Triple Net Lease Agreement

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Triple Net Lease Agreement Powered By Docstoc
					Property Appraiser’s Parcel
Identification #28-38-08-00-00253.0-0000.00
             COMMERCIAL BULDING TRIPLE NET SUB-LEASE AGREEMENT

     THIS COMMERCIAL BUILDING TRIPLE NET SUB-LEASE dated as of     the
___ day of ____________, 2009, between the Town of Melbourne
Beach, Florida, a Florida Municipal Corporation, whose address     is
507 Ocean Avenue, Melbourne Beach, Florida 32951 (the "TOWN"),     and
J & B Sandwiches Inc., a Florida corporation, whose address is     405
Avenue A, Melbourne Beach, Florida 32951 (the “SUB-LESSEE”).

       1.      Sub-Lease.

          (a) This Sub-Lease is in pursuit of a joint Project by
the TOWN and the SUB-LESSEE, the goal of which is to upgrade Ocean
Park in Melbourne Beach. The Project consists of the construction
of a concession facility for the sale of food and drink (excluding
alcoholic beverages, such as beer, wine, and liquor) and the sale
of sundry items, such as suntan lotion, sunglasses, and the rental
of beach chairs, of approximately 400 square feet of floor area,
an outdoor, unenclosed eating area of approximately 200 square
feet of floor area, public restrooms of approximately 150 square
feet of floor area, outdoor shower facilities, (collectively: the
“Improvements”) and an Americans with Disability Act-compliant
wheel chair ramp (the “ADA Ramp”) on the Real Property to the
beach (collectively the “Project”). The ramp shall have a slope
of 1:12 with handrails, shall be at least 117 feet in length and
at least 5.5 feet in width. The ramp shall run from the Real
Property to the beach with two decks. The first deck shall be
immediately landward of the dune line which deck shall be 16 feet
x 10 feet. The second deck shall be approximately 5 feet seaward
of the dune line which deck shall be 75 feet long running roughly
South to North from the ramp x 11 feet in width. All of the
foregoing shall be as shown on the one page drawing prepared by
Michael A. Kalajian, P.E. of Indialantic, FL, entitled Deck Plan &
Typical Section, Proposed Handicap Ramp for Melbourne Beach
Crossover, dated 5/23/07 (herein: the “ADA Ramp Plan”), a copy of
the ADA Ramp Plan being on file with the Town Clerk. In no event
shall the sale of sundry items take up the majority of the floor
area of the concession facility for the sale of food and drink.
The calculation of floor area shall exclude the floor area of the
public restroom portion of the building and outdoor areas. It is
the clear intent of this provision that the primary and
overwhelmingly predominant use of the concession facility for the
sale of food and drink is to be the sale of food and drink.
Violation of the foregoing two sentences shall be a material
breach of this Agreement. Notwithstanding that the SUB-LESSEE and
the TOWN are undertaking this Project, neither the SUB-LESSEE or
the TOWN are partners or agents of one another, and the SUB-LESSEE

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is not authorized to act as the agent of the TOWN.   The SUB-LESSEE
is an independent contractor.

          (b) The TOWN, as the lessee hereby sub-leases to the
SUB-LESSEE, as SUB-LESSEE, and SUB-LESSEE, as SUB-LESSEE, hereby
sub-leases from the TOWN, as the lessee, a portion of the
following described property, lying and situated in the State of
Florida, County of Brevard, to-wit: That part of Government Lot
1, Section 8, Township 28 South, Range 38 East, and vacated
Atlantic Street as described in Official Records Book 1099, Page
254, Public Records of Brevard County, Florida, lying North of
Ocean Avenue (the “Real Property”). The portion of the above
described Real Property subject to this Agreement which is sub-
leased to the SUB-LESSEE shall include the North 50 feet of the
West 50 feet of the Real Property, all of which Sub-Leased
portion of the Real Property shall be defined herein as the
“Leased Premises.”    Upon completion of construction of the
concession stand and restroom building (the Improvements), as
described below, the Leased Premises shall be surveyed at the
cost of the SUB-LESSEE. The SUB-LESSEE and the TOWN shall then
review, adjust as the TOWN deems appropriate, and approve the
surveyed legal description. Thereupon, this Sub-Lease Agreement
legal description for the Leased Premises shall be revised and
amended with surveyed legal description describing the Leased
Premises, which surveyed legal description shall be attached
hereto as Exhibit “B.” The SUB-LESSEE shall select and retain
the surveyor who shall be a State of Florida licensed surveyor
and mapper. Upon completion of the survey in form acceptable to
the TOWN and acceptable proof of payment to the surveyor by the
SUB-LESSEE, the TOWN shall make a donation of money to the SUB-
LESSEE in an amount of money equal to 50% of the SUB-LESSEE’s
cost for obtaining the survey; provided, that in no event shall
this amount exceed $750.

          (c) The SUB-LESSEE hereby acknowledges that the Real
Property is owned in fee simple by the State of Florida, Trustees
of the Internal Improvement Fund, pursuant to a warranty deed from
R.P. Sullivan, Jr., and Joyce Sullivan, his wife; H.A. Sullivan
and Mildred S. Sullivan, his wife; and J.D. Sullivan and Margaret
L. Sullivan, his wife, recorded in Official Records Book 1099,
Page 254, Public Records of Brevard County, Florida, and a quit-
claim deed recorded in Official Records Book 1099, Page 256,
Public Records of Brevard County, Florida. This Sub-Lease
Agreement is subject to the Lease of the Real Property from the
State of Florida, Trustees of the Internal Improvement Fund, as
fee simple owner and landlord (“LANDLORD”), to the TOWN of
Melbourne Beach, which Lease Agreement No. 2455 is for Management
Project No. 32 and is dated September 28, 1970, and which lease is
unrecorded in the Public Records of Brevard County, Florida.
Further, this Sub-Lease is subject to approval by the State of

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Florida, Trustees of the Internal Improvement Fund, which written
approval must be obtained, if at all, by not later than ninety
(90) days from the Effective Date. However, if the TOWN
determines that approval of the SUB-LESSEE as the TOWN’s sub-
tenant and this Sub-Lease Agreement will likely be granted by the
LANDLORD, the TOWN shall have the right upon written notice to the
SUB-LESSEE to extend for an additional ninety (90) days this
contingency of seeking LANDLORD approval of the SUB-LESSEE’s
tenancy; provided, that the TOWN shall have not longer than 180
days from the Effective Date of this Sub-Lease Agreement to obtain
LANDLORD approval of this Sub-Lease. If said approval of this
Sub-Lease is not obtained from the State of Florida, Trustees of
the Internal Improvement Fund by said date, this Sub-Lease shall
be terminated, and both parties hereto shall go forward without
further liability to one another; provided, however that, any
liabilities relating to the Leased Premises (other than this Sub-
Lease) contracted for, caused by, or the fault of SUB-LESSEE,
shall survive the termination of this Sub-Lease and shall be the
sole responsibility of SUB-LESSEE. In the event of termination of
this Sub-Lease Agreement based on a failure of the State of
Florida, Trustees of the Internal Improvement Fund to approve this
Sub-Lease Agreement, the TOWN shall return to the SUB-LESSEE the
Construction Letter of Credit described in Section 8. of this
Agreement, this Agreement shall stand as terminated, and the
parties shall go forward without further liability to one another,
except as otherwise provided herein.

          (d) It is further agreed that the SUB-LESSEE shall not
be permitted nor have the right to exercise any rights on the Real
Property under this Sub-Lease with regard to the Leased Premises
until approval is received from the State of Florida, Trustees of
the Internal Improvement Fund. The SUB-LESSEE shall make no
contract affecting or attaching to the Leased Premises, nor permit
any condition to exist, nor cause or permit to be caused any
injury to person (including but not limited to death) or property
to or on the Leased Premises, until approval of this Sub-Lease is
obtained from the LANDLORD.

          (e) It is agreed that within sixty (60) days after the
Effective Date of this Sub-Lease, the TOWN shall apply to the
State of Florida, Trustees of the Internal Improvement Fund
pursuant to Rule 18-2.018, Florida Administrative Code. The SUB-
LESSEE shall be responsible for timely paying from its own funds
all costs relating to consummation of the approval of this Sub-
Lease to the LANDLORD or otherwise, including but not limited to
any “equitable compensation” as required pursuant to Rule 18-
2.018(2)(i), Florida Administrative Code. In the event that the
SUB-LESSEE does not timely pay on the schedule required by the
LANDLORD or before the commencement of construction of the
Improvements, whichever date shall first occur, said “equitable

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compensation” as required pursuant to Rule 18-2.018(2)(i), Florida
Administrative Code or other costs relating to the consummation of
the approval of this Sub-Lease by the LANDLORD, the TOWN may draw
all funds from the Construction Letter of Credit as liquidated
damages, terminate this Agreement, and the parties shall go
forward without further liability to one another, except as may
otherwise be provided herein with regard to indemnification or
environmental conditions.

          (f) Use of the term “Effective Date” in this Sub-Lease
Agreement shall refer to the date on which the last party (either
the TOWN or the SUB-LESSEE) has executed this Sub-Lease Agreement.
The Effective Date shall not be the date on which the SUB-LESSEE
may take possession of the Leased Premises or the date on which
rent begins to be required to be paid, which shall be as otherwise
provided herein.

          (g) The Standard Lease Provisions set forth on Exhibit
“A” attached hereto are incorporated herein and made a part of
this Sub-Lease Agreement.

          (h) The SUB-LESSEE agrees that because the Leased
Premises are government owned real property, the SUB-LESSEE shall
not be permitted to mortgage or enter into a security agreement
with regard to its leasehold interest in the Leased Premises. The
SUB-LESSEE agrees that any attempt to mortgage or enter into a
security agreement with regard to its leasehold interest in the
Leased Premises is a material default of this Agreement, and the
TOWN shall have the right to terminate this Agreement or take such
other actions as may be permitted by law or pursuant to this
Agreement. Any mortgage or security agreement with regard to the
leasehold interest in the Leased Premises or otherwise shall be
null and void and no legal effect.

     2.   Leased Premises. The Leased Premises shall consist of
the property described in Exhibit “B” and the Improvements with
all fixtures, improvements, and appurtenances located thereon, if
any, and with a non-exclusive license right for pedestrians to
directly ingress and egress the Leased Premises from the Ocean
Avenue public right-of-way across the Real Property, said way of
ingress/egress to be fixed from time to time by the TOWN. As of
the Effective Date, the Leased Premises are sub-leased to SUB-
LESSEE in their present “AS IS” condition without representation
or warranty by the TOWN or the LANDLORD and subject to the
existing state of title to all applicable laws and regulations now
or hereafter in effect, and, without limiting the generality of
the foregoing. The SUB-LESSEE has examined the title to the
Leased Premises and has found the same satisfactory for all
purposes.


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     The SUB-LESSEE has made an inspection of the Leased Premises
and of any and all fixtures or other items constituting a portion
thereof, and the TOWN and the LANDLORD make no warranty or
representation, express or implied or otherwise, with respect to
the same or the location, use, description, design,
merchantability, fitness for use for any particular purpose,
condition, or durability thereof, or as to the quality of the
material or workmanship therein, or as to TOWN or the LANDLORD's
title thereto as of the date of this Lease or ownership thereof or
otherwise, it being agreed that all risks incident thereto are to
be borne by the SUB-LESSEE. In the event of any defect or
deficiency of any nature in the Leased Premises, the Improvements
once constructed, or any fixture or other item constituting a
portion thereof, whether patent or latent, the TOWN and the
LANDLORD shall have no responsibility or liability with respect
thereto. THE PROVISIONS OF THIS PARAGRAPH 2 AND SECTION 7 OF
EXHIBIT “A” ATTACHED HERETO HAVE BEEN NEGOTIATED AND ARE INTENDED
TO BE A COMPLETE EXCLUSION AND NEGATION BY THE TOWN AND THE
LANDLORD OF, AND THE TOWN AND LANDLORD DO HEREBY DISCLAIM, ANY AND
ALL WARRANTIES BY THE TOWN AND THE LANDLORD, EXPRESS OR IMPLIED,
WITH RESPECT TO THE LEASED PREMISES OR ANY FIXTURE OR OTHER ITEM
CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE
UNIFORM COMMERCIAL CODE OR ANOTHER LAW NOW OR HEREAFTER IN EFFECT
OR OTHERWISE, AND THE SUB-LESSEE HEREBY EXPRESSLY AGREES TO THIS
DISCLAIMER AND NEGATION OF ALL WARRANTIES.

       3.      Duration.
          (a) The term of this Lease is less than eleven (11)
years, beginning on the Effective Date, and extending to and
including December 31, 2019. Provided, however, that if the SUB-
LESSEE is not in default hereunder, the SUB-LESSEE shall have one
(1) option of five (5) years to extend this Lease for an
additional five (5) year period by written notice to LANDLORD.
The option must be exercised, if at all, prior to the end of the
ninth lease year in the initial approximately eleven (11) year
period. In no event shall the term of this Lease, as extended,
extend past December 31, 2024. Unless expressly provided
hereafter to the contrary, "term" shall mean the initial slightly
less than eleven (11) year term together with any extension made
pursuant to this Section 3.

          (b) Possession. Notwithstanding that this Sub-Lease
becomes effective on the Effective Date, the SUB-LESSEE shall not
have any right to occupy or to go into possession of the Leased
Premises until completion of construction of the Improvements and
the ADA Ramp has been completed. Notwithstanding the foregoing,
conditional occupancy of the concession stand/public restroom
building may be permitted even if construction of the ADA Ramp is
incomplete and a conditional certificate of occupancy for the

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concession stand/public restroom building may be issued by the
TOWN’s Building Official, if the following conditions are first
satisfied:

                     (i) the SUB-LESSEE must complete all
construction of the concession stand/public restroom building
consistent with this Agreement in the opinion of the TOWN’s Town
Manager;

                     (ii) the TOWN’s Building Official must
determine in his sole opinion that construction of the concession
stand/public restroom building meets all requirements of all
State, Federal, and local regulations relating to construction and
coastal setbacks and protection;

                     (iii) the TOWN Building Official must agree to
issuance of a conditional certificate of occupancy subject to
satisfying conditions (iv) and (v);

                     (iv) issuance of the conditional certificate
of occupancy for the concession stand/public restroom building
shall be conditioned on construction of the ADA Ramp being
completed in the opinion of the Building Official, and the ADA
Ramp being accepted by the TOWN through its Town Manager as having
been satisfactorily completed consistent with this Agreement, by
no later than 365 days after the date of issuance of the
conditional certificate of occupancy for the construction of the
ADA Ramp in compliance with this Agreement. Construction must be
completed by the SUB-LESSEE such that the TOWN’s Building Official
is able in his sole opinion to determine that construction of the
ADA Ramp meets all requirements of all State, Federal, and local
regulations relating to construction and coastal setbacks and
protection and that the TOWN’s Building Official is able in his
sole opinion to issue a certificate of occupancy, certificate of
completion, or similar certification under Florida law, indicating
completion of construction of the ADA Ramp. Construction must
also be completed by the SUB-LESSEE such that the TOWN through its
Town Manager agrees to accept the ADA Ramp; and

                     (v) if condition (iv) is not complied with by
not more than 365 days after issuance of the conditional
certificate of occupancy for the concession stand/public restroom
building, then the SUB-LESSEE agrees that the conditional
certificate of occupancy for the concession stand/public restroom
building shall be withdrawn and terminated. The SUB-LESSEE shall
immediately cease use of the Improvements and vacate the Leased
Premises, until a certificate of occupancy, certificate of
completion, or similar certification is issued for the ADA Ramp
and the ADA Ramp has been accepted by the Town Manager.


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          This condition is agreed to such that the SUB-LESSEE’s
application to the TOWN for a conditional certificate of occupancy
is premised on the SUB-LESSEE’s waiver of any objection to
conditions (iv) and (v) above and the SUB-LESSEE’s agreement with
conditions (iv) and (v). By executing this Agreement, the SUB-
LESSEE agrees that this Agreement shall constitute prima facie
proof that the SUB-LESSEE agrees that its application for a
conditional certificate of occupancy for concession stand/public
restroom building constitutes the SUB-LESSEE’s waiver of any
objection to conditions (iv) and (v) above and the SUB-LESSEE’s
agreement with condition (iv) and (v) above.

          Completion of construction of the Improvements shall be
deemed to have occurred upon the issuance of a certificate of
occupancy for the concession stand/public restroom building and a
certificate of completion consistent with the Florida State
Building Code and all other codes of the TOWN for all of the
Improvements, said certificate of occupancy and certificate of
completion to be issued by the TOWN’s Building Official.
Completion of construction of the ADA Ramp shall be deemed to have
occurred upon the issuance of a certificate of occupancy,
certificate of completion, or similar certification for the ADA
Ramp consistent with the Florida State Building Code and all other
codes of the TOWN for the ADA Ramp, said certificate of occupancy
or certificate of completion to be issued by the TOWN’s Building
Official. The date upon which the issuance occurs of the
certificate of occupancy or certificate of completion, whether
conditional or permanent, occurs for the Improvements shall be the
date upon which the SUB-LESSEE shall go into possession of the
Leased Premises and shall be known in this Agreement as the “Date
of Possession.”

     Notwithstanding the foregoing, if the SUB-LESSEE is not able
to construct the ADA Ramp within the time requirements of this
Agreement due to major and significant circumstances totally
beyond the SUB-LESSEE’s control and a conditional certificate of
occupancy has been issued, rather than risk the withdrawal of the
conditional certificate of occupancy, the SUB-LESSEE may approach
the TOWN with a proposal to substitute an alternative project of
equal or greater value and in the public interest in place of the
construction of the ADA Ramp. While the TOWN shall not be
obligated to accept a substitute project or to suspend its right
to withdraw the conditional certificate of occupancy, the TOWN
will give good faith consideration of the substitute project. An
example of major and significant circumstances totally beyond the
SUB-LESSEE’s control would include a ban by the State of Florida
on construction of projects extending seaward of the dune line on
the beach. Should the TOWN decide to not pursue a substitute
project and a substitute project to be totally paid for by the
Sub-Lessee can not be agreed upon by the TOWN and Sub-Lessee, the

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conditional certificate of occupancy may be converted to a
permanent certificate of occupancy.


     4.   Net Lease; Non-Terminability. This Sub-Lease is a
triple net Sub-Lease and, any present or future law to the
contrary notwithstanding, shall not terminate except as expressly
provided herein. The SUB-LESSEE’s obligation to pay the Base Net
Annual Rent (as periodically adjusted as provided in paragraph 5.2
of this Lease) and any and all other sums payable hereunder shall
be absolute and unconditional and shall not be subject to any
delay, abatement or reduction (except as otherwise expressly
provided herein), set-off, counterclaim, recoupment, defense or
deduction with respect to any sums payable hereunder, nor (except
as otherwise expressly provided herein) shall the obligations of
the SUB-LESSEE hereunder be affected, by reason of any damage to
or destruction of the Leased Premises or any part thereof or any
taking of the Leased Premises or any part thereof by condemnation
or otherwise, except as may be otherwise provided herein. The
SUB-LESSEE shall pay the Base Net Annual Rent (as adjusted) and
any and all other sums payable to the TOWN under this Lease at the
address listed for the TOWN at page one hereof or at any other
address designated by the TOWN.

     5.   Rent. Prior to December 31, 2019, the SUB-LESSEE shall
pay rent, on a triple net basis, as follows:

          5.1 Payment of Base Net Annual Rent. Commencing on the
Date of Possession, the SUB-LESSEE shall pay to the TOWN rent on
an annual basis (the "Base Net Annual Rent") for each fiscal Sub-
Lease year during the term hereof, which Base Net Annual Rent
shall be paid in equal monthly installments, payable on the first
day of each month in advance. If the Date of Possession of the
Sub-Lease is not on the first (1st) day of a calendar month, the
Base Net Annual Rent between the Date of Possession and the first
day of the following month shall be apportioned, on a per diem
basis, on the basis of the Base Net Annual Rent, and such per diem
rent, together with rent for the first full month of the Lease
shall be payable on the Date of Possession. The fiscal Sub-Lease
year shall be deemed to commence on the first day of the first
full month of the Sub-Lease after the Date of Possession.    Upon
entering into possession, the Base Net Annual Rent monthly
installment shall commence in the amount of $1,500.00, plus any
Additional Rent and any tax or utility payments due to be paid to
the TOWN hereunder, due and payable as provided for herein. It is
agree that the initial Base Net Annual Rent is adjusted downward
from what the TOWN would normally charge in recognition of the
permitting and construction of the concession, public restroom and
shower facilities; and the ADA Ramp, all at the commencement of
this Lease by the SUB-LESSEE and the furnishing by the SUB-LESSEE

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at all times during the term hereof of the Beach Wheel Chair,
described. Upon completion of construction and acceptance of the
construction of the concession stand/restaurant, public restroom
and shower facilities and the ADA Ramp, those facilities shall be
deemed to be owned by the TOWN, subject to this Lease Agreement
and the tenancy created hereby.

          5.2 Adjustment to Base Net Annual Rent. The Base Net
Annual Rent for the first year of the Sub-Lease term shall be
$1,500.00. The Base Net Annual Rent shall be adjusted and
increased by additional rent on the first day of the second fiscal
year of the Sub-Lease and every one-year anniversary thereafter
(the "Adjustment Dates"). The TOWN shall advise SUB-LESSEE of the
dollar amount of rental amount increases pursuant to this
Paragraph 5.2 at least fifteen (15) days before SUB-LESSEE must
remit said amount to the TOWN. If the TOWN is late in advising
the SUB-LESSEE of the increased amount and adjusted Base Net
Annual Rent due, that shall not excuse the SUB-LESSEE from paying
said increased rents. Beginning with the first Adjustment Date
occurring during the second fiscal year of the Sub-Lease and for
each Adjustment Date thereafter, the Base Net Annual Rent shall be
adjusted annually and shall be equal to the Base Net Annual Rent
for the immediately preceding fiscal year of the Sub-Lease
multiplied by a fraction, the numerator of which is the Index
(hereinafter defined) reported three months prior to the
commencement of the forthcoming fiscal year, and the denominator
of which is the Index reported twelve (12) months earlier. By way
of example, if the Sub-Lease Date of Possession is on October 29,
2009, and the first fiscal year (during which possession by the
SUB-LESSEE has occurred and rent is to be paid) begins on November
1, 2009, and ends on September 30, 2010, the numerator of the
fraction referred to above shall be the Index as of July, 2010,
and the denominator shall be the Index on July, 2009. The Base
Net Annual Rent, as so adjusted, with the first day of each new
fiscal Sub-Lease year and continuing on the first day of each
month thereafter until the next Adjustment Date shall be the new
and redefined Base Net Annual Rent. Notwithstanding the foregoing
provisions, regardless of any calculations consistent with the
Index and this Agreement, in no event shall the Base Net Annual
Rent, as adjusted from year to year, decrease in any manner.

          For purposes of this paragraph, "Index" shall mean the
index numbers of retail commodity prices designated "CONSUMER
PRICE INDEX, ALL URBAN CONSUMERS, U.S. CITY AVERAGE, ALL ITEMS"
(1982-1984=100), not seasonally adjusted, prepared by the Bureau
of Labor Statistics of the U.S. Department of Labor. Any
publication by either the U.S. Department of Labor or the U.S.
Department of Commerce in which such index numbers are published
shall be admissible in evidence in any legal or judicial
proceeding involving this Lease without further proof of

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                                9
authenticity. In the event the U.S. Department of Labor ceases to
prepare and to publish such retail commodity index numbers, the
adjustment of Annual Rent thereafter shall be according to the
most closely comparable commodity index published by the U.S.
Department of Labor; and if such is not determined by that
Department, then the most closely comparable commodity index as
determined by agreement of SUB-LESSEE and the TOWN; and in the
absence of agreement, then as determined by arbitration in
accordance with the then existing rules of the American
Arbitration Association in which three (3) arbitrators shall hear
the matter, the cost of said arbitrators to be equally borne by
the TOWN and the SUB-LESSEE.

          5.3 Sales Tax. The SUB-LESSEE shall also pay when due
all sales taxes or similar excise taxes imposed on the Base Net
Annual Rent (as such is adjusted) payable hereunder.

          5.4 Late Payment Interest. If the SUB-LESSEE fails to
pay any installment of the Base Net Annual Rent or any other
payment required under this Sub-Lease (including without
limitation, taxes, utilities that may be due and payable to the
TOWN and insurance premiums) within ten (10) days of when due, the
SUB-LESSEE shall be deemed in default and, in addition to all
remedies available at law or pursuant to this Sub-Lease, the
amount of the unpaid payment due to be paid directly to the TOWN
shall bear interest from the date when due at the rate of 10% per
year; provided, that under no circumstances shall the interest
rate exceed the then legal rate of interest.

          5.5 Security Deposit. There shall be no security
deposit required to be paid by the SUB-LESSEE.

          5.6 Rent for Period Commencing January 1, 2020. All
rent payments for the period of any term extension from January 1,
2020 and thereafter shall be computed as set forth in Section 2.
of Exhibit “A”.

     6.   Utilities and Operating Expenses; Impact Fees; Securing
of Property in the Event of Severe Weather; ADA Ramp and Beach
Wheel Chair.

          (a) Utilities and Operating Expenses. The SUB-LESSEE
shall also pay all charges for electricity, telephone, water,
cable television, sewer services, waste removal service and all
other utilities or services furnished to or required in or upon
the Leased Premises including but not limited to the public
restroom and shower facilities and the food concession
stand/restaurant facilities during the term of this Lease, such
payment to be made within ten (10) days of receipt of a bill or
statement therefore. The interruption or malfunction of air

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                                10
conditioning, electricity, water and other services due to the
failure of delivery of utilities or the temporary breakdown of
such services shall not be cause for abatement or reduction in the
rent due hereunder or a claim of eviction. The SUB-LESSEE shall
also pay all other reasonable operating expenses as may be
necessary to maintain the Leased Premises and to provide the SUB-
LESSEE with services necessary for its permitted use, including
without limitation, janitorial, char, security and the like. If
for any reason the SUB-LESSEE does not timely pay charges for
electricity, telephone, water, cable television, sewer services,
waste removal service and all other utilities or services
furnished to or required in or upon the Leased Premises at any
time during the term of this Agreement and the TOWN shall become
responsible for said charges, the SUB-LESSEE shall be responsible
for paying, as Additional Rent, the cost of all said charges for
utilities or services furnished to or required in or upon the
Leased Premises, including the public restroom and shower portion
of the concession stand building, as well as he concession
stand/restaurant portion of the building. A single water meter
shall supply potable water to the concession/restaurant, public
restroom, and shower facilities and calculate the charges
therefore. Said water meter, charges for water from said meter,
and all deposits for the meter and a water account therefore
during the term of this Agreement shall be in the name of the SUB-
LESSEE, and payment of all charges and deposits during the term of
this Agreement shall be the responsibility of the SUB-LESSEE. The
failure to timely pay and cure said non-payment of said charges as
Additional Rent shall be deemed a material default under this Sub-
Lease Agreement. In addition, the SUB-LESSEE shall construct the
plumbing system for the public shower facilities to operate
alternatively off a water well an existing water well owned by the
Town on the Real Property or the central public water service
system. Connection of the well and running of the pipe to the
Leased Premises from the well shall be accomplished at the Town’s
expense. During construction of the concession stand/public
restroom building, the SUB-LESSEE shall connect the public shower
facilities to a water well; provided, that it is determined by the
Town Manager that said system will not provide an unduly salty
supply of water. This sub-section shall survive the termination
of this Agreement.

           (b) All impact fees of any type (i.e., -
transportation, water, sewer, etc.) and utility connection or
hook-up charges levied by any local governmental entity for
transportation, water and wastewater services for any portion of
the Leased Premises shall be timely payable by the SUB-LESSEE.
The failure to timely pay said impact fee and connection or hook-
up charges shall be deemed a material default under this Sub-Lease
Agreement.


Melbourne Beach/J&BLease11a                                  3/12/09
                                11
          (c) During the term of this Sub-Lease (and any extended
terms), the SUB-LESSEE shall be responsible for cleaning in a dry
and broom clean condition the public restrooms, toilets, and
urinals, on the Leased Premises. Said cleaning shall occur not
less than daily and during high usage periods, such as but not
limited to weekends and holidays, at the direction of the Town
Manager cleaning shall be increased to such degree as shall be
needed to keep the restrooms in a generally clean condition.
“Cleaning” shall also include removal and disposal of all trash
and unclogging of stopped toilets. In addition to the foregoing,
the SUB-LESSEE shall is required on a daily basis to fully stock
the restrooms with hand soap, paper towels, and toilet paper, all
at the sole expense of the SUB-LESSEE. The requirements of this
sub-section (c) shall be a material part of this Agreement, and a
failure to comply with these provisions shall be regarded as a
material default. This sub-section (c) shall be liberally
construed in favor of the TOWN, and the Town Manager shall have a
right to set or increase from time to time the standards for
cleaning of the public restrooms and operation of the toilets,
water faucets, and showers.

          (d) The SUB-LESSEE is charged with the responsibility
to assure that the shower facility and public restrooms shall be
open and operating to the general public 365 days per year from 7
A.M. until 7 P.M., and the SUB-LESSEE shall be responsible for
assuring that the restrooms are open to the public. The SUB-
LESSEE shall at all times supply the Town Manager and the Police
Department with a key to the restroom. If for any reason the SUB-
LESSEE is unavailable to open, close or otherwise secure the
public restroom, the SUB-LESSEE shall contact the TOWN by not
later than 7 A.M. on the day that the SUB-LESSEE is unavailable to
advise the TOWN of the SUB-LESSEE’s unavailability. The TOWN
shall be entitled, at its discretion, to open, close, and
otherwise secure the public restroom facilities. In such event,
the SUB-LESSEE shall continue to have the responsibility to make
certain the public restroom is clean and fully stocked with hand
soap, paper towels, and toilet paper, all on a daily basis, as
described above in sub-section (c) at its expense.
Notwithstanding that the SUB-LESSEE shall undoubtedly claim a
right to cure its conduct, a failure to comply with this provision
shall be a material default under this Agreement. In the event of
adverse weather such as hurricanes, tropical storms, and other
significant storm events, the SUB-LESSEE shall be required to
secure the public restrooms on the Real Property, locking all
doors to said facilities and removing all trash, prior to said
events.

          (e) Failure to comply with any aspect of this Section
6., including but not limited to, the keeping clean all public
restrooms, shall be a material default. Continuous conduct of

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                                12
failing to keep the public restrooms clean and toilets unclog
shall void any right to cure said default and be regarded as
continuing, uncured conduct.

          (f) As part of this Project, the SUB-LESSEE must build
the ADA Ramp consistent with all requirements of the TOWN and the
construction plans, the Florida Department of Environmental
Protection (“FDEP”) and the Trustees of the Internal Improvement
Fund. At a minimum, the ADA Ramp shall be constructed of 40 year
pressure treated lumber, stainless steel screws and stainless
steel bolts/hardware. No nails shall be used in the construction
of the ADA Ramp. Upon receipt of a certificate of completion,
certificate of occupancy, or other similar form of certification
of completion of construction of the ADA Ramp, and upon acceptance
of said construction by the TOWN, the SUB-LESSEE, at its sole
expense, shall purchase and have on-site at the Leased Premises a
handicapped wheel chair acceptable for use on the sandy beach as
displayed on Exhibit “C” attached hereto and by this reference
incorporated herein (the “Beach Wheel Chair”). The Beach Wheel
Chair shall be the property of the SUB-LESSEE, but its use on the
beach adjacent to the Project shall be free to the physically
disabled general public and made available on a first come, first
basis. No member of the general public shall utilize the Beach
Wheel Chair for a period of longer than two (2) hours, but this
time requirement may be varied from time to time by agreement of
the SUB-LESSEE and the TOWN through its Town Manager. The SUB-
LESSEE shall be authorized to require a deposit for use of the
Beach Wheel Chair, and the SUB-LESSEE shall work cooperatively
with the TOWN through its Town Manager to develop a schedule of
acceptable deposits. The SUB-LESSEE and the TOWN through its Town
Manager shall cooperatively work to develop appropriate rules and
regulations regarding the use of the Beach Wheel Chair, which
rules may be amended from time to time by the SUB-LESSEE and the
TOWN through its Town Manager. A single Beach Wheel Chair in
first class working order and condition (normal wear and tear
accepted) shall be maintained and made available by the SUB-LESSEE
at all times during the operating hours of the concession stand
during the term of this Agreement. When the Beach Wheel Chair
becomes deteriorated in condition, the SUB-LESSEE will replace the
Beach Wheel Chair at the SUB-LESSEE’s sole expense. In addition,
when the Beach Wheel Chair becomes deteriorated in condition, the
TOWN through its Town Manager may direct the SUB-LESSEE to replace
the Beach Wheel Chair, and the SUB-LESSEE will do so at its sole
expense. At the completion of this Lease, the Beach Wheel Chair
shall be conveyed by bill of sale for $1 to the TOWN by the SUB-
LESSEE, free of all security interests and claims. Upon
conveyance to the TOWN of the Beach Wheel Chair, the TOWN shall
provide the SUB-LESSEE with a receipt acknowledging conveyance of
the Beach Wheel Chair.


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                                13
       7.      Permitting.

     7.1(a) Zoning; Coastal Construction Control Line (“CCCL”);
Application.

               (1) The TOWN agrees that the Improvements, the ADA
Ramp, and this Project constitute a “public recreational use” as
defined as a permitted use in the 9-I zoning district in Chapter
7A, Appendix A, Town Code of Ordinance. The concession stand and
public restrooms are to be owned by the TOWN and the LANDLORD, but
the Leased Premises have been leased to the SUB-LESSEE pursuant to
this Agreement. The Improvements have a primary use to benefit
and serve the general public for recreational, beach-going
purposes. All of the Improvements shall be constructed landward
of the CCCL. If it is determined that any portion of the
Improvements is being constructed seaward of the CCCL, the SUB-
LESSEE shall promptly stop all construction activities upon notice
thereof and construction shall not resume until all CCCL permits
have been obtained. If it is determined after a certificate of
occupancy, completion, or similar certification indicating that
construction has been completed, that any portion of the
Improvements has been constructed seaward of the CCCL, at the
option of the TOWN all use of the Improvements or all use of
portions of the Improvements located seaward of the CCCL, shall
cease until all CCCL permits have been obtained.

               (2) Upon the Effective Date, the SUB-LESSEE shall
prepare an application for: (i) site plan approval of the Project
facilities (the “Site Plan”); (ii) approval of a coastal
construction control line variance application pursuant to Chapter
5A of the Town’s Land Development Code (“CCCL variance”) for a
variance from the CCCL set pursuant to Chapter 5A-2, Appendix A,
Town Code, for the ADA Ramp; (iii) an application to the FDEP for
construction seaward of the State of Florida Coastal Construction
Control Line (“DEP CCCL Permit”); and (iv) an application for all
stormwater drainage permitting required by the St. Johns River
Water Management District. The CCCL variance application, the DEP
CCCL Permit, the stormwater drainage permits, and Site Plan shall
include all portions of the Project on and off of the Real
Property and shall be developed consistent with the preliminary
site plan attached to this Agreement. The Site Plan and the ADA
Ramp CCCL variance application shall meet all requirements of the
TOWN’s Land Development Code. The application for the ADA Ramp
shall also meet all requirements of the FDEP for issuance of a
permit to build seaward of the CCCL. The application shall meet
all requirements of the St. Johns River Water Management District
(“St. Johns”) for issuance of a stormwater management permit to
construct the Project. Cost of preparation of the applications
and the Site Plan shall be paid by the SUB-LESSEE. The TOWN
hereby waives payment of application fees for TOWN permits,
Melbourne Beach/J&BLease11a                                  3/12/09
                                14
including the Site Plan approval and building permit.

          (b) Within not more than sixty (60) days of the
Effective Date, the SUB-LESSEE shall submit the application for
Site Plan, the CCCL variance, the DEP CCCL permit, the St. Johns
permit, and a copy of the Site Plan to the TOWN’s Town Manager,
who shall review the applications and the Site Plan. If the Site
Plan and the applications for the St. Johns permit, the CCCL
variance, the DEP CCCL permit, and Site Plan approval are not
timely submitted, the TOWN may within thirty (30) days following
the expiration of the time for submission of the Site Plan and all
applications aforementioned in this Section 7.1, terminate this
Agreement. If this Agreement is not terminated within said thirty
(30) day period, the TOWN’s right to terminate this Agreement
pursuant to this Section 7.1 for failure to timely submit the St.
Johns River Water Management District permit application, the CCCL
variance application, the DEP CCCL permit application, and the
Site Plan Application, for review shall be deemed to be waived.
In the event of termination of this Sub-Lease Agreement based on a
failure of the SUB-LESSEE to timely file the Site Plan, the St.
Johns River Water Management District permit application, the CCCL
variance application, and the DEP CCCL permit application, for
review with the Town Manager, the TOWN may collect all funds from
the Construction Letter of Credit, and the parties shall go
forward without further liability to one another, except as
otherwise provided herein.

          7.2(a) The Town Manager may propose comments with
regard to revisions not inconsistent with this Agreement for the
St. Johns permit application, the Site Plan, the CCCL variance
application, the DEP CCCL permit application, and the Site Plan
application within sixty (60) calendar days of receipt thereof by
the Town Manager. Proposed revisions shall be made in writing
with an explanation to the SUB-LESSEE. If no revisions are timely
submitted to the SUB-LESSEE, the Site Plan and applications for
the St. Johns permit application, the CCCL variance application,
the DEP CCCL permit application, shall be deemed to be acceptable
to the TOWN; provided, that such designation of the Site Plan
application, and the CCCL variance application, as being
acceptable shall not be construed to be Site Plan or CCCL variance
approval pursuant to the TOWN’s Land Development Code. If
revisions submitted and proposed by the Town Manager are
determined by the SUB-LESSEE in its sole opinion to be material
and adverse to the SUB-LESSEE, within twenty (20) days of receipt
of the comments (or the lack thereof as of the deadline for
submittal), the SUB-LESSEE may terminate this Agreement. If this
Agreement is not terminated within said twenty (20) day period,
the SUB-LESSEE’s right to termination of this Agreement pursuant
to this Section 7.2(a) due to the TOWN’s submissions of materially
burdening comments shall be deemed to be waived. In the event of

Melbourne Beach/J&BLease11a                                  3/12/09
                                15
termination of this Sub-Lease Agreement by the SUB-LESSEE for
submittal of material and adverse comments by the TOWN, the
Construction Letter of Credit shall be returned to the SUB-LESSEE,
and the parties shall go forward without further liability to one
another, except as otherwise provided herein.

          (b) Upon receipt of the comments and if the Agreement
is not terminated pursuant to Section 7.2(a), the SUB-LESSEE shall
revise the St. Johns permit application, the Site Plan, the CCCL
variance application, the DEP CCCL permit application, and Site
Plan application within not more than twenty (20) days, correcting
same consistent with all of the Town Manager’s comments into the
aforementioned documents.

          (c) Thereafter, the final review of the Site Plan
application, the Site Plan, the CCCL variance application, the DEP
CCCL permit application, and the St. Johns permit application by
the Town Manager shall occur within ten (10) TOWN business days of
receipt from the SUB-LESSEE of the revised documents specified in
Section 7.2(b), and the Town Manager shall within said time submit
to the SUB-LESSEE written approval, disapproval, or approval with
additional comments.

          (d) Cost of preparation of the applications and the
Site Plan pursuant to this Section 7, including all sub-sections,
of this Agreement shall be paid for by the SUB-LESSEE, and if the
SUB-LESSEE does not timely pay for all costs of preparation of the
applications and the Site Plan, the TOWN may collect all funds
from the Construction Letter of Credit. Thereafter, this
Agreement shall be terminated, and the parties shall go forward
without further liability to one another, except as otherwise
provided herein.

          7.3 (a) If no comments, or written approval, are
submitted within the aforesaid five (5) business day period of
time, the St. Johns permit application, the Site Plan application,
the CCCL variance application, the DEP CCCL permit application,
and the Site Plan, shall be deemed acceptable for submission for
review, public hearings and consideration for permitting pursuant
to the TOWN’s Land Development Code and for submission to the St.
Johns River Water Management District and Florida Department of
Environmental Protection, all as appropriate, for review and
approval.

               (b) If the St. Johns permit application, the Site
Plan, the CCCL variance application, the DEP CCCL permit
application, and/or the Site Plan application is disapproved, or
is approved, by the Town Manager with additional comments, the
SUB-LESSEE may within ten (10) days after receipt of the Town
Manager’s final comments terminate this Agreement. In the event

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                                16
that additional comments are made by the Town Manager and this
Agreement is not terminated within said ten (10) day period, the
SUB-LESSEE’s right to terminate this Agreement pursuant to this
Section 7.3(b) shall be deemed to have been waived. In the event
of termination of this Sub-Lease Agreement by the SUB-LESSEE for
submittal of material and adverse comments by the TOWN, the
Construction Letter of Credit shall be returned to the SUB-LESSEE,
and the parties shall go forward without further liability to one
another, except as otherwise provided herein.

               (c) If the St. Johns permit application, the Site
Plan, the CCCL variance application, the DEP CCCL permit
application, and/or the Site Plan application are approved with
additional Town Manager comments and the SUB-LESSEE decides not to
exercise its right to terminate this Agreement, the SUB-LESSEE
shall within twenty (20) days after receipt of the Town Manager’s
final comments revise the St. Johns permit application, the Site
Plan, the CCCL variance application, the DEP CCCL permit
application, and/or the Site Plan application, consistent with the
Town Manager’s comments, making no other changes to the St. Johns
permit application, the Site Plan, the CCCL variance application,
the DEP CCCL permit application, and/or Site Plan application.

          7.4 After: (i) the approval by the Town Manager of
the St. Johns permit application, the Site Plan, the CCCL variance
application, the DEP CCCL permit application, and/or and the Site
Plan application; (ii) the date by which it is deemed acceptable;
or (iii) the revision pursuant to Section 7.3(c) to include the
Town Manager’s final comments for revision, a check to cover the
application fee for the St. Johns permit application, and the FDEP
CCCL application, shall be issued by the SUB-LESSEE, and the Site
Plan application and the CCCL variance application shall be
jointly and promptly executed by the TOWN and the SUB-LESSEE and
filed with the Town Clerk for processing, public hearings, and for
consideration for approval. The St. Johns permit application and
the FDEP CCCL application, shall be jointly and promptly executed
by the TOWN and the SUB-LESSEE, ready for filing with the
appropriate agency for processing and consideration for approval.
The application fee for filing of the Site Plan and the CCCL
variance application with the TOWN is hereby waived. If complete
applications to the Town are not promptly filed, either the SUB-
LESSEE or the TOWN may within not more than twenty (20) days after
the time described in the first sentence of this section in
writing terminate this Agreement. If the SUB-LESSEE does not
timely execute the Site Plan application and the CCCL variance
application, participate in the timely filing of the Site Plan
application and the CCCL variance application, the TOWN may
collect all funds from the Construction Letter of Credit.
Thereafter, the parties shall go forward without further liability
to one another, except as otherwise provided herein. If this

Melbourne Beach/J&BLease11a                                  3/12/09
                                17
Agreement is not terminated within said twenty (20) day period,
the TOWN or the SUB-LESSEE’s right to terminate this Agreement
pursuant to this Section 7.4 shall be deemed to be waived. In the
event of termination of this Sub-Lease Agreement by the TOWN as
provided in this Section 7.4, the proceeds from the Construction
Letter of Credit shall be paid to the TOWN, and the parties shall
go forward without further liability to one another, except as
otherwise provided herein. In the event of termination of this
Sub-Lease Agreement by the SUB-LESSEE as provided in this Section
7.4, the Construction Letter of Credit shall be returned to the
SUB-LESSEE, and the parties shall go forward without further
liability to one another, except as otherwise provided herein.

          7.5(a) The applications shall all be processed for
approval by the TOWN pursuant to the Land Development Code,
Appendix A, Melbourne Beach Code of Ordinances. This Agreement
shall not be construed to be a contract binding upon the TOWN to
approve the application for CCCL variance approval or the
application for Project Site Plan approval. The TOWN shall have
the right to deny the application for CCCL variance approval or
the Site Plan application or to condition approval of the Site
Plan or the CCCL variance, upon any conditions in the TOWN’s sole
discretion. The TOWN permitting bodies shall have up to 180 days
from the date of filing of the Site Plan application and the CCCL
variance application as specified in Section 7.4 to render a final
decision with regard to approval, denial, or approval with
conditions of the Site Plan and the CCCL variance application.

          (b) If the TOWN permitting bodies do not render final
“development orders,” as that term is defined in Section 163.3164,
Florida Statutes, for the Site Plan review and the CCCL variance
within the aforesaid 180 day time frame, either the SUB-LESSEE or
the TOWN may within not more than thirty (30) days after the
passage of said 180-day term, in writing terminate this Agreement.
If this Agreement is not terminated within said thirty (30) day
period, the SUB-LESSEE’s right to terminate this Agreement
pursuant to this Section 7.5(a) shall be deemed to be waived. In
the event of termination of this Sub-Lease Agreement by the TOWN
or the SUB-LESSEE as provided in this Section 7.5(a), the TOWN
shall return to the SUB-LESSEE the Construction Letter of Credit,
and the parties shall go forward without further liability to one
another, except as otherwise provided herein.

          (c) If a TOWN final permitting body denies the CCCL
variance or the Site Plan, within not more than thirty (30) days
after the TOWN renders its written final development order, the
SUB-LESSEE or the TOWN may terminate this Agreement. If this
Agreement is not terminated within said thirty (30) day period,
the TOWN and the SUB-LESSEE’s right to terminate this Agreement

Melbourne Beach/J&BLease11a                                  3/12/09
                                18
pursuant to this Section 7.5(b) due to denial of the CCCL variance
or the Site Plan application, shall be deemed to be waived. In
the event of termination of this Sub-Lease Agreement as provided
in this Section 7.5(c), the TOWN shall return to the SUB-LESSEE
the Construction Letter of Credit, and the parties shall go
forward without further liability to one another, except as
otherwise provided herein.

          (d) If the TOWN conditions approval of the CCCL
variance or the Site Plan on conditions that materially increase
the cost of the SUB-LESSEE’s portion of the Project budget, within
not more than thirty (30) days after the TOWN renders its written
final development order for each of the individual aforementioned
development permits, the SUB-LESSEE may terminate this Agreement.
 If this Agreement is not terminated within said thirty (30) day
period, the SUB-LESSEE’s right to terminate this Agreement
pursuant to this Section 7.5(d) due to approval of the CCCL
variance or the Site Plan application on conditions that
materially increase the cost of the SUB-LESSEE’s portion of the
Project budget shall be deemed to be waived. In the event of
termination of this Sub-Lease Agreement by the SUB-LESSEE as
provided in this Section 7.5(d), the TOWN shall return to the SUB-
LESSEE the Construction Letter of Credit, and the parties shall go
forward without further liability to one another, except as
otherwise provided herein.

          7.6 If this Agreement is not terminated as provided in
Section 7.5, within not more than thirty-five (35) days after
approval of the Site Plan and the CCCL variance by the TOWN, the
TOWN and the SUB-LESSEE shall jointly submit an application for
approval by St. Johns River Water Management District of required
stormwater permits and by FDEP of the DEP CCCL Permit. Said
applications shall be fully consistent with this Sub-Lease
Agreement as approved by the TOWN, the approved Site Plan, and the
approved CCCL variance. The SUB-LESSEE shall be responsible for
the payment of all application fees to the St. Johns River Water
Management District and all costs of application revision(s) to
obtain approval from the District. The SUB-LESSEE shall be
responsible for the payment of all application fees to the FDEP
and all costs of application revision(s) to obtain approval from
the FDEP. If the St. Johns stormwater permit application and the
DEP CCCL Permit application, are not timely submitted within said
thirty-five (35) day time period by the SUB-LESSEE; if approval of
the St. Johns stormwater permit application referenced herein is
not approved within one-hundred eighty (180) days of the date of
submittal of the St. Johns stormwater permit application to the
St. Johns River Water Management District; if approval of the DEP
CCCL Permit application referenced herein is not approved within
one-hundred eighty (180) days of the date of submittal of the DEP
CCCL Permit application to the FDEP; or if the St. Johns

Melbourne Beach/J&BLease11a                                  3/12/09
                                19
stormwater permit approval or the FDEP CCCL Permit approvals, have
conditions that in the opinion of either the SUB-LESSEE or the
TOWN materially increase or adversely affect the viability of the
Project, either party may within not more than thirty (30) days of
the passing of the aforementioned described event, in writing
terminate this Agreement by giving notice to the other party. If
this Agreement is not terminated within said thirty (30) day
period, the right of the SUB-LESSEE or the TOWN to terminate this
Agreement pursuant to this Section 7.6 shall be deemed to be
waived. In the event of termination of this Sub-Lease Agreement
by either party to this SUB-LEASE as provided in this Section 7.6
(except for failure of the SUB-LESSEE to timely file the DEP CCCL
application or the St. Johns stormwater permit), the TOWN shall
return to the SUB-LESSEE the Construction Letter of Credit, and
the parties shall go forward without further liability to one
another, except as otherwise provided herein. In the event that
the SUB-LESSEE has failed to timely file the DEP CCCL application
or the St. Johns stormwater permit as provided herein, upon
termination of this Agreement, the TOWN shall collect all proceeds
of the Construction Letter of Credit, and the parties shall go
forward without further liability, one to the other, except as
otherwise provided elsewhere in this Agreement.

          7.7(a) Within not more than sixty (60) days of the date
of rendition of the St. Johns written final order approving the
St. Johns stormwater permit application, the DEP CCCL Permit, the
TOWN CCCL variance, or the Site Plan, whichever approval shall be
rendered later in time, the SUB-LESSEE shall submit to the TOWN a
copy of the proposed construction plans for the Project (the
“Construction Plans”). The Construction Plans shall be fully
consistent with this Agreement and the results of above review
processes, the TOWN’s Site Plan and CCCL variance final
development orders, the DEP CCCL Permit, and the St. Johns
stormwater permit final order, and generally consistent with the
TOWN’s building code such that the Construction Plans are in form
acceptable to the TOWN’s Building Official for review precedent to
issuance of a building permit. The cost of preparation of the
Construction Plans shall be paid by the SUB-LESSEE, and if the
SUB-LESSEE does not timely pay for all costs of preparation of the
applications and the Site Plan, the TOWN may collect all funds
from the Construction Letter of Credit. Thereafter, this Agreement
shall be terminated, and the parties shall go forward without
further liability to one another, except as otherwise provided
herein. The TOWN shall review the draft Construction Plans.

          (b) If the Construction Plans are not submitted to the
TOWN for review and comment within sixty (60) days of the date of
rendition of the TOWN’s written final order approving the Site
Plan and the CCCL variance, the date of rendition of the ordering
issuing the DEP CCCL Permit by the FDEP, and the date of rendition

Melbourne Beach/J&BLease11a                                  3/12/09
                                20
of the ordering issuing the St. Johns River Water Management
District final order of approval, the TOWN may within fifteen (15)
days of the passing of said sixty (60) day timeframe for
submission of the Construction Plans, terminate this Agreement.
If this Agreement is not terminated within said fifteen (15) day
period, the TOWN’s right to terminate this Agreement pursuant to
this Section 7.6(b) for failure to timely submit the Construction
Plans for review shall be deemed to be waived. In the event of
termination of this Sub-Lease Agreement by the TOWN as provided in
this Section 7.7(b), the TOWN shall collect all proceeds from the
Construction Letter of Credit, and the parties shall go forward
without further liability to one another, except as otherwise
provided herein.

          (c) Upon receipt of the draft Construction Plan, the
TOWN may make comments with regard to the Improvements, or any
other construction proposed to be undertaken on the Leased
Premises, within not more than twenty (20) calendar days of
receipt thereof. Proposed revisions shall be made in writing with
an explanation for said revision(s) to the SUB-LESSEE. If no
proposed revisions are timely submitted, the Construction Plans
shall be deemed to be acceptable to the TOWN. If revisions
submitted and proposed by the TOWN are determined by the SUB-
LESSEE in its sole opinion to be material and monetarily adverse,
within twenty (20) days of receipt of the comments, the SUB-LESSEE
may terminate this Agreement. If this Agreement is not terminated
within said twenty (20) day period, the SUB-LESSEE’s right to
terminate this Agreement pursuant to this Section 7.7(c) due to
the TOWN’s submission of objectionable comments shall be deemed to
be waived. In the event of termination of this Sub-Lease
Agreement by the SUB-LESSEE as provided in this Section 7.7(c),
the TOWN shall return to the SUB-LESSEE the Construction Letter of
Credit, and the parties shall go forward without further liability
to one another, except as otherwise provided herein.

          (d) If this Agreement is not terminated as provided in
Section 7.7(c), upon receipt of the TOWN’s comments, the SUB-
LESSEE shall revise the Construction Plans consistent with the
TOWN’s comments within not more than twenty (20) days from the
date of receipt of the TOWN’s comments. If the Construction Plans
are not timely revised and re-submitted to the TOWN within said
twenty (20) day period, the TOWN may obtain all monies from the
Construction Letter of Credit, this Agreement shall be terminated,
and the parties shall go forward without further liability to one
another, except as otherwise provided herein.

          (e) Thereafter, the Construction Plans shall be
returned to the TOWN for a final review of the Construction Plans
which shall occur within five (5) TOWN business days, and the TOWN
shall within said time submit to the SUB-LESSEE written approval,

Melbourne Beach/J&BLease11a                                  3/12/09
                                21
disapproval, or approval with additional comments. If no comments
or written approval is submitted within said five (5) business day
time by the TOWN, the Construction Plans shall be deemed
acceptable.

          (f) If the Construction Plans are disapproved or are
approved by the TOWN with additional comments, the SUB-LESSEE may
within twenty (20) days after receipt of the TOWN’s final comments
or disapproval of the Construction Plans terminate this Agreement.
In the event that additional comments are made by the TOWN and
this Agreement is not terminated within said twenty (20) day
period, the SUB-LESSEE’s right to terminate this Agreement
pursuant to this Section 7.7(f) shall be deemed to be waived. In
the event of termination of this Sub-Lease Agreement by the TOWN
as provided in this Section 7.7(f), the TOWN shall return to the
SUB-LESSEE the Construction Letter of Credit, and the parties
shall go forward without further liability to one another, except
as otherwise provided herein.

          (g) If the Construction Plans are approved with
additional TOWN comments and the SUB-LESSEE decides not to
exercise its right to terminate this Agreement, the SUB-LESSEE
shall within twenty (20) days after receipt of the TOWN’s final
comments revise the Construction Plans consistent with the TOWN’s
comments, making no other changes to the Construction Plans.

          (h) After completion of the foregoing TOWN/SUB-LESSEE
process of preparation of the Construction Plans, the Construction
Plans shall be submitted to the TOWN’s Building Official for
formal review and issuance of a building permit. All revisions of
the Construction Plans required by the Building Official shall be
at the expense of the SUB-LESSEE, and the cost of application for
a building permit normally charged by the TOWN is hereby waived.

       8.      Construction.

          (a) The SUB-LESSEE shall be responsible for obtaining
a contractor who shall supervise and direct the construction of
the Leased Premises, including the Improvements and the ADA Ramp
(the “Work”), using said contractor’s best skill and attention,
and the SUB-LESSEE’s contractor shall be solely responsible for
all construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work.

          (b) The contractor, the SUB-LESSEE, and the TOWN shall
have full access at all times to the Leased Premises and the Real
Property for purposes of construction, inspection, and receiving
electrical supply. The SUB-LESSEE shall require that the
Contractor shall at all times enforce strict discipline and good
order among his employees, laborers, and subcontractors and sub-

Melbourne Beach/J&BLease11a                                  3/12/09
                                22
subcontractors and that the contractor shall not employ on the
Work any unfit person or anyone not skilled, or properly licensed
by appropriate governmental regulatory authorities, in the task
assigned to him.

          (c) The SUB-LESSEE shall build the Improvements on the
Leased Premises substantially consistent with the Construction
Plans. The SUB-LESSEE shall build the ADA Ramp on the Real
Property and onto the beach substantially consistent with the
Construction Plans.

               (1) Only upon completion of construction by the
SUB-LESSEE and issuance of a certificate of occupancy,
certificate of completion, or similar certification by the Town’s
Building Official for both the ADA Ramp and the Improvements and
not prior to said time, may the SUB-LESSEE enter into possession
of the Leased Premises. Upon said date, the SUB-LESSEE shall
enter into possession of the Leased Premises, and collection of
rent pursuant to this lease shall commence effective as of the
Date of Possession.

               (2) Notwithstanding the foregoing sub-section 8.
(c)(1) and consistent with Section 3.(b), conditional occupancy
of the concession stand/public restroom building may be permitted
even if construction of the ADA Ramp is incomplete and a
conditional certificate of occupancy for the concession
stand/public restroom building may be issued by the TOWN’s
Building Official, if the following conditions are first
satisfied:

                     (i) the SUB-LESSEE must complete all
construction of the concession stand/public restroom building
consistent with this Agreement in the opinion of the TOWN’s Town
Manager;

                     (ii) the TOWN’s Building Official must
determine in his sole opinion that construction of the concession
stand/public restroom building meets all requirements of all
State, Federal, and local regulations relating to construction and
coastal setbacks and protection;

                     (iii) the TOWN Building Official must agree to
issuance of a conditional certificate of occupancy subject to
satisfying conditions (iv) and (v);

                     (iv) issuance of the conditional certificate
of occupancy for the concession stand/public restroom building
shall be conditioned on construction of the ADA Ramp being
completed in the opinion of the Building Official, and the ADA
Ramp being accepted by the TOWN through its Town Manager as having

Melbourne Beach/J&BLease11a                                  3/12/09
                                23
been satisfactorily completed consistent with this Agreement, by
no later than 365 days after the date of issuance of the
conditional certificate of occupancy for the construction of the
ADA Ramp in compliance with this Agreement. Construction must be
completed by the SUB-LESSEE such that the TOWN’s Building Official
is able in his sole opinion to determine that construction of the
ADA Ramp meets all requirements of all State, Federal, and local
regulations relating to construction and coastal setbacks and
protection and that the TOWN’s Building Official is able in his
sole opinion to issue a certificate of occupancy, certificate of
completion, or similar certification under Florida law indicating
completion of construction of the ADA Ramp. Construction must
also be completed by the SUB-LESSEE such that the TOWN through its
Town Manager agrees to accept the ADA Ramp; and

                     (v) if condition (iv) is not complied with by
not more than 365 days after issuance of the conditional
certificate of occupancy for the concession stand/public restroom
building, then the SUB-LESSEE agrees that the conditional
certificate of occupancy for the concession stand/public restroom
building shall be withdrawn and terminated. The SUB-LESSEE shall
immediately cease use of the Improvements and vacate the Leased
Premises, until a certificate of occupancy, certificate of
completion, or similar certification is issued for the ADA Ramp
and the ADA Ramp has been accepted by the Town Manager.

          This condition is agreed to such that the SUB-LESSEE’s
application to the TOWN for a conditional certificate of occupancy
is premised on the SUB-LESSEE’s waiver of any objection to
conditions (iv) and (v) above and the SUB-LESSEE’s agreement with
conditions (iv) and (v). By executing this Agreement, the SUB-
LESSEE agrees that this Agreement shall constitute prima facie
proof that the SUB-LESSEE agrees that its application for a
conditional certificate of occupancy for concession stand/public
restroom building constitutes the SUB-LESSEE’s waiver of any
objection to conditions (iv) and (v) above and the SUB-LESSEE’s
agreement with condition (iv) and (v) above.

          Notwithstanding the foregoing, if the SUB-LESSEE is not
able to construct the ADA Ramp within the time requirements of
this Agreement due to major and significant circumstances totally
beyond the SUB-LESSEE’s control and a conditional certificate of
occupancy has been issued, rather than risk the withdrawal of the
conditional certificate of occupancy, the SUB-LESSEE may approach
the TOWN with a proposal to substitute an alternative project of
equal or greater value and in the public interest in place of the
construction of the ADA Ramp. While the TOWN shall not be
obligated to accept a substitute project or to suspend its right
to withdraw the conditional certificate of occupancy, the TOWN
will give good faith consideration of the substitute project. An

Melbourne Beach/J&BLease11a                                  3/12/09
                                24
example of major and significant circumstances totally beyond the
SUB-LESSEE’s control would include a ban by the State of Florida
on construction of projects extending seaward of the dune line on
the beach. Should the TOWN decide to not pursue a substitute
project and a substitute project to be totally paid for by the
Sub-Lessee can not be agreed upon by the TOWN and Sub-Lessee, the
conditional certificate of occupancy may be converted to a
permanent certificate of occupancy.

               (d)     Construction Letter of Credit.

               (1) Prior to commencement of construction, the
SUB-LESSEE and the contractor shall comply with Section 255.05,
Florida Statutes; provided, that references in Section 255.05, to
the posting of a performance and payment bond shall be
substituted for and the SUB-LESSEE shall in place thereof post an
irrevocable construction letter of credit (the “Construction
Letter of Credit”). Simultaneous with the execution of this
Agreement by the SUB-LESSEE, the SUB-LESSEE shall fully fund and
present to the TOWN the Construction Letter of Credit for payment
and performance of construction of the Improvements and the ADA
Ramp and the requirements specified herein in the amount of
$75,000 to secure construction of the Project. During actual
construction by the contractor, sub-contractor(s), sub-
subcontractor(s), and materialmen, all such bonds and letters of
credit shall inure to the benefit of the TOWN and all other
persons, companies and corporations (excepting the SUB-LESSEE)
entitled to make a claim for payment against the bond or letter
of credit pursuant to the applicable provisions of Florida law.
Said irrevocable Construction Letter of Credit shall be utilized
to secure performance of provisions of this Agreement as
specified herein, to secure and guarantee payment of all costs of
development and construction of the Improvements, the ADA Ramp,
and the Project, to secure and guarantee payment of all impact
fees due of whatever nature, to secure and guarantee payment of
all connection and hook-up charges for all utilities, and to
secure and guarantee payment of timely payment of all billings or
charges relating to outfitting of the Project as required by this
Agreement and permitting, preparation of the Site Plan and
Construction Plans, and construction of the Project. All
construction costs envisioned by this Agreement for construction
of the Improvements and the Project pursuant to the Construction
Plans, and as otherwise provided by this Sub-Lease Agreement,
shall be paid by the SUB-LESSEE.

     Pursuant to Section 255.05(1), Florida Statutes,
simultaneous with the execution of this Agreement by both
parties, the SUB-LESSEE shall assure that the Construction Letter
of Credit is in form and substance acceptable to the Town Manager
and Town Attorney; that the Construction Letter of Credit

Melbourne Beach/J&BLease11a                                  3/12/09
                                       25
specifically contains references to the fact that it is issued
pursuant to Section 255.05, Florida Statutes, and is conditioned
upon the SUB-LESSEE’s and contractor’s performance of the
construction work for the Project, including but not limited to
the Improvements and the ADA Ramp, and performance of this
Agreement all in the time and manner prescribed in this Agreement
and promptly making payments to all persons as defined in Section
713.01, Florida Statutes, who furnish labor, services, or
materials for the prosecution of the work provided for in this
Agreement; that the Construction Letter of Credit has been
recorded in the Public Records of Brevard County, Florida; that
the original recorded Construction Letter of Credit is presented
to the TOWN; the SUB-LESSEE shall assure that the Construction
Letter of Credit shall include for informational purposes the
disclosures required by Section 255.05, Florida Statutes; and a
notice in conspicuous, bold type shall be conspicuously and
continuously posted prior to the commencement of construction and
throughout the construction process on the Real Property that any
potential claimant for payment of monies for prosecution of
construction as part of the Project or the supplying of material
for said Project shall be entitled upon request to the prompt
receipt of copies of both this Agreement and the Construction
Letter of Credit from the SUB-LESSEE.

               (2) The SUB-LESSEE’s failure to timely pay the
costs of all costs of development and construction of the
Improvements, the ADA Ramp, and the Project, and to assure that
and pay all billings or charges relating to outfitting of the
Project as required by this Agreement, including but not limited
to obtaining one wheel chair equipped for use on the sandy beach
a picture of which is included in Exhibit “C” (the “Beach Wheel
Chair”), and permitting, preparation of the Site Plan and
Construction Plans, and construction of the Project are timely
paid, funded, commenced and completed, in the sole discretion of
the TOWN, shall permit the TOWN to collect all monies from the
Construction Letter of Credit. The TOWN may collect all proceeds
from the Construction Letter of Credit for any of the following
purposes: to settle and pay said billings or construction
claims, to undertake and complete all costs of development and
construction of the Improvements, the ADA Ramp, and the Project,
to assure or pay for preparation and payment for all permitting,
preparation of the Site Plan and Construction Plans, to pay all
impact fees of whatever nature and to pay all connection and
hook-up charges for utilities, and to pay any attorneys’ or
paralegals’ fees expended by the TOWN related to payment of any
of the foregoing or defense of any claims or damages or
resolution of any liens.

               (3) If a construction lien, as generally defined
by Chapter 713, Florida Statutes, or a claim pursuant to Section

Melbourne Beach/J&BLease11a                                 3/12/09
                               26
255.05, Florida Statutes, is made against the Improvements or the
Real Property or any part thereof or is made against the SUB-
LESSEE, the SUB-LESSEE shall be fully liable for the resolution
of said claim or the removal of said lien or claim, and the
failure of the SUB-LESSEE to promptly settle said claim and
remove said lien, if any, shall entitle the TOWN to collect
monies form the Construction Letter of Credit.

               (4) The cost of outfitting the concession stand
with tables, furniture, cooking utensils, food supplies, cooking
equipment and the SUB-LESSEE’s personalty and the Beach Wheel
Chair shall be the sole expense of the SUB-LESSEE and shall not
be paid from said Construction Letter of Credit.

               (5) Final lien waiver and release of right to
make claim. Within thirty (30) days of the issuance of a
certificate of occupancy by the TOWN for the Improvements and the
ADA Ramp, the SUB-LESSEE shall present to the TOWN a copy of the
contractor’s final lien affidavit as described in Section
713.06(3)(d), Florida Statutes, together with properly executed
originals of all final releases of lien by the construction
contractor and all sub-contractors, sub-subcontractors, and
materialmen, AND a waiver of the right to make a claim against
the Construction Letter of Credit which waiver shall be in the
form prescribed in Section 255.05(2)(c), Florida Statutes, said
waiver being executed by the construction contractor and all sub-
contractors, sub-subcontractors, and materialmen. Upon
presentation of the final lien affidavit and waiver of the right
to make a claim against the Construction Letter of Credit, the
TOWN shall inspect the Improvements and the ADA Ramp to insure
that the construction has been completed consistent with this
Agreement and that the construction has been accomplished in a
workmanlike manner with the use of materials that are not of a
poor quality, all as reasonably determined by the Town Manager or
his designee. If it is determined by the Town Manager that the
construction has been completed consistent with this Agreement,
and that the construction has been accomplished in a workmanlike
manner with the use of materials that are not of a poor quality,
the TOWN may accept the Project construction as complete.

               (6) Term of Construction Letter of Credit. The
Construction Letter of Credit shall have a term of at least 780
days, and it shall remain in effect for at least sixty (60) days
after termination of this Agreement, unless collected upon by the
TOWN. Notwithstanding the foregoing, the Construction Letter of
Credit, less any monies to settle any claims or liens against the
Project, the Real Property, the ADA Ramp, or the SUB-LESSEE,
shall be released by the TOWN and returned to the SUB-LESSEE by
the TOWN not more than 100 days after the receipt of the
aforementioned final lien affidavit and a waiver of the right to

Melbourne Beach/J&BLease11a                                 3/12/09
                               27
make a claim against the Construction Letter of Credit which
waiver shall be in the form prescribed in Section 255.05(2)(c),
Florida Statutes, for both the concession stand/public restroom
building and the ADA Ramp. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, if anytime after the passage of 695 days after
the Effective Date of this Agreement and the posting of the
Construction Letter of Credit, the TOWN determines in its sole
and absolute discretion that the SUB-LESSEE has failed to timely
and properly complete construction of the concession stand/public
restroom building and the ADA Ramp as required by this Agreement,
the TOWN may collect all of the proceeds of the Construction
Letter of Credit. Thereupon this Agreement shall be terminated
at the option of the TOWN. This provision shall survive any
termination or expiration of this Agreement.

          (e)     All construction of this Project shall be
accomplished consistent with this Agreement and the Construction
Plans in a workmanlike manner of high quality, using materials of
high quality that will survive the adverse type of weather
conditions expected to occur by being placed near the ocean and
in the high salt air.         The SUB-LESSEE agrees to warrant
construction of the ADA Ramp against any defect or deterioration
of quality for a period of at least one (1) years after issuance
of a certificate of occupancy, certificate of completion or
similar certification issued by the building official indicating
a completion of construction.        To guarantee the aforesaid
warranty the SUB-LESSEE, simultaneous with the issuance of a
certificate of occupancy, certificate of completion or similar
certification issued by the building official indicating a
completion of construction of the ADA Ramp, shall present to the
TOWN a maintenance bond in the amount of 110% of the cost of the
construction of the ADA Ramp or $40,000, whichever amount is
greater.    The maintenance bond shall be issued by a surety
licensed by the Florida Insurance Commissioner to do business
within the State of Florida and whose license is in good standing
with that official.    The SUB-LESSEE as the principal under the
bond is obligated to protect the TOWN against any defects
resulting from faulty materials, faulty workmanship or faulty
design of the ADA Ramp, or deterioration of said materials, other
than normal wear and tear, for a period of one (1) year from the
issuance of the issuance of a certificate of occupancy,
certificate of completion or similar certification issued by the
building official indicating a completion of construction of the
ADA Ramp.   The condition of this obligation is such that if the
PRINCIPAL shall promptly and faithfully protect the TOWN against
any defects resulting from faulty materials, faulty workmanship or
faulty design of the aforesaid improvements, or deterioration of
said materials, other than normal wear and tear, for a period of
one (1) year from the issuance of the issuance of a certificate
of occupancy, certificate of completion or similar certification

Melbourne Beach/J&BLease11a                                 3/12/09
                                28
issued by the building official indicating a completion of
construction of the ADA Ramp, then the obligation of the
maintenance bond shall become null and void; otherwise, it shall
remain in full force and effect.

     The terms of the maintenance bond shall include provisions
that the TOWN shall notify the SUB-LESSEE, as the principal under
the maintenance bond, in writing of any defect for which the SUB-
LESSEE, as principal under the maintenance bond, is responsible
and shall specify in said notice a reasonable period of time
within which the SUB-LESSEE, as the principal under the
maintenance bond, shall have to correct said defect. If the SUB-
LESSEE, as the principal under the maintenance bond, shall fail to
correct such defect within the time specified in said notice, then
the SURETY shall have not more than (60) days thereafter within
which to take such action as it deems necessary to insure
performance of the SUB-LESSEE's obligation. If such defect is not
corrected after the expiration of such sixty-day period, then TOWN
shall have the right to correct such defect and the SUB-LESSEE and
the surety, jointly and severally, shall pay all costs and
expenses incurred by TOWN in correcting such defect; including but
not limited to, the engineering, legal and other costs, together
with any damages either direct or consequential, which the TOWN
may sustain on account of SUB-LESSEE's failure to correct such
defect.   In addition, the TOWN shall have the right to contract
for the correction of such defect and, upon acceptance of the
lowest responsible bid, the SUB-LESSEE and the surety shall become
immediately liable for the amount of the said bid; and, in the
event the TOWN commences legal proceedings for the collection
thereof, interest shall accrue on said amount at the rate of ten
percent (10%) per annum, beginning at the commencement of said
legal proceedings.   The TOWN, in its discretion, may permit the
surety to correct such defect in the event of the SUB-LESSEE's
failure to perform. In the event the TOWN commences suit for the
collection of any sums due hereunder, the SUB-LESSEE and the
surety, both as obligors, joint and severally, agree to pay all
costs incurred by the TOWN, including attorneys’/paralegals’ fees.
     If the Project is not properly completed by the SUB-LESSEE
within 695 days of the Effective Date of this Agreement and the
posting of the Construction Letter of Credit, if this Agreement
is terminated, or if the Work is abandoned by the SUB-LESSEE, and
the TOWN draws on the Construction Letter of Credit, the TOWN
shall not be obligated to complete the Project and may keep and
expend the monies and proceeds of the Construction Letter of
Credit without any obligation to complete the Project or complete
the Project in any manner.

     Upon successful completion of construction of the
Improvements and the ADA Ramp within not more than 695 days of

Melbourne Beach/J&BLease11a                                 3/12/09
                                29
the Effective Date of this Agreement and the posting of the
Construction Letter of Credit, as anticipated by this Agreement,
posting of the maintenance bond for the ADA Ramp, and acceptance
of the ADA Ramp by the TOWN, if each of the foregoing
requirements has been completed by December 31, 2010, the TOWN
shall pay to the SUB-LESSEE $25,000.

     This sub-section (e) shall survive the termination of this
Agreement.

     9.    Destruction of Leased Premises. In the event the Leased
Premises shall be partially damaged by fire, flood, or hurricane
or other elements, and the whole of such Leased Premises not be
rendered unfit for occupancy, the SUB-LESSEE shall, upon receipt
of the proceeds of insurance required by this Sub-Lease, promptly
repair the same. The rent shall not be abated proportionately or
otherwise as to that portion of the Leased Premises rendered
untenantable; provided, however, that if the food and concession
stand portion of the Leased Premises is rendered substantially
untenantable due to a natural disaster and the food and concession
stand portion of the Leased Premises is to be rebuilt, sixty (60)
after the date of the end of the natural disaster, all payment of
rent shall cease and shall not resume until the food and
concession stand is completely tenantable or the passage of one-
hundred eighty (180) days has passed since the suspension of rent,
whichever event shall first occur. Upon the passage of said one-
hundred eighty (180) days or upon the ability of the SUB-LESSEE to
inhabit the food and concession stand, the SUB-LESSEE shall be
required to recommence the payment of rent as provided for in this
Agreement. In the event the Leased Premises are totally destroyed
or are rendered wholly untenantable by fire, flood, or hurricane
or other elements, and if the SUB-LESSEE shall decide not to
restore or not to rebuild same, or if the building shall be
damaged such that the SUB-LESSEE may decide to demolish it, then
or in any of such events, the TOWN shall, within sixty (60) days
after such fire or other cause, or within fifteen (15) days after
receipt of insurance funds, whichever is sooner, give the SUB-
LESSEE notice in writing. Thereupon, the term of this Lease shall
expire by lapse of time upon the 30th day after such notice is
given, and the SUB-LESSEE shall vacate the Leased Premises and
surrender the same to the TOWN. Upon the giving of said notice,
all monies paid under any policies of insurance shall be payable
to and for the benefit of the TOWN. This provision shall survive
any termination of this Sub-Lease Agreement.    Provided, however,
if within the period of time provided by said notice given by the
TOWN to the SUB-LESSEE, the SUB-LESSEE shall decide that it wishes
to rebuild or restore the building without any costs to the TOWN,
it shall notify the TOWN in writing within the aforesaid thirty
(30) day period and shall further agree in writing to do the
following:

Melbourne Beach/J&BLease11a                                 3/12/09
                                30
            (a) Cause plans and a construction schedule for the new
       building or the new construction to be prepared; said plans
       to be in full accordance with all laws, building codes,
       zoning ordinances and all applicable statutory ordinances,
       and deliver the plans and schedule to the TOWN at least sixty
       (60) days before the work proposed to be done pursuant
       thereto is actually commenced; for purposes of this Sub-Lease
       and not for purposes of building permit approval, the TOWN
       shall accept or reject the same within twenty (20) days after
       such delivery;

            (b)    Comply with the provisions of Exhibit “A” and
       create an escrow fund to be held by the TOWN into which all
       insurance proceeds and monies for the full cost of the
       reconstruction of the building shall be paid and may be used,
       subject to this Section 9. for reconstruction of the
       building, which cost shall be evidenced by a bona fide
       estimate of a general contractor for total costs, overhead,
       and expenses contained in a cost plus construction contract,
       said contract to be subject to the reasonable approval of the
       TOWN, all of which evidence must be submitted by the SUB-
       LESSEE to the TOWN not later than thirty (30) days before the
       work itself starts. The escrow fund will be utilized to pay
       for the work as it progresses, upon the requisition of the
       contractor and the certificate of an architect supervising
       the work. Disbursements from such escrow fund will be made
       only upon the written order of the TOWN and the SUB-LESSEE,
       the TOWN binding itself, if it elects to exercise such joint
       control over the escrow fund, to approve progress payments
       promptly so long as the requisitions sought are earned and so
       long as the balance remaining in the escrow fund is
       sufficient to cause the work to be carried through to
       completion and full payment;

            (c) In any event, the work of reconstruction, repair
       and replacement must have a value of not less than the value
       of the building Improvements or the portion thereof then
       being replaced or repaired. If the cost of the construction,
       (including but not limited to the costs of preparation of
       plans, obtaining approval of the TOWN under this Sub-Lease,
       governmental agencies, or any mortgagee of the leasehold,
       preparation of estimates, obtaining of necessary governmental
       permits, construction of the building and negotiation of any
       contracts in connection therewith, and fees and costs of
       professionals and attorneys connected therewith) shall be
       less than the amount of insurance proceeds, the excess
       insurance proceeds over the cost of construction (as defined
       in this subparagraph) shall be paid over to the TOWN. Said
       excess proceeds shall not be paid over to the TOWN for its

Melbourne Beach/J&BLease11a                                   3/12/09
                                  31
       use free and clear of this Section until completion of
       construction and payment of all costs and fees connected
       therewith shall have been completed and finally settled; and

            (d) In the event the SUB-LESSEE gives notice to rebuild
       and the escrow fund is established or the performance and
       payment bonds are furnished to the TOWN by SUB-LESSEE, the
       TOWN shall cause the assignment of any insurance monies to be
       made to the SUB-LESSEE forthwith upon such furnishing of the
       bond or the establishment of escrow fund.

          Upon SUB-LESSEE's performance of the foregoing, the SUB-
LESSEE shall diligently and promptly cause the reconstruction or
restoration of the building in accordance with the approved plans
and   schedule,   all   applicable   governmental   laws,   rules,
regulations, and permits, and this Lease shall not terminate,
notwithstanding the TOWN's notice to SUB-LESSEE of TOWN's election
to terminate this Sub-Lease.     This Sub-Lease shall thereafter
continue for its complete term. In the event the Leased Premises
are totally destroyed or are rendered wholly untenantable and
neither the TOWN nor the SUB-LESSEE elects to restore or rebuild,
the rental, herein shall be terminated as of the date of the
destruction or casualty. Except as provided above, the payment of
rent by the SUB-LESSEE shall not be abated during any periods of
reconstruction.

     10. Quiet Enjoyment.     If and so long as the SUB-LESSEE
performs all of the SUB-LESSEE's obligations under this Sub-Lease,
the TOWN covenants that the SUB-LESSEE shall and may quietly hold
and enjoy the Leased Premises, subject to any applicable laws,
ordinances, and taking under the power of eminent domain, and to
the Standard Lease Provisions, set forth on the attached Exhibit
“A.”

     11. Recording.    The TOWN and the SUB-LESSEE shall file a
memorandum of this Lease in the Public Records of Brevard County,
Florida, which shall, at a minimum, recite the existence of this
Sub-Lease, the description of the Premises encumbered, parties to
this Sub-Lease, the term of the Lease, and the existence of the
options to extend said term, if any. Upon revision of this Sub-
Lease Agreement to include the surveyed legal description, the
memorandum of lease shall likewise be revised and said revision
shall be recorded in the Public Records of Brevard County,
Florida.

     12. Binding Effect.      The terms "TOWN" and "SUB-LESSEE"
include the successors and assigns of the parties (subject,
however, to the provisions of this Sub-Lease prohibiting or
restricting subleases and assignments). This Sub-Lease binds the
parties and their successors and assigns.

Melbourne Beach/J&BLease11a                                   3/12/09
                                  32
     IN WITNESS WHEREOF, the TOWN and SUB-LESSEE have caused this
Lease to be signed by their respective officers who are authorized
to do so, as of the day and year first stated above.



Signed, sealed, and delivered
in the presence of:                     TOWN:

                                        TOWN OF MELBOURNE BEACH,
                                        FLORIDA, a Florida Municipal
                                        Corporation
Sign:_________________________
Print Name:___________________
Address:______________________

Sign:_________________________          By:_______________________
Print Name:___________________             James D. Bursick, its
Address:______________________             Town Manager
______________________________
                                        DATE EXECUTED:____________



ATTEST:                                 (TOWN SEAL)


______________________________
Christina Hoffkins, TOWN Clerk



STATE OF FLORIDA              )
                              )   SS:
COUNTY OF BREVARD             )

     The foregoing instrument was acknowledged before me this ____
day of _________________________, 2009, by James Bursick, as TOWN
Manager, and Christina Hoffkins, as TOWN Clerk, both of the TOWN
of Melbourne Beach, Florida, a Florida Municipal Corporation, on
behalf of the corporation. He is personally known to me or has
produced ________________________ as identification.


                                        ___________________________
                                        Notary Public
                                        State of Florida at Large
                                        My commission expires:


Melbourne Beach/J&BLease11a                                      3/12/09
                                   33
BY ENTERING INTO THIS AGREEMENT, THE SUB-LESSEE ACKNOWLEDGES THAT
IT AND ITS OFFICERS HAVE HAD THE OPPORTUNITY TO CONSULT WITH AN
ATTORNEY-AT-LAW REGARDING THIS INSTRUMENT AND TO SEEK LEGAL ADVICE
REGARDING THIS INSTRUMENT.    THIS DOCUMENT UPON EXECUTION IS A
BINDING LEGAL OBLIGATION.

                                        SUB-LESSEE:

                                        J & B SANDWICHES INC.,
                                        a Florida Corporation
Sign:________________________
Print Name:__________________
Address:_____________________

Sign:_________________________          By:_______________________
Print Name:___________________             Bruce R. Black, its
Address:______________________             President
______________________________
                                        DATE EXECUTED:____________

                                        (CORPORATE SEAL)

STATE OF FLORIDA              )
                              )   SS:
COUNTY OF BREVARD             )

     The foregoing instrument was acknowledged before me this ____
day of _________________, 2009, by Bruce R. Black, as President of
J&B Sandwiches Inc., a Florida Corporation, on behalf of the
corporation. He is personally known to me or has produced
__________________________ as identification.


                                        ___________________________
                                        Notary Public
                                        State of Florida at Large
                                        My commission expires:




Melbourne Beach/J&BLease11a                                      3/12/09
                                   34
                                     EXHIBIT “A”
                              STANDARD LEASE PROVISIONS

     1.   REVERSION OF OWNERSHIP INTEREST TO LANDLORD: Ownership
interest in all structures built, improvements made, and fixtures
installed by the SUB-LESSEE, or at the SUB-LESSEE’s direction,
upon the Leased Premises during the initial term or any renewal
term of the Sub-Lease Agreement shall automatically vest in the
TOWN and the TOWN’s ownership, subject to rights of the lease
provided in this Sub-Lease Agreement. The Improvements
constructed by the SUB-LESSEE shall be deemed to be owned at all
times during the term of this Sub-Lease by the TOWN but sub-
leased by the SUB-LESSEE.
     2.   RENTAL IF LEASE IS EXTENDED FOR PERIOD JANUARY 1, 2020,
AND THEREAFTER: If the SUB-LESSEE opts to extend the term of this
Sub-Lease for an additional five (5) years for the period
commencing on January 1, 2020, the SUB-LESSEE shall pay rent, on a
triple net basis, as follows:

          (a) The portion of SUB-LESSEE’S Base Net Annual Rent
shall be recomputed and adjusted to an amount equal to ten
percent (10%) of the appraised value of all structures and
improvements existing on the Leased Premises at the commencement
of the renewal term (January 1, 2020); provided, that in no event
shall the recomputed and adjusted Base Net Annual Rent rate be
less than the Base Net Annual Rent rate effective on December 31,
2019. The appraisal shall be performed by a state certified
general real estate appraiser who is a Member of the Appraisal
Institute and whose principal office is located in Brevard County
and who is mutually agreed to by the TOWN and SUB-LESSEE. The
cost of the appraisal shall be shared equally by the TOWN and the
SUB-LESSEE; provided, that in no event shall the Town’s share of
said appraisal exceed $1,000.

          (b) Payment of New Base Net Annual Rent. Commencing on
January 1, 2020, the New Base Net Annual Rent shall be paid by the
SUB-LESSEE to the TOWN rent on an annual basis (the "New Base Net
Annual Rent") for each fiscal Sub-Lease year during the term
hereof after January 1, 2020, which New Base Net Annual Rent shall
be paid in equal monthly installments, payable on the first day of
each month in advance. The fiscal Sub-Lease year shall be deemed
to commence on January 1, 2020.

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                                         35
          (c) Adjustment to New Base Net Annual Rent. The New
Base Net Annual Rent for the first year of the Sub-Lease term
shall be as set forth in sub-section 2.(a) of this Exhibit “A”.
The New Base Net Annual Rent shall be adjusted and increased by
additional rent on the first day of the second fiscal year of the
extended term of this Sub-Lease (ie. – January 1, 2021) and every
one-year anniversary thereafter (the "Adjustment Dates"). The
TOWN shall advise SUB-LESSEE of the dollar amount of rental amount
increases pursuant to this sub-paragraph (c) at least fifteen (15)
days before SUB-LESSEE must remit said amount to the TOWN. If the
TOWN is late in advising the SUB-LESSEE of the increased and
adjusted Base Net Annual Rent due, that shall not excuse the SUB-
LESSEE from paying increased rents. Beginning with the first
Adjustment Date occurring during the second fiscal year of the
extended term of this Sub-Lease and for each Adjustment Date
thereafter, the New Base Net Annual Rent shall be adjusted
annually and shall be equal to the New Base Net Annual Rent for
the immediately preceding fiscal year of the extended term of this
Sub-Lease multiplied by a fraction, the numerator of which is the
Index (hereinafter defined) reported three (3) months prior to the
commencement of the forthcoming fiscal year, and the denominator
of which is the Index reported twelve (12) months earlier. By way
of example, if the first fiscal year of the extended term of this
Sub-Lease begins on January 1, 2020, and ends on December 31,
2020, the numerator of the fraction referred to above shall be the
Index as of September, 2020, and the denominator shall be the
Index on September, 2019. The Base Net Annual Rent, as so
adjusted, with the first day of each new fiscal Sub-Lease year and
continuing on the first day of each month thereafter until the
next Adjustment Date shall be the new and redefined Base Net
Annual Rent. Notwithstanding the foregoing provisions, regardless
of any calculations consistent with the Index and this Agreement,
in no event shall the Base Net Annual Rent, as adjusted from year
to year, decrease in any manner.

     For purposes of this paragraph, "Index" shall mean the index
numbers of retail commodity prices designated "CONSUMER PRICE
INDEX, ALL URBAN CONSUMERS, U.S. CITY AVERAGE, ALL ITEMS" (1982-
1984=100), not seasonally adjusted, prepared by the Bureau of
Labor Statistics of the U.S. Department of Labor. Any publication
by either the U.S. Department of Labor or the U.S. Department of
Commerce in which such index numbers are published shall be
admissible in evidence in any legal or judicial proceeding
involving this Lease without further proof of authenticity. In
the event the U.S. Department of Labor ceases to prepare and to
publish such retail commodity index numbers, the adjustment of
Annual Rent thereafter shall be according to the most closely
comparable commodity index published by the U.S. Department of
Labor; and if such is not determined by that Department, then the

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                                36
most closely comparable commodity index as determined by agreement
of the SUB-LESSEE and the TOWN; and in the absence of agreement,
then as determined by arbitration in accordance with the then
existing rules of the American Arbitration Association in which
three (3) arbitrators shall hear the matter, the cost of said
arbitrators to be equally borne by the TOWN and the SUB-LESSEE.

          (d) Sales Tax. The SUB-LESSEE shall also pay when due
all sales taxes or similar excise taxes imposed on the New Base
Net Annual Rent (as such is adjusted) payable hereunder.

          (e) Late Payment Interest. If the SUB-LESSEE fails to
pay any installment of the New Base Net Annual Rent or any other
payment or Additional Rent required under this Sub-Lease
(including without limitation, taxes, utilities that may be due
and payable to the TOWN and insurance premiums) within ten (10)
days of when due, the SUB-LESSEE shall be deemed in default and,
in addition to all remedies available at law or pursuant to this
Sub-Lease, the amount of the unpaid payment due to be paid
directly to the TOWN shall bear interest from the date when due at
the rate of 10% per year; provided, that under no circumstances
shall the interest rate exceed the then legal rate of interest.

          (f) Security Deposit. There will be a security deposit
required for performance of this extended Sub-Lease by the SUB-
LESSEE to be paid by the SUB-LESSEE not later than the
commencement of the extended term of this Sub-Lease. Said deposit
shall be in an amount of money equal to two months of Base Net
Annual Rent, said amount being the amount in effect for the first
month of the extended term of this Sub-Lease.

     3.   ASSIGNMENT: The SUB-LESSEE shall not assign this Sub-
Lease nor further sublet the Leased Premises, and the SUB-LESSEE
acknowledges the receipt of additional consideration from the TOWN
for this absolute prohibition. Notwithstanding the foregoing
absolute prohibition, no subletting or assignment that is approved
by the TOWN and the LANDLORD shall relieve J&B Sandwiches Inc.
from any of its obligations as SUB-LESSEE hereunder. Every
assignment and sublease that is approved by the TOWN and the
LANDLORD shall recite that it is and shall be subject and
subordinate to the provisions of this Sub-Lease, and all
attachments, exhibits, and amendments, and the termination and
cancellation of this Sub-Lease shall constitute a termination and
cancellation of every such assignment or sublease. In no event
shall the TOWN’s and the LANDLORD’s granting of consent to one or
more assignments, subleases, hypothecations, or transfers
constitute a waiver of the TOWN’s and the LANDLORD’s right to
continue to prohibit or to refuse consent as to subsequent
assignments, subleases, hypothecations, or transfers. This
prohibition against assigning or subletting shall be construed to

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                                37
include a prohibition against any assignment or subletting by
operation of law, without the express written consent of the TOWN
and the LANDLORD. The SUB-LESSEE agrees that use of the Leased
Premises or any portion thereof by the SUB-LESSEE or any sub-
operators or sub-management shall not diminish in any way rents
due to the TOWN from the SUB-LESSEE. If this Sub-Lease Agreement
is assigned, or if the Leased Premises or any part thereof is
sublet or occupied by anybody other than J&B Sandwiches Inc.,
with or without the TOWN’s and the LANDLORD’s consent, the TOWN
may collect rent directly from such assignee, SUB-LESSEE or
occupant, and apply the net amount collected to the rent herein
reserved. However, no such collection of rent shall be deemed a
waiver of this covenant, or shall be deemed the acceptance of
such assignee, sub-SUB-LESSEE or occupant as, or in place of, J&B
Sandwiches, Inc., or a release of J&B Sandwiches Inc., for
obligations on the part of J&B Sandwiches Inc. herein contained.
 Stock transfers, the issuance of additional stock, asset
transfers, cumulative stock issuance or transfer, any of which is
greater than 20% of corporate stock as of the Effective Date of
this Agreement, and any other ownership transfer of J&B
Sandwiches Inc., or any successor SUB-LESSEE shall be considered
an “indirect transfer” of this Sub-Lease. Such indirect
transfers shall not be permitted under this Sub-Lease.
Notwithstanding the foregoing, an indirect transfer of this Sub-
Lease shall be void and considered to be an event of default
under this Sub-Lease, unless obtained with the express written
consent of the TOWN and the LANDLORD prior to any such transfer
or change in ownership or management. The TOWN and the LANDLORD
during the term of this Sub-Lease shall be permitted to have and
by these presence do have an immediate right at anytime to review
corporate and company records of the SUB-LESSEE relating to stock
transfers, asset transfers, and any other ownership transfer at
any reasonable time during regular business hours of the TOWN,
and all such records shall be maintained within the corporate
limits of Melbourne, Indialantic, or Melbourne Beach, at all
times. Copies of said records may be made by the TOWN at such
reasonable times. The SUB-LESSEE shall be required to notify the
TOWN in writing of any stock transfer and/or stock issuance which
after the Effective Date of this Sub-Lease cumulatively exceeds
20% of the total stock in existence on the Effective Date of this
Sub-Lease Agreement. Notice shall be given to the TOWN within
ten (10) days after said stock transfer or stock issuance. If a
stock transfer, stock issuance, asset transfers, or any other
ownership transfer of J&B Sandwiches Inc., in violation of this
Agreement, occurs which has not been approved by the TOWN and the
LANDLORD, this Sub-Lease shall be in default, and this Sub-Lease
Agreement may be cancelled by the TOWN or other provisions and
relating to default may be applicable, in the sole determination
of the TOWN and the LANDLORD. The TOWN may thereupon collect all
existing proceeds, if any, under the Construction Letter of

Melbourne Beach/J&BLease11a                                 3/12/09
                               38
Credit. Any assignment or sublease, whether direct or indirect,
without the express written consent of the TOWN and the LANDLORD
shall be void ab initio.
       4.      ALTERATIONS:

          (a) After completion of construction and issuance of
the certificate of occupancy or certificate of completion by the
TOWN’s Building Official, the SUB-LESSEE shall not make any
alterations, additions or improvements to the Leased Premises or
any part thereof (exclusive of its obligations to repair as set
forth in this Exhibit “A”), whether in pursuit of construction of
the sandwich sale establishment on the Leased Premises or
alterations inside or outside of the building located on the
Leased Premises, without the prior written consent of the TOWN,
which consent shall not be unreasonably withheld; provided that,
the requested alteration, addition or improvement does not impair
or diminish the value of the Leased Premises to the TOWN and the
LANDLORD. The SUB-LESSEE acknowledges the receipt of additional
consideration from the TOWN for this absolute prohibition. All
alterations shall be paid for by the SUB-LESSEE, excluding the
initial construction of the Improvements as provided in this Sub-
Lease. Approval of Development Permits by the Town for any
alterations or repairs shall not be construed to be the written
approval of the TOWN to undertake construction on, or make
alterations to, the Leased Premises. Notwithstanding the
foregoing provisions in this Section 4.(a) that the TOWN shall not
unreasonably withhold consent to construction or alteration of the
Leased Premises proposed by the SUB-LESSEE, the foregoing
provisions shall not be construed as contracting away the TOWN’s
police power rights, and the TOWN, its Commission, its Building
Official, Planning and Zoning Board, and Board of Adjustment,
shall have full rights to deny, approve, or approve with
conditions any and all Development Permits on the Leased Premises.
As used in this Sub-Lease and this Exhibit “A”, the term
“Development Permit” shall be defined as set forth in Section
163.3164, Florida Statutes. All additions, fixtures, equipment or
other things installed by the SUB-LESSEE upon the Leased Premises,
if not affixed to the realty, and all trade fixtures, trade
machinery and equipment used in the SUB-LESSEE's operations,
whether or not affixed to the realty, shall remain the full
property of the SUB-LESSEE, and the SUB-LESSEE shall have and is
hereby given the right prior to the expiration or earlier
termination of this Sub-Lease to remove the same; provided, that
the SUB-LESSEE shall first have paid all rentals and other sums
theretofore payable by it hereunder and shall have performed all
the terms and provisions of this Sub-Lease, including the repair
of (or payment to the TOWN in lieu thereof) for any damages caused
by pipes, machinery and equipment, or the removal of such
fixtures, pipes, lines, and wires. As provided in Section 1. of

Melbourne Beach/J&BLease11a                                  3/12/09
                                39
this Exhibit “A,” any property, fixtures, or equipment of the SUB-
LESSEE that is not removed by the expiration or termination of
this Sub-Lease shall, at the option of the TOWN become the
property of the TOWN. Any damages to the Leased Premises caused
by the installation or removal of said additions, fixtures,
equipment, furnishing, or other things installed by the SUB-LESSEE
shall be promptly repaired and the cost of such repairs paid as
Additional Rent by the SUB-LESSEE, whether said repairs are made
by the SUB-LESSEE or the TOWN. This Section 4.(a) shall survive
termination of this Sub-Lease.

           (b) TOWN and LANDLORD's Interest Not Subject to Liens.
All persons to whom these presents may come known are put upon
notice of the fact that the SUB-LESSEE shall never, under any
circumstances, have the power to subject the interest of the TOWN
or the LANDLORD in the Leased Premises to any construction,
mechanics' or materialmen's lien or liens of any kind. All
persons who may hereafter, during the term of this Sub-Lease,
furnish work, labor, services or materials to the Leased Premises,
upon the request or order of the SUB-LESSEE, or any person
claiming under, by or through the SUB-LESSEE, must look wholly to
the resources of the SUB-LESSEE for payment and not to that of the
TOWN or the LANDLORD. Notwithstanding anything to the contrary in
this Agreement, the TOWN agrees that the TOWN will execute a
LANDLORD’s lien waiver of any LANDLORD's lien or right of lien,
whether statutory or otherwise, that the TOWN may now have or
hereafter acquires against any personal property or trade fixtures
of the SUB-LESSEE, now or hereafter located upon the Leased
Premises. This sub-section (b) shall be included in the
memorandum of lease to be recorded in the Public Records of
Brevard County, Florida, pursuant to Section 11. of the Sub-Lease
Agreement.

          (c) SUB-LESSEE’s Obligation to Remove Liens. The SUB-
LESSEE shall not permit or suffer to be filed or claimed against
the Leased Premises during the term of this Sub-Lease any lien or
liens of any kind arising out of the action of the SUB-LESSEE; and
if any such lien be claimed or filed, the SUB-LESSEE covenants to
cause the Leased Premises to be released from such claim or lien,
either through the deposit into court pursuant to statute of the
necessary sums of money, or in the Leased Premises from the claim
within thirty (30) days from the filing of such lien. This
Section 4.(c) shall survive termination of this Sub-Lease.

     5.   ASSIGNMENT OF RENTS: As additional security under this
Sub-Lease Agreement, the SUB-LESSEE assigns, transfers, and sets
over unto the TOWN all of the rents for the Leased Premises
accruing to the SUB-LESSEE or J&B Sandwiches Inc. pursuant to any
assignment or sublease whether approved by the TOWN and the
LANDLORD or not; this assignment shall become operative upon any

Melbourne Beach/J&BLease11a                                  3/12/09
                                40
default by either of J&B Sandwiches Inc. or the SUB-LESSEE under
the terms of this Sub-Lease Agreement and shall remain in full
force and effect so long as any default continues to exist in the
making of any of the payments or performance of any of the
covenants of the Sub-Lease Agreement, and the TOWN shall have the
right to collect same directly from the person(s) or entity in
possession. This provision shall survive any termination of this
Agreement.

     6.   NO ABATEMENT OF RENTS: Except as specifically
permitted in Section 9. of the main body of this Sub-Lease or
elsewhere in this Sub-Lease Agreement, no diminution or abatement
of rent or offset shall be claimed or allowed for any reason
whatsoever. If the SUB-LESSEE has a disagreement or claim
arising from this Sub-Lease Agreement or the Leased Premises, the
SUB-LESSEE shall make such disagreement or claim known to the
TOWN in writing, but the SUB-LESSEE shall continue to pay all
rents, fees and applicable federal, state, and local taxes, fees,
and assessments as they become due. Failure by the SUB-LESSEE to
pay all monies as they become due may be deemed a default under
the terms of this Sub-Lease Agreement at the TOWN’s sole option.
       7.      LIMITATION ON TOWN’S LIABILITY:

          (a) The SUB-LESSEE accepts the condition of the Leased
Premises now, and the Improvements as constructed, as is and
recognizes and agrees to fully assume all risks, known and
unknown, that arise or might arise incidental to, arising out of,
or in any way connected with use of the Leased Premises, and on
behalf of itself, its successors, assigns, administrators,
receivers, and trustees, releases and forever discharges the
TOWN, and the LANDLORD, its or their elected officials, officers,
employees, agents, volunteers, all in their official and personal
capacities, their successors, and assigns, of and from any and
all liabilities, claims, demands, defenses, damages, actions,
costs, or expenses of any nature, known or unknown, arising out
of or in any way connected with this Sub-Lease or the use of the
Leased Premises by the SUB-LESSEE, its employees, volunteers,
trespassers, and invitees. The SUB-LESSEE understands and agrees
that this release and covenant not to sue includes claims based
on the negligence, actions, omissions, or inaction of the TOWN
and the LANDLORD and the other above released individuals and
entities and covers any cause or condition whatsoever, including,
but not limited to, bodily injury, death, and property damage or
loss.

          (b) The TOWN and the LANDLORD shall not be liable to
the SUB-LESSEE for any claim for compensation or any losses,
damages or injuries, including but not limited to payment of
attorneys’ or paralegals’ fees and court costs, sustained by the

Melbourne Beach/J&BLease11a                                 3/12/09
                                    41
SUB-LESSEE resulting from failure of any water supply or sewer
service, heat or electrical current, whether on the surface or
underground, including, but not limited to, stability, moving,
shifting, settlement, or displacement of materials by fire,
water, windstorm, hurricane, tropical storm event, tornado, act
or state of war, civilian commotion or riot, or any other cause.
The TOWN and the LANDLORD, by way of example, shall not be liable
for any damage to the SUB-LESSEE's property or injuries caused by
water from bursting or leaking pipes, waste water about the Leased
Premises, or otherwise; or from an intentional or negligent act of
any occupant or invitee of the Real Property or any other land
surrounding the Leased Premises, or any other person; or by fire,
hurricane, tornado, tropical storm event, flood, or other acts
of God; or by riots, criminals, or vandals; or from any other
cause; all such risks hereby fully assumed by the SUB-LESSEE. The
TOWN and the LANDLORD shall not be required to furnish any
services or facilities to, or to make any repairs to or
replacements or alternations of, the Leased Premises where
necessitated due to the fault of SUB-LESSEE, its agents and
employees or due to any third parties or acts of God. Further,
the SUB-LESSEE hereby covenants to undertake such necessary
repairs, replacements or alternations to the Leased Premises at
the SUB-LESSEE's sole cost and expense.
       8.      TAXES:

          (a) In the event that taxes are legally imposed, the
SUB-LESSEE is solely responsible for all taxes, if any, imposed
under Section 212.031, Florida Statutes, or as that provision and
its implementing rules may be amended, interpreted, or superseded
from time to time, by the Florida Legislature or the Florida
Department of Revenue or locally imposed through a surtax,
accruing during the term of the Sub-Lease Agreement or any
renewal thereof. In the event that taxes are legally imposed,
the SUB-LESSEE is solely responsible for all ad valorem and non-
ad valorem taxes, impact fees, and assessments levied, if any,
against the Leased Premises and the buildings or personalty on
the Leased Premises, accruing during the term of this Sub-Lease
Agreement or any renewal thereof. The SUB-LESSEE shall pay all
such legally imposed taxes, fees, or special assessments directly
to the respective taxing authority. All ad valorem and non-ad
valorem taxes that are legally imposed shall be paid directly to
the Brevard County tax collector’s office on a quarterly basis.
If applicable, the SUB-LESSEE shall be responsible for timely
electing the quarterly tax payment program with the Brevard
County tax collector’s office, and shall continue participation
during the term of the Sub-Lease Agreement, including renewal
periods, if any. If such election is applicable, within ten (10)
days after execution of this Sub-Lease Agreement, or as soon
thereafter as feasible, dependent upon the Brevard County tax

Melbourne Beach/J&BLease11a                                  3/12/09
                                42
collector’s office, the SUB-LESSEE shall provide the TOWN with
documentation from the Brevard County tax collector’s office
stating that the required election has been made. If such
election is applicable, the SUB-LESSEE shall provide such
documentation annually. Upon payment of taxes, as stated above,
the SUB-LESSEE shall promptly send to the TOWN the original or a
copy of each receipt, and the SUB-LESSEE shall otherwise furnish
the TOWN from time to time, as the TOWN may reasonably request,
proofs and assurances that all taxes that SUB-LESSEE is obligated
to pay have been paid. If the term of this Sub-Lease begins or
ends other than on the first day of the taxing or assessment
period, and this Sub-Lease terminates before the amount of taxes
for the then current taxing or assessment period is ascertainable,
the SUB-LESSEE shall, at least sixty (60) days prior to the
termination date, pay the TOWN the estimated amount for which the
SUB-LESSEE is obligated, calculated on the basis of the then
latest available information, and as soon as the actual amount of
taxes can be ascertained, the parties shall promptly make an
appropriate cash adjustment.

          (b) The SUB-LESSEE acknowledges that any taxes legally
imposed on the leasehold under Section 212.031, Florida Statutes,
or as that provision and its implementing rules may be amended,
interpreted, or superseded from time to time, by the Florida
Legislature or the by the Florida Department of Revenue or
locally imposed through a surtax, if any, are imposed against the
SUB-LESSEE, and not on the TOWN or the LANDLORD. The SUB-LESSEE
acknowledges that any ad valorem taxes legally imposed on the
leasehold under Section 196.199, Florida Statutes (taxation of
government leaseholds), any non-ad valorem taxes, fees, impact
fees and assessments, if any, are the responsibility of the SUB-
LESSEE, and that the TOWN and the LANDLORD, as governmental
entities, are immune or exempt from such imposition.

          (c) If the SUB-LESSEE fails to pay all taxes as
provided above, the TOWN may pay (but shall not be obligated to
pay) the same, and upon written request subject to grace periods
the SUB-LESSEE shall be in default and in addition to all other
remedies available at law or under this Agreement, the TOWN may,
but is not obligated to, take such measures as the TOWN deems
appropriate to pay such taxes and, upon written request. The SUB-
LESSEE shall immediately reimburse the TOWN as Additional Rent for
the amount thereof (including all interest and penalties
attributable thereto) plus interest at the rate of 10% per annum;
provided, that under no circumstance shall this charge exceed the
then legal rate of interest.

          (d) This Section 8. shall survive the termination of
this Agreement.


Melbourne Beach/J&BLease11a                                  3/12/09
                                43
     9.   INDEMNIFICATION: The SUB-LESSEE shall indemnify the
TOWN and the LANDLORD and hold the TOWN and the LANDLORD harmless
from and against all costs, attorneys’ and paralegals’ fees
(whether arising from litigation or settlement negotiations before
or during litigation), court costs, liabilities, expenses, losses,
claims, damages, injuries or obligations pertaining to the Leased
Premises or the operation, repair, or maintenance thereof, and the
use by the public, the operation by the SUB-LESSEE of a service to
make available the Beach Wheel Chair to the public, maintenance
and all safety measures (or omissions related thereto) with regard
to the Beach Wheel Chair, or making available of the Beach Wheel
Chair to the public, all including but not limited to bodily
injury (including death), property damage, or nuisance caused or
alleged to be caused by the SUB-LESSEE (including but not limited
to the SUB-LESSEE's employees, agents, volunteers,
representatives, trespassers, and invitees) or otherwise arising
out of or connected with the SUB-LESSEE's leasehold ownership or
use of the Leased Premises or the SUB-LESSEE's activities on or
about the Leased Premises and not caused by the gross negligence
or willful and wanton misconduct of the TOWN or the LANDLORD. The
SUB-LESSEE shall indemnify the TOWN and the LANDLORD and hold the
TOWN and the LANDLORD harmless from and against any fine, penalty,
liability, or cost arising out of the SUB-LESSEE's violation of
any law, ordinance, or governmental regulation applicable to the
SUB-LESSEE's use or occupancy of the Leased Premises or the SUB-
LESSEE's activities or omissions (including those of the SUB-
LESSEE’s employees, agents, volunteers, trespassers,
representatives, and invitees), on or about the Leased Premises,
including but not limited to actions taken by SUB-LESSEE pursuant
to provisions in this Sub-Lease and Exhibit “A” for Alterations,
Construction of Improvements, Maintenance and Repairs, and
Environmental Provisions; failure to train employees or
representatives; making available, maintenance or deteriorated
condition, operation, or use, all of the Beach Wheel Chair; and
failure to supervise employees, agents, or volunteers. The TOWN
and the SUB-LESSEE agree that the indemnification set forth in
this Section 9. includes reasonable attorneys’ and paralegals’
fees incurred by the TOWN or the LANDLORD due to the matters
covered by this indemnification. With regard to environmentally
related matters and claims, injury or damage related thereto, this
Section 9. and other provisions of this Exhibit “A” regarding
environmental indemnification shall be read in conjunction to
provide the TOWN and the LANDLORD with the broadest
indemnification provided herein.

     10. INSURANCE: The SUB-LESSEE shall also at all times
during the term of this Sub-Lease (including any extensions
hereof) and during any holdover, continuously maintain during the
term of this Agreement, insurance at the SUB-LESSEE's sole cost
and expense, with respect to the Leased Premises, and the making

Melbourne Beach/J&BLease11a                                  3/12/09
                                44
available of the Beach Wheel Chair, maintenance thereof, and any
claims by the public with regard to the use or lack of maintenance
or deteriorated condition of the Beach Wheel Chair, all for the
protection and benefit of the TOWN, the LANDLORD and the SUB-
LESSEE as set forth below.

          (a) Commercial General Liability Insurance. The SUB-
LESSEE shall procure, maintain and pay for commercial general
liability insurance providing all risks coverage which protects
the TOWN, the TOWN’s elected officials, employees, officers and
agents, all in their official and personal capacities, and the
SUB-LESSEE, from claims arising from bodily injury, property
damage, operations, Leased Premises and fire legal liability.
Such insurance coverage shall have a combined single limit of not
less than $1,000,000.00. Coverage shall be provided in a form no
more restrictive than the latest edition of the commercial
general liability policy filed by the Insurance Services Office.
The SUB-LESSEE’s insurance shall be primary and any other
insurance maintained by the TOWN shall be in excess of and shall
not contribute with SUB-LESSEE’S insurance. Said insurance shall
name the TOWN as an “additional insured” with the SUB-LESSEE.

          (b) Property Insurance. During the full term of this
Sub-Lease Agreement, at the SUB-LESSEE’s sole cost and expense,
the SUB-LESSEE shall provide, maintain, and pay for a property
insurance policy providing coverage of not less than 100% of the
insurable replacement value, without deduction for depreciation,
for the demised Leased Premises of which any buildings are a
part, including any improvements and betterments which may be
insurable as part of the realty. Said property insurance shall
cover the improvements and betterments from loss due to fire,
windstorm, flood and any other peril included in the broadest
available standard form of extended coverage. Coverage shall be
in an amount sufficient to meet the co-insurance requirements of
the policies, but not less than the full insurable value thereof.
Deductibles for all perils, except windstorm, shall not be
greater than two (2%) percent of the full insurable replacement
value, without deduction for depreciation, for the demised Leased
Premises of which any buildings are a part, including any
improvements and betterments which may be insurable as part of
the realty. Deductibles for windstorm damages shall not exceed
live (5%) percent of the full insurable replacement value,
without deduction for depreciation, for the demised Leased
Premises of which any buildings are a part, including any
improvements and betterments which may be insurable as part of
the realty. Regarding flood insurance, said insurance shall be
obtained in the maximum amount obtainable; provided, that the full
insurable value shall not exceed the actual replacement cost of
the structure(s). The policies shall be endorsed to make any
loss payments payable jointly to the SUB-LESSEE and the TOWN for

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                                45
losses covered under such policies, which policies shall name the
TOWN as a “Loss Payee” under such policies.

     In the event of damage and/or destruction to the buildings,
improvements, betterments and equipment, all proceeds from such
policy shall be utilized by the SUB-LESSEE to repair and/or
replace the damaged or destroyed buildings, improvements,
betterments and equipment. The SUB-LESSEE may request consent
from the TOWN not to repair and/or replace the damaged or
destroyed buildings, improvements, and equipment. The TOWN, in
its sole discretion, may either accept or reject the SUB-LESSEE’s
request not to repair and/or replace. If the TOWN rejects SUB-
LESSEE’s request not to repair and/or replace, then the SUB-
LESSEE must utilize all insurance proceeds to repair and/or
rebuild pursuant to this paragraph. If the TOWN consents to the
SUB-LESSEE’s request not to repair and/or replace, then the
insurance proceeds shall be paid to the TOWN.

     As soon as is reasonably possible after damage and/or
destruction to the buildings, improvements, betterments and
equipment, but no later than twelve (12) months after said damage
and/or destruction, the SUB-LESSEE shall, at the SUB-LESSEE’s
sole expense (using insurance proceeds available for that
purpose, along with SUB-LESSEE’s own funds), commence to either
repair or restore the buildings, improvements, betterments and
equipment as completely as possible to their condition
immediately prior to the damage, or, in the alternative, replace
the structures, improvements, betterments and equipment with
structures approved in advance, in writing, by the TOWN.

     In the event any insurance proceeds of such policy shall
remain unused after the completion of restoration or rebuilding
to the TOWN’s satisfaction, evidenced in writing, and if the SUB-
LESSEE shall not be in default under the Sub-Lease Agreement,
then the remaining funds shall be paid to TOWN for any unpaid
rent and other sums due, with any remaining sum paid to the SUB-
LESSEE.

     The SUB-LESSEE, at the SUB-LESSEE's sole cost and expense,
shall also maintain, on all of its equipment, personal property,
and inventory on the Leased Premises, fire insurance and casualty
coverage to the extent of at least eighty percent (80%) of the
replacement value thereof, the proceeds of which, in the event of
a loss, will be payable to the SUB-LESSEE. Neither the TOWN nor
the LANDLORD shall, in any event, be liable to SUB-LESSEE for any
damage, injury, or destruction to said personal property.

          (c) All insurance required by this Section shall be
with a company licensed to do business in the state of Florida,
and be otherwise satisfactory to the TOWN. All insurance shall

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                                46
be issued by companies rated by A.H. Best’s Rating Guide as A+ or
better with a financial quality rating of VII or better.
Insurance shall not be claims made insurance but shall be
occurrence based.

          (d) Recognizing the extended term of the Lease
Agreement, the SUB-LESSEE agrees that the TOWN shall have the
right to periodically review the adequacy of the required
insurance, minimum limits of coverage, and unilaterally amend the
insurance requirements of this section. Factors which may be
considered include, but are not limited to, changes in generally
accepted insurance industry standards and practices, changes in
the SUB-LESSEE’s use of the Leased Premises, measurable changes
in local and national economic indicators, changes in any TOWN
insurance policies, limits of ocverage, and procedures, and
changes in the likelihood or potential of increased court verdict
amounts.

           (e)  The insurance policies shall name the TOWN as an
additional insured (or if so provided herein, as a “loss payee”)
and shall include provision for at least thirty (30) days advance
notice to the TOWN Manager of the TOWN of Melbourne Beach by the
insurer prior to any policy change, amendment, termination,
cancellation, non-renewal, or expiration of coverage. As of the
Effective Date hereof, the SUB-LESSEE shall cause the insurer to
provide proof in the form of actual insurance policies or
insurance company certified declaration page coverages with the
endorsements showing the TOWN of Melbourne Beach, Florida, as an
“additional insured” or “loss payee,” as appropriate, of the
required insurance to the TOWN before the SUB-LESSEE takes
possession of the Leased Premises and shall cause the insurer to
continue to supply such proof to the TOWN on not less than a
yearly basis for each term of coverage. Certificates of
insurance are not acceptable proof of coverage of the insurance
required by this Sub-Lease. The SUB-LESSEE’s insurance shall be
primary and any other insurance maintained by the TOWN shall be
in excess of and shall not contribute with the SUB-LESSEE’s
insurance.

          (f) In the event that SUB-LESSEE should fail for any
reason to procure or maintain insurance coverage at the minimum
amounts required herein or otherwise consistent with this Sub-
Lease, or at the written request of the SUB-LESSEE, the TOWN, at
the TOWN’s sole discretion, may secure insurance coverage at the
SUB-LESSEE’s expense, or may declare the SUB-LESSEE in default.
The SUB-LESSEE shall reimburse the TOWN for the cost of such
insurance coverage secured by the TOWN within thirty (30) days of
SUB-LESSEE’s receipt of an invoice from the TOWN for such
insurance coverage. The SUB-LESSEE shall be responsible for the
payment of any applicable deductibles set out in the insurance

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                               47
policy secured by the TOWN. Any billing for insurance by the
TOWN shall be regarded as additional “rent”, which if not paid
within said thirty (30) day time period shall bear interest at
the rate of 10% per year on the amount so paid by the TOWN;
provided, that in no event shall the interest rate ever exceed
the then lawful rate of interest.
       11.     USE OF LEASED PREMISES; RESTRICTIONS ON USE:

          (a) The SUB-LESSEE agrees to observe and obey all
laws, ordinances, rules and regulations promulgated and enforced
by the TOWN and by any other proper authority having jurisdiction
over the conduct of operations at Ocean Park and on the Real
Property, and all further revisions or amendments thereto.
Further, the SUB-LESSEE agrees that the SUB-LESSEE shall not
occupy or use or permit or suffer the Leased Premises or any part
thereof, to be occupied or used for any unlawful or illegal
business or purpose, nor in such manner as to constitute a
nuisance of any kind, nor for any purpose or in any way in
violation of any present or future laws, rules, requirements,
orders, ordinances, regulations of the United States of America,
or of the State, County, or TOWN government, or their
administrative boards or agencies. The SUB-LESSEE shall not use
or allow the use of the Leased Premises in any manner that
constitutes waste, that constitutes a nuisance, or that materially
increases the fire hazard.

          (b) The SUB-LESSEE expressly agrees for itself and the
SUB-LESSEE’s successors and assigns, to prevent any use of the
herein described Leased Premises which would interfere with or
adversely affect the operations or maintenance of the Park, or
otherwise constitute a hazard.

          (c) The SUB-LESSEE may use the Leased Premises only for
the sale of food and non-alcoholic beverages and sundry items.
The sale of beverages such as beer, wine, and liquor is strictly
prohibited. In addition to the sale of food and drink, the SUB-
LESSEE may sell sundry items, such as suntan lotion, sunglasses,
and the rental of beach chairs; provided, that in no event shall
the sale of sundry items on the Leased Premises take up the
majority of the floor area of the concession facility for the sale
of food and drink. The calculation of floor area shall exclude
the floor area of the public restroom portion of the building and
outdoor areas. It is the clear intent of this provision that the
primary and overwhelmingly predominant use of the concession
facility for the sale of food and drink is to be the sale of food
and drink. Violation of the foregoing two sentences shall be a
material breach of this Agreement. The concession stand shall not
operate or dispense food or drink before 7 AM nor later than 7 PM
at anytime without the written approval of the Town signed by the

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                                    48
Town Manager. The SUB-LESSEE shall be required to operate a wheel
chair facility for any disabled and handicapped members of the
public for the purpose of using the wheel chair ramp to access the
beach. The wheel chair facility shall at all times have at least
one wheel chair suitable for use on the sandy beach in fully
operable condition available for use by the public. No member of
the general public shall utilize the Beach Wheel Chair for a
period of longer than two (2) hours, but this time requirement may
be varied from time to time by agreement of the SUB-LESSEE and the
TOWN through its Town Manager. The SUB-LESSEE shall be authorized
to require a deposit for use of the Beach Wheel Chair, and the
SUB-LESSEE shall work cooperatively with the TOWN through its Town
Manager to develop a schedule of acceptable deposits. The SUB-
LESSEE and the TOWN through its Town Manager shall cooperatively
work to develop appropriate rules and regulations regarding the
use of the Beach Wheel Chair, which rules may be amended from time
to time by the SUB-LESSEE and the TOWN through its Town Manager.
There shall be no living quarters on the Leased Premises. In
consideration of the payment of Ten and 00/100 Dollars, of
additional consideration, the receipt and sufficiency all of which
is acknowledged by the SUB-LESSEE, the SUB-LESSEE agrees that it
shall erect no sign on the Leased Premises visible from locations
outside the Leased Premises, unless the wording and symbols have
first been approved in writing by the TOWN, and it is further
agreed that the TOWN may deny said approval for any reason. Any
signage erected by the SUB-LESSEE on the Leased Premises shall
comply with the signage restrictions of the TOWN’s 6-B zoning
district.

          (d)   In consideration of the payment of Ten and 00/100
Dollars, of additional consideration, the receipt and sufficiency
all of which is acknowledged by the SUB-LESSEE, the SUB-LESSEE
expressly agrees for itself and its successors and assigns, that
temporary structures shall not be allowed on the Leased Premises
without the written permission of the TOWN’s Town Manager and the
proper permitting by the TOWN of Melbourne Beach. Any structure
that is not permanently attached to a properly engineered poured
concrete foundation shall be considered a temporary structure.
       12.     RESPONSIBILITY FOR AND MAINTENANCE OF LEASED PREMISES:

          (a) The SUB-LESSEE agrees that the TOWN shall have no
responsibility for the maintenance of the Leased Premises,
including any improvements thereon, and that the SUB-LESSEE
shall, at SUB-LESSEE’s own expense, keep in good order and
repair, inside and out:

                 (1) any building on the Leased Premises herein
       described, and all structural attributes, including roofs,
       of such buildings: and

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                                    49
                 (2) all equipment located within any buildings,
       including, but not limited to, the air conditioning,
       machinery, plumbing, wiring, pipes, gas, steam, and
       electrical fittings, and all other equipment. The SUB-
       LESSEE further agrees, from time to time, to make renewals
       and replacements of such equipment so that, at all times,
       any building and its equipment will be in good operating
       condition, order, and repair. The replacements and renewals
       made by the SUB-LESSEE shall be constructed to the then
       current building codes, modern in character and efficiency,
       and of a quality at least equal to the original structures,
       improvements, betterments, and equipment and sufficient for
       the same service.

               (b)     The SUB-LESSEE further agrees:

                 (1) To keep the Leased Premises, including all
       vestibules, entrances and returns located therein, all
       improvements thereon, and all windows, doors and glass or
       place glass fixtures, in a neat and clean condition at all
       times; and to refrain from painting or otherwise covering the
       same, or making any changes thereto or to the front of the
       Leased Premises.

                 (2) To store all trash and garbage in adequate
       containers maintained in a neat and clean condition and
       located as the TOWN shall from time to time reasonably
       designate and so as not to create or permit any health or
       fire hazard, and arrange for regular removal thereof at SUB-
       LESSEE's expense. If the TOWN requires the same, all garbage
       and trash must be compacted in the manner and in a location
       in or outside the Leased Premises as reasonably required by
       the TOWN.

                 (3) Not to burn any papers, trash or garbage of
       any kind in or about the Leased Premises.

                 (4) Not to use or operate any equipment, fixtures,
       or machinery which in the TOWN's reasonable opinion is
       harmful to the Leased Premises (unless such suitable
       precautions as the parties shall reasonably deem appropriate
       are taken).

                 (5) To keep the Leased Premises clean, orderly,
       sanitary and free from termites, insects, vermin and other
       pests, and not to keep any live animals of any kind, in, upon
       or about the Leased Premises. Any program of extermination
       and the company or person performing the same shall be
       subject to the TOWN's approval, not to be unreasonably

Melbourne Beach/J&BLease11a                                    3/12/09
                                        50
       withheld. If the TOWN establishes any pest, vermin or
       extermination program for all or part of the Leased Premises,
       it may require SUB-LESSEE to participate in such program;
       and, the SUB-LESSEE covenants to reimburse the TOWN for the
       reasonable cost thereof as estimated by the TOWN, including
       but not limited to the TOWN's reasonable expense in
       administering the same, all as Additional Rent.
                 (6) To comply with any and all requirements of any
       governmental authorities and to save the TOWN harmless from
       penalties, fines, costs, expense or damages resulting from
       failure to do so.
       13.     DEFAULT:

          (a)    Default in Payment of Rent. Should the SUB-
LESSEE fail to pay to the TOWN any installment of rent when due,
the SUB-LESSEE shall be deemed in default of this Sub-Lease
Agreement, and the SUB-LESSEE shall either cure such default
within ten (10) days of the due date, or surrender possession of
the Leased Premises to the TOWN within three (3) days after
written notice of the default is served on the SUB-LESSEE. The
SUB-LESEEE hereby waives all right of notice of a default in the
payment of rent.

          (b)   Defaults Other than Rent. Should the SUB-LESSEE
fail to perform or comply with any of its obligations, covenants,
conditions, agreements, or assurances, other than payment of
rent, the SUB-LESSEE shall be deemed in default of this Sub-Lease
Agreement, and the SUB-LESSEE shall either cure such default or
surrender possession of the Leased Premises to the TOWN within
fifteen (15) days after written notice of the default is served
on the SUB-LESSEE.

          (c)   Abandonment.   Should the SUB-LESSEE abandon the
Leased Premises, whether such abandonment is actually known to
the TOWN or presumed, the SUB-LESSEE shall be deemed in default
of this Sub-Lease Agreement. Absent actual knowledge by the TOWN
of abandonment of the Leased Premises by the SUB-LESSEE,
abandonment shall be presumed when: (a) the SUB-LESSEE has been
absent from the Leased Premises for a period of thirty (30)
consecutive days; and (b) the SUB-LESSEE has not notified the
TOWN in writing of the absence being intended; and (c) the rent
is not current; and (d) ten (10) days have elapsed since service
of a written notice on the SUB-LESSEE of the default and the
TOWN’s intent to retake possession.

          (d)   Right of Possession on Default. The TOWN may
retake possession of the Leased Premises without judicial action
upon surrender or abandonment of the Leased Premises by the SUB-
LESSEE. Should the SUB-LESSEE fail to cure a default under this

Melbourne Beach/J&BLease11a                                    3/12/09
                                  51
Sub-Lease Agreement, or in the alternative, to surrender or
abandon possession of the Leased Premises within the time
provided, the TOWN shall have the right to recover possession of
the Leased Premises as provided by law in an action for
possession. The TOWN’s retaking of possession of the Leased
Premises, whether by the SUB-LESSEE’S surrender or abandonment of
the Leased Premises, or by judicial action, shall not be deemed a
waiver of any of the TOWN’s other claims, rights or remedies and
will not terminate this Sub-Lease Agreement absent notice of
termination by the TOWN. The TOWN may at any time after retaking
possession or reletting terminate this Sub-Lease Agreement for
the default because of which the TOWN reentered or relet the
Leased Premises.

          (e)   Remedies In Addition To Repossession. In
addition to recovery of possession of the Leased Premises as
provided herein, the TOWN shall have the right, at its sole
option, to exercise one or more of the following remedies:

                 (1)   Terminate the Lease Agreement and recover
       from the SUB-LESSEE all rents, fees, taxes and other amounts
       due through the date of termination together with any and
       all loss, expense, or damage which the TOWN may suffer by
       reason of such termination, whether for the costs of
       reletting or through an inability to relet the Leased
       Premises, or through a decrease in rent, or any other
       reason, including, but not limited to, attorney’s fees and
       costs, through trial and appeal.

                 (2)   Without terminating this Sub-Lease
       Agreement, declare the entire amount of the rent accelerated
       and to be due and payable immediately for the remainder of
       the full term of this Sub-Lease Agreement or the renewal
       term, in which event the SUB-LESSEE agrees to pay such sum
       at once, together with all arrearages, costs and expenses,
       including, but not limited to, attorney’s fees and costs,
       through trial and appeal.

                 (3)   Without terminating the Lease Agreement,
       relet the Leased Premises for any term at such rent and on
       such terms as the TOWN may choose during the remainder of
       the SUB-LESSEE’S term for the account of the SUB-LESSEE and
       recover from the SUB-LESSEE at the end of the term or at the
       time each payment of rent comes due under this Sub-Lease
       Agreement, whichever the TOWN may choose, the difference
       between all the rent, costs and fees specified in this Sub-
       Lease Agreement and all the rent, costs and fees actually
       received from the reletting, together with any and all loss,
       expense, or damage which the TOWN may suffer for the costs
       of reletting the Leased Premises or any other reason,

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                                 52
       together with all arrearages, costs and expenses, including,
       but not limited to, attorney fees and costs, through trial
       and appeal.

          (f)   No Waiver By Extension. Any extension of time to
cure a default that may be granted to the SUB-LESSEE by the TOWN
after the aforementioned written notice is served shall not be
deemed a waiver of the TOWN’s right to retake possession without
additional notice.

          (g) Notices. The method for serving notices shall be
as otherwise provided herein, or, if the SUB-LESSEE is absent
from the Leased Premises or the address designated by the SUB-
LESSEE for service of notices, by leaving a copy thereof at such
place or by posting on the Leased Premises.

           (h) The TOWN may, as agent of the SUB-LESSEE, do
whatever the SUB-LESSEE is obligated to do, other than payment of
rents, by the provisions of this Sub-Lease Agreement, and may
enter the Leased Premises, without being liable to prosecution of
any claims for damages therefor, in order to accomplish this
purpose. The SUB-LESSEE hereby grants to the TOWN the irrevocable
authority and permission to enter the Leased Premises for this
purpose and agrees to reimburse the TOWN immediately upon written
demand for any expense which the TOWN may incur in thus affecting
compliance with this Sub-Lease Agreement on behalf of the SUB-
LESSEE, and the SUB-LESSEE further agrees that the TOWN shall not
be liable for any damages resulting to the SUB-LESSEE from such
action, whether caused by the negligence of the TOWN or
otherwise.

          (i) In the event of any breach or threatened breach by
the SUB-LESSEE of any of the terms, covenants, agreements,
provisions or conditions in this Sub-Lease Agreement, the TOWN
shall have the right to invoke any right and remedy allowed at
law or in equity or by statute or otherwise as through reentry,
summary proceedings, and other remedies not provided for in this
Sub-Lease Agreement.

          (j) Upon the termination of this Sub-Lease Agreement
and the term created, or upon the termination of the SUB-LESSEE’s
right of possession, whether by lapse of time or at the option of
the TOWN, the SUB-LESSEE will at once surrender possession of the
Leased Premises to the TOWN and remove all of its personal
property (non-fixtures) from it. If possession is not immediately
surrendered, the TOWN may obtain possession of the Leased
Premises as provided by law (Section 83.05, Florida Statutes, or
as that provision may be amended or superseded from time to
time).


Melbourne Beach/J&BLease11a                                   3/12/09
                                 53
          (k) Should the SUB-LESSEE, at any time during the term
of this Sub-Lease Agreement, suffer or permit an involuntary or
voluntary petition in bankruptcy to be filed against it, or
institute a proceeding under Chapters 7, 11, or 13 of the United
States Bankruptcy Code, as they may be amended or superseded from
time to time, the SUB-LESSEE, and/or the SUB-LESSEE’s successor
in interest, including but not limited to the trustee assuming or
assigned this Sub-Lease Agreement, shall provide adequate
protection and adequate assurances of future performance of this
Sub-Lease Agreement as are required by the Bankruptcy Code which
will include but not be limited to the following:

                 (1) All monetary and non-monetary defaults
       existing prior to the institution of the filing of the
       bankruptcy petition shall be cured within forty- five (45)
       days of service of written demand made upon the SUB-LESSEE
       by the TOWN which will include all costs and attorney’s fees
       expended by the TOWN to the date of the curing of the
       default; and

                 (2) An additional one month of advance rental
       will be required as additional security of future
       performance which must be paid to the TOWN within forty-five
       (45) days of the filing of the petition in bankruptcy; and

                  (3) All obligations of the SUB-LESSEE must be
       performed in accordance with the terms of this Sub-Lease
       Agreement.

If at any time during the pendency of the bankruptcy proceeding,
the SUB-LESSEE or its successor in interest fails to perform any
of the monetary or non-monetary obligations required under the
terms of this Sub-Lease Agreement, or fails to cure any pre-
filing default, or fails to make the additional security deposit
required under the adequate protection and adequate assurances of
future performance clause above, the SUB-LESSEE and/or its
successor in interest stipulates and agrees to waive its rights
to notice and hearing and to allow the TOWN total relief from the
automatic stay under 11 U.S.C. §362 to enforce its rights under
this Sub-Lease Agreement and under state law including, but not
limited to, issuance and enforcement of a judgment for possession
and writ of possession.

          (l) General Provisions Relating to Default. Pursuit
by the TOWN of any of the foregoing remedies shall not preclude
the pursuit of any of the other remedies herein provided or any
other remedies provided by law. No act or thing done by the TOWN
or its agents during the term hereby granted shall be deemed an
acceptance of a surrender of said Leased Premises, and no
agreement to accept a surrender of said Leased Premises shall be

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                                 54
valid unless the same be made in writing and subscribed by the
TOWN. The mention in this Sub-Lease Agreement of any particular
remedy shall not preclude the TOWN from any other remedy the TOWN
might have, either in law or in equity, nor shall the waiver of
or redress for any violation of any covenant or condition in this
Sub-Lease Agreement or any of the rules and regulations set forth
herein, or hereafter adopted by the TOWN, prevent a subsequent
act, which would have originally constituted a violation, from
having all the force and effect of an original violation. The
acceptance by the TOWN of any rent with knowledge of the breach
of any covenant in this Sub-Lease Agreement, other than a breach
by non-payment, shall not be deemed a waiver of such breach.
Termination of the Sub-Lease Agreement by lapse of time or
otherwise, prior to the ending thereof as agreed to by the
parties shall not affect the TOWN’s right to collect rent for the
period prior to the termination thereof.

     14. SURRENDER AT END OF TERM: At the expiration or
termination of the initial term or any renewal term of this Sub-
Lease Agreement or earlier termination hereof, the SUB-LESSEE
shall peaceably and quietly leave, surrender and deliver to the
TOWN the Leased Premises, together with any buildings,
improvements, and fixtures, excluding any personal property of
the SUB-LESSEE not affixed to the Leased Premises, broom clean,
and in thorough repair, good order, and safe condition. The SUB-
LESSEE shall remove all of SUB-LESSEE’S unaffixed personal
property from the Leased Premises upon termination. If the SUB-
LESSEE fails to remove SUB-LESSEE’s unaffixed personal property
within fifteen (15) days after the date of expiration or earlier
termination, such property shall be deemed to have been abandoned
without notice to SUB-LESSEE. The TOWN may appropriate, sell,
store, destroy, or otherwise dispose of any such abandoned
property without notice to the SUB-LESSEE and without obligation
to account therefor. Further, the SUB-LESSEE shall pay to the
TOWN the cost that the TOWN incurs in removing, selling, storing,
destroying, and disposing of such abandoned property in excess of
any value recovered for such abandoned property. Notwithstanding
the foregoing, the SUB-LESSEE may not, at the termination of this
Sub-Lease remove such personal property, equipment, inventory, or
trade fixtures, if such removal will damage the Leased Premises,
unless the SUB-LESSEE makes arrangements in advance of removal,
which arrangements are reasonably acceptable to the TOWN, to
repair such damages.

     15. HOLDOVER TENANCY:     In the event that the SUB-LESSEE
shall not immediately surrender the Leased Premises on the
expiration date of this Lease, the SUB-LESSEE shall, by virtue of
the provisions hereof become a tenant by the month. In such
event, the SUB-LESSEE shall be required to pay two hundred percent
(200%) of the then Base Net Annual Rent required under Section 4.

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                                55
of the Sub-Lease Agreement (or if this Sub-Lease Agreement has
been extended the SUB-LESSEE shall be required to pay two-hundred
percent (200%) of the then effective New Base Net Annual Rent
required under this Exhibit “A”), together with all additional
obligations of SUB-LESSEE in effect during the last month of the
term of this Lease. Such monthly tenancy shall commence with the
first day next after the end of the term above described. In
addition, the SUB-LESSEE shall pay to the TOWN all costs and
damages incurred by Town as a result of the SUB-LESSEE's holding
over, which sums shall be deemed additional rent. Except as
otherwise provided with respect to payment of Base Net Annual Rent
(as adjusted) or the New Base Net annual Rent (as adjusted), the
SUB-LESSEE shall, as a monthly tenant, be subject to all the
terms, conditions, covenants and agreements of this Sub-Lease.
The SUB-LESSEE shall give to the TOWN at least thirty (30) days'
written notice of any intention to quit the Leased Premises, and
the SUB-LESSEE shall be entitled to thirty (30) days' written
notice to quit the Leased Premises, except in the event of non-
payment of rent in advance or of the breach of any other covenant
by the SUB-LESSEE, in which event the SUB-LESSEE shall not be
entitled to any notice to quit, the usual thirty (30) days' notice
to quit being hereby expressly waived. Notwithstanding the
foregoing provisions of this Section, in the event that the SUB-
LESSEE shall hold over after the expiration of the term hereby
created, and if the TOWN shall desire to regain the Leased
Premises, then at any time prior to the TOWN's acceptance of rent
from the SUB-LESSEE as a monthly tenant hereunder, the TOWN, at
its first option, may forthwith reenter and take possession of the
Leased Premises without process, or by any legal process in force.
       16.     ACCORD AND SATISFACTION/WAIVER:

          (a)   If the SUB-LESSEE pays to the TOWN an amount that
is less than the full amount stipulated to be paid under the
terms of this Sub-Lease Agreement, that payment shall be
considered to be made only on account and applied to the
stipulated amount due. No endorsement or statement on any check
or letter shall be deemed an accord and satisfaction. The TOWN
may accept any check or payment without prejudice to the TOWN’s
right to recover the balance due or to pursue any other available
remedy.

          (b)   Any default in the payment of the fixed or
additional rent or other charges, or any failure of the TOWN to
enforce the provisions of this Sub-Lease Agreement upon any
default by the SUB-LESSEE, shall not be construed as creating a
custom of deferring payment or as modifying in any way the terms
of this Sub-Lease Agreement, or as a waiver of the TOWN’S right
to terminate this Sub-Lease Agreement as herein provided, or
otherwise to enforce the provisions thereof for any subsequent

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                                    56
default.
       17.     ENVIRONMENTAL PROVISIONS:

          (a) Subject to any limitations in federal or state
law, the TOWN agrees that the SUB-LESSEE shall have no liability
for any pre-existing environmental contamination of the Leased
Premises; provided, that the SUB-LESSEE demonstrates that an
event causing such environmental contamination was a pre-
occupancy event as described in Paragraph (k) of this section for
which SUB-LESSEE is not liable hereunder. The TOWN will hold the
SUB-LESSEE harmless from all costs and expenses associated with
any such pre-existing environmental contamination of the Leased
Premises arising out of a pre-occupancy event which was not
caused by the SUB-LESSEE. “Environmental contamination” as used
in this section, shall refer to the release of any hazardous
substances on the Leased Premises. The term “release” as used in
this section, shall be as defined in 42 USC §9601(22). The term
“hazardous substance” as used in this section, shall be as
defined from time to time by or pursuant to 42 USC §9601(14), and
shall include “petroleum” or “petroleum product” as defined by
Section 376.301, Florida Statutes.

          (b)   Environmental Indemnification. Notwithstanding
the foregoing, the SUB-LESSEE shall be solely responsible for and
indemnify the TOWN for all costs and expenses including, but not
limited to, remediation, fines, and attorney’s fees through trial
and appeal, that arise in any manner out of environmental
contamination caused by the SUB-LESSEE, the SUB-LESSEE’s agents,
employees, contractors, or invitees during any prior or current
tenancy or occupancy of the Leased Premises or any portion
thereof.

          (c)   The parties’ responsibilities, obligations, and
liabilities pursuant to this Lease Agreement shall survive the
expiration or early termination of this Sub-Lease Agreement or
any renewal term.

          (d)   Nothing in this Sub-Lease Agreement shall be
deemed to be a waiver of the TOWN’s right to take action against
responsible parties for remediation of, or payment for,
environmental contamination on the Leased Premises, nor be deemed
to be an assumption by the SUB-LESSEE of the responsibility for
such remediation or payment, except as may be imposed on the TOWN
as a matter of law.

          (e)   The SUB-LESSEE acknowledges that remediation
steps taken to correct any environmental contamination may extend
over a number of years and may cause inconvenience and business
interruption to the SUB-LESSEE. The TOWN shall not be liable to

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                                    57
the SUB-LESSEE in any manner for such inconvenience and
disruption.

          (f)   Except as properly permitted under federal, state
and local laws, rules, and regulations, the SUB-LESSEE shall not
conduct nor permit or authorize any other person or entity to
engage in the generation, storage, treatment, release, or
disposal of any hazardous substances (as defined under federal,
state, and local environmental laws), on or in any location that
might adversely affect or contaminate the Leased Premises.

          (g)   The SUB-LESSEE shall store, utilize, and dispose
of all industrial, domestic, hazardous, and solid wastes, and
hazardous substances, permitted under the terms of the Lease
Agreement in accordance with applicable federal, state, and local
laws, rules, and regulations.

          (h)   The SUB-LESSEE shall immediately provide the TOWN
with verbal notice of any spill or release of hazardous materials
at or from the Leased Premises. The SUB-LESSEE shall promptly
confirm the verbal notice to the TOWN in writing providing the
details of such spill or release and the remediation taken by the
SUB-LESSEE.

          (i) Except for wells for the public shower facilities,
the SUB-LESSEE shall not install or utilize any irrigation wells
on the Leased Premises.

          (j) In the event that any environmental condition
arises on the Leased Premises or any release of hazardous
substances prohibited by or actionable under applicable law
should now or hereafter occur, contaminate, or be located on the
Leased Premises, except for pre-occupancy events as described in
Paragraph (k) of this section, the SUB-LESSEE hereby agrees, at
its expense, to immediately, consistent with federal or state
law: (1) remove said materials from the Leased Premises; (2)
comply with any and all orders or directives of any federal,
state, or local agency or department relative thereof; and (3)
return the Leased Premises to its pre-existing condition without
any diminution in the value thereof.

          (k)   As used herein, “pre-occupancy event” shall mean
any condition, occurrence, or event, including, but not limited
to, a release or spill, the storage, disposal, or use of a
hazardous substance or waste as defined by federal, state or
local law, ordinance, rule or regulation, occurring prior to the
commencement date (or Effective Date) of this Sub-Lease Agreement
and not caused by the SUB-LESSEE, whether originating on or off
of the Leased Premises, whether known or unknown at the time of
the Effective Date of the Sub-Lease Agreement, and whether or not

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                               58
any plume or contamination is determined to be ongoing or
continuous.
       18.     PAYMENT AND PERFORMANCE BONDS:

          (a) After completion of construction of the
Improvements, the SUB-LESSEE shall cause the SUB-LESSEE’s
contractor to obtain and provide a payment bond and performance
bond, in the form approved by the TOWN, for construction,
alteration, or repair of any the Improvements on or to the Leased
Premises for which the cost of completion will exceed $10,000.00.
The bonds shall meet the requirements of and be in a form as
required by Section 255.05, Florida Statutes. Before any
construction, repair, or alteration work is commenced as required
by this section, the bond(s) shall be obtained and recorded in
the Public Records of Brevard County, Florida. A recorded copy
of the bond(s) shall be presented to the TOWN prior to
commencement of any construction, repair, or alteration work, and
a recorded copy of the bond(s) shall be conspicuously posted on
the Leased Premises. Notwithstanding the requirements of Section
255.05, Florida Statutes, such bond shall be payable in an amount
equal to One Hundred Twenty-Five Percent (125%) of the estimated
cost to complete the construction, alteration, or repair work to
the Leased Premises or the Improvements and shall be underwritten
by a surety acceptable to the TOWN and authorized to do business
in the State of Florida. The SUB-LESSEE’s contractor may
substitute for a bond, a payment and performance irrevocable
letter of credit, in the form approved by the TOWN, from a bank
authorized to do business in the State of Florida, and with an
office located in Brevard County, Florida, where such letter of
credit may be drawn upon. All such bonds and letters of credit
shall inure to the benefit of the TOWN and the SUB-LESSEE and all
other persons, companies and corporations entitled to make a
claim for payment against the bond or letter of credit pursuant
to the applicable provisions of Florida law. Such bond or letter
of credit shall remain in effect through completion of the
improvements and all guarantee and warranty periods. No
improvements on or to the Leased Premises shall commence before
the required bond or letter of credit is received and approved by
the TOWN.

          (b)   The SUB-LESSEE shall cause the SUB-LESSEE’s
contractor to provide a contractor’s final affidavit in a form
consistent with Section 713.06(3)(d), Florida Statutes, and
releases of construction liens, together with final affidavits
and waivers of all claims by the contractor, sub-contractor(s),
sub-subcontractors, or materialmen, upon completion of the
improvements, certifying to the TOWN and the SUB-LESSEE that full
payment was made to all subcontractors, materialmen, leasing
companies, and any other person, company, or corporation

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                                    59
providing goods, materials or services for the improvements. The
SUB-LESSEE shall comply with Section 255.05, Florida Statutes, in
all respects.
       19.     NOTICES:

          (a) Any notice required or permitted to be given
hereunder shall be in writing and deemed to have been duly given:
(i) upon delivery (personally, by courier service, or other
messenger) to the address of the appropriate party; or (ii) upon
receipt as evidenced by the appropriate form of the United States
Postal Service after mailing by United States certified mail,
return receipt requested, postage prepaid to such address; or
(iii) upon mailing if such certified mail is refused by the
recipient or returned unclaimed to the sender. Any notice of
default by the SUB-LESSEE of this Sub-Lease Agreement shall be
given pursuant to the default provision.

          (b)    The TOWN designates the TOWN Manager as its
official representative with the full power to represent the TOWN
in all dealings with the SUB-LESSEE in connection with the Leased
Premises and in administration of this Sub-Lease Agreement. The
SUB-LESSEE designates Bruce Black as its official representative
with the full power to represent the SUB-LESSEE in all dealings
with the TOWN and the LANDLORD in connection with the Leased
Premises and in administration of this Sub-Lease Agreement. The
TOWN or the SUB-LESSEE may unilaterally designate different or
additional representatives from time to time by written notice to
the SUB-LESSEE as provided herein. All notices shall be given to
the TOWN at the address set forth below or at such other address
as specified by written notice delivered to the SUB-LESSEE as
provided herein.

                              TOWN of Melbourne Beach
                              TOWN Manager
                              507 Ocean Avenue
                              Melbourne Beach, Florida 32951

     All notices shall be given to the SUB-LESSEE at the address
set forth below or such other address as specified by written
notice delivered to the TOWN as provided herein.

                              J & B Sandwiches Inc.
                              405 Avenue A
                              Melbourne Beach, FL 32951

The foregoing address of the SUB-LESSEE or the TOWN may be
unilaterally changed by the SUB-LESSEE or the TOWN, respectively,
by giving notice to the other party.


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                                         60
     20. REAL ESTATE COMMISSION: The TOWN and the SUB-LESSEE
each covenant and warrant to the other that they have not
authorized any person, firm, or corporation as a real estate
agent or broker to deal on behalf of such party with respect to
this Sub-Lease. The SUB-LESSEE agrees to indemnify and hold
harmless the TOWN and the LANDLORD from any claim for
remuneration, commissions or broker’s fees arising out of this
transaction and the Sub-Lease.

     21. ENTRY OF LANDLORD:    The TOWN may enter the Premises
for any legal purpose, including, but not limited to:

               (a)     To inspect or protect the Leased Premises;

          (b) To determine whether the SUB-LESSEE is complying
with the terms of the Sub-Lease Agreement, applicable laws,
orders, or regulations of any lawful authority having
jurisdiction over the Leased Premises or any business conducted
therein;

          (c) To exhibit the Leased Premises to any prospective
SUB-LESSEE when the SUB-LESSEE is in default of this Sub-Lease
Agreement or has notified the TOWN of its intention to terminate
the Sub-Lease Agreement or during the last six (6) months of the
term of the Sub-Lease; or
          (d) To authorize entries by a contractor or its
agents, employees, and suppliers to the extent reasonable and
appropriate for construction or repair purposes.

     No authorized entry by the TOWN shall constitute an eviction
of the SUB-LESSEE or deprivation of the SUB-LESSEE’s rights under
this Sub-Lease; nor shall such entry alter the TOWN’s obligations
hereunder or create any right in the TOWN adverse to the SUB-
LESSEE’s interest hereunder. The SUB-LESSEE shall at all time
supply the TOWN with a key to any locks to doors to the restroom
facilities on the Leased Premises for emergency entry, and any
re-keying of said locks without promptly supplying the TOWN with
a key shall be an event of default under this Sub-Lease
Agreement. The SUB-LESSEE shall not be required to supply the
TOWN will a key to the food and concession stand portion of the
Leased Premises; provided, that if the TOWN is refused reasonable
entry to the food and concession stand during normal business
hours, then upon demand by the TOWN, the SUB-LESSEE shall be
required to assure that at all times the TOWN has a working key
to the food and concession stand portion of the Leased Premises.
Notwithstanding the foregoing, the TOWN shall have a right to
break into and enter the food and concession stand portion of the
Leased Premises with or without notice to the SUB-LESSEE in the
event of an emergency circumstance.

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                                       61
       22.     CONSTRUCTION:

          (a) The Lease Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.

          (b)   The Lease Agreement shall be subordinate and
subject to the provisions of any existing or future contract
between the TOWN and the State of Florida, relative to the
development, operation, or maintenance of Ocean Park or the Real
Property, the execution of which has been or may be required.

          (c)   If any part of the Sub-Lease Agreement is found
invalid or unenforceable by any court or any branch of government
having jurisdiction over the operation of the Park, such
invalidity or unenforceability shall not affect the other parts
of the Sub-Lease Agreement, if the rights and obligations of the
parties contained therein are not materially prejudiced and if
the intentions of the parties can continue to be effectuated. To
that end, the separate provisions of this Sub-Lease Agreement are
declared severable.

          (d)   If            any branch of government having jurisdiction
over the operation            of the Park or the Real Property, deems any
lease provision to            be in non-compliance, the parties agree to
delete, insert, or            modify to the extent necessary any such
provision to bring            this Sub-Lease Agreement into compliance.

           (e) It is agreed that this Sub-Lease was written and
negotiated by both the SUB-LESSEE and the TOWN, and that
therefore, no provision hereof shall be more harshly construed
against either party hereto as the drafter of this Sub-Lease
Agreement.

     23. LITIGATION: The TOWN and the SUB-LESSEE expressly
agree that in the event suit or any other legal action arising
out of or in any way connected with this Sub-Lease Agreement or
use of the Leased Premises is initiated:

               (a)     Venue shall be in Brevard County, Florida.

           (b) Trial by jury is hereby waived, on any matter
whatsoever, including, without limitation, any claim for injury
or damage.

          (c) In the event any distress for rent action is
brought by the TOWN against the SUB-LESSEE, the SUB-LESSEE
expressly waives all constitutional, statutory or common law
requirements for a bond by the TOWN, including the requirements
of Section 83.12, Florida Statutes, or as that provision may be

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                                          62
amended or superseded form time to time. The SUB-LESSEE
specifically agrees that no bond shall be required of the TOWN in
any action.

          (d) In any eviction action initiated by the TOWN, the
SUB-LESSEE shall pay into the court registry the accrued rents as
alleged in the complaint or as determined by the court pursuant
to Section 83.232, Florida Statutes, or as that provision may be
amended or superseded form time to time. Failure of the SUB-
LESSEE to pay the rents into the court registry shall be deemed
an absolute waiver of the SUB-LESSEE’s defenses and shall entitle
the TOWN to an immediate default for possession without further
notice or hearing thereon.

          (e) The SUB-LESSEE shall not bring any counterclaim of
any kind in any action or proceeding commenced by the TOWN to
recover possession of the Leased Premises. The parties
acknowledge that any such counterclaim would be prejudicial to
the rights of the TOWN granted under this Sub-Lease Agreement.
The parties stipulate that any such counterclaim shall be severed
and tried separately from the action for eviction pursuant to
Florida Rule of Civil Procedure 1.270(b) and other applicable
court rule or law. The eviction action shall proceed pursuant to
the summary procedure set forth in Chapter 51, Florida Statutes,
or as that provision may be amended.

          (f) The SUB-LESSEE shall utilize its best efforts to
participate to the extent deemed necessary and directed by the
TOWN in the defense of any lawsuit brought by any person or
entity challenging the validity of this Sub-Lease Agreement
between the parties, the circumstances under which it was entered
into, or any other such causes of action relating to the power of
the parties to enter into this Sub-Lease Agreement or the
procedures utilized by the parties for leasing the Leased
Premises.
       24.     MISCELLANEOUS PROVISIONS:

          (a)   Notwithstanding anything herein contained that
may be or appear to be to the contrary, it is expressly
understood and agreed that the rights granted to the SUB-LESSEE
under this Sub-Lease Agreement are non-exclusive and the TOWN
herein reserves the right to grant similar privileges to another
SUB-LESSEE or SUB-LESSEEs on other parts of the Park and the Real
Property.

          (b)   The TOWN reserves the right to explore, dig,
drill and construct water wells of such depth and dimension as
may suit its needs on any part of the Leased Premises with the
right of ingress, egress and regress for such exploring, digging,

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                                    63
drilling and construction and for laying of pipes to transport
such water at such depth and for such distance over, under, and
across the Leased Premises as may be deemed necessary by the
TOWN. If the TOWN exercises this right, the TOWN shall, to the
extent possible, locate such wells in such a manner as not to
disturb the SUB-LESSEE’s operations.

          (c)   The SUB-LESSEE assures the TOWN that it will
undertake an affirmative action program as required by 14 Code of
Federal Regulations Part 152, Subpart E, to ensure that no person
shall on the grounds of race, creed, color, national origin, or
sex be excluded from participating in or receiving the services
or benefits of any program or activity covered by subpart. The
SUB-LESSEE assures the TOWN that it will require that its covered
sub-organizations provide assurances to the TOWN that they
similarly will undertake affirmative action programs and that
they will require assurances from their sub-organizations, as
required by 14 Code of Federal Regulations, Part 152, Subpart E,
to the same effect.

          (d)   The SUB-LESSEE expressly agrees for the SUB-
LESSEE and SUB-LESSEE’s successors and assigns, that no person,
on the grounds of race, color, or national origin, will be
excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of said
facilities; that in the construction of any improvements on,
over, or under such land and the furnishing of services thereon,
no person on the grounds of race, color, or national origin shall
be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination; that the SUB-LESSEE and
the SUB-LESSEE’s successors and assigns shall use the Leased
Premises in compliance with all other requirements imposed by or
pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally Assisted Programs of the
Department of Transportation-Effectuation of Title IV of the
Civil Rights Act of 1964, and as such regulations may be amended;
that in the event of breach of any of the above nondiscrimination
covenants, the TOWN shall have the right to terminate this Sub-
Lease Agreement and to retake possession pursuant to law. The
provision shall not be effective until the procedures of Title
49, Code of Federal Regulations, Part 21 are followed and
completed, including exercise or expiration of appeal rights.

          (e) If the SUB-LESSEE is a corporation, partnership,
or limited liability company, the SUB-LESSEE’s status shall
continuously be in good standing, active, and current with the
state of its incorporation or registration and the State of
Florida, and the SUB-LESSEE shall keep its status active and
current throughout the term of this Sub-Lease Agreement and

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                               64
renewal. Failure of the SUB-LESSEE to keep its status active and
current shall constitute a default under this Sub-Lease.

          (f)   The TOWN reserves the right to develop, improve,
repair, and alter the Park and Real Property and all roadways,
and parking areas, as it may deem appropriate, free from any and
all liability to SUB-LESSEE for SUB-LESSEE’s loss of business or
damages of any kind or nature whatsoever arising out of or
connected to the making of such improvements, repairs, and
alterations.

          (g)    Any construction, reconstruction, remodeling,
installation of improvements, or other work done to the Leased
Premises by the SUB-LESSEE shall be performed in compliance with
the requirements of the Americans with Disabilities Act (“ADA”),
at the SUB-LESSEE’s expense. In the event that a regulatory
agency, private party, organization, or any other person or
entity makes a claim under the ADA against either (or both)
parties, the party whose breach (or alleged breach) of
responsibility under this Sub-Lease Agreement gave rise to the
claim shall, in good faith and at that party’s sole cost,
promptly take whatever actions are necessary to bring the Leased
Premises into compliance with ADA requirements. That party shall
defend, save, and hold harmless the other party from any and all
expenses incurred in responding to such a claim, including
without limitation the fees of attorneys and other advisors,
court costs, and costs incurred for bringing the Leased Premises
into compliance.

          (h)   The           captions and paragraphs or letters appearing
in this Exhibit “A”           and this Sub-Lease Agreement are inserted
only as a matter of           convenience and in no way affect, define,
limit, construe, or           describe the scope or intent of the sections
or articles of this           Exhibit “A” and this Sub-Lease Agreement.

          (i)   This Exhibit “A”, together with this Sub-Lease
Agreement and all related attachments, agreements, resolutions,
and ordinances approved by the TOWN of Melbourne Beach, sets
forth all the promises, agreements, conditions, and
understandings between the TOWN and the SUB-LESSEE relative to
the Leased Premises. There are no other promises, agreements,
conditions, or understandings, either oral or written, between
them. No subsequent alteration, amendment, change, or addition
to this Sub-Lease Agreement will be binding on the TOWN or the
SUB-LESSEE unless memorialized in writing and signed by them and
made a part of this Sub-Lease Agreement by direct reference.

          (j)   The terms of this Exhibit “A” and this Sub-Lease
Agreement shall be binding on the respective successors,
representatives, and assigns of the parties.

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                                         65
          (k)   The Sub-Lease Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and
all which together will constitute one and the same instrument.

          (l)   Pursuant to Section 404.056, Florida statutes,
the following disclosure is included in this Sub-Lease Agreement.
RADON GAS: Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities,
may present health risks to persons who are exposed to it over
time. Levels of radon that exceed federal and state guidelines
have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from the county
health department.


TOWN:                                 TOWN OF MELBOURNE BEACH,
                                      FLORIDA, a Florida Municipal
                                      Corporation
Sign:_________________________
Print Name:___________________
Address:______________________

Sign:_________________________        By:_______________________
Print Name:___________________           James D. Bursick, its
Address:______________________           Town Manager
______________________________
                                      DATE EXECUTED:____________

ATTEST:                               (TOWN SEAL)


______________________________
Tina Hoffkins, TOWN Clerk


SUB-LESSEE:

                                      J & B SANDWICHES INC.,
                                      a Florida Corporation
Sign:________________________
Print Name:__________________
Address:_____________________

Sign:_________________________        By:_______________________
Print Name:___________________           Bruce R. Black, its
Address:______________________           President
______________________________
                                      DATE EXECUTED:____________


Melbourne Beach/J&BLease11a                                    3/12/09
                                 66
                                   (CORPORATE SEAL)




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                              67

				
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