**Exhibit 10.14**

 

**LoanAgreement**

 

This is an agreementamong Boston Restaurant Associates, Inc., a Delaware corporation with itsheadquarters in Saugus, Massachusetts (“BRAI”), George R. Chapdelaine (“Trustee”),only in his capacity as Trustee of BRA Nominee Trust (“Trust”) under adeclaration of trust dated January 23, 1991, recorded with the SuffolkCounty Registry of Deeds in Book 16684, Page 20, and filed with theSuffolk Registry District of the Land Court as Document No. 472988, andCommerce Bank & Trust Company, a Massachusetts trust company with itsheadquarters in Worcester, Massachusetts (“Lender”).

 

1.                                       ***Circumstances of the agreement***.  BRAI, the Trustee, and Lender enter into thisagreement in the following circumstances.

 

A.                                   Through wholly-ownedsubsidiaries, BRAI operates a chain of sixteen restaurants.  Such restaurants (“Restaurants”) are listedon the schedule attached to this agreement as Schedule 1.

 

B.                                     TheTrustee owns three connected condominium units in Boston, Massachusetts (“Property”),which are leased to one of BRAI’s subsidiaries for its use as one of theRestaurants and for storage.

 

C.                                     Pursuantto a Loan Agreement dated April 30, 2002 (“2002 Loan Agreement”), Lenderestablished for BRAI certain credit facilities in the maximum amount of$3,500,000 (“2002 Loans”).

 

D.                                    BRAIand the Trustee (“Borrowers”) have requested that Lender consolidate andrestructure the 2002 Loans by making the following loans (“New Loans”):

 

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(1)                                  $800,000to the Trustee (“Mortgage Loan”), the proceeds of which will be used primarilyto pay off a portion of the outstanding balance of the 2002 Loans; and

 

(2)                                  $1,500,000to BRAI (“Term Loan”), the proceeds of which will be used primarily to pay offthe remainder of the outstanding balance of the 2002 Loans.

 

E.                                      Lenderhas approved Borrowers’ loan request on the terms and conditions stated in thisagreement and in certain other legal documents signed on this date.

 

2.                                       ***Certain definitions.***** The followingdefined terms are used in this agreement.

 

A.                                   “Loan Documents” meansthis agreement and all other legal documents signed and delivered to Lender byBorrowers before, upon, or after the date of this agreement in connection withany aspect of the transactions contemplated by this agreement, includingwithout implied limitation (1) the promissory notes that evidence the NewLoans, (2) a collateral assignment of a life insurance policy, (3) amortgage of even date granted by the Trustee to Lender on the Property, and (4) anassignment of leases and rents of even date with respect to the Property,together with all amendments, restatements, modifications, replacements,renewals, supplements, and substitutions thereof and therefor.  A list of the Loan Documents as of the dateof this agreement is attached to this agreement as Schedule 2.

 

B.                                     “Related Documents”means all agreements and all other legal documents signed and delivered betweenor among Lender and any third party or parties on or after the date of thisagreement in connection with the transactions contemplated by this agreement(including third-party documents also signed by one or both of the Borrowers),together with all amendments, restatements, modifications, replacements,renewals, supplements, and 

 

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substitutions.  Among the RelatedDocuments are (1) a Multi-Party Guaranty Agreement of even date (“GuarantyAgreement”) among Lender, Borrowers, and BRAI’s subsidiaries, other thanPolcari’s of Hyannis, Inc., which are listed on Schedule 1 (“Subsidiaries”),and (2) a Multi-Party Security Agreement of even date among Lender, BRAI,and all of the Subsidiaries except Polcari’s of Cambridge, Inc.  A list of the Related Documents as of thedate of this agreement is attached to this agreement as Schedule 3.

 

C.                                     “Obligations”means all monetary and non-monetary obligations of payment, performance,observance, or otherwise, owed to Lender by Borrowers in connection with thetransactions contemplated by this agreement, by the other Loan Documents,and/or by the Related Documents, regardless of whether such obligations are nowexisting or hereafter arising, due or to become due, matured or unmatured,contingent or absolute, liquidated or unliquidated, or joint, several, or jointand several.

 

D.                                    “Obligors” meanscollectively Borrowers and the Subsidiaries.

 

3.                                       ***New Loans***.  Lender shall advance the proceeds of the NewLoans as soon after the date of this agreement as Borrowers have satisfied allof Lender’s closing and funding conditions. Borrowers agree to satisfy such conditions within thirty days after thedate of this agreement.

 

4.                                       ***Status of commitment letter.**** *Lender’s commitmentletter dated January 19, 2005, is terminated by this agreement.

 

5.                                       ***Key person life insurance.**** *At all times whileany of the Obligations remain outstanding, BRAI shall keep in full force andeffect, through one or more insurers reasonably satisfactory to Lender, one ormore policies of insurance (“Policies”) on the life of BRAI’s President, who isnow George R. Chapdelaine (“Executive”). At all times the Policies (1) shall 

 

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be owned by BRAI, (2) shall identify BRAI as the beneficiary, (3) shallprovide death benefits aggregating not less than One Million Dollars($1,000,000), net of policy loans, payable to BRAI upon the death of theExecutive, and (4) shall be collaterally assigned to Lender in the netamount of $1,000,000 as security for the Obligations on terms and conditionssatisfactory to Lender.  No suchcollateral assignment shall be considered complete until it has beenacknowledged by the insurer.  Upon thedeath of the current Executive or any successor Executive, Lender may apply theproceeds of the Policies to payment of the Obligations in such a manner asLender decides advisable, even if no Event of Default is then outstanding.  The insurance coverage required by this Section 5shall be in addition to the insurance coverage referenced in Section 7B.

 

6.                                       ***Prohibition regarding cash dividends anddistributions.**** * BRAI covenants and agrees with Lender that itwill not pay any cash dividends to any of its stockholders or make any othercash distribution to any of its stockholders on account of the stock held bysuch stockholders, except that Borrower may pay dividends to the holders of itspreferred stock issued as of January 20, 2005 (“Preferred Stock”), asrequired by the terms thereof.  BRAIrepresents to Lender that the Preferred Stock was issued pursuant to and inaccordance with documents in the form of those that are attached to this agreementas collective Exhibit D.

 

7.                                       ***Debentures.***

 

A.                                   BRAI represents toLender (a) that the list attached as Schedule 4 identifies correctlyall of BRAI’s outstanding convertible debentures (“Debentures”) and (b) thatall of the Debentures are in the form attached as Exhibit A.  BRAI shall make no payments of principal onthe Debentures while any of the Obligations remain outstanding, except asprovided in Section 7B, but may make regularly scheduled payments ofinterest on the Debentures as long 

 

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as (i) no Event of Default has occurred, is outstanding, and hasnot been cured, waived, or ceased to exist, and (ii) the payment ofinterest would not cause an Event of Default to occur.  BRAI shall not voluntarily convert any of theDebentures if any Event of Default is outstanding.

 

B.                                     Subject to theprovisions of Section 5 of this agreement, BRAI may use up to $1,000,000of the proceeds of key man life insurance policy number 75119693 to permit theholders of the Debentures to redeem, on a pro rata basis amongst themselves,pursuant to an agreement dated as of December 31, 1996, up to $1,000,000in principal amount of the Debentures.

 

8.                                       ***Redemption of stock***.  BRAI shall not redeem any shares of its stockwithout Lender’s prior express written approval, which shall not beunreasonably withheld or delayed.   Astockholder’s conversion of Preferred Stock to common stock shall not beconsidered a violation of the foregoing provision, provided that BRAI makes nopayment in consideration of such conversion.

 

9.                                       ***Prohibition regarding loans, investments, andacquisitions. ***WithoutLender’s prior express written approval, BRAI shall not Invest in or Acquire(as defined below) any other business organization, except that BRAI may Investin any of the Subsidiaries.   In this Section 9,“Invest in or Acquire” means (i) to lend money, (ii) to guarantyanother’s obligations (except to Lender), (iii) to purchase securities ordebt, (iv) to acquire directly or indirectly any equity interest, and (v) toacquire all or substantially all of the assets of an organization.

 

10.                                 ***NewIndebtedness; Renovation Projects.***

 

A.                                   ***NewIndebtedness***.   BRAI shallnot incur any New Indebtedness without Lender’s prior express writtenconsent.  “New Indebtedness” includes anyactual or contingent liability arising after the date of this agreement from (1) anextension of credit, (2) a guaranty by 

 

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any of the Obligors of another’s indebtedness or obligations, or (3) anyother consensual transaction which creates in any of the Obligors a direct orindirect obligation of future payment; New Indebtedness does not include,however, (i) indebtedness incurred in financing a Renovation Project, asdefined below, provided that such financing is permissible under Section 10B,(ii)   indebtedness to vendorsincurred in the ordinary course of business to the extent that (a)  theinvoice is payable within ninety (90) days after the delivery of the goods orservices, and (b) payment is not more than thirty (30) days overdue, (iii) indebtednessowed to Lender, and (iv) guarantees of others’ indebtedness to Lender.

 

B.                                     ***Renovation Projects.  ***If BRAI and/or one of theSubsidiaries wishes to borrow money to renovate one or more of the Restaurants,then BRAI shall notify Lender of the scope and cost of the project (“RenovationProject”) and of the amount of financing desired (“Renovation Financing”).  Lender shall use reasonable efforts to notifyBRAI within thirty (30) days thereafter as to the terms and conditions, if any,on which Lender is willing to provide Renovation Financing.  If Lender makes any offer to provideRenovation Financing (“Offer”) then BRAI shall not proceed with the RenovationProject unless BRAI either accepts the Offer or elects to proceed with theRenovation Project without any Renovation Financing.  If Lender fails to make an Offer, then BRAIshall (i) proceed with the Renovation Project without any RenovationFinancing, (ii) cancel the Renovation Project, or (iii) with Lender’sprior express written consent, obtain Renovation Financing from a third party.

 

11.                                 ***Existingdebt.**** * Borrowers represent to Lender that the listattached to this agreement as Schedule 5 (“Other Debt”) identifiescorrectly all indebtedness of the Obligors, including capital leases, otherthan (a) the debt represented by the Debentures and (b) trade debt 

 

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to vendors.  Lender acknowledgesthat BRAI’s obligations with respect to the Preferred Stock do not constituteindebtedness for purposes of this Section 11.

 

12.                                 ***Financialcovenants.***** BRAI covenants and agrees with Lender asfollows:

 

A.                                   ***Profitability*.**  *  *As of the end of each fiscal year,BRAI**shall have annual net after-tax incomeof at least one dollar ($1.00).

 

B.                                     ***Losses***.  BRAI shall not have negative net after-taxincome in more than two consecutive fiscal quarters, even if the quarters spantwo fiscal years, except with the respect to the last quarter of BRAI’s 2005fiscal year and the first quarter of its 2006 fiscal year.

 

C.                                     ***Debt service coverage.***

 

(1)                                  As of the end of eachfiscal quarter of each fiscal year of BRAI, subject to Section 12C(2), theratio of (a) BRAI’s Adjusted Operating Cash Flow for the four most recentquarters, to (b) its Debt Service Liability for such four quarters, shallbe (c) at least one and one-half to one (1.50:1.00). “Adjusted OperatingCash Flow” means (x) the sum of (i)  net income after corporate incometaxes, (ii) interest payable on loans and capital leases, (iii) depreciationexpense, and (iv) amortization expense, less (y) the sum of (i) internallyfinanced capital expenditures and (ii) dividends paid in accordance with Section 6of this agreement to holders of the Preferred Stock, all for the four mostrecent quarters, and all on a consolidated basis.  “Debt Service Liability” means the sum of allprincipal and interest payable during such four quarters on all loans andcapital leases.  A copy of the formula tobe used for calculation of the foregoing covenant is attached to this agreementas Exhibit B.

 

(2)                                  For the first threequarters of the fiscal year ending in April 2006, notwithstanding theratio and the testing schedule prescribed by Section 12C(1), BRAI’sdebt service coverage ratio shall be measured and tested only as follows: (i) suchratio shall be at least 

 

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1.10:1.00  for the single fiscalquarter ending in July 2005; (ii) at least 1.30:1.00 for the twofiscal quarters ending in October 2005; and (iii) at least 1.50:1.00for the three fiscal quarters ending in January 2006.

 

D.                                    ***Capital expenditures.**** *In no fiscal yearshall BRAI’s aggregate capital expenditures, calculated as prescribed below,exceed Five Hundred Thousand Dollars ($500,000).  In calculating its capital expenditures, BRAI(a) shall include all payments due to be made by any of the Obligorsduring the year on capital leases to the extent that the payment obligationswere created during the year (whether through renewal, extension, orsupplementation of a previously existing lease or through execution of a newlease) but (b) shall exclude (i) the financed portion of the costs ofany Renovation Project if such costs are incurred in accordance with Section 10of this agreement and (ii) the costs of the current renovation of theRestaurant in Saugus, Massachusetts.  Alist of the Obligors’ current capital leases, including annual paymentobligations, is attached to this agreement as Schedule 6.

 

E.                                      ***Tangible net worth.**** *At all times the sumof (1) BRAI’s tangible net worth, as defined by generally acceptedaccounting principles (“GAAP”), and (2) the outstanding principal balanceof any indebtedness that is subordinated to Lender’s claims against BRAI onterms that are satisfactory to Lender (including the Debentures), shall be atleast Seven Hundred Thousand Dollars ($700,000).

 

F.*                                **Consolidation. ***Indetermining BRAI’s compliance with the covenants set forth in this Section 12,Borrower’s financial performance and condition shall be consolidated with thatof the Subsidiaries.

 

G.                               ***Exclusion***.  For all purposes of this Section 12,there shall be excluded all amounts reasonably allocable to Polcari’s ofCambridge, Inc.

 

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13.                                 ***Methodologyfor determining compliance with covenants. ***Compliance with all financial covenants in this agreementshall be determined from the financial statements and certificates submitted toLender pursuant to this agreement, together with such other information asLender obtains.  BRAI shall ensure thatsuch financial statements and certificates permit the ready and accuratecalculation of all ratios and other components of the covenants.  If Lender determines to its satisfaction thatsuch documents do not fully or accurately report the information necessary tocalculate such items, then BRAI shall appropriately revise or supplement thedocuments within ten business days after Lender’s written request.

 

14.                                 ***Reporting.***

 

A.                                   Borrowers agree todeliver to Lender the following reports and information on the followingconditions and terms:

 

(1)                                  Within thirty daysbefore the end of each of BRAI’s fiscal years: A business operating plan forthe upcoming fiscal year, prepared internally on a consolidated and consolidatingbasis, including monthly cash flow projections, and also including anyprojected new restaurant;

 

(2)                                  Within forty-fivedays after the end of each fiscal quarter of BRAI:  An internally prepared financial statement ofBRAI, such statement to include a balance sheet, a statement of profit andloss, and a statement of cash flow, on both a consolidated and anunconsolidated basis;

 

(3)                                  Within one hundredtwenty days after the end of each of BRAI’s fiscal years: consolidating andconsolidated financial statements of BRAI for the fiscal year most recentlyended, including a statement of profit and loss, a balance sheet, and astatement of cash flow, such consolidated financial statements (but not suchconsolidating financial statements) to 

 

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be audited by an independent certified public accountant reasonablysatisfactory to Lender (for which purpose, Lender approves BDO Seidman),together with any management letter and all other letters, reports, and otherdocuments given by such accountant to BRAI,

 

(4)                                  At the same timeswhen reports are due to be delivered to Lender pursuant to the precedingsubsections (2) and (3): A Covenant Compliance Certificate in one of theforms attached to this agreement as Exhibit C, duly executed by thePresident or Treasurer of BRAI, together with a reasonably detailed explanationand documentation of the calculations made in preparing the certificate; and

 

(5)                                  Within fifteen daysafter their filing: Copies of all documents filed by BRAI with the Securitiesand Exchange Commission.

 

B.                                     All financialstatements, certificates, and reports submitted to Lender shall be in such formas Lender from time to time requests in good faith.  If Lender in good faith requests additionalinformation and/or documents pertaining to the business or financial affairs ofany of the Obligors, then Borrowers shall deliver such information anddocuments to Lender in a form reasonably satisfactory to Lender within ten daysafter Lender’s request.

 

C.                                     In addition to theAudits, Borrowers agree to allow Lender and its representatives to inspect andcopy any and all books, records, and other documents and information (includinginformation stored electronically) concerning the Obligors’ business andfinances.  Lender shall be given suchaccess to such documents and information during business hours, upon reasonablenotice, and with such frequency as Lender reasonably decides advisable.  Borrowers shall cooperate with Lender duringsuch inspections and shall instruct their representatives, employees,bookkeepers, and accountants also to cooperate with Lender.  If any item that Lender wishes to reviewbelongs to one of the Subsidiaries and is not in BRAI’s 

 

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possession, then BRAI promptly shall cause the item (or a copy thereof)to be made available to Lender at a time and place satisfactory to Lender.  Lender’s activities under this Section 14Cshall be conducted at Lender’s expense unless such activities are undertaken inresponse to an Event of Default, in which case Borrowers shall reimburse Lendertherefor within ten days after Lender’s written request.

 

D.                                    From time to timewithin ten days after a written request by Lender, one or more senior officersof BRAI shall meet with Lender to assess BRAI’s operating performance and suchother issues as Lender designates.  Suchmeetings shall be held at times and places reasonably selected by Lender.  At such meetings BRAI (1) shall provideLender with all documents and information requested in good faith by Lender and(2) shall make available for consultation any employees, agents, andconsultants whose attendance is reasonably requested in good faith by Lender.

 

15.                                 ***Standardrepresentations and warranties.**** *This Section 15 includesprovisions pertaining not only to Borrowers but also to the Subsidiaries.  Borrowers acknowledge and agree with Lenderthat any violation of such a provision will constitute an Event of Default evenif Borrowers bear no direct responsibility for the violation.  On that basis, Borrowers jointly andseverally warrant and represent to Lender as follows with respect to themselvesand the Subsidiaries.

 

A.                                   ***Organization****. *Each of theObligors has been duly organized under the laws of the state of itsorganization and is in good standing under the laws of such states and underthe laws of every other jurisdiction in which it does business and in which thefailure to be so qualified would have a material adverse effect upon itsoperations.  Each of the Obligors has thepower and authority to own its assets, (ii) to operate its business aspresently conducted,

 

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(iii) to enter into (a) this agreement and the other LoanDocuments (in the case of Borrowers) or (b) the Related Documents (in thecase of Borrowers and/or the Subsidiaries) (all collectively “PrincipalAgreements”) and (iv) to perform and observe its obligations under thePrincipal Agreements.

 

B.                                     ***Authorization****. *The signing, delivery, and performanceof the Principal Agreements (1) have been duly authorized by all requiredvotes and other actions of the Obligors and their stockholders, directors, orbeneficiaries (2) do not and will not contravene any law or regulation inany material respect, (3) are in accord with the Obligors’ organizationaldocuments and all other governing documents, and (4) do not and will notin any material respect constitute a violation of, or a default under, anyagreement, instrument, judgment, order, decree, permit, license, or otherrestriction or undertaking binding upon any of the Obligors or any of theirassets, nor will the same result in the creation (other than in favor ofLender) of any mortgage, pledge, security interest, lien, encumbrance, orcharge upon any of the Obligors’ assets.

 

C.                                     ***Valid and binding obligations.**** *The PrincipalAgreements and all of their terms and conditions are valid and bindingobligations of the Obligors and are enforceable in accordance with such terms,except as limited by applicable bankruptcy, insolvency, reorganization,moratorium, or similar laws affecting the rights of creditors generally.

 

D.                                    ***Approvals****. *Except as set forth in Schedule 7,attached, the Obligors’ signing and delivery of the Principal Agreements andtheir performance of their obligations under the Principal Agreements do notrequire any approval, consent, filing, or registration with (1) anygovernment or governmental agency or authority, or (2) any nongovernmentalentity or person.

 

E.                                      ***Ownership of collateral.***** At the time theObligors mortgage, pledge, assign, or otherwise transfer to Lender ascollateral any interest in any property (1) each of the 

 

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Obligors is and shall remain the lawful owner of such interest; (2) eachof the Obligors now has and always shall retain the right to mortgage, pledge,assign, or otherwise transfer such interest; (3) except to the extentexpressly permitted by another provision of this agreement or any of the otherLoan Documents or Related Documents no such interest now is, or in the futureshall be, mortgaged, pledged, assigned, or otherwise transferred to any personother than Lender, or in any way encumbered, without Lender’s prior expresswritten consent, and (4) the Obligors will defend the same against theclaims and demands of all persons.

 

F.**                                      *Initial******financialstatements**. *Inentering into this agreement Lender has relied upon Borrower’s auditedfinancial statements for the period ending April 25, 2004, and unauditedfinancial statements for the period ending January 23, 2005 (“InitialFinancial Statements”).  The InitialFinancial Statements (a) were prepared in accordance with GAAP and (b) fairlypresented (i) the financial condition of the Obligors and (ii) theoperation of the Obligors’ businesses. As of the date or dates of the Initial Financial Statements, theObligors had no material indebtedness or other material liabilities, debts, orobligations whether accrued, absolute, contingent, or otherwise, whether due orto become due, including but not limited to liabilities or obligations onaccount of taxes or other governmental charges, other than those reflected inthe Initial Financial Statements.

 

G.                                     ***Changes****.* Since the date or dates of the InitialFinancial Statements there have been no changes in the assets, liabilities,financial condition, operations, prospects, or business of the Obligors, theeffects of which have been materially adverse, individually or in the aggregateas to any one or all of the Obligors. Each of the Obligors (1) owns assets having a fair saleable valuein excess of the amount required to pay the probable liability on its existingand 

 

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anticipated debts and other obligations, and (2) has access toadequate capital for the conduct of its business and the discharge of its debtsas such debts mature.

 

H.                                    ***Accuracy of Other Financial and BusinessInformation.***** In addition to the Initial FinancialStatements, Borrowers have provided Lender various documents concerning theirfinancial position, business operations, business prospects, and relatedmatters, all of which are identified on the attached Schedule 8 (“InitialBusiness Information”).  All the InitialBusiness Information is true and accurate in all material respects.  Borrowers have disclosed to Lender allinformation which is reasonably necessary to make the Initial BusinessInformation, together with the Initial Financial Statements, not misleading asto the Obligors’ finances, businesses, and prospects.

 

I.                                         ***Events of Default.**** *As of the date ofthis agreement, no Event of Default (defined below) exists, and no circumstanceor condition exists which, but for the passage of time or the giving of notice,or both, would constitute an Event of Default.

 

J.                                        ***Taxes****. *The Obligors have filed allfederal, state, and other tax returns which are required and either have paidin full all required taxes, assessments, and other governmental charges or haveestablished adequate reserves for any taxes which they are contesting.  The Obligors have established adequatereserves for the payment of all federal, state, and other tax liabilities notyet due and payable.

 

K.                                    ***Litigation****. *There is neither pending nor, tothe best of Borrowers’ knowledge, threatened, any litigation, proceeding, orgovernmental investigation, administrative or judicial, which if decidedadversely might have a materially adverse effect on any of the Obligors’businesses, properties, or condition (whether financial or otherwise) or ontheir ability to perform their obligations under the Principal Agreements.

 

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L.                                      ***Margin rules.**** *No monies advanced by Lender willbe used to purchase or carry any “margin security” or “margin stock” as suchterms are used in Regulations T, U, and X of the Board of Governors of theFederal Reserve System, or to extend credit to others for such purposes.  The Obligors are not engaged principally in,or have one of their important activities, the business of extending credit topurchase or carry any such margin security or margin stock.  If requested by Lender, the Obligors willfurnish Lender with a statement in conformity with the requirements of FederalReserve Form U-1 referred to in such regulations.

 

M.                                 ***ERISA.****   *(1) No “Employee Benefit Plan”as such term is defined in the Employee Retirement Income Security Act of 1974and regulations thereunder (“ERISA”), as the same have been and shall beamended from time to time and maintained by the Obligors (individually a “Plan”and collectively the “Plans”) or any related trust or any trustee oradministrator thereof, has engaged in a “prohibited transaction” (as such termis defined in Section 406 of ERISA) which would subject any party,including the Obligors, the Plans themselves, or any trustee, administrator orservice provider to any material tax or penalty on prohibited transactionsimposed by Section 4972 of the Internal Revenue Code (“Code”); (2) noPension Plan subject to Title IV of ERISA or to the minimum funding standardsof Section 302 of Title I of ERISA has ever been sponsored by the Obligorsor terminated, nor have there been any reportable events (as that term isdefined Section 4043 of ERISA) with respect to any such Pension Plan sincethe effective date of ERISA, nor has any such Pension Plan incurred any “accumulatedfunding deficiency” (as such term is defined in Section 422(a) of theCode) whether or not waived, since the effective date of ERISA; and (3) theObligors are not now and never have been a party to any multi-employer pensionor benefit plan nor have they participated 

 

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in any unfunded plan providing for post-retirement health insuranceexcept for coverage as may be required by ERISA.

 

N.                                    ***Compliance.***** The Obligors possess all necessary andmaterial permits, approvals, authorizations, consents, licenses, franchises,registrations, and other rights and privileges (including patents, trademarks,trade names, and copyrights) to allow them to own and operate their businesseswithout any material violation of law or of the rights of others.  The Obligors are duly authorized, qualified,licensed under, and in compliance with, all material laws, regulations, authorizations,and orders of public authorities to the extent that the same are necessary orapplicable to the ownership and operation of their businesses.

 

O.                                    ***Hazardous materials****. *To the best ofBorrowers’ knowledge, the Obligors have not violated in any material respectany local, state, or federal law or regulation relating to the storage,generation, use, transportation, treatment, or disposal of solid wastes, and nosuch material violation has occurred at any time at, on, or from any realestate ever owned by the Obligors or any predecessor in interest of theObligors.  There has occurred no materialspill, discharge, leak, emission, injection, escape, dumping, or release of anykind of any toxic or hazardous substances as defined under any applicable local,state, or federal laws or regulations on any such real estate or into theenvironment surrounding any such real estate other than those releases of wastewater or air emissions permissible under such laws or regulations or allowableunder valid permits held by the Obligors or any predecessor in interest.  The Obligors have no knowledge of any factswhich could form a basis for any liabilities, damages, obligations, losses, orexpenses relating to any such environmental conditions. The Obligors have receivedno notice of responsibility or other notice or demand relating to any allegedviolation of any law or regulation relating to hazardous substances orenvironmental conditions.

 

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P.                                      ***Accuracy of books and records.***** All books andrecords of the Obligors accurately reflect in all material respects all mattersand transactions reported or recorded therein.

 

Q.                                    ***Subsidiaries.**** *Except as set forth in Schedule 1,the Obligors (1) have no wholly owned subsidiaries and (2) have noinvestments in the stock or securities of any other corporation, firm,partnership, trust, or other entity. BRAI represents (1) that it owns all the issued and outstandingstock of all of the corporate Subsidiaries except Fantail Restaurant, Inc.,(2) that Ocean, Inc. owns all the issued and outstanding stock ofFantail Restaurant, Inc., and (3) that BRAI owns the entirebeneficial interest in the Trust.

 

R.                                     ***Insurance****. *The Obligors now maintain andalways have maintained insurance coverage against such risks and in such amountsas they reasonably believe necessary to protect against all reasonablyforeseeable claims for property damage, personal injury, and other risks.

 

16.                                 ***StandardCovenants and Warranties.**** *This Section 16 includesprovisions pertaining to the Subsidiaries as well as to Borrowers.  Borrowers agree with Lender that anyviolation of such a provision will constitute an Event of Default even ifBorrowers bear no direct responsibility for the violation.  On this basis, Borrowers jointly andseverally covenant with Lender and warrant to Lender as follows.

 

A.                                   ***Legalexistence and good standing.**** *Each of the Obligors will maintainits legal existence and good standing in the state of its organization and willmaintain its qualification to do business in every other state in which it iscurrently qualified if the failure to maintain such qualification would have amaterial adverse effect upon its operations, except that if BRAI closes theRestaurant operated by Polcari’s of Cambridge, Inc., or closes or sellsthe 

 

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Subsidiaries’ current Restaurants located in Florida and/or New Jersey,then the subsequent dissolution of the corporation operating each such closedRestaurant shall not constitute a violation of this Section 16A.  Each of the Obligors will qualify to dobusiness in every other state in which such qualification becomes required bylaw and thereafter will maintain such qualification, unless a failure to soqualify would not have any material adverse effect.

 

B.                                     ***Conduct of Business.**** *Each of the Obligorswill duly observe and comply in all material respects with all applicable lawsand all requirements of any governmental authorities relative to its assets andto the conduct of its business. Each of the Obligors will obtain, maintain, andkeep in full force and effect, all material authorizations, approvals,consents, franchises, licenses, permits and other rights and privilegesnecessary to the conduct of its business.

 

C.                                     ***Losses and disputes regarding collateral.**** *Borrowersimmediately will notify Lender of any event materially adversely affecting anymaterial part of any tangible or intangible property in which Lender has asecurity interest, whether the property is owned by one of the Borrowers or byone of the Subsidiaries.

 

D.                                    ***Maintenance and insurance of assets, otherinsurance.**** *Each of the Obligors will insureits assets against such hazards and liabilities, in such form and amounts, andwith such insurers, as may be reasonably satisfactory to Lender. Each of theObligors will maintain insurance against such other risks and liabilities,including liability for property damage and personal injury, in such form andamounts, and with such insurers, as may be reasonably satisfactory to Lender.  From time to time on Lender’s request, andwithout any request at least thirty days before any insurance policy is due toexpire, Borrowers will provide Lender with certificates of the foregoinginsurance policy or policies.

 

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E.                                      ***Taxes. *** Each of the Obligors will pay or cause to bepaid:

 

(1)                                  All taxes,assessments, and other governmental charges on or against it or its propertiesprior to such taxes becoming delinquent, unless such tax, assessment, or chargeis being contested in good faith by proper legal proceedings and adequatereserves have been established and maintained therefor;

 

(2)                                  All excise, sales,and other taxes or charges which become due and payable with respect to anysale or other transaction giving rise to any account receivable or other rightto the payment of money or with respect to the collection thereof.

 

F.                                      [Intentionallyomitted ]

 

G.                                     [Intentionallyomitted ]

 

H.                                    [Intentionallyomitted]

 

I.                                         ***ERISA Compliance.**** *Neither the Obligorsnor any Pension Plan of the Obligors will:

 

(1)                                  engage in anyprohibited transaction (as defined in ERISA) which would subject any party,including the Obligors, the Plans themselves, or any trustee, administrator, orservice provider to any material tax or penalty on prohibited transactionsimposed by Section 4972 of the Internal Revenue Code (“Code”);

 

(2)                                  incur any “accumulatedfunding deficiency” (as defined in Section 412(a) of the Code or Section 302of ERISA), whether or not waived; or

 

(3)                                  terminate any PensionPlan in a manner which could result in the imposition of a lien on any propertyof any of the Obligors.

 

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J.                                        ***Pension Plans. ***With respect to any Pension Plan the benefits under whichare guaranteed in whole or in part by the Pension Benefit Guaranty Corporation(the “PBGC”), each of the Obligors shall:

 

(1)                                  Fund each PensionPlan as required by the provisions of Section 412 of the Code and Section 302of ERISA;

 

(2)                                  Cause each PensionPlan to pay all benefits when due in accordance with applicable law; and

 

(3)                                  Furnish to Lender (i) writtennotice of the occurrence of a Reportable Event (as such term is defined in Section 4043of ERISA), such notice to be given promptly, but in any event within five (5) daysof the occurrence of a Reportable Event with respect to a Pension Plan; (ii) acopy of any request for a waiver of the funding standards or an extension ofthe amortization periods required under Section 4122 of the Code and Section 302of ERISA, such copy to be furnished not later than the date of submission ofthe request to the Department of Labor or to the Internal Revenue Service (the “IRS”),as the case may be; (iii) a copy of any notice of intent to terminate anyPension Plan, such copy to be furnished no later than the date of submission tothe PBGC; and (iv) notice that the Obligor will or may incur any liabilityto or on account of a Pension Plan under Section 4062, 4063, 4064, 4201 or4204 of ERISA, such notice to be given within the ten (10) days after theObligor knows or has reason to know thereof. Any notice to be provided to Lender under this Section shallinclude a certificate of the Obligor’s chief financial officer setting forthdetails as to such occurrence and the action, if any, which is required orproposed to be taken, together with any notices required or proposed to befiled with or by the Obligor, the PBGC, the IRS, the trustee, or the planadministrator with respect thereto.

 

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K.                                    ***Notification of default.***** Within five (5) businessdays after becoming aware of the existence of any circumstance or occurrencewhich with or without the giving of notice or the passage of time, or both,would cause or constitute an Event of Default, Borrowers will give Lenderwritten notice thereof, specifying the nature of the matter and the actionbeing taken or proposed to be taken with respect thereto.

 

L.                                      ***Notification of litigation.**** *Borrowers willnotify Lender in writing of any litigation commenced against any of theObligors and of any proceeding commenced against any of the Obligors by anygovernmental agency or authority, if there is any reasonable likelihood thatsuch litigation or proceeding, singly or in combination with others, reasonablymight be expected to have a material adverse effect upon any or all of theObligors.  Such notice will be givenwithin five business days after the commencement of the action or proceeding.

 

M.                                 ***Notificationof material adverse change.**** *Borrowers will notify Lender withinfive business days after there occurs or arises any circumstance or occurrencewhich might reasonably be expected to constitute or cause either a materialadverse change in the financial or business condition of any or all of theObligors or a material diminution in the value of any material part of itstangible or intangible property of any or all of the Obligors.

 

N.                                    ***Maintenance of books and records.**** * Each of the Obligors will keep adequaterecords and books of account, in which true and complete entries will be madereflecting all of the material business and financial transactions relating toits business and its assets.

 

O.                                    ***Inspection******by Lender.**   *Eachof the**Borrowers will permit Lender from timeto time on reasonable oral notice (and not, in any case, less than twenty-fourhours) to inspect its facilities and tangible assets.

 

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P.                                      ***Further assurances.***** Borrowers will signand deliver such additional documents, instruments, and other papers, and willtake all such actions, as Lender reasonably requires to assure to Lender itsrights under this agreement and the other Loan Documents and to carry intoeffect the provisions of this agreement.

 

Q.                                    ***Environmental regulations and hazardous materials.**** *Each of the Obligorswill comply in all material respects at all times with any and all applicablefederal, state, and local laws, rules, orders, and regulations governinghazardous materials, hazardous wastes, or oil as defined in any local, state,or federal laws, rules, orders, and regulations and will otherwise comply inall material respects with all laws and regulations relating to pollutioncontrol in all jurisdictions in which it operates.

 

R.                                     ***Merger and consolidation.**** *Without Lender’sprior express written consent, none of the Obligors will consolidate with ormerge with or into any other corporation or other entity, even if the Obligorwould be the survivor.

 

S.                                      ***Performance of Other Contracts.**** *Each of the Obligorswill perform and observe all of its material duties and obligations under itspresent and future material contracts and agreements with vendors, lenders,lessors, lessees, and other persons and organizations.

 

T.                                     ***Operating Account; autocharge***.  BRAI and the Subsidiaries will maintain all oftheir principal depository accounts and investment accounts with Lender.  One or more such accounts (“OperatingAccounts”) shall be designated as the source of Borrowers’ payments of the NewLoans.  BRAI may maintain accounts atother banks for payroll transactions and for the daily depositing of revenue,but the balance of any such deposit accounts shall be transferred daily toLender.  Borrowers shall ensure that thebalance of immediately available funds in the Operating Accounts is sufficientto enable Lender to withdraw from the 

 

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accounts when due every payment called for by this agreement or by thenotes evidencing the New Loans. Borrowers irrevocably authorize Lender to make such withdrawals withoutprior notice.

 

17.                                 ***Additionalrepresentatives, warranties, covenants, and agreements.***

 

A.                                   ***Ownershipof the Subsidiaries.***  Inentering into this agreement, Lender relies upon (1) BRAI’s absolute andunencumbered ownership and control of all beneficial interests in the Trust, (2) BRAI’sabsolute and unencumbered ownership and control of all shares of stock in allof the corporate Subsidiaries except Fantail, and (3) Ocean’s absolute andunencumbered ownership and control of all shares of stock of Fantail.  The purpose of this Section 17A is toensure that the foregoing ownership and control continue as long as any of theObligations remain outstanding, except with respect to Subsidiaries which aredissolved pursuant to applicable provisions of this agreement.

 

(1)                                  ***Representationsand warranties***.  BRAIwarrants and represents to Lender (a) that the ownership of theSubsidiaries is accurately and completely set forth in this Section 17A, (b) thatall information set forth in Schedule 1 is true and complete, and (c) thatno information omitted from Schedule 1 is reasonably necessary to make theincluded information not materially misleading. BRAI further warrants and represents to Lender that its interests in theSubsidiaries and in the Trust (collectively “Interests”) are subject to noagreement, warrant, trust, encumbrance, lien, or other obligation of any kindwhatsoever which could result in the voluntary or involuntary transfer to anyperson or entity of all or any portion of such Interests.

 

(2)                                  ***Covenants***.  BRAI covenants and agrees with Lender tomaintain exclusive and unencumbered ownership and control of theInterests.  Without limiting thegenerality of the preceding sentence, BRAI covenants and agrees with Lender asfollows:

 

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(a)                                  Not to sell, pledge,encumber, or otherwise transfer or agree to transfer in any manner whatsoeverany of the Interests;

 

(b)                                 Not to cause or permitthe issuance or sale of any additional capital stock of the corporate Subsidiaries;and

 

(c)                                  Not to take anyactions contrary to the stated purposes of this Section 17A.  The corporate dissolutions referenced in Section 16Aof this agreement shall not be considered a violation of the foregoingprovisions.

 

(3)                                  ***Involuntarytransfers. *** BRAI agrees with Lender that for the purposesof this Section 17A any involuntary transfer of any interest in any of theInterests shall constitute a breach of these covenants and agreements.

 

B.                                     ***Trademarks, franchises, and liquor licenses. ***BRAI represents to Lender (1) thatthe list attached as Schedule 9 identifies all liquor licenses in whichany of the Obligors has an interest, (2) that the list attached as Schedule 10identifies all franchise agreements in which any of the Obligors acts as a franchisor,and (3) that the list attached as Schedule 11 identifies alltrademarks and servicemarks in which any of the Obligors has an interest.

 

C.                                     ***Leases. ***Allof the Restaurants operate in leased premises. The continuation of such leases (“Restaurant Leases”) is vital to theObligors’ success.  Accordingly, BRAIshall ensure that none of the Subsidiaries materially defaults on any of theRestaurant Leases and that (subject to Section 17A) each such lease isrenewed or extended before it expires.  The term “Restaurant Leases” includes all future leases as well asexisting leases.  The termination of alease or sublease in connection with the closure or sale of a Restaurant madein 

 

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accordance with applicable provisions of this agreement or the otherLoan Documents shall not constitute a violation of this Section 17C.

 

18.                                 ***Eventsof Default.**** *For purposes of this agreement an “Eventof Default” shall be any of the following:

 

(a)                                  any violation,breach, non-compliance, or failure with respect to any duty, obligation,agreement, covenant, warranty, representation, or other undertaking ofBorrowers set forth in this agreement (collectively “Breach”), unless either (i) theBreach is cured within an expressly applicable cure period or grace period, or (ii) ifthis agreement provides no expressly applicable cure period or grace period,then (A) the Breach is readily curable, and (B) Borrowers promptlycommence a cure, and (C) Borrowers complete the cure within the shortestreasonable period, which shall not exceed thirty days after the Breach firstarose or occurred;

 

(b)                                 any other event,circumstance, or occurrence that is specifically designated in this agreementas an Event of Default;

 

(c)                                  any event, circumstance,or occurrence that is defined as an “event of default” in any of the other LoanDocuments or in any of the Related Documents, if the same has continued beyondthe expiration of any expressly applicable cure period or grace period;

 

(d)                                 any event, circumstance,or occurrence that is defined as an “event of default” in any legal documentthat sets forth, evidences, or secures (i) any other loan or creditfacility made or extended to any of the Obligors by Lender after the date ofthis agreement, (ii) any loan or other credit facility extended to any ofthe Obligors by any person or entity other than Lender, including not onlyloans and credit facilities in existence on the date of this agreement but alsoloans and credit facilities extended in the future;

 

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(e)                                  any material defaultnot cured within any expressly applicable grace period or due period on anylease of equipment or real estate in which any of the Obligors is the lessee,whether such lease now exists or comes into existence in the future;

 

(f)                                    the termination orexpiration, within any one fiscal year of BRAI, of more than thirty-fivepercent of the Restaurant Leases that were in force at the beginning of suchfiscal year; or

 

(g)                                 anymaterial adverse change in the financial condition of the Obligors as a whole.

 

19.                                 ***Certainwaivers.**** *LENDER AND BORROWERS HEREBY WAIVEAND RELEASE IRREVOCABLY THEIR RIGHTS (1) TO HAVE A TRIAL BY JURY IN ANYACTION TO WHICH LENDER AND EITHER OR BOTH OF THE BORROWERS ARE PARTIES, WHETHERAS PLAINTIFF, DEFENDANT, OR OTHERWISE, AND (2) TO ASSERT IN ANY SUCHACTION ANY CLAIM FOR PUNITIVE DAMAGES, EXEMPLARY DAMAGES, CONSEQUENTIALDAMAGES, AND ANY OTHER DAMAGES WHATSOEVER OTHER THAN ACTUAL DAMAGES.  In this section the terms “Lender” and “Borrowers”include the parties’ stockholders, directors, trustees, beneficiaries,officers, employees, attorneys, and agents. This section is intended by Lender and Borrowers to apply with fullforce and effect to all of the Loan Documents as if it were set forth in fullin each one of the Loan Documents.

 

20.                                 ***Indemnity.**** *Borrowers jointlyand severally agree to indemnify Lender against, and hold Lender harmless from,any and all losses, damages (whether compensatory, punitive, or otherwise),liabilities, claims, causes of action (whether legal, equitable, oradministrative), judgments, court costs, and other expenses (includingreasonable professional fees and 

 

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reasonable legal fees) which Lender suffers or incurs as a direct orindirect consequence of: (a) Lender’s performance of this agreement, anyof the other Loan Documents, or any of the Related Documents, including withoutimplied limitation Lender’s exercise or failure to exercise any rights,remedies, or powers; (b) Borrowers’ failure to perform any of Borrowers’ obligations as and when required bythis agreement, by any of the other Loan Documents, or by any of the RelatedDocuments, including without implied limitation any failure at any time of anyrepresentation or warranty of Borrowers to be true and correct and any failureby Borrowers to satisfy any condition; (c) any claim or cause of action ofany kind by any person or entity to the effect that Lender is in any wayresponsible or liable for any act or omission of Borrowers or of any of theSubsidiaries, whether on account of any theory of derivative liability orotherwise; or (d) any claim or cause of action of any kind by any personor entity that would have the effect of denying Lender the full benefit orprotection of any provision of the Loan Documents or the RelatedDocuments.  Lender’s rights of indemnityshall not be directly or indirectly limited, prejudiced, impaired, oreliminated in any way by any finding or allegation that Lender’s conduct isactive, passive, or subject to any other classification, or that Lender isdirectly or indirectly responsible under any theory of any kind, character, ornature for any act or omission by Borrowers, by one of the Subsidiaries, or byany other person or entity except Lender. Notwithstanding the foregoing provisions, Borrowers shall not beobligated to indemnify Lender to the extent that the foregoing arises fromLender’s gross negligence or willful misconduct.  which Lender is determined by a court ofcompetent jurisdiction to have committed. Borrowers shall pay any indebtedness arising under this Section 20to Lender within ten days following demand by Lender.  Borrowers’ obligations under this Section 20shall survive the termination of this agreement.

 

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21.                                 ***Miscellaneous.***

 

A.                                   ***Costs.**** *Except to the extentexpressly otherwise provided in this agreement, Borrowers jointly and severallyshall reimburse Lender on demand for all costs and expenses, including withoutlimitation Lender’s reasonable professional fees and reasonable legal fees,incurred by or on behalf of Lender in connection with (1) the closing ofthe transactions contemplated by this agreement, (2) the future amendment,restatement, or replacement, of this agreement or any of the other Loan Documentsor Related Documents, (3) the negotiation or other resolution of anyuncertainty, dispute, or controversy arising from or connected with thetransactions contemplated by this agreement, and (4) the enforcement ofany rights or remedies that are made available to Lender by law, by thespecific terms of this agreement, by any of the other Loan Documents, or by anyof the Related Documents.  The costs andexpenses covered by this Section 21A shall include, without impliedlimitation, all costs and expenses incurred by Lender (including reasonableprofessional fees and reasonable legal fees) in connection with any bankruptcycase, bankruptcy proceeding, or other bankruptcy matter in which either or bothof the Borrowers is a debtor, regardless of the capacity or capacities in whichLender is involved in any such bankruptcy. Nothing in this Section 21A shall be construed to limit Lender’srights or Borrowers’   obligations underany other provision of this agreement.

 

B.                                     ***Termination.*****Thisagreement shall terminate when all of the Obligations have been paid andperformed in full, but Sections 20 and 21A shall survive termination.

 

C.                                     ***Modification.*****Thisagreement may be amended only in a writing that is signed by all parties tothis agreement.

 

D.                                    ***Governing law; choice of forum.***  This agreement has been negotiated and signedin the Commonwealth of Massachusetts, and all parties have relied upon theapplicability 

 

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of the laws of the Commonwealth of Massachusetts.  Accordingly, this agreement shall beinterpreted and enforced in accordance with the internal laws of Massachusetts,disregarding any law or doctrine that would dictate application of the law ofanother state.  Borrowers covenant andagree (1) not to commence any action against Lender, or involving Lender,in any court that sits outside Massachusetts and (2) not to seek totransfer to any court that sits outside Massachusetts any action commenced byLender in Massachusetts.

 

E.                                      ***Binding effect.**** *This agreement is binding upon thesuccessors and assigns of all parties, and it inures to the benefit of suchsuccessors and assigns.

 

F.                                      ***Severability.**** *Even if one or more provisions ofthis agreement are determined by a court         tobe invalid or unenforceable, the remaining provisions of this agreementnevertheless shall continue in effect.

 

G.                                     ***Remedies cumulative.**** *All rights andremedies afforded Lender by this agreement are cumulative; none shall beconstrued to limit or impair any rights or remedies afforded Lender by theother Loan Documents, by the Related Documents, or by law.

 

H.                                    ***No waiver.**** *No failure to act, omission, orforbearance by Lender to exercise its rights or remedies under any or all ofthe Loan Documents or Related Documents shall constitute a waiver by Lender ofsuch rights or remedies, regardless of how long such failure to act, omission,or forbearance continues, unless Lender expressly waives such right inwriting.  No waiver by Lender in any inone instance shall constitute a waiver in any other instance unless Lenderexpressly so states in writing.

 

I.                                         ***No assignment.**** *None of Borrowers’ rights underthis agreement may be assigned, pledged, or otherwise transferred, nor may anyof Borrowers’ duties be delegated.

 

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J.                                        ***No Third Parties Benefited.**** *This agreement isentered into for the sole protection and benefit of Lender, Borrowers, andtheir permitted successors and assigns. No other person or entity shall have any right of action under thisagreement.

 

K.                                    ***Notices. ***Exceptas otherwise expressly provided herein, all notices given under this agreementshall be given in writing and shall be deemed given upon (1) actualdelivery to the office of the addressee or (2) if mailed, upon the thirdbusiness day after deposit in United States Postal Service by certified mail,postage prepaid, addressed to the addresses of Borrowers or Lender appearingbelow or to such other address as a party designates by written notice:

 
| BORROWERS:       |   | LENDER:                                |
|------------------|--------|----------------------------------------|
| 999 Broadway     |   | 390 Main Street                        |
| Suite 400   |   | Worcester, MA 01608                    |
| Saugus, MA 01906 |   | Attn:  Michael D. Thibeault, |
| Attn: Controller |   | Senior Vice President                  |

 

Copies of all notices shall be sent to the addressee’s counsel asfollows, but the failure to send such a notice shall not affect its validity.

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

 

L.                                      ***Relationship of Parties.**** *  The relationship of Borrowers and Lender doesnot constitute a joint venture, partnership, or agency relationship, but is andshall at all times remain a relationship of borrower and lender, depositor anddepositary bank, assignor and assignee, pledgor and pledgee, and debtor andsecured party.

 

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M.                                 ***Entireagreement.**** *This agreement, the other LoanDocuments, and the Related Documents set forth the parties’ entireunderstanding, superseding all prior negotiations, promises, and agreements.

 

N.                                    ***Construction.****  *Because all parties haveparticipated in the drafting of this agreement, the parties agree that any rule ofconstruction to the effect that an agreement should be construed against thedrafter shall be inapplicable.

 

Signed as asealed instrument April 14, 2005.

 
| Witnesses: |   | Parties:                                |
|------------|--------|-----------------------------------------|
|       |   | Commerce Bank & Trust  Company |
|       |   |                                    |
|       |   |                                    | By: |   |   |
|       |   | Michael D. Thibeault,                   |
|       |   | Senior Vice President                   |
|       |   |                                    |
|       |   | Boston Restaurant Associates, Inc. |
|       |   |                                    |
|       |   |                                    | By: |   |   |
|       |   | George R. Chapdelaine, President        |
|       |   | and Chief Executive Officer             |
|       |   |                                    |
|       |   | BRA Nominee Trust                       |
|       |   |                                    |
|       |   |                                    | By: |   |   |
|       |   | George R. Chapdelaine, only in his      |
|       |   | capacity as Trustee and not in his      |
|       |   | individual capacity                     |

 

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