**Exhibit 10.6**

 

**LEASE AGREEMENT**

 

THISLEASE is executed this 5th day of October, 2005, by and between DUGAN REALTY,L.L.C., an Indiana limited liability company (“Landlord”), and GAIAM, INC., aColorado corporation (“Tenant”).

 

WITNESSETH:

 

ARTICLE 1 - LEASE OF PREMISES

 

Section 1.01.  Basic Lease Provisions and Definitions.

 

A.            LeasedPremises (shown outlined on **Exhibit A**attached hereto):  5455 West ChesterRoad, West Chester, Ohio 45069; Building No. 7 (the “Building”); locatedin World Park at Union Centre (the “Park”);

 

B.            RentableArea:  Approximately 147,000 square feet;

 

C.            Tenant’sProportionate Share:  53.85;

 

D.            MinimumAnnual Rent:

 
| October 1,  2005 - September 30, 2006 |   | $ | 463,050.00  |   |
|-------------------------------------------------|--------|---|-------------|--------|
| October 1, 2006 - September 30, 2007  |   | $ | 474,810.00  |   |
| October 1, 2007 - September 30, 2008  |   | $ | 486,570.00; |   |

 

E.             MonthlyRental Installments:

 
| October 1,  2005 - September 30, 2006 |   | $ | 38,587.50 per month  |   |
|-------------------------------------------------|--------|---|----------------------|--------|
| October 1, 2006 - September 30, 2007  |   | $ | 39,567.50 per month  |   |
| October 1, 2007 - September 30, 2008  |   | $ | 40,547.50 per month; |   |

 

F.             ***[Intentionally Omitted]***;

 

G.            LeaseTerm:  Three (3) years;

 

H.            CommencementDate:  October 1, 2005;

 

I.              SecurityDeposit:  None;

 

J.             Guarantor(s):  None;

 

K.            Brokers:Duke Realty Services Limited Partnership representing Landlord and ColliersTurley Martin Tucker representing Tenant;

 

L.             PermittedUse:  General office, warehousing anddistribution of miscellaneous consumer goods and related purposes;

 

M.           Addressfor notices:

 
| Landlord:       | Dugan Realty,  L.L.C.                         |
|-----------------|-----------------------------------------------|
|            | c/o Duke Realty  Services Limited Partnership |
|            | Attn: Property  Manager                       |
|            | 4555 Lake Forest  Drive, Suite 400       |
|            | Cincinnati, OH  45242                         |
|            |                                          |
| With a Copy to: | Dugan Realty,  L.L.C.                         |
|            | c/o Duke Realty  Services Limited Partnership |
|            | Attn.: Jeff Behm                              |
|            | 600 East 96th  Street, Suite 100         |
|            | Indianapolis, IN  46240                       |

 

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| With Payments  to: | Dugan Realty,  L.L.C.                         |
|--------------------|-----------------------------------------------|
|               | c/o Duke Realty  Services Limited Partnership |
|               | 75 Remittance  Drive, Suite 1106         |
|               | Chicago, IL  60675-1106                       |
|               |                                          |
| Tenant:            | Gaiam, Inc.                              |
|               | Attn: Mark  Lipien                            |
|               | 360 Interlochen  Boulevard, Suite 300    |
|               | Broomfield, CO  80021                         |
|               |                                          |
| With a Copy to:    | Gaiam, Inc.                              |
|               | 5455 West  Chester Road                       |
|               | West Chester, OH  45069.                      |

 

Section 1.02.  Leased Premises.  Landlord hereby leases to Tenant and Tenantleases from Landlord,  under the termsand conditions herein, the Leased Premises.

 

ARTICLE 2 - TERM AND POSSESSION

 

Section 2.01.  Term. The Commencement Date and Lease Term shall be as set forth in Sections1.01(g) and 1.01(h) above.

 

Section 2.02.  Construction of Tenant Improvements.  Landlord shall construct and install allleasehold improvements to the Leased Premises (collectively, the “TenantImprovements”) in accordance with **Exhibit B**attached hereto and made a part hereof. Landlord hereby warrants for a period of one (1) year from theCommencement Date, the Leased Premises against defects in materials andworkmanship, routine maintenance and ordinary wear and tear excepted.  Upon the Commencement Date, Landlord shallenforce for the benefit of Tenant all other warranties relating to the LeasedPremises and any and all systems contained therein for the applicable period ofeach warranty.  Tenant shall not take anyaction which shall invalidate any of the foregoing warranties and shall provideLandlord with written notice of all warranty claims.

 

Section 2.03.  Surrender of the Premises.  Upon the expiration or earlier termination ofthis Lease, Tenant shall immediately surrender the Leased Premises to Landlordin broom-clean condition and in good condition and repair, normal wear and tearexcepted.  Tenant shall also remove itspersonal property, trade fixtures and any of Tenant’s alterations designated byLandlord, promptly repair any damage caused by such removal, and restore theLeased Premises to the condition existing prior to the installation of suchitems.  If Tenant fails to do so,Landlord may restore the Leased Premises to such condition at Tenant’s expense,Landlord may cause all of said property to be removed at Tenant’s expense, andTenant hereby agrees to pay all the costs and expenses thereby reasonablyincurred.  All Tenant property which isnot removed within ten (10) days following Landlord’s written demandtherefor shall be conclusively deemed to have been abandoned by Tenant, andLandlord shall be entitled to dispose of such property at Tenant’s cost withoutthereby incurring any liability to Tenant. The provisions of this section shall survive the expiration orother termination of this Lease.

 

Section 2.04.  Holding Over.  If Tenant retains possession of the LeasedPremises after the expiration or earlier termination of this Lease, Tenantshall become a tenant from month to month at 150% of the Monthly RentalInstallment in effect at the end of the Lease Term, and otherwise upon theterms, covenants and conditions herein specified, so far as applicable.  Acceptance by Landlord of rent in such eventshall not result in a renewal of this Lease, and Tenant shall vacate andsurrender the Leased Premises to Landlord upon Tenant being given thirty (30)days’ prior written notice from Landlord to vacate.  This Section 2.04 shall in no wayconstitute a consent by Landlord to any holding over by Tenant upon theexpiration or earlier termination of this Lease, nor limit Landlord’s remediesin such event.

 

ARTICLE 3 - RENT

 

Section 3.01.  Base Rent.  Tenant shall pay to Landlord the MinimumAnnual Rent in the Monthly Rental Installments, in advance, without deductionor offset, beginning on the Commencement Date and on or before the first day ofeach and every calendar month thereafter during the Lease Term.  The Monthly Rental Installment for partialcalendar months shall be prorated. Notwithstanding anything contained in this Lease to the contrary, Tenantshall receive a per diem credit on the Monthly Rental Installment for November 2005of one day’s Minimum Annual Rent for each day beyond the Commencement Date inwhich the installation 

 

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of the lights and fire safety equipment within the warehouse portion ofthe Leased Premises is not achieved.

 

Section 3.02.  Additional Rent.  In addition to the Minimum Annual Rent Tenantshall pay to Landlord for each calendar year during the Lease Term, as “AdditionalRent,” Tenant’s Proportionate Share of all costs and expenses incurred byLandlord during the Lease Term for Real Estate Taxes and Operating Expenses forthe Building and common areas (collectively “Common Area Charges”).

 

“OperatingExpenses” shall mean all of Landlord’s expenses for operation, repair,replacement and maintenance to keep the Building and common areas in goodorder, condition and repair (including all additional direct costs and expensesof operation and maintenance of the Building which Landlord reasonablydetermines it would have paid or incurred during such year if the Building hadbeen fully occupied), including, but not limited to, management fees not to exceedthree percent (3%) of gross rent for the Building; utilities; stormwaterdischarge fees; license, permit, inspection and other fees; fees andassessments imposed by any covenants or owners’ association; security services;insurance premiums and deductibles, painting, and maintenance, repair andreplacement of the driveways, parking areas (including snow removal), exteriorlighting, landscaped areas, walkways, curbs, drainage strips, sewer lines,exterior walls, foundation, structural frame, roof and gutters.  The cost of any capital improvement shall beamortized over the useful life of such improvement in accordance with generallyaccepted accounting principles, and only the amortized portion shall beincluded in Operating Expenses. Operating Expenses shall not include the following:

 

a.         Leasingcommissions.

 

b.         The cost oftenant finish improvements provided solely for the benefit of other tenants orproposed tenants in the Building.

 

c.         Costs ofcorrecting building code violations which violations were in existence on theCommencement Date and not caused by Tenant.

 

d.         Depreciationon the Building.

 

e.         The cost ofservices separately charged to and paid by another tenant in the Building.

 

f.          Interestpayments and financing costs associated with Building financing.

 

g.         Legal feesassociated with the preparation, interpretation and/or enforcement of leases.

 

h.         Repairs andreplacements for which and to the extent that Landlord has been reimbursed byinsurance and/or paid pursuant to warranties.

 

i.          Advertisingand promotional expenses.

 

j.          Costsrepresenting amounts paid to an affiliate of Landlord for services or materialswhich are in excess of the amounts which would have been paid in the absence ofsuch relationship.

 

“RealEstate Taxes” shall include any form of real estate tax or assessment orservice payments in lieu thereof, and any license fee, commercial rental tax,improvement bond or other similar charge or tax (other than inheritance,personal income or estate taxes) imposed upon the Building or  common areas (or against Landlord’s businessof leasing the Building) by any authority having the power to so charge or tax,together with costs and expenses of contesting the validity or amount of RealEstate Taxes.

 

Section 3.03.  Payment of Additional Rent.  Landlord shall estimate the total amount ofAdditional Rent to be paid by Tenant during each calendar year of the LeaseTerm, pro-rated for any partial years. Commencing on the Commencement Date, Tenant shall pay to Landlord eachmonth, at the same time the Monthly Rental Installment is due, an amount equalto one-twelfth (1/12) of the estimated Additional Rent for such year.  Within a reasonable time after the end ofeach calendar year, Landlord shall submit to Tenant a statement of the actual amountof such Additional Rent and within thirty (30) days after receipt ofsuch statement, Tenant shall pay any deficiency between the actual amount owedand the estimates paid during such 

 

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calendar year.  In the event ofoverpayment, Landlord shall credit the amount of such overpayment toward thenext installments of Minimum Rent.

 

Section 3.04.  Late Charges.  Tenant acknowledges that Landlord shall incurcertain additional unanticipated administrative and legal costs and expenses ifTenant fails to timely pay any payment required hereunder.  Therefore, in addition to the other remediesavailable to Landlord hereunder, if any payment required to be paid by Tenantto Landlord hereunder shall become overdue, such unpaid amount shall bearinterest from the due date thereof to the date of payment at the prime rate (asreported in the Wall Street Journal) of interest (“Prime Rate”) plussix  percent (6%) per annum.

 

Landlordshall provide Tenant with a written notice of such payment default prior toassessing the late charge and Tenant shall have an additional five (5) daysto cure such payment default before Landlord assesses any late charges;provided, however, that Landlord shall not be required to give such notice morethan one (1) time with respect to any particular payment default, nor morethan two (2) times in the consecutive twelve (12) month period withrespect to any payment defaults in the aggregate.

 

Section 3.05.  Nature of Rent.  Landlord and Tenant agree that any base rent,percentage rent, if any, and all Additional Rent paid to Landlord under thisLease (collectively referred to in this Section as “Rent”) shall qualifyas “rents from real property” within the meaning of Section 512(b)(3) ofthe Internal Revenue Code of 1986, as amended (the “Code”) and the U.S.Department of Treasury Regulations promulgated thereunder (the “Regulations”).  In the event that Landlord, in its solediscretion, determines that there is any risk that all or part of any Rentshall not qualify as “rents from real property” for the purposes of Section 512(b)(3) ofthe Code and the Regulations promulgated thereunder, Tenant agrees (i) tocooperate with Landlord to restructure this Lease so as to cause all Rent toqualify as “rents from real property”, and (ii) to permit an assignment ofthis Lease, provided, however, that any adjustments required pursuant to thisparagraph shall be made so as to produce the equivalent Rent (in economicterms) payable prior to such adjustment.

 

Section 3.06. Maximum Increase in Operating Expenses. Notwithstanding anything in this Lease to the contrary, Tenant will beresponsible for Tenant’s Proportionate Share of Real Estate Taxes, includingthe reasonable costs and expenses of contesting the validity or amount of RealEstate Taxes, service payments in lieu of Real Estate Taxes, insurancepremiums, utilities, snow removal and grass cutting (“Uncontrollable Expenses”),without regard to the level of increase in any or all of the above in any yearor other period of time.  Tenant’sobligation to pay all other Building Operating Expenses which are notUncontrollable Expenses (herein “Controllable Expenses”) shall be limited to afive percent (5%) per annum increase over the amount the Controllable Expensesfor the immediately preceding calendar year would have been had theControllable Expenses increased by five percent (5%) in all previous calendaryears beginning with the actual Controllable Expenses for the year ending December 31,2006.

 

ARTICLE 4 - SECURITY DEPOSIT

 

***[Intentionally Omitted]***.

 

ARTICLE 5 - USE

 

Section 5.01.  Use of Leased Premises.  The Leased Premises are to be used by Tenantsolely for the Permitted Use and for no other purposes without the priorwritten consent of Landlord.

 

Section 5.02.  Covenants of Tenant Regarding Use.  Tenant shall (i) use and maintain theLeased Premises and conduct its business thereon in a safe, careful, reputableand lawful manner, (ii) comply with all laws, rules, regulations, orders,ordinances, directions and requirements of any governmental authority oragency, now in force or which may hereafter be in force, including withoutlimitation those which shall impose upon Landlord or Tenant any duty withrespect to or triggered by a change in the use or occupation of, or anyimprovement or alteration to, the Leased Premises, and (iii) comply withand obey all reasonable directions of the Landlord, including Rules andRegulations attached hereto as **Exhibit C**and as may be modified from time to time by Landlord on reasonablenondiscriminatory notice to Tenant. Tenant shall not do or permit anything to be done in or about the LeasedPremises or common areas which will in any way obstruct or interfere with therights of other tenants or occupants of the Building or injure or annoythem.  Landlord shall not be responsibleto Tenant for the

 

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non-performance by any other tenant or occupant of the Building of anyof the Building Rules and Regulations but agrees to take reasonablemeasures to assure such other tenant’s compliance.  Tenant shall not overload the floors of theLeased Premises.  All damage to the floorstructure or foundation of the Building due to improper positioning or storageof items or materials shall be repaired by Landlord at the sole expense ofTenant, who shall reimburse Landlord immediately therefor upon demand.  Tenant shall not use the Leased Premises, orallow the Leased Premises to be used, for any purpose or in any manner whichwould invalidate any policy of insurance now or hereafter carried on theBuilding or increase the rate of premiums payable on any such insurance policyunless Tenant reimburses Landlord as Additional Rent for any increase inpremiums charged.

 

Section 5.03.  Landlord’s Rights Regarding Use.  In addition to the rights specified elsewherein this Lease, Landlord shall have the following rights regarding the use ofthe Leased Premises or the common areas, each of which may be exercised withoutnotice or liability to Tenant, (a)  Landlord may install such signs,advertisements, notices or tenant identification information as it shall deemnecessary or proper; (b)  Landlord shall have the right at any time tocontrol, change or otherwise alter the common areas or utilities servicing theBuilding as it shall deem necessary or proper; and (c)  Landlord orLandlord’s agent shall be permitted to inspect or examine the Leased Premisesat any reasonable time, and Landlord shall have the right to make any repairsto the Leased Premises which are necessary for its preservation; provided,however, that any repairs made by Landlord shall be at Tenant’s expense, exceptas provided in Section 7.02 hereof. Landlord shall incur no liability to Tenant for such entry, nor shallsuch entry constitute an eviction of Tenant or a termination of this Lease, orentitle Tenant to any abatement of rent therefor.  Landlord shall not materially interfere withTenant’s access to the Leased Premises.

 

ARTICLE 6 - UTILITIES AND SERVICES

 

Tenantshall obtain in its own name and pay directly to the appropriate supplier thecost of all utilities and services serving the Leased Premises.  However, if any services or utilities arejointly metered with other property, Landlord shall make a reasonabledetermination of Tenant’s proportionate share of the cost of such utilities andservices (at rates that would have been payable if such utilities and serviceshad been directly billed by the utilities or services providers) and Tenantshall pay such share to Landlord within fifteen (15) days after receipt ofLandlord’s written statement.  Landlordshall not be liable in damages or otherwise for any failure or interruption ofany utility or other Building service and no such failure or interruption shallentitle Tenant to terminate this Lease or withhold sums due hereunder.  In the event of utility “deregulation”,Landlord shall choose the service provider.

 

ARTICLE 7 - MAINTENANCE AND REPAIRS

 

Section 7.01.  Tenant’s Responsibility.  During Lease Term, Tenant shall, at its owncost and expense, maintain the Leased Premises in good condition, regularlyservicing and promptly making all repairs and replacements thereto, includingbut not limited to the electrical systems, heating and air conditioningsystems, plate glass, floors, windows and doors, sprinkler and plumbingsystems, and shall obtain a preventive maintenance contract on the heating,ventilating and air-conditioning systems, and provide Landlord with a copythereof.  The preventive maintenancecontract shall meet or exceed Landlord’s standard maintenance criteria, andshall provide for the inspection and maintenance of the heating, ventilatingand air conditioning system on not less than a semi-annual basis.

 

Section 7.02.  Landlord’s Responsibility.  During the term of this Lease, Landlord shallmaintain in good condition and repair, and replace as necessary, the roof,exterior walls, foundation and structural frame of the Building and the parkingand landscaped areas, the costs of which shall be included in OperatingExpenses; provided, however, that to the extent any of the foregoing itemsrequire repair because of the negligence, misuse, or default of Tenant, itsemployees, agents, customers or invitees, Landlord shall make such repairssolely at Tenant’s expense.

 

Section 7.03.  Alterations.  Tenant shall not permit alterations in or tothe Leased Premises unless and until Landlord has approved the plans thereforin writing, such approval shall not be unreasonably withheld.  As a condition of such approval, Landlord mayrequire Tenant to remove the alterations and restore the Leased Premises upon terminationof this Lease; otherwise, all such alterations shall at Landlord’s optionbecome a part of the realty and the property of Landlord, and shall not beremoved by Tenant.  Landlord shall notifyTenant of any such requirement at the time of approval of suchalterations.  Tenant shall ensure thatall 

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alterations shall be made in accordance with all applicable laws,regulations and building codes, in a good and workmanlike manner and of qualityequal to or better than the original construction of the Building.  No person shall be entitled to any lienderived through or under Tenant for any labor or material furnished to theLeased Premises, and nothing in this Lease shall be construed to constituteLandlord’s consent to the creation of any lien. If any lien is filed against the Leased Premises for work claimed tohave been done for or material claimed to have been furnished to Tenant, Tenantshall cause such lien to be discharged of record within thirty (30) days afterfiling.  Tenant shall indemnify Landlordfrom all costs, losses, expenses and attorneys’ fees in connection with anyconstruction or alteration and any related lien.  Tenant agrees that at Landlord’s option, DukeConstruction Limited Partnership or a subsidiary or affiliate of Landlord, whoshall receive a fee as Landlord’s construction manager or general contractor,shall perform all work on (i) any alterations to the heating, ventilatingand air conditioning systems serving the warehouse portion of the LeasedPremises, and (ii) any alterations that change the floor plan of theLeased Premises from that which is attached hereto as **Exhibit F**and made a part hereof.

 

ARTICLE 8 - CASUALTY

 

Section 8.01.  Casualty.  In the event of total or partial destructionof the Building or the Leased Premises by fire or other casualty, Landlordagrees to promptly restore and repair the Leased Premises; provided, however,Landlord’s obligation hereunder shall be limited to the reconstruction of suchof the tenant finish improvements as were originally required to be made byLandlord, if any.  Rent shallproportionately abate during the time that the Leased Premises or part thereofare unusable because of any such damage. Notwithstanding the foregoing, if the Leased Premises are (i) sodestroyed that they cannot be repaired or rebuilt within one hundred eighty(180) days from the casualty date; or (ii) destroyed by a casualty whichis not covered by the insurance required hereunder or, if covered, suchinsurance proceeds are not released by any mortgagee entitled thereto or areinsufficient to rebuild the Building and the Leased Premises; then, in case ofa clause (i) casualty, either Landlord or Tenant may, or, in the case of aclause (ii) casualty, then Landlord may, upon thirty (30) days’ writtennotice to the other party, terminate this Lease with respect to mattersthereafter accruing.  Landlord shall usecommercially reasonable efforts to notify Tenant within thirty (30) days afterthe casualty date of Landlord’s decision to repair, rebuild and restore theLeased Premises or to terminate this Lease as provided for herein.

 

Section 8.02.  Fire and Extended Coverage Insurance.  During the Lease Term, Landlord shallmaintain all risk coverage insurance on the Building, but shall not protectTenant’s property on the Leased Premises; and, notwithstanding the provisionsof Section 9.01, Landlord shall not be liable for any damage toTenant’s property, regardless of cause, including the negligence of Landlordand its employees, agents and invitees. Tenant hereby expressly waives any right of recovery against Landlordfor damage to any property of Tenant located in or about the Leased Premises,however caused, including the negligence of Landlord and its employees, agentsand invitees.  Notwithstanding the provisionsof Section 9.01 below, Landlord hereby expressly waives any rightsof recovery against Tenant for damage to the Leased Premises or the Buildingwhich is insured against under Landlord’s all risk coverage insurance.  All insurance policies maintained by Landlordor Tenant as provided in this Lease shall contain an agreement by the insurerwaiving the insurer’s right of subrogation against the other party to thisLease.

 

ARTICLE 9 - LIABILITY INSURANCE

 

Section 9.01.  Tenant’s Responsibility.  Landlord shall not be liable to Tenant or toany other person for (i) damage to property or injury or death to personsdue to the condition of the Leased Premises, the Building or the common areas,or (ii) the occurrence of any accident in or about the Leased Premises orthe common areas, or (iii) any act or neglect of Tenant or any othertenant or occupant of the Building or of any other person, unless such damage,injury or death is directly and solely the result of Landlord’s negligence; andTenant hereby releases Landlord from any and all liability for the same exceptfor damages occasioned by Landlord’s negligence.  Tenant shall be liable for, and shallindemnify and defend Landlord from, any and all liability for (i) any actor neglect of Tenant and any person coming on the Leased Premises or commonareas by the license of Tenant, express or implied, (ii) any damage to theLeased Premises, and (iii) any loss of or damage or injury to any person(including death resulting therefrom) or property occurring in, on or about theLeased Premises, regardless of cause, except for any loss or damage from fireor casualty insured as provided in Section 8.02 and 

 

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except for that caused directly by Landlord’s negligence.  This provision shall survive the expirationor earlier termination of this Lease.

 

Section 9.02.  Tenant’s Insurance.  Tenant shall carry general public liabilityand property damage insurance, issued by one or more insurance companiesacceptable to Landlord, with the following minimum coverages:

 

A.            Worker’sCompensation:  minimum statutory amount.

 

B.            CommercialGeneral Liability Insurance, including blanket, contractual liability, broadform property damage, personal injury, completed operations, productsliability, and fire damage:  Not lessthan $3,000,000 Combined Single Limit for both bodily injury and propertydamage.

 

C.            All RiskCoverage, Vandalism and Malicious Mischief, and Sprinkler Leakage insurance, ifapplicable, for the full cost of replacement of Tenant’s property.

 

D.            Businessinterruption insurance.

 

The insurance policiesshall protect Tenant and Landlord as their interests may appear, namingLandlord and Landlord’s managing agent and mortgagee as additional insureds,and shall provide that they may not be canceled on less than thirty (30) days’prior written notice to Landlord.  Tenantshall furnish Landlord with Certificates of Insurance evidencing all requiredcoverages on or before the Commencement Date. If Tenant fails to carry such insurance and furnish Landlord with suchCertificates of Insurance after a request to do so, Landlord may obtain suchinsurance and collect the cost thereof from Tenant.

 

ARTICLE 10 - EMINENT DOMAIN

 

If allor any substantial part of the Building or common areas shall be acquired bythe exercise of eminent domain, Landlord may terminate this Lease by givingwritten notice to Tenant within fifteen (15) days after possession thereof isso taken.  If all or any part of theLeased Premises shall be acquired by the exercise of eminent domain so that theLeased Premises shall become unusable by Tenant for the Permitted Use, Tenantmay terminate this Lease by giving written notice to Landlord within fifteen(15) days after possession thereof is so taken. All damages awarded shall belong to Landlord; provided, however, thatTenant may claim dislocation damages if such amount is not subtracted fromLandlord’s award.

 

ARTICLE 11 - ASSIGNMENT AND SUBLEASE

 

Tenant shall not assign this Lease or sublet theLeased Premises in whole or in part without Landlord’s prior written consent,which consent shall not be unreasonably withheld, delayed or denied.  In the event of any assignment or subletting,Tenant shall remain primarily liable hereunder. The acceptance of rent from any other person shall not be deemed to be awaiver of any of the provisions of this Lease or to be a consent to theassignment of this Lease or the subletting of the Leased Premises.  Without in any way limiting Landlord’s rightto refuse to consent to any assignment or subletting of this Lease, Landlordreserves the right to refuse to give such consent if in Landlord’s opinion (i) theLeased Premises are or may be in any way adversely affected; (ii) thebusiness reputation of the proposed assignee or subtenant is unacceptable; or (iii) thefinancial worth of the proposed assignee or subtenant is insufficient to meetthe obligations hereunder.  Landlordfurther expressly reserves the right to refuse to give its consent to anysubletting if the proposed rent is to be publicly advertised (such as by fliers,letters, and written or electronic marketing materials) to be less than thethen current rent for similar premises in the Park; provided that Tenant or itsbroker shall not be precluded from marketing the Leased Premises for subleasepursuant to customary methods employed by the commercial real estate brokeragecommunity in the market.  If Tenant shallmake any assignment or sublease, with Landlord’s consent, for a rental inexcess of the rent payable under this Lease, Tenant shall not be entitled tokeep such excess, and Tenant shall pay to Landlord fifty percent (50%) of anysuch excess rental upon receipt.  Tenantagrees to reimburse Landlord for reasonable accounting and attorneys’ feesincurred in conjunction (not to exceed One Thousand Dollars ($1,000.00)) withthe processing and documentation of any such requested assignment, sublettingor any other hypothecation of this Lease or Tenant’s interest in and to theLeased Premises.  Notwithstanding theforegoing, Tenant may assign the Lease or sublease all or any portion of theLeased Premises without Landlord’s consent to any of the following (a “PermittedTransferee”), provided that the Permitted Transferee’s financial condition,creditworthiness and business reputation following the transfer are equal to orexceed those of Tenant:  (i) any 

 

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successor corporation or other entity resulting from a merger orconsolidation of Tenant; (ii) any purchaser of all or substantially all ofTenant’s assets; or (iii) any entity which controls, is controlled by, oris under common control with Tenant. Tenant shall give Landlord at least thirty (30) days’ prior writtennotice of such assignment or sublease. Any Permitted Transferee shall assume in writing all of Tenant’sobligations under this Lease.  Tenantshall nevertheless at all times remain fully responsible and liable for thepayment of rent and the performance and observance of all of Tenant’s otherobligations under this Lease.  Nothing inthis paragraph is intended to nor shall permit Tenant to transfer its interestunder this Lease as part of a fraud or subterfuge to intentionally avoid itsobligations under this Lease (for example, transferring its interest to a shellcorporation that subsequently files a bankruptcy), and any such transfer shallconstitute an Event of Default hereunder.

 

ARTICLE 12 - TRANSFERS BY LANDLORD

 

Section 12.01.  Sale of the Building.  Landlord shall have the right to sell theBuilding at any time during the Lease Term, subject only to the rights ofTenant hereunder; and such sale shall operate to release Landlord fromliability hereunder after the date of such conveyance.

 

Section 12.02.  Subordination and Estoppel Certificate.  Within ten (10) days following receiptof a written request from Landlord, Tenant shall execute and deliver toLandlord, without cost, an estoppel certificate in such form as Landlord mayreasonably request certifying (i) that this Lease is in full force andeffect and unmodified or stating the nature of any modification, (ii) thedate to which rent has been paid, (iii) that there are not, to Tenant’sknowledge, any uncured defaults or specifying such defaults if any are claimed,and (iv) any other matters or state of facts reasonably requiredrespecting the Lease.  Such estoppel maybe relied upon by Landlord and by any purchaser or mortgagee of theBuilding.  This Lease is and shall beexpressly subject and subordinate at all times to the lien of any present orfuture mortgage or deed of trust encumbering fee title to the LeasedPremises.  If any such mortgage or deedof trust be foreclosed, upon request of the mortgagee or beneficiary (“Landlord’sMortgagee”), as the case may be, Tenant will attorn to the purchaser at theforeclosure sale.  The foregoingprovisions are declared to be self-operative and no further instruments shallbe required to effect such subordination and/or attornment; provided, however,that subordination of this Lease to any present or future mortgage or trustdeed shall be conditioned upon the mortgagee, beneficiary, or purchaser atforeclosure, as the case may be agreeing that Tenant’s occupancy of the LeasedPremises and other rights under this Lease shall not be disturbed by reason ofthe foreclosure of such mortgage or trust deed, as the case may be, so long asTenant is not in default under this Lease; and further provided that Tenantagrees upon request by any such mortgagee, beneficiary, or purchaser atforeclosure, as the case may be, to execute such non-disturbance, subordinationand/or attornment instruments as may be reasonably required by such person toconfirm such non-disturbance subordination and/or attornment.

 

AnyLandlord’s Mortgagee may elect, at any time, unilaterally, to make this Leasesuperior to its mortgage or other interest in the Leased Premises by so notifyingTenant in writing.

 

Tenantshall not seek to enforce any remedy it may have for any default on the part ofLandlord without first giving written notice by certified mail, return receiptrequested, specifying the default in reasonable detail, to any Landlord’sMortgagee whose address has been given to Tenant, and affording such Landlord’sMortgagee a reasonable opportunity to perform Landlord’s obligations hereunder.

 

IfLandlord’s Mortgagee shall succeed to the interest of Landlord under thisLease, Landlord’s Mortgagee shall not be: (1) liable for any act or omission of any prior landlord (includingLandlord); (2) bound by any rent or additional rent or advance rent whichTenant might have paid for more than the current month to any prior landlord(including Landlord), and all such rent shall remain due and owing,notwithstanding such advance payment; (3) bound by any security or advancerental deposit made by Tenant which is not delivered or paid over to Landlord’sMortgagee and with respect to which Tenant shall look solely to Landlord forrefund or reimbursement (provided, however, that Landlord shall be responsiblefor delivering any Security Deposit hereunder to Landlord’s Mortgagee at thetime Landlord’s Mortgagee succeeds to Landlord’s interest hereunder); (4) boundby any termination, amendment or modification of this Lease made withoutLandlord’s Mortgagee’s consent and written approval, except for thoseterminations, amendments and modifications permitted to be made by Landlordwithout Landlord’s Mortgagee’s consent pursuant to the terms of the loandocuments between Landlord and Landlord’s Mortgagee; (5) subject to thedefenses which Tenant might have against any prior landlord (includingLandlord); and (6) subject to the offsets which Tenant might have against 

 

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any prior landlord (including Landlord) except for those offset rightswhich (A) are expressly provided in this Lease, (B) relate to periodsof time following the acquisition of the Building by Landlord’s Mortgagee, and (C) Tenanthas provided written notice to Landlord’s Mortgagee and provided Landlord’sMortgagee a reasonable opportunity (the duration of which shall not exceedthirty (30) days after Landlord’s Mortgagee takes possession of the Building)to cure the event giving rise to such offset event.  Landlord’s Mortgagee shall have no liabilityor responsibility under or pursuant to the terms of this Lease or otherwiseafter it ceases to own an interest in the Building.  Nothing in this Lease shall be construed torequire Landlord’s Mortgagee to see to the application of the proceeds of anyloan, and Tenant’s agreements set forth herein shall not be impaired on accountof any modification of the documents evidencing and securing any loan.

 

ARTICLE 13 - DEFAULT AND REMEDY

 

Section 13.01.  Default.  The occurrence of any of the following shallbe a “Default”:

 

(a) Tenant fails to pay any Monthly Rental Installment or Additional Rent withinfive (5) days after the same is due, or Tenant fails to pay any otheramounts due Landlord from Tenant within ten (10) days after the same isdue.

 

(b) Tenant fails to perform or observe any other term, condition, covenant orobligation required under this Lease for a period of ten (10) days afternotice thereof from Landlord; provided, however, that if the nature of Tenant’sdefault is such that more than ten days are reasonably required to cure, thensuch default shall be deemed to have been cured if Tenant commences suchperformance within said ten-day period and thereafter diligently completes therequired action within a reasonable time.

 

(c) Tenant shall assign or sublet all or a portion of the Leased Premises incontravention of the provisions of Article 11 of this Lease.

 

(d) All or substantially all of Tenant’s assets in the Leased Premises or Tenant’sinterest in this Lease are attached or levied under execution (and Tenant doesnot discharge the same within sixty (60) days thereafter); a petition inbankruptcy, insolvency or for reorganization or arrangement is filed by oragainst Tenant (and Tenant fails to secure a stay or discharge thereof withinsixty (60) days thereafter); Tenant is insolvent and unable to pay its debts asthey become due; Tenant makes a general assignment for the benefit ofcreditors; Tenant takes the benefit of any insolvency action or law; theappointment of a receiver or trustee in bankruptcy for Tenant or its assets ifsuch receivership has not been vacated or set aside within thirty (30) daysthereafter; or, dissolution or other termination of Tenant’s corporate charterif Tenant is a corporation.

 

(e) In addition to the defaults and remedies described herein, the parties agreethat if Tenant is in violation of the performance of any (but not necessarilythe same) term or condition of this Lease three (3) or more times duringany twelve (12) month period, regardless of whether such violations areultimately cured, then such conduct shall, at Landlord’s option, represent aseparate Default.

 

Section 13.02.  Remedies.  Upon the occurrence of any Default, Landlordshall have the following rights and remedies, in addition to those allowed bylaw or in equity, any one or more of which may be exercised without furthernotice to Tenant:

 

(a) Landlord may apply the Security Deposit or re-enter the Leased Premises andcure any default of Tenant, and Tenant shall reimburse Landlord as additionalrent for any costs and expenses which Landlord thereby incurs; and Landlordshall not be liable to Tenant for any loss or damage which Tenant may sustainby reason of Landlord’s action.

 

(b) Landlord may terminate this Lease or, without terminating this Lease, terminateTenant’s right to possession of the Leased Premises as of the date of suchdefault, and thereafter (i) neither Tenant nor any person claiming underor through Tenant shall be entitled to possession of the Leased Premises, andTenant shall immediately surrender the Leased Premises to Landlord; and (ii) Landlordmay re-enter the Leased Premises and dispossess Tenant and any other occupantsof the Leased Premises by any lawful means and may remove their effects,without prejudice to any other remedy which Landlord may have.  Upon the termination of this Lease, Landlordmay declare the present value (discounted at the Prime Rate of interest) of allrent which would have been due under this Lease for the balance of the LeaseTerm to be immediately due and payable, whereupon Tenant shall be obligated topay the same to Landlord, together with all loss or damage which Landlord maysustain by reason of Tenant’s 

 

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default (“Default Damages”), which shall include without limitationexpenses of preparing the Leased Premises for re-letting, demolition, repairs,tenant finish improvements and brokers’ and attorneys’ fees, it being expresslyunderstood and agreed that the liabilities and remedies specified in this subsection (b) shallsurvive the termination of this Lease.

 

(c) Landlord may, without terminating this Lease, re-enter the Leased Premises andre-let all or any part thereof for a term different from that which would otherwisehave constituted the balance of the Lease Term and for rent and on terms andconditions different from those contained herein, whereupon Tenant shall beimmediately obligated to pay to Landlord as liquidated damages the differencebetween the rent provided for herein and that provided for in any leasecovering a subsequent re-letting of the Leased Premises, for the period whichwould otherwise have constituted the balance of the Lease Term, together withall of Landlord’s Default Damages.

 

(d) Landlord may sue for injunctive relief or to recover damages for any lossresulting from the breach.

 

(e) If Landlord has terminated this Lease or Tenant’s right to possession, Landlordagrees to use commercially reasonable efforts to mitigate its damages.  Landlord shall be required only to usereasonable efforts to mitigate, which shall not exceed such efforts as Landlordgenerally uses to lease other space in the Building.  Landlord will not be deemed to have failed tomitigate if Landlord leases any other portions of the Building before relettingall or any portion of the Leased Premises. Landlord shall not be deemed to have failed to mitigate if it incursDefault Damages.  If Tenant has paidLandlord the present value of all rent due plus Default Damages as set forth inSection 13.02(b) above, Landlord agrees to pay Tenant any rentreceived by Landlord from any tenant who leases the Leased Premises whichamount was already paid by Tenant as part of the accelerated rent.

 

Section 13.03.  Landlord’s Default and Tenant’s Remedies.  Landlord shall be in default if it fails toperform any term, condition, covenant or obligation required under this Leasefor a period of thirty (30) days after written notice thereof from Tenant toLandlord; provided, however, that if the term, condition, covenant orobligation to be performed by Landlord is such that it cannot reasonably beperformed within thirty (30) days, such default shall be deemed to have beencured if Landlord commences such performance within said thirty-day period andthereafter diligently undertakes to complete the same.  Upon the occurrence of any such default,Tenant may sue for injunctive relief or to recover damages for any lossdirectly resulting from the breach, but Tenant shall not be entitled to terminatethis Lease or withhold, offset or abate any sums due hereunder.

 

Section 13.04.  Limitation of Landlord’s Liability.  If Landlord shall fail to perform any term,condition, covenant or obligation required to be performed by it under thisLease and if Tenant shall, as a consequence thereof, recover a money judgmentagainst Landlord, Tenant agrees that it shall look solely to Landlord’s right,title and interest in and to the Building for the collection of such judgment;and Tenant further agrees that no other assets of Landlord shall be subject tolevy, execution or other process for the satisfaction of Tenant’s judgment.

 

Section 13.05.  Nonwaiver of Defaults.  Neither party’s failure or delay inexercising any of its rights or remedies or other provisions of this Leaseshall constitute a waiver thereof or affect its right thereafter to exercise orenforce such right or remedy or other provision.  No waiver of any default shall be deemed tobe a waiver of any other default. Landlord’s receipt of less than the full rent due shall not be construedto be other than a payment on account of rent then due, nor shall any statementon Tenant’s check or any letter accompanying Tenant’s check be deemed an accordand satisfaction.  No act or omission byLandlord or its employees or agents during the term of this Lease shall bedeemed an acceptance of a surrender of the Leased Premises, and no agreement toaccept such a surrender shall be valid unless in writing and signed byLandlord.

 

Section 13.06.  Attorneys’ Fees.  If either party defaults in the performanceor observance of any of the terms, conditions, covenants or obligationscontained in this Lease and the non-defaulting party obtains a judgment againstthe defaulting party, then the defaulting party agrees to reimburse thenon-defaulting party for the attorneys’ fees incurred thereby.

 

ARTICLE 14 - LANDLORD’S RIGHT TO RELOCATE TENANT

 

***[Intentionally Omitted]***.

 

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ARTICLE 15 - TENANT’S RESPONSIBILITY REGARDING

ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.

 

Section 15.01.  Definitions.

 

(a)           “EnvironmentalLaws” - All present or future federal, state and municipal laws, ordinances, rules andregulations applicable to the environmental and ecological condition of theLeased Premises, the rules and regulations of the Federal EnvironmentalProtection Agency or any other federal, state or municipal agency orgovernmental board or entity having jurisdiction over the Leased Premises.

 

(b)           “HazardousSubstances” - Those substances included within the definitions of “hazardoussubstances,” “hazardous materials,” “toxic substances” “solid waste” or “infectiouswaste” under Environmental Laws.

 

Section 15.02.  Compliance.  Tenant, at its sole cost and expense, shallpromptly comply with the Environmental Laws including any notice from anysource issued pursuant to the Environmental Laws or issued by any insurancecompany which shall impose any duty upon Tenant with respect to the use,occupancy, maintenance or alteration of the Leased Premises whether such noticeshall be served upon Landlord or Tenant.

 

Section 15.03.  Restrictions on Tenant.  Tenant shall operate its business andmaintain the Leased Premises in compliance with all Environmental Laws.  Tenant shall not cause or permit the use,generation, release, manufacture, refining, production, processing, storage ordisposal of any Hazardous Substances on, under or about the Leased Premises, orthe transportation to or from the Leased Premises of any Hazardous Substances,except as necessary and appropriate for its Permitted Use in which case theuse, storage or disposal of such Hazardous Substances shall be performed incompliance with the Environmental Laws and the highest standards prevailing inthe industry.

 

Section 15.04.  Notices, Affidavits, Etc.  Tenant shall immediately notify Landlord of (i) anyviolation by Tenant, its employees, agents, representatives, customers,invitees or contractors of the Environmental Laws on, under or about the LeasedPremises, or (ii) the presence or suspected presence of any HazardousSubstances on, under or about the Leased Premises and shall immediately deliverto Landlord any notice received by Tenant relating to (i) and (ii) abovefrom any source.  Tenant shall executeaffidavits, representations and the like within five (5) days of Landlord’srequest therefor concerning Tenant’s best knowledge and belief regarding thepresence of any Hazardous Substances on, under or about the Leased Premises.

 

Section 15.05.  Landlord’s Rights.  Landlord and its agents shall have the right,but not the duty, upon advance notice (except in the case of emergency when nonotice shall be required) to inspect the Leased Premises and conduct teststhereon to determine whether or the extent to which there has been a violationof Environmental Laws by Tenant or whether there are Hazardous Substances on,under or about the Leased Premises.  Inexercising its rights herein, Landlord shall use reasonable efforts to minimizeinterference with Tenant’s business but such entry shall not constitute aneviction of Tenant, in whole or in part, and Landlord shall not be liable forany interference, loss, or damage to Tenant’s property or business causedthereby.

 

Section 15.06.  Tenant’s Indemnification.  Tenant shall indemnify Landlord and Landlord’smanaging agent from any and all claims, losses, liabilities, costs, expensesand damages, including attorneys’ fees, costs of testing and remediation costs,incurred by Landlord in connection with any breach by Tenant of its obligationsunder this Article 15.  The covenantsand obligations under this Article 15 shall survive the expiration orearlier termination of this Lease.

 

Section 15.07.  Landlord’s Representation.  Notwithstanding anything contained in this Article 15to the contrary, Tenant shall not have any liability to Landlord under this Article 15resulting from any conditions existing, or events occurring, or any HazardousSubstances existing or generated, at, in, on, under or in connection with theLeased Premises prior to the Commencement Date of this Lease except to theextent Tenant exacerbates the same.

 

ARTICLE 16 - MISCELLANEOUS

 

Section 16.01.  Benefit of Landlord and Tenant.  This Lease shall inure to the benefit of andbe binding upon Landlord and Tenant and their respective successors andassigns.

 

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Section 16.02.  Governing Law.  This Lease shall be governed in accordancewith the laws of the State of where the Building is located.

 

Section 16.03.  Guaranty.  ***[Intentionally Omitted]***.

 

Section 16.04.  Force Majeure.  Landlord and Tenant (except with respect toany rent payment obligation) shall be excused for the period of any delay inthe performance of any obligation hereunder when such delay is occasioned bycauses beyond its control, including but not limited to work stoppages,boycotts, slowdowns or strikes; shortages of materials, equipment, labor orenergy; unusual weather conditions; or acts or omissions of governmental orpolitical bodies.

 

Section 16.05.  Examination of Lease.  Submission of this instrument for examinationor signature to Tenant does not constitute a reservation of or option forLease, and it is not effective as a Lease or otherwise until execution by anddelivery to both Landlord and Tenant.

 

Section 16.06.  Indemnification for Leasing Commissions.  The parties hereby represent and warrant thatthe only real estate brokers involved in the negotiation and execution of thisLease are the Brokers.  Landlord shallpay commissions to the Brokers pursuant to a separate agreement.  Each party shall indemnify the other from anyand all liability for the breach of this representation and warranty on itspart and shall pay any compensation to any other broker or person who may beentitled thereto.

 

Section 16.07.  Notices.  Any notice required or permitted to be givenunder this Lease or by law shall be deemed to have been given if it is writtenand delivered in person or by overnight courier or mailed by certified mail,postage prepaid, to the party who is to receive such notice at the addressspecified in Article 1.  When somailed, the notice shall be deemed to have been given as of the date it wasmailed.  Either party may change itsaddress by giving written notice thereof to the other party.

 

Section 16.08.  Partial Invalidity; Complete Agreement.  If any provision of this Lease shall be heldto be invalid, void or unenforceable, the remaining provisions shall remain infull force and effect.  This Leaserepresents the entire agreement between Landlord and Tenant covering everythingagreed upon or understood in this transaction. There are no oral promises, conditions, representations, understandings,interpretations or terms of any kind as conditions or inducements to theexecution hereof or in effect between the parties.  No change or addition shall be made to thisLease except by a written agreement executed by Landlord and Tenant.

 

Section 16.09.  Financial Statements.  During the Lease Term and any extensionsthereof, Tenant shall provide to Landlord on an annual basis, within ninety(90) days following the end of Tenant’s fiscal year, a copy of Tenant’s mostrecent financial statements (certified and audited if the Minimum Annual Renthereunder exceeds $100,000.00) prepared as of the end of Tenant’s fiscalyear.  Such financial statements shall besigned by Tenant who shall attest to the truth and accuracy of the informationset forth in such statements, or if the Minimum Annual Rent hereunder exceeds$100,000.00, said statements shall be certified and audited.  All financial statements provided by Tenantto Landlord hereunder shall be prepared in conformity with generally acceptedaccounting principles, consistently applied. Notwithstanding the foregoing, if (i) the named tenant, Gaiam, Inc.,is Tenant, (ii) Tenant’s financial statements are publicly available, and (iii) suchstatements comply with the provisions hereinabove, then Landlord shall notrequest Tenant’s financial statements from Tenant.

 

Section 16.10.  Representations and Warranties.  The undersigned represent and warrant that (i) suchparty is duly organized, validly existing and in good standing (if applicable)in accordance with the laws of the state under which it was organized; and (ii) theindividual executing and delivering this Lease has been properly authorized todo so, and such execution and delivery shall bind such party.

 

Section 16.11.  Agency Disclosure.  Tenant acknowledges having previouslyreceived the Agency Disclosure Statement attached.  The broker as provided in Item I of the BasicLease Provisions, its agents and employees, have represented only Landlord, andhave not in any way represented Tenant, in the marketing, negotiation, andcompletion of this lease transaction.

 

Section 16.12.  Signs. Tenant may, at its own expense, erect a sign concerning the business ofTenant which shall be in keeping with the decor and other signs on theBuilding.  All 

 

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signage (including the signage described in the preceding sentence) inor about the Leased Premises shall be first approved by Landlord, whichapproval shall not be unreasonably withheld, and all signage shall be incompliance with the applicable codes and any recorded restrictions applicableto the Building.  Tenant agrees tomaintain any sign in good state of repair, and upon expiration of the LeaseTerm, Tenant agrees to promptly remove such signs and repair any resultingdamage to the Leased Premises.

 

Section 16.13.  ERISA Matters.

 

(a)           Tenantacknowledges that it has been advised that an affiliate of Landlord is acollective investment fund (the “Fund”) which holds the assets of one or moreemployee benefit plans or retirement arrangements which are subject to Title Iof the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)and/or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)(each a “Plan”), and with respect to which Morgan Guaranty Trust Company of NewYork (“MGT”) is the Trustee and that, as a result, Landlord may be prohibitedby law from engaging in certain transactions.

 

(b)           Landlordhereby represents and warrants to Tenant that, as of the date hereof, the onlyPlans whose assets are invested in the Fund which, together with the interestsof any other Plans maintained by the same employer or employee organization,represent a collective interest in the Fund in excess of ten percent (10%) ofthe total interests in the Fund (each, a “10% Plan”) are referenced on **Exhibit D** (collectively, the “Existing10% Plan”).

 

(c)           Tenantrepresents and warrants that as of the date hereof, and at all times while itis a Tenant under this Lease, one of the following statements is, and willcontinue to be, true:  (1) Tenant isnot a “party in interest” (as defined in Section 3(14) of ERISA) or a “disqualifiedperson” (as defined in Section 4975 of the Code) (each, a “Party inInterest”) with respect to the Existing 10% Plan or, (2) if Tenant is aParty in Interest, that:

 

(A)          neitherTenant nor its “affiliate” (as defined in Section V(c) of PTCE 84-14,“Affiliate”) has, or during the immediately preceding one (1) year has,exercised the authority to either:  (i) appointor terminate MGT as the qualified professional asset manager (as defined in Section V(a) ofPTCE 84-14, “QPAM”) of any of the assets of the Existing 10% Plan with respectto which Tenant or its Affiliate is a Party in Interest; or (ii) negotiatethe terms of the management agreement with MGT, including renewals ormodifications thereof, on behalf of the Existing 10% Plan; and

 

(B)           neitherTenant nor any entity controlling, or controlled by Tenant owns a five percent(5%) or more interest (within the meaning of PTCE 84-14, “5% Interest”) in J.P.Morgan Chase & Co.

 

(d)           Inthe event that Landlord or the Fund notifies Tenant in writing that a Planother than the Existing 10% Plan may become a 10% Plan, Tenant will, within ten(10) days of such notification, inform the Fund in writing as to whetherit can make the same representations which it made in subsection (c) ofthis Section with respect to such prospective 10% Plan.  Thereafter, if based on such representationsmade by Tenant such Plan becomes a 10% Plan, Tenant represents and warrantsthat, at all times during the period Tenant is a tenant under the Lease, one ofthe statements set forth in subsection (c) will be true with respectto such 10% Plan.

 

[SIGNATURES CONTAINED ON THE FOLLOWING PAGES]

 

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INWITNESS WHEREOF, the parties hereto have executed this Lease as of the day andyear first above written.

 
|   | LANDLORD:                            |
|--------|--------------------------------------|
|   | DUGAN REALTY, L.L.C.,                |
|   | an Indiana limited liability company |
|   |                                 |
|   | By:                                  | Duke Realty Limited Partnership, |
|   |                                 | an Indiana limited partnership, its |
|   | member                               |
|   |                                 |
|   |                                 | By: | Duke Realty Corporation, |
|   |                                 | an Indiana corporation, |
|   |                                 | its general partner |
|   |                                 |
|   |                                 | By: |   |   |
|   |                                 |   | Kevin T. Rogus |
|   |                                 |   | Senior Vice President |

 
|   | TENANT:                              |
|--------|--------------------------------------|
|   |                                 |
|   | GAIAM, INC., a  Colorado corporation |
|   |                                 |
|   | By:                                  |   |   |
|   |                                 |
|   | Printed:                             |   |   |
|   |                                 |
|   | Title:                               |   |   |
|        |                                      |  |  |  |  |

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

 

Before me, a NotaryPublic in and for said County and State, personally appeared Kevin T. Rogus, byme known to be the Senior Vice President of Duke Realty Corporation, thegeneral partner of Duke Realty Limited Partnership, the member of Dugan Realty,L.L.C., an Indiana limited liability company, who acknowledged the execution ofthe foregoing “Office Lease” on behalf of said limited liability company.

 

WITNESSmy hand and Notarial Seal this              day of                                                    ,2005.

 
|   |                 |   |
|--------|----------------------|--------|
|   | Notary Public        |
|   |                 |
|   |                 |   |
|   | (Printed  Signature) |
|   |                 |

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

 

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