HomeMy WebLinkAboutFirst Amendment to Lease for Waldorf School - 2007.pdf �
���
FIRST AMENDMENT TO LEASE
This First Amendment to Lease is made as of the day of October, 2007 by and
between the Town of Lexington, as landlord (the "Landlord"), and Th�Waldorf School, Inc., as
tenant(the "Tenant").
WITNESSETH THAT:
WHEREAS,pursuant to an existing lease agreement between the Lac�dlard and the
Tenant dated as ofMarch 25, I983 (the "Lease"), Landlord has leased to Tenant ali of that
certain parcel of land located at 739 Massachusetts Avenue, Lexington, Middlesex Caunty,
Massachusetts, aIl as more particularly described and set forth in the Lease; and
WHEREAS, Landlard and Tenant wish to amend th�terms of tha Lease;
NOW THEREFORE, in cansideratian of the faregoing recitaIs and for further good anc�
valuable consideration, the receipt arid adequacy whereof are hereby acknowl�dged, Landlord
and Tenant do hereby amend the Lease as fol�ows:
�. Section 2.2 of the Lease is hereby de�eted in its entir�ty and replaced with the
fal�owing:
"Ten�t may elect to extend the term afthis Lease for up to three separate,
successive, optional extension ternts, each for a period of twenty(20)
years, to follow cons�cutively after the original tetrn (the Tenant has
alrcady cx.ercised onc such option ta extend) (each of which periads is
hereinafter referred to as an "extension terrn"}, upon the candition that, on
khe last date on which the Tenant is entitled to exercise each such aption
and on the last day of the then-current term, this Lease is in full farce and
effect and the Tenant is not in default hereunder(unless the applicable
period far cure of such default has nat expired and such default is duly
cured wikhin such period} and Tenant has paid all rent and other amaunts
payable by Tenant hereunder and has otherwise substantially complied
with all of Tenant's abligations h�reunder. T'hc Tcnant sha�l exercise each
aption by giving writt�n notice to Landlard ofTenant's election to extend
the term af this Lease, such notice to be given not less than two (2} years
prior to the expiration of khe then-current terrn. If, prior to the expiratian
af the then-current term Tenant does not so elect to extend this Leas�by
written notice as h�reinabove provided, then this Lease shall terminate
upon the expiration of the then-currerit tern�, and all obligations of the
parties hereunder shall cease except those provisions of this Lease
applicable upan che expiration of the term hereaf which shall thea apply.
Na further exkensions after the expiration of the third extensian term
(resulting in a potential maximum aggregate term a#'eighty (80} years} are
granted hereby.°'
��d���p����,s�3►
�,
2o ectian 2.3 of t e Lease is ere y eiete in its entirety an re lace with t e
f�ll� i a
"If Te t elects ta sell uil in urin the te (as extert ed), t e
lar s all ave e o tia ko urchase e i�din at a purc ase rice
equal to t e Fair arket Va�ue(as ereina er e ed} af the uil i , as
hereina er set o . rior to offerin t e �il in far sale to:hir a ies,
Ten t s all `ve w `tten natice (" en t's otice") to e L lor of
Ten t's esire ta sell t e uil i . If L lor is i tereste i u 'n e
Building, Landlard shall give writtcn natice ('"Landiord`s Natice") ta
en t af L lor 's esire ta esta lish t e air ket alue of the
uil in wit in i y{3 } ays of recei t of Te t's otice. ollowin
recei �by Ten t af suc natice a L lor t e ies s all cause t e
air arket Value af e uiI in ta e et ine in e er
hereina er set o .
or e u oses ereaf, air et alue e s e fair et valu� of
t e uil i o e, excIusive of t e value of the 1 u on ic it is
si ate , in view af e istoric use af t e �zil in as el �nt
sc ool, 1 e�e ine by consi eri e cas �c�for e�ive of title
to e s e in nencu ere state(i.e., su in t at e uil in is
situate on the 1 of ri t, t exclusive of e value of y ie e or
ts to exten y 1� e ar y ot er ri ts, encu r ces or
a pu ces), at a owfe ea �e i fo e willin uyer of
the s e woul ay to a e acce te y info e willin seller.
e rocedure far ete i in the air et Value oft e uil in sha11
be as follows: e L lor Te t s all each, within enty{2 }
ays o the ate of L lord's atice, en a e the se ices of a ly
ualifie , isintereste real estate a rais or a raisal af reca iz�
co petence in tl�e reater ostort Area, eetin t � alifications of AI
( e er, A raisa� Insti �e), ar S A { en►ar eal state raiser,
ociety af eal 5tate A raisers), re-ce i e sta s, t e res ective fe�s
�f suc a raisers ta e ai y eac y s ately. If eit er a y s al!
fail to en a e ap raiser as ravide erein, t e a raiser en a e y
t e o er a y s all a oint a secon such a raiser, whase fee s�all e
LIt• CcI tu ° i �sai�l Ly lll��s° ly s� raiI't1� tu cug�g� a�1 �p tai5cy. 1c
two a raisers shall �p oint a t ir such a raiser eetin t e
quaIifications set forth above, the fees of such third appraiser to be divided
e ualIy etw�en t e i�s. e t ea a raisers so a ainte s a�l e
suc ar et s ies as t ey ee necessa a a ee u a a Fa'rr ar et
Value for the ui�di (as descri ed ltereina ove} as of t e a licable
ate, s a!l re o to Lan lord ta en t, in 'tin , t e results of
svch market studies and the Fair Market Value so arri�ed at within forty-
five (�5� days af eir en a e ent, an , absent au or ba f�ik , suc
w����.k;a�;;��a 9�,�
�z-
iu
Fair Market Value shall be deemed agreed upon and binding as the Fair
Market VaIue of the Building. If the three appraisers cannot agree on a
Fair Market Value for the Building, t�en the Fair Market Value of the
Building shall be determined by arbitration by th� Am�rican Arbitration
Association under its Real Estate Valuatian Arbitration Rules as in effect
at such kime the cost of which arbitratian shall be apportioned equally
between the parties. Within ninety(90) days after the Fair Market Value
of the BuiTding has been so determined in any instance(the"Election
Date"), Landlord shall give to Tenant written notice of its electian whether
or nat to exercise its option ta purchase the Building. If Landlord so elects
to pw-chase the Buildin�, such elecEion shali be binding and the parties
shall da such things as shall be necessary in order tQ enable the purchase
af the Building ta be rnade by Landlor� on the date specified t�erefor by
notice from Landlord to Tenant (the "Closing Dat�"), inciuding requesting
Town Meeting appraval of such purchase by Landlord. 'I'he Closing Date
shall be na later than ninety(90) days af�er the Election Date.
Notwithstanding the foregoing, in no event shall the Closing Date occur
during Tenattt's schaol year without the prior consent of Tenant, and
Landlord shall nat be required to purchase the Building if Town Meeting
has not appraved the purchase before ninety {90) days after the Election
Date.
Landlord shall be treated as having perfected its rights to proceed with a
closing uf its repurchase of the Building her�under if notice of its election
to do sa is timely given even if, througl�no Fnaterial default of Landlord, a
closing shall not be able to occur within the period provided above or on
any established Closing Dat�. Provided, however, that if the closing does
not occur by reason of Landlor�'s fault within thirty{30) days of the
Ctosing Date, then, an and after such date thirty(30) days after khe Closing
Date, Tenant's abligation ta pay rent, assessments and taxes hereunder shaIl
cease and Tenant shall thereafter have no obligation to maintain the
Building or heaE the Building, and Tenant shall nat be liable to Landlord
for any damages from such faiiure to maintain and heat khe Building, and
provided further, that, notwithstanding any other pravision in this Lease,
Tenant's fail�u-�to maintain �d heat the Building in such circumstance,
and any cansequences thereof, shail not be grounds far Landlord to
regudiate its abligation to repurchase the Building in accordanc�with its
election under this Lease. The teran of this Lease shall terminate on the
Closing Date, if it has not expired prior thereto.
On tt�e Closing Date, Tenant sha11 convey title to the Building in
accordance with, and the Building shall oth�rwise be in compliance with,
the following standards:
����au�����.e p
,"��
�
{r) T�tle t ar : n t e las`n ate, en t s all y
uitclai dee convey�o L dlor aa an cle recor and ar etable
title to the Building subj�ct to and with the benefit ofthe follawing
atters only:
(a} hase atters af recar su ject to w ic t e
uil in was ca v�ye y L ior to en t.
) eal estate t es not yet e aya 1�
s eciat sess ents w ic e not yec ue d aya ye.
{c} ch � er atters as Lan lor s a21 have a ee in
`ti to acce t.
(ii} Condition of Building Standard: On the Closing Date, the
ui] in s �11 e i e s e co ditio i hic it in on t e
ori 'nal exec tion of t e Le e, on�y reaso a le we te , a e
cause y e efault of the lor , s c a itions renovations
an i rove ents a rove y t e L lor if so re uire by t e te s of
this e e exce te , in ca li ce wit t e a lica le rovisio s of
this e e.
(iii} olice awer Ca li ce t ar : n e losin ate,
e uil in s all continue ta ca ly as of ` t it all a plica le
rovisions af sta tas, laws, by-laws, or in c�s or ar ers of ove ental
or uasi- ov ental au ority wi res ect ta buil i , zonin , rent
con#rol, re ratin re uire ents, ealt , lice si , s ication,
environ e #al rotectio or ot er atters wi w ic t e uildin was in
ca li ce on e ate ofthe I.ease. e en t s i e o li ate to
eliver t e uil in in co li ce wit t e ro `sians of s c sta tes,
laws, by-Iaws, or in ces or ar ers e acted ar ro ul ate si ce en or
i the re a ly to the exte t t at t e s e e a lica le to t e uil in
se by t e en t. it res ec# to ass. e . Laws c . 111, s. 190-
199 re latio s issue pursuant t ereto as i e ect as af the ate
hereaf, the Landlord agrees that the Tenant has no respansibility ta
Landlor un er this Lease tor r� ovin c�r coverin lea i arnt, laster
or ot er ate 'als on or in e uil in .
lasin s a11 accur at suc ti e o e losi ate an at such Iocation
andlor an Ten t s all re on� ly a ee u on. t as a
conditian to the clasing the parties sha�l: (1) execute and deliver aZ�
ins ents reasona ly nec�ssa or a ro `at�to consu ate t e
tr sackian, as dete ined by Tenant's an lar "s caunsel, inclu yn a
te ination of t�is ease, an {2) e in co �iance wit t e res ective
iK a��tu��,:ce s��,:�¢:w N
-4-
�
conditions for th�beneftt of the other as hereina{�er set farth. Withaut
limiting the ge�aerality of the for�going, but subject ta the provisians af
this Section 2.3, Landlard shall have no obligation to proceed to acquire
the Building, notwithstanding its election to do so, unless the following
conditions precedent hereunder shall be satisfied on th�Closing Date or
waived by Landlord: _
(i) Tenant shall theretofore and then have paid in full alI rent and
other amounts due and payable by Tenant hereunder, and otherwise
substantially performed all its obligations hereunder and not be in default
hereunder. Withaut limitation, all warranties and representatians of
Tenant shall continue ta be true, complete and accurate.
(ii) The Building in all respects (including condition and rights of
possession) sha11 be in compliance with the Title Standarc�, Condition of
Building Standard, and Police Power Compliance Standard, as set forth
hereinabove.
Ff Landlard has exercised its optian ta purchase the Building,but the
purchase price has not been decermined and the purchase closed as of the
expiration af the then-current extension term hereof, this Lease shall
automatically be extended upan the same condikions and provisions hereof
until the purchase price has been so determined and the purchase closed,
except as provided hereinabove in�h�ev�nt that the closing has not taken
place within thirty(30}days from the Closing Date by reason of the
Landlard's default, and provided that Tenant is not in default hereunder
beyand any applicable grace or cure p�riod af�er notice and shall continue
to camply with all of the terms and conditions hereof. Unless otherwise
agreed, in no event shall any such extension �xceed nine (9}months.
If Landlord does not give Tenant notice of Landlord's desire to establish
the Fair Market Value of the Building within thirty{30} days of receipt of
Tenant's Notice or does not exercise its option to purchase the Building as
provided herein, Tenant may sell the Building to a third party."
3. Section 4.6 of the Lease is amendeci by substitnting"herein below" for"in
Section 2.3" �t the end of the first sentence and by replacing the second sentenc�wikh the
following: "Any alterations or improv�ments shall be undertaken at Tenant's awn expense and
shali at alI times camply with the provisians af this Article IV, and with plans and specifications,
if any, (which shall be prepared by and at the expense of the Tenant) kheretofore submitted to and
approved in writing by th� Landlord, and the alterations or improvemen�s shall nat a�versely
affect the value, character, external appearance or structure of�he Property nor the use of the
athletic field(s) that are now or may be in the future adjacent to the Demised Premises."
{AOOi5F51,3 f
-5-
�
4. Section 4.b is further amended by adding the follc�wing fina� paragraph ta the
ection:
" xce t ro ' e ot e ise in this ease, a just e ts base on t e
a s er �ce In ex s all e calculate usi a action, t � n erator af w ic
s all equal t e vaIue af the ons� er rice In ex for r a e a ers a�
le `cal or ers, ity oi oston, all ite s, 19 7 °�� I O , as u lis e y t e
Bureau of Labor Statistics, United States Deparhnent of Labor far the ca�endar
on af e�x�cutian of is ease{a j ste a a ca sistent asis to re ect any
c es a e y e urea of a ar tatistics in the e o of ete inin e
I accu °n a er s c ti �;) e eno inator of w ic s al1 e e
carres ondin ansu er °ce In ex t at is in e ect at e ti e of the a Iica le
a jus ent or ca7culatian,"
5. eckia .1 af t e e e is en e y su sti tin " . " for "2.3" in t e nint
line.
. �ction 7.1 of t � Le e is ere y eIete in its entirety re laced wit t e
follc� in :
"If�t y ti e urin the ori `nal ar y extensia te af t is Lease, Tena t,
inclu in y re owner af t e uil in by vi e af fareclasure or ot e ise,
shall receive a ona de a a a t ir for e urchase af th� uil in
Ten t's interest un er t 'ts Le e, or y r�al ro � y of ic t e uil i
suc interest is a , ic a cr t c Ten t csires to acce t, t e enant
s all ra tly eliver to e L lor at the of ce af the own a er of
Lexin on a co y of suc o (i cludin atl ro ose contracts d coll�teral
a ree ents, if y, d inclu in te s con itions, includin the urc�iase
p `ce, of suc af er a lica le to � e uildin Ten t's interest un er t}�is
ease aIone if such offer inclu es real pra erty ather th e uil in }, an t e
andlar ay, wit in I2 ays therea er, eIect ta urc e the r ises an e
s e te s ose set fa h in e a er y w 'tten otice thereof to e en t,
convey ce ursuant to such election to t e lace wit in 12 ays a er such
notice to enant of L lar 's election to exercise its ' t of first refusal, unless a
eater ti e or co veyance is ro ' ed in suc o er. If lord daes not
rvercise its ri t�f f rst rr sal, thrn t e Trna t :y, ::=ithin QJ a;fs fr� +hr
rst to occ r af(1} not`rce to the en t of an Ior "s electian not to exercise its
ri t of rst re sal, ar(2) expiratio af 12 ays o recei t by L iord of
suc o er, aece t suc o er convey t e uil in ( t e Tc t's i terest in
t is Lease, as re uired by ection 5.2 hereo to suc t ir arty at a rice not
lower and u o te s c�t are favpra 1e t t ose s ecified in suc o er, i
connection with such conveya ce, the e ant ay ake an record in e u lic
land records an affidavit to the effect th�t (a) the conveyance is made pursuant to
natice iven to t e L� dlor as re uire by t e rovisions af t is Lease; ) t e
L lar has not iven notice of its election ta purchase in accor a ce wit t is
!�d��C�.b•8�G�1��
'�'
� ��
Lease; and (c} the conveyance is made at a price not lower and upan terms not
more favorable than those stated in such notice to the Landlord. S�ch affidavit
when recorded with copies of alI offers and notices required to be given to the
Landlord and return receipts therefor shall be conclusiv� evidence of cornpliance
wi#h the Landlord's right af first refusal with respect to such conveyanca in favor
af the offeror or grantee named in such natice and all persons claiming through
him. If the Landlaad shaZ� elect not to exercise its right of first refusal in any case,
the Landlord's right of first refusal shaIl remain applicable to subsequent offers."
7. Add a new Section 15.18 to the end of the Lease to read in its entirety as follows:
"15.]8 Waiver of Cansequential Dama�. Notwithstanding any
provision of this Lease to the contrary{including, without Iimitation, any
indemnification provision}, in no event shall Landlard, Tenant or any of their
directars, officers, boazd members, shareholders, employees, a�visers or agents be
responsible for interruption or loss of business, incame or prafits, or any other
consequential, indirect or special damages."
S. Unless the context requires atherwise, the terms used herein shall be construed in
conformity with the definitions set farth in the Lease.
9. As hereby modified, the Lease is ratified and confirmed and remains in fi�ll force
and effect.
�The remainder of this page has been intentionally left blank.]
���a�auu.,u;;i.�w
m�'�,
YI
I S , L l�r � e t �ve � s� thi� i st � t t� �
�c�c�t� �r���1 �� �ef t � �y�r� y� fir�t a �� 'tt�r�,
� �
� �1
�: 6 . �`��r
itl�: L� � 1�� �,r
+�� �r I °�
�
� r •
� ��R„�, , �,�� �. � �,-.�.��,�, ,,,, mm.����„��W,��
�1am�; ���.L �'�t�a�'�l�?
T�tl�e �`�',�:��vt`�`
g��.�����;��
.��