**Exhibit10.9**

 

PHG/CWP/kt

10/24/07

 

**THIRD****LEASEAMENDMENT**

 

THIS THIRD LEASE AMENDMENT (the “Amendment”) is executed this 8th**day of November, 2007 and effective as of the 1st day of October,2007 by and between DUGAN FINANCING LLC, a Delaware limited liability company (“Landlord”),and GAIAM, INC., a Colorado corporation (“Tenant”).

 

WITNESSETH :

 

WHEREAS, Duke-Weeks Realty Limited Partnership, as predecessor ininterest to Landlord, and Tenant entered into a certain lease dated December 16,1999, as amended April 12, 2000 and October 5, 2005 (collectively, the“Lease”), whereby Tenant leases from Landlord certain premises consisting ofapproximately 208,120 square feet of space (the “Leased Premises”) in abuilding commonly known as World Park at Union Centre, Building No. 8, locatedat 9107 Meridian Way, Cincinnati, Ohio 45069; and

 

WHEREAS, Tenant is currently holding over in the Leased Premises andLandlord and Tenant desire to extend the Lease Term; and

 

WHEREAS, Landlord and Tenant desire to amend certain provisions of theLease to reflect such extension and other changes to the Lease;

 

NOW, THEREFORE, in consideration of the foregoing premises, the mutualcovenants herein contained and each act performed hereunder by the parties, Landlordand Tenant hereby agree that the Lease is amended as follows:

 

1.                                       Incorporation of Recitals. The aboverecitals are hereby incorporated into this Amendment as if fully set forthherein.

 

2.                                       Extension of Lease Term. The LeaseTerm is hereby extended through June 30, 2010.

 

3.                                       Amendment of Section 1.01. BasicLease Provisions and Definitions. Effective October 1, 2007, Section 1.01of the Lease is hereby amended by deleting subsections D, E, G and K andsubstituting the following in lieu thereof:

 

“D.                              Minimum AnnualRent:

 
| October 1,  2007 - October 31, 2007  |   | $56,886.13  (1 month)    |
|------------------------------------------------|--------|--------------------------|
| November 1,  2007 - October 31, 2008 |   | $597,304.44  per year    |
| November 1,  2008 - October 31, 2009 |   | $609,791.64  per year    |
| November 1,  2009 - June 30, 2010    |   | $414,852.56  (8 months); |

 

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E.                                      Monthly RentalInstallments:

 
| October 1,  2007 - October 31, 2007  |   | $ 56,886.13 per month  |
|------------------------------------------------|--------|-----------------------------|
| November 1,  2007 - October 31, 2008 |   | $ 49,775.37 per month  |
| November 1,  2008 - October 31, 2009 |   | $ 50,815.97 per month  |
| November 1,  2009 - June 30, 2010    |   | $ 51,856.57 per month; |

 

G.                                    Lease Term: extended throughJune 30, 2010;

 

K.                                   Brokers: DukeRealty Services, LLC representing Landlord, and Colliers Turley Martin Tuckerrepresenting Tenant;”

 

4.                             Amendment of Section 2.02. Constructionof Tenant Improvements. Section 2.02 of the Lease is herebyamended by incorporating the following:

 

“Tenant is presently inpossession of the Leased Premises, has inspected the same, and accepts the same“AS IS” without representation or warranty by Landlord of any kind and with theunderstanding that Landlord shall have no responsibility with respect thereto. Tenantacknowledges that the tenant finish improvements in **Exhibit B, Exhibit B-l**and**Exhibit B-2**have beencompleted in a satisfactory manner.”

 

5.                                      Amendment of Section 9.02. Tenant’sInsurance. Section 9.02 of the Lease is hereby amended asfollows:

 

(a)                                  Subparagraph B. of Section 9.02of the Lease is hereby deleted in its entirety and the following shall besubstituted in lieu thereof:

 

“B.                               CommercialGeneral Liability Insurance (which insurance shall not exclude blanket, contractualliability, broad form property damage, personal injury, or fire damage coverage)covering the Leased Premises and Tenant’s use thereof against claims for bodilyinjury or death and property damage, which insurance shall provide coverage onan occurrence basis with a per occurrence limit of not less than $11,000,000for each policy year, which limits may be satisfied by any combination ofprimary and excess or umbrella per occurrence policies.”

 

(b)                                 Subparagraph D. of Section 9.02of the Lease is hereby amended by adding the following: “with limits of notless than an amount equal to two (2) years rent hereunder.”

 

(c)                                  The last paragraph of Section 9.02of the Lease is hereby deleted in its entirety and the following shall besubstituted in lieu thereof:

 

“All insurance required byTenant hereunder shall (i) be issued by one or more insurance companiesreasonably acceptable to Landlord, licensed to do business in the State inwhich the Leased Premises is located and having an AM Best’s rating of A IX orbetter, and (ii) provide that said insurance shall not be materiallychanged, canceled or permitted to lapse on less than thirty (30) days’ priorwritten notice to Landlord. In addition, Tenant’s insurance shall protectTenant and Landlord as their interests may appear, naming Landlord, Landlord’smanaging agent, and any mortgagee requested by Landlord, as additional insuredsunder its commercial general liability policies. On or

 

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before November 1, 2007, and thereafter, withinthirty (30) days prior to the expiration of each such policy, Tenant shallfurnish Landlord with certificates of insurance in the form of ACORD 25 orACORD 25-S (or other evidence of insurance reasonably acceptable to Landlord), evidencingall required coverages, together with a copy of the endorsements to Tenant’scommercial general liability policies evidencing primary and non-contributorycoverage afforded to the appropriate additional insureds. Upon Tenant’s receiptof a request from Landlord, Tenant shall provide Landlord with copies of allinsurance policies, including all endorsements, evidencing the coveragesrequired hereunder. If Tenant fails to carry such insurance and furnish Landlordwith such certificates of insurance or copies of insurance policies (ifapplicable), Landlord may obtain such insurance on Tenant’s behalf and Tenantshall reimburse Landlord upon demand for the cost thereof as Additional Rent. Landlordreserves the right from time to time to require Tenant to obtain higher minimumamounts or different types of insurance if it becomes customary for otherlandlords of similar buildings in the area to require similar sized tenants insimilar industries to carry insurance of such higher minimum amounts or of suchdifferent types.”

 

6.                                       Amendment of Section 16.17. Option toExtend. Section 16.17 of the Lease is hereby deleted in itsentirety and shall be of no further force or effect.

 

7.                                       Amendment of Article 16. Miscellaneous.Article 16 of the Lease is hereby amended by adding the followingadditional section:

 

“Section 16.18. PatriotAct. Each of Landlord and Tenant, each as to itself, hereby represents itscompliance with all applicable anti-money laundering laws, including, withoutlimitation, the USA Patriot Act, and the laws administered by the United StatesTreasury Department’s Office of Foreign Assets Control, including, withoutlimitation, Executive Order 13224 (“Executive Order”). Each of Landlord andTenant further represents (i) that it is not, and it is not owned orcontrolled directly or indirectly by any person or entity, on the SDN Listpublished by the United States Treasury Department’s Office of Foreign AssetsControl and (ii) that it is not a person otherwise identified bygovernment or legal authority as a person with whom a U.S. Person is prohibitedfrom transacting business. As of the date hereof, a list of such designationsand the text of the Executive Order are published under the internet websiteaddress www.ustreas.gov/offices/enforcement/ofac.”

 

8.                                       BrokerageCommissions. The parties hereby represent and warrant that theonly real estate brokers involved in the negotiation and execution of thisAmendment are Duke Realty Services Limited Partnership, representing Landlord, andColliers Turley Martin Tucker, representing Tenant. Each party shall indemnifythe other party from any and all liability for the breach of thisrepresentation and warranty on its part and shall pay any compensation to anyother broker or person who may be entitled thereto.

 

9.                                       Tenant’sRepresentations and Warranties. The undersigned representsand warrants to Landlord that (i) Tenant is duly organized, validlyexisting and in good standing in accordance with the laws of the state underwhich it was organized; (ii) all action necessary to authorize theexecution of this Amendment has been taken by Tenant; and (iii) theindividual executing and delivering this Amendment on behalf of Tenant has beenauthorized to do so, and such execution and delivery shall bind Tenant. Tenant,at Landlord’s request, shall provide Landlord with evidence of such authority.

 

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10.                               Examination of Amendment. Submission ofthis instrument for examination or signature to Tenant does not constitute areservation or option, and it is not effective until execution by and deliveryto both Landlord and Tenant.

 

11.                               Definitions. Except asotherwise provided herein, the capitalized terms used in this Amendment shall havethe definitions set forth in the Lease.

 

12.                               Incorporation. ThisAmendment shall be incorporated into and made a part of the Lease, and allprovisions of the Lease not expressly modified or amended hereby shall remainin full force and effect.

 

(SIGNATURES CONTAINED ON FOLLOWING PAGE)

 

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INWITNESS WHEREOF, the parties have caused this Amendment to be executedon the day and year first written above.

 
|   | LANDLORD:                             |
|--------|---------------------------------------|
|   |                                  |
|   | DUGAN  FINANCING LLC,                 |
|   | a  Delaware limited liability company |
|   |                                  |
|   | By:                                   | Dugan  Realty, L.L.C., its sole member |
|   |                                  |   |
|   |                                  | By: | Duke  Realty Limited Partnership, its manager |
|   |                                  |   |   |
|   |                                  |   | By: | Duke  Realty Corporation, its general partner |
|   |                                  |   |   |   |   |
|   |                                  |   |   | By: | /s/ Jon C. Burger |
|   |                                  |   |   |   | Jon C. Burger |
|   |                                  |   |   |   | Senior  Vice President |
|   |                                  |   |   |   | Cincinnati  Group |

 

 
| STATE OF OHIO      | )      |
|--------------------|--------|
|               | )  SS: |
| COUNTY OF HAMILTON | )      |

 

Before me, a Notary Public in and for said Countyand State, personally appeared Jon C. Burger, by me known to be the Senior VicePresident, Cincinnati Group of Duke Realty Corporation, the general partner ofDuke Realty Limited Partnership, the manager of Dugan Realty, L.L.C., the solemember of Dugan Financing LLC, a Delaware limited liability company, whoacknowledged the execution of the foregoing “Third Lease Amendment” on behalfof said limited liability company.

 

WITNESS my hand and NotarialSeal this 8th******dayof November, 2007.

 
|                                          |                 |   |
|------------------------------------------|----------------------|--------|
|                                     | /s/ Rose  Andriacco  |
|                                     | Notary  Public       |
| ROSE ANDRIACCO                           |                 |
| Notary Public, State of Ohio             |                 |
| My Commission Expires March 8, 2010 |                 |
|                                     |                 |
|                                     | (Printed  Signature) |
|                                          |                      |        |  |

 
| My  Commission Expires:  |           |   |
|--------------------------|----------------|--------|
|                     |           |   |
| My  County of Residence: |  Clermont |   |

 

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|   | TENANT:                              |
|--------|--------------------------------------|
|   |                                 |
|   | GAIAM,  INC., a Colorado corporation |
|   |                                 |
|   | By:                                  | /s/ Mark Lipien |
|   |                                 |   |
|   | Printed:                             | Mark Lipien |
|   |                                 |   |
|   | Title:                               | VP |
|        |                                      |  |  |  |

 

 
| STATE OFCOLORADO     | )      |   |
|----------------------|--------|--------|
|                 | )  SS: |   |
| COUNTY OF BROOMFIELD | )      |   |

 

Before me, a Notary Public in and for said County and State, personallyappeared Mark Lipien, by me known and by me known to be the VP of Gaiam, Inc., a Coloradocorporation, who acknowledged the execution of the foregoing “Third LeaseAmendment” on behalf of said corporation.

 

WITNESS my hand and Notarial Seal this 1st day of November, 2007.

 

 
|   | /s/ Chelli Lalik     |
|--------|----------------------|
|   | Notary  Public       |
|   |                 |
|   | Chelli  Lalik        |
|   | (Printed  Signature) |

 
| My  Commission Expires:  | 4-12-08               |   |
|--------------------------|-----------------------|--------|
|                     |                  |   |
| My  County of Residence: |   Jefferson |   |

 

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