**Exhibit 10**

 

**SECOND AMENDMENT TO LEASE**

 

This SecondAmendment to Lease (this “**Second Amendment**”)is made as of the 22ND day of October, 2004 by and between TECHNOLOGYSQUARE FINANCE, LLC, a Massachusetts limited liability company with an addressc/o Massachusetts Institute of Technology, 238 Main Street, Suite 200,Cambridge, MA  02142 (“**Landlord**”), and POLCARI’S OFCAMBRIDGE, INC., a Massachusetts corporation with an address c/o BostonRestaurant Associates, Inc., 999 Broadway, Suite 400, Saugus, Massachusetts01906 (“**Tenant**”).

 

W I T N E S S E T H

 

WHEREAS,Landlord, successor-in-interest to Massachusetts Institute of Technology,  and Tenant are the current parties to thatcertain Lease dated January 24, 2003, as amended by that certain FirstAmendment to Lease dated August 22, 2003, as affected by that certain letteragreement dated August 29, 2003 and as further affected by that certain letteragreement dated January 29, 2004 (collectively,******the“**Lease**”), pursuant to which Landlordis leasing to Tenant approximately 11,100 rentable square feet (the “**Premises**”) located on the first (1st)floor of the building located at 300 Technology Square, Cambridge, MA  02139 (the “**Building**”);

 

WHEREAS,Tenant desires to cease operating its business from the Premises; and

 

WHEREAS, Landlord is willing to permit Tenant to cease operating itsbusiness from the Premises as of July 31, 2005 (the “**End Date**”),subject to the terms and conditions hereinafter set forth.

 

NOW,THEREFORE, in consideration of the covenants herein reserved and contained, andother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, Landlord and Tenant hereby agree as follows:

 

1.               Recitals; Capitalized Terms.  The foregoing recitals are herebyincorporated by reference.  Allcapitalized terms not otherwise defined herein shall have the meanings ascribedto them as set forth in the Lease.

 

2.               Definition of the Term.  Provided there is not an Event of Defaultafter the date hereof, then effective as of the End Date, the Expiration Dateshall mean **July 31, 2005**.

 

3.               Surrender Condition.  Section 20.1(a) of the Lease is herebydeleted and replaced with the following:

 

“(a)         Upon the expiration or othertermination of the term hereof, Tenant shall (i) peaceably quit and surrenderto Landlord Tenant’s Property, the Premises and all Tenant’s Work andAlterations thereto, broom clean, in good order, repair and condition (exceptas provided herein and in Section 8.5 and Article 18) excepting only ordinarywear and tear and damage by Landlord or fire or other insured Casualty; (ii)remove (A) any and all Hazardous Materials, and (B) Tenant’s Removable Property(as amended by this Second Amendment), and (iii) repair any damages to thePremises or the Building caused by the installation or removal of theforegoing.  In connection with Tenant’sremoval of the two (2) Montique pizza ovens, Tenant shall be

 

1

----

 

required tocap the gas pipes serving the same at the points at which they attach to suchovens.  Tenant’s obligations under thisSection 20.1(a) shall survive the expiration or other termination of thisLease.”

 

4.               Tenant’s Removable Property.  Notwithstanding anything to the contrary setforth in the Lease, Exhibit 5 is hereby deleted and replaced with Exhibit5A attached hereto and incorporated herein. From and after the date hereof, all references in the Lease to Exhibit5 shall be deemed to refer to Exhibit 5A.

 

5.               Yearly Rent Adjustment.Notwithstanding anything to the contrary set forth in the Lease, the YearlyRent with respect to the period from May 1, 2004 through and including the datehereof shall be adjusted to be Zero Dollars ($0.00) per month.  In addition, the Yearly Rent with respect tothe period commencing one calendar day after the date hereof through andincluding the End Date (the “**Final Term Period**”)shall be adjusted to be Zero Dollars ($0.00) per month; provided, however, thatupon the occurrence of an Event of Default, the foregoing rent adjustment withrespect to the Final Term Period shall be deemed void as of the date hereof asthough such had never been made, and the Yearly Rent that would have been dueand payable in the absence of such rent adjustment will be deemed to beAdditional Rent then immediately due. The foregoing will occur automatically without any further notice byLandlord, whether or not the Term is then or thereafter terminated.

 

6.               Payment by Landlord.  As of the date hereof, Landlord has delivereda payment in the amount of $23,721.19 to Tenant. Commencing on November 1,2004, Landlord shall deliver to Tenant ten (10) equal monthly installments of$25,000.00 each, less the Deductions (hereinafter defined) on the first day ofeach calendar month, with the final payment due on August 1, 2005; provided,however, that upon the occurrence of an Event of Default, the foregoing paymentobligation shall be deemed void as of the date hereof as though such had neverbeen made, and any and all sums paid by Landlord pursuant to this Section 6prior to such Event of Default shall be deemed to be Additional Rent thenimmediately due.  The foregoing willoccur automatically without any further notice by Landlord, whether or not theterm is then or thereafter terminated. For purposes hereof, the “**Deductions**”shall mean the sum of (a) the monthly installments of additional rent payableby Tenant pursuant to Section 10 of the Lease and (b) any other payment notmade by Tenant as and when due. Any obligations under this Section 6 whichshall not have been paid at the expiration or earlier termination of the Termshall survive such expiration or earlier termination and shall be paid when andas the amount of same shall be determined and be due.

 

7.               Reconciliation of Additional RentPayments. Provided Tenant performs all of its obligations hereunder,Landlord shall, within sixty (60) days after the End Date, deliver to Tenant astatement with respect to the portion of the then-current Operating Year endingon the End Date (the “**Final Operating Year**”),which statement shall specify Landlord’s good faith estimate of Tenant’sPercentage Share of the Operating Costs Excess and Tax Excess for the FinalOperating Year (“**Landlord’s Estimate**”).  If the total of Tenant’s monthly remittanceson account of the Final Operating Year is greater than Landlord’s Estimate,then, provided no Event of Default has occurred nor any event which, with thepassage of time and/or the giving of notice would constitute an Event ofDefault, Landlord shall refund such difference to Tenant within thirty (30)days after such determination to the extent that such difference exceeds anyamounts then due from Tenant to Landlord. If the total of such remittances is less than Landlord’s Estimate,Tenant shall pay the

 

2

----

 

difference to Landlord, as additional rent hereunder, within ten (10)days of Tenant’s receipt of an invoice therefor.  Landlord and Tenant agree that Landlord’sEstimate shall be binding on each of them, and provided the other party performsits obligations under this Section 7, each party hereby releases, remises andforever discharges the other from any claims relating to Operating Costs andTaxes. Any obligations under this Section 7 which shall not have been paid atthe expiration or earlier termination of the Term shall survive such expirationor earlier termination and shall be paid when and as the amount of same shallbe determined and be due.

 

8.               Termination of UCC FinancingStatements.  Simultaneously with theexecution hereof, (a) Tenant has delivered into escrow with Kirkpatrick andLockhart, LLP (“**Escrow Agent**”)two (2) originals of a UCC Financing Statement Amendment and two (2) originalsof a UCC Financing Statement Amendment Addendum, all in recordable form,terminating the UCC Financing Statement recorded with the Middlesex SouthDistrict Registry of Deeds in Book 40590 at Page 175; and (b) Tenant, Landlordand Escrow Agent have executed three (3) originals of an Escrow Agreement insubstantially the form attached hereto as Exhibit 11, which agreementshall govern the holding and distribution of such documents.

 

9.               Liquor License.

 

(a)          Upon the expiration or earlier termination ofthe Lease, Tenant shall cooperate with Landlord to effectuate promptly theexpeditious transfer to Landlord (which, for purposes of this Section 9 only,shall include Landlord’s nominee, if any) of the 7-day alcoholic beveragesrestaurant liquor license permitting Tenant to offer for sale liquor, beer andwine for on-premises consumption in the Premises seven (7) days per week (the “**Liquor License**”), subject to and inaccordance with Legal Requirements and the Lease.  Such cooperation shall include attendance athearings and/or other meetings with governmental officials (when suchattendance is requested by Landlord), neighborhood groups and similar civicorganizations, as well as the execution of any and all documents reasonablynecessary or appropriate to effect such transfer.  Tenant shall not charge Landlord for Tenant’scooperative efforts in effectuating the transfer of the Liquor License.  Landlord shall be responsible for any fees orcharges imposed to transfer the Liquor License to Landlord.  For the purposes hereof, such Liquor Licenseshall be considered to have been “**transferred**”when the same has been issued in the name of or granted to Landlord or Landlord’snominee, and approval thereof required from the appropriate governmentalauthorities and officials of the City of Cambridge and the Commonwealth ofMassachusetts has been received (subject only, if applicable, to finalissuance).

 

(b)         The last sentence of Section 27.6 of the Leaseand the last two (2) sentences of Section 27.7 of the Lease are hereby deletedin their entirety.  No additionalconsideration shall be payable by Landlord to Tenant on account of the transferof the Liquor License, it being understood and hereby agreed that theconsideration for the transfer of the Liquor License is inextricably includedwith the consideration given by Landlord herein and payable by Landlordhereunder.  Prior to transfer of theLiquor License, Tenant at Tenant’s sole cost and expense shall fully pay alltaxes and wholesaler debt, if any, attributable to the Liquor License andTenant’s operation thereof, such that the Liquor License shall be transferredto Landlord free and clear of any tax liens and/or indebtedness to anymanufacturer, winegrower or wholesaler of alcoholic beverages.

 

3

----

 

(c)          Tenant agrees to execute a security agreementand promissory note in the form attached hereto as Exhibit 12, and tocooperate with Landlord in applying to the appropriate licensing authoritiesfor approval of a pledge of the Liquor License, in conformance with Section 27of the Lease.

 

(d)         Tenant shall not be in default under thisSection 9 if it is prevented from observing or performing its obligations underthis Section 9 as a result of causes reasonably beyond its control.

 

10.         Exclusive Use.  Section 5.3 of the Lease, and all referencesin the Lease to Tenant’s Exclusive Uses, are hereby deleted in their entirety.

 

11.         Minimum Hours of Operation.  During the period from May 1, 2004 throughand including the End Date, the term “**Minimum Hours of Operation**”for all purposes under the Lease shall be deemed to mean 11:00 A.M. – 6:00 P.M.Monday – Wednesday, and 11:00 A.M. – 9:00 P.M. Thursday – Friday.

 

12.         Confidentiality.  Tenant will not disclose any part of thisSecond Amendment to anyone other than its attorneys, accountants or employeeswho need to know of its contents in order to perform their duties for Tenant,or pursuant to Legal Requirements, including without limitation lawful requestsor requirements of the Securities and Exchange Commission and/or the applicablelicensing authorities.  Any other disclosurewill be an Event of Default under the Lease.

 

13.         Ratification.  Except as amended hereby, the terms andconditions of the Lease shall remain unaffected.  From and after the date hereof, allreferences to the Lease shall mean the Lease as amended hereby.  To theextent the terms and conditions of the Lease as unaffected by this SecondAmendment conflict with or are inconsistent with this Second Amendment, thisSecond Amendment shall control.  Tenantconfirms and ratifies that, as of the date hereof and to its actual knowledge,(a) the Lease is and remains in full force and effect, and (b) Tenanthas no claims, counterclaims, set-offs or defenses against Landlordarising out of the Lease or the Premises or in any way relating thereto orarising out of any other transaction between Landlord and Tenant. Landlordconfirms and ratifies that, as of the date hereof and to its actual knowledge,(a) the Lease is and remains in full force and effect, and(b) Landlord has no claims, counterclaims, set-offs or defensesagainst Tenant or Guarantor arising out of the Lease or the Premises or in anyway relating thereto or arising out of any other transaction between Landlord,Tenant and Guarantor.

 

14.         Miscellaneous.  This Second Amendment shall be deemed to havebeen executed and delivered within the Commonwealth of Massachusetts, and therights and obligations of Landlord and Tenant hereunder shall be construed andenforced in accordance with, and governed by, the laws of the Commonwealth ofMassachusetts without regard to the laws governing conflicts of laws.  If any term of this Second Amendment or theapplication thereof to any person or circumstances shall be invalid andunenforceable, the remaining provisions of this Second Amendment, theapplication or such term to persons or circumstances other than those as towhich it is invalid or unenforceable, shall not be affected.  This Second Amendment is binding upon andshall inure to the benefit of Landlord and Tenant, their respective agents,employees, representatives, officers, directors, divisions, subsidiaries,affiliates, assigns, heirs, successors-in-interest and shareholders.  Each party has cooperated in the drafting andpreparation of this Second Amendment and, therefore, in any construction to bemade of this Second

 

4

----

 

Amendment, the same shall not be construed against either party.  In the event of litigation relating to thisSecond Amendment, the prevailing party shall be entitled to reimbursement fromthe other party of its reasonable attorneys’ fees and costs.  This Second Amendment constitutes the entireagreement of the parties with respect to the subject matter hereof andsupersedes all prior and contemporaneous oral and written agreements anddiscussions, and may not be amended, waived, discharged or terminated except bya written instrument signed by all the parties hereto.

 

[signatures on following page]

 

5

----

 

[SIGNATURE PAGE TO SECOND AMENDMENT TO LEASE BY AND BETWEENTECHNOLOGY SQUARE FINANCE, LLC AND POLCARI’S OF CAMBRIDGE, INC.]

 

 

 

EXECUTED under seal as of thedate first set forth above.

 
| LANDLORD:                                                     | TECHNOLOGY  SQUARE FINANCE, LLC                         |
|---------------------------------------------------------------|---------------------------------------------------------|
|                                                          |                                                    |   |
|                                                          | By: Massachusetts  Institute of Technology, its Manager |
|                                                          |                                                    |   |   |
|                                                          |                                                    |   |   |
|                                                          | By:                                                     |   |   |
|                                                          |                                                    | Name: Steven  C. Marsh |
|                                                          |                                                    | Title:  Managing Director – Real Estate |
|                                                          |                                                    |   |   |
|                                                          |                                                    |   |   |
| TENANT:                                                       | POLCARI’S OF  CAMBRIDGE, INC.                      |
|                                                          |                                                    |   |   |
|                                                          |                                                    |   |   |
|                                                          |                                                    | By: |   |   |
|                                                          |                                                    | Name: |   |   |
|                                                          |                                                    | Title: |   |   |
|                                                          |                                                    |   |   |   |
| Guarantor  hereby consents to the preceding Second Amendment. |                                                    |
|                                                          |                                                    |   |   |
| GUARANTOR:                                                    | BOSTON RESTAURANT  ASSOCIATES, INC.                     |
|                                                          |                                                    |   |
|                                                          |                                                    |   |
|                                                          | By:                                                     |   |   |
|                                                          |                                                    | Name: |   |   |
|                                                               |                                                         |  |  |  |  |  |  |

 

6

----