"Massachusetts Landlord Consent to Sublease"
SUBLEAS E (Kasabuski Memorial Arena, 201 Forest Street, Saugus, MA) THIS SUBLEASE is made as of this ___ day of September, 2008 (this “Sublease”), by and between the TOWN of SAUGUS, MASSACHUSETTS, a municipality having an address at Town Hall, 298 Central Street, Saugus, Massachusetts 01906 (the “Sublessor”), and NATHANIEL S. MANIFF of 135 Lincoln Street, Revere, Massachusetts 02151, and JOHN P. CURLEY, of 1 Jason Lane, Peabody, Massachusetts 01960 (jointly and severally, the “Sublessee”). RECITALS A. Reference is made to that certain Skating-Rink Lease dated as of September __, 2008, (the “Lease”), a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, by and between The Commonwealth of Massachusetts, acting by and through its Division of Capital Asset Management and Maintenance in consultation with the Department of Conservation and Recreation, as Landlord, and the Sublessor, as Tenant, with respect to the Premises known as Kasabuski Memorial Arena located at 201 Forest Street, Saugus, Massachusetts, as more particularly described in the Lease (the “Premises”). B. Pursuant to the Request for Proposals entitled “Town of Saugus Request for Proposal Operation of Kasabuski Arena Bid No.: #21-08” issued by the Sublessor (the “RFP”), the Sublessee has submitted to the Sublessor a Proposal for the operation of the Premises dated September 2, 2008 (the “Proposal”). C. The Sublessor has accepted the Proposal subject to certain conditions, as set forth in a letter to the Sublessee dated September ___, 2008, and accepted by the Sublessee (the “Award Letter”). D. The Sublessor desires to sublease to Sublessee, and Sublessee desires to sublease from the Sublessor, the entire Premises, in accordance with the terms of the RFP, the Proposal, and the Award Letter, and on the terms and conditions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the full and complete performance of all terms, covenants, and conditions herein contained to be performed by Sublessor and Sublessee, the parties hereto hereby agree as follows: 1. Sublease Of Premises (a) Sublessor hereby demises and subleases the Premises to Sublessee, and Sublessee hereby hires and takes the Premises from Sublessor. Notwithstanding that this is a Sublease of the entire Premises, this Agreement is a Sublease and not an Assignment. (b) All capitalized terms used but not defined herein have the meanings given to them in the Lease (defined below). Whenever the term “Tenant” is used herein, such reference is to the Sublessor in its capacity as the tenant under the Lease, and whenever the term “Landlord” is used herein, such reference is to The Commonwealth of Massachusetts, acting by and through its Division of Capital Asset Management and Maintenance in consultation with the Department of Conservation and Recreation, in its capacity as landlord under the Lease. 2. Term; Extension Option (a) The term (the “Term”) of this Sublease shall commence on the date hereof (the “Commencement Date”) and shall expire on the Initial Term Termination Date as defined in the Lease (the “Expiration Date”), unless sooner terminated or extended pursuant to any provision set forth herein or in the Lease or under any applicable law. (b) If the Sublessor exerc ises its Option to extend the Term for the Extended Term (as set forth in Section 3.3 of the Lease), the Sublessee shall have the option to extend the term of this Sublease for the Extended Term. The Sublessee may request that the Sublessor exercise its option to extend the Term, provided that Sublessee shall give written notice to Sublessor of such request not later than eighteen (18) months and not more than thirty (30) months before the Initial Term Termination Date. The Sublessee acknowledges that any such extension is subject to the approval of the Sublessor, not to be unreasonably withheld or delayed, and to the Landlord’s approval, and the Sublessor shall have no obligations with respect to such extension if Landlord fails to grant such approval. 3. Consideration; Net Lease (a) As consideration for this Sublease, Sublessee shall pay to Sublessor the aggregate sum of Nine Hundred Ten Thousand and No/100 Dollars ($910,000.00), as recovery of the accumulated operating deficit of the Premises incurred by the Sublessor as Tenant prior to the execution of this Sublease, which sum shall be paid as follows: (i) the amount of One Hundred Fifty Thousand Dollars ($150,000.00) shall be paid simultaneously with the execution of this Sublease, and (ii) the sum of Forty Thousand Dollars ($40,000.00) shall be paid on or before January 1 of each calendar year, beginning on January 1, 2010, and continuing on the 1st day of January of each year until and including January 1, 2028, without any setoff, deduction, abatement or counterclaim whatsoever, except as explicitly set forth in this Sublease or in the Lease. (b) All amounts payable by Sublessee to Sublessor hereunder shall be paid by check or wire transfer in immediately available funds, without notice or demand, and without any offset, deduction, abatement or counterclaim, except as explicitly set forth in this Sublease or in the Lease, and shall be forwarded to Sublessor at its address set forth in the introductory paragraph to this Sublease or to any other place designated in writing by Sublessor. Sublessee’s obligation to pay the consideration provided in section 3(a) above shall be independent of every other covenant or obligation under this Sublease. All sums due hereunder not paid within thirty (30) days after the date due shall bear interest for each month or fraction thereof from the due date until paid computed at the annual rate of ten percentage points (10%), or at any applicable lesser 2 maximum legally permissible rate for debts of this nature. In addition to the foregoing, the Sublessee shall pay to the Sublessor any and all late charges that the Landlord charges to the Tenant under the Lease that result from any late payment (or default in making payment) on the part of the Sublessee. (c) This Sublease shall be absolutely net to Sublessor, and Sublessee shall pay and perform all obligations of the tenant under the Lease, including without limitation the timely performance of the Capital Program in lieu of Base Rent and the payment and performance of all costs, expenses and obligations of any kind relating to maintenance, operation, repair, reconstruction, and replacement of the Premises during the Term of this Sublease, except for any obligations explicitly retained by the Sublessor in this Sublease. 4. Use Sublessee shall use and occupy the Premises solely for the Permitted Uses, and then only in a manner consistent with, the provisions of the Lease, and for no other use or purpose. Sublessee shall operate a public ice skating rink program at the Premises and perform all required duties and obligations in accordance with Section 2.2 of the Lease. 5. Condition of Premises Sublessee acknowledges that Sublessee is subletting the Premises in their present “as is” condition. In making and executing this Sublease, Sublessee has not relied upon or been induced by any statements or representations of any person with respect to the physical condition or fitness for a particular purpose of the Premises or of the prior operation thereof and has not relied upon any document or other information provided to Sublessee or by any other person. Sublessee has relied solely on its own investigations, examinations and inspections of the Premises and has made its own determination as to the feasibility of operating the Premises as a skating rink in accordance with the Lease. 6. Incorporation of Lease Terms (a) The terms, covenants and conditions contained in the Lease are hereby incorporated herein in full as if fully stated herein and shall, as between Sublessor and Sublessee, constitute the terms, covenants and conditions of this Sublease (for purposes of which, the term “Landlord” shall mean the Sublessor, the term “Tenant” shall mean the Sublessee, and the term “Lease” shall mean this Sublease), except to the extent specifically otherwise provided in Section 6(b) below or in any other provision of this Sublease. Sublessee agrees to keep, observe and perform the terms, covenants and conditions on its part to be kept, observed and performed hereunder as well as those applicable terms, covenants and conditions to be kept, observed and performed by Sublessor as tenant under the Lease, except as otherwise provided herein. In the event of any inconsistency between the terms of this Sublease and the Lease, this Sublease shall govern. 3 (b) The following articles, sections and provisions of the Lease shall be incorporated by reference only in part, modified or excluded from incorporation by reference in this Sublease (collectively referred to herein as the “Modified Provisions”): Section 4.9 (Payment of Costs): This provision shall not be incorporated in the Sublease and shall remain the responsibility of Sublessor. Section 4.10 (Address for Payments): This provision shall not be incorporated in the Sublease. Article 5 (Insurance): During the First Year of the Term (as defined in the Lease), Sublessor will provide all insurance required by Article 5 (Insurance) of the Lease, except for Workers Compensation Insurance (Section 5.6), which shall be provided by Sublessee. No later than thirty (30) days before the end of the First Year of the Term, the Sublessor and the Sublessee will review and negotiate the allocation of the responsibility to provide insurance for the remainder of the Term of the Lease. All certificates of insurance obtained by either Sublessor or Sublessee shall name the other in addition to the Landlord, in accordance with the requirements of Article 5. Section 8.5 (Utilities): Sublessor will provide and pay for water and sewer service to the Premises and for usual trash collection during the first three (3) years of the Term (i.e., until June 30, 2011), after which date the Sublessor and the Sublessee will review and negotiate the allocation of responsibility for such expenses. All other provisions of Section 8.5 of the Lease are incorporated in the Sublease and shall be the responsibility of the Sublessee from the Commencement Date of this Sublease and during the entire Term hereof. Section 8.6 (Obsolete Equipment): This provision is incor porated into the Sublease, provided, however, that Sublessee shall not sell or dispose of any Building Equipment which it has replaced pursuant to such Section unless Sublessee has first offered such Building Equipment to Sublessor, at no cost. Article 15 (Subletting, Assignment, Mortgage): Sublessee shall have no right to further sublet the Premises or to assign Sublessee’s interest in this Sublease without the prior written consent both of Landlord and of Sublessor in accordance with the provisions of Article 15 of the Lease. Section 17.2 (c) (Oil Tanks): Sublessee shall maintain and periodically inspect the existing underground heating oil tanks and shall provide copies of all inspection reports to Sublessor. Sublessor will remain responsible for the removal and replacement of such tanks, if necessary due to ordinary wear and tear and not to lack of maintenance or any other act or omission of Sublessee. Section 17.2(i) (Performance Bond): This provision shall not be incorporated in the Sublease and shall remain the responsibility of Sublessor. 4 Section 18.1 (Landlord’s Representations, Warranties and Covenants): This provision shall not be incorporated in the Sublease. 7. Consents All consents of Landlord required by the Lease and not otherwise referenced herein shall also require the consent of Sublessor, which consent Sublessor shall not unreasonably withhold if the Landlord gives its consent, all conditions of the Lease have been satisfied, and there is no default outstanding under this Sublease. 8. Events of Default - Time Periods Recognizing that the relationship between Sublessor and Sublessee is a sublease, and that in the event that an action required or failed to be taken by Sublessee hereunder may place Sublessor in default of its obligations under the Lease, the parties hereby agree that Sublessee shall have a shorter period of time to cure its defaults and to exercise its rights under the Sublease than Sublessor has as the tenant under the Lease. Therefore, and without limiting the foregoing, the following time periods shall be applicable under this Sublease: 1) Monetary defaults: The fifteen (15) day period in Section 16.1(a) of the Lease is replaced with a ten (10) day period. 2) Non-Monetary defaults: The thirty (30) day period in Section 16.1(b) of the Lease is replaced with a twenty-five (25) day period; the ninety (90) day period in Section 16.1(e) of the Lease is replaced with an eighty (80) day period. 9. Additional Covenants of Sublessee and Sublessor (a) Sublessee acknowledges that this Sublease is subject and subordinate in all respects to the Lease, and agrees with Sublessor as follows: 1) Sublessee agrees that it will not take any action, or omit to take any action, which would constitute a default under the Lease. 2) Sublessee acknowledges and agrees that Sublessor shall have no liability or obligation to Sublessee based upon any act or omission of the Landlord or the agents, employees, or contractors of the Landlord. Without limiting the foregoing, Sublessor shall have no liability to Sublessee, and Sublessee's obligation to pay the consideration due under this Sublease shall not be reduced or abated, in the event that Landlord fails to perform any obligation which Landlord is required to provide or to perform pursuant to the Lease. (b) Sublessor acknowledges that its performance of its obligations as Tenant under the Lease are material to the continued rights of the Sublessee under this Sublease. Accordingly, Sublessor covenants and agrees to timely perform all of its obligations under the Lease which are not assumed by Sublessee hereunder and to take all other actions necessary to maintain the Lease 5 in good standing and in full force and effect. Sublessor represents and warrants to Sublessee that as of the date of execution of this Sublease, the Lease is in full force and effect, with no default (or event which with the giving of notice or the passage of time or both would constitute a default) by either Landlord or Tenant thereunder. 10. Subordination and Attornment. Sublessor and Sublessee agree that this Sublease is, and shall remain, subject and subordinate in all respects to all of the terms, covenants and conditions of the Lease. This clause shall be self-operative and no further instrument of subordination shall be required. In the event of termination of the Lease prior to the expiration date of this Sublease, at the option of Landlord, Sublessee agrees to make full and complete attornment to Landlord, provided that Landlord shall recognize and accept Sublessee as tenant, for the balance of the term of this Sublease, which attornment shall be evidenced by an agreement in form and substance satisfactory to Landlord, which Sublessee agrees to execute and deliver at any time within ten (10) days after request of Landlord, its successors and assigns. Sublessee waives the provisions of any law now or hereafter in effect which may give Sublessee any right of election to terminate this Sublease or to surrender possession of the Premises in the event any proceeding is brought by Landlord under the Lease to terminate the Lease. 11. Notices Any notices required or permitted to be sent under this Sublease shall be sent by hand, by fax or by U.S. Mail to the following addresses, or such other addresses as either party may advise the other: To Sublessor: Town of Saugus Town Hall 298 Central Street Saugus, MA 01906 Attn: Town Manager To Sublessee: c/o Nathaniel S. Maniff 135 Lincoln Street Revere, MA 02151 Sublessor agrees to promptly deliver to Sublessee a copy of any material notice received by the Sublessor from the Landlord, or delivered by the Sublessor to the Landlord, under the Lease, including without limitation all notices relating to any alleged default by either party under the Lease. 6 12. Incorporation of Proposal. The terms and provisions of the RFP, the Proposal and the Award Letter are incorporated herein and made a part hereof and shall survive the execution of this Sublease, provided that in the event of any conflict between any provision thereof and the provisions of this Sublease, the provisions of this Sublease shall govern. 13. Joint and Several Liability. The obligations of the Sublessee shall be the joint and several obligations of the individuals signing this Sublease as Sublessee. IN WITNESS WHEREOF the parties hereto have executed this Sublease in multiple copies, each to be considered an original hereof, as a sealed instrument on the day and year first noted above. SUBLESSOR: TOWN OF SAUGUS By: Donald Wong, Chairman, Board of Selectmen By: Michael Kelleher, Selectman By: Peter A. Rossetti, Jr., Selectman By: Stephen Castinetti, Selectman By: Stephen M. Horlick, Selectman SUBLESSEE: NATHANIEL S. MANIFF ______________________________ JOHN P. CURLEY 7 Exhibit A [See Attached Lease] 8