**Exhibit 10.5**

 

SECOND AMENDED AND RESTATED

OFFICE LEASE

 

FUND IX, FUND X, FUND XI AND REIT JOINTVENTURE

“LANDLORD”

 

and

 

GAIAM, INC.

“TENANT”

 

 

360 Interlocken Boulevard

Broomfield, Colorado

 

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TABLE OF CONTENTS

 
| ARTICLE 1  - DEMISE                      |                                               |
|-----------------------------------------------|----------------------------------------------------|
|                                          |                                               |
| 1.1                                           | Demise                                             |   |
|                                          |                                               |   |
| ARTICLE 2 - TERM                         |                                               |
|                                          |                                               |
| 2.1                                           | Term                                               |   |
| 2.2                                           | Landlord’s Work                               |   |
|                                          |                                               |   |
| ARTICLE 3 - RENT                         |                                               |
|                                          |                                               |
| 3.1                                           | Base  Rent                                         |   |
| 3.2                                           | Additional Rent                                    |   |
| 3.3                                           | Interest on Late Payments and Late Payment  Charge |   |
|                                          |                                               |   |
| ARTICLE 4 - OPERATING EXPENSE ADJUSTMENT |                                               |
|                                          |                                               |
| 4.1                                           | Definitions                                        |   |
| 4.2                                           | Rent Adjustments                                   |   |
| 4.3                                           | Reimbursement Survives Termination                 |   |
|                                          |                                               |   |
| ARTICLE 5 - BUILDING SERVICES            |                                               |
|                                          |                                               |
| 5.1                                           | Standard Services                                  |   |
| 5.2                                           | Interruption of Standard Services                  |   |
| 5.3                                           | Services Paid by Tenant                            |   |
| 5.4                                           | Above-Standard Service Requirements                |   |
| 5.5                                           | Cleaning                                           |   |
| 5.6                                           | Re-Lamping                                         |   |
| 5.7                                           | Fiber  Optic                                       |   |
| 5.8                                           | After Hours Access                                 |   |
|                                          |                                               |   |
| ARTICLE 6 - TENANT REPAIR                |                                               |
|                                          |                                               |
| 6.1                                           | Damage by Tenant                                   |   |
| 6.2                                           | Maintenance                                        |   |
| 6.3                                           | Good Condition                                     |   |
| 6.4                                           | Surrender                                          |   |
| 6.5                                           | Broken Glass                                       |   |
|                                          |                                               |   |
| ARTICLE 7 - ASSIGNMENT AND SUBLETTING    |                                               |
|                                          |                                               |
| 7.1                                           | Limitations                                        |   |
| 7.2                                           | Acceptance of Performance                          |   |

 

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| 7.3                                                         | Document Review                       |   |
|-------------------------------------------------------------|---------------------------------------|--------|
| 7.4                                                         | Subletting                            |   |
| 7.5                                                         | Affiliated Entity                     |   |
|                                                        |                                  |   |
| ARTICLE 8 - TRANSFER BY LANDLORD AND LIMITED LIABILITY |                                  |
|                                                        |                                  |
| 8.1                                                         | Transfer of Landlord’s Interest  |   |
| 8.2                                                         | Limited Liability of Landlord         |   |
| 8.3                                                         | Limited Liability of Tenant           |   |
|                                                        |                                  |   |
| ARTICLE 9 - USE OF PROCEEDS                            |                                  |
|                                                        |                                  |
| 9.1                                                         | Use                                   |   |
| 9.2                                                         | Compliance with Rules and Regulations |   |
| 9.3                                                         | Electronics Testing Lab               |   |
|                                                        |                                  |   |
| ARTICLE 10 - INSURANCE                                 |                                  |
|                                                        |                                  |
| 10.1                                                        | Tenant’s Insurance               |   |
| 10.2                                                        | Landlord’s Insurance             |   |
| 10.3                                                        | Subrogation                           |   |
|                                                        |                                  |   |
| ARTICLE 11 - OBSERVANCE OF LAW                         |                                  |
|                                                        |                                  |
| 11.1                                                        | Law                                   |   |
| 11.2                                                        | Taxes                                 |   |
|                                                        |                                  |   |
| ARTICLE 12 - WASTE AND NUISANCE                        |                                  |
|                                                        |                                  |
| ARTICLE 13 - ENTRY BY LANDLORD                         |                                  |
|                                                        |                                  |
| ARTICLE 14 - INDEMNIFICATION OF  LANDLORD              |                                  |
|                                                        |                                  |
| 14.1                                                        | Tenant’s Indemnity               |   |
| 14.2                                                        | Landlord’s Indemnity             |   |
| 14.3                                                        | Comparative Negligence                |   |
|                                                        |                                  |   |
| ARTICLE 15 - ALTERATIONS                               |                                  |
|                                                        |                                  |
| 15.1                                                        | Alterations by Tenant                 |   |
| 15.2                                                        | Alterations by Landlord               |   |
|                                                        |                                  |   |
| ARTICLE 16 - SIGNS AND ADVERTISING                     |                                  |
|                                                        |                                  |
| 16.1                                                        | Sign Generally                        |   |
| 16.2                                                        | Directory Signage                     |   |

 

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| 16.2                                                             | Monument  Signs                                |   |
|------------------------------------------------------------------|------------------------------------------------|--------|
|                                                             |                                           |   |
| ARTICLE 17 - SUBORDINATION TO  MORTGAGES AND DEEDS OF TRUST |                                           |
|                                                             |                                           |
| ARTICLE 18 - ESTOPPEL  CERTIFICATE/FINANCIAL INFORMATION    |                                           |
|                                                             |                                           |
| 18.1                                                             | Estoppel Certificate                           |   |
| 18.2                                                             | Financial Information                          |   |
|                                                             |                                           |   |
| ARTICLE 19 - QUIET ENJOYMENT                                |                                           |
|                                                             |                                           |
| ARTICLE 20 - FIXTURES                                       |                                           |
|                                                             |                                           |
| ARTICLE 21 - DAMAGE OR DESTRUCTION                          |                                           |
|                                                             |                                           |
| 21.1                                                             | Casualty                                       |   |
| 21.2                                                             | Casualty Caused by Tenant                      |   |
|                                                             |                                           |   |
| ARTICLE 22 - CONDEMNATION                                   |                                           |
|                                                             |                                           |
| 22.1                                                             | Eminent Domain                                 |   |
| 22.2                                                             | Damages                                        |   |
| 22.3                                                             | Restoration                                    |   |
|                                                             |                                           |   |
| ARTICLE 23 - LOSS AND DAMAGE AND DELAY                      |                                           |
|                                                             |                                           |
| 23.1                                                             | Loss and Damage                                |   |
| 23.2                                                             | Delays                                         |   |
|                                                             |                                           |   |
| ARTICLE 24 - DEFAULT AND REMEDIES                           |                                           |
|                                                             |                                           |
| 24.1                                                             | Default by Tenant                              |   |
| 24.2                                                             | Remedies of Landlord                           |   |
| 24.3                                                             | Landlord’s Default                        |   |
| 24.4                                                             | Personal Property Lien. Intentionally  Deleted |   |
|                                                             |                                           |   |
| ARTICLE 25 - HOLDING OVER                                   |                                           |
|                                                             |                                           |
| ARTICLE 26 - NOTICE                                         |                                           |
|                                                             |                                           |
| 26.1                                                             | Notice                                         |   |
| 26.2                                                             | Change of Address                              |   |

 

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| ARTICLE 27 - SECURITY DEPOSIT                |                                                            |
|---------------------------------------------------|-----------------------------------------------------------------|
|                                              |                                                            |
| 27.1                                              | Security Deposit                                                |   |
|                                              |                                                            |   |
| ARTICLE 28 - MISCELLANEOUS PROVISIONS        |                                                            |
|                                              |                                                            |
| 28.1                                              | Captions                                                        |   |
| 28.2                                              | Waiver                                                          |   |
| 28.3                                              | Entire Agreement                                                |   |
| 28.4                                              | Severability                                                    |   |
| 28.5                                              | Modification                                                    |   |
| 28.6                                              | Governing Law                                                   |   |
| 28.7                                              | Successors and Assigns                                          |   |
| 28.8                                              | Authorization to Execute                                        |   |
| 28.9                                              | Approval of Documents                                           |   |
| 28.10                                             | Attorneys   Fees                                           |   |
| 28.11                                             | Use  of Names                                                   |   |
| 28.12                                             | Use  of Names                                                   |   |
|                                              |                                                            |   |
| ARTICLE 29 - SUBSTITUTION OF PREMISES        |                                                            |
|                                              |                                                            |
| 29.1                                              | Intentionally Deleted                                           |   |
|                                              |                                                            |   |
| ARTICLE 30 - RECORDING                       |                                                            |
|                                              |                                                            |
| ARTICLE 31 - REAL ESTATE BROKER              |                                                            |
|                                              |                                                            |
| ARTICLE 32 - OPTION                          |                                                            |
|                                              |                                                            |
| 32.1                                              | Option to Extend                                                |   |
| 32.3                                              | Right of First Offer to Lease Additional  Space in the Building |   |
| 32.3                                              | Generator                                                       |   |
|                                              |                                                            |   |
| ARTICLE 33  RATIFICATION OF RESTATEMENT |                                                            |
|                                              |                                                            |
| 33.1.                                             | Ratification and Binding Effect                                 |   |
| 33.2.                                             | Entire Agreement                                                |   |
| 33.3.                                             | Miscellaneous                                                   |   |

 

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SECOND AMENDED AND RESTATED

OFFICE LEASE

 

360 INTERLOCKEN BOULEVARD

BROOMFIELD, COLORADO

 

THIS SECOND AMENDED AND RESTATED OFFICE LEASE (the “Second RestatedLease” or the “Lease”) is made this                  day of May, 2004, to be effective as of June 1, 2004, by and between FUNDIX, FUND X, FUND XI AND REIT JOINT VENTURE, a Georgia joint venture(“Landlord”) and GAIAM, INC., a Colorado corporation (“Tenant”).

 

W I T N E S S E T H:

 

WHEREAS, prior to the date hereof, Landlord and Tenant entered intothat certain Amended and Restated Office Lease, dated as of February 14,2002, as amended by that certain First Amendment to Amended and Restated LeaseAgreement, dated as of March 31, 2003, and as further amended by thatcertain Second Amendment to Amended and Restated Office Lease Agreement of evendate herewith (said Amended and Restated Lease, as so amended, is hereinreferred to as the “First Restated Lease”, and said Second Amendment is hereinreferred to as the “Second Amendment to First Restated Lease”), pursuant to theterms of which Landlord has leased to Tenant, and Tenant has leased fromLandlord, certain premises (the “Premises”) containing 36,159 square feet ofRentable Area and consisting of the entire second (2nd) and third (3rd)floors of that certain building known as the 360 Interlocken (the “Building”)located at 360 Interlocken Boulevard, Broomfield, Colorado 80021, on thatcertain real property more particularly described on **Exhibit A** attachedhereto and made a part hereof (the “Property”);

 

WHEREAS, Landlord and Tenant desire to extend the Lease Term as to theexisting Premises, to modify the rental rate for the existing Premises, toprovide for certain rights of first offer to lease unencumbered space on thefirst floor of the Building, and to provide for certain other options andrights all on the terms and conditions hereinafter set forth;

 

NOW, THEREFORE, for and in consideration of the premises, the covenantsand agreements hereinafter contained, and for Ten Dollars ($10.00) and othergood and valuable consideration in hand paid by each party hereto to the other,the receipt and sufficiency of which are hereby acknowledged, Tenant andLandlord hereby covenant and agree to amend and restate the First RestatedLease, as follows:

 

# ARTICLE 1

#  

DEMISE

 

## 1.1                                 Demise.  Effective as of June 1, 2004, Landlord doeshereby lease to Tenant and Tenant hereby leases from Landlord those certainpremises (the “Premises”) consisting of the entire second (2nd) and third (3rd)floors of the Building, which Premises are generally depicted

 

1

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## onthe floor plans attached hereto as **Exhibit B**,together with a non-exclusive right subject to the provisions hereof, to useall appurtenances thereto, including, but not limited to, any plazas, commonareas, walkways or other areas in the Building or on the Property designated byLandlord for the exclusive or non-exclusive use of the tenants of the Building,all of which inclusive of the Building are hereinafter collectively called the“Building Complex”.  For purposes ofthis Second Restated Lease, Landlord and Tenant hereby agree that the Premisescontain a total of 36,159 square feet of Rentable Area, and that the Buildingcontains a total of 51,974 square feet of Rentable Area.  Such letting and hiring isupon and subject to the terms, conditions and covenants herein set forth, andTenant covenants as a material part of the consideration for this SecondRestated Lease to keep and perform each and all of said terms, conditions andcovenants by it to be kept and performed and that this Second Restated Lease ismade upon the condition of such performance.

##  

# ARTICLE 2

#  

TERM

 

## 2.1                                 Term.  The term of this Second Restated Lease shallcommence on June 1, 2004 (the “Commencement Date”) and shall end at 5:00p.m. on May 31, 2008, unless extended or sooner terminated as herein provided(the “Lease Term”).

##  

## 2.2                                 Landlord’s Work.  Landlord shall have no obligation for makingany improvements in the Premises and Tenant hereby accepts the Premises in its“AS IS” condition.

##  

# ARTICLE 3

#  

RENT

 

## 3.1                                 Base Rent.  Beginning on the Commencement Date, Tenantshall pay to Landlord, at P. O. Box 926040, Norcross, Georgia 30010-6040, or atsuch other place as Landlord may designate in writing to Tenant, annual baserent (“Base Rent”) in the amounts set forth below for the Premises, based onthe Premises containing 36,159 square feet of Rentable Area:

##  

| **Period**       |   | **Annual  Rate Per Rentable  Square Foot of Premises** |   | **Monthly  Installment** |   | **Annual  Installment** |   |
|------------------|--------|--------------------------------------------------------|--------|--------------------------|--------|-------------------------|--------|
|             |   |                                                   |   |                     |   |                    |   |
| 6/1/04 - 5/31/05 |   | $                                                      | 16.25  |                     | $      | 48,965.31               |   | $ | 587,583.75 |   |
| 6/1/05 - 5/31/06 |   | $                                                      | 16.25  |                     | $      | 48,965.31               |   | $ | 587,583.75 |   |
| 6/1/06 - 5/31/07 |   | $                                                      | 17.00  |                     | $      | 51,225.25               |   | $ | 614,703.00 |   |
| 6/1/07 - 5/31/08 |   | $                                                      | 18.00  |                     | $      | 54,238.50               |   | $ | 650,862.00 |   |

 

## TheBase Rent for each Lease Year shall be payable in equal monthly installments,due on the first day of each calendar month, in advance, in legal tender of theUnited States of America, without abatement, demand, deduction or offsetwhatsoever, except as may be expressly provided in this Lease.  One full monthly installment of Base Rentshall be due and payable on the Commencement Date by Tenant and a like monthlyinstallment of Base Rent shall be due and

 

2

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## payableon or before the first day of each calendar month following the CommencementDate during the Lease Term hereof. Tenant shall pay, as Additional Rent, all other sums due from Tenantunder this Lease.  The term “Rent”, asused herein, means all Base Rent, Additional Rent and all other amounts payablehereunder from Tenant to Landlord.  If the LeaseTerm commences or terminates on a day other than the first or last day of acalendar month respectively, then the installments of Base Rent for such monthor months shall be prorated and the installments so prorated shall be paid inadvance.  If the Premises shall beexpanded in accordance with the terms of this Second Restated Lease, then theamount of Base Rent shall be appropriately adjusted in accordance with theterms of this Second Restated Lease.

##  

## 3.2                                 Additional Rent.  Any other sums of money or charges to be paid by Tenant pursuantto the provisions of this Lease may be designated as “Additional Rent”.  A failure to pay Additional Rent shall betreated in all events as the failure to pay Rent.

##  

## 3.3                                 Interest on Late Paymentsand Late Payment Charge.  Any Rent (whether Base Rent or Additional Rent) or other amountdue from Tenant to Landlord under this Lease not paid within five (5) days ofthe date due shall bear interest from the date due until the date paid at therate of two percent (2%) per month (the “Default Rate”), but the payment ofsuch interest shall not excuse or cure any default by Tenant under this Lease.Failure to charge or collect such interest in connection with any one or moresuch late payments shall not constitute a waiver of Landlord’s right to chargeand collect such interest in connection with any other or similar or like latepayments.

##  

Furthermore, in the event any rent or other amounts owing hereunder arenot paid within five (5) days after the due date, then Landlord and Tenantagree that Landlord will incur additional administrative expenses, the amountof which will be difficult if not impossible to determine. Accordingly, inaddition to such required payment, Tenant shall pay to Landlord an additionalone time late charge for any such late payment in the amount of five percent(5%) of the amount of such late payment.

 

Notwithstanding the above, Landlord agrees that it shall waive suchlate charge and interest twice during any calendar year provided Tenant is nototherwise in default hereunder. Tenant shall not be deemed late if the Rentpayment is postmarked by the United States Post Office no later than the lastday of the five (5) day period set forth above, the payment is actuallyreceived and Tenant uses all reasonable efforts to make all payments when due.

 

# ARTICLE 4

#  

OPERATING EXPENSE ADJUSTMENT

 

## 4.1                                 Definitions. The followingterms shall have the following meanings with respect to the provisions of this **Section 4.1**:

##  

### (a)                                  Tenant’s“Prorata Share” shall mean that fraction, the numerator of which is theRentable Area of the Premises (36,159 rentable square feet) and the denominatorof which is 51,974 square feet being the total Rentable Area of the BuildingComplex and is equal to

 

3

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### 69.57%,which calculation shall be final except as specifically set forth herein. Atsuch time, if ever, any space is added to or subtracted from the Premises,Tenant’s Prorata Share shall be adjusted accordingly.

###  

### (b)                                 “Real EstateTaxes” shall include (a) any form of assessment (including any so-called“special” assessments), license tax, business license fee, business licensetax, commercial rental tax, levy, charge, penalty or tax, imposed by anyauthority having the direct power to tax, including any city, county, state orfederal government, or any school, agricultural, lighting, water, drainage orother improvement or special district thereof, against the Premises, theBuilding, Property, or Building Complex or any legal or equitable interest ofLandlord therein; (b) any tax on Landlord’s right to rent or other income fromthe Premises or against Landlord’s business of leasing the Premises; and (c)any assessments, tax, fee, levy or charge in substitution, partially ortotally, of or in addition to any assessment, tax, fee, levy or chargepreviously included within the definition of Real Estate Taxes which may beimposed by governmental agencies for such services as fire protection, street,sidewalk and road maintenance, refuse removal and for other governmentalservices formerly provided without charge to property owners or occupants. Itis the intention of Landlord and Tenant that all such new and increasedassessments, taxes, fees, levies and charges be included within the definitionof Real Estate Taxes for purposes of this Lease. The following shall also beincluded within the definition of Real Estate Taxes for purposes of this Lease,provided, however, that Tenant shall pay Landlord the entire amount thereof:(i) any tax allocable to or measured by the area of the Premises or the rentalpayable hereunder, including without limitation, any gross income, privilege,sales or excise tax levied by the State, any political subdivision thereof,city, municipal or federal government, with respect to the receipt of such,rental, or upon or with respect to the possession, leasing, operating,management, maintenance, alteration, repair, use or occupancy by Tenant of thePremises or any portion thereof; and (ii) any tax upon this transaction or anydocument to which Tenant is a party, creating or transferring an interest or anestate in the Premises. “Real Estate Taxes” shall not include Landlord’s federalor state income, franchise, inheritance, or estate taxes. “Real Estate Taxes”included in this definition mean taxes or assessments in the year assessed,without regard to the year in which same become due or payable.

###  

### (c)                                  “OperatingExpenses” shall mean for all purposes and throughout the Term of this Lease allmaintenance and operating costs of any kind or nature with respect to theoperation, ownership and maintenance of the Building Complex and shall include,but not be limited to, Real Estate Taxes, the cost of building supplies, windowcleaning, costs incurred in connection with all energy sources for the Buildingsuch as propane, butane, natural gas, steam, electricity, solar energy and fueloil; the costs of water and sewer service, janitorial services, both interiorand exterior, general maintenance and repair of the Building Complex includingthe heating and air conditioning systems and structural components of theBuilding; landscaping, maintenance, repair and striping of all parking areas;insurance, including fire and extended coverage and public liability insuranceand any rental insurance and all risk insurance carried by Landlord pursuant to**Section 10.2**; labor costsincurred in the operation and maintenance of the Building Complex, includingwages and other payments; costs to Landlord for worker’s compensation anddisability insurance; payroll taxes and welfare fringe benefits; professionalbuilding management fees which shall not exceed four percent (4%) of grossreceipts for the 

 

4

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### BuildingComplex [it being mutually understood and agreed that for purposes of computingmanagement fees, “gross receipts” of the Building Complex shall include allbase rent and all amounts paid by all tenants of the Building Complex(including Tenant) as reimbursement for Operating Expenses and other incidentalincome of the Building Complex, but shall not include property management feespayable to any person or entity]; legal, inspection and consultation feesincurred in connection with the Building Complex; any association fees due inaccordance with or as referenced in recorded documents; any expenseattributable to costs incurred by Landlord for any capital improvements orstructural repairs to the Building or Property required by any change in thelaws, ordinances, rules, regulations or otherwise which were not in effect onthe date Landlord obtained its building permit to construct the Buildingrequired by any governmental or quasi-governmental authority havingjurisdiction over the Building which costs shall be amortized over the usefullife of the capital improvements or structural repair; and any costs incurredby Landlord in making capital improvements or other modifications to theBuilding or any part thereof, which costs shall be amortized over the usefullife of such improvement or modification with interest at the rate of tenpercent (10%) per annum on the unamortized amount, in accordance with suchreasonable life and amortization schedules and shall be determined by Landlordin accordance with generally accepted accounting principles. For all purposesand throughout the term of this Lease, Operating Expenses shall expresslyexclude costs of maintenance and repair reimbursed by insurance proceeds,alterations or other specific costs attributable solely to other tenant’s spacein the Building which was under the respective terms of the lease such tenant’sresponsibility and thereupon billed to such tenants, and legal fees forfinancing, sales of the Building Complex, preparing and enforcing leases andany other legal fees which do not specifically relate to the operation andmaintenance of the Building Complex.

###  

### (d)                                 “VariableOperating Expenses” shall mean those Operating Expenses which vary with occupancylevels or which vary with areas serviced based upon occupied RentableArea.   Landlord agrees that Tenant, ifit is paying any utilities directly or performing its own janitorial services(including light bulb replacement), shall be responsible for its Prorata Shareof such utilities and services (including light bulbs) only for the commonareas of the Building Complex.

###  

(e)                                  “BaseYear” shall mean calendar year 2005.

 

4.2                                 Rent Adjustments.  Landlord and Tenant agree that the following adjustments to Rentshall be made with respect to each calendar year (or portion thereof) withinthe Term:

 

(a)                                  Paymentsof Increases in Operating Expenses.  Commencing January 1, 2006, Tenant shall pay to Landlord asAdditional Rent an amount equal to Tenant’s Prorata Share of the amount bywhich the amounts paid or incurred by Landlord for Operating Expenses in anycalendar year after the Base Year exceed the amounts paid or incurred byLandlord for Operating Expenses during the Base Year, with appropriate andequitable adjustment for Variable Operating Expenses in the Base Year and eachsubsequent year (the “Increased Operating Expenses”).   It is agreed that Tenant shall, during each calendar year afterthe Base Year, pay to Landlord an estimate of Tenant’s Prorata Share of suchIncreased Operating Expenses as

 

5

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hereinafter set forth. Beginning January 1, 2006, and continuingeach calendar year (or portion thereof) during the Lease Term, Tenant shall payto Landlord each month on the first day of the month an amount equal toone-twelfth (1/12) of Tenant’s Prorata Share of the Increased OperatingExpenses for such new calendar year (or portion thereof contained within LeaseTerm) as reasonably estimated by Landlord, with an adjustment to be madebetween the parties at a later date as hereinafter provided. Furthermore,Landlord may from time to time but no more than three (3) times during anyLease Year furnish Tenant with notice of a re-estimation of the Increased OperatingExpenses and Tenant shall commence paying its re-estimated Prorata Share on thefirst day of the month following receipt of said notice. As soon as practicablefollowing the end of any calendar year but in no event later thanApril 15, Landlord shall submit to Tenant a statement setting forth theexact amount of Tenant’s Prorata Share of the Increased Operating Expenses forthe calendar year just completed and the difference, if any, between Tenant’sactual Prorata Share of the Increased Operating Expenses for the calendar yearjust completed and the estimated amount of Tenant’s Prorata Share of theIncreased Operating Expenses (which were paid in accordance with thissubparagraph) for such year.   Suchstatement shall also set forth the amount of the estimated Increased OperatingExpenses reimbursement for the new calendar year computed in accordance withthe foregoing provisions.  To the extentthat Tenant’s Prorata Share of the actual Increased Operating Expenses for theperiod covered by such statement are higher than the estimated payments whichTenant previously paid during the calendar year just completed, Tenant shallpay to Landlord the difference within thirty (30) days following receipt ofsaid statement from Landlord.  To theextent that Tenant’s Prorata Share of the actual Increased Operating Expensesfor the period covered by the Statements are less than the estimated paymentswhich Tenant previously paid during the calendar year just completed, Landlordmay at its option either refund said amount to Tenant or credit the differenceagainst Tenant’s estimated reimbursement for such Increased Operating Expensesfor the current year. In addition, with respect to the monthly reimbursement,until Tenant receives such statement, Tenant’s monthly reimbursement for thenew calendar year shall continue to be paid at the then current rate, butTenant shall commence payment to Landlord of the monthly installments ofreimbursement on the basis of the statement beginning on the first day of themonth following the month in which Tenant receives such statement.

 

(b)                                 Tenant’sobligation with respect to its Prorata Share of Increased Operating Expensesand Base Rent shall survive the expiration or early termination of thisLease.  If Tenant occupies the Premisesfor less than a full calendar year during the first or last calendar years ofthe term hereof, Tenant’s Prorata Share for such partial year shall beappropriately prorated to reflect the number of months in such year duringwhich Tenant occupied the Premises. Tenant shall pay all amounts due hereunder within thirty (30) daysfollowing receipt of notice thereof.

 

(c)                                  Tenantshall have the right but not more than once per annum, at any time withinthirty (30) days after a statement of actual Operating Expenses for aparticular calendar year has been rendered by Landlord as provided herein, atTenant’s sole cost and expense, to examine Landlord’s books and records duringnormal business hours (upon reasonable prior written notice to Landlord), atLandlord’s office relating to the determination of such Operating Expenses.Unless Tenant objects to the statement provided by Landlord, within said thirty(30) day period, such statement and adjustment shall be deemed conclusive.

 

6

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4.3                                 Reimbursement Survives Termination.In the event of the termination of this Lease by expiration of the stated termor for any other cause or reason whatsoever prior to the determination ofrental adjustment as hereinafter set forth, Tenant’s agreement to reimburse Landlord up to the time of terminationshall survive termination of this Lease and Tenant shall pay any amount due toLandlord within fifteen (15) days after being billed therefor. In the event ofthe termination of this Lease by expiration of the stated term or for any othercause or reason whatsoever, except default by Tenant of any of the terms orprovisions of this Lease, prior to the determination of rental adjustments ashereinabove set forth, Landlord’s agreement to refund any excess additionalrental paid by Tenant up to the time of termination shall survive terminationof this Lease and Landlord shall pay the amount due to Tenant within fifteen(15) days of Landlord’s determination of such amount. This covenant shall survivethe expiration or termination of this Lease.

 

If the last year of the term of this Lease ends on any day other thanthe last day of December, any payment due to Landlord by reason of any increasein Operating Expenses shall be prorated on the basis by which the number ofdays in such partial year bears to 365.

 

Any failure of Landlord to furnish Tenant with an estimate of itsProrata Share of Increased Operating Expenses or any statements as set forth inthis **Section 4**shall not act to relieve Tenant of its liability therefor; and with respect toany deficiencies, Tenant agrees to pay same within thirty (30) days of writtendemand from Landlord.

 

# ARTICLE 5

#  

BUILDING SERVICES

 

## 5.1                                 Standard Services.  Landlord agrees to furnish to the Premises during regularbusiness hours from 7:00 a.m. to 6:00 p.m. Mondays through Fridays and from8:00 a.m. to 1:00 p.m. Saturdays, except for holidays as the same aredetermined by Landlord, and subject to the rules and regulations of theBuilding, heat and air conditioning for the use and occupancy of the Premises,passenger elevator service and freight elevator service, subject to schedulingby Landlord. Landlord shall also furnish: (i) electric current to be supplied for lighting the Premises andpublic halls, and for the operation of ordinary office equipment, exclusive ofheavy-duty equipment and computers, copying equipment which is not standard forgeneral offices, or comparable equipment; (ii) janitorial and cleaningservices, and (iii) domestic water in reasonable quantity. Elevator serviceshall mean service either by non-attended automatic elevators or elevators withattendants at the option of Landlord. Landlord shall also furnish, at rates setfrom time to time as reasonably determined by Landlord (reflecting actual costsof such additional HVAC), heating and air conditioning and such other items asare not provided for herein, provided if Tenant does not have special HVACcontrols for its Premises, then Tenant shall give Landlord reasonable priornotice of Tenant’s needs for such additional heating or air conditioning andLandlord shall use all reasonable efforts to provide same. Landlord shall also,at said times, maintain and keep lighted the common stairs, entries, and toiletrooms in the Building that would reasonably be subject to use by Tenant, itsagents and employees during other than

 

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## regularbusiness hours.  Landlord also has theright to charge Tenant for energy costs incurred because of Tenant’s aboveBuilding average usage or by reason of usage of the Premises or the Buildingduring other than regular business hours. However, in no event shall Landlordcharge Tenant more for excess utilities or after hours HVAC than it chargesother tenants in the Building for such usage. Furthermore, if Landlord were togrant any tenant longer regular business hours, then such hours shall also beapplicable to Tenant. Tenant agrees to pay for any excess HVAC within fifteen(15) days of the billing therefor, such billing to occur no more frequentlythan monthly.

##  

## 5.2                                 Interruption of Standard Services. Tenant agrees thatLandlord shall not be liable for failure to supply any heating, airconditioning, elevator, janitorial services, electric current, or any otherservice described in **Section 5.1**or **Section 33.3** during anyperiod when Landlord uses reasonable diligence to restore or to supply suchservices or electric current, it being further agreed that Landlord reservesthe right to temporarily discontinue such services or any of them, or electriccurrent at such times as may be necessary by reason of accident, unavailabilityof employees, repairs, alterations, or improvements, or whenever by reason ofstrikes, lockouts, riots, acts of God or any other happening or occurrencebeyond the reasonable control of Landlord. If Landlord is unable to furnishsuch services or electric current for any reason outside of Landlord’sreasonable control, or if such services or electric current shall beinterrupted for any reason outside of Landlord’s reasonable control, Landlordshall not be liable for damages to persons or property for any suchdiscontinuance or interruption, nor shall such discontinuance or interruptionin any way be construed as a constructive or actual eviction of Tenant or causean abatement of rent or operate to release Tenant from any of Tenant’sobligations hereunder. Landlord’s obligation to furnish services or electriccurrent shall be conditioned upon the availability of adequate energy sourcesfrom the public utility companies presently serving the Building Complex. IfLandlord elects for any reason to temporarily discontinue services to Tenantand/or the Building Complex, then Landlord shall give Tenant prior noticethereof and Tenant shall have the right to approve the scheduling thereof,which approval shall not be unreasonably withheld or delayed and in any eventLandlord shall use reasonable efforts to restore as soon as possible anyservice which has been interrupted. Landlord shall have the right to reduceheating, cooling or lighting within the Premises and in the public area in theBuilding as required by any mandatory fuel or energy-saving program.Furthermore, due to energy code design requirements as promulgated from time totime, Tenant hereby acknowledges that it may on certain days experiencediscomfort with the heating and air conditioning cycle, and Landlord shall haveno responsibility or liability therefor.

##  

## 5.3                                 Services Paid by Tenant. Unless otherwise providedby Landlord, Tenant shall separately arrange with the applicable local publicauthorities or utilities, as the case may be, for the furnishing of and paymentfor all telephone and other communications services as may be required byTenant in the use of the Premises. Tenant shall directly pay for such telephoneand other communications services, including the establishment and connectionthereof, at the rates charged for such services by said authority or utility,and the failure of Tenant to obtain or to continue to receive such services forany reason whatsoever shall not relieve Tenant of any of its obligations underthis Lease.

 

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## 5.4                                 Above-Standard ServiceRequirements. If unusualheat-generating machines or equipment cause the temperature in the Premises, orany part thereof, to exceed the temperatures the Building’s air conditioningsystem would be able to maintain in such Premises were it not for suchheat-generating equipment, then Landlord reserves the right to installsupplementary air conditioning units in the Premises, and the cost thereof,including the cost of installation and the cost of operation and maintenancethereof, shall be paid by Tenant to Landlord upon demand by Landlord.

##  

Tenant shall not, without the written consent of Landlord, use anyapparatus or device which will in any way increase the amount of electricity orwater which Landlord determines to be reasonable for use of the Premises asgeneral office space, nor connect with electric current (except through existingelectrical outlets in the Premises) or water pipes any apparatus or device forthe purposes of using electric current, other energy or water except as setforth in Article 15 hereof. Landlord shall have the right to install oneor more separately submetered electrical circuits to serve all of Tenant’sequipment, machinery or appliances which equipment, machinery or appliancesrequires electrical current supplied to the Premises for general officepurposes as the same is determined by Landlord which costs of submetering shallbe payable by Tenant to Landlord upon demand. Tenant shall also, at its owncost, have the right to directly meter the electric services for its Premisesin which event Landlord shall have no right to object to any equipment that uses“above-standard” amounts of electricity. Tenant agrees to reimburse Landlordfor the submetered electrical current utilized by Tenant at the rates chargedto Landlord to purchase electrical current for the Building, such reimbursementto be made within fifteen (15) days of the date of the billing therefor; suchbilling to occur no more frequently than monthly.

 

## 5.5                                 Cleaning. Upon priorwritten notice to Landlord, Tenant may provide its own janitorial or cleaningservices subject to supervision of Landlord, at Tenant’s sole responsibility,and by a janitorial or cleaning contractor or employees at all timessatisfactory to Landlord. Landlord shall provide janitorial and cleaningservices, in accordance with such reasonable standards generally provided in ClassA suburban office buildings in the Denver-Boulder metropolitan area for thecommon areas of the Building Complex.

##  

## 5.6                                 Re-Lamping. Exclusive ofthe Premises, Landlord shall have the exclusive right to make any replacementof electric light bulbs, fluorescent tubes and ballasts in the Building Complexthroughout the Lease Term and any renewal thereof. Landlord may adopt a systemof relamping and reballasting periodically on a group basis in accordance withgood management practice.

##  

## 5.7                                 Fiber Optic.  Landlord shall have no responsibility orliability for bringing either the phone system or fiber optics to thePremises.  Nothing herein shall prohibitLandlord from entering into licensing or other agreements with any telecommunicationscompany or entity for the Building nor shall Landlord be prohibited frominstalling a minimum point of entry fiber optics system and/or updating orreplacing any system from time to time in the Building.

##  

## 5.8                                 After Hours Access. Except as specifically setforth in **Sections 15.2, 21.1** and **22.2,** and subject to applicable local lawsand emergencies, Tenant shall have access to its

 

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## Premisestwenty-four hours a day, seven days a week. Tenant acknowledges that certainsecurity measures may apply during nonregular business hours or holidays,including the use of keys for access to the Building.

##  

# ARTICLE 6

#  

TENANT REPAIR

 

## 6.1                                 Damage by Tenant. If the Building Complex,the Building, the Premises or any portion thereof including but not limited tothe elevators, boilers, engines, pipes and other apparatus, or members ofelements of the Building (or any of them) used for the purpose of climatecontrol of the Building or operating the elevators, or if the water pipes,drainage pipes, electric lighting or other equipment of the Building or theroof or outside walls of the Building or the Generator or the parkingfacilities of Landlord and also the Tenant Finish including but not limited tothe carpet, wall covering, doors and woodwork, become damaged or are destroyedthrough the negligence, carelessness or misuse of Tenant, its servants, agents,employees or anyone permitted by Tenant to be in the Building, or through it orthem, then the cost of the necessary repairs, replacements or alterations shallbe borne by Tenant who shall forthwith pay the same on demand to Landlord asAdditional Rent. Landlord shall have the exclusive right, but not theobligation, to make any repairs necessitated by such damage.

##  

## 6.2                                 Maintenance. Tenant shallkeep the Premises in as good order, condition and repair as when they wereentered upon. If Tenant fails to keep the Premises in such good order,condition and repair as required hereunder to the satisfaction of Landlord,Landlord may restore the Premises to such good order and condition and makesuch repairs without liability to Tenant for any loss or damage that may accrueto Tenant’s property or business by reason thereof, and upon completionthereof, Tenant shall pay to Landlord, as Additional Rent, upon demand, thecost of restoring the Premises to such good order and condition and of themaking of the repairs.

##  

## 6.3                                 Good Condition. Tenant shallleave the Premises at the end of each Business Day in a reasonable conditionfor the purpose of allowing the performance of Landlord’s cleaning serviceshereinafter described.

##  

## 6.4                                 Surrender. Tenant shalldeliver, at the expiration of the Lease Term hereof or upon sooner terminationof the Lease Term, the Premises in good repair as aforesaid and in a state ofbroom cleanliness.

##  

## 6.5                                 Broken Glass. Tenant shallpay on demand the cost of replacement with identical quality, size andcharacteristics of glass broken on the Premises, including outside windows anddoors of the perimeter of the Premises (including perimeter windows in theexterior walls) during the continuance of this Lease, unless the glass shall bebroken by Landlord, its servants, employees or agents acting on its behalf.

 

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# ARTICLE 7

#  

ASSIGNMENT AND SUBLETTING

 

## 7.1                                 Limitations. Except asspecifically set forth in **Sections 7.4**and **7.5** below, Tenant shall notassign or in any manner transfer this Lease or any estate or interest thereinthe Premises or any part thereof, or grant any license, concession or otherright to occupy any portion of the Premises without the prior written consentof Landlord which shall not be unreasonably withheld. In no event shall Tenanthave any right to assign if there exists any default under this Lease. Consentby Landlord to one or more assignments of this Lease or of the Premises shallnot operate as a waiver of Landlord’s rights under this section. Any suchassignment or subletting without Landlord’s consent shall be deemed void andconfer no rights upon a third party. Notwithstanding any assignment, Tenant andany guarantor of Tenant’s obligations under this Lease shall at all timesremain fully responsible and liable for the payment of the rental hereinspecified and for compliance with all other terms and conditions of this Lease.Without in any way limiting Landlord’s right to refuse to give consent,Landlord reserves the right in the event it does give consent to impose suchconditions upon its consent as Landlord deems necessary including therequirement of additional security which in Landlord’s business judgment shallinsure the state of the Premises and the rentals due under this Lease. Landlordshall also have the right in the event of such proposed assignment to terminatethis Lease in which event Landlord shall have the right, but not theobligation, to enter into a Lease with such proposed assignee.

##  

Neither this Lease nor any interest therein shall be assignable as tothe interest of Tenant by operation of law, without the written consent ofLandlord. A sale by Tenant of all or substantially all of its assets or all orsubstantially all of its stock, if Tenant is a publicly traded corporation, amerger of Tenant with another corporation; or the transfer of twenty-fivepercent (25%) or more of the stock of Tenant if Tenant’s stock is not publiclytraded; or the transfer of fifty percent (50%) or more of the beneficialownership interest in Tenant if Tenant is a partnership without the priorwritten consent of Landlord, shall constitute a prohibited assignmenthereunder, subject to the limitations set forth above. Notwithstanding theforegoing, such assignment shall not be prohibited if Tenant is not in defaulthereunder and the net worth of Tenant upon such assignment is not less than tenmillion dollars with not more than ten percent of such net worth attributableto good will. Prior to such assignment being deemed effective Tenant shalldeliver to Landlord current financials prepared in accordance with GAAP by anindependent certified public accountant.

 

## 7.2                                 Acceptance of Performance.  If this Lease be assigned or if the Premises or any part thereofbe sublet or occupied by anybody other than Tenant, Landlord may, after defaultby Tenant, collect the rent from the assignee, subtenant or occupant and applythe net amount collected to the rent herein reserved retaining the remainder,if any, for the account of Landlord, but no such assignment, subletting,occupancy or collection shall be deemed an acceptance of the assignee,subtenant or occupant as Tenant hereof, or constitute a release of Tenant fromfurther performance by Tenant of the covenants on the part of Tenant hereincontained.

 

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## 7.3                                 Document Review. All documentsutilized by Tenant to evidence any subletting or assignment for whichLandlord’s consent has been requested, shall be subject to prior reasonableapproval by Landlord or its attorney.  WhereverLandlord’s prior approval or consent to any assignment or sublease is requiredpursuant to this **Article 7**,then, in such event, Tenant shall submit to Landlord in writing, by noticedirected to Landlord’s Vice President of Leasing, at Landlord’s address, atleast fifteen (15) business days in advance of the date on which Tenant desiresto make such proposed assignment or sublease at least the following informationand materials (each, a “Tenant’s Request to Assign or Sublet”):  (a) all of the terms of said proposedassignment or sublease, including the proposed effective date thereof, (b) thename and address of each proposed assignee or subtenant, (c) the portion orportions of the Premises as to which the requested assignment or sublease isproposed to apply, and (d) in the case of a requested sublease, the form ofsuch proposed sublease.  Landlord mayrequire Tenant to obtain and submit current financial statements of anyproposed assignee or subtenant. Landlord shall then have a period of five (5) business days followingreceipt of Tenant’s Request to Assign or Sublet within which to notify Tenantin writing whether Landlord elects to (i) cancel and terminate this Lease as tothe space so affected as of the proposed effective date so specified by Tenantin its notice, in which event Tenant will be relieved of all obligations underthe Lease as to such space as the date so specified by Tenant; (ii) permitTenant to assign this Lease or sublet such space for the duration specified byTenant in its notice; or (iii) reject the proposed assignment or sublease onreasonable grounds.  If Landlord failsto notify Tenant in writing of Landlord’s election within five (5) businessdays of receipt from Tenant of all of the information and materials required inthis Paragraph, Landlord shall be deemed to have approved the proposedassignment or sublease.  If Tenantdesires to assign the Lease or sublease any portion of the Premises which underthe terms of this **Article 7**requires Landlord’s prior consent or approval, then Tenant shall pay Landlord’sactual and reasonable out-of-pocket expenses (including, without limitation,attorneys’ fees and expenses) paid to or incurred with any third party inconnection with responding to Tenant’s Request to Assign or Sublet.

##  

## 7.4                                 Subletting. Provided thatTenant is not in default hereunder, Tenant may from time to time sublet all orany portion of the Premises to any subtenant without Landlord’s prior consent,subject, however, to each of the following conditions being fully complied withby Tenant:

##  

### (a)                                  The subtenantmust use the Premises in compliance with the provisions set forth in **Article 9** and for no other purpose.

###  

### (b)                                 A fullyexecuted sublease shall be delivered by Tenant to Landlord within thirty (30)days of full execution thereof. Failure by Tenant to deliver a copy thereof toLandlord within the above time frame shall give Landlord, at its option, theright to terminate the sublease which right of termination shall be in additionto and not in limitation of any other right or remedy of Landlord.

###  

### (c)                                  Tenant, Gaiam,Inc., shall at all times remain primarily liable under the Lease. This right tosublet without Landlord’s prior consent shall be personal to Gaiam, Inc., andshall terminate if Gaiam, Inc. assigns its interest in the Lease in whole or inpart.

 

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### (d)                                 No subtenantmay further sublease or assign its interest in the sublease without both Gaiam,Inc.’s and Landlord’s prior written consent, which may be given or withheld intheir respective sole and absolute discretion.

###  

## 7.5                                 Affiliated Entity. Provided Tenant is not indefault of this Lease, which default has not been cured within any applicablecure period, Tenant may, without Landlord’s prior written consent assign theLease to:  (i) a subsidiary, affiliate,division or corporation controlled or under common control with Tenant; (ii) asuccessor corporation to Tenant by merger, consolidation, or nonbankruptcyreorganization; (iii) a purchaser of substantially all of Tenant’s assets andwho continues to operate as “Tenant” in the Premises (collectively, “PermittedAssignees”). Tenant acknowledges warrants and agrees that the PermittedAssignee shall assume all liabilities and obligations of Tenant under theLease. Tenant shall notify Landlord of all Permitted Assignee(s) within thirty (30)days of such assignment or subletting. For the purpose of this Lease, sale ortransfer of Tenant’s capital stock, including without limitation, a transfer inreorganization of Tenant and any sale through any public exchange, shall not bedeemed an assignment, subletting, or any other transfer of the Lease or thePremises, provided that the surviving entity in such transfer assumes the Leaseby operation of law.

##  

# ARTICLE 8

#  

TRANSFER BY LANDLORD AND LIMITED LIABILITY

 

## 8.1                                 Transfer of Landlord’s Interest. In the event of a sale,conveyance, or assignment by Landlord of Landlord’s interest in the BuildingComplex (other than a transfer for security purposes only), Landlord shall berelieved from and after the date specified in any such notice of transfer orassignment of all of Landlord’s obligations and liabilities accruing thereafteron the part of Landlord, and Tenant agrees to look only toward such assignee ortransferee of Landlord’s interest.

##  

## 8.2                                 Limited Liability of Landlord. Anything contained in thisLease to the contrary notwithstanding, Tenant agrees that Tenant shall looksolely to the estate of Landlord in the Building Complex for the collection ofany judgment (or other judicial process) requiring the payment of money byLandlord in the event of any default or breach by Landlord with respect to anyof the terms and provisions of this Lease to be observed or performed byLandlord, subject, however, to the prior rights of the holder of any mortgagecovering the Building Complex, and no other assets of Landlord, its partners,agents, employees, officers, or employees or officers of any of its partnersshall be subject to levy, execution or other judicial process for thesatisfaction of Tenant’s claim and Landlord shall not be liable for any suchdefault or breach except to the extent of Landlord’s estate in the BuildingComplex.

##  

## 8.3                                 Limited Liability of Tenant. Landlord agrees that thepersonal assets of Tenant’s employees, directors and officers shall not besubject to levy, execution, or other judicial process for the satisfaction ofLandlord’s claim against Tenant.

 

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# ARTICLE 9

#  

USE OF PREMISES

 

## 9.1                                 Use.  Except as expressly permittedby prior written consent of Landlord, the Premises shall not be used other thanfor a video production company and for other general business office purposes.Any other use shall require Landlord’s prior written consent, which shall notbe unreasonably withheld provided that such use complies with applicablerestrictive covenants and zoning, the use is consistent with a first classsuburban office building, and does not generate, store, use, or dispose of anyhazardous, toxic or infectious substances in or from the Premises. All use ofthe Premises shall comply with the terms of this Lease and all applicable laws,ordinances, regulations or other governmental ordinances from time to time inexistence.

##  

## 9.2                                 Compliance with Rules andRegulations. Tenant andemployees and all persons visiting or doing business with Tenant in thePremises shall be bound by and shall observe the reasonable Rules andRegulations as set forth in **Exhibit C**attached hereto and made a part hereof, which may, at Landlord’s solediscretion, be promulgated, amended, or expanded from time to time during theLease Term by Landlord relating to the Building, the Building Complex and/orthe Premises of which notice in writing shall be given to Tenant within thirty(30) days of such clause at which time they will become effective and all suchrules and regulations as changed from time to time shall be deemed to beincorporated into and form a part of this Lease. Any default in the performanceor observance of such rules and regulations shall be a default hereunder andLandlord shall have all remedies provided for in this Lease in the event ofdefault by Tenant.  Landlord however,shall not be responsible to Tenant for nonobservance by any other tenant orperson of any tenant or person of any such rules and regulations.Notwithstanding the above except as required by any governmental authority,law, or pursuant to recorded documents, Landlord shall not adversely impose anynew rules and regulations upon Tenant without Tenant’s consent, which shall notbe unreasonably withheld.

##  

## 9.3                                 Electronics Testing Lab. Subject to compliance with(i) all other provisions of this Lease, (ii) applicable zoning, use andbuilding code restrictions, (iii) insurance requirements, and (iv) anyrestrictions and requirements imposed by applicable recorded covenants andregulations, Tenant may use a portion of the Premises for an electronicstesting lab.

##  

# ARTICLE 10

#  

INSURANCE

 

10.1                           Tenant’s Insurance.

 

(a)                                  Tenantfurther covenants and agrees that throughout the Lease Term hereof, Tenant willcarry and maintain, at its sole cost and expense, the following types ofinsurance, in the amounts specified and in the form hereinafter provided for:

 

(i)                                     CommercialGeneral and Umbrella Liability Insurance covering the Premises and Tenant’s usethereof against claims for personal injury or death, property damage

 

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and product liability occurring upon, in or about the Premises, suchinsurance to be written on an occurrence basis (not a claims made basis), witha limit for each occurrence not less than $1,000,000 and to have generalaggregate limits of not less than $2,000,000, together with umbrella or excessliability insurance with limits of $15,000,000 for each occurrence and in theaggregate, for each policy year.  Theinsurance coverage required under this **Section 10.1(a)(i)** shall, in addition,extend to any liability of Tenant arising out of the indemnities provided forin **Section 14.1**and, if necessary, the policy shall contain a contractual endorsement to thateffect.  CGL insurance shall be writtenon ISO occurrence form CG 00 01 01 96 (or a substitute form providingequivalent or better coverage).  Thecertificate of insurance evidencing the Commercial General Liability andUmbrella Liability coverage shall specify all endorsements required herein,shall name all additional insureds via the CG 2011 AdditionalInsured-Managers/Lessors of Premises endorsement required by **Section 10.1(b)**below.

 

(ii)                                  Commercialall risk property insurance covering all of the items included in Tenant’sleasehold improvements, heating, ventilating and air conditioning equipmentmaintained by Tenant, trade fixtures, merchandise and personal property fromtime to time in, on or upon the Premises, and alterations, additions or changesmade by Tenant pursuant to **Section 15.1**, in an amount not lessthan one hundred percent (100%) of their full replacement value from time totime during the Term, providing protection against perils included within theISO Special Causes of Loss –Form insurance policy (or substitute formproviding, in Landlord’s reasonable discretion, equivalent or better coverage),together with insurance against sprinkler damage, vandalism and maliciousmischief.  Any policy proceeds from suchinsurance shall be held in trust by Tenant’s insurance company for the repair,construction and restoration or replacement of the property damaged ordestroyed unless this Lease shall cease and terminate under the provisions of **Section 21.1**of this Lease.  The certificate ofinsurance evidencing such coverage which is delivered by Tenant pursuant to **Section 10.1(b)**below shall designate Landlord and Wells Management, Inc. as loss payee astheir interests may appear with respect to the Building, all leaseholdimprovements, heating, ventilating and air-conditioning equipment and allfixtures (other than Tenant’s trade fixtures).

 

(iii)                               Workers’Compensation and Employer’s Liability insurance affording statutory coverageand containing statutory limits with the Employer’s Liability portion thereofto have minimum limits of $500,000.00.

 

(iv)                              INTENTIONALLYDELETED.

 

(v)                                 Automobile(and if necessary, commercial umbrella) liability insurance with a limit of notless than $5,000,000 for each accident. Such insurance shall insure liability arising out of any automobilesused in connection with Tenant’s business (including owned, hired, leased andnon-owned automobiles).

 

(b)                                 Allpolicies of the insurance provided for in **Section 10.1(a)** shall be issued inform acceptable to Landlord by insurance companies with a rating and financialsize of not less than A-X in the most current available “Best’s InsuranceReports”, and licensed to do business in the state in which Landlord’s Buildingis located.  Landlord, in its solediscretion,

 

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shall be permitted to temporarily waive or accept alternative coveragesfor Tenant’s insurance as required by the terms of this **Section 10.1**.  Each and every such policy:

 

(i)                                     shallname Landlord and Wells Management, Inc., Wells Real Estate Funds, Inc. andsubsidiary and affiliated companies, officers, directors and employees as anadditional insured (as well as any mortgagee of Landlord and any other partyreasonably designated by Landlord) and the coverage in **Section 10.1(a)(ii)**,above, shall also name Landlord as loss payee as its interest may appear withrespect to all leasehold improvements, heating, ventilating andair-conditioning equipment and fixtures (other than Tenant’s trade fixtures).

 

(ii)                                  shall(and a certificate thereof shall be delivered to Landlord at or prior to theexecution of the Lease) be delivered to each of Landlord and any such otherparties in interest within thirty (30) days after delivery of possession of thePremises to Tenant and thereafter within thirty (30) days prior to theexpiration of each such policy, and, as often as any such policy shall expireor terminate.  Renewal or additionalpolicies shall be procured and maintained by Tenant in like manner and to likeextent;

 

(iii)                               shallcontain a provision that the insurer will give to Landlord and such otherparties in interest at least thirty (30) days notice in writing in advance ofany material change, cancellation, termination or lapse, or the effective dateof any reduction in the amounts of insurance; and

 

(iv)                              shallbe written as a primary policy which does not contribute to and is not inexcess of coverage which Landlord may carry.

 

(c)                                  Anyinsurance provided for in **Section 10.1(a)** may be maintained bymeans of a policy or policies of blanket insurance, covering additional itemsor locations or insureds, provided, however, that:

 

(i)                                     Landlordand any other parties in interest from time to time designated by Landlord toTenant shall be named as an additional insured thereunder as its interest mayappear;

 

(ii)                                  thecoverage afforded Landlord and any such other parties in interest will not bereduced or diminished by reason of the use of such blanket policy of insurance;

 

(iii)                               anysuch policy or policies [except any covering the risks referred to in **Section 10.1(a)**]shall specify therein (or Tenant shall furnish Landlord with a writtenstatement from the insurers under such policy specifying) the amount of thetotal insurance allocated to Tenant’s improvements and property morespecifically detailed in **Section 22(a)**; and

 

(iv)                              therequirements set forth in this **Section 10.1** are otherwise satisfied.

 

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(d)                                 Notwithstandinganything to the contrary set forth hereinabove, Landlord and Tenant do herebywaive any and all claims against one another for damage to or destruction of realor personal property to the extent such damage or destruction can be covered byan ISO Causes of Loss – Special Form property insurance of the type describedin **Section 10.1(a)(ii)**above.  Each party shall also beresponsible for the payment of any deductible amounts required to be paid underthe applicable ISO Causes of Loss – Special Form property insurance carried bythe party whose property is damaged. These waivers shall apply if the damage would have been covered by acustomary ISO Causes of Loss – Special Form property insurance policy, even ifthe party fails to obtain such coverage. The intent of this provision is that each party shall look solely to itsinsurance with respect to property damage or destruction which can be coveredby ISO Causes of Loss – Special Form property insurance of the type describedin **Section 10.1(a)(ii)**.  To further effectuate the provisions of this**Section 10.1(d)**,  Landlord and Tenant both agree to providecopies of this Lease (and in particular, these waivers) to their respectiveinsurance carriers and to require such insurance carriers to waive all rightsof subrogation against the other party with respect to property damage coveredby the applicable ISO Causes of Loss – Special Form property insurance policy.

 

(e)                                  Tenant acknowledges andagrees that any contractors (and subcontractors of any tier) hired by Tenant todo work in the Premises will be required to carry sufficient insurance coverageinsuring the contractor (or subcontractor), Tenant and Landlord with termsequivalent to those specified in this **Section 10.1**, and Tenant shall providecertificates of such insurance to Landlord prior to commencing any work in thePremises.

 

## 10.2                           Landlord’s Insurance.  Landlord agrees to carry or cause to be carried during the termhereof Commercial General and Umbrella Liability Insurance coverage on theBuilding Complex providing coverage against claims for personalinjury or death, property damage and product liability occurring upon, in orabout the Building Complex, such insurance to be written on an occurrence basis(not a claims made basis), with a limit for each occurrence not less than$1,000,000 and to have general aggregate limits of not less than $5,000,000 foreach policy year.  The insurancecoverage required under this **Section 10.2**shall, in addition, extend to any liability of Landlord arising out of theindemnities provided for in **Section 14.2**and, if necessary, the policy shall contain a contractual endorsement to thateffect.  CGL insurance shall be writtenon ISO occurrence form CG 00 01 01 96 (or a substitute formproviding equivalent or better coverage). Landlord also agrees to carry during the term hereof insurance forfire, extended coverage, vandalism and malicious mischief, insuring theBuilding Complex (excluding foundations, excavations and other non-insurableitems) for the full insurable value thereof. Landlord may, but shall not beobligated to, take out and carry any other form or forms of insurance as it orthe mortgagees of Landlord may reasonably determine to be advisable.Notwithstanding any contribution by Tenant to the cost of insurance premiums,as provided in **Article 4**,Tenant acknowledges that it has no right to receive any proceeds from any suchinsurance policies carried by Landlord, and that such insurance will be for thesole benefit of Landlord, with no coverage for Tenant for any risk insuredagainst.

##  

## 10.3                           Subrogation. The parties hereto agreethat any and all fire, extended coverage and/or property damage insurance whichis required to be carried by either shall be endorsed with

 

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## asubrogation clause, substantially as follows: “This insurance shall not beinvalidated should the insured waive, in writing prior to a loss, any and all rightof recovery against any party for any special causes of loss,” and each partyhereto waives all claims for recovery from the other party, its officers,agents or employees for any loss or damage (whether or not such loss or damageis caused by negligence of the other party), and notwithstanding any provisionscontained in this Lease to the contrary, to any of its real or personalproperty insured under valid and collectible insurance policies to theextent of the collectible recovery under such insurance.

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# ARTICLE 11

#  

OBSERVANCE OF LAW

 

## 11.1                           Law.  Tenant shall comply with all provisions oflaw, including without limitation, federal, state, county and city laws,ordinances and regulations and any other governmental, quasi-governmental ormunicipal regulations, which shall impose any duty upon Landlord or Tenant, andwhich relate to the partitioning, equipment operation, alteration, occupancyand use of the Premises, and to the making of any repairs, replacements,alterations, additions, changes, substitutions or improvements of or to thePremises. Moreover, Tenant shall comply with all police, fire and sanitaryregulations imposed by any federal, state, county or municipal authorities, ormade by insurance underwriters, and to observe and obey all governmental andmunicipal regulations and other requirements governing the conduct of anybusiness conducted in the Premises.

##  

## 11.2                           Taxes. Tenant shall fully and timely pay allbusiness and other taxes, charges, rates, duties, assessments and license feeslevied, rates imposed, charged or assessed against or in respect of Tenant’soccupancy of the Premises or in respect of the personal property, tradefixtures, furniture and facilities of Tenant or the business or income ofTenant on and from the Premises, if any, as and when the same shall become due,and to indemnify and hold Landlord harmless from and against all payment ofsuch taxes, charges, rates, duties, assessments and license fees and againstall loss, costs, charges and expenses occasioned by or arising from any and allsuch taxes, rates, duties, assessments and license fees, and to promptlydeliver to Landlord for inspection, upon written request of Landlord, evidencesatisfactory to Landlord of any such payments.

 

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# ARTICLE 12

#  

WASTE AND NUISANCE

 

## 12.1                           Tenant shallnot commit, suffer or permit any waste or damage or disfiguration or injury tothe Premises or common areas in the Building or the fixtures and equipmentlocated therein or thereon, or permit or suffer any overloading of the floorsthereof and shall not place therein any safe, heavy business machinery,computers, data processing machines, or other heavy things without firstobtaining the consent in writing of Landlord and, if requested, by Landlord’ssuperintending architect, and not use or permit to be used any part of thePremises for any dangerous, noxious or offensive trade or business, and shallnot cause or permit any nuisance, noise or action in, at or on the Premises.Tenant shall not store, produce, maintain or dispose of any materials orsubstances in or about the Premises, the Building or Building Complex which isa regulated, toxic, hazardous or infectious material or substance under anyenvironmental statute, rule, regulation, or ordinance of any governmentalauthority.

##  

# ARTICLE 13

#  

ENTRY BY LANDLORD

 

## 13.1                           Landlord andits agents shall have the right to enter the Premises escorted by an employeeor representative of Tenant, at all reasonable times, upon prior verbal noticeto Tenant as set forth below for the purpose of examining or inspecting thesame, and any other services to be provided by Landlord to Tenant hereunder, toshow the same to prospective bona fide purchasers, lenders, investors ortenants of the Building (collectively, “Prospect Visits”), and to make suchalterations, repairs, improvements or additions, whether structural orotherwise, to the Premises or to the Building as Landlord may deem necessary ordesirable. Tenant shall reasonably cooperate with Landlord to permit suchaccess and provide an escort. Notices for entry shall be given to an officer orsupervisor of Tenant, as set forth on a written list delivered by Tenant toLandlord. Notwithstanding the above, Landlord shall have the right (but not theobligation) to enter unescorted and without notice for janitorial services (ifnot supplied by Tenant) or if Landlord reasonably believes that there exists anemergency.  Landlord may enter by meansof a master key without liability to Tenant except for any failure to exercisedue care for Tenant’s property and without affecting this Lease. Landlord shalluse reasonable efforts to give Tenant not less than 48 hours prior notice ofProspect Visits and will coordinate such entry with Tenant so as to notinterfere with any of Tenant’s film production including delaying or schedulingof such visits after business hours if reasonably requested by Tenant. If suchProspect Visits exceed ten (10) per calendar year then Landlord will pay toTenant for each additional visit during such calendar year a visitation feeequal to $50.00 per hour for each additional Prospect Visit during theapplicable calendar year, prorata for any partial hour of visitation.

 

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# ARTICLE 14

#  

INDEMNIFICATION OF LANDLORD

 

## 14.1                           Tenant’s Indemnity. Subject to the provisionsof **Section 10.3** of this Leaseand **Section 14.3** below,Tenant shall indemnify Landlord and save it harmless from and against any andall loss (including loss of rentals payable by Tenant or other tenants in theevent of loss either directly or indirectly caused by any act or omission ofTenant unless such loss is covered by Landlord’s rent abatement insurance),claims, actions, damages, liability and expenses in connection with loss of lifeand personal injury, hazardous substance or environmental claims, and damage toproperty arising from any occurrence in, upon or at Premises during the term ofthis Lease or any part thereof, or occasioned wholly or in part by any act oromission of Tenant, its agents, contractors, employees, servants, licensees, orconcessionaires or invitees or by anyone permitted to be on Premises by Tenant;however in no event shall Tenant indemnify Landlord or hold it harmless fromany negligence or misconduct of Landlord, its agents, employees or contractorsor Landlord’s invitees. In case Landlord shall be made a party to anylitigation commenced by or against Tenant (except litigation where Tenant isseeking relief from or a remedy against Landlord, its agents, employees, orcontractors), then Tenant shall protect and hold Landlord harmless and shallpay all costs, expenses and reasonable attorneys’ fees incurred or paid byLandlord in connection with such litigation whether or not such action iscontested or prosecuted to judgment. All personal property on Premises shall beat Tenant’s sole risk, and Landlord shall not be liable for any damage done toor loss of such personal property or for damage or loss suffered by Tenant,unless caused solely by Landlord’s negligence, subject to the provisions of **Sections 10.3** and **23.1**.

##  

## 14.2                           Landlord’s Indemnity. Subject to the provisionsof **Section 8.2, Section 10.3**and **Section 14.3** below,Landlord shall indemnify and hold Tenant harmless from and against any and allloss, claims, actions or damages, liability and expenses in connection withloss of life and personal injury, and damage to property arising from anyoccurrence occasioned wholly or in part by any act or omission of Landlord, itsagents, employees or contractors, except as set forth herein; however in noevent shall Landlord indemnify Tenant or hold it harmless from any negligenceof Tenant, its agents, employees or contractors. If Landlord has any liabilitypursuant to **Article 23**, thenthis indemnity shall apply to any claims or expenses of Tenant arising inconjunction with such liability; however this indemnity shall not change orincrease Landlord’s liability under **Article 23**.

##  

## 14.3                           Comparative Negligence. Subject to the provisionsof **Section 10.3** butnotwithstanding any indemnity provision or other provisions contained in thisLease to the contrary, if both Landlord’s and Tenant’s negligence (which shallinclude the agents, partners, contractors, invitees and employees of either, asapplicable) caused or contributed to any claim for damages for injury to personor property then neither party shall indemnify the other for such negligenceand each party shall be responsible for such claims pursuant to the provisionsof C.R.S. § 13-21-111 pertaining to comparative negligence, as amendedfrom time to time.

 

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# ARTICLE 15

#  

ALTERATIONS

 

## 15.1                           Alterations by Tenant.  Tenant shall not make, install or erect in or to the Premises anyinstallations, alterations, additions or partitions which require a building orsimilar permit and/or affect any structural portion of the Building includingthe roof or affect any of the Building systems including but not limited toHVAC, plumbing and electrical systems, without submitting the drawings andspecifications to Landlord and obtaining Landlord’s prior written consent ineach instance, which consent may not be unreasonably withheld.  Furthermore, Tenant shall obtain Landlord’sprior written consent to any change or changes in such drawings orspecifications submitted as aforesaid, subject to the payment of the cost toLandlord of having its architects and/or consultants review such plans andchanges thereto prior to proceeding with any work based on such drawings orspecifications. All such work shall be performed free and clear of allmechanics’s liens and Landlord shall have no liability for the performance ofsuch work, notwithstanding its consent to any plans and specifications.PROVIDED NEVERTHELESS that Landlord may, at its option, at Tenant’s expense,require that Landlord’s contractors be engaged for any mechanical or electricalwork. Without limiting the generality of the foregoing, any work performed byor for Tenant shall be performed by competent workmen whose labor union affiliationsare not incompatible with those of any workmen who may be employed in theBuilding Complex by Landlord, its contractors or subcontractors and all workshall be subject to the inspection and reasonable review and approval byLandlord and/or its consultants. In addition to the above, all contractors andsubcontractors must meet Landlord’s specifications, as solely determined byLandlord, for minimum requirements for insurance, bonds, quality of work,experience and such other reasonably applicable factors. Tenant shall submit toLandlord’s supervision over construction, shall provide Landlord upon requestwith financial assurances prior to the commencement of alterations, andpromptly pay to Landlord’s or Tenant’s subcontractors, as the case may be, whendue, the costs of all such work and of all materials, labor and servicesinvolved therein and of all decoration and all changes in the Building, itsequipment or services necessitated thereby. Tenant covenants that Tenant will not suffer or permit during the Termhereof any mechanics’ or other liens for work, labor, services or materialsordered by Tenant or for the cost of which Tenant may be in any way obligated,to attach to the Premises or to the Building Complex and that whenever and sooften as any such liens shall attach or claims therefor shall be filed, Tenantshall, within thirty (30) days after Landlord has notice of the filing of theclaim for lien, procure the discharge thereof by payment or by giving securityor in such other manner as is or may be required or permitted by law or whichshall otherwise satisfy Landlord and/or Landlord’s lender. Tenant shall, at itsown cost and expense, take out or cause to be taken out any additionalinsurance or bonds reasonably required by Landlord to protect the Landlord’sand Tenant’s interest during the period of alteration.

##  

At least five (5) days prior to the commencement of any work permittedto be done by persons requested by Tenant on the Premises, Tenant shall notifyLandlord of the proposed work and the names and addresses of the personssupplying labor and materials for the proposed work so that Landlord may availitself of the provisions of statutes such as Section 38-22-105(2) of theColorado Revised Statutes (1973). During any such work on the Premises, Landlord, or its

 

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representatives, shall have the right to go upon and inspect thePremises at all reasonable times, and shall have the right to post and keepposted thereon notices such as those provided for by Section 38-22-105(2)C.R.S. (1973) or to take any further action which Landlord may deem to beproper for the protection of Landlord’s interest in the Premises.

 

## 15.2                           Alterations by Landlord.  Landlord hereby reserves the right at any time and from time totime to make changes in, additions to, subtractions from or rearrangements ofthe Building Complex, including, without limitation, all improvements at anytime thereof, all entrances and exits thereto, and to grant, modify andterminate easements or other agreements pertaining to the use and maintenanceof all or parts of the Building, including, but not limited to, the entrancefoyer and lobby, and the common corridors and to make changes or additions tothe pipes, conduits, ducts, utilities and other necessary building services inthe Premises which serve other portions of the Building, provided that prior tothe Commencement Date, Landlord may alter the Premises to the extent foundnecessary by Landlord to accommodate changes in construction design orfacilities including major alterations but provided always that the Premises,as altered, shall be in all material aspects comparable to the Premises asdefined herein. Landlord shall not unreasonably obstruct or interrupt Tenant’saccess to the Premises and in such event Landlord shall provide alternativeaccess during all business hours. If Landlord elects to block Tenant’s accessduring non-business hours for non-emergencies, then Landlord shall reasonablycoordinate same with Tenant. Notwithstanding the provision set forth above,Landlord agrees during the initial term, provided Tenant is not in default, notto materially change the character or configuration of the first floor lobby ofthe Building without Tenant’s consent which will not be unreasonably withheldor delayed.

##  

# ARTICLE 16

#  

SIGNS AND ADVERTISING

 

## 16.1                           Signs Generally.  Tenant shall not install, paint, display, inscribe, place oraffix any sign, picture, advertisements, notice, lettering or direction on anypart of the Building Complex or in the interior of the Premises or otherportion of the Building.  Landlord willprescribe a uniform pattern of identification signs for tenants to be placed onthe outside corridor wall which is near the door leading into the Premises andother than such identification signs, Tenant shall not install, paint, display,inscribe, place or affix, or otherwise attach, any sign, picture,advertisement, notice, lettering or direction on the inside or outside of thePremises for exterior view without the written consent of Landlord.

##  

## 16.2                           Directory Signage.  Landlord shall at Landlord’s cost install directory signage forTenant in the lobby, which causes Tenant’s name “Gaiam, Inc.” to be readilyvisible upon entry to the main lobby of the Building and which identifiesTenant as being on the second and third floors.  At Tenant’s request and at Tenant’s cost, Landlord agrees to addthe name or names and corresponding suite numbers of any assignee or subtenantof Tenant permitted or approved pursuant to **Article 7**hereof to the directory signage in main lobby of the Building.

##  

16.3                           MonumentSign.  Subject expressly to allterms, conditions, restrictions, limitations, and requirements imposed by allapplicable governmental entities having jurisdiction

 

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and all private restrictions encumbering the Property (including,without limitation, that certain Amended and Restated Master Declaration ofCovenants, Conditions and Restrictions for Interlocken, recorded January 24,1990, under Reception No. 1025034, Boulder County, Colorado publicrecords, as amended) (said Amended and Restated Master Declaration, as amended,is herein referred to as the “Master Declaration”), and so long as Tenant isleasing and occupying more than fifty percent (50%) of the Building, and is notin default of its obligations under this Lease (after the expiration of anyapplicable notice and cure period), Tenant shall have the right, at Tenant’ssole cost and expense, to design, manufacture, install and maintain one (1)free-standing, internally lighted monument sign to be located within theBuilding Complex; provided, however, if such a monument sign is permitted underapplicable law and all private restrictions (including, without limitation, theMaster Declaration), and if identification signs or panels for more than onetenant are permitted on such monument sign, then and in such case, Landlordagrees to share with Tenant in the cost of such monument sign on a proratabasis, such prorata share to be determined based on the ratio that the numberof individual panels permitted to be displayed on such monument signidentifying individual tenants are actually used by Landlord for tenants of theBuilding other than Tenant (and its affiliates) bears to the total number ofsuch panels permitted on any such monument sign (including the panel or panelsused to identify Tenant or any of its affiliates), and Landlord shall beentitled to place at its expense one or more sign panels on such monument signidentifying the name(s) of any other tenant occupying the Building.  Tenant’s right to install such monument signon the Land shall be conditioned upon Tenant obtaining and delivering toLandlord evidence satisfactory to Landlord that all necessary approvals for theinstallation of such monument sign from the applicable governmental authoritiesand all necessary approvals of the Interlocken architectural control committeeunder the Master Declaration have been obtained.  The exact location of such monument sign, and the size, design,color and method of illumination of such monument sign shall be subject to theprior written approval of Landlord, which approval shall not be unreasonablywithheld.  Tenant agrees that any suchmonument sign shall be designed to utilize first-class construction materialsand shall be architecturally compatible with the Building.  For so long as the Rentable Area leased byTenant in the Building shall exceed the Rentable Area of any other tenant ofthe Building, Tenant shall have the right to place Tenant’s sign panel andassociated graphics on such monument sign in the top position on such monumentsign.  If any other tenant shall leasemore Rentable Area in the Building than is leased by Tenant, the location ofeach tenant’s identification sign on such monument shall be determined on thebasis of the amount of Rentable Area in the Building leased by each suchtenant.  Tenant further agrees thatTenant shall remove any sign panel, graphics or letters identifying Tenant (orits affiliates) from such monument sign at Tenant’s cost upon the expiration orearlier termination of this Lease; and if such removal causes any damage ordefacement to such monument sign, Tenant shall be responsible for the repair ofsame.  Such obligations shall surviveany expiration or termination of this Lease.

 

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# ARTICLE 17

#  

SUBORDINATION TO MORTGAGES AND DEEDS OF TRUST

 

## 17.1                           This Lease andthe rights of Tenant hereunder shall be and are hereby made subject andsubordinate to the lien of any mortgages or deeds of trust now or hereafterexisting against the Building Complex and to all renewals, modifications,consolidations, replacements and extensions thereof and to all advances made,or hereafter to be made, upon the security thereof. Although such subordinationshall be self-operating, Tenant, or its successors in interest, shall uponLandlord’s request, execute and deliver upon the demand of Landlord any and allinstruments desired by Landlord, subordinating, in the manner reasonablyrequested by Landlord, this Lease to any such mortgage or deed of trust. Landlordis hereby irrevocably appointed and authorized as agent and attorney-in-fact ofTenant to execute all such subordination instruments in the event Tenant failsto execute said instruments within fifteen (15) days after notice from Landlorddemanding the execution thereof.

##  

Shouldany mortgage or deed of trust affecting the Building Complex be foreclosed,then:

 

### (a)                                  the liabilityof the mortgagee, beneficiary or purchaser at such foreclosure sale shall existonly so long as such mortgagee, beneficiary or purchaser is the owner of theBuilding Complex and such liability shall not continue or survive after furthertransfer of ownership; and

###  

### (b)                                 Tenant shall bedeemed to have attorned, as Tenant under this Lease, to the purchaser at anyforeclosure sale thereunder, and this Lease shall continue in full force andeffect as a direct lease between and binding upon Tenant and such purchaser atany foreclosure sale.

###  

### As used in this **Article 17**,“mortgagee” and “beneficiary” shall include successors and assigns of any suchparty, whether immediate or remote, the purchaser of any mortgage or deed oftrust, whether at foreclosure or otherwise, and the successors, assigns andmortgagees and beneficiaries of such purchaser, whether immediate or remote.

###  

### Landlord, at the written request of Tenant, agrees to request anymortgagee or beneficiary to enter into a non-disturbance agreement with Tenant,in a form satisfactory to such mortgagee or beneficiary, stating that Tenant’sright to the continued use and possession of the Premises shall be under thesame terms and conditions as set forth in this Lease provided that at such timeTenant is not in default of its obligations herein. Landlord makes norepresentations or warranties that such non-disturbance agreement will be enteredinto by any beneficiary or mortgagee, however, the self-operative subordinationof this Lease and attornment by Tenant is in such event conditioned upon themortgagee or beneficiary not disturbing Tenant’s right under this Lease,provided that Tenant is not in default hereof.

###  

# ARTICLE 18

#  

ESTOPPEL CERTIFICATE/FINANCIAL INFORMATION

 

## 18.1                           Estoppel Certificate. Tenant agrees that it willfrom time to time, upon request by Landlord, execute and deliver to Landlordwithin ten (10) days after demand therefor an estoppel certificate onLandlord’s reasonable form certifying that this Lease is unmodified and in fullforce and effect (or if there have been modifications, that the same is in fullforce and effect as so modified). Notwithstanding the above, if during such ten(10) day period an authorized

 

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## representativeor officer of Tenant is not available in Colorado to execute the estoppelcertificate, then Tenant shall not be in default if it returns the executedcertificate within twenty (20) days of demand therefor.

##  

## 18.2                           Financial Information.  Tenant shall, upon Landlord’s written request and upon Tenant’sreceipt from Landlord of a copy of a fully executed letter of interest whichevidences either a bona fide proposed sale of or refinancing with a federallychartered lending institution, pension fund, insurance company or other sourceof capital for the Building Complex, deliver to such lender or purchaser a copyof Tenant’s most recent financial statement, which annual financial statementshall be prepared and reviewed by an independent certified public accountant noless often than once per year in accordance with generally accepted accountingprincipals (“GAAP”), provided, however, Landlord shall not be required toprovide Tenant with written evidence of a proposed refinancing for the firsttwo refinancing requests made by Landlord during the term of this Lease inconjunction with a proposed refinancing of the Building Complex. Except in themanner specifically set forth in the preceding sentence, Landlord shall notinclude Tenant’s financial statements in any attempt to obtain a purchaser for,or refinancing on, the Building Complex. Tenant agrees that any letter ofinterest shall be confidential as to the name of the lender and/or purchaserand as to the terms, if any, contained in such letter of interest, and Tenantagrees to execute a reasonable confidentiality agreement if requested byLandlord. Tenant shall have the right to require a reasonable confidentialityagreement from such lender or purchaser concerning such financials, if Tenantis not a public company. Furthermore, such lender or purchaser may, if it hasreasonable questions about matters contained in the financials, address suchquestions in writing to the president of Tenant, and the president shallreasonably and promptly cooperate with such lender or purchaser with respect tothe responses to the questions.

##  

# ARTICLE 19

#  

QUIET ENJOYMENT

 

## 19.1                           Subject to theterms and provisions of this Lease, Landlord covenants and agrees that Tenantshall peaceably and quietly enjoy the Premises and Tenant’s rights hereunderduring the term hereof, without hindrance by Landlord.

 

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# ARTICLE 20

#  

FIXTURES

 

## 20.1                           Any or allinstallations, alterations, additions, partitions and fixtures in or upon thePremises other than Tenant’s trade fixtures, work stations with movable walls,mounted video screens, raised platforms and cables beneath the raisedplatforms, which are located upon the Premises, whether placed there by Tenantor Landlord, shall, immediately upon such placement, become the property ofLandlord without compensation therefor to Tenant. Notwithstanding anythingherein contained, Landlord shall be under no obligation to repair, maintain orinsure such installations, alterations, additions, partitions and fixtures oranything in the nature of a leasehold improvement made or installed by or onbehalf of Tenant. Landlord may elect that any or all installations made orinstalled by or on behalf of Tenant be removed at the end of the Lease Termand, if Landlord so elects, it shall be Tenant’s obligation to restore thePremises to the conditions they were in previous to such alterations,installations, partitions and fixtures on or before the termination of thisLease. Such removal and restoration shall be at the sole expense of Tenant.

##  

# ARTICLE 21

#  

DAMAGE OR DESTRUCTION

 

## 21.1                           Casualty. In the eventthat the Building should be totally destroyed by fire, tornado or othercasualty, or should be so damaged that rebuilding or repairs cannot becompleted within one hundred and eighty (180) days after the date of suchdamage, Landlord may, at its option, terminate this Lease in which event therent shall be abated during the unexpired portion of this Lease effective withthe date of such damage, or Landlord may proceed to rebuild the Building andthe Premises. If the damage prohibits Tenant’s use of the Premises, cannot berepaired within one hundred and eighty (180) days and was not caused by Tenant,then Tenant can elect to terminate this Lease by written notice to Landlordreceived within sixty (60) days of the date of damage. In the event theBuilding should be damaged by fire, tornado or other casualty, but only to suchextent that rebuilding or repairs in Landlord’s reasonable estimation can becompleted within one hundred and eighty (180) days after the date of suchdamage, or if the damage cannot be repaired within such time frame but Landlorddoes not elect to terminate this Lease, in either such event, Landlord shall,within sixty (60) days after the date of such damage commence to rebuild orrepair the Building and shall proceed with reasonable diligence to restore theBuilding to substantially the same condition in which it was immediately priorto the happening of the casualty, except that Landlord shall not be required torebuild, repair or replace any part of the partitions, fixtures and otherimprovements which may have been placed by Tenant or other tenants within theBuilding and rent shall equitably abate from the date of damage until suchdamage is repaired if such casualty results in damage to Tenant’s Premises orprohibits its access to the Premises or use thereof. In the event any mortgageeunder a deed of trust, security agreement or mortgage on the Building shouldrequire that the insurance proceeds be used to retire the mortgage debt,Landlord shall have no obligation to rebuild and if Landlord

 

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## soelects, this Lease shall terminate upon notice to Tenant. Unless otherwiseprovided in this Lease, any insurance which may be carried by Landlord orTenant against loss or damage to the Building or to the Premises shall be forthe sole benefit of the party carrying such insurance and under its solecontrol.

##  

## 21.2                           Casualty Caused by Tenant.  If fire or other casualty causing injury to the Premises or otherparts of the Building shall have been caused by the negligence or misconduct ofTenant, its agents, servants or employees, or by any other persons entering theBuilding under express or implied invitation of Tenant, such injury may bereasonably repaired by Landlord at the reasonable expense of Tenant.

##  

# ARTICLE 22

#  

CONDEMNATION

 

## 22.1                           Eminent Domain. If any partof the Rentable Area of the Premises is taken by eminent domain, or byconveyance in lieu thereof then this Lease, at the option of either partyevidenced by notice to the other given within thirty (30) days from such takingor conveyance, shall forthwith cease and terminate entirely. In the event ofsuch termination of this Lease, then rental shall be due and payable to theactual date of such termination. If neither party terminates this Lease, thisLease shall cease and terminate as to that portion of the Premises so taken asof the date of such taking, and the rental thereafter payable under this Leaseshall be abated prorata from the date of such taking in an amount by which thatportion of the Rentable Area of the Premises so taken shall bear to theRentable Area of the Premises prior to such taking. If any part of the BuildingComplex shall be taken by eminent domain, or by conveyance in lieu thereof, andif such taking substantially interferes with Landlord’s ownership or use of theBuilding Complex, Landlord, at its option, may upon thirty (30) days’ notice toTenant, terminate this Lease as of the date of such taking.

##  

## 22.2                           Damages. Allcompensation awarded for any taking (or the proceeds of private sale in lieuthereof) of the Premises or Building Complex shall be the property of Landlordand Tenant hereby assigns its interest in any such award to Landlord; provided,however, Landlord shall have no interest in any award made to Tenant for thetaking of Tenant’s fixtures and other personal property or moving expenses if aseparate award for such items is made to Tenant.

##  

## 22.3                           Restoration. If bothLandlord and Tenant elect not to terminate this Lease, Tenant shall remain inthat portion of the Premises which shall not have been appropriated or taken asherein provided, and Landlord agrees, at Landlord’s sole cost and expense (notto exceed the amount of condemnation proceeds received by Landlord), to, assoon as reasonably possible, restore the remaining portion of the Premises to acomplete unit of like quality and character as existed prior to suchappropriation or taking.

 

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# ARTICLE 23

#  

LOSS AND DAMAGE AND DELAY

 

## 23.1                           Loss and Damage. Landlordshall not be liable or responsible in any way for:

##  

### (a)                                  any death orinjury arising from or out of any occurrence in, upon or at the BuildingComplex or for damage to property of Tenant or others located on the Premises,nor shall it be responsible in any event for damage to any property of Tenantor others from any cause whatsoever, unless such damage, loss, injury or deathresults from the intentional misconduct or sole negligence of Landlord, itsagents, servants or employees. Without limiting the generality of theforegoing, Landlord shall not be liable for any injury or damage to persons orproperty resulting from fire, explosion, falling plaster, steam, gas,electricity, water, rain, snow or leaks from any part of the Premises or fromthe pipes, appliances, plumbing works, roof, street, or subsurface of any flooror ceiling or from any other place or because of dampness or climaticconditions from any other cause of whatsoever kind. Landlord shall not beliable for any damage whatsoever caused by any other tenant or persons in orabout the Building Complex, or by an occupant of adjacent property thereto, orthe public, or construction of any private, public or quasi-public work. Allproperty of Tenant kept or stored on the Premises shall be kept or stored atthe risk of Tenant only and Tenant shall indemnify Landlord in the event of anyclaims arising out of damages to the same, including any subrogation claim byTenant’s insurers;

###  

### (b)                                 any act oromission (including theft, malfeasance or negligence) on the part of any agent,contractor or person from time to time employed by Landlord to perform janitorservices or security services, or repairs or maintenance services, in or aboutthe Premises or the Building; or

###  

### (c)                                  loss or damage,however caused, to money, securities, negotiable instruments, papers or othervaluables of Tenant.

###  

## 23.2                           Delays.  Whenever and to the extent that Landlordshall be unable to fulfill, or shall be delayed or restricted in thefulfillment of, any obligation hereunder in respect to the supply of orprovision for, any service or utility or the doing of any work or the making ofany repairs by reason of being unable to obtain the material, goods, equipment,service, utility or labor required to enable it to fulfill such obligation orby reason of any statute, law or any regulation or order passed or madepursuant thereto or by reason of the order or direction of any governmental orquasi-governmental administrator, controller or board, or any governmentaldepartment or officer or other authority, or by reason of not being able toobtain any permission or authority required thereby, or by reason of any othercause beyond its control, whether of the foregoing character or not, Landlordshall be entitled to extend the time for fulfillment of such obligation by atime equal to the duration of such delay or restriction, and Tenant shall notbe entitled to compensation for any inconvenience, nuisance or discomfortthereby occasioned.

 

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# ARTICLE 24

#  

DEFAULT AND REMEDIES

 

## 24.1                           Default by Tenant. The following events shallbe deemed to be events of default by Tenant under this Lease:

##  

### (a)                                  Tenant shallfail to pay any installment of rent or any other sum due to Landlord withinfive (5) days of receipt of written notice of such nonpayment.

###  

### (b)                                 Tenant shallfail to comply with any term, provision or covenant of this Lease, other thanpayment of rent or other sums due to Landlord, and shall not cure such failurewithin fifteen (15) days after written notice thereof to Tenant or if suchdefault cannot reasonably be cured within fifteen (15) days then Tenant shallnot be in default so long as it has commenced to cure within fifteen (15) daysand is diligently prosecuting same to completion.

###  

### (c)                                  Tenant or anyguarantor of Tenant’s obligations under this Lease shall die, cease to exist asa corporation or partnership or be otherwise dissolved or liquidated or becomeinsolvent, or shall make a transfer in fraud of creditors, or shall make anassignment for the benefit of creditors, or is otherwise unable to pay itsdebts as they come due.

###  

### (d)                                 Tenant or anyguarantor of Tenant’s obligations under this Lease shall file a petition underany section or chapter of the national bankruptcy act as amended or underany similar law or statute of the United States or any state thereof; or Tenantor any guarantor of Tenant’s obligations under this Lease shall be adjudgedbankrupt or insolvent in proceedings filed against Tenant or any guarantor ofTenant’s obligations under this Lease.

###  

### (e)                                  A receiver ortrustee shall be appointed for all of the Premises or for all or substantiallyall of the assets of Tenant or any guarantor of Tenant’s obligations under thisLease.

###  

### (f)                                    Tenant shallabandon or vacate any portion of the Premises, in whole or in part.

###  

### (g)                                 Tenant assigns orsublets in violation of the provisions of this Lease.

###  

## 24.2                           Remedies of Landlord. Upon the occurrence of anysuch events of default, Landlord shall have the option to pursue any one ormore of the following remedies without any notice or demand whatsoever exceptas required by applicable law:

##  

### (a)                                  Terminate thisLease, in which event Tenant shall immediately surrender the Premises toLandlord, and if Tenant fails to do so, Landlord may, without prejudice to anyother remedy which it may have for possession or arrearages in rent, enter uponand take possession of the Premises and expel or remove Tenant and any otherperson who may be occupying such Premises or any part thereof, by force ifnecessary, without being liable for prosecution of any claim of damagestherefor.

 

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### (b)                                 Enter upon andtake possession of the Premises and expel or remove Tenant and any other personwho may be occupying such Premises or any part thereof, by force if necessarypursuant to applicable law, without being liable for prosecution or any claimfor damages therefor (except for acts in violation of law), and relet thePremises and receive the rent therefor.

###  

### (c)                                  Enter upon thePremises, by force if necessary pursuant to applicable law, without beingliable for prosecution or any claim for damages therefor (except for acts inviolation of law), and do whatever Tenant is obligated to do under the terms ofthis Lease; and Tenant agrees to reimburse Landlord on demand for any expenses whichLandlord may incur in thus effecting compliance with Tenant’s obligations underthis Lease, and Tenant further agrees that Landlord shall not be liable for anydamages resulting to Tenant from such action, whether caused by the negligenceof Landlord or otherwise.

###  

### (d)                                 Alter all locksand other security devices at the Premises without terminating this Lease.

###  

### Exercise by Landlord of any one or more of the remedieshereunder granted or otherwise available shall not be deemed to be anacceptance of surrender of the Premises by Tenant, whether by agreement or byoperation of law, it being understood that such surrender can be effected onlyby the written agreement of Landlord and Tenant. No such alteration of locks orother security devices and no removal or other exercise of dominion by Landlordover the property of Tenant or others at the Premises shall be deemedunauthorized or constitute a conversion, Tenant hereby consenting, after anyevent of default, to the aforesaid exercise of dominion over Tenant’s propertywithin the Premises. All claims for damages by reason of such reentry and/orrepossession and/or alteration of locks or other security devices are herebywaived, as all claims for damages by reason of any distress warrant, forcibledetainer proceedings, sequestration proceedings or other legal process, to theextent permitted by law. Tenant agrees that any reentry by Landlord may bepursuant to judgment obtained in forcible detainer proceedings or other legalproceedings or without the necessity for any legal proceedings, as Landlord mayelect, and Landlord shall not be liable in trespass or otherwise, to the extentpermitted by law.

###  

### In the event Landlord elects to terminate the Lease by reason of anevent of default then notwithstanding such termination, Tenant shall be liablefor and shall pay to Landlord, at the address specified for notice to Landlordherein, the sum of all rental and other indebtedness accrued to date of suchtermination, plus, as damages, an amount equal to the total rental hereunderfor the remaining portion of the Lease term (had such term not been terminatedby Landlord prior to the date of expiration as stated herein), less thereasonable rental value thereof, plus a sum equal to any other damages incurredby Landlord by reason of such default.

###  

Inthe event that Landlord elects to repossess the Premises without terminatingthe Lease, then Tenant shall be liable for and shall pay to Landlord at theaddress specified for notice to Landlord herein, all rental and other indebtednessaccrued to the date of such repossession, plus rent required to paid by Tenantto Landlord during the remainder of the Lease Term until the

 

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dateof expiration of the term as stated herein diminished by any net sumsthereafter received by Landlord through reletting the Premises during suchperiod (after deducting expenses incurred by Landlord as provided below). In noevent shall Tenant be entitled to any excess of any rental obtained by relettingover and above the rental herein reserved. Actions to collect amounts due byTenant to Landlord under this subparagraph may be brought from time to time, onone or more occasions, without the necessity of Landlord’s waiting untilexpiration of the Lease term.

 

Inthe event of any default or breach by Tenant, or threatened or anticipatorybreach or default, Tenant shall also be liable and shall pay to Landlord, inaddition to any sums provided to be paid above, broker’s fees incurred byLandlord in connection with reletting the whole or any part of the Premises;the costs of removing and storing Tenant’s or other occupants’ property; thecosts of repairing, altering, remodeling, or otherwise putting the Premisesinto condition acceptable to a new tenant or tenants; and all reasonableexpenses incurred by Landlord in enforcing or defending Landlord’s rightsand/or remedies, including reasonable attorney’s fees whether suit was actuallyfiled or not.

 

Inthe event of termination or repossession of the Premises for an event ofdefault, Landlord shall not, except as set forth herein, have any obligation torelet or attempt to relet the Premises or any portion thereof, or to collectrental after reletting; and in the event of reletting, Landlord may relet the wholeor any portion of the Premises for any period to any tenant and for any use orpurpose. Landlord agrees to use reasonable efforts to mitigate its damages;however, Landlord shall have no obligation to expend sums, give the Premisespriority over other vacant space nor to lease the space on less than marketterms.

 

IfTenant shall fail to make any payment or cure any default hereunder within thetime herein permitted, Landlord, without being under any obligation to do soand without thereby waiving such default, may make such payment and/or remedysuch other default for the account of Tenant (and enter the Premises for suchpurpose), and thereupon Tenant shall be obligated to, and hereby agrees to payLandlord upon demand all costs, expenses and disbursements, includingreasonable attorney’s fees incurred by Landlord in taking such remedial action.

 

Landlordis entitled to accept, receive in cash or deposit any payment made by Tenantfor any reason or purpose or in any amount whatsoever, and apply the same atLandlord’s option to any obligation of Tenant and the same shall not constitutepayment of any amount owed except that to which Landlord has applied the same.No endorsement or statement on any check or letter of Tenant shall be deemed anaccord and satisfaction or recognized for any purpose whatsoever. Theacceptance of any such check or payment shall be without prejudice toLandlord’s rights to recover any and all amounts owed by Tenant hereunder andshall not be deemed to cure any other default nor prejudice Landlord’s rightsto pursue any other available remedy.

 

## 24.3                           Landlord’s Default. Landlord shall not bedeemed in default hereunder unless Tenant shall have given Landlord writtennotice of such default specifying such default with particularity and Landlordshall thereupon have thirty (30) days in which to cure any default unless suchdefault cannot reasonably be cured within such period wherein Landlord shallnot be

 

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## indefault if it commences to cure the default within the thirty (30) day periodand diligently pursues completion of same. In the event of any default, Tenant agrees that its exclusive remedyshall be an action for damages.

##  

## 24.4                           Personal Property Lien.  Intentionally Deleted.

##  

24.5                           No Consequential Damages.  Inany action by Landlord or Tenant against the other for damages arising from adefault under this Lease, such damages shall be limited to the actualcompensatory (as opposed to consequential) damages suffered or incurred by thenondefaulting party, except in the case of a default arising from the grossnegligence of Landlord or Tenant.

 

# ARTICLE 25

#  

HOLDING OVER

 

## 25.1                           If Tenant shallcontinue to occupy and continue to pay rent for the Premises after theexpiration of this Lease with or without the consent of Landlord, and withoutany further written agreement, Tenant shall be a tenant at sufferance at amonthly Base Rent equal to two hundred percent (200%) of the last full monthlyBase Rent payment due hereunder, and subject to all of the additional rentals,terms and conditions herein set out except as to expiration of the LeaseTerm.  The inclusion of thepreceding sentence shall not be construed as Landlord’s consent for Tenant tohold over.  There shall be no renewal ofthis Lease by operation of law.  Such holdingover may be terminated by Landlord or Tenant upon fifteen (15) days’ notice. Inthe event that Tenant fails to surrender the Premises upon termination orexpiration of this Lease or such tenancy at sufferance then Tenant shallindemnify Landlord against loss or liability resulting from any delay of Tenantin not surrendering the Premises, including, but not limited to, any amountsrequired to be paid to third parties who were to have occupied the Premises andany attorney’s fees related thereto.

##  

# ARTICLE 26

#  

NOTICE

 

## 26.1                           Notice.  Any notice, request, statement or otherwriting pursuant to this Lease shall be deemed to have been given if sent byregistered, certified mail or recognized receipted overnight mail service,postage prepaid, return receipt requested or delivered by hand to the party atthe addresses set forth below:

##  

| TENANT: |   | Gaiam,  Inc.                |
|---------|--------|-----------------------------|
|    |   | Suite  300                  |
|    |   | 360  Interlocken Boulevard  |
|    |   | Broomfield,  Colorado 80021 |
|    |   | Attention:  President  |

 

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| LANDLORD:        |   | Fund  IX, Fund X, Fund XI and REIT Joint Venture    |
|------------------|--------|-----------------------------------------------------|
|             |   | c/o  Wells Capital, Inc.                            |
|             |   | 6200  The Corners Parkway                           |
|             |   | Suite  250                                          |
|             |   | Atlanta,  Georgia  30092                       |
|             |   | Attention:  Vice President of Asset Management |
|             |   |                                                |
| with  a copy to: |   |                                                |
|             |   |                                                |
|             |   | Troutman  Sanders LLP                               |
|             |   | Bank  of America Plaza                              |
|             |   | Suite  5200                                         |
|             |   | 600  Peachtree Street, N.E.                         |
|             |   | Atlanta,  GA  30308-2216                       |
|             |   | Attention:  Leslie Fuller Secrest              |

 

andsuch notice shall be deemed to have been received by Landlord or Tenant, as thecase may be, on the earlier of actual receipt or the second business day afterthe date on which it shall have been so mailed.

 

## 26.2                           Change of Address. Any party may, by noticeto the other, from time to time, designate another address, which noticesmailed more than ten (10) days thereafter shall be addressed.

##  

# ARTICLE 27

#  

SECURITY DEPOSIT

 

## 27.1                           Security Deposit: Landlord and Tenantmutually acknowledge and agree that Landlord is holding the sum of Thirty-FiveThousand Seven Hundred Sixty-Three and No/100 Dollars ($35,763.00), which sumrepresents the amount previously deposited by Tenant with Landlord as asecurity deposit under the First Restated Lease (the “Security Deposit”).  Landlord shall be entitled to interminglesuch deposit with its own funds and to use same for such purposes as Landlordmay determine. In the event of default by Tenant in performing any of itsobligations under this Lease, Landlord may, in addition to any other right orremedy available to Landlord hereunder, use, apply, or retain all or any partof said Security Deposit for the payment of any unpaid rent or for any otheramount which Landlord may be required to expend by reason of the default ofTenant, including any damages or deficiency in the reletting of the Premises orany attorney’s fees associated therewith, regardless of whether the accrual ofsuch damages or deficiency occurs before or after an eviction. If a portion ofthe Security Deposit is used or applied by Landlord during the term hereof,Tenant shall, upon five (5) days written demand, deposit with Landlord anamount sufficient to restore the Security Deposit to its original amount (i.e.,$35,763.00).  Landlord shall return theSecurity Deposit (or that portion of the Security Deposit not previouslyapplied) within thirty (30) days after the later of expiration of the LeaseTerm or surrender by Tenant of the Premises without default.

 

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# ARTICLE 28

#  

MISCELLANEOUS PROVISIONS

 

## 28.1                           Captions. The captionsused herein are for convenience only and do not limit or amplify the provisionshereof. Whenever the singular is used the same shall include the plural, andwords of any gender shall include the other gender.

##  

## 28.2                           Waiver.  One or more waivers of any covenant, term orcondition of this Lease by either party should not be construed as a waiver ofa subsequent breach of the same covenant, term or condition. The consent orapproval by either party shall not be construed as a waiver of a subsequentbreach of the same covenant, term or condition. The consent or approval byeither party to or of any act by the other party requiring such consent orapproval should not be deemed to waive or render unnecessary consent to orapproval of any subsequent similar act.

##  

## 28.3                           Entire Agreement. This Leasecontains the entire agreement between the parties and no agreement shall beeffective to change, modify or terminate this Lease in whole or in part unlesssuch agreement is in writing and duly signed by the parties hereto.

##  

## 28.4                           Severability. The invalidityor unenforceability of any provision hereof shall not affect or impair anyother provision.

##  

## 28.5                           Modification. Should anymortgagee or beneficiary under a deed of trust require a modification of thisLease, which modification will not bring about any increased cost or expense toTenant or will in any way substantially change the rights and obligations ofTenant hereunder, then and in such event, Tenant agrees that this Lease may beso modified.

##  

## 28.6                           Governing Law. This Leaseshall be governed by and construed pursuant to the laws of the State ofColorado.

##  

## 28.7                           Successors and Assigns. The covenants andconditions herein contained shall inure to and bind the respective heirs,permitted successors, executors, administrators and assigns of the partieshereto, and the terms “Landlord” and “Tenant” shall include the permittedsuccessors and assigns of either such party, whether immediate or remote,except as otherwise specifically set forth in this Lease to the contrary.

##  

## 28.8                           Authorization to Execute. In the event Tenanthereunder shall be a corporation, the parties executing this Lease on behalf ofTenant hereby covenant and warrant that Tenant is a duly qualified corporationand all steps have been taken prior to the date hereof to qualify Tenant to dobusiness in the State of Colorado; all franchise and corporate taxes have beenpaid to date, and all future forms, reports, fees and other documents necessaryto comply with applicable laws will be filed.

##  

## 28.9                           Approval of Documents. Landlord’s approval ofTenant’s plans for work performed by Landlord or Tenant in the Premises shallcreate no responsibility or liability on the

 

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## partof Landlord for their completeness, design, sufficiency, or compliance with anylaws, rules, or regulations of governmental agencies or authorities.

##  

## 28.10                     Attorneys  Fees.  In the event of any dispute hereunder the prevailing party insuch action shall be entitled to its reasonable attorneys and costs in suchaction.

##  

## 28.11                     Use of Names.  Landlord shall not publish, relating to thisLease or in conjunction with the Building Complex the name “Gaiam, Inc.” or thename of any employee, officer or director of “Gaiam, Inc.” in any newsletter orsimilar publication, including press releases, without Tenant’s prior consent.Tenant shall not publish Landlord’s name or the name of any partner oraffiliated entity or officer of such entity or use the name of the BuildingComplex relating to this Lease or the Building Complex in any newsletter orsimilar publication, including press releases, without Landlord’s priorconsent. In the event either party is in default hereof, such defaultingparty’s only remedy shall be an action for actual damages (not consequential)arising from such default.  Theforegoing restrictions shall not apply to any disclosures of names by the otherparty to such party’s investors or as may be required by law or any regulationto which the disclosing party is subject or as otherwise may be required by lawor in any legal proceeding.

##  

## 28.12                     Security Card System. Tenant shall continue to have the right to operate, at its  sole cost, expense and risk, Tenant’s ownsecurity card system for the Premises. Tenant shall provide Landlord with a card key for emergency access tothe Premises.

##  

# ARTICLE 29

#  

SUBSTITUTION OF PREMISES

 

## 29.1                           INTENTIONALLY DELETED.

##  

# ARTICLE 30

#  

RECORDING

 

## 30.1                           Tenant agreesnot to place this Lease of record unless requested to execute a Memorandum ofLease by Landlord, which may, at Landlord’s option, be placed of record. Inaddition, if requested by Landlord, Tenant will execute a memorandum of leaseto be filed with the Colorado Department of Revenue on such form as may beprescribed by said department within ten (10) days after the execution of thisLease or any other such memorandum so that Landlord may avail itself of theprovisions of the statutes such as Section 39-22-604(7)(c) of the ColoradoRevised Statutes (1973).

##  

Anyrecording by Tenant without Landlord’s prior written consent shall at Landlord’soption be deemed a default pursuant to **Article 24** hereof and Landlord shallhave all of the rights and remedies set forth therein.

 

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# ARTICLE 31

#  

REAL ESTATE BROKER

 

## 31.1                           ColliersBennett & Kahnweller, Inc., a real estate broker licensed in the State ofColorado, has acted as agent for Landlord in this transaction and is to be paida commission by Landlord pursuant to a separate agreement.  Trammell Crow Services, Inc., a real estatebroker licensed in the State of Colorado, has acted as agent for Tenant in thistransaction and is to be paid a commission by Landlord pursuant to a separateagreement.  Landlord represents that ithas dealt with no other broker other than the broker(s) identified herein.  Landlord agrees that, if any other brokermakes a claim for a commission based upon the actions of Landlord, Landlordshall indemnify, defend and hold Tenant harmless from any such claim.  Tenant represents that it has dealt with nobroker other than the broker(s) identified herein.  Tenant agrees that, if any other broker makes a claim for acommission based upon the actions of Tenant, Tenant shall indemnify, defend andhold Landlord harmless from any such claim. Tenant will cause its broker to execute a customary lien waiver,adequate under the law of the state where the Project is located, to extinguishany lien claims such broker may have in connection with this Lease.

##  

# ARTICLE 32

#  

OPTION

 

## 32.1                           Option to Extend.  Tenant shall have an option to extend and renew the Lease as toall of the Premises (but not as to any portion or portions thereof) for one (1)additional term of five (5) years.  Inorder to exercise such option, Tenant shall notify Landlord in writing at leasttwo hundred seventy (270) days prior to the expiration of the LeaseTerm (i.e., by September 4, 2007) of its election to exercise theoption.  If Tenant elects not to extendor fails to timely exercise its option, time being of the essence, the optionshall automatically terminate and be of no further force and effect and thisLease shall terminate upon the expiration of the initial Term.  Upon receipt of such notice from Tenantexercising the renewal option herein granted, Landlord shall submit in writingwithin thirty (30) days a proposal for the then current Market Base Rental Rate(per rentable square foot per annum, “NNN”) for the renewal term.  Tenant shall have thirty (30) days from thereceipt of said notice from Landlord to notify Landlord in writing of (i)Tenant’s acceptance of the proposed Market Base Rental Rate, or (ii) Tenant’srejection of the Market Base Rental Rate and election to initiate the appraisalprocess set forth below.  If Tenantfails to timely accept or reject the Market Base Rental Rate specified inLandlord’s notice or to elect not to extend the term of the Lease as providedin the immediately preceding sentence, Tenant shall be deemed to have electedto extend the Lease Term for the period specified in Tenant’s original noticeof exercise of the renewal option at the Market Base Rental Rate specified byLandlord in response to said exercise notice. Any such extension shall be upon all of the terms, conditions andcovenants of this Lease except as to (i) the amount of Base Rent, whichshall be determined as set forth herein, (ii) options to extend or toexpand, which shall not be applicable, and (iii)  Tenant shall payTenant’s Prorata Share of Operating Expenses throughout the renewal term.  As used herein, and subject to thelimitations set forth in this paragraph, “Market Base Rental Rate” shall meanas of any date the then annual net rental rate

 

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## (exclusiveof real estate taxes, utilities and operating expenses) per square foot of netrentable area which a willing landlord under no compulsion would agree toaccept as of such date, and which a willing tenant under no compulsion wouldagree to accept as of such date, under renewal leases (based on a five (5) yearterm) of space in comparable first class multi-tenant office buildings ofcomparable size, location and age in the County of Boulder, Colorado, at suchtime, taking into account all relevant factors, including, without limitation,use, location and/or floor level within the applicable building, definition ofrentable area, leasehold improvements provided, credits or allowances granted,if any, quality, age and location of the applicable building, rentalconcessions, the time the particular rate under consideration became effective,size of tenant, credit of tenant, relative operating expenses, taxes andutilities, relative services provided, and so forth.

##  

IfTenant, by written notice delivered no later than thirty (30) days after thedate Landlord notifies Tenant of the Market Base Rental Rate, objects to theMarket Base Rental Rate determined by Landlord and elects to submit the ratedetermination to appraisal, then, within seven (7) days of the date of Tenant’sobjection, each party shall appoint a non-affiliated certified M.A.I. Appraiserthat has at least five (5) years’ full-time commercial appraisal experience inBoulder County to determine the Market Base Rental Rate, such process to becompleted within twenty (20) days after the date of the appointment of the lastappraiser.  If a party does not appointa qualified appraiser within five (5) days after the other party has givennotice of the name of the appraiser, then the single appraiser shall be thesole appraiser and shall set the Market Base Rental Rate. The appraisersappointed by the parties shall meet promptly and attempt to set the Market BaseRental Rate.  If they are unable toagree on the Market Base Rental Rate within twenty (20) days after the date thesecond appraiser has been appointed, they shall elect a third appraiser meetingthe qualifications stated in this paragraph within seven (7) days after thelast day the two (2) appraisers are to set the Market Base Rental Rate. If theappraisers are unable to agree on the third appraiser, either of the parties tothis Lease, after giving five (5) days’ prior written notice to the otherparty, may apply to the then president of the real estate board of Denver,Colorado for the selection of a third appraiser who meets the qualificationsstated in this Section, which selection shall be made within three (3) days.All determinations of Market Base Rental Rate shall be subject to thelimitations on Market Base Rental Rate set forth in the first paragraph of thisSection. Each of the parties shall pay for the appraiser appointed by it and shallbear one-half of the cost of appointing the third appraiser and of paying thethird appraiser’s fee. The third appraiser, however selected, shall be a personwho has not previously acted in any capacity for either party. The appraisersshall be instructed to consider the criteria above stated in determining theMarket Base Rental Rate.

 

Withintwenty (20) days after the selection of the third appraiser, the thirdappraiser shall determine the Market Base Rental Rate and all three of theappraiser’s Market Base Rental Rates shall be averaged excluding any singleMarket Base Rental Rate which is either ten percent (10%) higher or lower thanthe middle appraisal of Market Base Rental Rate and the remaining appraisalsshall then be averaged.

 

Ifthe Market Base Rental Rate is not established for the extended term prior toits commencement, Tenant shall continue to pay the applicable Base Rentrequired for the last full

 

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monthof the Lease term until the appraisers have made their determination. TheMarket Base Rental Rate in question, when finally determined by the appraisers,shall be retroactive to the commencement of the extension term, and the firstBase Rent payment becoming due after the determination of the applicable MarketBase Rental Rate shall include the retroactive amounts of monthly Base Rentinstallments accrued and unpaid. In no event may either Landlord or Tenantelect not to extend the Lease based upon the Market Base Rental Rateestablished in accordance herewith.

 

Thisoption to extend may not be exercised and the Lease shall not be extended ifLandlord has given Tenant notice of default which default is not cured withinany applicable cure periods or waived by Landlord.

 

## 32.2                           Right of First Offer toLease Additional Space in the Building.  Landlord hereby grants to Tenant the rightof first offer (the “ROFO”), exercisable at any time, to expand the Premises toinclude any “Suite” (as hereinafter defined) on the first floor of the Buildingwhich is not subject to a lease or to options of other tenant(s) and which isnot then subject to active negotiations for lease or option to other existingor prospective tenant(s).  For purposeshereof, a “Suite” shall mean (i) Suite 100, containing 2,910 square feet ofRentable Area, (ii) Suite 101, contining 6,347 square feet of Rentable Area,and/or Suite 150 containing 1,726 square feet of Rentable Area, all as depictedon **Exhibit D** attached heretoand made a part hereof.  Any such Suitewhich is available for lease is herein referred to as “Option Space”.  The ROFO is subject to the following termsand conditions:

##  

(a)                                  Landlord shall give notice (the “ROFONotice”) to Tenant of Landlord’s desire to lease the Option Space and the termsand conditions upon which Landlord intends to offer such space for rent.  If Tenant elects to lease the Option Spacewhich is the subject of Landlord’s ROFO Notice (or in response to Tenant’s“Expansion Notice”) (as defined below), Tenant shall lease such space in “ASIS” condition for a minimum of twenty-four (24) months and a term that iscoterminous with the expiration of the Lease Term, and otherwise on the sameterms and conditions set forth in this Second Restated Lease.

 

(b)                                 Tenant shall have ten (10) business days afterLandlord’s notice to respond as to whether Tenant desires to lease the OptionSpace on the terms and conditions set forth in this Second Restated Lease.  If Tenant elects not to lease the OptionSpace or fails to respond within said ten (10) business day period, then for aperiod of twelve (12) months following the date of Landlord’s ROFO Notice toTenant as to the Option Space in question, Landlord shall be free to lease orotherwise grant rights in the Option Space in question to any third party.  If at the expiration of said twelve-monthperiod, Landlord has not leased the subject Option Space or granted any optionsto the Option Space to any third party and is not then actively engaged in lease negotiations with a third partyfor the lease or option of all or any portion of the subject Option Space,Tenant’s ROFO, as granted hereunder, shall again apply to the subject OptionSpace which is not then leased or subject to an option to lease in favor of athird party or which is not then subject to active negotiations betweenLandlord and a third party.  Further, ifat any time

 

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duringthe Term of the Lease, Tenant shall notify Landlord in writing that it desiresto lease additional space in the Building (such notice from Tenant being hereinreferred to as the “Expansion Notice”) and at the time of Landlord’s receipt ofthe Expansion Notice, there is Option Space available, then Landlord agrees tolease the Option Space to Tenant, subject to all of the terms and conditions ofthis **Section 32.2**to Tenant.  If Tenant elects to leasesuch Option Space, Tenant shall execute an amendment to this Lease reflectingthe addition of all (and not less than all of) such space to the Premises for aterm coterminous with the term of the Lease no later than ten (10) days fromreceipt of the ROFO Notice or Landlord’s response to an Expansion Notice and anappropriate amendment to the Lease from Landlord.

 

## 32.3                           Generator.  Prior to the date hereof, and pursuant tothe terms of the First Restated Lease, Landlord purchased and caused to beinstalled, at Landlord’s expense, an emergency back-up power generator (havingcapacity of approximately 300 kW), which is located outside the Building and isintended to serve the entire Building (the “Generator”).  In the event that at any time prior toMarch 31, 2007, this Lease is terminated in whole or in part by reason ofa termination upon default or Tenant shall be in default in the payment ofRent, Tenant shall pay to Landlord, as additional rent, the unamortized cost ofthe Generator and related fuel tank, the cost of which shall be amortized on astraight-line basis over sixty (60) months commencing on April 1, 2002 andending on March 31, 2007, less the residual value of the Generator andrelated fuel tank, which Landlord and Tenant stipulate to be the sum of$24,000.00.  The unamortized cost of theGenerator and related fuel tank shall equal the amount determined bymultiplying the actual cost and expense paid and incurred by Landlord inpurchasing the Generator and related fuel tank and causing the same to beinstalled at the Building, not to exceed the sum of $245,000.00, multiplied bya fraction, (a) the numerator of which shall equal the number of calendar dayselapsed from the date on which the Lease shall expire or be terminated in wholeor in part as set forth above or Tenant is in default in the payment of Rent,and ending on March 31, 2007, and (b) the denominator of which equals thenumber of calendar days elapsed between April 1, 2002 and March 31,2007.

##  

## The Generator and related fuel tank shall at all times be and remainLandlord’s property.  Landlord shall beresponsible for the maintenance, monitoring, repair, testing and operation ofthe Generator, and for the purchase of fuel for the Generator.  All costs and expenses incurred by Landlordin connection with the maintenance, monitoring, repair, testing and operationof the Generator, together with all costs and expenses of fuel and utilitiesassociated with the Generator, shall be included in Operating Expenses.  Tenant agrees that the Generator shall beused only in emergencies.  Landlord andTenant shall work cooperatively and in good faith to assure that the Generatorremains in good operating condition at all times.  Any actions that Landlord or Tenant may undertake or cause to beundertaken in respect of the Generator and/or related fuel tank shall be takenin strict accordance with all applicable federal, state and local laws, codesand regulations, and in such a manner as not to abrogate, limit or nullify anywarranties or guaranties given or made by the equipment manufacturer orinstaller.  If Tenant becomes aware ofany defective or apparently defective operation of the Generator, or of anyactual or impending shortage of fuel for the Generator, Tenant shallimmediately notify Landlord thereof in writing.

 

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ARTICLE 33

 

RATIFICATION OF RESTATEMENT

 

33.1.                        Ratificationand Binding Effect. Tenant hereby (i) ratifies and affirms all of its obligations underthe Lease, as modified, amended and restated hereby; (ii) acknowledges,represents and warrants that the Lease, as so modified, amended and restated isvalid and enforceable, and, as of this date, is free from any defenses, setoffsclaims, counterclaims, causes of action or any kind or nature whatsoever ofwhich Tenant has knowledge.  This SecondRestated Lease shall be governed by and construed in accordance with the lawsof the State of Colorado, and shall be binding upon and inure to the benefit ofthe parties hereto and their respective heirs, successors, representatives andpermitted assigns.

 

33.2.                        Entire Agreement.  This Second Restated Leaseconstitutes the entire understanding and agreement of the parties hereto withrespect to the matters discussed herein in relation to the Premises from andafter June 1, 2004 and supersedes all prior agreements, understandings ornegotiations with respect thereto.  Forall periods prior to June 1, 2004, the First Restated Lease, as modifiedby the Second Amendment to the First Restated Lease, shall remain in full forceand effect according to its terms.

 

34.3.                        Miscellaneous.  This Second Restated Leasemay be executed in multiple counterparts, each of which shall be deemed an original.

 

[SIGNATURES BEGIN ON NEXT PAGE]

 

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INWITNESS WHEREOF, the parties hereto have executed this Second Restated Leasethis       day of April, 2004.

 
|   | **LANDLORD****:**                          |
|--------|--------------------------------------------|
|   |                                       |
|   | **FUND IX, FUND X, FUND XI AND REIT**      |
|   | **JOINT VENTURE**, a Georgia joint venture |
|   |                                       |
|   | By:                                        | Wells  Real Estate Fund IX, L.P., as |
|   |                                       | Administrative  Venturer |
|   |                                       |
|   |                                       | By: | Wells  Partners, L.P., a Georgia |
|   |                                       |   | limited  partnership, as General |
|   |                                       |   | Partner  of Wells Real Estate Fund |
|   |                                       |   | IX,  L.P. |
|   |                                       |   |   |
|   |                                       | By: | Wells  Capital, Inc., as General |
|   |                                       |   | Partner  of Wells Partners, L.P. |
|   |                                       |   |   |
|   |                                       | By: |   |   |
|   |                                       | Name: |   |   |
|   |                                       | Title: |   |   |
|   |                                       |   |   |   |
|   |                                       |   |   |   |
|   |                                       |   | (CORPORATE SEAL) |   |
|        |                                            |  |  |  |  |  |  |

 

[SIGNATURES CONTINUED ON NEXT PAGE]

 

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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]

 

 
|   | **TENANT****:**                         |
|--------|-----------------------------------------|
|   |                                    |
|   |                                    |
|   | **GAIAM, INC.**, a Colorado corporation |
|   |                                    |
|   | By:                                     |   |   |
|   | Name:                                   |   |   |
|   | Title:                                  |   |   |
|   |                                    |   |
|   |                                    | (CORPORATE  SEAL) |   |
|        |                                         |  |  |  |  |  |

 

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EXHIBIT A

 

LEGAL DESCRIPTION

 

Lot2, Block 1,

MinorSubdivision Interlocken Filing No. 3

Cityof Broomfield,

Countyof Boulder,

Stateof Colorado

 

A-1

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EXHIBIT B

 

FLOOR PLAN

 

B-1

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EXHIBIT C

 

RULES AND REGULATIONS

 

1.                                       Tenant, by execution of this Lease andoccupancy of the Premises, agrees to comply with any covenants, conditions andrestrictions as recorded with the Clerk and Recorder of the County of Boulder,State of Colorado (the “Covenants”), as heretofore and hereafter amended, asapplicable to Tenant’s use and enjoyment of the Premises and Building Complex.In addition to all rights available to Landlord hereunder, in the eventLandlord is required to pay to any association referenced in such Covenants,any fines, assessments, charges or other amounts on account of any act oromission of Tenant, its agents, employees or invitees, Tenant shall, upondemand, reimburse Landlord for such amounts, together with interest thereon atthe Default Rate.

 

2.                                       Tenant shall not obstruct or interfere withthe rights of other tenants of the Building Complex or of persons havingbusiness in the Building Complex or in any way injure or annoy such tenants orpersons.

 

3.                                       Tenant shall not commit any willful act orpermit anything in or about the Building Complex which shall or might subjectLandlord to any liability or responsibility for injury to any person orproperty by reason of any business or operation being carried on, in or aboutthe Building Complex or for any other reason, subject to and in accordance withthe terms of this Lease.

 

4.                                       Tenant shall not use the Building for lodgingor for any illegal purposes or for any purpose that will damage the BuildingComplex, or the reputation of the Building as a Class A suburban officebuilding or for any purposes other than those specified in the Lease.

 

5.                                       Canvassing, soliciting, and peddling in theBuilding Complex are prohibited, and Tenant shall cooperate to prevent suchactivities.

 

6.                                       Tenant shall not bring or keep within theBuilding any animal, bicycle, or motorcycle.

 

7.                                       Tenant shall not commercially prepare and/orcook food or beverages in or about the Building without the prior writtenconsent of Landlord. Tenant shall not, except for de minimis amounts(consistent with uses of a Class A suburban office building or a videoproduction facility and which do not require special governmental mandatedpermits, storage or disposal) place, use or store any flammable, combustible,explosive or hazardous fluid, chemical, device, substance or material in, on orabout the Premises. Tenant shall comply with the statutes, ordinances, rules,orders, regulations and requirements imposed by governmental orquasi-governmental authorities in connection with fire and panic safety andfire prevention and shall not commit any act or permit any object to be broughtor kept in the Building Complex, which shall result in a change of rating ofany portion of the Building Complex by the Insurance Services Office or similarperson or entity subject to the terms of this Lease. Tenant shall not

 

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commitany act or permit any object to be brought or kept in the Building which shallincrease the rate of fire insurance on the Building or on property locatedtherein, subject to the terms of this Lease. In the event that Tenant’s use increases the rate of fire insurance,then Tenant shall, if Landlord permits such use, pay to Landlord upon demand,as Additional Rent, an amount equal to the increase in the rate.

 

8.                                       Tenant shall not occupy the Building orpermit any portion of the Building Complex to be occupied for the manufactureor direct sale of liquor, narcotics, or tobacco in any form, or as a medicaloffice, barber shop, manicure shop, music or dance studio. Tenant shall notconduct in or about the Building Complex any auction, public or private withoutthe prior written approval of Landlord.

 

9.                                       Tenant shall not install or use in theBuilding Complex any (i) air conditioning unit, (ii) engine or boiler powered byfuel including diesel fuel, gasoline, propane or natural gas; (iii) generator,(iv) industrial ventilator or machinery, (v) heating unit (other than spaceheaters), (vi) stove, (vii) commercial condensing unit, (viii) radiator or anyother similar apparatus without the express prior written consent of Landlord,and then only as Landlord may reasonably direct.

 

10.                                 Any office equipment and other device of anyelectrical or mechanical nature which causes in its operation vibrations, noiseor other annoyance to tenants in the Building shall be placed by Tenant in thePremises in settings reasonably approved by Landlord, so as to absorb orprevent any vibration, noise, or annoyance. Tenant shall not cause impropernoises, vibrations, or odors within the Building Complex.

 

11.                                 Tenant shall move all freight, supplies,furniture, fixtures, and other personal property into, within and out of theBuilding only through such entrances as may be reasonably designated byLandlord, and such movement of such items shall be under the reasonablesupervision of Landlord. Landlord reserves the right to exclude from theBuilding Complex all objects which violate any of these rules and regulationsor the provisions of the Lease. Tenant shall not move or install such objects inor about the Building Complex in such a fashion as to unreasonably obstruct theactivities of the other tenants, and all such moving shall be at the soleexpense, risk, and responsibility of Tenant.

 

12.                                 Tenant shall not place within the Buildingany objects which exceed the floor weight specifications of the Buildingwithout the express prior written consent of Landlord. The placement andpositioning of all such objects within the Building shall be reasonablyprescribed by Landlord and such objects shall, in all cases, be placed uponplates or footings of such size as shall be reasonably prescribed by Landlord.

 

13.                                 Tenant shall not deposit any trash, refuse,cigarettes, or other substances of any kind within or out of the Buildingexcept in refuse containers provided therefor. Tenant shall exercise its bestefforts to keep the sidewalks, entrances, passages, courts, lobby areas,parking areas, vestibules, public corridors and halls in and about the Building(hereinafter “Common Areas”) clean and free from rubbish; however Tenant is notresponsible for the trash or refuse of parties other than Tenant, itsemployees, agents, contractors and invitees.

 

C-2

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14.                                 Tenant shall use the Common Areas only as ameans of ingress and egress and other designed purposes, and Tenant shallpermit no loitering by any of Tenant’s employees upon Common Areas or elsewherewithin the Building Complex. The Common Areas and roof of the Building are notfor the use of the general public, and Landlord shall in all cases retain theright to control or prevent access thereto by all persons whose presence in thereasonable judgment of Landlord, shall be prejudicial to the safety, character,reputation or interests of the Building Complex and its tenants. Tenant shallnot go upon the roof of the Building without the express prior written consentof Landlord.

 

15.                                 Landlord reserves the right to exclude orexpel from the Building Complex any person who, in the reasonable judgment ofLandlord, is intoxicated or under the influence of liquor or drugs or who shallin any manner act in violation of the rules and regulations of the BuildingComplex.

 

16.                                 a.                                       Subject to the terms of paragraph b below.Landlord shall have the right to reasonably designate the area or areas, ifany, in which Tenant and Tenant’s servants, employees, contractors, jobbers,agents, licenses, invitees, guests and visitors may park vehicles, and Tenantand its servants, employees, contractors, jobbers, agents, licensees, invitees,guests and visitors shall observe and comply with all driving and parking signsand markers within and about the Building Complex. All parking ramps and areasand any pedestrian walkways, plazas or other public areas forming and part ofthe Building or the land upon which the Building Complex is situated shall beunder the reasonable control of Landlord, who shall have the right toreasonably regulate and control those areas. Landlord may promulgate rules andregulations concerning parking from time to time, and Tenant agrees to complytherewith. Tenant acknowledges that Landlord has reserved the right to removevehicles which violate parking regulations.

 

b.                                      Tenant shall have the right at any time, uponwritten notice to Landlord, to have Landlord using building standard signage,designate up to ten (10) parking spaces as being for the exclusive use ofTenant. The cost of the signage shall be borne by Tenant and the location ofthe parking so designated shall be shown on an exhibit to be attached hereto.Tenant acknowledges that Landlord shall have no obligation to police suchdesignated parking; however, upon receipt of notice from Tenant specifyingvehicles that are violating its exclusive use, Landlord shall take suchreasonable actions as necessary, including towing, to protect Tenant’sexclusive use of the parking spaces.

 

17.                                 No smoking is permitted at any time in, on orabout the Building and the Building Complex, including the lobby, the parkinglot and exterior Common Areas. Tenant shall comply herewith and cause itsemployees, agents, contractors and invitees to comply herewith. Tenant may,subject to compliance with applicable laws, permit smoking within the Premises,provided in no event may any secondary smoke from the Premises be present in otherparts of the Building and Tenant shall be solely responsible at its own costand expense. Except as required by applicable law, Landlord will not modifythis rule or regulation in this Lease or any other Lease in the Building tomake it less restrictive.

 

C-3

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18.                                 Tenant shall not use the washrooms, restroomsand plumbing fixtures of the Building Complex, and appurtenances thereto, forany other purpose than the purposes for which they were constructed, and Tenantshall not deposit any sweepings, rubbish, rags or other improper substancestherein. Tenant shall not waste water by interfering or tampering with thefaucets or otherwise. If Tenant or Tenant’s servants, employees, contractors,jobbers, agents, licensees, invitees, guests or visitors, cause any damage tosuch washrooms, restrooms, plumbing fixtures or appurtenances, such damageshall be repaired at Tenant’s reasonable expense within fifteen (15) days ofreceipt of written notification from Landlord during which period Tenant mayrepair same, and Landlord shall not be responsible therefor.

 

19.                                 Tenant may make alterations to the Premisesconsistent with the terms of **Article 15** of the Lease. Upon removalof any wall decorations or installations or floor coverings by Tenant, anydamage to the walls or floors shall be repaired by Tenant at Tenant’s sole costand expense. Without limitation upon any of the provisions of the Lease, Tenantshall refer all contractors, representatives, installation technicians, andother mechanics, artisans and laborers rendering any service in connection withthe repair, or permanent improvements of the Premises to Landlord forLandlord’s approval before performance of any such service. This Paragraph 19shall apply to all work performed in the Building, including without limitationinstallation of telephones, telegraph equipment, electrical devices andattachments and installations of any nature affecting floors, walls, woodwork,trim, windows, ceilings, equipment or any other portion of the BuildingComplex. Plans and specifications for such work, prepared at Tenant’s soleexpense, shall be submitted to Landlord and shall be subject to Landlord’sexpress prior written approval in each instance before the commencement of work.All installations, alterations and additions shall be constructed by Tenant ina good and workmanlike manner and only good grades of material shall be used inconnection therewith. The means by which telephone, telegraph and similar wiresare to be introduced to the Premises and the location of telephones, call boxesand other office equipment affixed to the Premises shall be subject to theexpress prior written approval of Landlord. Tenant shall not lay linoleum orsimilar floor coverings so that the same shall come into direct contact withthe floor of the Premises and, if linoleum or other similar floor covering isto be used, an interlining of builder’s deadening felt shall be first affixedto the floor, by a paste or other material soluble in water. The use of cementor other similar adhesive materials is expressly prohibited.

 

20.                                 No signs, awning, showcases, advertisingdevices or other projections or obstructions shall be attached to the outsidewalls of the Building Complex or attached or placed upon any Common Areaswithout the express prior consent of Landlord. No blinds, drapes or otherwindow coverings shall be installed in the Building without the express priorwritten consent of Landlord, except for “black out” drapes which have been approvedby Landlord. No promotional sign or picture, advertisement, window display orother public display or notice in the nature of advertising or otherpromotional display shall be inscribed, exhibited, painted or affixed by Tenantupon or within any part of the Premises in such a fashion as to be seen fromthe outside of the Premises or the Building without the express prior writtenconsent of Landlord. In the event of the violation of any of the foregoing byTenant, Landlord may within fifteen (15) days of written notice to Tenantduring which period Tenant may repair same, remove the articles constitutingthe violation without any liability unless a loss other then said removal,arises from

 

C-4

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Landlord’swillful or negligent acts or omissions, and Tenant shall reimburse Landlord forthe reasonable expenses incurred in such removal upon demand and uponsubmission of applicable bills as additional rent under the Lease. Interiorsigns on doors (exclusive of interiors of the Premises) and upon the Buildingdirectory shall be subject to the express prior written approval of Landlordand shall be inscribed, painted, or affixed by Landlord at the reasonableexpense of Tenant upon submission of applicable bills to Tenant.

 

21.                                 Tenant shall not use the name of the Buildingor the name of Landlord in its business name, trademarks, signs,advertisements, descriptive material, letterhead, insignia or any other similaritem without Landlord’s express prior written consent.

 

22.                                 The sashes, sash doors, skylights, windows,and doors that reflect or admit light or air into the Common Areas shall not becovered or obstructed by Tenant, through placement of objects upon windowsillsor otherwise. Tenant shall cooperate with Landlord in obtaining maximumeffectiveness of the cooling system of the Building. Tenant shall not obstruct,alter or in any way impair the efficient operation of Landlord’s heating,ventilating, air conditioning, electrical, fire, safety, or lighting systems.

 

23.                                 Subject to the Lease, applicable fire orother safety regulations, all doors opening onto Common Areas and all doorsupon the perimeter of the Premises shall be kept closed and, duringnon-business hours, locked, except when in use for ingress or egress. If Tenantuses the Premises after regular business hours or on non-business days, Tenantshall, subject to the Lease, lock any entrance doors to the Building or to thePremises used by Tenant immediately after using such doors.

 

24.                                 Intentionally Deleted.

 

25.                                 All keys to the exterior doors of thePremises shall be obtained by Tenant from Landlord, and Tenant shall pay toLandlord a reasonable deposit determined by Landlord from time to time uponwritten notice to Tenant for such keys. Tenant shall not make duplicate copiesof such keys. Subject to the Lease, Tenant shall have the right to installsubstitute or additional locks or bolts upon any of the doors of the interiordoors of the Premises and Tenant shall notify Landlord prior to making any changesin existing locks or the mechanisms thereof and shall give Landlord a keytherefor. Tenant shall, upon the termination of its tenancy, provide Landlordwith the combinations and keys, if any, to all combination locks on safes, safecabinets and vaults and deliver to Landlord all keys to the Building, thePremises and all interior doors, cabinets, and other key-controlled mechanismstherein, whether or not such keys were furnished to Tenant by Landlord, if any.Tenant shall pay to Landlord the reasonable cost of replacing the same or ofchanging the lock or locks opened by such lost key if Landlord shall reasonablydeem it necessary to make such a change.

 

26.                                 Landlord shall not be responsible for, andTenant hereby indemnifies and holds Landlord harmless from any liability inconnection with, the loss, theft, misappropriation or other disappearance offurniture, furnishings, fixtures, machinery, equipment, money, jewelry or otheritems of personal property from the Premises or other parts of the Building regardlessof whether

 

C-5

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thePremises or Building are locked at the time of such loss unless the loss arisesfrom Landlord’s willful or negligent acts or omissions.

 

27.                                 For purposes hereof, the terms “Landlord,”“Tenant,” “Building,” and “Premises” are defined as those terms are defined inthe Lease to which these Rules and Regulations are attached. Wherever Tenant isobligated under these Rules and Regulations to do or refrain from doing an actor thing, such obligation shall include the exercise by Tenant of itsreasonable efforts to secure compliance with such obligation by the servants,employees, contractors, jobbers, agents, invitees, licensees, guests andvisitors of Tenant. The term “Building” and “Building Complex” shall includethe Premises, and any obligations of Tenant hereunder with regard to theBuilding and Building Complex shall apply with equal force to the Premises andto other parts of the Building Complex.

 

28.                                 Landlord shall use reasonable efforts toenforce rules and regulations against Tenant in a manner which is notmaterially and/or adversely inconsistent with its application of the rulesagainst other tenants in the Building and to the extent that Landlord grantsless restrictive rules or regulations to any tenant, then Tenant shall get thebenefit therefrom. Tenant acknowledges that these rules and regulations havebeen amended by Landlord and Tenant and thus some rules and regulationsapplicable to other tenants in the Building may not be applicable toTenant.  In no event will Landlordimpose any less restrictive rules or regulations in leases with other tenantsin the Building as such rules or regulations pertain to smoking, noise,vibrations and odors.  Furthermore,notwithstanding any other provision to the contrary Landlord will not permit asreserved parking for any other tenant more than fifteen percent (15%) of suchtenant’s allocated parking, nor shall Landlord permit any reserved parking forsuch tenant(s) in the first parking row immediately in front of the Building.

 

C-6

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EXHIBIT D

 

FLOOR PLAN OF FIRST FLOOR

 

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