Court").
F.
Lessee, the Ports and Guarantor have each had substantial
participation in the preparation of this Seventh Amendment which shall become
effective upon entry of a final non-
1
appealable Order of the Bankruptcy Court authorizing the Lessee's and
Guarantor's entry into and approving this Seventh Amendment.
G.
At a properly convened public meeting of the Commission of the
Ports, the duly authorized officers have approved the execution and delivery of
this Seventh Amendment.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
undertakings hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Ports, Lessee
and Guarantor (solely for purposes of its agreement to the provisions of
Paragraphs 7 and 8 below) hereby agree as follows:
1.
THE PORTS REQUESTED AND THE LESSEE HAS CONSENTED TO THE RELEASE
OF TRACT 2 FROM ITS LEASE SO THAT SAID TRACT COULD BE COMBINED WITH OTHER PORT
REAL PROPERTY FOR THE DEVELOPMENT AND CONSTRUCTION OF A NEW PROJECT AND LEASE
AGREEMENT WITH A NEW TENANT AT THE PORT.
2.
THE PARTIES AGREE THE LAND TO BE SURRENDERED BACK TO THE PORTS
PURSUANT TO THIS SEVENTH AMENDMENT AND DEFINED HEREIN AS TRACT 2, CONSISTS OF
APPROXIMATELY 4 +/- ACRES AND IS MORE PARTICULARLY DESCRIBED AND DEPICTED IN THE
DRAWING AND DESCRIPTION ATTACHED HERETO, MADE A PART HEREOF, AND MARKED AS
EXHIBIT 1-7THAMENDMENT.
A METES AND BOUNDS DESCRIPTION, AS WELL AS THE ACTUAL
ACREAGE OF TRACT 2, WILL BE ESTABLISHED BY THE "AS BUILT" ALTA/ACSM LAND TITLE
SURVEY OF THE LEASED PREMISES, CONTAINING TABLE A ITEMS 1-4, 6, 7A, 8-10, 11A
AND 13 (THE "AS BUILT SURVEY") TO BE PROVIDED BY LESSEE PURSUANT TO PARAGRAPH 4
HEREAFTER.
3.
ATTACHED TO THE FOURTH AMENDMENT, AS WELL AS TO THIS SEVENTH
AMENDMENT, IS EXHIBIT A - DESCRIPTION OF LEASED REAL ESTATE, ("EXHIBIT A").
EXHIBIT A DESCRIBES THE LEASED PREMISES AS CONSISTING OF 118.05 ACRES.
4.
BY AGREEMENT OF THE PARTIES THE FINAL AS BUILT SURVEY (DEPICTING
THE FINAL BOUNDARY LINE OF THE LEASED PREMISES, TOGETHER WITH ALL NECESSARY
EASEMENTS, RIGHTS OF WAY AND DELETIONS OF ACREAGE) IS TO BE PERFORMED BY LESSEE
WHEN THE PROJECT IS AT A STAGE WHEN THE ACTUAL BOUNDARIES ARE READILY
IDENTIFIABLE, BUT IN NO EVENT LATER THAN DECEMBER 31, 2009.
5.
ARTICLE III OF THE LEASE PROVIDES THAT LESSEE SHALL PAY INITIAL
GROUND RENT OF THREE THOUSAND TWO HUNDRED DOLLARS ($3,200) PER ACRE PER YEAR,
AND SECTION 1.01 OF THE LEASE IDENTIFIES THE DEMISED REAL ESTATE AS
APPROXIMATELY 116 ACRES, MORE OR LESS.
6.
IT IS FURTHER AGREED BY THE PARTIES THAT AN ADJUSTMENT TO THE
INITIAL GROUND RENT PAID AND PAYABLE BY LESSEE WILL BE MADE UPON COMPLETION OF
THE AS BUILT SURVEY.
THE PARTIES ACKNOWLEDGE THAT SINCE THE EXECUTION OF THE
LEASE, LESSEE HAS OCCUPIED MORE THAN THE 116 ACRES.
SPECIFICALLY, LESSEE HAS
OCCUPIED 117.808 ACRES FROM OCTOBER 31, 2006 UNTIL INCREASED TO 118.05 ON
JUNE 19, 2008; REDUCED BY 2.37 ACRES ON FEBRUARY 12, 2009, AND