Item 6f Amendment
ATTACHMENT A FIRST AMENDMENT TO LEASE AND CONCESSION AGREEMENT for Luggage Carts and Lockers THIS FIRST AMENDMENT TO LEASE AND CONCESSION AGREEMENT (the "Amendment") is made as of this day of November 2009, by and between the PORT OF SEATTLE (the "Port"), a Washington municipal corporation, and SMARTE CARTE, INC. (the "Lessee"), a Minnesota corporation. WHEREAS, the Port of Seattle'and Smarte Carte, Inc. are parties to that certain Lease and Concession Agreement for Luggage Carts and Lockers dated September 21, 2004 (the "Agreement"); and WHEREAS, the parties wish to extend the term of the Agreement and, for the extension term, make certain other revisions to the Agreement; NOW THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter set forth, the parties agree as follows: 1. Denitions. Capitalized terms that are undened in this Amendment shall have the same meaning specied in the Agreement. 2. Revised Denition ofGross Receipts from Carts. Section 1.7.1. ofthe Agreement pertaining to Gross Receipts from Carts is hereby deleted and replaced with the following: 1.7.] Gross Receipts from Carts, Charging Stations, and Massage Chairs. "Gross Receipts from Carts, Charging Stations, and Massage Chairs" shall mean and refer to all Gross Receipts pertaining to the operation and maintenance of luggage carts, charging stations, and massage chairs, excepting Gross Receipts from Advertising. Any amount ofGross Receipts not falling within either ofthe other two categories shall be treated as Gross Receipts from Carts, Charging Stations, and Massage Chairs. 3. ' Premises. 3.1 Revised Denition of Premises. Section 1.14 of the Agreement pertaining to the denition ofthe term "Premises" is hereby deleted and replaced with the following: 1.14 "Premises" shall mean the spaces with the Passenger Terminals, parking garage and other locations in the Airport listed and described on Exhibit Bl to this Amendment (the initial "Premises Notice"). Notwithstanding the foregoing, the Port shail have the right, at its sole discretion, to freely revise the Premises during the course of this Agreement on (unless an emergency exists) not less than thirty (30) days written notice to Lessee. The Port and Lessee agree that the Premises Notice maybe revisedby the parties from time to time during the term to reect the addition, deletion or relocation of the Premises under this Agreement, and any revised Premises Notice shall automatically be incorporated into this Agreement and update and replace Exhibit B-1 and the last issued Premises Notice without the necessity of a formal amendment to the Agreement. 3.2 Revised Exhibit B. Exhibit B to the Agreement is hereby deleted and replaced with Exhibit B-l attached hereto. 4. Extension ofthe Term. The Term ofthis Agreement is hereby extended for a period ofve (5) years. Unless sooner revoked, terminated or held over to a later date under any other term or provision ofthe Agreement or this Amendment, the extension term shall commence on February 1, 2010 and terminate on January 31, 2014 (the "Extension Term"). 5. Rent/Concession Fees. 5.1 Minimum Annual Guarantee. Notwithstanding anything to the contrary in Section 4.1 of the Agreement, the Minimum Annual Guarantee for the Extension Term shall be as follows: 5.1.1 First Agreement Year for the Extension Term. For the rst year of the Extension Term, the Minimum Annual Guarantee shall be Three Hundred Sixteen Thousand, Eight Hundred and Twenty-Seven Dollars and No Cents ($316,827.00). 5.1.2 Second and Subsequent Agreement Years. For the second and each subsequent Agreement Year ofthe Extension Term, the Minimum Annual Guarantee shall be an amount equal to eighty percent (80%) of the total amount (whether by Minimum Annual Guarantee or Percentage Fees) paid by Lessee to the Port for the previous Agreement Year; provided, however, the Minimum Annual Guarantee shall not (subject only to relief in the event of exceptional circumstances set forth in Section 4.1.3 ofthe Agreement) be less than the Minimum Annual Guarantee for the First Agreement Year of the Extension Term (as set forth in Section 5.1.1 of this Amendment). 5.2 Percentage Fees. Notwithstanding anything to the contrary in Section 4.2 of the Agreement, the schedule of Percentage Fees for the Extension Term shall be as follows: Concession Categog Percentage of Gross Receipts Gross Receipts from Carts, Charging Stations, and Massage Chairs 22% Gross Receipts from Lockers 15% Gross Receipts from Advertising 40% Gross Receipts from Advertising 40% . 6. Annual Reconciliation. For any Gross Receipts earned and reported during the Extension Term (but not any earlier period), Section 4.4 of the Agreement is hereby deleted in its entirety. Lessee shall, for the Extension Term, specically be entitled to an annual reconciliation of the Minimum Annual Guarantee visa-vis the Percentage Fee. 7. Use of Premises. Section 11.1 of the Agreement is hereby deleted and replaced with the following: 11.1 Lessee shall use the Premises for the operation of luggage carts, charging stations, massage chairs, and lockers concession as specically set forth in this Agreement. 8. Revised Rental Rates and Charges. For the Extension Term, Exhibit D is hereby deleted and replaced with the revised Exhibit Dl attached hereto. 9. Other Terms Unaffected. Except as expressly set forth in this Amendment, ail other provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date rst above written. PORT OF SEATTLE SMARTE CARTE, INC. By: By: Its: Director, Business Development Its: ACKNOWLEDGMENTS STATE OF WASHINGTON ) ) ss COUNTY OF KING ) On this day of 2009 before me , personally appeared to me known to be the of the , PORT OF SEATTLE, the municipal 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 s/he was authorized to execute said instrument. In Witness Whereof I have hereunto set my hand and afxed my ofcial seal the day and year rst above written. (Signature) (Print Name) Notary Public, in and for the State ofWashington, residing at My Commission expires: STATE or WASHINGTON ) ) ss COUNTY OF KING ) On this day of before me , 2009, personally appeared to me known to be the of SMARTE , CARTE, INC. the corporation that executed the within and foregoing instrument as Lessee, and acknowledged , said instrument to be the free and voluntary act and deed ofsaid corporation, for the uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute said instrument. In Witness Whereof I have hereunto set my hand and afxed my ofcial seal the day and year rst above written. (Signature) (Print Name) Notary Public, in and for the State of Washington, residing at My Commission expires:
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