EXHIBIT
10.2
INDENTURE OF LEASE
THIS INDENTURE OF LEASE, made on the 30 day of October 1997 by
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, a Pennsylvania not-for-profit
corporation, with a notice address of 000 Xxxxxxxx Xxxxxxxx, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000-0000 ("Landlord") and EAT AT JOE'S U. OF P., INC., a
Pennsylvania corporation trading as EAT AT JOEIS, with a notice address at 0000
Xxxxx 00 Xxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000, and an address for receipt of
invoices at 0000 Xxxxx 00 Xxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000 ("Tenant").
WITNESSETH:
A. Premises.
The Trustees of the University of Pennsylvania, a Pennsylvania not for
profit corporation (the "Prime Landlord"), are the owners of a parcel of ground
with the buildings and improvements thereon, located at the northwest xxxxx of
the intersection of 34th,and Walnut Streets, Philadelphia, Pennsylvania (the
"Fee Owner's Property"). Pursuant to Lease dated as of July 1, 1985, the Prime
Landlord, as landlord, leased to Landlord's predecessor, as tenant, certain
portions (as shown on the plan attached hereto and made a part hereof as Exhibit
"A") of the first floor of the mixed use retail/office building facility (the
"Building") constructed on Fee Owner's Property, which portions are hereinafter
called "Project". Said Lease, together with all amendments thereto and
assignments thereof, current and future, is hereinafter referred to as the
"Prime Lease". The Project as currently known as THE SHOPPES AT PENN).
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
store premises (the "Premises") in the Building designated on Exhibit "A" hereto
as Store Number FC- 9 . The Premises are measured and described by the following
dimensions which are measured from the outside building lines of each wall of
the Premises or, in the case of those walls separating the Premises from other
stores in the Project or Building, from the center lines of such walls:
Front:
Depth:
Total Area: 456 square feet
together with the right to the non-exclusive use in common with others entitled
to use same of all such automobile parking areas, driveways, malls, courts,
corridors, footways, loading facilities and other facilities as may be
designated by Landlord from time to time, as more fully set forth in and subject
to the terms and conditions of this Indenture of Lease and the Lease Agreement
(hereinafter collectively referred to as "the Lease"), and to such reasonable
rules and regulations for the use thereof as may be prescribed from time to time
by the Landlord in accordance with Section 5.4 of the Lease.
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Tenant hereby acknowledges that this Lease is a sublease under the Prime
Lease, and that Tenant's rights hereunder are subject to and limited by the
provisions of the Prime Lease. Accordingly, notwithstanding anything herein to
the contrary, Tenant agrees that Landlord shall not be obligated to do anything
hereunder which it, as the tenant under the Pri 'me Lease, is prohibited from
doing by the Prime Lease and that Landlord will not be obligated to refrain from
doing any act hereunder if to refrain from so doing is prohibited by the Prime
Lease or would result in Landlord's being in default thereunder. Furthermore,
notwithstanding anything contained herein to the contrary, Landlord shall not be
liable to Tenant for the performance or non-performance of Prime Landlord's
obligations under the Prime Lease and it is intended that Tenant shall look
solely to and hold the Prime Landlord responsible for the performance or
non-performance of such obligations to the extent that such obligations are also
the obligations of Landlord hereunder or are designated herein as the
obligations of Prime Landlord. As to those matters that are the obligations of
the Prime Landlord under the Prime Lease as set forth in the preceding sentence,
Landlord shall, as its sole obligation with respect thereto, request performance
of such obligations by Prime Landlord upon receipt of a written request from
Tenant to do so and Landlord shall thereafter use reasonable efforts to obtain
performance of the same by the Prime Landlord. Performance of such obligations
by the Prime Landlord will be deemed performance by Landlord of such obligations
hereunder.
B. Length of Term.
The Original Term (defined herein) and Tenant's obligation to pay rent and
occupy the Premises in accordance with the terms of the Lease shall commence on
the earlier of the following dates (such earlier date being hereinafter called
the "Commencement Date"): (1) January 1, 1998 or; (2) the date on which Tenant
shall first open the Premises for business with the public. 'Me Tenn (defined
herein) shall be for a period of ten (10) years from the Commencement Date, plus
the period, if any, between the Commencement Date, if it falls on a day other
than the first day of the month, and the first day of the first full calendar
month in the Original Tenn. 'Me expected date of delivery of possession to
Tenant is the date of execution of the Lease.
C. Fixed Minimum Rent. SEE RIDER.
Tenant shall pay to Landlord a guaranteed annual minimum rent ("Fixed
Minimum Rent") for of the following periods during the Term as follows:
TIME PERIQD ANNUAL MONTHLY RATE PER
AMOUNT AMOUNT SQUARE FOOT
Lease Years 1-5 $20,520.00 $1,710.00 $45.00
Lease Years 6-10 $22,800-00 $1,900.00 $50.00
Each such installment of Fixed Minimum Rent shall be due and payable on or
before the first day of each calendar month in the Original Term, in advance, at
the office of Agent or at such place as may be designated by Landlord from time
to time, without any prior demand therefor and without any deduction or setoff
whatsoever, the first installment to be paid on the Commencement Date whether or
not the Commencement Date is the first day of a calendar month. In the event
that the Commencement Date of
the Term shall be a day other than the first day of a calendar month, Tenant's
first payment of Fixed Minimum Rent shall be prorated for the fractional month
between the Commencement Date and the first day of the first full calendar month
in the Term, on a per them basis (calculated on a thirty (30) day month).
Landlord may accept any payment by Tenant of a lesser amount than shall be due
from Tenant without prejudice to any rights or remedies which Landlord may have
against Tenant. Any endorsement or statement on any check accepted by Landlord,
or any statement in correspondence accompanying such check, that acceptance of
such lesser amount is payment in full, shall be given no effect. All rent shall
be paid in United States currency and shall, if other than cash, be drawn on a
United States bank.
D. Percentage Rent. SEE RIDER.
In addition to the Fixed Minimum Rent as aforesaid, Tenant, in accordance
with Section 2.1 of the Lease, shall pay to Landlord, as Additional Rent
(defined herein) hereunder ("Percentage Rent"), and as part of the consideration
of the aforesaid demise, for each Lease Year (defined herein) in the Original
Term a sum equal to Eight percent (8%) of that portion of Gross Sales (as
defined in Section 2.2 of the Lease) during each Lease Year which is in excess
of the applicable Percentage Rent Gross Sales Base. The Percentage Rent Gross
Sales Base for the following periods within each Lease Year shall be:
TIME PERIOD PERCENTAGER.ENT GROSS SALE
BASE
Lease Years 1-5 $342,000.00
Lease Years 6-10 $380,000.00
E. Use of Premises.
Subject to the provisions of Article 5 of the Lease, Tenant shall use the
Premises solely for the purpose of conducting the business of: the operation of
a 1950's style diner offering burgers, french fries, sandwiches, ice cream
sundaes, menu attached hereto as Exhibit C.
F. Hours of Operation.
The present hours of operation of the Project during which Tenant must have
the Premises open for business with the public (subject to adjustment by
Landlord as set forth in Section 5.1) are:
Food Court Tenant
Monday through Thursday: 10:00 A.M. to 10:00 P.M.
Friday and Saturday: 10:00 A.M. to 12:00 Midnight
Sunday: 12:00 Noon to 10:00 P.M.
G. Intentionally Deleted.
H. Taxes.
In accordance with and subject to the adjustments set forth in Section 3.1
of the Lease, for each "Tax Year" (as defined in said Section) during the
Original Term, Tenant shall pay Landlord on account
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of Tenant's share of any "Taxes" (as defined in such Section), the annual amount
of Four Dollars and Fifty Cents ($4.50) multiplied by the number of square feet
of floor area contained within the Premises. The dollar amount set forth herein
is an initial estimate only.
I. Operating Costs.
In accordance with and subject to the adjustments set forth in Section 7.3
of the Lease, for each "Accounting Period" (as defined in said Section) during
the Original Term, Tenant shall pay Landlord on account of Tenant's share of
"Operating Costs" (as therein defined), the annual amount equal to the greater
of Seven Hundred Fifty dollars ($750.00) or Five Dollars and Fifty Seven Cents
($5.57) multiplied by the number of square feet of floor area contained within
the Premises. Ile dollar amount set forth herein is an initial estimate only.
J. Promotion Fund.
In accordance with and subject to the adjustments set forth in Article 15
of the -Lease, for each year during the Original Term, Tenant shall pay to
Landlord for the Promotion Fund the annual amount of (a)
Two Dollars ($2.00) multiplied by the number of square feet of floor area
contained within the Premises.
K. Intentionally Deleted.
L. Remodeling.
In accordance with the provisions of Section 4.2 of the Lease, Tenant shall
remodel the e Premises not later than January 1, 1998.
M. Security Deposit.
Tenant, contemporaneously with the execution of this Indenture of Lease,
has deposited with Landlord the sum of One Thousand Seven Hundred Ten Dollars.,
($1.7 10.00) receipt of which is hereby acknowledged by Landlord, which deposit
is now the property of the Landlord and is to be held as security for the
faithful performance by Tenant of all of the tern s, covenants and conditions of
this Lease by said Tenant to be kept and performed during the Term, subject to
Article 20 of the Lease.
N. Lease Documents.
In addition to the Indenture of Lease and the Lease Agreement consisting of
_ pages, the following are attached to the Lease and are hereby incorporated in
and made part of the Lease as fully as though set forth at length in the Lease
Rider, if any, and the following Exhibits:
Exhibit "A" - Site Plan of Project
Exhibit "B" - Food Court Exhibit
Exhibit "C" - Menu
Rider
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Lease to be duly executed the day and year first above
written.
LANDLORD:
THE TRUSTEES OF THE UNIVERSITY
OF PENNSYLVANIA
ATTEST:
__________________________ BY: _____________________
Assistant Secretary Vice President
TENANT:
EAT AT JOE'S U. OF P., INC.,
t/a EAT AT JOES
ATTEST:
_________________________ BY: ________________________
Secretary President
