FIFTH AMENDMENT TO LEASE AGREEMENT
EXHIBIT 10.10
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (this “Amendment”) is made as of the 31st day of
August, 2005, by and between 1899 L STREET TOWER LLC, a Delaware limited liability company
(“Landlord”), and BLACKBOARD INC. (“Tenant”).
W I T N E S S E T H:
WHEREAS, 0000 X Xxxxxx LLC (“Original Landlord”) and Tenant entered into that certain Office
Lease dated November 22, 1999 (the “Original Lease”), as amended by that certain Amendment to Lease
Agreement dated February 16, 2000 (the “First Amendment”) as further amended by that certain Second
Amendment to Lease Agreement dated July ___, 2000, as further amended by that certain Third
Amendment to Lease Agreement dated January 31, 2001 (the “Third Amendment”), as further amended by
that certain Fourth Amendment to Lease Agreement dated March 22, 2002 (the “Fourth Amendment”: all
of the foregoing being collectively, the “Lease”) pertaining to 46,209 square feet of space (the
“Existing Premises”) located in that certain building (the “Building”) located at 0000 X Xxxxxx XX,
Xxxxxxxxxx D.C.; and
WHEREAS, Landlord is the successor-in-interest to Original Landlord’s interest in and under
the Lease; and
WHEREAS, Landlord and Tenant have agreed that Tenant will expand the Existing Premises, as
more particularly provided for herein.
NOW THEREFORE, in consideration of the covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant
hereby amend the Lease as follows:
A G R E E M E N T
1. Inclusion of Additional Third Floor Premises. Effective as of the Additional Third
Floor Premises Commencement Date (defined below):
(a) A portion of the third floor of the Building containing 5,206 square feet, as shown on the
plan attached hereto as Exhibit A-1 (the “Additional Third Floor Premises”); shall be added
to and constitute a part of the Premises, subject to all of the terms and conditions of the Lease
(including, but not limited to, Section 5, except as provided in this Amendment; and
(b) The rentable area of the Premises shall be increased by five thousand two hundred and six
(5,206) square feet, and therefore, effective on the Additional Third Floor Premises Commencement
Date, the total rentable area of the Premises shall be fifty-one thousand four hundred fifteen
(51,415) square feet.
2. Occupancy Dates and Term. The term (the “Additional Third Floor Premises Term”) of
the leasing of the Additional Third Floor Premises shall commence on and shall be the date that is
fifteen (15) days after the tenant occupying the Additional Third Floor Premises as of the date hereof vacates the Additional
Third Floor Premises (the “Additional Third Floor Premises Commencement Date”), provided Landlord
will use commercially reasonable efforts to notify Tenant of
the Additional Third Floor Premises Commencement Date at least twenty (20) days prior to such date. Landlord anticipates that the
existing tenant will vacate the Additional Third Floor Premises around January 1, 2006. Unless
sooner terminated pursuant to the provisions of the Lease, the term of the leasing of the
Additional Third Floor Premises shall be coterminous with the Term of the Lease (May 31, 2007) and
the period from the Additional Third Floor Premises Commencement Date to the last day of the
twelfth (12th) full calendar month following the calendar month in which the Additional
Third Floor Premises Commencement Date occurs shall be the first “Lease Year” of the Additional
Third Floor Premises Term. Thereafter, each consecutive twelve (12) calendar month period during
the Additional Third Floor Premises shall constitute one (1) Lease Year. Notwithstanding anything
contained herein to the contrary, if the Additional Third Floor Premises Commencement Date occurs
on the first (1st) day of a calendar month, the first Lease Year during the Additional
Third Floor Premises Term shall be twelve (12) full calendar months.
3. Rent for Additional Third Floor Premises. Effective as of the Additional Third Floor
Premises Commencement Date, Rent for the Additional Third Floor Premises only shall be as
follows:
Rent Schedule
| Per Square | ||||||||||||
| Period | Foot | Annual Rent | Monthly Rent | |||||||||
Lease Year 1 |
$ | 36.75 | $ | 191,320.56 | $ | 15,943.38 | ||||||
Lease Year 2
(to be prorated) |
$ | 37.67 | $ | 196,110.00 | $ | 16,342.50 | ||||||
4. Operating Expenses and Real Estate Taxes; Adjustment of Additional Rent. As of the
second Lease Year of the Additional Third Floor Premises Term, Tenant’s “pro rata share”
referenced in Paragraph 2.2(a)(iii) of the Lease, as amended, shall be increased from
“35.17%” to “39.13%”. For purposes of Paragraph 2.2(a)(iii) of the Lease, the “Base
Year” shall continue to be the 2000 calendar year with respect to the original 23.45%, and
shall continue to be the 2001 calendar year with respect to the 7.77% relating to the
12th Floor Premises added pursuant to the Third Amendment, and shall continue to be
the 2002 calendar year with respect to the 3.95% relating to the Additional Seventh Floor
Premises added pursuant to the Fourth Amendment but the “Base Year” with respect to the
additional 3.96% relating to the Additional Third Floor Premises shall be calendar year 2006.
Additionally, in no event shall Tenant be required to pay Tenant’s prorata share of any
Operating Expense Increase for the Additional Third Floor Premises prior to the expiration of
the first Lease Year of the Additional Third Floor Premises Term.
5. Acceptance of the Additional Third Floor Premises.
(a) Tenant acknowledges that Tenant has inspected and is fully familiar with the Additional
Third Floor Premises and, Tenant shall accept the same in its broom clean, “as is” condition
subject to Landlord’s repair obligations in Section 3.3 of the Lease.
(b) If Tenant makes alterations to the Premises in accordance with the Lease generally and
with Section 4.1 in particular during the period from the Additional Third Floor Premises
Commencement Date until twelve (12) months after the Additional Third Floor Premises Commencement
Date (the “Contribution Period”), and provided Tenant is not in default under the Lease, Landlord
shall contribute (the “Improvement Contribution”) of $26,030.00 towards the cost of said work.
Tenant shall have the right, without the need to receive the consent of Landlord, to retain a
general contractor selected
by Tenant to perform such alterations, provided Tenant notifies
Landlord of the name of such general contractor and general contractor is licensed, bonded and
insured to do business in the District of Columbia. Within ten (10) days after Tenant’s completion
of the alterations made during the Contribution Period (but in no event later than twelve (12)
months after Additional Third Floor Premises Commencement Date), Tenant shall submit to Landlord a
detailed breakdown of the costs of said alterations, together with final lien waivers, contractors’
affidavits and architects’ certificates, in each case to the extent applicable, in such form as may
be reasonably required by Landlord and any other documentation required at the completion of
alterations pursuant to the Lease. Landlord shall pay to Tenant (up to the Improvement
Contribution) the amount incurred by Tenant in the performance of the alterations made during the
Contribution Period within thirty (30) days after receipt of the documentation required in the
immediately preceding sentence. Tenant shall not be entitled to any portion of the Improvement
Contribution not used in the performance of alterations during the Contribution Period. Landlord
shall not be entitled to any compensation or fee in connection with the alterations performed by
Tenant.
6. Parking Spaces. The number of unreserved parking spaces to be made available by
Landlord to Tenant pursuant to Paragraph 11.2 of the Lease is hereby increased from
“forty (40)” to “forty-four (44)”. Tenant’s rights to the four (4) additional spaces shall
terminate if Tenant does not notify Landlord in writing of Tenant’s exercise of such rights on
or before March 30, 2006.
7. Use of Internal Building Stairwells. In addition to the lease of the Premises,
Landlord grants to Tenant the non-exclusive right to use the internal stairwells servicing the
Premises for the passage of Tenant’s employees and guests between the floors constituting the
Premises. Tenant shall have no right to use the internal stairwells for any other purpose,
including but not limited to storage. Subject to the approval of Landlord, in the event that
Tenant elects to exercise the right to use internal stairwells as set forth above, Tenant
shall install and maintain an electronic access system in the stairwell to maintain secure
access to the Premises. Any such electronic access system shall be installed, operated and
maintained at Tenant’s sole cost and expense, and the design, location, installation,
operation and maintenance thereof shall be subject to all of the terms and conditions of the
Lease. Tenant agrees, prior to the expiration of the Lease, to remove any such system and to
return the portion of the stairwell permitted to be utilized by Tenant under this Paragraph as
well as the doors to the Premises to their respective condition as of the date hereof,
ordinary wear and tear excepted. Tenant acknowledges that the internal stairwells in the
Building are part of the emergency access and egress to and from the Building, and in addition
to all other terms and conditions of the Lease, Tenant shall at all times comply with all
Applicable Laws regarding the internal stairwell, the physical condition of the Premises or
that relate to the lawful use or occupancy of the Premises. In the exercise of the rights
granted under this Paragraph, Tenant shall in no event temporarily or permanently obstruct any
portion of the internal stairwell, and Landlord, in addition to any other rights granted to
Landlord hereunder, may remove any obstructions, refuse or objectionable matter from the
stairwell without notice or liability to Tenant. In addition to all other rights and remedies
provided in the Lease, Landlord may terminate the rights granted to Tenant under this
Paragraph in the event that the use of the internal stairwell in the Building violates any
Applicable Laws or creates, in the commercially reasonable judgment of Landlord,
a hazardous or disruptive condition in the Building. The use of the stairwell by Tenant shall be
subject to all of the insurance and indemnification obligations imposed on Tenant under the Lease.
8. Broker Warranty. Landlord and Tenant each warrant that it has had no dealings with
any broker, agent or any other person in connection with the negotiation or execution of this
Amendment other than Xxxxxxx Inc., and Transwestern Commercial Services (collectively, the
“Brokers”). Landlord and Tenant agree to indemnify and hold harmless the other from and
against any and all cost, expense, or liability for commissions or other compensation and
charges claimed by any broker or agent (other than the Brokers) with respect to this Amendment
on account of the acts of the indemnifying party.
9. ERISA. Tenant hereby represents and warrants to Landlord that
(a) Tenant is not a “party in interest” (within the meaning of Section 3(14) of the Employee
Retirement Income Security Act of 1974, as amended) or a “disqualified person” (within the meaning
of Section 4975 of the Internal Revenue Code of 1986, as amended) with respect to The Metropolitan
Life Retirement Plan for United States Employees, and (ii) no portion of or interest in the Lease
will be treated as the asset of any (a) “employee benefit plan” (within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended), (b) “plan” (within the meaning
of Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (c) entity whose
underlying assets include “plan assets” by reason of a plan’s investment in such entity; and
(b) Neither Tenant nor any twenty percent (20%) or greater owner of Tenant owns, directly or
indirectly, more than twenty percent (20%) of (i) any class of stock of Metropolitan Life Insurance
Company or any affiliate of Metropolitan Life Insurance Company; or (ii) any class of stock of
BlackRock Realty Corporation or any affiliate of BlackRock Realty Corporation (including PNC Bank).
10. OFAC Compliance.
(a) Each party represents and warrants to the other party that it is (i) not currently
identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office
of Foreign Assets Control, Department of the Treasury (“OFAC”) and/or on any other similar list
maintained by OFAC pursuant to any authorizing statute, executive order or regulation
(collectively, the “List”) and (ii) not a person or entity with whom a citizen of the United States
is prohibited to engage in transactions by any trade embargo, economic sanction, or other
prohibition of United States law, regulation, or Executive Order of the President of the United
States.
(b) Tenant represents and warrants to Landlord that (i) none of the funds or other assets of
Tenant constitute property of, or are beneficially owned, directly or indirectly, by any Embargoed
Person (as hereinafter defined), and (ii) none of the funds of Tenant have been derived from any
unlawful activity with the result that the investment in Tenant is prohibited by law or that the
Lease, as amended and/or extended, is in violation of Applicable Law. The term “Embargoed Person”
means any person, entity or government subject to trade restrictions under U.S. law, including but
not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701, et
seq., The Trading with the Enemy Act, 50 U.S.C. App. 1, et seq., and any
Executive Orders or regulations promulgated thereunder
with the result that the investment in Tenant is prohibited by any Applicable Law or Tenant is
in violation of any Applicable Law.
(c) Each party covenants and agrees with the other party (i) to comply with all Applicable
Laws relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or
hereafter in effect, (ii) to promptly notify the other party in writing if any of the
representations, warranties or covenants set forth in this sub-paragraph or the preceding
sub-paragraphs are no longer true or have been breached or if such party has a reasonable basis to
believe that they may no longer be true or have been breached, (iii) not to use funds from any
“Prohibited Person” (as such term is defined in the September 24, 2001 Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism) to make any payment due to the other party under the Lease, as amended and/or extended,
and (iv) at the reasonable request by a party, to provide such information as may be requested by
such party to determine the other party’s compliance with the terms hereof.
(d) Each party hereby acknowledges and agrees that its inclusion on the List at any time
during the Term shall be a material default of the Lease. Notwithstanding anything herein to the
contrary, Tenant shall not permit the Premises or any portion thereof to be used or occupied by any
person or entity on the List or by any Embargoed Person (on a permanent, temporary or transient
basis), and any such knowing use or occupancy of the Premises by any such person or entity shall be
a material default of the Lease.
11. Definitions. Unless the context otherwise requires, any capitalized term used herein
shall have its respective meaning as set forth in the Lease.
12. Integration of Amendment and Lease. This Amendment and the Lease shall be deemed to
be, for all purposes, one instrument. In the event of any conflict between the terms and
provisions of this Amendment and the terms and provisions of the Lease, the terms and
provisions of this Amendment shall, in all instances, control and prevail.
13. Counterparts. This Amendment may be executed by each of the parties hereto in
separate counterparts and have the same force and effect as if all of the parties had executed
it as a single document.
14. Ratification. Except as modified herein, all of the remaining terms and provisions
of the Lease shall remain in full force and effect.
[signatures on following page]
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day
and year first above written.
| LANDLORD: | ||||||||
| 1899 L STREET TOWER LLC, a Delaware limited liability company |
||||||||
| By: | BlackRock Realty Advisors, Inc., its investment advisor |
|||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||||||
| Name: Xxxxx Xxxxxxxxx | ||||||||
| Title: Director | ||||||||
| TENANT: | ||||||||
| BLACKBOARD INC. | ||||||||
| By: | /s/ Xxxxxxx Xxxxx | |||||||
| Name: Xxxxxxx Xxxxx | ||||||||
| Title: General Counsel | ||||||||
