EX-10.2



 




Exhibit 10.2




	 	 	 	 	 
	 

	 	LEASE AMENDMENT SEVEN
	 	CMD 177A (2/03)
	 
	 	 	 	 
	 

	 	(Extension and Expansion/Co-Terminous)	 	 






     THIS LEASE AMENDMENT SEVEN (“Amendment”) is made as of the 12th day of May, 2006
between CMD REALTY INVESTMENT FUND IV, L.P. (“Landlord”), an Illinois limited partnership,
and INTERCONTINENTALEXCHANGE, INC. (“Tenant”), a Delaware corporation.



     A. Landlord and Tenant are the current parties to that certain Office Lease (“Original
Lease”) dated June 8, 2000, for space currently described as Suites 500 and 850
(“Premises”) in the building (“Building”) known as 2100 RiverEdge, located at 2100
RiverEdge Parkway, Atlanta, Georgia 30328 (“Property”), which lease has heretofore been
amended by Lease Amendment One dated April 30, 2001, Lease Term Adjustment Confirmation Letter
dated August 2, 2001, Lease Amendment Two dated March 6, 2003, Lease Amendment Three dated
September 10, 2003, Lease Amendment Four dated June 4, 2004, Lease Amendment Five dated October 28,
2004, and Lease Amendment Six dated October 12, 2005 (collectively, and as amended herein,
“Lease”).



     B. The parties mutually desire to amend the Lease on the terms hereof.



     NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby
agree as follows.



     1. Term Extension. The term of the Lease is hereby modified to extend for a period
(“Extended Term”) commencing on the Additional Premises Commencement Date (as hereinafter
defined) and expiring on the last day of the sixty-sixth (66th) full calendar month
after the Additional Premises Commencement Date (“New Expiration Date”) with respect to
Suite 500 and the Additional Premises (as hereinafter defined) hereunder, unless sooner terminated
in accordance with the terms of the Lease.



     2. Expiration of Suite 850. The Lease is scheduled to expire April 30, 2006, with respect to
Suite 850 only. Notwithstanding anything in the Lease, Tenant may hold over in Suite 850 until the
Additional Premises Commencement Date and shall pay no Rent during the period commencing on May 1,
2006 and ending on the Additional Premises Commencement Date. Commencing on the day after the
Additional Premises Commencement Date, the terms of Article 24 of the Original Lease shall apply
based on the Rent in effect with respect to Suite 850 as of April 1, 2006.



     3. Additional Premises. Suite 600, being a portion of the space currently known as Suite 600
(“Additional Premises”), the approximate location of which is shown on Exhibit A
hereto on the sixth (6th) floor of the Building, and which shall be deemed to contain
16,362 square feet of rentable area for purposes hereof, shall be added to and become a part of the
Existing Premises (as hereinafter defined) commencing on the earlier to occur of (i) Tenant’s
occupancy of the Additional Premises for business purposes, or (ii) August 15, 2006
(“Additional Premises Commencement Date”) and continuing co-terminously with the New
Expiration Date, as the same may be extended, subject to the terms herein. The Additional Premises
Commencement Date and New Expiration Date shall be subject to adjustment and confirmation as
described in Section 9 below.



 


Certain
information in this agreement has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.




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     Upon completion of the Work within the Additional Premises, Landlord and its architect and
Tenant and its architect shall each have the right to re-measure the Additional Premises or the
Building using the “Standard Measure for Measuring Floor Area in Office Buildings” published by the
Secretariat, Building Owners and Managers Association International (ANSI/BOMA Z65.1-1996),
approved June 7, 1996 (“BOMA Standards”). Base Rent, Tenant’s Share, and all other items which
are calculated based on the rentable square footage of the Additional Premises and the Building
shall be adjusted if Landlord or Tenant elects to re-measure, but otherwise shall be based upon the
initial determination of rentable square footage contained herein.



4. Base Rent.




          a. Existing Premises. Tenant shall pay monthly Base Rent for Suite 500 (sometimes
referred to herein as the “Existing Premises”) as provided below and otherwise as provided
in the Lease:




Suite 500 Base Rent Schedule




	 	 	 	 	 
	 	 	Suite 500
	Period
	 	Monthly Base Rent
	July 1, 2006 – May 31, 2007
	 	$	[***]	 
	June 1, 2007 – May 31, 2008
	 	$	[***]	 
	June 1, 2008 – May 31, 2009
	 	$	[***]	 
	June 1, 2009 – May 31, 2010
	 	$	[***]	 
	June 1, 2010 – May 31, 2011
	 	$	[***]	 
	June 1, 2011 - New Expiration Date
	 	$	[***]	 






          b. Additional Premises. Tenant shall pay monthly Base Rent for the Additional Premises
as provided below and otherwise as provided in the Lease:




Additional Premises Base Rent Schedule




	 	 	 	 	 
	 	 	Additional Premises
	Period
	 	Monthly Base Rent
	Additional Premises Commencement Date – May 31, 2007
	 	$	[***]	 
	June 1, 2007 – May 31, 2008
	 	$	[***]	 
	June 1, 2008 – May 31, 2009
	 	$	[***]	 
	June 1, 2009 – May 31, 2010
	 	$	[***]	 
	June 1, 2010 – May 31, 2011
	 	$	[***]	 
	June 1, 2011 - New Expiration Date
	 	$	[***]	 






          c. Generator Space Rent. Commencing on July 1, 2006, the Generator Space Rent
pursuant to Exhibit F to the Original Lease is hereby waived during the Extended Term under this
Amendment.




     5. Expenses and Taxes; Base Year Adjustments. Commencing on the Additional Premises
Commencement Date:



                    



***
Confidential information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.




2









 





          A. Suite 500. (i) Tenant shall pay Tenant’s Share for Suite 500 of increases in Taxes
and Expenses over the respective amounts for the year 2006, and as otherwise provided in the Lease,
and (ii) “Tenant’s Share” for Suite 500 shall be eight and 37/100 percent (8.37%), Suite 500 shall
be deemed to contain 22,332 square feet of rentable area and, based on re-measurement, the Property
shall be deemed to contain 266,718 square feet of rentable area, for purposes hereof.




          B. Additional Premises. (i) Tenant shall pay Tenant’s Share for the Additional
Premises of increases in Taxes and Expenses, over the respective amounts for the year 2006, and as
otherwise provided in the Lease, and (ii) “Tenant’s Share” for the Additional Premises shall be six
and 13/100 percent (6.13%), for purposes hereof.




          C. Base Year Adjustments. The third sentence of Section H of Article 3 of the
Original Lease is hereby deleted and replaced with the following: “Landlord may also use sound
management and accounting practices to normalize Base Year Expenses by reducing or excluding from
Base Year Expenses: (i) any unusual costs or cost increases, including any market-wide energy cost
spikes or increases, surcharges, or energy taxes, due to war, terrorism, boycotts, brown-outs or
hurricanes, and (ii) the amortization of capital expenditures otherwise permitted under Article 30
(provided amortization of capital expenditures shall only be included in subsequent year Expenses
to the extent permitted under Article 30).”




     6. Prorations; Consolidated or Separate Billings. If the Additional Premises Commencement Date
does not occur at the beginning, or the New Expiration Date does not occur at the end, of an
applicable payment period under the Lease, Landlord shall reasonably pro rate Tenant’s payment
obligations on a per diem basis; Tenant shall remain liable for all amounts accruing during or
relating to the period prior to the Additional Premises Commencement Date, and through the New
Expiration Date, whether or not theretofore billed. The Base Rent, Taxes, Expenses and all other
charges respecting the Additional Premises are sometimes herein called “Additional Premises
Rent”. Landlord may compute and bill Additional Premises Rent (or components thereof)
separately or treat the Additional Premises and Existing Premises as one unit for computation and
billing purposes.



     7. Other Terms. Except to the extent inconsistent herewith or provided to the contrary
herein: (a) commencing on the Additional Premises Commencement Date, the Additional Premises shall
be added to, and become part of, the Existing Premises under the Lease, and all applicable
provisions then or thereafter in effect under the Lease shall also apply to the Additional
Premises, and (b) all provisions of the Lease currently in effect or scheduled to become effective
shall remain in effect and become effective in accordance with their terms, except for any
provisions which by their express terms have lapsed, are scheduled to lapse, or were to be in
effect only during the initial Term or other period (in which case such express terms shall govern
the periods during which such provisions were, or will remain, in effect).



     8. Tenant Improvements.




     A. Condition of Additional Premises; Improvement Allowance. Tenant has been occupying
the Existing Premises, and has inspected the Additional Premises (and portions of the Building,
Property, systems and equipment providing access to or serving the Additional Premises) or has had
an opportunity to do so, and agrees to accept the same “AS IS” without any agreements,
representations, understandings or obligations on the part of Landlord to perform or pay for any
alterations, repairs or improvements, except as provided herein.
Notwithstanding the foregoing to the contrary, Landlord hereby represents that to Landlord’s



3









 





actual
knowledge as of the date of this Amendment (i) the Building standard mechanical, electrical,
plumbing, sprinkler and HVAC equipment servicing the Additional Premises are in good working order,
(ii) the Additional Premises will be delivered to Tenant vacant and in broom clean condition as of
the Possession Date, and (iii) there are no current material violations of Laws affecting Tenant’s
use of the Additional Premises. “Landlord’s actual knowledge” herein means the actual knowledge of
the Asset Manager for the management company for the Property. Notwithstanding anything contained
herein to the contrary, Landlord shall provide an allowance (“Allowance”) to be used
towards the performance of certain tenant improvement work by Tenant in the Additional Premises and
the Existing Premises, as further set forth in Exhibit B attached hereto. Notwithstanding anything
contained herein to the contrary, Landlord shall, at its expense, remove all data and
telecommunications lines located above ceiling-grade in the Additional Premises no later than
thirty (30) days after the date of this Amendment.



     B. Removal of Stairwell. Without limiting the generality of any other terms of the
Lease requiring restoration of the Premises upon expiration of the Lease, at Landlord’s written
request, Tenant shall, within thirty (30) days after expiration or earlier termination of the
Lease, remove any stairwell installed by Tenant pursuant to Exhibit B of this Amendment, close the
stairwell opening, and restore the stairwell area to its original condition (the “Stairwell
Restoration Work”), all such work to be at Tenant’s sole cost. Landlord’s request may be made
prior to the expiration or earlier termination of the Lease but if Landlord’s request is made less
than thirty (30) days before the expiration or earlier termination of the Lease then Tenant shall
have sixty (60) days after its receipt of Landlord’s request to complete the Stairwell Restoration
Work. At Landlord’s option, Landlord shall perform the Stairwell Restoration Work, at Tenant’s
cost; provided, however, the cost therefore is reasonable and customary based on competitive market
conditions. Prior to commencing the Stairwell Restoration Work Landlord shall obtain an estimate
of the cost of the Stairwell Restoration Work which is reasonably acceptable to Tenant, and Tenant
shall deposit such estimated cost with Landlord within ten (10) days after Landlord’s written
request for same. If such estimated amount exceeds the actual cost of the Stairwell Restoration
Work, Tenant shall receive a refund of the difference within thirty (30) days of completion of the
Stairwell Restoration Work, and if the actual cost of the Stairwell Restoration Work amount shall
exceed the estimated amount, Tenant shall pay the difference to Landlord within thirty (30) days
after Landlord’s written request for same.



     C. Conversion of 6th Floor to Multi-Tenant Floor. Tenant shall, as part of
the Work under Exhibit B to this Amendment, install the demising walls necessary to demise the
Additional Premises from the remainder of the floor not being leased by Tenant (“Common Area
Demising Walls”). Landlord shall reimburse Tenant for 50% of the cost of the Common Area
Demising Walls, such cost to be determined as follows: (1) Tenant shall cause Tenant’s general
contractor to provide the pricing of the Common Area Demising Walls as a separate line item, (2)
Landlord shall have the right, either before or after Tenant’s general contractor provides the
pricing for the Common Area Demising Walls, to require that Tenant cause its general contractor to
competitively bid the construction of the Common Area Demising Walls and agrees that C & W
Contracting Services, Inc. shall be permitted to participate in the bidding process, and (3)
selection by Tenant of any bid for the Common Area Demising Walls other than the lowest bid shall
be subject to Landlord’s approval, which shall not be unreasonably withheld, conditioned or
delayed, Landlord shall pay its 50% share of the cost of the Common Area Demising Walls to Tenant
in accordance with Section I.c of Exhibit B to this Amendment, although it is expressly understood
and agreed that this payment is in addition to the Allowance. Landlord shall, at its sole cost and
expense, perform any other improvements deemed by Landlord to be reasonably necessary to convert
the 6th floor of the Building to a multi-tenant
configuration using finishes and materials generally conforming to building standard finishes
and materials currently being used by Landlord at the Property.



4









 





     D. HVAC/Mechanical Systems. Landlord, at its expense, engaged Barrett, Woodyard &
Associates, Inc. (the “Consultant”), a consultant with expertise in HVAC systems and the
mechanical systems relating thereto (the “HVAC/Mechanical Systems”) to evaluate the
HVAC/Mechanical Systems (including the base building components thereof) on the 5th floor of the
Building. A copy of the Consultant’s report is attached hereto as Exhibit H. Landlord shall, at
its expense, use commercially reasonably efforts to comply with the recommendations set forth in
the Consultant’s report.



     9. Early Access; Possession Date; Date; Confirmation of Dates. Landlord shall permit Tenant to
enter the Additional Premises on the day immediately following mutual execution and delivery of
this Amendment (“Possession Date”) but Tenant shall with respect to the Additional Premises
have no obligation to pay Landlord the Additional Premises Rent (consisting of Base Rent, Taxes and
Expenses) for such period prior to the Additional Premises Commencement Date (as defined in Section
3 above). During any period that Tenant shall enter the Additional Premises prior to the
Additional Premises Commencement Date to perform Work under Exhibit B hereto, or to install
telecommunications and computer cabling, equipment and furniture, Tenant shall comply with all
terms and provisions of the Lease, except that the Additional Premises Commencement Date shall not
occur based on such early possession for such purposes. The Additional Premises Commencement Date
shall be the earlier to occur of (i) Tenant’s occupancy of the Additional Premises for business
purposes, or (ii) (iii) August 15, 2006. Landlord and Tenant shall execute a confirmation of any
dates herein in such form as Landlord may reasonably request; any failure to respond within thirty
(30) days after Landlord provides such written confirmation shall be deemed an acceptance of the
dates set forth in Landlord’s confirmation. If Tenant disagrees with Landlord’s determination of
such dates, Tenant shall pay Rent for the Existing Premises and Additional Premises Rent and
perform all other obligations commencing and ending on the dates determined by Landlord, subject to
refund or credit against Additional Premises Rent when the matter is resolved.



     10. Modifications to Lease. Effective as of the date of this Amendment, the Lease is
amended as follows:



     A. Security. Article 6.A of the Original Lease is amended by the addition of the following
new subsection:



“(vi) Reasonable security arrangements for the common areas consistent with comparable “Class A”
suburban office buildings in the Northwest Atlanta market (the “Market Area”), which
currently consist of: (1) a card-key system for building access (including, since February, 2006,
14 cameras and 6 new card readers at the Building gates and entrances) and (2) a security guard on
post in the lobby of the Building, Monday through Friday, from 6 am until 2 pm and from 4 pm until
midnight; during the hours of 2 pm until 4 pm, Monday through Friday, a security guard on post at
2000 RiverEdge Parkway is on-call if required at the Building. Notwithstanding the foregoing,
Landlord reserves the right to reasonably change the Building’s security arrangements so long as
the arrangements provide security at least comparable to then prevailing standards at comparable
“Class A” suburban office buildings in the Market Area.”



     B. Health Club. Landlord shall install 2 replacement pieces of equipment in the Fitness
Facility (as hereinafter defined) no later than June 1, 2006. Tenant and Tenant’s employees shall,
during the Extended Term and any extension thereof, have the non-exclusive
right to utilize the Fitness Facility during the Fitness Facility’s hours of operation. In
addition,



5









 





Article 6.A of the Original Lease is amended by the addition of the following new
subsection:



“(vii) Landlord shall provide a fitness facility (which, at Landlord’s option, may be unstaffed)
within the Building (the “Fitness Facility”).”



     C. Maintenance of Common Areas. Article 6.A of the Original Lease is amended by the addition
of the following new subsection:



“(viii) Landlord shall keep and maintain the common areas of the Building and the Property,
including lobbies, stairs, elevators, corridors, and restrooms, the exterior windows in the
Building, the Systems and Equipment serving the Building (as defined in Article 30(N) of he
Original Lease), the roof and structure, parking areas, access lanes and landscaped areas in
reasonably good order and condition (except for damage occasioned by the act of Tenant, which
damage shall be repaired by Landlord at Tenant’s expense), using standards comparable to other
“Class A” suburban office buildings located in the Market Area.”



     D. Compliance with Laws by Landlord. Article 7.B of the Original Lease is amended by the
addition of the following sentence: “Landlord shall comply with all Laws affecting the structure
of the Building or common areas of the Property (the cost of which shall be included in Expenses,
but only to the extent permitted in the definition thereof in Article 30), except to the extent
that such compliance is Tenant’s responsibility under this Lease.”



     E. Tenant’s Right to Use Common Areas. Article 7.C of the Original Lease is amended by the
addition of the following sentence: “Tenant’s rights under this Lease shall expressly include the
right to use in common with other tenants and occupants of the Building the common parking areas,
service roads, loading and unloading facilities, sidewalks, driveways, entrances and exits,
hallways, walkways, lobby areas, restrooms and other areas of the Property designated by Landlord
for the common use of tenants and guests of the Building in general, as the same may exist from
time to time, subject to the other provisions of this Lease.”



     F. Security Deposit. Article 1, Section J of the Lease and Article 16 of the Lease are hereby
deleted in their entirety. Landlord shall return any existing Security Deposit to Tenant no later
than August 1, 2006. The parties acknowledge that the Letter of Credit furnished by Tenant
pursuant to Exhibit G to the Original Lease has expired and Landlord hereby agrees that the
requirement for an Letter of Credit is hereby deleted.



     G. Assignment and Subletting. Article 13, Section G of the Lease is hereby amended by
inserting the words “and Recapture” following the words “Transfer Premiums” and before the word
“and” in the last line thereof.



     H. Subordination and Non-disturbance. Article 18 of the Original Lease is amended by the
addition of the following: “Landlord represents that there is no Mortgage encumbering the Property
as of the date of this Lease. This Lease is subject and subordinate to all Mortgages hereafter
placed upon the Property, and all other encumbrances and matters of public record applicable to the
Property; provided, this Lease shall only be subordinate to Mortgages made hereafter if the Lenders
thereunder agree to enter into a subordination, non-disturbance and attornment agreement with
Tenant in a form that is commercially customary and reasonably acceptable to Tenant and such
Lenders, which agreement (i) shall contain language of nondisturbance providing that Tenant’s
possession of the Premises and rights
under the Lease will not be terminated (unless Tenant commits a Default and fails to cure in the



6









 





time permitted under this Lease), and (ii) shall not materially decrease Tenant’s rights or
materially increase Tenant’s obligations under this Lease.”



     H. Estoppel Certificate. Article 19 is amended by changing “ten (10) days” in line 1 to “ten
(10) business days” and by deleting the last sentence and inserting the following in its place:
“If Tenant shall fail to execute and return such statement within the time required herein, and
shall fail to do so within ten (10) additional business days following a second written request,
Tenant shall be in Default (provided that the second request shall refer to this Lease provision
and state, prominently in bold and capitalized letters, that this is a second notice, and that
Tenant’s failure to execute and return such statement within the time period required shall be a
Default), and shall be deemed to have agreed with the matters set forth therein (without limiting
Landlord’s other remedies).”



     I. Relocation Right Deleted. Article 20.D of the Lease is deleted in its entirety.



     J. Tenant’s Remedies for Landlord’s Default. Article 21 is amended by deleting the last
sentence and inserting the following in its place: “If Landlord shall default and fail to cure as
provided herein, Tenant shall have such rights and remedies as may be available to Tenant under
applicable Laws (including the right to seek direct damages, declaratory and injunctive relief, and
attorneys fees), subject to the other provisions of this Lease; provided, Tenant shall have no
right of self-help to perform repairs or any other obligation of Landlord, and shall have no right
to withhold, set-off, or abate Rent, or terminate this Lease, except as may be expressly provided
in this Lease, including the following paragraph.



     If Landlord shall fail to keep or perform any of its obligations under the Lease with respect
to repairs and maintenance of the Systems and Equipment serving the Premises or Building required
under the Lease to be made by Landlord, and if such failure materially and adversely affects
Tenant’s ability to use the Premises for normal business operations, then upon the continuance of
such failure on Landlord’s part for thirty (30) days after the receipt by Landlord and any Lender
of written notice from Tenant indicating with specificity the nature of the failure (or, in the
case of any such failure which cannot reasonably be cured within thirty (30) days, within such
additional period (not to exceed 120 days) as may be reasonably required by Landlord to cure such
failure with due diligence), and without waiving or releasing Landlord from any obligation, then
Tenant may (but is under no obligation to) perform such obligation, and all sums actually paid or
incurred by Tenant and all necessary and incidental costs and expenses (but not costs to improve
the Building, Premises or other facilities beyond rectifying Landlord’s failure), incurred by
Tenant in performing such obligation, together with interest thereon at the prime rate, plus two
(2%) percent interest, but not to exceed the maximum rate permitted by law, from the date a cost
was incurred, shall be paid by Landlord to Tenant within thirty (30) days after demand, unless
Landlord disputes the amount of the payment claimed by Tenant by written notice to Tenant within
such 30-day period, in which event the amount of the payment owing from Landlord to Tenant shall be
determined by binding arbitration under the rules of the American Arbitration Association, as said
rules are then in effect, and the award in such arbitration shall be binding upon the parties
hereto. If the sum as determined by arbitration is not timely paid by Landlord or if Landlord does
not elect to go to arbitration but fails to pay the sum demanded by Tenant, then Tenant shall have
the right and option to offset such sum against any Base Rent and Expenses or any other amounts
thereafter payable under the Lease, or (ii) Tenant may pursue any other remedies available to
Tenant at law or in equity to collect payment. Any contractors employed by Tenant to cure a
Landlord failure hereunder shall be reputable contractors the use of which will not adversely
impact any warranties affecting the
Building, and Tenant upon completion of such work shall provide appropriate lien waivers to



7









 





Landlord. In effectuating a cure in connection with Tenant’s self-help or cure rights hereunder,
Tenant shall take those precautions that a reasonably prudent building manager would undertake to
avoid any unreasonable interference with other tenants in the Building or the Systems and Equipment
(such as electrical or mechanical systems).”



     K. Indemnification. Article 22 of the Original Lease is amended by the addition of the
following sentence: “Subject to Articles 10 and 11 and the other provisions of this Lease,
Landlord shall defend, indemnify and hold Tenant harmless from and against any and all claims,
demands, losses, penalties, fines, fees, charges, assessments, liabilities, damages, judgments,
orders, decrees, actions, administrative or other proceedings, costs and expenses (including
reasonable attorneys’ and expert witness fees, and court costs) for any damage, loss or injury to
persons, property or business arising or alleged to arise from the negligence or willful misconduct
of Landlord, its agents or employees.”



     L. Removal of Lines by Tenant. Notwithstanding anything contained in the Lease to the
contrary, upon expiration or earlier termination of the Lease, Tenant, at its expense, shall
properly remove any Lines which have been installed by or for Tenant within the Additional
Premises, including Lines in suspended ceilings or raised floors.



     11. Other Rights. Tenant is hereby granted certain rights pursuant to the following exhibits
attached to this Amendment: Exhibit C (Free Reserved Parking), Exhibit D (Extension Options),
Exhibit E (Right of Offer), Exhibit F (Monument Listing) and Exhibit G (Storage Space).



     12. Real Estate Brokers. Landlord and Tenant hereby: (a) mutually represent to each other
that they have dealt only with CB Richard Ellis, Inc. (representing Tenant) and PM Realty Group
(representing Landlord) as broker, salesperson, agent or finder in connection with this Amendment
(and to whom Landlord shall pay a commission pursuant to separate written agreement), and (b)
mutually agree to defend, indemnify and hold each other harmless from and against all liabilities
and expenses (including reasonable attorneys’ and expert witness fees, and court costs) arising
from any breach of their respective foregoing representations.



     13. Offer. The submission and negotiation of this Amendment shall not be deemed an offer to
enter into the same by Landlord. This Amendment shall not be binding on Landlord unless and until
fully signed and delivered by both parties. Tenant’s execution of this Amendment constitutes a
firm offer to enter into the same which may not be withdrawn for a period of thirty (30) days after
delivery to Landlord. During such period, Landlord may proceed in reliance thereon, but such acts
shall not be deemed an acceptance.



     14. Whole Amendment; Full Force and Effect; Conflicts. This Amendment sets forth the entire
agreement between the parties with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. As amended herein, the Lease shall remain
in full force and effect. In case of any inconsistency between the provisions of the Lease and
this Amendment, the latter provisions shall govern.



     15. Interpretation. This Amendment shall be interpreted in a reasonable manner in conjunction
with the Lease. If an Exhibit is attached to this Amendment, the term “Lease” therein shall refer
to this Amendment or the Lease as amended, and terms such as “Commencement Date” and “Lease Term”
shall refer to analogous terms in this Amendment, all as the context expressly provides or
reasonably implies. Unless expressly provided to the contrary herein: (a)
any terms defined herein shall have the meanings ascribed herein when used as capitalized



8









 




terms in
other provisions hereof, (b) capitalized terms not otherwise defined herein shall have the
meanings, if any, ascribed thereto in the Lease, and (c) non-capitalized undefined terms herein
shall be interpreted broadly and reasonably to refer to terms contained in the Lease which have a
similar meaning, and as such terms may be further defined therein.



     16. Authority. Each signatory of this Amendment represents hereby that he or she has the
authority to execute and deliver the same on behalf of the party hereto for which such signatory is
acting.



     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth
above.



	 	 	 	 	 
	 

	 	LANDLORD:
	 	CMD REALTY INVESTMENT FUND IV, L.P. [SEAL]
	 

	 	 	 	an Illinois limited partnership






	 	 	 	 	 
	 

	 	By:
	 	CMD/Fund IV GP Investments, L.P.,
	 

	 	 	 	an Illinois limited partnership, its general partner






	 	 	 	 	 
	 

	 	By:
	 	CMD REIM IV, Inc., an Illinois corporation,
	 

	 	 	 	its general partner






	 	 	 	 	 
	 

	 	By:
	 	CMD Realty Investors, an Illinois general
	 

	 	 	 	partnership, as agent






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Hugh Zwieg	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	Hugh Zwieg	 	 
	 

	 	 	 	 

	 	 
	 

	 	Its:	 	 President	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	 

	 	TENANT:
	 	INTERCONTINENTALEXCHANGE, INC. [SEAL]
	 

	 	 	 	a Delaware corporation






	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Jeffrey C. Sprecher	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name: 	 	Jeffrey C. Sprecher	 	 
	 

	 	 	 	 

	 	 
	 

	 	Its:	 	 Chairman and Chief Executive
Officer	 	 
	 

	 	 	 	 

	 	 







9









 








EXHIBIT A




Floor Plate Showing Additional Premises





A-1









 







					
	 
	 	EXHIBIT B
	 	CMD 108C (3/04)
	 
	 	 	 	Minor/Moderate Work
	 
	 	WORK LETTER
	 	Tenant Performance/Allowance






     This Exhibit is a “Work Letter” to the foregoing document (referred to herein for convenience
as the “Lease Document”).



     I. BASIC ARRANGEMENT



     a. Tenant to Arrange for Work. Tenant desires to engage one or more contractors to perform
certain improvements (the “Work,” as further defined in Section VI) to or for the Premises
under the Lease Document. Tenant shall arrange for the Work to be planned and performed in
accordance with the provisions of this Exhibit and applicable provisions of the Lease Document.
Tenant shall pay when due all costs for or related to the Plans and Work whatsoever (“Costs of
the Work”), and Landlord shall reimburse certain such costs up to the Allowance, as further
described below.



     b. Allowance
and Administrative Fee. Landlord shall provide up to $[***] (the
“Allowance”) towards the Costs of the Work relating to permanent leasehold improvements and
the Monument Listing pursuant to Exhibit F to this Amendment (provided the portion of the
Allowance available for the Plans shall be limited to five percent (5%), and shall exclude planning
for furniture, trade fixtures and business equipment). Tenant shall pay Landlord’s reasonable
out-of-pocket costs, if any, for architectural and engineering review of the Plans and any
Engineering Report, and all revisions thereof, and an administrative fee (“Administrative
Fee”) of $[***] for Landlord’s time in reviewing the Plans and Work and coordinating with
Tenant’s Contractors. The costs of foregoing items may be charged against the Allowance, and if the
Allowance shall be insufficient, Tenant shall pay Landlord for such amounts as additional Rent
within fifteen (15) days after billing. Notwithstanding anything to the contrary contained herein,
any personal property, trade fixtures or business equipment, including, but not limited to, modular
or other furniture, and cabling for communications or computer systems, whether or not shown on the
Approved Plans, shall be provided by Tenant, at Tenant’s sole cost, and the Allowance shall not be
used for such purposes.



     c. Funding and Disbursement. Landlord shall fund and disburse the Allowance within thirty
(30) days after the Work has been completed in accordance with the Approved Plans in accordance
with the provisions hereof, and Tenant has submitted all invoices, architect’s certificates, a
Tenant’s affidavit, complete unconditional lien waivers and affidavits of payment by all Tenant’s
Contractors, and such other evidence as Landlord may reasonably require that the cost of the Work
has been paid and that no architect’s, mechanic’s, materialmen’s or other such liens have been or
may be filed against the Property or the Premises arising out of the design or performance of such
Work. Landlord may issue checks to fund the Allowance jointly or separately to Tenant, its general
contractor, and any other of Tenant’s Contractors. If Tenant does not use the entire Allowance for
the purposes permitted herein, or does not submit the foregoing documentation to Landlord, within
nine (9) months after the Additional Premises Commencement Date, then Landlord shall be entitled to
the savings and Tenant shall receive no credit therefore; provided that Landlord shall use up to
$[***] of any remaining portion of the Allowance to reimburse Tenant’s reasonable, direct,
out-of-pocket costs incurred for having its telecommunications and computer vendors install and
connect telecommunications cables in the Premises. Landlord shall make such reimbursement to
Tenant, out of any such remaining portion of the Allowance (i.e. that remains after final
completion of the Work including punch-list items), within thirty (30) days after Landlord receives
Tenant’s written request, subject to the following conditions: (x) Tenant’s request shall include
paid invoices and other evidence of such costs reasonably satisfactory to Landlord (including lien
waivers if applicable), and a letter signed by Tenant accepting the Work as being fully complete
and satisfactory, including punch-list items, (y) Tenant shall deliver the request and such items
to Landlord within nine (9) months after the Additional Premises Commencement Date, and (z) by the
time Landlord is required to pay the foregoing amount hereunder, Tenant shall have moved into the
Premises and shall be actively engaged in its business operations therein, and shall have
faithfully complied with this Lease and not then be in Default. If Tenant does not use the entire
foregoing amount for the purposes permitted herein, or has not satisfied the foregoing conditions,
by the time required herein, then Landlord shall be entitled to the savings and



                    



***
Confidential information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.



B-1









 







Tenant shall receive no credit therefor, time being of the essence of this provision so that
Landlord may close out Landlord’s books for the Work.



     II. PLANNING. The term “Plans” herein means a “Space Plan,” as the same may
be superseded by any “Construction Drawings,” prepared and approved pursuant to this Section (and
as such terms are further defined in Section VI). In the event of any inconsistency between the
Space Plan and Construction Drawings, or revisions thereto, as modified to obtain permits, the
latest such item approved by Landlord shall control. The term “Approved Plans” herein
means the Plans (and any revisions thereof) as approved by Landlord in writing in accordance with
this Section.



     a. Tenant’s Planners. Tenant shall engage a qualified, licensed architect (“Architect”),
subject to Landlord’s prior written approval. To the extent required by Landlord or appropriate in
connection with preparing the Plans, Tenant shall also engage one or more qualified, licensed
engineering firms, e.g. mechanical, electrical, plumbing, structural and/or HVAC (“Engineers”), all
of whom shall be designated or approved by Landlord in writing. The term “Tenant’s
Planners” herein shall refer collectively or individually, as the context requires, to the
Architect or Engineers engaged by Tenant, and approved or designated by Landlord in writing in
accordance with this Exhibit.



     Notwithstanding anything contained herein to the contrary, Tenant agrees to engage Peacock
Architects to prepare the Construction Drawings (as defined below).



     b. Space Plan and Construction Drawings. Tenant shall promptly hereafter cause the Architect
to submit three (3) sets of a “Space Plan” (as defined in Section VI) to Landlord for
approval. Landlord shall, within ten (10) working days after receipt thereof, either approve said
Space Plan, or disapprove the same advising Tenant of the reasons for such disapproval. In the
event Landlord disapproves said Space Plan, Tenant shall modify the same, taking into account the
reasons given by Landlord for said disapproval, and shall submit three (3) sets of the revised
Space Plan to Landlord. Landlord shall review or comment on all revised plans and drawings (that
have been approved by Tenant and are re-submitted to Landlord for approval) within five (5)
business days after receipt of same. If Landlord provides comments to a revised Space Plan, then
the process outlined above shall continue with all subsequent review and comment periods of
Landlord being limited to five (5) business days (it being understood that Landlord shall be
entitled to comment solely on the revised portions of such plan or drawing, unless the revisions
affect any other portion of the plan or drawing or unless Landlord discovers a previously
undetected material error in another portion of the plan or drawing). To the extent required by
Landlord or the nature of the Work and as further described in Section VI, Tenant shall, after
Landlord’s approval of the Space Plan: (i) cause the Architect to submit to Landlord for approval
“Construction Drawings” (including, as further described in Section VI below, sealed
mechanical, electrical and plumbing plans prepared by a qualified, licensed Engineer approved or
designated by Landlord), and (ii) cause the Engineers to submit for Landlord’s approval a report
(the “Engineering Report”) indicating any special heating, cooling, ventilation,
electrical, heavy load or other special or unusual requirements of Tenant, including calculations.
Landlord shall, within fifteen (15) working days after receipt thereof (or such longer time as may
be reasonably required in order to obtain any additional architectural, engineering or HVAC report
or due to other special or unusual features of the Work or Plans), either approve the Construction
Drawings and Engineering Report, or disapprove the same advising Tenant of the reasons for
disapproval. If Landlord disapproves of the Construction Drawings or Engineering Report, Tenant
shall modify and submit revised Construction Drawings, and a revised Engineering Report, taking
into account the reasons given by Landlord for disapproval. Landlord shall review or comment on
all revised Construction Drawings and revised Engineering Report (that have been approved by Tenant
and are re-submitted to Landlord for approval) within five (5) business days after receipt of same.
If Landlord provides comments to revised Construction Drawings or revised Engineering Report, then
the process outlined above shall continue with all subsequent review and comment periods of
Landlord being limited to five (5) business days (it being understood that Landlord shall be
entitled to comment solely on the revised portions of such revised Construction Drawings or revised
Engineering Report, unless the revisions affect any other portion of the revised Construction
Drawings or revised Engineering Report or unless Landlord discovers a previously undetected
material error in another portion of the revised Construction Drawings or revised Engineering
Report). The Construction Drawings shall



B-2









 







include a usable computer aided design (CAD) file. In the event that Landlord fails to timely pay
the Allowance in accordance with this Section I.b. and such failure continues for more than five
(5) business days following receipt of written notice from Tenant of such failure, then the unpaid
amount of the Allowance shall accrue interest from the due date at the Default Rate until payment
is received by Landlord..



     c. Tenant’s Planning Responsibility and Landlord’s Approval. Tenant has sole responsibility
to provide all information concerning its space requirements to Tenant’s Planners, to cause
Tenant’s Planners to prepare the Plans, and to obtain Landlord’s final approval thereof (including
all revisions). Tenant and Tenant’s Planners shall perform independent verifications of all field
conditions, dimensions and other such matters), and Landlord shall have no liability for any
errors, omissions or other deficiencies therein. Landlord shall not unreasonably withhold,
condition or delay approval of any Plans or Engineering Report submitted hereunder, if they provide
for a customary office layout, with finishes and materials generally conforming to building
standard finishes and materials currently being used by Landlord at the Property, are compatible
with the Property’s shell and core construction, and if no modifications will be required for the
Property electrical, heating, air-conditioning, ventilation, plumbing, fire protection, life
safety, or other systems or equipment, and will not require any structural modifications to the
Property, whether required by heavy loads or otherwise, and will not create any potentially
dangerous conditions, potentially violate any codes or other governmental requirements, potentially
interfere with any other occupant’s use of its premises, or potentially increase the cost of
operating the Property.



     Tenant shall have the right to install a stairwell between Tenant’s Premises on the
5th and 6th floors, subject to Landlord’s right to approve the details of
such installation, including without limitation, location, design and materials and subject to the
other provisions of this Work Letter.



     d. Governmental Approval of Plans; Building Permits. Tenant shall cause Tenant’s Contractors
(as defined in Section III.a) to apply for any building permits, inspections and occupancy
certificates required for or in connection with the Work. If the Plans must be revised in order to
obtain such building permits, Tenant shall promptly notify Landlord, promptly arrange for the Plans
to be revised to satisfy the building permit requirements, and shall submit the revised Plans to
Landlord for approval as a Change Order under Paragraph e below. Landlord shall have no obligation
to apply for any zoning, parking or sign code amendments, approvals, permits or variances, or any
other governmental approval, permit or action. If any such other matters are required, Tenant
shall promptly seek to satisfy such requirements (if Landlord first approves in writing), or shall
revise the Plans to eliminate such requirements and submit such revised Plans to Landlord for
approval in the manner described above. Upon request, at no cost to Landlord, Landlord shall (if
Landlord has approved same as provided above) assist Tenant in obtaining all such permits and other
items.



     e. Changes After Plans Are Approved. If Tenant shall desire, or any governmental body shall
require, any changes, alterations, or additions to the Approved Plans, Tenant shall submit a
detailed written request or revised Plans (the “Change Order”) to Landlord for approval,
which written request or revised Plans shall be reviewed by Landlord in the manner provided for in
Section II.b. above. If reasonable and practicable and generally consistent with the Plans
theretofore approved, Landlord shall not unreasonably withhold, condition or delay its approval.
All costs in connection therewith, including, without limitation, construction costs, permit fees,
and any additional plans, drawings and engineering reports or other studies or tests, or revisions
of such existing items, shall be included in the Costs of the Work under Section VI. In the event
that the Premises are not constructed in substantial accordance with the Approved Plans, Tenant
shall not be permitted to occupy the Premises until the Premises reasonably comply in all respects
therewith; in such case, the Rent shall nevertheless commence to accrue and be payable as otherwise
provided in the Lease Document.



     III. CONTRACTORS AND CONTRACTS. Tenant shall engage to perform the Work such
contractors, subcontractors and suppliers (“Tenant’s Contractors”) as Landlord customarily
engages or recommends for use at the Property; provided, Tenant may substitute other licensed,
bonded, reputable and qualified parties capable of performing quality workmanship who have good
labor relations and will



B-3









 







be able to work in harmony with each other and those of Landlord and other occupants of the
Property so as to ensure proper maintenance of good labor relationships, and in compliance with all
applicable labor agreements existing between trade unions and the relevant chapter of the
Association of General Contractors of America. Such substitutions may be made only with Landlord’s
prior written approval. Such approval shall be granted, granted subject to specified reasonable
conditions, or denied within ten (10) working days after Landlord receives from Tenant a written
request for such substitution, containing a reasonable description of the proposed party’s
background, finances, references, qualifications, and other such information as Landlord may
request. For Work involving any mechanical, electrical, plumbing, structural, demolition or HVAC
matters, or any Work required to be performed outside the Premises or involving Tenant’s entrance,
Landlord may require that Tenant select Tenant’s Contractors from a list of such contractors.



     IV. PERFORMANCE OF WORK



     a. Conditions to Commencing Work. Before commencing any Work, Tenant shall: (i) obtain
Landlord’s written approval of Tenant’s Planners and the Plans, as described in Section II, (ii)
obtain and post all necessary governmental approvals and permits as described in Section II, and
provide copies thereof to Landlord, (iii) obtain Landlord’s written approval of Tenant’s
Contractors, and provide Landlord with copies of the contracts as described in Section III, and
(iv) provide evidence of insurance to Landlord as required under the Lease Document.



     b. Compliance and Standards. Tenant shall cause the Work to comply in all respects with the
following: (i) the Approved Plans, (ii) the Property Code of the City and State in which the
Property is located and Federal, State, County, City or other laws, codes, ordinances, rules,
regulations and guidance, as each may apply according to the rulings of the controlling public
official, agent or other such person, (iii) applicable standards of the National Board of Fire
Underwriters (or successor organization) and National Electrical Code, (iv) applicable
manufacturer’s specifications, and (v) any work rules and regulations as Landlord or its agent may
have adopted for the Property, including any Rules attached as an Exhibit to the Lease Document.
Tenant shall use only new, first-class materials in the Work, except where explicitly shown in the
Approved Plans. Tenant’s Work shall be performed in a thoroughly safe, first-class and workmanlike
manner, and shall be in good and usable condition at the date of completion. In case of
inconsistency, the requirement with the highest standard protecting or favoring Landlord shall
govern.



     c. Property Operations, Dirt, Debris, Noise and Labor Harmony. Tenant and Tenant’s
Contractors shall make all efforts and take all proper steps to assure that all construction
activities do not interfere with the operation of the Property or with other occupants of the
Property. Tenant’s Work shall be coordinated under Landlord’s direction with any other work and
other activities being performed for or by other occupants in the Property so that Tenant’s Work
will not interfere with or delay the completion of any other work or activity in the Property.
Construction equipment and materials are to be kept within the Premises, and delivery and loading
of equipment and materials shall be done at the Building loading dock and freight elevator, at
such time as Landlord shall direct so as not to burden the construction or operation of the
Property. Tenant’s Contractors shall comply with any work rules of the Property and Landlord’s
requirements respecting the hours of availability of elevators and manner of handling materials,
equipment and debris. Demolition must be performed before 7:00 a.m. or after 6:00 p.m. and on
weekends, or as otherwise required by Landlord or the work rules for the Property. Construction
which creates noise, odors or other matters that may bother other occupants may be rescheduled by
Landlord at Landlord’s sole discretion. Delivery of materials, equipment and removal of debris
must be arranged to avoid any inconvenience or annoyance to other occupants. The Work and all
cleaning in the Premises must be controlled to prevent dirt, dust or other matter from infiltrating
into adjacent occupant, common or mechanical areas. Tenant shall conduct its labor relations and
relations with Tenant’s Planners and Contractors, employees, agents and other such parties so as to
avoid strikes, picketing, and boycotts of, on or about the Premises or Property. If any employees
of the foregoing parties strike, or if picket lines or boycotts or other visible activities
objectionable to Landlord are established, conducted or carried out against Tenant or such parties
in or about the Premises or Property, Tenant shall immediately



B-4









 







close the Premises and remove or cause to be removed all such parties until the dispute has been
settled.



     d. Removal of Debris. Tenant’s Contractors shall be required to remove from the Premises and
dispose of, at least once a day and more frequently as Landlord may direct, all debris and rubbish
caused by or resulting from the Work, and shall not place debris in the Property’s waste
containers. Tenant shall be permitted to place a trash dumpster at the Building loading dock. If
required by Landlord, Tenant shall sort and separate its waste and debris for recycling and/or
environmental law compliance purposes. Upon completion of Tenant’s Work, Tenant’s Contractors
shall remove all surplus materials, debris and rubbish of whatever kind remaining within the
Property which has been brought in or created by Tenant’s Contractors in the performance of
Tenant’s Work. If any of Tenant’s Contractors shall neglect, refuse or fail to remove any such
debris, rubbish, surplus material or temporary structures within 48 hours after notice to Tenant
from Landlord with respect thereto, Landlord may cause the same to be removed by contract or
otherwise as Landlord may determine expedient, and charge the cost thereof to Tenant as additional
Rent under the Lease Document.



     e. Completion and General Requirements. Tenant shall use commercially reasonable efforts to
cause Tenant’s Planners to prepare the Approved Plans, and to cause Tenant’s Contractors to obtain
permits or other approvals, diligently commence and prosecute the Work to completion, and obtain
any inspections and occupancy certificates for Tenant’s occupancy of the Premises by the Additional
Premises Commencement Date set forth in the Lease Document. Any delays in the foregoing shall not
serve to abate or extend the time for the Additional Premises Commencement Date or commencement of
Rent under the Lease Document, except to the extent of the following, provided substantial
completion of the Work and Tenant’s ability to reasonably use the Premises by the Additional
Premises Commencement Date (or by such later date when Tenant would otherwise have substantially
completed the Work) is actually delayed thereby: (i) one (1) day for each day that Landlord delays
approvals required hereunder beyond the times permitted herein without good cause, and (ii) any
delay in the Work caused by fire or other casualty damage, war or civil disorder, strikes,
lockouts, labor troubles, inability to procure labor or materials or reasonable substitutes or
other events outside of Tenant’s reasonable control (excluding delays resulting from changes in
economic or market conditions, or financial or internal problems of Tenant and excluding delays by
the City of Sandy Springs in processing building permits), collectively, “Force Majeure”, which
shall delay the Additional Premises Commencement Date on a day-for-day basis. Force Majeure shall
apply only so long as Tenant uses commercially reasonable diligence and good faith efforts to end
the delay, and keeps Landlord reasonably advised of such efforts. Tenant shall impose on and
enforce all applicable terms of this Exhibit against Tenant’s Planners and Tenant’s Contractors.
Landlord may impose reasonable additional requirements from time to time in order to ensure that
the Work, and the construction thereof does not disturb or interfere with any other occupants of
the Property, or their visitors, contractors or agents, nor interfere with the efficient, safe and
secure operation of the Property. Tenant shall notify Landlord upon completion of the Work (and
record any notice of completion contemplated by law). To the extent reasonably appropriate based
on the nature of the Work, Tenant shall provide Landlord with “as built” drawings no later than
thirty (30) days after completion of the Work.



     f. Landlord’s Role and Rights. The parties acknowledge that neither Landlord nor its managing
agent is an architect or engineer, and that the Work will be designed and performed by independent
architects, engineers and Tenant’s Contractors engaged by Tenant. Landlord and its managing agent
shall have no responsibility for construction means, methods or techniques or safety precautions in
connection with the Work, and do not guarantee that the Plans or Work will be free from errors,
omissions or defects, and shall have no liability therefor. Landlord’s approval of Tenant’s Plans
and contracts, and Landlord’s designations, lists, recommendations or approvals concerning Tenant’s
Planners and Contractors shall not be deemed a warranty as to the quality or adequacy thereof or of
the Plans or the Work, or the design thereof, or of its compliance with laws, codes and other legal
requirements. Tenant shall permit access to the Premises, and inspection of the Work, by Landlord
and Landlord’s architects, engineers, contractors and other representatives, at all times during
the period in which the Work is being planned, constructed and installed and following completion
of the Work. Landlord shall have the right, but not the obligation, to order Tenant or any of
Tenant’s Contractors who



B-5









 







violate the requirements imposed on Tenant or Tenant’s Contractors in performing the Work to cease
the Work and remove its equipment and employees from the Property.



     V. HVAC BALANCING. As a final part of the Work, Tenant shall cause its contractor to
perform air balancing tests and adjustments on all areas of the Premises served by the air handling
system that serves the areas in which the Work is performed (including any original space and any
additional space being added to the Premises in connection herewith). Landlord shall not be
responsible for any disturbance or deficiency created in the air conditioning or other mechanical,
electrical or structural facilities within the Property or Premises as a result of the Work. If
such disturbances or deficiencies result, and Tenant’s contractor does not properly correct the
same, Landlord reserves the right, after fifteen (15) days notice to Tenant, to correct the same
and restore the services to Landlord’s reasonable satisfaction, at Tenant’s reasonable expense.



     VI. CERTAIN DEFINITIONS



     a. “Space Plan” herein means, to the extent required by the nature of the Work, detailed plans
(including any so-called “pricing plans”), including a fully dimensioned floor plan and drawn to
scale, showing: (i) demising walls, interior walls and other partitions, including type of wall or
partition and height, and any demolition or relocation of walls, and details of space occupancy and
density, (ii) doors and other openings in such walls or partitions, including type of door and
hardware, (iii) electrical and computer outlets, circuits and anticipated usage therefor, (iv) any
special purpose rooms, any sinks or other plumbing facilities, heavy items, and any other special
electrical, HVAC or other facilities or requirements, including all special loading and related
calculations, (v) any space planning considerations to comply with fire or other codes or other
governmental or legal requirements, (vi) finish selections, and (vii) any other details or features
requested by Architect, Engineer or Landlord, or otherwise required, in order for the Space Plan to
serve as a basis for Landlord to approve the Work, and for Tenant to contract and obtain permits
for the Work, or for the Space Plan to serve as a basis for preparing Construction Drawings.



     b. “Construction Drawings” herein means, to the extent required by the nature of the Work,
fully dimensioned architectural construction drawings and specifications, and any required
engineering drawings, specifications and calculations (including mechanical, electrical, plumbing,
structural, air-conditioning, ventilation and heating), and shall include any applicable items
described above for the Space Plan, and any other details or features requested by Architect,
Engineer or Landlord in order for the Construction Drawings to serve as a basis for Landlord to
approve the Work, and for Tenant to contract and obtain permits for the Work.



     c. “Work” herein means: (i) the improvements and items of work shown on the final Approved
Plans (including changes thereto), and (ii) any preparation or other work required in connection
therewith, including without limitation, structural or mechanical work, additional HVAC equipment
or sprinkler heads, or modifications to any building mechanical, electrical, plumbing or other
systems and equipment or relocation of any existing sprinkler heads, either within or outside the
Premises required as a result of the layout, design, or construction of the Work or in order to
extend any mechanical distribution, fire protection or other systems from existing points of
distribution or connection, or in order to obtain building permits for the work to be performed
within the Premises (unless Landlord requires that the Plans be revised to eliminate the necessity
for such work).



     VII. MISCELLANEOUS. If this Work Letter is attached as an Exhibit to an amendment to
an existing lease (“Original Lease”), whether such amendment adds space, relocates the
Premises or makes any other modifications, the term “Lease Document” herein shall refer to
such amendment, or the Original Lease as amended, as the context implies. By way of example, in
such case, references to the “Premises” and “Commencement Date” herein shall refer, respectively,
to such additional or relocated space and the effective date for delivery thereof under such
amendment, unless expressly provided to the contrary herein. Capitalized terms not otherwise
defined herein shall have the meanings, if any, ascribed thereto in the Lease Document. This
Exhibit is intended to supplement and be subject to the provisions of the Lease Document,
including, without limitation, those provisions requiring that any modification or amendment be in
writing and signed by authorized representatives of both parties. The rights granted in



B-6









 







this Exhibit are personal to Tenant as named in the Lease Document, and are intended to be
performed for such Tenant’s occupancy of the Premises. Under no circumstance whatsoever shall any
assignee or subtenant have any rights under this Exhibit. Any remaining obligations of Landlord
under this Exhibit not theretofore performed shall concurrently terminate and become null and void
if Tenant subleases or assigns the Lease Document with respect to all or any portion of the
Premises, or seeks or proposes to do so (or requests Landlord’s consent to do so), or if Tenant or
any current or proposed affiliate thereof issues any written statement indicating that Tenant will
no longer move its business into, or that Tenant will vacate and discontinue its business from, the
Premises or any material portion thereof. Any termination of Landlord’s obligations under this
Exhibit pursuant to the foregoing provisions shall not serve to terminate or modify any of Tenant’s
obligations under the Lease Document. In addition, notwithstanding anything to the contrary
contained herein, Landlord’s obligations under this Exhibit, including obligations to perform any
work, or provide any Allowance or rent credit, shall be subject to the condition that Tenant shall
have faithfully complied with the Lease, and shall not have committed a violation under the Lease
by the time that Landlord is required to perform such work or provide such Allowance or rent
credit.



B-7









 





					
	 
	 	EXHIBIT C
	 	CMD 111F (8/04)
	 
	 	FREE RESERVED PARKING
	 	Free Reserved Spaces
	 
	 	 	For New Lease






     1. Reserved Parking. Out of the overall number of parking spaces that Tenant may use under
Rule (24) in Exhibit B to the Original Lease, Tenant and its employees and business invitees
occupying the Premises designated by Tenant shall have a license to use five (5) contiguous
reserved spaces in the Parking Facility (“Reserved Spaces”) in the location set forth on
Exhibit C-1 attached hereto, subject to the other provisions hereof. Such Reserved Spaces shall be
assigned parking spaces identified with numbers in accordance with Landlord’s standard procedures,
provided Landlord shall have no obligation to tow vehicles that are improperly parked in such
assigned spaces (but Landlord reserves the right to do so after receiving notice thereof from
Tenant or otherwise).



     2. No Charges For Initial Term. The Reserved Spaces shall be free of separate parking charges
during the Extended Term hereunder.



     3. Other Provisions. The term (“License Term”) of this license shall commence five (5) days
after execution and delivery of this Amendment by both parties, and shall continue until the
earlier to occur of the expiration or earlier termination of the Lease, or at Landlord’s option
without prior notice after Tenant’s abandonment of the Premises. Tenant may, from time to time,
request additional parking spaces, and if Landlord shall provide the same, such spaces shall be
provided and used on a month-to-month basis, and otherwise on the other terms and provisions
herein, and for such monthly parking charges as Landlord shall establish from time to time. All
spaces hereunder shall be used solely for the purpose of parking non-commercial passenger vehicles.
As a condition to the use of such spaces, Landlord may require that Tenant and/or each individual
using such spaces sign and comply with such further documentation as any parking facility
management company for the Parking Facility may reasonably require. The parking spaces hereunder
shall be subject to the Rules attached as Exhibit B to the Original Lease, except to the extent
expressly inconsistent herewith. Tenant may transfer the parking rights hereunder pro rata to the
subtenant or assignee in connection with a sublease or assignment of this Lease. However, Tenant
shall not otherwise assign, mortgage, pledge, hypothecate, encumber or permit any lien to attach
to, or otherwise transfer, the rights under this Exhibit, by operation of law or otherwise, nor
sublicense the parking spaces hereunder, nor permit the use thereof by any parties other than
Tenant and its employees and business invitees (and any attempt to engage in such a transfer of the
parking rights hereunder shall, at Landlord’s written election, be null and void ab initio).
Notwithstanding the foregoing to the contrary, the Reserved Spaces hereunder are personal to the
initial Tenant named in this Lease, and Landlord reserves the right in connection with any
sublease, assignment or other transfer of or under the Lease, or at anytime thereafter, to convert
any Reserved Spaces to general unreserved spaces.



C-1









 





EXHIBIT C-1




Location of Reserved Spaces





C-1-1









 







					
	 
	 	EXHIBIT D
	 	CMD 116A (1/02)
	 
	 	 	 	Short Form
	 
	 	EXTENSION OPTIONS
	 	Market Rates






     1. Options to Extend. Subject to the other provisions hereof, Landlord hereby grants Tenant
two options (each, an “Extension Option”) to extend the then-current Term of the Lease,
each option to be for an additional period of five (5) consecutive years from the expiration of the
prior period (each an “Extension Period”), on the same terms and conditions then in effect
under this Lease immediately prior to the Extension Period, except as modified by the “Market
Rates, Terms and Conditions” further described below, and Tenant shall have no further option to
extend after exercise of the second Extension Option. Tenant may exercise an Extension Option only
by giving Landlord written notice thereof (“Tenant’s Exercise Notice”) no earlier than
fourteen (14) and no later than twelve (12) full calendar months prior to commencement of the
subject Extension Period. Tenant’s Exercise Notice shall be unconditional and irrevocable (except
as expressly provided herein).



     2. Landlord’s Notice of Market Rates, Terms and Conditions; Disagreement. Within thirty (30)
days after receiving Tenant’s Exercise Notice, Landlord shall provide Tenant with notice
(“Landlord’s Notice”) of the Market Rates, Terms and Conditions, subject to the other
provisions hereof. The term “Market Rates, Terms and Conditions” herein shall mean Landlord’s good
faith determination of fair market Base Rent and other terms and conditions (including, but not
limited to any scheduled increases in Base Rent, any base years or stops for taxes or expenses, and
any improvements or an allowance therefor) for renewing the Lease for the Premises during the
Extension Period, taking into account comparable renewals of comparable tenants of comparable
financial condition in comparable non-sublease space in comparable “Class A” suburban buildings in
the Market Area. If the Market Rates, Terms and Conditions determined by Landlord are acceptable
to Tenant, then Tenant shall confirm its exercise of the Extension Option by notice (“Tenant
Confirmation Notice”) to Landlord confirming such acceptance given no later than thirty (30)
days after Landlord’s Notice. However, if the Market Rates, Terms and Conditions determined by
Landlord are not acceptable to Tenant, then Tenant may, no later than thirty (30) days after
Landlord’s Notice, deliver to Landlord a notice (“Tenant’s Market Notice”) of Tenant’s good
faith determination of the Market Rates, Terms and Conditions and reasons therefor. If Tenant
provides a timely Tenant’s Market Notice, the parties shall seek to agree on the Market Rates,
Terms and Conditions in the form of a non-binding letter of intent (“Letter of Intent”)
during the period (“Negotiation Period”) ending fifteen (15) days after Tenant’s Market
Notice. If Tenant delivers a timely Tenant Confirmation Notice, or if the parties enter into the
Letter of Intent concerning the Market Rates, Terms and Conditions during the Negotiation Period,
then the parties shall seek to agree on and enter into a mutually acceptable formal written
extension amendment to the Lease (“Extension Amendment”) setting forth the final and
definitive Market Rates, Terms and Conditions and other mutually acceptable provisions for the
Lease extension during the period ending thirty (30) days after Tenant’s Confirmation or Market
Notice, as the case may be (“Documentation Period”). Notwithstanding, if Tenant provides a
Market Rate Notice, then Tenant, may, at anytime before the end of the foregoing Documentation
Period, leave Tenant’s Exercise Notice irrevocably and unconditionally in effect and provide notice
(“Arbitration Request Notice”) of Tenant’s desire to arbitrate in accordance with this
Exhibit. Tenant shall be deemed to have revoked its exercise of the Extension Option, and the
Extension Option and Tenant’s exercise thereof shall be null and void if: (a) Tenant fails to
provide a timely Tenant Confirmation Notice or Tenant’s Market Notice, or (b) the parties fail to
enter into the Letter of Intent within the Negotiation Period, or fail to mutually sign and deliver
the Extension Amendment within the Documentation Period, unless Tenant delivers a timely
Arbitration Request Notice. However, if Tenant delivers a timely Arbitration Request Notice, then
Tenant’s Exercise Notice shall remain irrevocably and unconditionally in effect, and the “Base Rent
Component” shall be determined as provided below.



     3. Arbitration. If Tenant provides an Arbitration Request Notice within the time required
herein, each party shall within the next fifteen (15) days, at its own cost and expense, give
notice (“Arbitration Appointment Notice”) to the other party appointing a licensed
commercial real estate broker with at least seven (7) years of full-time experience leasing
comparable office space in comparable buildings in the same market area to determine the Base Rent
component (“Base Rent Component”) of the Market Rates, Terms and Conditions, including any
fixed increases in such Base Rent Component,



D-1




 









 







taking into account the other provisions of this Exhibit, and the other components of the Market
Rates, Terms and Conditions contained in Landlord’s Notice (such as whether such Market Rates,
Terms and Conditions include leasehold improvements or other economic concessions, or a base year
or stop level for Taxes or Expenses). If a party does not appoint such a broker within such
fifteen (15) day period, and so fails for an additional fifteen (15) day period following further
notice from the other party requesting such appointment, and giving notice of the name of its
broker, the single broker appointed shall be the sole broker and shall reasonably and in good faith
determine the Base Rent Component. If the two brokers are appointed by the parties as stated
herein, they shall meet promptly and attempt to determine the Base Rent Component. If they are
unable to agree on the Base Rent Component within fifteen (15) days after the second broker has
been appointed, they shall elect a third broker meeting the standards set forth above, and who has
not previously acted in any capacity for either party, within fifteen (15) days thereafter. Each
of the parties hereto shall bear one-half of the cost of appointing the third broker and of paying
the third broker’s fee. Within fifteen (15) days after the selection of the third broker, a
majority of the brokers shall determine the Base Rent Component. If a majority of the brokers are
unable to determine the Base Rent Component within such period, each broker shall thereupon submit
his final determination in writing, the three determinations shall be added together and the total
divided by three, and the resulting quotient shall be the Base Rent Component, subject to the
following provisions. If the low or high determination are more than ten (10) percent lower and/or
higher than the middle determination, the low determination and/or the high determination shall be
disregarded. If only one determination is disregarded, the remaining two determinations shall be
added together and their total divided by two, and the resulting quotient shall be the Base Rent
Component. If both the low determination and the high determination are disregarded as provided
herein, the middle determination shall be the Base Rent Component. If, for any reason, the Base
Rent Component has not been resolved by the commencement of the Extension Period, Tenant shall
commence paying Base Rent, Taxes, Expenses and other sums in accordance with Landlord’s Notice on
the commencement of the Extension Period, subject to retroactive and prospective adjustment after
the matter is resolved. An arbitration decision made in accordance with this Exhibit shall be
final and binding on the parties. Tenant and the brokers shall be required to keep all matters
pertaining to the arbitration strictly confidential and shall be required to sign such
confidentiality agreements as Landlord reasonably requires.




     4. General Matters. If Tenant validly exercises the Extension Option, Tenant shall execute an
amendment (“Extension Amendment”), which shall be mutually and reasonably agreeable to both
parties, to confirm the extension of the Term, within the time required in Section 2 above, or
otherwise thirty (30) days after Landlord reasonably prepares and provides the same to Tenant. The
Extension Option herein shall, at Landlord’s election, be conditioned on the Lease being in full
force and effect, and Tenant not then being in default beyond any applicable cure period under the
Lease, at the time Tenant seeks to exercise the Extension Option, or at any time thereafter and
prior to commencement of the Extension Period. If Tenant shall fail to properly and timely
exercise the Extension Option, then the Extension Option shall thereupon terminate. STRICT
COMPLIANCE AND TIMELINESS IN GIVING TENANT’S NOTICES AND SIGNING THE EXTENSION AMENDMENT HEREUNDER
IS OF THE ESSENCE OF THIS PROVISION. The rights granted in this Exhibit are personal to Tenant as
named in this Lease document. Under no circumstance whatsoever shall the assignee under a complete
or partial assignment of the Lease document, or a subtenant under a sublease of the Premises, have
any right to exercise the rights of Tenant under this Exhibit. If Tenant shall sublease or assign
the Lease with respect to all or any portion of the Premises, then immediately upon such sublease
or assignment Tenant’s rights under this Exhibit shall concurrently terminate and become null and
void.



D-2




 









 








					
	 
	 	EXHIBIT E
	 	CMD 117C (1/02)
	 
	 	 	 	Vacant/Occupied
	 
	 	RIGHT OF OFFER
	 	Expansion Spaces






     1. Right of Offer. Landlord hereby grants Tenant an ongoing Right of Offer (“Right of
Offer”) to lease: (a) all fourth (4th) floor space in the Building, and (b) all
remaining sixth (6th) floor space in the Building not included in the Additional
Premises hereunder (individually and collectively, the “Expansion Space”) all on and
subject to the following provisions; provided, this Right of Offer and Landlord’s obligation to
provide a “Landlord Notice” shall be in effect commencing on the Additional Premises Commencement
Date.



     2. Landlord’s Notice of Expansion Terms. While this Right of Offer is in effect, Landlord
shall notify Tenant in writing (“Landlord’s Notice”): (i) as to any currently available
portions of the Expansion Space, when Landlord enters or intends to enter negotiations with a third
party to lease the Expansion Space (and Landlord’s good faith determination of whether negotiations
have been entered or are about to be entered shall be conclusive and binding upon the parties), or
(ii) as to any currently unavailable portions of the Expansion Space, when such areas become
available, or (iii), at Landlord’s option, at any time prior thereto or thereafter, but in any
event prior to leasing the Expansion Space to another party. Landlord’s Notice shall set forth the
terms (“Expansion Terms”) on which Landlord proposes to lease the Expansion Space to
Tenant, including, but not limited to, a date for the commencement of the lease thereof
(“Expansion Space Commencement Date”), and the other items as further set forth below.



          a. Expansion Space Commencement Date Within First 365 Days. If the Expansion Space
Commencement Date will occur within the first 365 days after the Additional Premises Commencement
Date under this Amendment, Landlord’s Notice shall set forth “Expansion Terms” as follows: (i) an
Expansion Space Commencement Date, (ii) an expiration date therefor, which shall be co-terminous
with the Term of the Lease, (iii) rentable area,
(iv) monthly base rent shall be $[***] per
rentable square foot of the Expansion Space, and shall increase on June 1, 2007 and each succeeding
June 1 during the Extended Term by 2.5% of the base rent for the Expansion Space for the preceding
12-month period, (v) Tenant’s Share of Taxes and Expenses applicable to the Expansion Space (any
so-called Base Expense Year and Base Tax Year shall be the same as set forth in Section 5 of this
Amendment), and (vi) that the space shall be provided in “as is” condition at the time possession
is delivered, except that Landlord shall provide an allowance (“Expansion Allowance”)
towards Tenant’s reasonable direct out-of-pocket costs of designing and performing permanent
leasehold improvements to the Expansion Space of up to $[***] times the number of square feet of
rentable area of the subject Expansion Space, multiplied by a fraction, the numerator of which is
the number of full calendar months that will be left in the Extended Term of this Lease on the
Expansion Space Commencement Date, and the denominator of which is the total number of full
calendar months in the Extended Term of this Lease.




          b. Expansion Space Commencement Date After 365 Days. If the Expansion Space
Commencement Date will occur more than 365 days after the Additional Premises Commencement Date
under this Amendment, then Landlord’s Notice shall set forth “Expansion Terms” on which Landlord
proposes to lease the Expansion Space to Tenant, including, but not limited to, an Expansion Space
Commencement Date, and an expiration date therefor or whether the term therefor will be
co-terminous with the Term of this Lease, rentable area, monthly base rent and any scheduled
increases therein, Tenant’s share of taxes, expenses and other such items (and any base year or
stop level therefor), any tenant improvements or allowance therefor, and any other terms and
conditions, as determined in Landlord’s good faith discretion, taking into account comparable
expansion terms generally being provided for comparable tenants of comparable financial condition
for comparable non-sublease space in comparable “Class A” suburban buildings in the Market Area for
time periods that are substantially the same as the period of time during which the Expansion Space
will be leased to Tenant.




          c. General Terms. Except as set forth in Landlord’s Notice, the Expansion Terms shall
be deemed to include the same terms then in effect on the Expansion Space Commencement Date, and
thereafter scheduled to be in effect, under the Lease (with any matters in the Lease based on
square



                    



***
Confidential information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.




E-1




 










 







footage adjusted proportionately to reflect the rentable area of the Expansion Space and Landlord’s
then current Building standard ratios and policies).




     3. Tenant’s Notice and Financial Information. If Tenant desires to lease the Expansion Space
on the Expansion Terms set forth in Landlord’s Notice, Tenant shall so notify Landlord in writing
(“Tenant’s Notice”) exercising Tenant’s right to lease the Expansion Space on such
Expansion Terms within five (5) business days after Landlord sends Landlord’s Notice. In order to
be effective, Tenant’s Notice shall include financial information for Tenant’s business comparable
to the information provided in connection with entering into this Amendment. If Landlord
determines in good faith that Tenant’s financial condition is worse than the condition that
Landlord accepted when the parties entered into this Lease document, Landlord may withdraw
Landlord’s Notice and the Right of Offer, or provide a new Landlord’s Notice with reasonably
modified Expansion Terms or reasonable additional security requirements taking into account
Tenant’s financial condition.



     4. Expansion Documentation; Failure to Exercise Right Of Offer or to Sign Expansion
Documentation. If Tenant validly exercises Tenant’s Right Of Offer herein, the parties shall
execute a confirmatory amendment (“Expansion Documentation”), mutually and reasonably
agreeable to both parties, to confirm the leasing of the Expansion Space, which Landlord shall
reasonably prepare, and which shall be consistent with Landlord’s Notice and the provisions hereof.
The parties shall cooperate diligently and in good faith, and use commercially reasonable efforts,
to sign and deliver the Expansion Documentation within twenty (20) days after Landlord provides the
same to Tenant (but the Right Of Offer shall be deemed to have been unconditionally and irrevocably
exercised, and both parties shall be fully bound by the terms thereof in accordance with the
provisions hereof, whether or not such confirmatory Expansion Documentation is signed). Once
Tenant provides Tenant’s Notice exercising Tenant’s Right of Offer, Landlord shall have no further
obligation to provide a Landlord’s Notice respecting the Expansion Space included in Landlord’s
Notice (provided, this Right of Offer shall continue to apply to any portions of the Expansion
Space that were not included in Landlord’s Notice as further provided below). If Tenant fails to
validly exercise such Right Of Offer, or fails to sign and deliver the Expansion Documentation to
Landlord, strictly in accordance with the terms hereof, such Right Of Offer shall be deemed to have
lapsed and expired as to the Expansion Space that was included in Landlord’s Notice, and Landlord
may thereafter freely lease all or a portion of the Expansion Space that was included in Landlord’s
Notice to any other party, at any time, on any terms, in Landlord’s sole discretion; provided,
despite Tenant’s waiver, this Right of Offer shall: (a) continue to apply to any portions of the
Expansion Space that were not included in Landlord’s Notice as further provided below, and (b)
apply again to the Expansion Space (or such portion thereof as may have been included in Landlord’s
Notice) if Landlord fails to enter into a lease document for the Expansion Space (or such portion
thereof, as the case may be) within nine (9) months after Tenant waives this Right of Offer as to
such area.. TIME PERIODS AND STRICT COMPLIANCE IN GIVING TENANT’S NOTICE, AND IN TENANT’S
SIGNING AND DELIVERING THE EXPANSION DOCUMENTATION, ARE OF THE ESSENCE OF THIS RIGHT OF OFFER. 



     5. Offering Portions of Expansion Space; Adjustments to Expansion Space; Prior Rights. This
Right Of Offer shall apply only with respect to the entire Expansion Space, and may not be
exercised with respect to only a portion thereof (unless only a portion of the Expansion Space
shall be included in Landlord’s Notice). If only a portion of the Expansion Space shall be
included in Landlord’s Notice, this Right of Offer shall apply to such portion, and shall
thereafter apply to such other portions of the Expansion Space as they become the subject of
Landlord’s Notices, subject to good faith adjustments by Landlord in the size, configuration and
location of such remaining portions. If the Expansion Space is part of a larger space that
Landlord desires to lease as a unit, then Landlord’s Notice shall, at Landlord’s option, identify
the entire such space and the Expansion Terms therefor, and in such case, this Right Of Offer shall
apply only to such entire space. This Right Of Offer shall be subject to the then existing tenants
or occupants of the Expansion Space renewing their leases or entering into new leases whether
pursuant to options to extend previously granted or otherwise, and such Right Of Offer, and any
rights of Tenant to extend the Term of the Lease with respect to the Expansion Space, are
subordinate to, and limited by, any rights of any other parties to lease the Expansion Space
granted prior to full execution and delivery of this document.



E-2




 









 








     6. Miscellaneous. This Right Of Offer is subject to the condition that the Lease be in full
force and effect, and that Tenant not then be in default beyond any applicable cure period under
the Lease on the date when Landlord provides or would otherwise provide Landlord’s Notice, or at
any time thereafter and prior to the Expansion Space Commencement Date. The rights granted in this
Exhibit are personal to Tenant as named in this Lease document. Under no circumstance whatsoever
shall the assignee under a complete or partial assignment of the Lease document, or a subtenant
under a sublease of the Premises, have any right to exercise the rights of Tenant under this
Exhibit. If Tenant shall sublease or assign the Lease with respect to all or any portion of the
Premises, then immediately upon such sublease or assignment Tenant’s rights under this Exhibit
shall concurrently terminate and become null and void. If Tenant shall exercise the Right Of Offer
herein, Landlord does not guarantee to deliver possession of the Expansion Space on the Expansion
Space Commencement Date due to continued possession by the then existing occupants or any other
reason beyond Landlord’s reasonable control. In such event, rent and other charges with respect to
the Expansion Space shall be abated until Landlord delivers the same to Tenant (except to the
extent that Tenant or its affiliates, agents, employees or contractors cause the delay), as
Tenant’s sole recourse. Tenant’s exercise of this Right of Offer is intended to supersede any
rights of Tenant under the Lease to reduce or relocate the Premises, or terminate the Lease early,
and all such provisions shall thereupon be automatically deleted. Tenant’s failure to exercise
this Right of Offer in accordance with the terms of this Exhibit is intended to supersede any other
rights of Tenant under other provisions of the Lease to expand or relocate the Premises, and all
such other provisions shall thereupon be automatically deleted.



E-3




 









 








CMD 129A-1 (8/01)




EXHIBIT F




LANDLORD’S MONUMENT SIGN — TENANT’S NAME LISTED




     1. Monument Listing; Term. Landlord hereby grants Tenant a non-exclusive license to have the
name “IntercontinentalExchange” or its corporate logo listed (such listing is referred to herein as
the “Monument Listing”) on an existing monument sign for the Property or Building
(“Monument”), subject to the following provisions. The term of this license (“License
Term”) shall commence on the Additional Premises Commencement Date, and shall continue until
the earlier to occur of the expiration or earlier termination of the Lease or, at Landlord’s
option, Tenant’s abandonment of the Premises, subject to the other provisions hereof.



     2. Design/Fabrication/Installation. Except as provided below, Landlord shall install the
Monument Listing within a reasonable time after mutual execution of this document, subject to
delays beyond Landlord’s reasonable control, and the other provisions hereof. Landlord reserves
the right to arrange for the fabrication and installation of the Monument Listing using Landlord’s
current design criteria or standard signage. Landlord’s reasonable out-of-pocket costs for the
design, fabrication and installation of the Monument Listing shall be paid by Landlord out of the
Allowance provided pursuant to Exhibit B to this Amendment. If Tenant desires to design
and/or fabricate and/or install its own Monument Listing, or desires to make any alterations to the
Monument Listing, and Landlord is willing to consider the same, Tenant shall first submit for
Landlord’s written approval: (a) the name and address of the professional sign
designer/fabricator/installer to be used by Tenant, (b) a professionally prepared plan
(“Monument Listing Plan”), showing all aspects of the design, including, but not limited
to, font of lettering, number of letters, content, color and finish, type and quality of materials,
dimensions of the Monument Listing and of every detail (including letters), and all other details
of the Monument Listing and all components thereof, and (c) copies of all required governmental and
quasi-governmental permits, licenses, and authorizations which Tenant will obtain at its own
expense. Landlord may withhold or condition approval of the Monument Listing Plan, or any aspect
thereof, or approval of the designer/fabricator/installer in Landlord’s reasonable discretion.
Landlord shall arrange for installation of any Monument Listing fabricated by Tenant’s sign
professional, unless Landlord specifically approves of, or requires, installation by Tenant’s sign
professional. If Landlord approves of, or requires, fabrication or installation of the Monument
Listing by Tenant’s sign professional, Tenant shall ensure that such work be done in a good and
workmanlike manner, strictly in accordance with the approved Monument Listing Plan, and in
accordance with the Property rules, standards or other requirements for such work and/or under the
supervision of Landlord’s employees or agents, in a manner so as to avoid damage to any part of the
Property.



     3. Maintenance and Removal. Tenant shall reimburse Landlord for: (a) Tenant’s pro rata share
of the costs of maintaining and repairing the Monument incurred during any period that Tenant and
one or more other parties have Monument Listings on the Monument (such share to be based on an
equal division of costs between such parties), and (b) all costs of maintaining and repairing the
Monument incurred during any period that Tenant is the only party with a Monument Listing on the
Monument. Upon termination of the Lease or this license, by expiration or otherwise, Landlord may
remove and dispose of the Monument Listing and repair and restore the Monument to the same
condition as prior to installation of the Monument Listing; Tenant shall pay Landlord’s reasonable
charges for doing so. Tenant shall pay any charges hereunder, as additional Rent, within thirty
(30) days after billing.



     4. Miscellaneous. Without limiting Landlord’s other rights under the Lease or available at
law, Landlord reserves the right, at Landlord’s sole cost and expense, to designate and change the
position of Tenant’s Listing on the Monument, add or subtract other tenant names and signs, and
inspect and make repairs, additions or alterations to the Monument or area of the Property where
the Monument is located. In connection with exercising such rights, Landlord may replace or move
the Monument, and may temporarily remove the Monument Listing in connection therewith. The
exercise by Landlord or any of its rights hereunder shall not be deemed an eviction or a violation
of Tenant’s rights. The rights granted in this Exhibit are personal to Tenant as named in this
Lease document. Under no circumstance whatsoever shall the assignee under a complete or partial
assignment of the Lease document, or a



F-1




 









 







subtenant under a sublease of the Premises, have any right to exercise the rights of Tenant under
this Exhibit. If Tenant shall sublease or assign the Lease with respect to all or any portion of
the Premises, then immediately upon such sublease or assignment Tenant’s rights under this Exhibit
shall concurrently terminate and become null and void. At Landlord’s option by written notice to
Tenant, the License Term shall terminate at any time that Tenant and its employees cease to occupy
at least one half of the rentable area of the Premises and any other space at the Property
currently under lease by Tenant and its affiliates (whether such cessation is due to Tenant having
assigned its rights under the lease or having subleased a portion or portions of such space, or
having actually vacated such space or a portion thereof, and without limitation as to any other
rights available to Landlord to terminate this license).




F-2




 









 








 




					
	 
	 	EXHIBIT G
	 	CMD 110A (4/00)
	 
	 	 	 	Storage Space
	 
	 	STORAGE SPACE
	 	Not Rentable Area






     1. Storage Space. The parties hereby re-affirm the continuation of Tenant’s license to use
that certain storage space currently known as Space 1-B (“Storage Space”), which shall be
deemed to contain 187 rentable square feet and shown on Exhibit G-1 hereto located on the
lower level of the Property on the terms contained herein. The term (“License Term”) of
such license commenced pursuant to Lease Amendment Two dated March 6, 2003 and shall continue until
the earlier to occur of the expiration or earlier termination of the Lease or, at Landlord’s
option, Tenant’s abandonment of the Premises or Storage Space hereunder, or otherwise by Landlord
on thirty (30) days notice.



     2. Storage Space Monthly Base Fee. There shall be no fee for the Storage Space during the
License Term.



     3. Access. Landlord shall permit Tenant reasonable access to the Storage Space for the
purposes permitted hereunder during normal business hours, if such access is feasible and can be
provided by personnel who are on-site at the Property during such hours in the normal course of
Landlord’s operation of the Property without compromising Landlord’s security and operations of the
Property. Landlord may require that Tenant and its employees, agents and contractors use the
freight elevators, service entrances or other areas at the Property for purposes of access
hereunder, and all access shall be subject to such identification and sign-in and sign-out
procedures and other requirements as Landlord may reasonably impose from time to time.



     4. Use. Tenant shall use the Storage Space for purposes of storing equipment, inventory or
other items normally used in Tenant’s business permitted to be conducted in the Premises under the
Lease, and for no other purpose whatsoever. In no event shall Tenant store any items not normally
stored by responsible parties in comparable storage space in comparable buildings. Tenant shall
not store any live animals, illegal or stolen property, flammables, explosives, perishables,
contraband, toxic wastes, anything which may spill, leak, freeze or is likely to cause its
container to leak or spill, anything which would violate any Laws or require a special permit or
notification, or anything else which is unsafe or otherwise may create a hazardous condition or
which may attract rodents or other pests or vermin, or which may create a nuisance. Without
limiting the generality of the foregoing, Tenant shall not store any flammable, combustible or
explosive fluid, chemical or substance, any “Hazardous Material” as described in the Lease, or any
food or beverage products. Tenant shall not use the Storage Space in any manner so as to cause a
cancellation of Landlord’s insurance policies, or an increase in the premiums thereunder. All
items stored in the Storage Space shall be elevated at least six (6) inches above the floor on
wooden pallets, and shall be at least eighteen (18) inches below the bottom of all sprinklers
located in the ceiling of the Storage Space, if any. Any boxes shall not be stacked more than
seven (7) feet high.



     5. Utilities and Services. Tenant shall be fully responsible for the cost of all utilities
and services for the Storage Space, including, without limitation, electricity, heating,
ventilation and air conditioning (including, without limitation, the installation and operation of
any additional equipment therefor), cleaning and trash removal, pest and rodent protection. Tenant
shall, at Landlord’s option, arrange and pay for any such utilities and services directly with the
provider thereof (as approved by Landlord), or shall arrange for the same through Landlord and
shall pay Landlord’s standard charges and procedures therefor. All such charges by Landlord shall
be payable as additional Rent, and shall be due and payable within fifteen (15) days after such
billing. Landlord may reasonably estimate such charges in advance, on a monthly other reasonable
basis, and bill and reconcile such amounts consistent with the provisions of the Lease respecting
Tenant’s Share of Expenses (or other such items).



     6. Other Lease Provisions; Miscellaneous. Except to the extent expressly inconsistent
herewith, all rights and obligations of the parties respecting the Premises under the Lease shall
apply to the Storage Space, including, without limitation, obligations respecting compliance with
laws, hazardous materials, repairs, casualty damage, indemnities and insurance (including waivers
of insurers’ subrogation rights). Landlord may from time to time, upon at least ten (10) days’
advance written notice,



G-1




 









 







change the Storage Space hereunder to other storage space comparable in size to the Storage Space
herein, provided, however, Landlord shall not change the Storage Space more than once during the
Term. Tenant agrees to accept the Storage Space “as is”. Landlord is not engaged in the business
of storing goods for hire nor the warehouse business at the Property, but is merely an owner
providing a license to use space. Landlord shall have no duty to maintain records of the contents
stored in the Storage Space. Landlord is not a bailee of Tenant’s property and Landlord accepts no
control, custody, care or responsibility for property stored in the Storage Space. All property
shall be stored at Tenant’s sole risk.




G-2




 









 








EXHIBIT G-1




Floor Plate Showing Storage Space




G-1-1




 









 








EXHIBIT H




Consultant’s Report




(See attached 2-page report dated May 3, 2006)




H-1




 









 







	



	Barrett, Woodyard &
Associates, Inc.



May 3, 2006




Ms. Lisa Brady

CMD Realty Investors, Inc.

Suite 450

2100 RiverEdge Parkway

Atlanta, GA 30328




RE:    5th Floor@ 2100 RiverEdge

          Atlanta, GA




Dear Lisa:



We have
completed our review of the building systems and the fifth floor, as requested. We
evaluated the base building air-handling systems, controls, zoning, return air paths and the
supplemental systems for the help center. We visited the site on May 2, 2006 to review specific
items and found the temperatures throughout the floor, again to be
fairly consistent.



The base building design is adequate and typical for office buildings designed during the time the
building was constructed. The base building chillers were producing
47° F. water at the time of
our initial visit, but have since been reset and are delivering
44° F. water, per the original
design. Most of the base building AHU’s are delivering air at near design temperatures and should
satisfy the space loads A couple of the lower level AHU’s had high discharge air temperatures and
may be in need of flushing of the chilled water coil. The fifth floor unit is properly functioning.



The control system is a pneumatic system consistent with systems designed at the time of the
building construction. The base building thermostats appear to be properly located, and the system
is capable of maintaining comfort throughout the space. The thermostats were recently re-calibrated, which appears to have corrected the temperature
variations in the office area. The
thermostats and verification equipment should be periodically re-calibrated to maintain consistent
temperature control throughout the space.



The base building systems throughout the space appeared to be properly zoned and the return air
paths appeared to be unobstructed. This should allow for proper airflow back to the base building
air-handler.




H-2




 









 








Ms. Lisa Brady

May 3, 2006

Page 2



We reviewed the heat gain requirements in the help desk area as requested. The supplemental HVAC
systems added for the help desk area appear to be properly sized for the people and equipment in
the space. We could not verify proper operation of the equipment in the area in the given time
frame. However, the space was comfortable at the time of our walk-throughs.



Generally,
the base building systems are properly designed, adequate for the application and
adequately maintained. We would recommend the system be operated at the design conditions for
chilled water supply and supply air temperature. Some AHU’s may need to have the coils flushed and
cleaned to maintain supply air temperatures. We would also recommend that the thermostats and
verification equipment be periodically recalibrated for proper operation.



If you have any questions, please call.



Sincerely,




Steven G. Luttrell, P.E.

BARRETT,WOODYARD & ASSOCIATES, INC.




SGL:mm



cc: 063031b05.03.06





H-3