**Exhibit 10.16**

 

**FIRST MORTGAGE AND SECURITY AGREEMENT**

 

GeorgeR. Chapdelaine, in his capacity as Trustee of BRA Nominee Trust under adeclaration of trust dated January 23, 1991, recorded with the SuffolkCounty Registry of Deed in Book 16684, Page 20, and filed with the SuffolkRegistry District of the Land Court as Document No. 472988 (“Mortgagor”), havingan address c/o Boston Restaurant Associates, Inc., 999 Broadway, Suite 400,Saugus, Massachusetts 01906, for valuable consideration, grants with MORTGAGECOVENANTS to Commerce Bank & Trust Company, a Massachusetts trustcompany with offices at 390 Main Street, Worcester, Massachusetts 01608 (“Mortgagee”),the properties in Boston, Massachusetts, known as (i) Unit A in the 76-78North Margin Street Condominium, 76-78 North Margin Street, (ii) Unit C inthe 15 Thacher Street Condominium, 15 Thacher Street, and (iii) Unit 111⁄2in the 13 Thacher Street Condominium, 13 Thacher Street, all as more fullydescribed in the documents attached to this mortgage as collective Exhibit A,together with all of Mortgagor’s rights and interests as a condominium unitowner in such properties (such units, rights, and interests being collectivelyidentified in this mortgage as “the premises”).  In this mortgage and in the attached legaldescription each reference to the street name spelled in the preceding sentenceas “Thacher” shall include the alternative spelling “Thatcher.”

 

Thismortgage is given to secure the full and timely payment and performance of allindebtedness and obligations of Mortgagor to Mortgagee now existing orhereafter arising under the Loan Documents, as defined below, including withoutimplied limitation (i) the indebtedness evidenced by Mortgagor’s note ofeven date in the face amount of $800,000 (“Note”) and (ii) Mortgagor’sobligations to Mortgagee under a certain Multi-Party Guaranty Agreement of evendate among Mortgagor, Mortgagee, and other parties relating to obligations owedMortgagee by Boston Restaurant Associates, Inc., in the amount of $1,500,000(“Guaranty Agreement”).

 

In this mortgage the term “Loan Documents” includesnot only the Note and the Guaranty Agreement but also (a) an assignment ofeven date by Mortgagor to Mortgagee of all leases and rents of the premises, (b) aLoan Agreement of even date among Mortgagor, Mortgagee, and Boston RestaurantAssociates, Inc. (“Loan Agreement”), (c) all other agreements,assignments, grants, instruments, and other documents executed upon or afterthe date of this mortgage by Mortgagor for the benefit of Mortgagee inconnection with the Guaranty Agreement, (d)  any future replacements orsubstitutions for any of the foregoing documents, and (e) any futurerenewals, restatements, amendments, modifications, supplementations, orextensions of any of the foregoing documents.

 

RECORDAND RETURN TO:

DaleR. Harger, Esq.

Mountain,Dearborn & Whiting LLP

370Main Street

Worcester,MA 01608

 

----

 

Forthe same consideration and for the same purposes Mortgagor grants to Mortgageea security interest in all Mortgagor’s fixtures (as defined under theMassachusetts Uniform Commercial Code) now or later situated on the premises,including without implied limitation those described on the document attachedto this mortgage as Exhibit B (“personal property”).

 

Forthe same consideration and for the same purposes, Mortgagor grants to Mortgageea security interest in all proceeds paid or payable for any loss or damage tothe premises and/or the personal property, including without implied limitationany proceeds of casualty insurance, any awards for any taking by eminentdomain, and any payments made in consideration of any conveyance in lieu ofsuch a taking.

 

**ARTICLE ONE**

 

**Covenants**

 

Inaddition to, and not in limitation of, Mortgagor’s obligations under thestatutory mortgage covenants given above, Mortgagor covenants and agrees withMortgagee as follows.

 

1.             ***Performance of Obligations***.  Mortgagor will comply promptly and fully withall provisions of the Loan Documents applicable to Mortgagor.

 

2.             ***Payment of Taxes, Liens, and Other Charges***.

 

A.            Mortgagorwill pay promptly all real estate taxes, betterment assessments, water rates,sewer charges, and other charges assessed or imposed by any governmental orquasi- governmental entity (collectively “Governmental Charges”) which are ormight become a lien or charge upon all or any portion of the premises or thepersonal property, whether or not assessed against Mortgagor, provided thatMortgagor shall be entitled to contest in good faith any Governmental Chargesby appropriate proceedings diligently and continuously prosecuted, providedthat Mortgagor first pays the Governmental Charges or takes such other actionas is necessary to prevent the imposition during such proceedings of a lien orcharge for the Governmental Charges upon all or any portion of the premises or thepersonal property.  Any abatement orother reduction in the Governmental Charges as a result of such proceedingsshall be, subject to the provisions of the Loan Documents, the property ofMortgagor.

 

B.            Mortgagorwill pay promptly all federal, state, and other taxes of whatever kind andnature (except income taxes of Mortgagee) which could, if unpaid, result in alien on the premises or the personal property, provided that Mortgagor shall beentitled to contest in good faith any such taxes by appropriate proceedingsdiligently and continuously prosecuted, provided that Mortgagor first pays suchtaxes or takes such other action as is necessary to prevent the impositionduring such proceedings of a lien or charge for such taxes upon all or anyportion of the premises or the personal property.  Any abatement or other reduction in suchtaxes as a result of such proceedings shall be, subject to the provisions ofthe Loan Documents, the property of Mortgagor.

 

C.            Withrespect to any uninsured claim against Mortgagor which is or might become alien or charge upon all or any portion of the premises or the personalproperty,

 

2

----

 

including without implied limitation any claim which might give rise toa lien for materials or labor, Mortgagor either (1) shall contest suchclaim, provided that Mortgagor first takes such action as is necessary toprevent the imposition or achieve the immediate dissolution of any lien uponall or any part of the premises or the personal property, or (2) shall paysuch claim before any lien attaches.

 

D.            Mortgagorshall notify Mortgagee in writing within ten (10) days after (i) Mortgagorhas knowledge of any lien that arises upon the premises or the personalproperty or (ii) Mortgagor receives notice of any litigation,investigation, proceeding, or other activity which reasonably could be expectedto give rise to such a lien.

 

3.             ***Escrow Account***.

 

A.            IfMortgagee so requires in writing after an Event of Default (defined below), butnot otherwise, Mortgagor will pay to Mortgagee monthly, on or before the firstday of each month, one-twelfth (1/12) of the annual amount which Mortgageeestimates will be required to pay all Governmental Charges before they become pastdue.  Whenever Mortgagee determines thatthe sums accumulated under this paragraph are insufficient to meet theobligation for which such sums were paid, Mortgagor will pay Mortgagee, ondemand, any amount required to satisfy the deficiency.  Such sums may be commingled with other assetsof Mortgagee and may be invested by Mortgagee for its own account, without anyobligation to pay income from such investment, or interest on such deposits, toMortgagor, or to account of Mortgagor for such income.

 

B.            Theobligation of Mortgagor to pay the Governmental Charges pursuant to Section 2Ashall not be considered discharged by its compliance with Section 3Aexcept to the extent that such obligations have been actually satisfied throughthe operation of Section 3A.

 

C.            Oneach occasion when real estate taxes become due with respect to the premises,Mortgagor shall furnish Mortgagee with receipted real estate tax bills for thepremises within ten (10) days after the last date on which payment may bemade without the taxing authority’s imposition of interest or penalties fornon-payment.

 

4.             ***Insurance***.

 

A.            Mortgagorshall obtain and keep in force (i) one or more policies of insuranceinsuring the premises and the personal property against loss or damage by fireand all of the risks covered by insurance of the type now known as “all riskcoverage” in an amount not less than the actual full replacement cost of thepremises and the personal property, with a so-called “Agreed Amount Endorsement”,and (ii) such other additional insurance coverage as from time to time maybe requested reasonably by Mortgagee, all in such amounts and for such periodsas Mortgagee reasonably requires from time to time.  All policies of insurance shall provide thatany proceeds shall be first payable to Mortgagee, as its interest may appear,pursuant to an appropriate mortgagee endorsement.  All conditions of such insurance policiesshall be subject to prior approval by Mortgagee, and Mortgagor shall performall such conditions.  All such policiesshall provide that such policies shall not be canceled or materially amendedwithout at least thirty (30) days’ prior written notice to Mortgagee.  All insurers shall be 

 

3

----

 

licensed and qualified to do business in the state in which thepremises are located, and all insurance policies (or certificates thereof)shall be deposited with Mortgagee. Mortgagor shall deliver to Mortgagee new policies or certificates forany insurance about to expire at least ten (10) days before suchexpiration.

 

B.            Inthe event of the foreclosure of this mortgage or any other transfer of title tothe premises or the personal property in extinction in whole or in part of theindebtedness secured by this mortgage, all right, title, and interest ofMortgagor in and to all such insurance policies shall pass to the transferee tosecure the payment and performance of Mortgagor’s obligations.

 

C.            Incase of any insured loss or claim, Mortgagor shall render promptly to theinsurance company a statement in writing, in compliance with the terms of thepolicy, and shall give immediate notice to Mortgagee.  Mortgagee may, but shall not be obligated to,make a claim or proof of loss.  At itselection Mortgagee may, after deducting from any insurance proceeds all ofMortgagee’s expenses incurred in good faith in collection of such proceeds,including reasonable attorneys’ fees, either (i) if an Event of Defaulthas occurred and is continuing, apply such net proceeds to any amounts dueMortgagee under the Loan Documents (in which case Mortgagor shall waive anyprovisions of the insurance contract which would require rebuilding, even ifsuch waiver reduces the insurance proceeds) or (ii) if no Event of Defaulthas occurred and is then continuing, and if Mortgagor demonstrates to Mortgagee’sreasonable satisfaction that it is physically and economically practical torestore the premises to a condition that provides reasonable security toMortgagee, and if the conditions set forth in the remainder of this Section 4Care satisfied, make the net proceeds of insurance available to Mortgagor torestore the premises and/or the personal property.  Such proceeds shall be paid out from time totime as the work of restoration progresses, upon such certificates ofarchitects and/or other professionals as Mortgagee may require from time totime.  Mortgagee shall not, however, berequired to release or pay any portion of such proceeds to Mortgagor unless (i) Mortgagorfirst deposits with Mortgagee any additional funds which, together with suchproceeds, are necessary to cover the cost of restoration of the premises as aneconomically functional unit that provides reasonable security to Mortgagee, asestablished by the certificate of an architect or engineer employed byMortgagee at Mortgagor’s expense, and (ii) such restoration is begunpromptly and is diligently pursued to completion, all in accordance with plansand specifications submitted to and approved by Mortgagee.  Upon the failure of Mortgagor to comply withthe requirements of the preceding sentence, Mortgagee may apply all proceeds(or remaining proceeds) to any amounts due Mortgagee under the LoanDocuments.  Mortgagor shall reimburseMortgagee for all costs and expenses, including reasonable professional feesand reasonable legal fees, incurred in good faith by Mortgagee in connectionwith the foregoing matters, such reimbursement to be made within ten (10) daysafter Mortgagee’s demand.  Notwithstanding the foregoing, if the net amount of insurance proceedsis less than $50,000 and if no Event of Default has occurred and is thencontinuing, then Mortgagee promptly shall pay such proceeds over to Mortgagor.

 

D.            Nothingin this Section 4 shall be deemed to relieve Mortgagor of its duty tomaintain and repair the premises and the personal property and to restore thepremises and to replace the personal property upon the occurrence of anymaterial loss, damage, or destruction, regardless of whether sufficientinsurance proceeds are available to Mortgagor.

 

4

----

 

5.             ***Care of Property***.

 

A.            Mortgagorwill make such repairs and replacements and take such other steps as may benecessary to keep and maintain the premises and the personal property in goodrepair, order, and condition.

 

B.            Exceptas otherwise expressly provided in this mortgage, no material part of thepremises shall be removed, demolished, or altered substantially without theprior express written consent of Mortgagee, which shall not be unreasonablywithheld or delayed.

 

C.            Mortgagorwill comply in all material respects with all federal, state, and local laws,ordinances, and regulations relating to the premises and/or the personalproperty, provided that Mortgagor may contest its duty of compliance by anyappropriate proceedings that effectively stay any enforcement action.

 

D.            Mortgagorwill give prompt notice to Mortgagee of any damage to the premises or thepersonal property by fire or other casualty where the cost of repair exceeds$10,000.

 

E.             Mortgagorauthorizes Mortgagee and its representatives to enter upon and inspect thepremises and the personal property at any time during normal business hoursafter reasonable notice to Mortgagor.

 

F.             Ifall or any material part of the premises or the personal property shall bedamaged by fire or other casualty, then Mortgagor promptly shall repair,replace, and/or restore the premises and the personal property, regardless ofwhether or not there are any insurance proceeds available.  If any material part of the premises or thepersonal property shall be physically damaged, removed, or made unavailable foruse as a result of a taking or other condemnation, then subject to theprovisions of Section 6 of this mortgage Mortgagor shall promptly restore,repair, and/or replace the remainder in a manner reasonably satisfactory toMortgagee.

 

6.             ***Takings.***  Mortgagee shall be entitled to receive allawards of damages for any taking, condemnation, or other action by anygovernmental or quasi-governmental entity or authority resulting in any loss ordamage to any part of the premises or the personal property.  Provided no Event of Default has occurred andis then continuing, and provided Mortgagor satisfies all conditions set forthin this Section 6, then Mortgagee shall, after deducting from such awardsall of Mortgagee’s expenses incurred in good faith in collection of suchawards, including reasonable professional fees and reasonable attorneys’ fees,either (i) if Mortgagor demonstrates to Mortgagee’s satisfaction (a) thatit is physically and economically practical to restore the premises, (b) thatMortgagor has ample funds to accomplish the restoration, and (c) that suchrestoration will leave the premises in a condition that provides reasonablesecurity to Mortgagee, make the net proceeds of such awards available toMortgagor for restoration, in which case such awards shall be paid out fromtime to time as the work of restoration progresses, upon Mortgagee’s receipt ofsuch certificates of architects and/or other professionals as Mortgagee mayrequire from time to time require, or (ii) otherwise, apply such net awardto the indebtedness secured by this mortgage in such manner as Mortgagee maydetermine.  Mortgagor shall 

 

5

----

 

reimburse Mortgagee for all costs and expenses, including reasonableprofessional fees and reasonable legal fees, incurred in good faith byMortgagee in connection with the foregoing matters, such reimbursement to bemade within ten (10) days after Mortgagee’s demand.

 

7.             ***Subordination to Leases***.  Mortgagee shall have the right, by theexecution of suitable written agreements from time to time, to subordinate thismortgage to any lease or leases from time to time in force, and on theexecution of any such instrument this mortgage shall be subordinate to thelease for which subordination is applicable with the same force and effect asif such lease had been executed and delivered, and a notice thereof recorded tothe extent required to give notice to third persons, prior to the execution,delivery, and recording of this mortgage. Nothing in this mortgage shall be construed to obligate Mortgagee toperform any of the duties of Mortgagor as lessor under any of the leases of thepremises or to pay any sum of money required by the terms of such leases to bepaid by Mortgagor, nor shall this Section 7 be interpreted to limit thegenerality of Section 11 of this mortgage.

 

8.             ***Expenses***.  Within ten (10) days of Mortgagee’sdemand, Mortgagor shall reimburse Mortgagee for all costs and expenses incurredby Mortgagee, including reasonable attorneys’ fees, in any action, proceeding,or dispute of any kind in which Mortgagee is made a party or appears as anintervenor or party plaintiff or defendant, affecting or relating to any of theLoan Documents, to Mortgagor, or to the premises and/or the personal property,including, without implied limitation, the foreclosure of this mortgage, anytaking or other condemnation involving the premises, or any action to protectthe security afforded Mortgagee by this mortgage.  Any such amounts paid by Mortgagee shall beadded to the indebtedness secured by this mortgage and shall bear interest atthe default rate provided in the Note. In the event of redemption after foreclosure proceedings have beencommenced, Mortgagee shall be entitled to recover all costs, charges, andexpenses, including reasonable professional fees and reasonable attorneys’fees, incurred up to the time of redemption. In case of a foreclosure sale, Mortgagee shall be entitled to retain outof the monies arising from such sale all sums then secured by this mortgage,whether then or thereafter payable, including all costs, charges, or expenses,including reasonable professional fees and reasonable attorneys’ fees, incurredor sustained by Mortgagee by reason of any default in the performance orobservance of any condition of this mortgage.

 

9.             ***Management and Other Agreements***.  Without Mortgagee’s prior express writtenconsent, which shall not be unreasonably withheld or delayed, Mortgagor shallnot enter into (i) any agreement for management or maintenance of thepremises for a term in excess of one year, or (ii) any agreement orobligation the benefit or burden of which may run with the land.

 

10.           ***Estoppel Certificates***.  From time to time, Mortgagor and Mortgageeshall furnish, either on request of the other, signed written statementssetting forth (i) the amount of unpaid principal and interest secured bythis mortgage, (ii) whether or not any offsets or defenses exist againstMortgagee’s claims for such principal and interest, and (iii) the thenstate of facts relative to the condition of the premises and the personalproperty.

 

11.           ***Prohibition of Transfer***.

 

A.            ***Prohibited transfers***.  Unless expressly permitted under this Section 11,there shall occur no transfer, in any manner whatever, voluntarily orinvoluntarily, by operation 

 

6

----

 

of law or otherwise, of any part of the legal or equitable title to allor any portion of the premises or the personal property.  The transfers prohibited by the precedingsentence shall include, without implied limitation, (1) any sale of all orany portion of the premises and/or the personal property, and (2) thegranting of any mortgage, security interest, lease (except in accordance with Section 11C),devise, gift, or easement.  Any suchtransfer made without Mortgagee’s prior express written consent shallconstitute an Event of Default under this mortgage.

 

B.            ***Successors in interest***.  Without notice to Mortgagor, Mortgagee maydeal with Mortgagor’s successor or successors in interest with reference to themortgage and the debt secured by this mortgage in the same manner as withMortgagor, without in any way discharging Mortgagor’s liability or obligationswith respect to this mortgage or such debt.

 

C.            ***Permitted transfers***.  The provisions of Section 11A shall notprohibit (1) replacements of obsolete or worn-out portions of the personalproperty, (2) the leasing of the premises on commercially reasonable termsto affiliates of Mortgagor, provided that each such lease is junior to the lienof this mortgage, or (3) any of the following (“Permitted Liens”):

 

(i)            Liens tosecure Governmental Charges in respect of obligations not overdue;

 

(ii)           Liens tosecure claims for labor, material, or supplies in respect of obligations notoverdue; and

 

(iii)          Lienssecuring (in the aggregate) less than $50,000 in respect of judgments or awardsthat have been in force for less than the applicable period for taking anappeal so long as execution is not levied thereunder and in respect of whichthe Mortgagor in good faith is prosecuting an appeal or proceedings for reviewand in respect of which a stay of execution shall have been obtained pendingsuch appeal or review.

 

D.            ***Changes pertaining to Mortgagor.***  Without limiting the generality of any otherprovision in this mortgage, Mortgagor warrants (1) that there will occurno amendment, restatement, or other change in the declaration of trustidentified on the first page of this mortgage, (2) that at all timesthe entity which currently is the beneficiary of Mortgagor will remain the onlybeneficiary, (3) that such beneficiary of Mortgagor will not transfer orencumber voluntarily in any manner all or any part of its beneficial interest,and (4) that such beneficiary will not suffer any involuntary transfer orencumbrance of all or any part of its beneficial interest.

 

12.           ***Mortgagee’s Right to Cure***.  Mortgagee shall be entitled, but notobligated, to cure any default of Mortgagor not cured by Mortgagor within anyapplicable grace period.  Mortgagee shallbe reimbursed by Mortgagor for all costs, charges, and expenses, includingwithout implied limitation reasonable professional fees and reasonableattorneys’ fees, incurred in connection therewith.  All sums for which Mortgagee may be entitledto reimbursement shall earn interest at the default rate set forth in the Note,shall be secured by the Loan Documents, and shall be payable on demand ofMortgagee.

 

7

----

 

13.           ***Other Mortgages***.  If at any time the premises are encumbered byanother mortgage, or by a security interest granted pursuant to a securityagreement to which Mortgagee is not a party, then Mortgagor shall not modify,amend, or extend such prior mortgage or security agreement, or the debt or anyobligation secured thereby, without the prior written consent ofMortgagee.  Mortgagor shall not accept orrequest any further advances secured by any such other mortgage or securityagreement.  Mortgagor shall fulfill allits obligations under such other mortgage or security agreement, and upon anydefault thereunder Mortgagee shall be entitled but not obligated to cure saiddefault and be reimbursed therefor, in the manner provided in Section 12of this mortgage.

 

14.           ***Financial and Other Information***.  From time to time on Mortgagee’s requestMortgagor promptly shall furnish Mortgagee with all financial and otherinformation requested by Mortgagee in connection with the condition,profitability, and operation of the premises.

 

**ARTICLE TWO**

 

**Rights of Mortgagee**

 

Inaddition to, and not in limitation of, any other rights and remedies availableto Mortgagee, Mortgagee shall have the following rights and remedies.

 

15.           ***Events of Default***.  The term “Event of Default”, wherever used inthis mortgage, shall mean any one or more of the following events:

 

(a)           Materialbreach by Mortgagor of any of Mortgagor’s covenants and agreements underSections 11, 13, or 19 of this mortgage;

 

(b)           Anymaterial breach or violation with respect to any representation, warranty,covenant, agreement, or other obligation arising under this mortgage (otherthan under Sections 11, 13, or 19 of this mortgage), where such breach orviolation continues beyond the period, if any, specifically allowed Mortgagorunder this mortgage for a cure, or if this mortgage allows no such specificperiod, then for more than thirty (30) days after written notice; provided,however, that (i) if such breach or violation cannot be cured within suchspecific period or such thirty (30) day period and (ii) if Mortgagor (A) commencesa cure within the applicable period and (B) diligently and continuouslyprosecutes the cure to completion within sixty (60) days after its occurrence,then such breach or violation shall not constitute an Event of Default; but thecure periods described above shall not be construed to give Mortgagor any rightto cure any default under any instrument other than this mortgage;

 

(c)           Anyoccurrence or circumstance that constitutes an “Event of Default” as defined inany of the Loan Documents;

 

(d)           Thevoluntary or involuntary imposition upon the premises or the personal propertyof any lien other than a Permitted Lien, provided that if such a lien isinvoluntary Mortgagor shall have thirty (30) days after learning of the lien inwhich to dissolve the lien; or

 

8

----

 

(e)           Anyuninsured loss of or damage to a material portion of the premises and/or thepersonal property, if Mortgagee determines to its reasonable satisfaction thatit is not feasible for Mortgagor promptly to restore the premises or thepersonal property to a condition which provides reasonable security toMortgagee.

 

16.           ***Acceleration of Maturity***.  If an Event of Default occurs, then atMortgagee’s election the entire indebtedness secured by this mortgage shallbecome immediately due and payable without notice or demand.

 

17.           ***Mortgagee’s Power of Enforcement***.  This mortgage is upon the STATUTORY CONDITIONand upon the further condition that no Event of Default shall occur.  Upon the failure of either such condition,then Mortgagee (a) shall have, as to the premises and all of the personalproperty to which the statutory power of sale applies, the STATUTORY POWER OFSALE, (b) shall have, as to any portion of the personal property to whichthe statutory power of sale does not apply, all of the rights and remedies of asecured party under the Uniform Commercial Code of the state in which thepremises are located, and (c) may take such other actions or proceedingsas Mortgagee deems necessary or advisable to protect its interests under thismortgage.  All such rights and remediesmay be exercised individually, sequentially, or in concert, all such rights andremedies being cumulative, the exercise of one not being deemed a waiver of anyof the others or a cure of any default. In exercising its powers of sale under this mortgage, Mortgagee may sellthe premises and/or the personal property as a whole or in such separate partsas Mortgagee may in its discretion elect, Mortgagor hereby waiving, on behalfof itself and its successors and assigns, the application of any doctrine ofmarshaling.  If Mortgagee elects to sellthe premises and/or the personal property in parts or parcels, the sales may beheld from time to time, and Mortgagee’s powers of sale shall not be exhausteduntil all of the premises and the personal property shall have been sold.

 

18.           ***No Waiver or Release***.  The failure or delay of Mortgagee to exerciseany option, right, remedy, or election shall not be deemed to be a waiver.  No sale of all or any part of the premises orthe personal property, no forbearance on the part of Mortgagee, no release orpartial release thereof, no extension of the time for payment of all or anypart of the indebtedness secured by this mortgage, and no other indulgencegiven by Mortgagee to Mortgagor (or to any other person obligated to Mortgageeunder the Loan Documents) shall operate to release or otherwise affect eitherthe lien of this mortgage or the original liability of Mortgagor, notice of allsuch forebearance, releases, extensions, and indulgences being hereby waived byMortgagor.

 

**ARTICLE THREE**

 

**Hazardous Materials**

 

19.           ***Hazardous Materials***

 

A.            ***Compliance with Superfund and Hazardous Waste Laws***.  Mortgagor warrants and represents that to thebest of Mortgagor’s knowledge, except to the extent disclosed in writing toMortgagee before the signing of this mortgage, there are no “oil”, “hazardousmaterials”, “hazardous wastes”, or “hazardous substances” (collectively, “Materials”)as such terms are defined under Comprehensive Environmental Response,Compensation, and Liability 

 

9

----

 

Act, 42 U.S.C. Section 9601, et seq., as amended, the ResourceConservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., asamended, and the regulations promulgated thereunder, and all applicable stateand local laws, rules, and regulations, including, without limitation,Massachusetts General Laws, Chapters 21C and 21E (collectively, “Superfund andHazardous Waste Laws”) in or on the premises, except those for which Mortgageehas given prior express written approval, and then only to the extent that thepresence of the Materials is (i) properly licensed and approved by allappropriate governmental officials, (ii) in accordance with all applicablelaws and regulations, and (iii) in compliance with any terms andconditions stated in the prior written approval issued by Mortgagee.  Mortgagor covenants to comply strictly withthe requirements of the Superfund and Hazardous Waste Laws and to notifyMortgagee promptly of the presence of any Materials in or on the premises.  Mortgagor covenants to protect, indemnify,and hold Mortgagee harmless from and against all loss, cost, damage, andliability, including reasonable attorneys’ fees and costs of litigation,suffered or incurred by Mortgagee on account of the presence of Materials in oron the premises, including, without limitation, any such loss, cost, damage, orliability arising from a violation of any of the Superfund or Hazardous WasteLaws.

 

B.            ***Additional Events of Default***.  The term “Event of Default” in this mortgageshall include the following events in addition to those identified elsewhere inthis mortgage:

 

(1)           IfMortgagor fails to comply with any of the covenants and representations setforth in this Section 19;

 

(2)           Ifat any time any representation or warranty made by Mortgagor in this Section 19shall be materially incorrect;

 

(3)           Ifany Materials are or become present in or on the premises, except those forwhich Mortgagee has given prior express written approval, and then only to theextent that the presence of the Materials is (i) properly licensed andapproved by all appropriate governmental officials, (ii) in accordancewith all applicable laws and regulations, and (iii) in compliance with anyterms and conditions stated in the prior written approval issued by theMortgagee;

 

(4)           Ifat any time there is a material release, discharge, deposit, injection,dumping, spilling, leaking, incineration, or placing of any Materials into oron the premises; or

 

(5)           Ifat any time the use, generation, treatment, storage, disposal, or treatment ofany Materials on the premises is in violation of applicable laws andregulations.

 

C.            ***Cure by Mortgagor***.  Notwithstanding the provisions of Section 19B,if Mortgagor (a) promptly gives Mortgagee notice of the presence of anyMaterials in or on the premises; (b) complies with any notice requirementsimposed by any of the Superfund and Hazardous Waste Laws; (c) promptlycommences to arrange for the cleanup of such Materials and/or the containmentof Materials where there is a threat of release; (d) demonstrates toMortgagee’s satisfaction that Mortgagor has the financial resources to performthe cleanup and/or 

 

10

----

 

containment; and (e) diligently and successfully pursues thecleanup and/or containment, as the case may be, through to completion, thenMortgagee agrees not to take any action to (i) cure Mortgagor’s default, (ii) prosecuteforeclosure proceedings, (iii) accelerate payment under the Note, or (iv) availitself of any other remedies, unless in Mortgagee’s good faith judgment theexercise of any such remedies is necessary to protect its security.

 

D.            ***Cure by Mortgagee***.  At its election, in its sole discretion, andwithout notice, but subject to the foregoing Section 19C, Mortgagee may(but shall not be obligated to) cure any failure on the part of Mortgagor orany occupant of the premises to comply with the Superfund and Hazardous WasteLaws, including without implied limitation the following actions:

 

(1)           Arrangefor the cleanup or containment of any Materials found in, on, or near thepremises, and pay cleanup costs, containment costs, and other costs associatedwith the project, including without implied limitation any professional fees;

 

(2)           Payon behalf of Mortgagor any fines or penalties imposed upon Mortgagor by anyfederal, state, or local governmental agency or authority; and

 

(3)           Makeany other payment or perform another act which in Mortgagee’s judgment mightprevent a lien from attaching to the premises or which might dissolve or reduceany lien already attached.

 

Anypartial exercise by Mortgagee of the foregoing remedies or any partialundertaking on the part of Mortgagee to cure Mortgagor’s failure (or thefailure of any occupant of the premises) to comply with the Superfund andHazardous Waste Laws shall not obligate Mortgagee to complete the actions takenor to expend further sums to cure any such noncompliance; neither shall theexercise of any such remedies operate to place upon Mortgagee anyresponsibility for the operation, control, care, management, or repair of thepremises, or make the Mortgagee the “operator” of the premises within themeaning of the Superfund and Hazardous Waste Laws.

 

Anyamounts paid or costs incurred by Mortgagee as a result of any actions takenunder this Section 19, together with interest at an annual rate equal tothe rate then accruing on the Note, including any default rate, (i) shallbe due and payable by Mortgagor to Mortgagee on demand and (ii) shall beadded to and become a part of the indebtedness secured by this mortgage.  By making any such payment or incurring anysuch costs, Mortgagee shall be subrogated to any rights of Mortgagor, or thoseclaiming under Mortgagor, to seek reimbursement from any third parties,including without implied limitation any predecessor in interest to Mortgagor’stitle.

 

E.             ***Tenants’ Use of Materials***.  In every lease or other agreement for thepossession and use of all or any portion of the premises, Mortgagor shallinclude provisions satisfactory to Mortgagee which require the tenant (a) tocovenant that the leased premises will not be used for the generation, storage,treatment, use, or disposal of Materials, (b) to covenant to deliverpromptly to Mortgagor and to Mortgagee copies of any notices received by thetenant in connection with the presence (or alleged presence) of Materials in orupon the premises, (c) to 

 

11

----

 

allow both Mortgagee and Mortgagor periodically to inspect the leasedpremises and (d) to indemnify and hold harmless both Mortgagor andMortgagee from and against all loss, liability, damage, and expense, includingreasonable consultants’ and attorney’s fees, arising from the presence (oralleged presence) of Materials in or upon the premises.

 

F.             ***Studies and reports***.  If an Event of Default is outstanding and ifMortgagee has notified Mortgagor of its intention to commence foreclosure, thenMortgagor shall permit Mortgagee’s agents and contractors to enter upon thepremises after reasonable notice from time to time to test the premises for thepresence of Materials.  The costs of suchtests and all related fees and expenses incurred in good faith by Mortgageeshall be payable by Mortgagor on demand and to the extent permitted by lawshall be recoverable from the proceeds of any foreclosure sale.

 

**ARTICLE FOUR**

 

**Miscellaneous Provisions**

 

20.           ***Notices***.  All notices shall be in writing and shall bedelivered to Mortgagor (a) at the address stated on the first page ofthis mortgage and (b) to the same address but in care of Boston RestaurantAssociates, Inc., Attn: Controller, and to Mortgagee at 390 Main Street,Worcester, Massachusetts, Attention: Commercial Loan Department, or to such other address as either partyspecifies in writing.  A notice may begiven in any manner, but a notice shall take effect only upon (1) itsactual delivery to the specified address or (2) the third business dayafter being sent by certified mail. Copies shall be sent to counsel as follows, but failure to send a copyshall not invalidate the notice:

 
| **Mortgagor’s counsel**       | ** ** | **Mortgagee’s counsel**               |
|------------------------------------|------------|--------------------------------------------|
| Andrew P.  Strehle, Esq.      |       | Dale R.  Harger, Esq.                 |
| Brown Rudnick Berlack  Israels LLP |       | Mountain,  Dearborn & Whiting LLP |
| 1 Financial  Center                |       | 370 Main Street                            |
| Boston, MA 02111                   |       | Worcester, MA  01608                       |

 

21.           ***Amendments***.  This mortgage may not be amended, waived, ordischarged orally, but only by an agreement in writing signed by both Mortgagorand Mortgagee.  No such amendment shalltake effect until it is recorded in the appropriate registry of deeds or otherappropriate office.

 

22.           ***Severability***.  The invalidity of any provision of this mortgage,as determined by a court of competent jurisdiction, shall not affect thevalidity of any other provision.

 

23.           ***Governing Law***.  This mortgage shall be interpreted andenforced in accordance with the laws of the Commonwealth of Massachusetts.

 

24.           ***Successors and Assigns***.  This mortgage shall be binding upon and inureto the benefit of Mortgagee and its successors and assigns and Mortgagor andits successors and assigns.

 

12

----

 

25.           ***Entire agreement***.  This mortgage states the parties’ entireagreement concerning its subject matter, superseding all prior agreements,representations, and understandings.

 

**ARTICLE FIVE**

 

**Condominium Provisions**

 

Mortgagor covenants andagrees with Mortgagee as follows concerning the “Condominiums,” as definedbelow.

 

26.           ***Definitions.***

 

A.            “Condominiums”means collectively the three condominiums identified in the attached Exhibit A.

 

B.            “CondominiumDocuments” means collectively (i) the master deeds of the Condominiums, asamended, including all rules and regulations, as amended, and (ii) thedeclarations of trust recorded with such master deeds, including all amendmentsto such declarations of trust.

 

27.           ***Undertakings***.  Mortgagor shall pay on a timely basis allfees and other charges assessed upon Mortgagor or the premises pursuant to theCondominium Documents.  Mortgagor shallperform and observe all of its other duties and obligations arising under theCondominium Documents.  Mortgagor shallnotify Mortgagee promptly in writing after Mortgagor becomes aware of (a) anymaterial casualty loss to the common property of any of the Condominiums or (b) anylapse of any casualty insurance on such common property.  Without Mortgagee’s prior express writtenconsent, which shall not be unreasonably withheld or delayed, Mortgagor shallnot approve or consent to (i) any material amendment of any of theCondominium Documents or (ii) any dissolution or termination of the legalstatus or legal existence of any of the Condominiums.

 

Signedand sealed April 14, 2005.

 
|   | BRA Nominee  Trust |
|--------|--------------------|
|   |               |
|   | By:                |   |   |
|   |               | George R. Chapdelaine, Trustee |   |
|   |               |
|   |               |

 

13

----

 

The Commonwealth of Massachusetts

 
| Worcester, ss. |   | April 14, 2005 |
|----------------|--------|---------------------|

 

GeorgeR. Chapdelaine personally appeared before me in his capacity as Trustee of BRANominee Trust and acknowledged having signed the foregoing document in thatcapacity voluntarily for its stated purpose. To identify the signatory I relied upon:

 

o                                    adriver’s license or other state or federal government document bearing aphotographic image.

 

o                                    anoath or affirmation of a credible witness known to me who knows the signatory.

 

o                                    mypersonal knowledge of the identity of the signatory.

 
|   |                             |   |
|--------|----------------------------------|--------|
|   | Notary Public:  Dale R. Harger   |
|   | My commission  expires: 10/23/09 |
|   |                             |
|   |                             |

 

14

----

 

**EXHIBIT A**

**To Mortgage and Security Agreement**

**Granted to Commerce Bank & Trust Company**

**By George R. Chapdelaine, Trustee**

**of BRA Nominee Trust**

 

**EXHIBIT A**

 

**Parcel 1**

 

The condominium unit (the “Unit”) known as andnumbered Unit No. 11 1⁄2 Thacher Street, Boston, Massachusetts in the 13 ThacherStreet Condominium (the “Condominium”), a condominium situated at 11 1⁄2 - 13 ThacherStreet, Boston, Massachusetts.  TheCondominium has been created by Master Deed dated December 30, 1987, andrecorded with the Suffolk County Registry of Deeds in Book 14379, Page 146.

 

Together with anundivided 20.00 percent interest appertaining to said Unit in the common areasand facilities of said Condominium, and together with the rights and easementsappurtenant to said Unit as set forth in the Master Deed, as the same may beamended from time to time.

 

Said Unit is subject toand with the benefit of the restrictions on use set forth in said Master Deed.

 

The Unit is conveyedsubject to and with the benefit of a) the terms and provisions of said MasterDeed; b) the Declaration of Trust of the 13 Thacher Street Condominium Trustdated December 30, 1987 and recorded with said Deeds in Book 14379, Page 173,including the By-Laws therein set forth, and any rules and regulationspromulgated pursuant thereto; c) the provisions of Massachusetts General LawsChapter 183A, relating to condominiums as that statue is written as of the datehereof, and as it may in the future be amended; and d) all rights,restrictions, easements and covenants of record.

 

Being the same premisesconveyed by deed of Peter A. Modica individually and as Trustee of The ModicaRealty Trust dated January 23, 1991 and recorded with Suffolk Registry ofDeeds in Book 16715, Page 100.

 

# **Parcel 2**

# ** **

The condominium unit (the “Unit”) known as andnumbered Unit No. C in the 15 Thacher Street Condominium (the “Condominium”),a condominium situated at 15 Thacher Street, Boston, Massachusetts.  The Condominium has been created by MasterDeed dated December 30, 1987, and recorded with the Suffolk CountyRegistry of Deeds in Book 14379, Page 82.

 

Together with anundivided 20.00 percent interest appertaining to said Unit in the common areasand facilities of said Condominium, and together with the rights and easementsappurtenant to said Unit as set forth in the Master Deed, as the same may beamended from time to time.

 

15

----

 

Said Unit is subject to andwith the benefit of the restrictions on use set forth in said Master Deed.

 

The Unit is conveyedsubject to and with the benefit of a) the terms and provisions of said MasterDeed; b) the Declaration of Trust of the 15 Thacher Street Condominium Trust datedDecember 30, 1987 and recorded with said Deeds in Book 14379, Page 109,including the By-Laws therein set forth, and any rules and regulationspromulgated pursuant thereto; c) the provisions of Massachusetts General LawsChapter 183A, relating to condominiums as that statue is written as of the datehereof, and as it may in the future be amended; and d) all rights,restrictions, easements and covenants of record.

 

Being the same premisesconveyed by deed of Peter A. Modica individually and as Trustee of The ModicaRealty Trust dated January 23, 1991 and recorded with Suffolk Registry ofDeeds in Book 16715, Page 103.

 

# **Parcel 3**

# ** **

The condominium unit (the“Unit”) known as and numbered Unit No. A in the 76-78 North Margin StreetCondominium (the “Condominium”), a condominium situated at 76-78 North MarginStreet, Boston, Massachusetts.  TheCondominium has been created by Master Deed dated April 2, 1987, andregistered with the Suffolk County Registry District of the Land Court asDocument No. 423339 on Certificate of Title No. 98197.

 

Together with anundivided 15.00 percent interest appertaining to said Unit in the common areasand facilities of said Condominium, and together with the rights and easementsappurtenant to said Unit as set forth in the Master Deed, as the same may beamended from time to time, and indicated on Condominium Plan No. 1862-Btogether with undivided fractional interest in common areas.

 

Said Unit is subject toand with the benefit of the restrictions on use set forth in said Master Deed.

 

The Unit is conveyedsubject to and with the benefit of a) the terms and provisions of said MasterDeed; b) the Declaration of Trust of the 76-78 North Margin Street CondominiumTrust dated April 28, 1987 and registered with said Registry District asDocument No. 423342A, including By-Laws therein set forth, and any rules andregulations promulgated pursuant thereto; c) the provisions of MassachusettsGeneral Laws Chapter 183A, relating to condominiums as that statute is writtenas of the date hereof, and as it may in the future be amended; and d) allrights, restrictions, easements and covenants of record.

 

Being the same premises conveyed by deed of Peter A.Modica individually and as Trustee of The Modica Realty Trust dated January 23,1991 and registered with Suffolk Registry of Deeds of the Land Court asDocument No. 472987.

 

16

----

 

**EXHBIIT B**

**To Mortgage and Security Agreement**

**Granted to Commerce Bank & Trust Company**

**By George R. Chapdelaine, Trustee**

**of BRA Nominee Trust**

 

Anyand all (i) portable or sectional buildings; (ii) screens, awnings,screen doors, storm and other detachable windows and doors; (iii) windowshades and blinds; (iv) garbage and trash incinerators and receptacles; (v) installedtrees, shrubs, plants, fences, and gates; (vi) heating, lighting,incinerating, refrigerating, freezing, ventilating, air conditioning, aircooling, fire extinguishing, sprinkling, plumbing, cleaning, and powerequipment and apparatus, including and without limitation boilers, tanks,furnaces, radiators, water heaters, air conditioners, and compressors; (vii) gas,water, and electrical equipment and apparatus; (viii) elevators,escalators, switchboards, engines, motors, tanks, pumps, partitions, conduits,and ducts; (ix) furniture, shelving, counters, scales and cabinets; (x)computers, cash registers and office equipment; (xi) construction equipment,materials, supplies, and tools; (xii) household or commercial appliances,cabinets, furnishings, carpeting, draperies and light fixtures; (xiii) cranes,elevators, and other devices used or usable for lifting and moving; and (xiv)wires, cables, switches, and other devices used or usable for communicationand/or information transfer; all together with (xv) all parts, fittings,accessories, equipment, special tools, renewals, and replacements of all or anypart thereof, and all other property of the same class whether now owned orhereafter acquired by Mortgagor.

 

17

----