17.
Lessee
shall
be
liable
for,
and
shall
pay
throughout
the
term
of
this
lease,
all
license
fees
and
all
excise
taxes
payable
for,
or
on
account
of,
the
activities
conducted
on
the
Premises
and
all
taxes
on
the
property
of
Lessee
on
the
Premises
and
any
taxes
on
the
Premises
and/or
on
the
leasehold
interest
created
by
this
lease
and/or
any
taxes
levied
in
lieu
of
a
tax
on
said
leasehold
interest
and/or
any
taxes
levied
on,
or
measured
by,
the
rentals
payable
hereunder,
whether
imposed on
Lessee
or
on
the
Port.
With
respect
to
any
such
taxes
payable
by
the
Port
which
are
on
or
measured
by
the
rent
payments
hereunder,
Lessee
shall
pay
to
the
Port
with
each
rent
payment
an
amount
equal
to
the
taX
on,
or
measured
by,
that
part
icular
payment.
All
other
tax
amounts
for
which
the
Port
is
or
will
be
entitled
to
reimbursement
from
Lessee
shall
be
payable
by
Lessee
to
the
Port
at
least
fifteen
(15)
days
prior
to
the
due
dates
of
the
respective
tax
amounts
involved;
provided,
that
Lessee
shall
be
entitled
to
a minimum
of
ten
(10)
days
written
notice
of
the
amounts
payable
by
it.
COMPLIANCE
18.
Lessee
agrees
to
comply
with
all
applicable
rules
WITH
PORT
and
regulations
of
the
Port
pertaining
to
the
building
or
other
REGULATIONS
realty
of
which
the
Premises
are
a
part
now
in
existence
or
AND
WITH
hereafter
promulgated
for
the
general
safety
and
convenience
of
ALL
LAWS
the
Port,
its
various
tenants,
invitees,
licensees
and
the
general
public.
Lessee
further
agrees
to
comply
with
all
applicable
federal,
state,
and
municipal
laws,
ordinances,
and
regulations,
including
without
limitation
those
relating
to
environmental
matters
. Any
fees
for
any
inspection
of
the
Premises
during
or
for
the
lease
term
by
any
federal,
state
or
municipal
officer
and
the
fees
for
any
so-called
"Certificate
of
Occupancy"
shall
be
paid
bl
Lessee
•
...
ASSIGNMENT
19.
(a)
Except
as
provided
in
subparagraph
19(b)
and
J\
OR
SUBLEASE
paragraph
42
below,
Lessee
shall
not
assign
or
transfer
this
lease
or
any
interest
therein
nor
sublet
the
whole
or
any
part
of
the
Premises,
nor
shall
this
lease
or
any
interest
thereunder
be
assignable
or
transferable
by
operat
ion
of
law
or
by
any
process
or
proceeding
of
any
court,
or
otherwise.
If
Lessee
is
a
\
corporation,
Lessee
further
agrees
that
if
at
any
time
during
the
term
of
this
lease
more
than
one-half
(1/2)
of
the
outstanding
shares
of
any
class
of
stock
of
Lessee
corporation
shall
belong
to
any
stockholders
other
than
those
who own more
than
one-half
(1/2)
of
the
outstanding
shares
of
that
class
of
stock
\
J
at
the
time
of
the
execution
of
this
lease
or
to
membe~s
of
their
immediate
families
or
to
any
estates
of,
or
trusts
established
for
the
benefit
of,
any
of
the
foregoing
persons,
such
change
in
\
the
ownership
of
the
stock
of
Lessee
shall
be deemed
an
assignment
of
this
lease
within
the
meaning
of
this
paragraph.
\
..
_------_
.
-~~~.-...~~
..
,
...
~
..
..
""""'
.
_ -
...
_
~--
-
-
-
-
-
-
--
----------
-
(b)
The
parties
understand
and
agree
that
the
"
\
'-
-
Independent
Packers
Corporation
sublease,
dated
October
1,
1984,
is
approved.
DEFAULTS
20.
Time
is
of
the
essence
of
this
agreement.
Lessee
shall
pay
interest
monthly
at
a
default
rate
which
shall
be
the
lesser
of
(a)
five
(5%)
percentage
points
over
the
"Prime
Rate"
or
(b)
the
maximum
rate
permitted
from
time
to
time
by
applicable
law,
on
all
sums owing
to
the
Port
under
this
lease,
commencing
thirty
(30)
days
after
the
date
each
sum
is
due
and
payable.
For
the
purpose
of
this
paragraph,
the
Prime
Rate
shall
mean
that
rate
of
interest
publicly
announced
by
Seafirst
Bank
in
Seattle,
Washington
(or
any
successor
thereto)
as
its
prime
rate
on
the
date
of
default.
In
the
event
of
the
failure
of
Lessee
to
pay
the
rents,
interests,
and any
and
all
other
charges
provided
in
this
lease
at
the
time
and
in
the
manner
herein
specified,
for
or
to
keep
any
of
the
covenants
or
agreements
herein
set
forth
to
be
be
kept
and
performed,
including
without
limitation
the
Provisions
of
paragraph
4
relating
to
the
Bond
or
Letter
of
- 13 -
BOGLE
909
8r
W/
09/ 87
CONSENT
TO
FINANCING
EXPIRATION
REPRESENTA-
TIONS
AND
WARRANTIES
BY
PORT
QUIET
ENJOYMENT
MEMORANDUM
OF
LEASE
SUPERSEDURE
ENTIRE
AGREEMENT
BOGLE
I I .
42.
The
Port
shall
consent
to
the
assignment
of
this
lease
by
Lessee
to
Key Bank
of
Puget
Sound ("Key
Bank")
to
secure
indebtedness
of
Lessee
to
Key Bank
in
amount
not
to
exceed
$3,000,000;
provided,
that
the
Port's
consent
shall
only
be
given
subject
to
the
terms
and
conditions
contained
in
and
upon
execution
by
the
Port's
Executive
Director
of
the
form
of
document
entitled
"Consent
to
Financing
Agreement,"
a
copy
of
which
is
attached
hereto
as
Exhibit
G,
with
such
modifications
thereto
as
are
requested
by
Key Bank
in
accordance
with
commercially
reasonable
lending
practices
and
as
the
Port's
Executive
Director
shall
in
his
sole
discretion
deem
reasonable
and
necessary.
Upon
completion
of
the
construction
of
the
improvements
to
'
the
New
Premises
referen
ced
in
Paragraph
9(b)
(3)
(ii)
and
ther
eafter
as
requested
by
the
Port,
Lessee
shall
verify
to
thePor
,t,.
in
wr
iting,
th
at
Le
ssee
has
since
the
Commencement
Date
of
the
Lease
used
proceeds
of
any
Key Bank
loan
secured
by
this
lease
pursuant
to
the
Consent
in
accordance
with
the
terms
of
the
Consent.
Lessee
also,
from
time
to
time
at
the
Port
.'s
request,
shall
allow
the
Port,
through
a
reputable
firm
of
certified
public
accountants
satisfactory
to
the
Port,
access
to
Lessee's
financial
records
to
allow
the
Port
to
confirm
Lessee's
use
of
the
loan
pr~ceeds.
43.
No
later
than
eighteen
(18)
months
prior
to
the
expiration
of
the
term
of
this
lease,
if
the
Port
elects
to
continue
to
lease
the
Premises
for
cold
storage
activities
and
before
negotiating
with
any
other
party,
the
Port
shall
offer
Lessee
the
opportunity
to
negotiate
a new
lease
of
the
Premises.
If
the
parties
are
unable
to
negotiate
a new
lease
at
least
six
(6)
months
prior
to
the
expiration
date
of
this
lease,
the
Port
shall
have
the
right
to
negotiate
a
lease
of
the
Premises
with
other
parties.
44.
The
Port
hereby
represents
and
warrants
to
Lessee
that
it
is
the
sole
owner
of
fee
title
to
the
Premises.
45.
So
long
as
Lessee
is
not
in
default
hereunder
(after
the
expiration
of
applicable
notice
and
cure
periods),
Lessee
shall
peaceably
and
quietly
have,
hold
and
enjoy
the
Premises
without
hindrance
by
the
Port
or
any
other
person,
subject
to
all
of
the
terms
and
conditions
of
this
Lease.
46.
Upon
request
of
Lessee,
the
parties
shall
execute
a
short
form Memorandum
of
Lease
suitable
in
form
for
recording
by
Lessee.
47.
The
parties
understand
and
agree
that
this
lease
on
its
Commencement
Date
cancels
and
supersedes
that
certain
lease
agreement
as
amended,
by
and
between
the
parties
dated
July
24,
1984,
providing
for
Lessee's
use
and
occupancy
of
Premises
at
Terminal
91,
and
that
this
new
lease
changes
the
basis
of
rental
calculations
to
include
guaranteed
minimum
and
percentage
rentals.
48.
This
lease
together
with
any
and
all
exhibits
expressly
incorporated
herein
by
reference
and
attached
hereto
shall
constitute
the
Whole
agreement
between
the
parties.
There
are
no
terms,
obligations,
covenants
or
conditions
other
than
those
contained
herein.
No
modification
or
amendment
of
this
agreement
shall
be
valid
or
effective
unless
evidenced
by an
agreement
in
writing
signed
by
both
parties.
- 19 -
9098r
-
10/09/87
l
,l
,
FOURTH AMENDMENT TO LEASE
BETWEEN
PORT OF SEATTLE AND CITYICE COLD STORAGE COMPANY
TERMINAL 91
THIS FOURTH AMENDMENT TO LEASE made as of , 2009 by
and between the PORT OF SEATTLE, a Washington municipal corporation, hereinafter called
lithe
Port,1I
and CITYICE COLD STORAGE COMPANY a Washington corporation/partnership,
hereinafter called IILessee,
II
WITNESSETH:
WHEREAS, the parties entered into a lease agreement dated November 10, 1987
hereinafter called "Basic Lease," covering certain premises and activities by Lessee at Terminal
91, Seattle, Washington, which was subsequently amended by Amendment(s) dated May 14,
1991, June 8, 1993 and May 30, 2003; and
WHEREAS, the parties now wish to further revise the Basic Lease as previously
amended, by amending Paragraph 19. (a) to allow assignment or subleasing with prior written
approval from the Port with certain exceptions as noted below.
NOW THEREFORE, in consideration of their mutual promises, the parties hereby agree
as follows:
1. Paragraph 19. (a) of the Basic Lease is deleted and is replaced with:
19. (a) ASSIGNMENT AND SUBLEASE
19. (a) (1) Prohibition. Lessee shall not, in whole or in part, assign,
sublet, license or permit occupancy by any party other than Lessee of all or any part of
the Premises, without the prior written consent of the Port in each instance which
consent shall not be unreasonably withheld or delayed. Provided, however, the Port
may withhold its consent, whether or not such withholding is considered reasonable, if;
• the proposed assignment of subletting is contrary to Port policy established by
resolution, motion or public proclamation by the Port of Seattle Commission and
such policy is for the general application to all Port properties and shall not be
proposed for application solely to the Premises;
• the proposed assignee of sublessee fails to establish to the Port's reasonable
satisfaction that it is financially capable to meet the obligations under the lease;
• the proposed assignee or sublessee is not experienced in operating properties in
accordance with the uses allowed under the lease;
• the proposed assignee or sublessee has a criminal record;
• there exists an uncured default under the lease (other than a default which is not
capable of being cured 'by any party other than Lessee);
POS 553429 1
l J ,
• the proposed assignee or sublessee is a party who has defaulted under any
agreement with or for the benefit of the Port or with whom the Port has had any legal
dispute in the past ten years.
Lessee shall at the time the Lessee requests the consent of the Port, deliver to the Port
such information in writing as the Port may reasonably require respecting the proposed
assignee, subtenant or licensee including, without limitation, the name, address, nature
of business, ownership, financial responsibility and standing of such proposed assignee,
subtenant or licensee. Within twenty (20) business days after receipt of all required
information, the Port shall, in its reasonable determination, elect one of the following: (a)
to consent to such proposed assignment, sublease or license or (b) to refuse such
consent.
19. (a) (2) A condition to the Port's consent to any assignment, sublease
or license of this Lease or the Premises shall be the delivery to the Port of a true copy of
the fully executed instrument of assignment, sublease or license and an agreement
executed by the assignee, sublessee or licensee in form and substance reasonably
satisfactory to the Port and expressly enforceable by the Port, whereby the assignee,
sublessee or licensee assumes and agrees to be bound by the terms and provisions of
this Lease and perform all the obligations of Lessee hereunder.
19. (a) (3) In the event of any assignment, Lessee and each respective
assignor, waives notice of default by the tenant in possession in the payment and
performance of the Rent, covenants and conditions of this Lease and consents that the
Port may in each and every instance deal with the tenant in possession, grant
extensions of time, waive pertormance of any of the terms, covenants and conditions of
this Lease and modify the same, and in general deal with the tenant then in possession
without notice to or consent of any assignor, including Lessee; and any and all
extensions of time, indulgences, dealings, modifications or waivers shall be deemed to
be made with the consent of Lessee and of each respective assignor.
19. (a) (4) Lessee agrees that any sublease or license will contain a
provision in substance that if there be any termination whatsoever of this Lease then the
subtenant or licensee, at the request of the Port, will attorn to the Port and the
sublessee or licensee, if the Port so requests, shall continue in effect with the Port, but
the Port shall be bound to the subtenant or licensee in such circumstances only by
privity of estate. Nothing herein shall be deemed to require the Port to accept such
attornment.
19. (a) (5) No assignment, subletting or license by Lessee shall relieve
Lessee of any obligation under this Lease, including Lessee's obligation to pay Rent or
any other sum hereunder. Any purported assignment, subletting or license contrary to
the provisions hereof without consent shall be void. The consent by the Port to any
assignment or subletting shall not constitute a waiver of the necessity for such consent
to any subsequent assignment or subletting.
POS 553429
2
19. (a) (6) Lessee shall reimburse the Port in the sum of Five Hundred
Dollars
($500.00) plus any reasonable professionals' fees and expenses incurred by the
Port in connection with any request by Lessee for consent to an assignment, subletting
or license.
19. (a)
(7) Scope. The prohibition against assigning or subletting.
contained in this Section 19. (a) shall be construed to include a prohibition against any
assignment or subletting by operation of law. Furthermore, for purposes of this Section
19. (a), any sale, transfer or other disposition in the aggregate of fifty percent
(50%) or
more of the equity ownership in Lessee (i.e. stock with respect to tenant corporation,
partnership interests with respect to a tenant partnership, etc.) shall be deemed an
assignment; provided, however, that transfers of stock or other equity ownership to or
among the owners of Lessee as of the date of this Amendment, or to or among
members of their immediate families (or trusts for the benefit of any such person), shall
not in any event be deemed an assignment. If this Lease be assigned, or if the
underlying beneficial interest of Lessee is transferred, or if the Premises or any part
thereof be sublet or occupied by anybody other than Lessee, the Port may collect Rent
from the assignee, subtenant or occupant and apply the net amount collected to the
Rent herein reserved, but no such assignment, subletting, occupancy or collection shall
be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Lessee 'from the further performance by Lessee of
covenants on the part of Lessee herein contained. No assignment or subletting shall
affect the continuing primary liability of Lessee (which, following assignment, shall be
joint and several with the assignee), and Lessee shall not be released from performing
any of the terms, covenants and conditions of this Lease.
2. Except as expressly amended herein, all provisions of the Basic Lease (as
previously amended) shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of the
day and year first above written.
PORT OF SEATTLE
CITYICE COLD STORAGE COMPANY
a municipal corporation
a Washington corporation
By _
By _
Its.
_
Its
~
_
POS 553429
3
I
l,l
Notary to Fourth Amendment to Lease
with Citylce Cold Storage
at Terminal 91.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of , 2009, before me, the undersigned notary
public in and for the State of Washington, duly commissioned and sworn, personally appeared
Michael McLaughlin, to me known to be the Sr. Manager, Cruise
& Industrial Properties of the
PORT OF SEATTLE, a municipal corporation, the corporation that executed the foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath stated that he was
duly authorized to execute the same.
WITNESS my hand and official seal hereto the day and year in this Certiflcate first
above written.
Notary Public in and for the State of
Washington, residing at _
My appointment expires _
(ACKNOWLEDGMENT FOR CORPORATE LESSEE)
STATE OF
WASHINGTON)
COUNTY OF
) ss.
)
On this
personally appeared
day of , 2009, before me,
and
___________________
, to me known to be the
___________
President and the Secretary,
respectively of the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said corporation, for
the uses and purposes therein mentioned, and on oath stated that they were authorized to
execute said instrument and that the seal affixed is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
Notary Public in and for the State of
_______
, residing at _
My appointment expires
-----..,.
_
POS 553429
4