**Exhibit10.10**

 

CWP/LMS/kt 

09/25/09

 

**FOURTHLEASE AMENDMENT**

 

THIS FOURTH LEASE AMENDMENT (the “Fourth Amendment”) is executed this 7th day of October, 2009, byand 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, October 5, 2005 and January 25, 2008(collectively, the “Lease”), whereby Tenant leased from Landlord certainpremises consisting of approximately 208,120 rentable square feet of space (the“Leased Premises”) in a building commonly known as World Park at Union Centre, BuildingNo. 8, located at 9107 Meridian Way, Cincinnati, Ohio 45069; and

 

WHEREAS, Landlord 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 Fourth Amendment as if fully setforth herein.

 

2.                               Extension of Lease Term. The LeaseTerm is hereby extended through June 30, 2013.

 

3.                               Amendment of Section 1.01. BasicLease Provisions and Definitions. Commencing October 1, 2009, Section 1.01of the Lease is hereby amended by deleting subsections D, E, G and K andsubstituting the following in lieu thereof:

 

“D.                      Minimum Annual Rent:

 
| October 1,  2009 – June 30, 2011 |   | $520,299.96  per year  |
|-------------------------------------------------|--------|------------------------|
| July 1,  2011 – June 30, 2012    |   | $534,868.44  per year  |
| July 1,  2012 – June 30, 2013    |   | $551,517.96  per year. |
|                                            |   |                   |

 

E.                              Monthly Rental Installments:

 
| October 1,  2009 – June 30, 2011 |   | $ 43,358.33 per month  |
|-------------------------------------------------|--------|-----------------------------|
| July 1,  2011 – June 30, 2012    |   | $ 44,572.37 per month  |
| July 1,  2012 – June 30, 2013    |   | $ 45,959.83 per month. |

 

G.                             Lease Term: Through June 30,2013.

 

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K.                            Broker: Duke Realty Services,LLC representing Landlord and Colliers Turley Martin Tucker representingTenant.”

 

4.                              Amendment of Section 9.02. Tenant’sInsurance. Commencing on October 1,2009, Section 9.02 ofthe Lease is hereby amended by incorporating the following as Subparagraph E:

 

“E.                                         AutomobileInsurance. Comprehensive Automobile Liability Insuranceinsuring bodily injury and property damage arising from all owned, non-ownedand hired vehicles, if any, with minimum limits of liability of $1,000,000combined single limit, per accident.”

 

5.                              Amendment of Section 16.18. PatriotAct. Section 16.18 of the Lease is hereby deleted in itsentirety and the following shall be substituted in lieu thereof:

 

“Section 16.18. PatriotAct. Each of Landlord and Tenant, each as to itself, hereby represents itscompliance and its agreement to continue to comply with all applicableanti-money laundering laws, including, without limitation, the USA Patriot Act,and the laws administered by the United States Treasury Department’s Office ofForeign Assets Control, including, without limitation, Executive Order 13224 (“ExecutiveOrder”). Each of Landlord and Tenant further represents (such representation tobe true throughout the Lease Term) (i) that it is not, and it is not ownedor controlled 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.”

 

6.                              Amendment of Section 16.17. Option toExtend. Section 16.17 of the Lease is hereby deleted in itsentirety and the following is hereby substituted in lieu thereof:

 

“Section 16.17. Options to Extend.

 

(a)                                            Grant andExercise of Option. Provided that (i) no default has occurred andis then continuing (ii) the creditworthiness of Tenant is then reasonablyacceptable to Landlord and (iii) Tenant originally named herein remains inpossession of and has been continuously operating in the entire Leased Premisesthroughout the term immediately preceding the Extension Term (as defined below),Tenant shall have the option to extend the Lease Term for two (2) additionalperiods of three (3) years each (the “Extension Term(s)”). Each ExtensionTerm shall be upon the same terms and conditions contained in the Lease except (x) thisprovision giving two (2) extension options shall be amended to reflect theremaining options to extend, if any, and (y) any improvement allowances orother concessions applicable to the Leased Premises under the Lease shall notapply to the Extension Term, and (z) the Minimum Annual Rent shall beadjusted as set forth below (the “Rent Adjustment”). Tenant shall exercise eachoption by (i) delivering to Landlord, no later than eight (8) monthsprior to the expiration of the preceding term, written notice of Tenant’sdesire to extend the Lease Term. Tenant’s failure to timely exercise suchoption shall be deemed a waiver of such option and any succeeding option. Landlordshall notify Tenant of the amount of the Rent Adjustment no later than ninety (90)days prior to the commencement of the Extension

 

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Term. Tenant shall be deemed to have accepted theRent Adjustment if it fails to deliver to Landlord a written objection theretowithin five (5) business days after receipt thereof. If Tenant properlyexercises its option to extend, Landlord and Tenant shall execute an amendmentto the Lease (or, at Landlord’s option, a new lease on the form then in use forthe Building) reflecting the terms and conditions of the Extension Term withinthirty (30) days after Tenant’s acceptance (or deemed acceptance) of the RentAdjustment.

 

(b)                                          Rent Adjustment. The MinimumAnnual Rent for the applicable Extension Term shall be an amount equal to theMinimum Annual Rent then being quoted by Landlord to prospective renewaltenants of the Building for space of comparable size and quality and withsimilar or equivalent improvements as are found in the Building, and if none, thenin similar buildings in the Park; provided, however, that in no event shall theMinimum Annual Rent during any Extension Term be less than the highest MinimumAnnual Rent payable during the immediately preceding term. The Monthly RentalInstallments shall be an amount equal to one-twelfth (1/12) of the MinimumAnnual Rent for the Extension Term and shall be paid at the same time and inthe same manner as provided in the Lease.”

 

7.                               Incorporation of Section 16.19. Right ofFirst Refusal. The following is hereby incorporated as Section 16.19of the Lease:

 

“Section 16.19. Right of FirstRefusal.

 

(a)                                           Provided that (i) nodefault has occurred and is then continuing, (ii) the creditworthiness ofTenant is then reasonably acceptable to Landlord, and (iii) Tenantoriginally named herein remains in possession of and has been continuouslyoperating in the entire Leased Premises throughout the Lease Term, and subjectto any rights of other tenants to the Refusal Space (as defined herein) andLandlord’s right to renew or extend the lease term of any other tenant withrespect to the portion of the Refusal Space now or hereafter leased by suchother tenant, Tenant shall have an on-going right of first refusal (“RefusalOption”) to lease additional space in the Building located contiguous to theLeased Premises as shown crosshatched on the attached **Exhibit D**(“Refusal Space”). Prior to entering into any lease that includes all or anyportion of the Refusal Space, Landlord shall notify Tenant in writing (“Landlord’sNotice”) of Landlord’s receipt of an arms-length offer to lease such space thatis mutually agreeable to Landlord and such bona fide third party offeror (“BonaFide Offer”) and setting forth the material terms of the Bona Fide Offer andsuch other terms as are herein provided. If the Bona Fide Offer includes spacein the Building in addition to the Refusal Space, then the Refusal Space shallbe deemed to include, and this Refusal Option shall be deemed to apply to, allof the space included in the Bona Fide Offer. Tenant shall have three (3) businessdays after Tenant receives Landlord’s Notice in which to notify Landlord inwriting of its election to lease the Refusal Space upon the terms set forth inLandlord’s Notice. If Tenant declines to exercise this Refusal Option or failsto give such written notice within the time period required, Tenant shall bedeemed to have waived this Refusal Option, and thereafter this Refusal Optionshall be void and of no further force or effect, and Landlord shall be free tolease the Refusal Space to the bona fide offeror or any other third party. Inthe event Landlord and the bona fide offeror do not enter into a lease for theRefusal Space, Landlord shall use commercially reasonable efforts to notifyTenant

 

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of the same. The Refusal Space shall be offered toTenant at the rental rate and upon such other terms and conditions as are setforth in the Bona Fide Offer and herein.

 

(b)                             If Tenant shallexercise the Refusal Option, the parties shall enter into an amendment to thisLease adding the Refusal Space to the Leased Premises upon the terms andconditions set forth herein and making such other modifications to this Leaseas are appropriate under the circumstances. If Tenant shall fail to enter intosuch amendment within ten (10) days following Tenant’s exercise of theRefusal Option, then Landlord may terminate this Refusal Option, by notifyingTenant in writing, in which event this Refusal Option shall become void and ofno further force or effect, and Landlord shall thereafter be free to lease theRefusal Space to the bona fide offeror.

 

(c)                              If Landlorddoes not enter into a lease with a third party under the terms and conditionscontained in the Bona Fide Offer within one hundred eighty (180) days afterTenant declines or fails to exercise this Refusal Option, or if Landlorddesires to materially alter or modify the terms and conditions of the Bona FideOffer, Landlord shall be required to present the altered or modified Bona FideOffer to Tenant pursuant to this Refusal Option, in the same manner that theoriginal Bona Fide Offer was submitted to Tenant.”

 

8.                                   Broker. Tenant representsand warrants that, except for Duke Realty Services, LLC representing Landlord, andColliers Turley Martin Tucker representing Tenant, no other real estate brokeror brokers were involved in the negotiation and execution of this FourthAmendment. Tenant shall indemnify Landlord and hold it harmless from any andall liability for the breach of any such representation and warranty on itspart and shall pay any compensation to any other broker or person who may bedeemed or held to be entitled thereto.

 

9.                                   Tenant’sRepresentations and Warranties.

 

(a)                              Tenant hereby represents andwarrants that (i) Tenant is duly organized, validly existing and in goodstanding (if applicable) in accordance with the laws of the State under whichit was organized; (ii) Tenant is authorized to do business in the Statewhere the Building is located; and (iii) the individual(s) executingand delivering this Fourth Amendment on behalf of Tenant has been properlyauthorized to do so, and such execution and delivery shall bind Tenant to itsterms.

 

(b)                             Landlord hereby representsand warrants that (i) Landlord is duly organized, validly existing and ingood standing (if applicable) in accordance with the laws of the State underwhich it was organized; (ii) Landlord is authorized to do business in theState where the Building is located; and (iii) the individual(s) executingand delivering this Fourth Amendment on behalf of Landlord has been properlyauthorized to do so, and such execution and delivery shall bind Landlord to itsterms.

 

10.                             Examination ofAmendment.Submission of this instrument forexamination or signature to Tenant does not constitute a reservation or option,and it is not effective until execution by and delivery to both Landlord andTenant.

 

11.                             Definitions. Except asotherwise provided herein, the capitalized terms used in this Fourth Amendmentshall have the definitions set forth in the Lease.

 

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12.                             Incorporation. This FourthAmendment 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.

 

IN WITNESS WHEREOF, theparties have caused this Fourth Amendment to be executed on the day and yearfirst 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 County and State, personallyappeared Jon C. Burger, by me known to be the Senior Vice President, CincinnatiGroup of Duke Realty Corporation, the general partner of Duke Realty LimitedPartnership, the manager of Dugan Realty, L.L.C., the sole member of DuganFinancing LLC, a Delaware limited liability company, who acknowledged theexecution of the foregoing “Fourth Lease Amendment” on behalf of said limitedliability company.

 

WITNESS my hand and Notarial Seal this 7th day of October,**2009.

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

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

 

(SIGNATURES CONTINUED ON FOLLOWING PAGE)

 

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

 

 
| STATE  OF COLORADO | )      |   |
|--------------------|--------|--------|
|               | )  SS: |   |
| COUNTY  OF BOULDER | )      |   |

 

 

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 Colorado corporation, who acknowledged the execution of the foregoing “FourthLease Amendment” on behalf of said corporation.

 

WITNESS my hand and Notarial Seal this 5th day ofOctober, 2009.

 

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

 
| My  Commission Expires:  | 4-25-2012 |   |
|--------------------------|-----------|--------|
|                     |      |   |
| My  County of Residence: | Jefferson |   |

 

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**EXHIBIT D**

 

**REFUSAL SPACE**

 

 

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