5b attachment
STONE PIGMAN WALTHER WITTMANN L.L.C.
COUNSELLORS AT LAW
546 CARONDELET STREET
NEW ORLEANS, LOUISIANA 70l30-3588
(504) 58 I-3200
OUR FILE NUMBER
FAX (504) 58 I-336I
LEON d. REYMOND, III www.5toneplgman.com
DIRECT DIAL: (504) 593-0880
DIRECT FAX: (504) 596-0880
EMoil: lreymond@stonepigmon.com 43,1 12
January 19, 2010
BY E-MAIL
Ms. Jasmin Contreras
The Port of Seattle
(c0ntreras.j@portseattle.org)
Re: Merger ofWestway Feed Products, Inc. with and into
Feed Merger Sub LLC
Dear Ms. Contreras:
I write to conrm the information that I gave you in our telephone
conversation of today. As we discussed, immediately following the merger of
Westway Feed Products, Inc. with and into Feed Merger Sub LLC on May 28,
2009 (the transaction that the Port of Seattle approved), Feed Merger Sub LLC
changed its name to Westway Feed Products LLC. Feed Merger Sub LLC's
action of changing its name did not involve any further transfer or assignment of
the Company's lease with The Port of Seattle that would have required further
consent.
Should you have any questions regarding the above, please do not
hesitate to call.
With kind regards, I remain
LJR/paf
1005120v.l
CONDITIONAL CONSENT TO ASSIGNMENT
THIS CONDITIONAL CONSENT TO ASSIGNMENT ("Consent") is made as of
this day of May, 2009 by and between the PORT OF SEATILE, a
Washington municipal corporation (''the Port"), Westway Feed Products, Inc., a
Delaware corporation ("Assignor") and Feed Merger Sub LLC, a Delaware Limited
Liability Company ("Assignee").
WHEREAS, the Port and Assignor are parties to that certain Port of Seattle
Lease No. 517 dated JUly 23,1996 (''the Lease"), which Lease relates to certain
premises located at Terminal 1B, Port of Seattle, as more particularly described in the
Lease (''the Premises); and
WHEREAS, Assignor and Assignee have entered into that Transaction
Agreement, dated November 25, 200B, as amended and restated as of May 1, 2009
(''the Assignment Agreement"), pursuant to which, inter alia, Assignor will merge with
and into Assignee and, by operation of law, Assignee will assume, all rights and
obligations under the Lease (the "Assignment") effective as 6f the Closing Date, as
defined in the Assignment Agreement (the "Effective Date");!and
I
WHEREAS, Assignor and Assignee are, under the terms of the Lease, required
to obtain the Port's consent to the Assignment; and
WHEREAS, the Port is prepared to give its consent to the Assignment subject to ,
certain conditions as more specifically set forth in this cons~lnt; .
NOW THEREFORE, in consideration of the mutual promises and other valuable
I
consideration the receipt of which is hereby acknowledged, the parties agree as follows:
1. Re resentations and Warranties Re ardin Assi nment. Although the Port
has been provided with a copy of the Assignment Agreement, Assignor and Assignee .
acknowledge and agree that the Port has not reviewed, or passeo upon the legal effect
of, the Assignment Agreement. Instead, Assignor and Assighee hereby represent,
warrant and covenant as follows for purposes of obtaining th~ Port's consent:
a. As of the Effective Date, Assignor will, lexcepting only the
necessity of this Consent, absolutely and uncondition~lIy assign and transfer, by
means of merger, to Assignee all of Assignor's right, title, and interest in and to
the Lease, subject to all the terms and conditions, CO~I'enants, and agreements
contained in the Lease;
b. As of the Effective Date, Assignee will, excepting only the
necessity of this Consent, absolutely and uncondition lIy accept such
assignment and assumed and agree to perform all th~ terms, conditions,
covenants, and agreements of the Lease, on the part 6f the Lessee in the Lease,
as if Assignee had originally executed the Lease; and
c. Assignee's agreement shall be binding Ion the successors and
assigns of Assignee.
- 1 -
Conditional Consent 10Assignment
htlp://mysite.portseattle.org/jbc/AGREEMENT/CONSENTlWestway Consent to Assign.doc
6/2/2009
d. No compensation or consideration of any kind that would entitle
the Port to any "Excess Rentals" under the Lease has been, or will be, paid by
Assignee to Assignor in connection with the Assignment.
e. Within fifteen (15) days of the Closing Date, Assignee will notify
the Port in writing of the closing of the transaction described in the Assignment
Agreement and, consequently, the Effective Date hereunder. If the Assignment
does not occur on or before June 15, 2009, this Consent will be of no further
force or effect.
2. Consent of Port. Subject to the agreements and the fulfillment of the
conditions set forth in this Consent, the Port hereby consents to the Assignment.
3. Port May Deal with Assignee. On or after the Effective Date, Assignor hereby
waives notice of default by Assignee (or any successor) in the payment and
performance of the rent, covenants and conditions of the Lease and consents that the
Port may in each and every instance deal with the Assignee (or any successor), grant
extensions of time, waive performance of any of the terms, covenants and conditions of
the Lease and modify the same, and in general deal with the Assignee (or any
successor) without notice to or consent of Assignor; and any and all extensions of time,
indulgences, dealings, modifications or waivers shall be deemed to be made with the
consent of Assignor (and any successor). {
4. Assignor Remains Liable. Assignor shall be an remain liable and
responsible for the keeping, performance, and observance f all the covenants,
agreements, terms, provisions, and conditions set forth in the Lease on the part of
Lessee and for the payment of the annual rental, additlonaljent, and all other sums now
and/or hereafter becoming payable thereunder, expressly including, but not limited to,
adjustments of rent, and any and all charges for any additiohal electric energy, property,
material, labor, utility, or other similar or dissimilar services or materials rendered,
supplied, or furnished by the Port in, to or in connection Wit~ the Premises or any part
thereof, whether for or at the request of Assignor or Assignee.
5. Additional Conditions to Consent. The Port's
co~sent
is specifically
conditioned upon, and shall not be effective until:
a. Assignee has documented, on terms [satisfactory to the Port,
compliance with Paragraph 5 (Bond or Other Surety~ of the Lease, by consenting
to the retention by the Port of the security previouSI~1 provided by Assignor.
b. Assignee has documented, on terms satisfactory to the Port,
compliance with the insurance requirements of Parabraph 15 of the Lease
(Indemnification Liability Insurance): I
6. No Modification. Nothing in this Consent shall be construed to modify, waive,
impair or affect any of the covenants, agreements, terms, provisions, or conditions in the
Lease (except as expressly provided in this Consent), or to raive any breach thereof, or
any rights of the Port against any person, firm, partnership, ,association, or corporation
liable or responsible for the performance thereof, or to enla~ge or increase the Port's
obligations under the Lease, and all covenants, agreements, terms, provisions, and
conditions of the Lease are hereby mutually declared to be in full force and effect.
-2-
Conditional Consent to Assignment
http://mysite.portseattle.org/jbc/AGREEMENT/CONSENTlWestway Consent to Assign.doc
6/2/2009
7. No Further Assignment. No further assignment or sublease of the Lease
shall be made without the Port's written consent, and the Port specflcally reserves all of
its rights under the Lease except as expressly set forth herein.
8. Applicable Law; Attorneys' Fees. This Consent shall be construed and
enforced in accordance with the laws of the State of Washington. In the event either
party requires the services of an attorney in connection with enforcing the terms of this
Consent, the prevailing party shall be entitled to a reasonable sum for attorneys' fees,
witness fees and other court costs and expenses, both at trial and on appeal.
9. Entire Agreement. This Consent shall be binding upon the parties and
their respective successors and assigns. This Consent, together with the Lease, sets
forth all covenants, promises, agreements, conditions and understandings between the
parties and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between the parties other than as set forth in this
Consent. No subsequent alteration, amendment, change or addition to the Consent
shall be binding unless reduced to writing and signed by all parties.
10. Captions and Article Numbers. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience and in no way
define, limit, construe or describe the scope or intent or such sections nor in any way
affect this Agreement.
II
!
IN WITNESS WHEREOF, the parties hereto have e~1 ecuted this Consent as of
the day and year first above written.
PORT OF SEATrLE
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Conditional Consent to Assignment
htlp:llmysite.portseallle.org/jbc/AGREEMENT/CONSENTiWeslway Consent to Assign.doc
6/2/2009
j,. "
(ACKNOWLEDGEMENT FOR PORT>
STATE OF WASHINGTON
ss.
COUNTY OF KING
On this __ day of , 20 , before me, personally appeared
________________to me known to be the
_______________of the PORT OF SEATTLE, a mu
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/she was duly authorized to execute the same.
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 commission expires: _
(ACKNOWLEDGEMENT FOR WESTWAY FEED PRODUCTS, INC.l
STATE OF TEXAS ) 1I
COUNTYOF HQrri-s )) ss.
On this \5 day of UlM\.O , 20--.D.5i., before me, perso ally appeared
Bf..:j..(M) -----.!LL)hoe. me.J5,er to me known to be he
l?cid;ex;j of \oJ e.6tw~ Wd Yrodud5 the corporation
that executed the foregoing instrument, and acknowledgedsaid i~strument 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/she was duly authorized to execute the same'l .
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written. ~ d &..ha..u.r
CYNTHIA S. SCHAUB
NO~IiC
in
~nd
for the State of TeXQD
Notary Public, State of Texas Residing at: _1il.:...,IC=M.h=oJ..I=;:""...._...,-- _
My Commission Expires My commission expires: 01 1'14Y Mid
May 02,2012 I T
(!- CKNOWLEDGEMENT FOR FEED MERGBR SUB LLCl
STATE OF Te. XCt 6
ss.
COUNTY OF HClrri.s
On this I 5 day of
~
l..I..n..e ,
20~,
before me, perslnallY appeared
6ryCll\ D 0hoe/mC.o.A< er to me known to be the
___1 .,----- of r--e.ec.1 Me.t;:Q.-.erl ~ LL<:' ,the
corporation that executed the foregoing instrument, and ackIQN~dged 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/she was duly authorized t~ execute the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixJd my official seal the day and
year first above written. n..tbI cu...Jy
CYNTHI~ S. SCHAUB Nota Public in and for the State of T-e X~6
Notary Public,State of Texas . .
MyCommissionExpires Residing at: _T:.........O....M.......cJ.1""""''---- _
May 02,2012 My commission expires: ex May Q.Q ~d.1
- 4-
Conditional Consent to ASSignment
http://mysite.portseattle.org/jbc/AGREEMENT/CONSENT/Westway Consent to Assign.doc
6/2/2009
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