may complete the Work without further authorization orapproval of Tenant.  The contractor whosebid is selected by Landlord and approved or deemed approved (as provided above)by Tenant is referred to as the “**Contractor**”.  Should Tenant desire to seek adjustments ofsuch price proposal, Tenant will work promptly with the Architect and theContractor to alter the Plans as necessary to cause the hard costs pricequotation based thereon to be acceptable to Tenant and to establish the revisedestimated Cost of the Work.  Upondetermination of the revised estimated Cost of the Work and initialing of thePlans, Tenant will be deemed to have given final approval of the same, andLandlord will be deemed to 

 

 

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have been authorized to proceed with contractingwith the Contractor for the performance of the Work in accordance with thePlans as so revised.  In the event thatthe estimated Cost of the Work exceeds the Allowance, Tenant must deposit withLandlord a sum equal to the difference between said estimated Cost of the Workand the Allowance.  Any delay by Tenantin approving the estimated Cost of the Work (beyond the three business daysafter Tenant’s receipt of the price proposals), and in the event the estimatedCost of the Work exceeds the Allowance, any delay (beyond 5 business days afterTenant’s receipt of a written invoice for the same) in Tenant depositing withLandlord a sum equal to the difference between said estimated Cost of the Workand Landlord’s Allowance, will constitute a Tenant Delay.  Prior to commencing the Work, Landlord andthe Contractor will enter into a construction contract for the performance ofthe Work called for by the Plans, for a price equal to or not to exceed thehard cost component of the estimated Cost of the Work approved or deemedapproved by Tenant (subject to unforeseen conditions, change orders,governmental requirements, and the like).

2.2           Allowance.  Landlord will provide aconstruction allowance (the “**Allowance**”)of up to $337,042.00 toward the Cost of the Work.  The Allowance may not be used for any otherpurpose, such as, but not limited to, furniture, trade fixtures or personalproperty.  Landlord will have noobligation to disburse the Allowance or any portion thereof so long as anyEvent of Default (as defined in the Lease) exists and is continuing.  If all or any portion of the Allowance is notused by December 31, 2006, Landlord will be entitled to the savings and Tenantwill receive no credit therefor.

2.3           Payment.  Landlord will pay the Cost ofthe Work up to, but not exceeding, the Allowance.  The Allowance will be utilized before Tenant’sfunds deposited with Landlord for the excess of the Cost of the Work over theAllowance.  To the extent that theestimated Cost of the Work exceeds the Allowance, Tenant will pay the excess toLandlord pursuant to Section 2.1 and 2.4 of this Work Letter.  An amount equal to the total actual Cost ofthe Work over the Allowance and over any amounts deposited with Landlordpursuant to Sections 2.1 and 2.4 hereof will be paid by Tenant to Landlordupon substantial completion of the Work, but in no case later than initialoccupancy by Tenant.  Tenant’s failure topay or deposit, as the case may be, any amounts due Landlord under this WorkLetter when due will constitute a failure by Tenant to pay rent when due underthe Lease and will constitute an Event of Default by Tenant under the Lease,and Landlord will have all of the remedies available to it under the Lease fornonpayment of rent.

2.4           Tenant Initiated Change Orders.  Ifat any time after the Cost of the Work is estimated, Tenant desires to makechanges in the Plans, Tenant will submit to the Architect any and all suchproposed changes, and the Architect will prepare for pricing by the Contractorworking drawings and specifications for any and all such desired changes.  All such changes will be subject to Landlord’sapproval, which will not be unreasonably withheld or delayed unless such changewould result in a material delay in the completion of the Work.  Once accepted by Landlord, such changes willbe processed as a formatted change order under the Contract or otherappropriate document, and all references in this Work Letter to the “Plans”will be to the Plans adopted pursuant to the procedures hereinabove set forth,as changed and modified pursuant to this Section, and the Cost of the Work willbe deemed to include the net aggregate cost of such changes (after taking intoaccount any savings effected by any such change order).  If any such change Tenant desires to make inthe Plans would increase the estimated Cost of the Work in excess of theAllowance, Tenant

 

 

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maybe required to deposit with Landlord the anticipated amount of such increase inthe Cost of the Work in excess of the Allowance as a condition to Landlord’sapproval of the Plans or any Tenant-initiated change orders thereto.

3.             SUBSTANTIAL COMPLETION; TENANT DELAY.  Subject to the other terms and conditions ofthis Work Letter and the foregoing Amendment, Landlord will proceed diligentlywith the performance of the Work.  Theactual New Premises Effective Date will be governed by the foregoingAmendment.  All work to be done in theNew Premises, including, without limitation, the Work, will be subject toLandlord’s approval, and no work may be undertaken in the New Premises untilsuch approval is given.  The Work will bedeemed substantially completed upon (i) completion of construction of theWork in substantial accordance with the Plans (excepting only such punch listitems that will not materially adversely affect Tenant’s occupancy and use ofthe New Premises for their intended purpose) and (ii) if required byapplicable law, Landlord’s receipt of a temporary or permanent certification orother authorization from the applicable governmental authority permittingoccupancy of the New Premises, unless Tenant’s actions or omissions have causedsuch approvals to be denied, in which case Tenant will be deemed to have waivedthis condition.  For purposes of thisWork Letter, each one or more of the following constitutes a “Tenant Delay”:

a.             Tenant’s failure to approve or disapprove(with stated reasons) the Proposed Architectural Plans within the requiredtime, or Tenant’s proposing changes to the Architectural Plans that areinconsistent with or beyond the scope of work called for by the Space Plan orinformation theretofore furnished by Tenant or its Space Planner to Landlord orthe Architect; or

b.             Tenant’s disapproval of cost estimates forthe Work; or

c.             Tenant’s request for materials, finishes orinstallations constituting “long-lead items,” as reasonably determined byLandlord; provided, however, that Landlord shall inform Tenant of any itemsthat require long-lead times upon receipt by Landlord of such information; or

d.             Tenant’s failure to respond within any of thetime periods specified herein, or Tenant’s failure to deposit (or delay indepositing) any sum Tenant is obligated to deposit with Landlord; or

e.             Tenant’s request for changes in the Work, orin the Plans (notwithstanding Landlord’s approval of any such changes) afterTenant’s preliminary approval thereof, including, without limitation, anychanges in the Plans made at the request of Tenant upon Tenant’s receipt of thecost estimates in accordance with Paragraph 2; or

f.              Any other act or omission by Tenant or itsagents, including, without limitation, the Space Planner, which directly orindirectly delays completion of the Work or Landlord’s delivery to Tenant ofpossession of the New Premises.

4.             ACCESS BY TENANT PRIOR TO NEW PREMISESEFFECTIVE DATE.  Landlord will permitTenant and Tenant’s agents to enter the New Premises prior to the datespecified as the New Premises Effective Date in order that Tenant may make theNew Premises ready

 

 

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forTenant’s use and occupancy.  Such entryprior to the New Premises Effective Date will constitute a license only and nota lease and such license will be conditioned upon:  (a) Tenant working in harmony and notinterfering with Landlord and Landlord’s agents, contractors, workmen, mechanicsand suppliers in doing the Work, or the Work in the Building or with othertenants and occupants of the Building; (b) Tenant obtaining in advance Landlord’sapproval of the contractors proposed to be used by Tenant and depositing withLandlord in advance of any work (i) security satisfactory to Landlord for thecompletion thereof, (ii) general contractor’s affidavit for proposed work andwaiver of lien from general contractor, all subcontractors and suppliers ofmaterial; (c) Tenant furnishing Landlord with such proof of insurance and othersecurity as Landlord may reasonably require. Tenant agrees that Landlord will not be liable in any way for anyinjury, loss or damage which may occur to any of Tenant’s property placed orinstallations made in the New Premises prior to the New Premises EffectiveDate, the same being at Tenant’s sole risk and Tenant agrees to protect,defend, indemnify and save harmless Landlord from all liabilities, costs,damages, fees and expenses arising out of or connected with the activities ofTenant or its agents, contractors, suppliers or workmen in or about the NewPremises or the Project.  Tenant furtheragrees that any entry and occupation permitted under this paragraph will begoverned by Paragraph 7 of the Lease and all other terms of the Lease.

5.             WARRANTY. Landlord will enforce for the full period thereof, any warranties forthe Work granted for the benefit of Landlord.

6.             MISCELLANEOUS.

A.            The New Premises must be keyed to permitentry by the Building master key.

B.            Except to the extent otherwise indicatedherein, the initially capitalized terms used in this Work Letter will have themeanings assigned to them in the Amendment to which this Work Letter isattached, or in the Lease.

C.            The terms and provisions of this Work Letterare intended to supplement and are specifically subject to all the terms andprovisions of Amendment and the Lease.

D.            This Work Letter may not be amended ormodified other than by supplemental written agreement executed by authorizedrepresentatives of the parties hereto.

E.             Any Space Plan or other plans that may beattached to or referred to in this Work Letter are subject to the approval ofthe applicable governmental authority, and will be subject to such revisions asmay be required by the applicable governmental authority.

F.             Landlord’s preparation or review and approvalof the Plans and the performance of the Work shall not create or imply anyresponsibility or liability on the part of Landlord with regard to thecompleteness and design sufficiency of both the Plans and the Work, or withregard to the compliance of the Plans and the Work with all laws, rules andregulations of governmental agencies.

 

 

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Attachment 1 to Exhibit B

Plans

 

 

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Exhibit C

Commencement Date Agreement

It is hereby agreed among the parties to that certain First Amendmentto Lease, dated                 ,2006, relating to the relocation of the Premises to Suites 100 and 120, in thebuilding located at 6625 The Corners Parkway, Norcross, Georgia (the ALease@) between XTEND NETWORKS, INC., a Delawarecorporation (ATenant@), and I&G PEACHTREE CORNERS, L.L.C., a Delaware limited liabilitycompany (ALandlord@) that:

The New Premises Effective Date under theFirst Amendment to Lease is                    .

The Rent Effective Date under the FirstAmendment to Lease is                   .

The Revised Term Expiration Date under theFirst Amendment to Lease is                   .

The actual dates of the periods for whichBase Rent are due are as follows:
| **PERIOD  (may be less than  12 calendar months)**                                                                                                                                                                                                                                                                | ** ** | **BASE RENT  (annualized)** | ** ** | **MONTHLY INSTALLMENTS  OF BASE RENT** | ** **                                  |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------------------|------------|-------------------------------------------------------|---------------------------------------------|
|  New Premises Effective Date (                   )  through the day immediately preceding the Rent Effective Date (                   ) |       | $                                | 0.00       |                                                  | $0.00  ($0.00 x 14,654 rsf ÷12)        |   |
|                                                                                                                                                                                                                                                                                                                                       |       |                             |       |                                                  |                                        |
|  Rent Effective Date (                   )  through the last day of the first Lease Year (                   )                          |       | $                                | 263,772.00 |                                                  | $21,981.00  ($18.00 x 14,654 rsf ÷ 12) |   |
|                                                                                                                                                                                                                                                                                                                                       |       |                             |       |                                                  |                                        |
|  First day of the second Lease Year (                   )  through the last day of the second Lease Year (                   )          |       | $                                | 271,685.16 |                                                  | $22,640.43  ($18.54 x 14,654 rsf ÷ 12) |   |
|                                                                                                                                                                                                                                                                                                                                       |       |                             |       |                                                  |                                        |
|  First day of the third Lease Year (                   )  through the last day of the third Lease Year (                   )            |       | $                                | 279,891.36 |                                                  | $23,324.28  ($19.10 x 14,654 rsf ÷ 12) |   |
|                                                                                                                                                                                                                                                                                                                                       |       |                             |       |                                                  |                                        |
|  First day of the fourth Lease Year (                   )  through the last day of the fourth Lease Year (                   )          |       | $                                | 288,244.20 |                                                  | $24,020.35  ($19.67 x 14,654 rsf ÷ 12) |   |
|                                                                                                                                                                                                                                                                                                                                       |       |                             |       |                                                  |                                        |
|  First day of the fifth Lease Year (                   )  through the last day of the fifth Lease Year (                   )            |       | $                                | 296,890.08 |                                                  | $24,740.84  ($20.26 x 14,654 rsf ÷ 12) |   |
|                                                                                                                                                                                                                                                                                                                                       |       |                             |       |                                                  |                                        |
|  First day of the sixth Lease  Year (                   )  through the last day of the Revised Term (                   )               |       | $                                | 305,829.00 |                                                  | $25,485.75  ($20.87 x 14,654 rsf ÷ 12) |   |

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INWITNESS WHEREOF, Landlord and Tenant have executed this Statement as of thedate hereof.
| TENANT: XTEND NETWORKS, INC. | LANDLORD: I&G PEACHTREE CORNERS, L.L.C. |
|------------------------------|---------------------------------------------|
|                         |                                        |
|                         | By:                                         |   |   |
| By:                          |                                        |   |   |
| Name:                        |                                        |   |   | By: |   |   |
| Title:                       |                                        |   |   | Name: |   |   |
| Date:                        |                                        | , 200 |   |   |   | Title: |   |   |
|                         |                                        | Date: |   | , 200 |   |   |
|                              |                                             |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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