(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
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
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.
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
(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
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.
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
(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
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
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.
Section 18.1 (Landlord’s Representations, Warranties and Covenants): This provision
shall not be incorporated in the Sublease.
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
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.
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
Town of Saugus
298 Central Street
Saugus, MA 01906
Attn: Town Manager
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.
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
SUBLESSOR: TOWN OF SAUGUS
Donald Wong, Chairman, Board of Selectmen
Michael Kelleher, Selectman
Peter A. Rossetti, Jr., Selectman
Stephen Castinetti, Selectman
Stephen M. Horlick, Selectman
NATHANIEL S. MANIFF
JOHN P. CURLEY
[See Attached Lease]