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DanielR Lozier

LozrE& THAMES & FRAZIE& p.A.

One Pensacola Plaza
125 West Romana

Steet Suite 224

Pensacola, Florida 32501

STATE OF FLORIDA COI'NTY OF DSCAMBIA

PITT SLIP MARINA SUBI T'ASFIAGREEMENT

THIS PITT SLIP MARINA SUBLEASE AGREEMENT ("Sublease"), is made and entered into effective the Zo*duy of APa, | , 2000, by and between SEVILLE HARBOUR, NC., formerly known as South Florida Marine lnvestors, [nc. a Florida corporation, or its assigns, (hereinafter referred to as "Sublessoy'' or "Lessor"), and MERRILL LAND, LLC, a Florida limited liability company or its assigns (hereinafter referred to as "Sublessee" or "Lessee").

WITNESSETH:
WHEREAS, Sublessor is the holder of leasehold interests in that certain Pitt Slip Marina
Lease Agreement between the City of Pensacola, Florida and Florida Sun Intemational, Inc. dated September 18, 1985, and recorded in O.R. Book 3624 at Page 104 of the Public Records of Escambia County, Florida and that certain Lease Agreement between the City of Pensacola, Florida and the Board of Trustees ofthe lnternal Improvement Trust Fund ofthe State of Florida as recorded in O.R. Book 2249 at Page 850 of the Public Records of Escambia County, Florida ("Submerged Land Lease'), and that certain warranty deed dated July 25, 1990 and recorded in O.R. Book 2888 at Page

963 of the Public Records of Escambia County, Florida ("Warranty Deed"), and that certain Memorandrun of Lease between the City of Pensacola, Florida and Florida Sun Intemational, Inc., dated June 27,1986, as recorded in O.R. Book2249 at Page 859 of the Public Records of Escambia County, Florida, (which documents, as amended, are hereinafter collectively referred to as the "Marina Lease"), the legal description of which is attached hereto as Exhibit A, and hereby
incorporated by reference; and

WHEREAS, the Historic Pensacola Preservation Board of Trustees, an agency of the State of Florida has by its Wananty Deed conveyed the property described in the Submerged Land Lease to the City of Pensacola which deed has resulted in a merger of title by operation of law; and

WHEREAS, Lessor desires to lease to Lessee and Lessee desires to lease from lrssor all property and improvements described in the Marina Lease and as described in Exhibit A attached and incorporated by reference, LESS and EXCEPT a portion of the Marina Lease property and improvements which portion includes the submerged lands and a portion of the uplands, as more particularly described in Exhibit B, attached hereto and hereby incorporated by reference and as

Psri[+fr'=eil+*t v. Florioa
O:-zegrog
depicted by that certain description and description drawing by Northwest Florida Engineering and Surveying,Inc., dated January 13,2000, and all buildings, improvements, fixtures, and equipment theron, including all docks, piers, pilings, boat slips, fuel tanks, equipment, fixtures, utility lines, facilities, and other assets and properties related to or situated on or in the property described in

pGoSe-o

Exhibit B which property and improvements are hereinafter collectively referred to as the
"Submerged Properties"; and

WHEREAS, the parties hereto desire to set forth the tenns and conditions of said Sublease; NOW TIIEREFORE, in consideration ofthe foregoulg, and in consideration of their mutual covenants, tertrts, and conditions hereinafter expressed, the parties hereto agree as follows:

I.

THE PROPERTY

A.

Subject to the terms and conditions set forth herein:

(1) The Lessor subleases to the Lessee, and the Lessee subleases fiom the Lessor, property the and improvements described in the Marina Lease and as described in Exhibit A, attached and incorporated by reference LESS and EXCEPT the Submerged Properties including the property described in Exhibit B, attached and incorporated by reference. The property and improvements hereby subleased to Lessee are sometimes hereinafter referred to as the "Upland Properties".
Lessor hereby retains a perpetual non-exclusive easement over and on the property described in Exhibit A, atiached hereto and hereby incorporated by reference, for ingress, egress, parking, signage, utility lines (including but not limited to water, electrical, sewer, gas, telephone, cable TV, and fuel storage and delivery systems) as well as for maintenance, construction, and reconsfuction of the Submerged Properties, (including but not limited to dredging operations). ln no event shall parking provided to Lessor by Lessee be less than the number of spaces required by the City of Pensacola building code requirements in existence on the date hereof.

B.

II. LEAffE TERMS

The term of this Sublease shall be for the remaining term of the Marina Lease plus any extensions or renewals thereof. The Lessor and the Lessee agree to cooperate with each other in securing renewals of the Marina Lease which renewals shall automatically extend this Sublease.

III. LEASE PAYMENTS

Lessee shall pay rent to the Lessor in the amounts and manner set forth herein. Commencing with the date of this Sublease, through the end of the existing temr of Lease as currently extended or renewed, (without taking into account extensions or the Marina renewals thereof executed after the date hereof), Lessee shall pay rnt to Lessor on a monthly basis in advance at the annual rate often (10) cents per square foot ofthe property described in Exhibit A, including the Submerged Properties described in Exhibit B. Upon any extension or renewal of the existing term, Lessee shall pay to Lessor upon the same terms and in the same manner as

A.

+E5 a pEose,. ' ifr E?Afi,,,Eft f "661?5i i6i d "

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imposed upon Lessor by the Marina Lease or extension thereot that portion of any increase in Lessor's rental obligations under the Marina Lease (other than percentage rent obligations based on a percentage of gross sales or similar business volumes), attributable to the property described in Exhibit A, LESS and EXCEPT the property described in Exhibit B as determined by an appraiser muhr,ally acceptable to Lrssor and kssee. If Lessor and Lessee do not agre upon an appraiser, the appraiser who conducted the fee appraisal described in Section II(C) of the Marina Lease shall make such determination and such determination shall be final and binding on the parties.
In addition to the rental payments provided for in paragnph trI (A), in the event that l.essor is required to pay additional rent to the City of Pensacola in the form of a percentage of gross sales and gloss rentals as described in Section III (B) of the Marina Lrcase, then in such event, and subject to Section III (BX3) below, the Lessee shall pay to the Lessor:

B.

Five percent (5o/o) of "Gross Sales," as hereinafter defined, from business operated by the lrssee on the Upland Properties; except that the percentage attributable enterprises to marina fuel shall be fourtenths of one percent (0.4%) of sales up to one hundred fifty thousand
(150,000)gallons, andone-half of onepercent Q.s%)of salesexceedingonehundredfiftythousand (150,000) gallons; and Five percent (5%) of "Gross Rentals," as hereinafter defined, received from Lssee's sublessee's, except that the percentage attributable to office rent, if any, shall be two and
one-hal

(1)

(2)

pe r

cent (2. 5o/o).

Commencing with the first anniversary date of this Sublease, the Lessee shall pay to the Lessor the amounts required under both paragraphs III. A. above and this paragraph III. B. for the previous year, however, any amount paid by the Lessee under paraglaph III. A. above shall be applied to and shall reduce any amounts due under this paragaph III. B. (Example: If the Lessee owed the Lessor the sum of $12,000.00 under paragraph III. A. above, during any given year, and the application of III. B. above would require during that year the payment of $15,000.00 from the Lessee to the Lessor, then the total amount paid to the Lessor by the kssee under both paragraphs III. A. and III. B. for such year would be the sum of $15,000.00.)
In order to define, calculate, and verifr the amounts due the Lessor under this paragraph B., the following definitions and procedures shall apply:

III.

(a)

Defirftions of Gross.Rentals and fiross Sales:

As used hereiru the term "Gross Rentals" shall mean all rents or other monies actually received by the Lessee from all business enterprises (sublessees or tenants - including any business enterprises operated by the Lessee)

(i)

within the Upland Properties, including origination or renewal bonuses, but

excluding deposits for damages or performance and excluding any sums collected and paid out for any sales, excise, or other taxes and excluding any sums collected or received bv Lessee's sublessees or tenants.

ss:Rl+faFR*brllflfaFr
(ii) As used herein, the term "Gross Sales,' shall mean all monies received by the Lessee, whether wholly or partially for cash or on credit, of all merchandise and services sold and all other receipts by sale or otherwise of all business conducted on or from the Upland Properties by Lessee, its subsidiaries, or business combinations, including without limiting the foregoing, all sales to subsidiaries, business combinations, employees, or agents of Lessee, all orders taken in or from the premises by Lessee, its employees or agents, although said orders may be received by telephone or mail, or filed elsewhere, or procured from the upland hoperties by house-to-house or other canvasing, and all rentals of boat slips and dry storage areas. Sales to customers on a lay-away basis shall be recognized as "Gross Sales" within ninety (90) days of the lay-away transaction and in any event must be fully recognized when the merchandise leaves the Upland properties.
The term "Gross Sales" shall also include, without limitation, all deposits not refunded to purchasers, all service charges for lay-away sales, and all commissions received from vending and game machines on the Upland Properties for use by the general public, and Lessee's other cash receipts resulting from sales transactions on the Upland Properties. There shall be excluded from "Gross Sales," any sums collected and paid out for any sales, excise, or other tax based upon all taxable sales in this definition of "Gross Sales" as required by law, whether now or hereafter in force. The terrr "Gross Sales" shall not include the exchange or transfer of merchandise between the stores of Lessee where such exchanges or tansfen of merchandise are made solely for the convenient operation of the business of Lessee, and not for the purpose of conswnmating a sale made in, from, or upon the Upland Properties; nor the amount of any caslr/credit refunds upon any sale where the merchandise sold, or some part thereof, is transfened, returned by the purchaser to and accepted by kssee; nor sales of fixtures; nor any sales, rentso business revenues, or other cash receipts ofany tenant or sublessee ofLessee. There shall also be excluded from the term "Gross Sales" all fees or service charges for delivery fees and C.O.D. fees. The term "Gross Sales" shall also exclude finance charges resulting from accounts receivable.

Yerification and Accounting: The Lessee agrees to keep accurate and permanent records of all hansactions and make those records available for inspection and auditing by the Lessor and the City of Pensacola. Within ninety (90) days after the date of the end of each year during which percentage payments to the Lessor are due hereunder, the Lessee shall provide the Lessor with tax information and other financial data on the results of operations of Lessee from the leased premises as the Lessor may request. Said data shall show the

(iii)

oR BK 455

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accompanied by payment. The Lessor gross sales as defined herein and shall reserves the right to require audited statements if, in the Lessor's opinion, the tax statements and other financial data are insufficient for purposes of verification and accounting for results of operations from the Upland Properties. In the event the Lessor requests an audited statement and the results indicate that the percentage payments made to Lessor are equal to or greater than ninety-seven percent (97%) ot the amount due, Lessor shall be required to bear the cost of the audit.
Such information as lrssee deems confidential to its operations shall be kept

confidential by Lessor; provided, however, that the Lessor may make public disclosure of such information using gross arnounts surnmarizing operations under the entire Marina Lease and not disclosing results of operations of lrssee.
Nonvithstanding Sections m @Xl) and (2) above, in such event that l,essor is required to pay additional rent to the City of Pensacola in the form of a percentage of gloss sales and goss rentals as described in Section III (B) of the Marina Lease, Lessor and Lessee agree to equitably allocate said additional rent obligations between lrssor and Lessee herein in the proportion that each party's gross sales and gross rentals giving rise to said additional rent obligation (ifany) bears to the total of all gross sales aod gross rentals giving rise to said additional rent obligation and if the parties are unable to reach agreement on said allocation, the dispute shall be resolved by binding arbihation in accordance with the Florida Arbifation Code, as amended, Florida Statutes Chapter 682 (1999), but in no event shall the additional rent obligation imposed upon Lessor relating to sales of marina fuel exceed the limitations of Section nI (BXl) herein, nor sball the additional rent obligation imposed upon Lessee relating to office rent exceed the limitations of Section III(B)(2) herein.

3)

The Lessee shall pay Lessor interest from the date when due on all rent payments that are made by Lessee to Lessor more than fifteen (15) days after the date the rent payments become due and payable. The interest to be paid by Lessee shall be the announced commercial prime rate of interest charged by Chemical Bank of New York, or its successor, as that rate may change from day to day.

(C)

IV. AUTHORITY TQ LEASE PROPERTY

[Intentionally left blank]

Y.

USE OF LEASED PRQPERTY

The Submerged Properties shall be used by Lessor as a marina complex of approximately ninety-four (9a) slips including a harbor master facility, ships' store, fuel facilities, compatible marina uses, and other uses incidental thereto. Lessor shall at all times tluoughout the term hereof keep and operate said marina complex.

==?iB?ifi'Eftt"86rr5liElo.
VI. CONSTRUCTION
OF IMPROVEMENTS

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[Intentionally left Blank]

VII. TITLN TO IMPROVEMENTS

[Intentionally left Blank]

VIII.

A.CCESS TO PROPERTY

During the term of this Sublease, and any renewal or extension hereof, Lessee shall permit the representatives of the City of Pensacola and the Lessor access to the Upland Properties at all reasonable times deemed necessary for the purpose of the Marina Lease.

rK

covENANTS AND RESTRICTTONS

dl times subject

Lessee acknowledges that this Sublease and the Submerged Properties are at to the terms, conditions, and restrictions of the Marina Lease.

x.

TNpEMNIFICATION Arrp HqI/p HARIILESS AGREEMENT

The kssee shall defend and indemnifu the kssor and the City of Pensacola and save them harmless from any and all claims, suits, actions, damages, liability, and expense in connection with loss of life, bodily or personal injury, or property damage arising from or out of any occunnce in, upon, at, or about the Upland Properties or any part thereof, or occasioned wholly or in part by any act or omission of the Lessee, its agents, contractors, employees, servants, invitees, licensees, or concessionaires. The l,essor shall defend and indemnif, the Lessee and save it harmless from any and all claims, suits, actions, damages, liability, and expense in connection with loss of life, bodily or personal injury, or property damage arising from or out of any occulTenc in, upon, at, or about the Submerged Properties, or any part thereof, or occasioned wholly or in part by any act or omission

A.

B.

of the

Lessor,

its agents, conhactors,

employees, servants, invitees, licensees, tenants, or

concessionaires and shall further defend and indemnify the Lessee and save Lessee harmless from and against any and all claims, suits, actions, damages, liability and expense arising from or out of any environmental hazards, contamination, clean up expense, or other environmental matters directly related to Lessor's marina fuel storage tanks, distribution lines, dispensing systems and waste oil

collection facilities.

XI.

INSURANCE REQUIRED

Lessee shall maintain insurance and provide Lessor with certificates of insurance in accordance with Exhibit C, attached hereto, during the life of this Sublease or if Exhibit C is not attached, in accordance with Lessor's insurance obligations under the Marina Lease. The Lessor

E:#+fi]efl+*rull$FrF=
shall have the right to make reasonable increases to the minimum required limits of liability in Exhibit C dr.ring the life of this Sublease, but only if and only to the extent that said increases have been imposed upon Lessor by the City of Pensacola under the Marina Lease. Lessor shall, upon Lessee's request, provide Lessee with proof of Lessot's compliance with insurance requirements imposed upon Lessor by the Marina Lease.

XII. SPECIAL PROVISIONS

The l,essee may assign its interest in this Sublease, provided that the Lessee obtains the prior written consent of the Lessor to such assignments, which consent shall not be unreasonably wittrheld. The lrssor may assign its interest in the Marina Lease, provided that the Lessor obtains the prior written consent of the Lessee to such assignments, which consent shall not be unreasonably withheld provided Lessor obtains written consent from the City of Pensacola. The Lessee and the Lessor may assign their respective interests in this Sublease and the Marina Lease, respectively without the prior written consent of the other pafiy, to a limited partnership or other form of business

A.

association, provided that the party making such assignment remains liable for its monetary obligations hereunder and provided that the other party is notified of such assignment in writing prior thereto.
The Lessee and the Lessor shall have the right to mortgage their respective interests in the Upland Properties and inthe Marinakase property, respectively, provided, however, that all rights acquired under the mortgage shall be subject to all of the terms of this Sublease and the Marina Lease. There shall be no subordination of this Sublease nor ofthe Marina Lease. The parties agree, in case of a parly's default hereunder, to allow the defaulting party's mortgagor or its successors or assigns to operate the defaulting partyrs properties subject to the approval of the other party, which approval shall not be unreasonably withheld.

B.

The Lessee shall pay any and all ad valorem real property taxes or other taxes that may be levied against the Upland Properties during the term of this Sublease. In the event that at any time dwing the period of this Sublease, the laws of Florida or the interpretation of the laws of Florida by an appropriate appellate court is altered so that no ad valorem real property taxes .ue required to be paid on the Upland Properties and no ta:r or other levy is imposed in lieu of such ad valorem taxation, then, and in that event, the Lessee shall pay to the Lessor on an annual basis, an amount equivalent to what the ad valorem real property taxes on the Upland Properties would have been had the Lessee been required to pay same. Provided, further, that in the event that the Upland Properties are at anytime during the lease term or any extension or renewal thereof, taxed as intangible personal property or any method other than ad valorem property taxation, then, and in that event, the Lessee shall pay to the Lessor on an annual basis an amount equivalent to what the ad valorem real property ta,res on the Upland Properties would have been had the Lessee been required to pay same, less an amount equal to the amount of intangible personal property ta,xes paid on the Upland Properties. "Ad Valorem Taxes" shall mean city, county, and school taxes. If the aforesaid taxes are not separately determined by the taxing authorities for the Upland Properties and the Submerged Prtperties, then in such event such taxes shall be allocated to the parties in the proportion that the value of each party's proprty (Upland Properties or Submerged Properties) bears to the total value of all property(Upland Properties and Submerged Properties) and if the parties are unable to reach agreementon said allocation, the dispute shall be resolved by binding arbitration in accordance with the Florida Arbitration Code, as amended, Florida Statutes Chapter 682 (1999).

C.

L PGOSAI OR BK 455 Esearbia County. Florida

INSTRUilENT OO:7AgtO9

The Lessee shall be firlly responsible for the construction, maintenance, and improvement of all improvements on the Upland Properties at the Lessee's sole cost and expense.
To the extent that Lessor is required to post or cause to be posted a constnrction bond by the Marina Lease for any construction in, oq or about the Upland Properties, the Lessee shall post or cause such bond to be posted.

D.' E. F. G.

fintentionally left Blank.]

Lessee agrees that it

will not discriminate upon the basis of race, creed, color, national in origin, age, sex, or religion the construction, subleasing, use, occupancy, or operation of the Upland Properties or in the improvements erected thereon.
Equal Opportunity Provision: In the constmction and operation of the improvements, neither the kssee nor any contactor or manager employed by Lessee shall discriminate against any employee or applicant for employment because of race, color, religion, age, sex, or national origia and they shall take affinnative action to ensure that applicants are employed, and that employees are teated during employment without regard to race, color, religion, age, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or hansfer; recruitnent, or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by Lessee setting forth the provisions of this Equal Opportunity Clause, and to cause any conEactor, subcontractor, or manager to do likewise.
The [,essee, its sublessees, and any contractor or manager shall in all solicitations or advertisements for employees placed by them or on their behali state that all qualified applicants will receive consideration for employment without regard to race, color, religion, age, sex, or national origin. They shall send to each labor union or representative of workers with which they, or any of them, have a collective bargaining agreement or other contract or understanding, a notice to be provided by Lessee advising the labor union or workers' representative of their commitnents

l.

2.

under this Equal Opportunity Clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. Any sublessee, conhactor, or subcontractor shall comply witlt all provisions of Executive Order No. 11246 of September 24,1965, and of the rules, regulations, and relevant orders ofthe Secretary of Labor and shall fumish all information and reports required by Executive OrderNo. 11246 of September24,l965,and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by Lessee and the Secretary oflabor for purposes of investigation to ascertain compliance with such rules, regulations, and orders'

E:#+f'n]efl1{ul?flFf'

Lessee certifies that

it

does not and

will not maintain or provide for its employees

any

segregated facilities at any of its establishments and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained.

As used in this certification, the term "segegated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis ofrace, color, religion, or national origin, because of habit,local custom, or otherwise.

If requested by kssor, the Lessee agrces to provide the Lessor wittr annual attendance reports. Said attendance reports shall be submitted to Lessor as requested by Lessor, during the rnonth ofJuly ofeach year and shall provide occupancy data for a one (1) year period beginning on July I and ending on June 30 ofthe previous year, such period constituting one (l) fiscal year.

H.

The Lessor shall have the right to close down the public marina located on the Submerged Properties for reasonable periods of time for necessary maintenance and dredging. Lessee shall cooperate with kssor and the City of Pensacola in all maintenance dredging operations by the City of Pensacola and/or Lessor.

I.

J.

[Intentionally left Blank.]

K. The kssee, its transferees, grantees, successors, and assigns, shall irrevocably release the City of Pensacola, and the Lessor, and their agents or assigns, from any and all claims for damages of whatever nature resulting from any dredging by the lBssor or the City of Pensacola" includingthe incidental depositing ofdredged materials resulting from dredging, bulkheading, and/or rip wrapping, and other incidental damage resulting from any dredgrng operations and the like which might occur. The parties, and their successors and assigns, agree to cooperate with each other in connection with the securing of periodic dredgrng of the marina located in the Submerged Properties and in this connection, agree to execul,e such applications, releases, and other documents necessary or incidental to the approval of the U,S. Army Corps of Engineers or other public agency, to undertake and execute such dredging. The parties, their successors and assigns, further release each other from any and all claims for damage occasioned or arising from any disturbance of the Bay bottom, which results as a natural consequence, from normal periodic maintenance, bulkheading, rip wrapping, or dredging by either party, or by the City of Pensacola" either in the maintenance and repair of the marina and Submerged Properties, or the use, maintenance, and ernployment of the rights of the marina waterways.
maintenance dredging within the leased boundaries of the marina located in the Submerged Properties as L,essor in its discretion deems necessary for the operation of the public marina. The Lessor shall dredge solely to depths permitted by the DER and ACE Permits. Lessee shall cooperate with Lessor and the City of Pensacola to

It shall be the Lessor's responsibility to provide

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enable the City of Pensacola to meet its responsibility to provide maintenance dredging of the Bay approach to the leased boundaries of the marina and Submerged Properties in accordance with maintenance schedules of the Port of Pensacol4 or as otherwise deemed necessary by Irssor in its discretionto maintain navigable access to the marina facility. Following any of Irssor's dredging

activities, Lessor shall at its expense restore any Upland Properties damaged by said dredging operations to substantially the same condition as existed immediately prior to the commencement of said activities.

L.

The Lessee shall be responsible for the installation and maintenance of all

undergroturd Wilities, including elecfiical, gas, sewer, and water systems, at its sole cost and expense, for all,properties described in ttre Marina l.ease except those that are the responsibility of the Lessor

as imposed by the next sentence. However, the Lessor shall, in turn, be responsible for the installation and maintenance of all undergound utilities, including electrical, gas' sewer, and water systems, at its sole cost and expense, within the boundaries of the Submerged Properties. The kssor shall fumish the Lessee with adequate gas and garbage collection services at the Lessee's expense and shall cause the City of Pensacola to meet its obligation to fumish said services under the Marina
Lease.

M. N. O. P. a. R.

[Intentionally left Blank.] [Intentionally left Blank.] [Intentionally left Blank.]

[IntentionallY left Blank.]

[Intentionally left Blank.]

The parties agree to assist one another and the Lessor agees to cause the City of Pensacola to assist the Lessor and the Lessee in any application for any planned or future modification of existing Department of Army or DER Permits.

S. T.

[intentionallY left blank.]

To the extent the Lessor has any right of first refusal on any additional portions of properties adjacent to or in the immediate vicinity of the properties described in the Marina Lease *ni"ft may be used for expansion Lessor agrees to cooperate in good faith with Lrssee and Lessee agrees to cooprate in good faith with Lessor in the determination of whether said right of first rJfusat will be exercised and if so, whether said additional properties shall be obtained forthe benefit oflessor, for the benefit oflessee, or for the benefit ofboth.

10

Esi"ftt#frF'+b8TFf6r"?
XIII.
ENFORCEMENT OF LEA,SEi FOR4.EITURN, DEFAULT:

*ssor may in any manner provided by raw, and this Sublease shall be forfeited on a declaration offorfeiture by Lessor:

A.

.n"ur

L 2.
this Sublease;

[f Lessee shall desert or vacate the Submerged Properties;

tf default shall be made by Lessee in the payment of the rent as specified in

3.
4.

If default shall

be made by Lessee in the performance

of any of the t,erms or

conditions of this Sublease that Lessee is to perform;

If Lessee shall fail to comply with any of the statutes, ordinances, rules, or regulations of any govemmental body goveming or regulating the Lessee's business; If Lessee shall file a petition in bankruptcy, or make an assignment for the benefit of creditors, or be adjudicated a bankrupt, or take advantage of any insolvency act.
Prior to declaring a forfeiture, Lessor shall first notiff Lessee and any mortgagee of Lessee who has notified Lessor in vniting of its mortgage interest of any such default and of Lessofs intention to declare this Sublease forfeited. Notice from Lessor shall be sent as specified in this Sublease or may be delivered to Lessee personally, and unless Lessee or Mortgagee shall have removed or cured the default or commenced action that will result in the default being removed or cured within ninety (90) days from the date of Lessor's notice of intention to declare this Sublease forfeited, (unless extended by written agreement of Lessor and Lessee), this Sublease shall come to an end, as of the date established by notice of forfeiture, or the day originally fixed herein for the expiration of the term of this Sublease without any further notice from Lessor to Lessee provided however, that if Lessor is served with a notice by the City of Pensacola that the Marina Lease is in default and said default is directly related to a failure of Lessee herein to perform its obligations hereunder, then in such event the aforesaid ninety (90) day period shall be sixty (60) days. Lessor's agent or attomey shall have the right, without firttrer notice or demand, to enter and remove Lessee and l,essee's property from the Upland Properties without being deemed guilty of any trespass. In consideration of the substantial investment to be made or previously made by Lessee in improvements on the Upland Properties, Lessor agrees that Lessee shall not be liable for any rent for the unexpired portion of the terms of this Sublease if Lessor declares this Sublease forfeited pursuant to the terms hereof, except for any rent and other payments which are cunently due and payable. However, Lessee shall be liable to Lessor for any other damages suffered by Lessor on account of Lessee's default, including the expenses of clearing any improvements which are damaged or destroyed and which Lessor elects to clear on account of Lessee's refusal or failure to repair or rebuild said improvements as required herein above.

5.

il

ssrR[+#Fft=f

*erl]flef#3

Notwithstanding the foregoing provisions of this paragraph, if Lessee should defautt under the terms of this Sublease, and Lessor should declare this Sublease forfeited, Lessor shall not disttnb any sublessee's possession of any subleased premises of the Upland Properties if such sublessee pays rentto Lessor in accordance with and otherwise complies with the terms of the sublease agreement between Lessee and said sublesee. Upon Lessot's entering into a lease agreement with a substitute lessee for the Upland Properties, said sublease shall be assigned to the substitute lessee and the sublessee shall become a sublessee ofthe substitute lessee and shall pay rsnt directly to the substitute
lessee.

The failure of either party to insist in any one or more instances on a strict performance of any of the terms and conditions of this Sublease, or to exercise any option set forth in this Sublease, shall not be construed as a future waiver or a relinquishment of the provision or option but it shall continue and remain in full force and effect. The receipt by either party of rent or any other benefit hereunder from the other party, with knowledge of the breach of any term or condition hereoi shall not be deemed a waiver of the breach and no waiver by either party of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the waiving party. Lessor shall be in default hereunder if l,essor shall fail to perform any of the terms or conditions of this Sublease which kssor is to perform provided that Lessor has failed to cure or otherwise remedy such failure within ninety (90) days from the date of Lessee's notice to Lessor of such failure, or if Lessor shall be in material default under the Marina Lease. Upon any such default, including but not limited to Lessor's material default under the Marina Lease, Lessee shall have the right but not the obligation to cure such default on Lessols behalfand for the account oflessor and any costs or expenses incurred by Lessee in curing such default, including but not limited to reasonable attomeys'fees, shall be due and payable from kssor to kssee, plus interest thereon from the date or dates expended until paid in full at the rate specified in Section III.B.(3) herein. If Lessor's default under the Marina Lease results in the City of Pensacola declaring a forfeiture of the Marina Lease, Lessee shall have the right but not the obligation to negotiate with and enter into an agreement directly with the City of Pensacola under which the properly described in the Marina Lease and the Submerged Properties are leased directly to Lessee upon such terms as the kssee and the City of Pensacola may agree but such action by Lessee shall not constitute a waiver by Lessee of any of its rights or remedies against Lessor hereunder.

B.

XIV. ATTORNEYS'FEES
be made by either party in the performance of the terms, covenants, agreements, and conditions set forth in this Sublease so that it becomes necessary to place the enforcement of this

If default

Sublease or any part hereof or the collection of any rent due or to become due hereunder or the recovery or possession of the Upland Properties in the hands of an attorney or to file suit upon this Sublease, the prevailing party shall be entitled to recover all of the costs inculred in such action, including reasonable attomeys' fees.

t2

oR BK 455
E;

t trGll3=l

tii+ aa'E[t" 8tt'5ai

6i"

XY. NOTICES
notices provided in this Sublease shall be suffrcient when sent by U.S. Certified Mail, Return Receipt Requested, postage pre-pard to the following addresses:

All

City of Pensacola:

City of Pensacola c/o City Manager City Hall Pensacola, Florida 325A1

Lessee:

Menill Land,LLC
P. O. Box 710 Pensacola, Florida 32593

with a copy to:

Charles L. Hoffinan, Jr.

Shell, Fleming, Davis

& Menge

226PalafoxPlare Pensacola, Florida 32501

Lessor:

Seville Harbour,lnc. c/o Ray Russenberger Network Telephone Corporation 815 S. Palafox Place, 3rd Floor Pensacol4 Florida 325A1

with

a copy to:

Daniel R. Lozier Lozier, Thames & F mziel P.A. 125 W. Romana Street, Suite 224 Pensacola, Florida 32501

xyL PR0vrsIoNs BINDTNG

The terms and provisions of this Sublease shall be binding upon and shall enure to the benefit

of the panies hereto and their permitted successors and assigns, respectively.

XVII. AMENDMF'NT
This Sublease may not be altered, changed, or amended except by an instument in writing signed by the parties hereto.

l3

Escarbia County. Florida

INSTRUIIIENT OO:7EB1O9

oR BK 455

L P6r=34

xuII.

SEVSRARTLITY

If any provision of this Sublease shall be declared in contavention of law or void as against public policy, such provision shall be considered severable and the remaining provisions of this Sublease shall continue in full force and effect.

XIX. HEADINGS
The paragraph headings in this Sublease are intended for convenience only and shall not be taken into consideration in any construction or inteqpretation of this Sublease or any of its provisions.

XX. ENTIRE AGRqFMENT

This Sublease constitutes the entire agreement between the parties hereto on the subject of this Sublease and all prior or contemporaneous oral or written agreements or representations of any nature with reference to the subject matter of this Sublease are canceled and superseded by the provisions of this Sublease.

XXI. WAIVER
Failure on the part of any party to complain of any action or non-action on the part of the other party, no matter how long it may continue, shall never be deemed to be a waiver by either party of any of its rights under this Sublease. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof shall be construed as a waiver at any subsequent time of the same provisions. The consent or approval by either party to or of any action requiring consent or approval from the other party shall not be deemed to be a waiver or render unnecessary consent or approval to or of any subsequent similar act by said party.

XXII. TIME OF'THE ESSENCE

Time is of the essence in each and every provision, covenant, and condition of this Sublease on the part of the parties hereto to be done and performed.

)OilII.

GOVERNING LAW

This Sublease is subject to and shall be governed by the laws of the State of Florida.

xxrv. ArlprrroNAl sPECrALPRovIsIoNs

lrssor covenants and agrees to perform each of its obligations under and to otherwise comply with the terms, conditions, restrictions, and provisions of the Marina Lease in a timely
fashion and further covenants and agrees to promptly provide to Lessee copies of any and all notices,

A.

claims, communications, or other conespondence of any kind directly or indirectly related to the Upland Properties and received by Lessor from the City of Pensacola or any other governmental agency or body or any other third party. Lessor covenants and agrees to exert good faith best efforts

t4

oR BK 455

E;ina?in'8fiY"88.'58 i6i

L PGO333 o'

to cause the City of Pensacolato perform each of its obligations under and to othenryise comply with the terms, conditions, restrictions, and limitations imposed upon the City of Pensacola in the Marina Lease.

lessor covenants and agrees to indemni$ and hold Lessee harmless from and against any and all claims, liabilities, calrses of action, damages, expenses, costs, including attorneys' fees, including those incurred in enforcing this indemnification obligation, which Lessee may suffer or incur as a direct result of Lessoy's material default under the Marina Lease. It is the parties' intention that except as othenrise specified herein all rights, interests, liabilities, and obligations set forth in the Marina Lease and pertaining to the Submerged Properties be and hereby are retained by Lessor for the purpose of permitting Lessor to continue owning and operating the marina facilities located on the Submerged Properties in substantially the same manner as has been previously conducted under the Marina Lease.
In connection wittr the operation of ttre marina on the Submerged Properties, Lessee hereby subleases to the l.essor laundry, shower, and resfroom facilities existing on the improvements constucted on the Upland Properties and covenants and agrees to reasonably maintain said facilities.

B.

C.

D. E.

Lessee shall not do nor cause to be done nor permit to be done anything on or in

connection with the real property described in the Marina Lease (other than the Submerged Properties), which substantially and materially interferes with Lessols ability to occupy and operate the marina located in and on the Submerged Properties.

F.
Marina Lease.

This Sublease is at all times subiect to the terrns, conditions, and restrictions of the

IN WITNESS WIIEREOF, the parties hereto have executed this agreement effective the first date written above,
LESSOR:

STATE OF FLORIDA COUNTY OF ESCAMBIA The foregoing instmment was acknowledged bcfore

Russenbelger, as Presided of Seville Harbour, Inc., and who is personally license as identification and haslhas not taken an oath.

^"

An

tduy of A4t.i

,2000, by Ray D. me or who has produced a driver's

NOTARY
Commission No. My Commission Expires:

)/at/ - r

l5

Elr"ni+iaEFiul?flf,#f
LESSEE:

MERRILL LAND, LLC

Witness
a Florida

limited liability company

PrintName By its sole member: MERRILL LAND COMPANY

Witness Print Name

y'lar/u L 4s { Atl

llftPt 't'

By:

Witness

PrintName:

Witness Print Name:

Witness

PrintName:

Witness

PrintName:

Witness Print Name:

WILL6

C. MERRILL, IIL

Witrness

Print Name:

STATE OF FLORIDA COTINTY OF ESCAMBIA o1 - A ?l' The foregoing instument was acknowledged before m ,2000, LLC, Menill Land, of Company the sole member by Burney H. Menill, as President of Menill Land ivels license as identification and who (r,fis personally known to me or who ) has and has/has not taken an oath.

"u, tauy

NOTARY PUBLIC
CommissionNo. My Commission Expires:

t6

P:#+ft'=eF*e El?FeAiEio"
STATE O['F'LORIDA couNTY oF

PEo33.5

ESCAMBTA
(-fs

4 day The foregoing instnment was acknowledged before me this ,2000, penonally known to me or who ) has^produced a drivet's license by Burney H. Menill, who as identification and has/has not taken an

t'* r:irffil
STATE'OF'ruORIDA COUNTY O['ESCAMBIA

oath.

.4

of

P,u.'l

2L
NOTARY PUBLIC
CbmmissionNo. My Commission Expires'

,/1

ny'a/. r

The foregoing inslrdnent was acknowledged before , 2000, f,auy ^"An" produced personally license as is known to me or who ) has a drivels by J.C. Menill, who identification and has/has not taken an oath.

(1

of kru(

rtr i;;;fr 1X;556: -;=*:lf i.=:;i :lti 'il : t"i:1" 11 ;,7 i .,,:' , ,
. i.. " , STATE ",',, OF T'I,ORIDA.: -.; COI]NTY OF ESCAMBIA | :
'-t ,',i', ': ..ir" :1":'r'"; :"i';1:' . ,:,.i;,.-,i.:.; i n t.. ;r"' : it'- - '.. :' ' ': 'i " ' i

NOTARY PUBLIC
CommissionNo. My Commission Expires: zJ

:.;:"+-''

l f

*/'
I

. 2696, The foregoing instrument wagacknowledged before me tfris|laay df,a, -l ttas ptoaucea u arive/s by Willis C. ft{enif[ IlI, who ftpersonally known to me or *tt" license as identification and has/has not taken an oath.

sf

NOTARY PU
u;-',t'11"e. i ;';-; .;,,tV '"r-jl-r ' ,it
. ...j..:.1...:_i

firi*lj

CommissionNo. My Commission Expires:

4zfla

t7

Escarbia County. Florida

INSTRUFIENT OO_7ESTOg

oR BK

455 t pBO3:36

EXHIBIT
PARCEL I:

*A'

8, WATERFRONT GRANT, ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C. WATSON, COPYRIGHTED IN 1906, SAID POTNT ALSO BEING THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET (60' R/W) AND THE NORTHERLY RIGHT-OF-WAY LINE OF MAGNOLIA STREET (60'R/W) ; THENCE GO NORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST ALONG THE AFORESAID NORTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 175.00 FEET; THENCE GO NORTH l0 DEGREES 34 MINUTES 1l SECONDS WEST A DISTANCE OF 280.00 FEET; THENCE GO NORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST A DISTANCE OF I35.OO FEET;
THENCE GO NORTH IO DEGREES 34 MINUTES 11 SECONDS WEST A DISTA}.ICE OF 3O.OO FEET; THENCE GO NORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST A DISTANCE OF 827.08 FEET; THENCE GO SOUTH 10 DECREES 34 MINUTES 1 I SECONDS EAST A DISTANCE OF 310.00 FEET; TIIENCE GO SOUTH 59 DEGREES 34 MINUTES 30 SECONDS WEST A DISTANCE OF 191.38 FEET; THENCE GO SOUTH 79 DEGREES 25 MINUTES 49 SECONDS WEST A DISTANCE OF 347.08 FEET; THENCE GO SOUTH l0 DEGREES 34

BEGIN AT THE SOUTHWEST CORNER OF BLOCK

MINUTES

l1

SECONDS EAST

A DISTANCE OF 95.00 FEET; THENCE GO SOUTH

79

NORTH 10 DEGREES 34 MINUTES II SECONDS WEST A DTSTANCE OF TOO.OO FEET; THENCE GO SOUTH 79 DEGREES 25 MINUTES 49 SECONDS WEST A DISTANCE OF 487,A0 FEET TO THE NORTHWEST CORNER OF BLOCK 17, WATERFRONT GRANT, ACCORDTNG TO THE AFORESAID MAP OF THE CITY OF PENSACOLA, SAID POINT ALSO BETNG THE INTERSECTION OF THE SOUTHERLY RIGHT.OF-WAY LINE OF MAGNOLIA STREET (60'WW) AND THE AFORESAID EASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET; THENCE GO NORTH IO DEGREES 34 MINUTES 1I SECONDS WEST ALONG THE AFORESAID EASTERLY RIGHT-OF-WAY LINE A DISTA}ICE OF 60.00 FEET TO THE POINT OF BEGINNING, THE ABOVE DESCRIBED PARCEL OF LAND IS
SITUATED IN SECTION 46, TOWNSHIP 2 SOUTH, RANGE 30 WEST, ESCAMBIA COUNTY,

DEGREES 2s MINUTES 49 SECONDS WEST A DISTANCE OF 123.00 FEET; THENCE GO

FLORIDA AND CONTAINS 8.529 ACRES, LESS AND EXCEPT THAT PORTION OF A DEPARTMENT OF TRANSPORTATION DRAINAGE EASEMENT IN A PORTION OF CEDAR AND ALCANIZ STREET: AND

18

oR BK +55 1 PCqS=-7 EountY, Elqf-ida Elearbia - - rr^rsTn[HENT O0:7eBlO9

PARCEL I-A:

ALL OF LOTS 1.I0,21 AND 22, AND THE WEST 20 FEET OF LOTS II.2O, BLOCK

8,

WATERFRONT GRAl.lT, ACCORDING TO MAP OF CITY OF PENSACOLA BY THOI\4AS C. WATSON, COPYRIGHTED IN 1906, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGIN AT THE NORTHWEST CORNER OF BLOCK 8, WATERFRONT GRANT ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C, WATSON COPYRIGHTED IN 1906, SAID POINT ALSO BEING THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET (60'R/W) AND TIIE SOUTH
RIGHT-OF-WAY LINE OF CEDAR STREET (60'R/W); THENCE cO NORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST ALONG THE NORTH LTNE OF THE AFOFJSAID BLOCK A DISTANCE OF 175.00 FEET; TI{ENCE GO SOUTH l0 DEGREES 34 MINUTES 1l SECONDS EAST A DISTA}ICE OF 25O.OO FEET TO A POINT ON THE SOUTH LINE OF THE AFORESAID BLOCK 8; THENCE Go SOUTH 79 DEGREES 25 MINUTES 49 SECONDS WEST ALONG TIIE AFORESAID SOUTH LINE A DISTANCE OF 175.00 FEET TO A POINT ON THE AFORESAID EASTERLY RIGHT-OF-WAY LINE OF BARRACKS STREET; THENCE GO NORTH IO DEGREES 34 MTNUTES 11 SECONDS WEST ALONG THE AFORESAID EASTERLY RIGHT.OF-WAY LINE A DISTANCE OF 25O.OO FEET TO THE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL IS SITUATED IN SECTTON 46, TOWNSHIP 2 SOUTH, RANGE 30 WEST, ESCAMBI.A COUNTY, FLORIDA A}ID CONTAINS 1.004 ACRES; AND

PARCEL

III:

ALL OF LOTS 14, II-|4AND A PORTION OF LOT 21, BLOCK 17, ALLOF LOTS I.4 AND A PORTION OF LOTS 11-14, BLOCK 18, AND A PORTION OF ADAMS STREET, WATERFRONT GRANT, ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C. WATSON, COPYRTGHTED IN 1906, MORE PARTICULARLY DESCzuBED AS FOLLOWS:

BEGIN AT THE NORTHWEST CORNER OF BLOCK 17, WATERFRONT GRANT, ACCORDING TO MAP OF CITY OF PENSACOLA BY THOMAS C. WATSON, COPYRIGHTED IN 1906, SAID POINT ALSO BEING THE INTERSECTION OF THE EASTERLY RIGHT OF WAY LrNE OF BARRACKS STREET (60' R/W) AND THE SOUTHERLY RIGHT-OF-WAY LINE OF MAGNOLIA STREET (60' R/W); THENCE GO NORTH 79 DEGREES 25 MINUTES 49 SECONDS EAST ALONG THE AFORESAID sourHERLY RIGHT-OF-WAY LrNE OF MAGNOLTA STREET (60',R/W) A DTSTANCE OF 487.00 FEET; THENCE GO SOUTH 10 DEGREES 34 MINUTES 1l SECONDS EAST A
DISTA].TCE OF IOO.OO FEET; THENCE GO SOUTH 79 DEGREES 25 MINUTES 49 SECONDS WEST A DISTANCE OF 487.00 FEET TO A POINT ON THE AFORESA]D EASTERLY zuOHT. OF-WAY OF BARRACKS STREET (60' R/W); THENCE GO NORTH l0 DEGREES 34

MINUTES 11 SECONDS WEST ALONG THE AFORESAID EASTERLY zuGHT-OF-WAY LINE OF BARRACKS STREET (60'R/W) A DTSTANCE OF 100.00 FEET TO THE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL OF LAND IS SITUATED IN SECTION 46,
TOWNSHIP 2 SOUTH, RANGE 30 WEST, ESCAMBTA COTJNTY, FLOzuDA A].ID CONTAINS
1.118 ACRES.

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Escarbia Eountv' Florida

INSTRUFIENT OO:7881O9 RCD

rlR BK

45= L trEo.s:=s

Apr 26, aOOO 12:51 trr Escaibia Eounty, Floriila

RUI|ENT OO-7e8109 O$CflPNOil AS PfrNARED EY: NA?THT''6T FLffiN'A EN6'NEMN6 AilO SURUNNG NG canuENCE Ar fHE N&THWEST CffiNEn tr SLAA( 8, WATERF1ONT ffiAHT, ACC&OftNG rO.UAp tr fTtE Afy F pgryslcd.A 8y THWAS A WAT^QN,COPYEIGHIM N EO6, &4N POIN| SENC fHE NTERSECNOil OF NE EAS1ERLY RlqtT-OF VAy LnVE F EARRAXS sntrr (AO',nlq AN| HE SOUnUERLI Rqdtr tr wAy LNE ff CAA? SnEET (60'Ry't)i THAnCE @ N&nt n oemees zi UNUTES 1,'SECAV'S EAST ALN6 rUE NMrA UTIE OF S/IID ELM( 8 A AETANCE OF I6ZOO FEET TO nHE PdNr 6 AEANMNq SilD PuTIT LYTNC fi FEET LANO'{ARD oF lH ,EAN HI6u vArER LNE oF Pe'tsAc0LA EAy; rH&,t68 coNnNUE NffifH zg _ D,Effiff,S 25 IINU\S ,g SCOTIDS EASr ALONE HE NEN UNE AF BLOCI( 8 A asrAMc oF du) FEET; II1ENCE DEPARIIN? sAtD NRfiH thri tr gLoa( a,@ ryqrH ,o oEffiEES J4 HNATES tt SECOTOS twsr A asrAilc F JAOO iEr; WENE @ NOqH 79 0E6RES 25 ttNUfES 19 g:64n0s EAsr A nRrANci oi E-Sno F$T; flltrvcE ffi NORIH ,o ocRE$ Jl ttNUTEs il SEcWOs ,yEsT A OISTANCE ff JtOO FEET; \HENCE GO NOR\H 79 DEeEEs z,-uNUIEs 19 sicq,Ios EASI A DtSrAilC F 827.08 FEET; fHEilE eO swTH to ncREEs gl itui-Ei ii sEcaNDs EAsf A asrANcE oF Jra0o fEEf; rH&'tcE 60 sdJrH sg DEeEEs-i4 : uNufEs JO gcavos ,tET A DLSTANCE ff ,st.J8 TEEr;-ruiUCe CO aOUH ie 0E6REE 25 UNUTES & fiCON^S WES| A UsrAilCE br sz.u FEEr;--rudct eo tlqrH n DE&EE' J1 tn'ttfiEs fi SECA{OS t+ESr } Asftfib? oF tloo its io t pdNr Lywc 80rH sww 66 oEffiEES 22 UNUTE| .to icovbs'asi-i'otsiaik' rgJ5.58 FEEf.FROil fHE pqNf oF AcNttNe ANo to-FtEi-ieNoi,,qno-iF UAN HTG'I WATER L]NE Of PENSACOTA AAY; MAVCT ITANOffi TIESffiIY-AN,"NORIHERLY ALAilC A LTNE nEW.E rc FEET LANDdAN, AiO'fuNNUA Or SNN-U1NU IIT6I] IYATER LNE rO \HE PAINT OF EEilI,TNNC. I?q A?OW OffiCRIEED PARCL OF LAND TS ilTUATED IN SECNAV 46, TOWNSTITP

cl

Ernie Lee tfaqaha of the Circ-uit Eourt

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couNry

LESS-

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A SUR|I|ErTNG, NNC.
FT.ORIDA,

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SURWYDR & TIAPPER CORPORATU NUIdBER 4882 FT,ORIDA

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