EXHIBIT 10.46 (A)
AMENDMENT NO. 1 TO MASTER LEASE AGREEMENT
THIS AMENDMENT NO. 1 TO MASTER LEASE AGREEMENT is made as of September
28, 1995 (the "Amendment"), between GENERAL ELECTRIC CAPITAL CORPORATION, FOR
ITSELF AND AS AGENT FOR CERTAIN PARTICIPANTS ("Lessor"), and BOSTON CHICKEN,
INC. ("Lessee").
The parties have heretofore executed that certain Master Lease
Agreement dated as of September 27, 1995 (the "Agreement"), pursuant to which
Lessor is to lease to Lessee certain Equipment pursuant to one or more Schedules
on the terms described therein. Capitalized terms used herein without
definition shall have the meaning given them in the Agreement.
In anticipation of the leasing of certain Equipment under the
Agreement, the parties have prepared Schedule No. Series A-1 dated September
28, 1995 ("Equipment Schedule No. A-1"), specifying Capitalized Lessor's Cost of
$42,686,709.10. The parties have now determined that certain items of the
Equipment (the "Special Equipment") having a Capitalized Lessor's Cost of
$3,816,137.67 (the "Allocated Capitalized Lessor's Cost"), will not be available
to be leased on September 28, 1995. However, the parties have agreed to proceed
with the execution of Equipment Schedule No. A-1, and the funding of the full
Capitalized Lessor's Cost specified therein, on the terms and conditions
specified herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Equipment Schedule No. A-1 will be executed on September 28,
1995, specifying Capitalized Lessor's Cost of $42,686,709.10, notwithstanding
the present unavailability for leasing thereunder of the Special Equipment. The
parties acknowledge and agree that Annex A attached to Equipment Schedule No.
A-1 will not describe the Special Equipment and the Capitalized Lessor's Cost
specified on Annex A will not include the Allocated Capitalized Lessor's Cost.
However, the Capitalized Lessor's Cost specified in Section B.1. of Equipment
Schedule No. A-1 will include the Allocated Capitalized Lessor's Cost and the
Rent to be paid by Lessee will include the Allocated Capitalized Lessor's Cost
for purposes of calculation.
2. Within ninety (90) days after the date of execution hereof,
Lessee agrees to satisfy the requirements of Section I(b) of the Agreement with
respect to additional items of Equipment (the "Additional Equipment") having an
aggregate Capitalized Lessor's Cost not less than the Allocated Capitalized
Lessor's Cost, and will execute and deliver to GE Capital such supplements or
amendments to Annex A to Equipment Schedule No. A-1 as may be required by Lessor
in connection therewith (such execution and delivery to GE Capital to occur on
not more than three (3) occasions during such ninety (90) day period). If
Lessee fails timely to comply with the provisions of this Section 2, then Lessor
may require Lessee to prepay the Applicable Amount of the Allocated Capitalized
Lessor's Cost on the date specified in a written notice from Lessor to Lessee
(the "Prepayment Date"). On the Prepayment Date, Lessee shall pay to Lessor, in
cash, by application of the Escrowed Funds (as such term is hereinafter defined)
held by Lessor, the amount of the required prepayment plus a premium calculated
as one (1) percent of
the amount of the required prepayment. As used herein, "Applicable Amount" shall
mean the Allocated Capitalized Lessor's Cost less the aggregate Capitalized
Lessor's Cost of all Additional Equipment as to which Lessee has then satisfied
the requirements of Section I(b) of the Agreement and this Section 2.
3. The amount of the Allocated Capitalized Lessor's Cost (the
"Escrowed Funds") will be held in escrow by Lessor on the following terms and
conditions:
a. The Escrowed Funds will be held by Lessor and, for the
period held in escrow, interest shall be credited monthly to the Escrowed Funds
and shall be held in escrow hereunder. Interest shall be credited on the
Escrowed Funds at a variable per annum interest rate which shall be equal to the
applicable interest rate for General Electric Company thirty (30) -day
commercial paper from time to time.
b. Provided that no Default or event which, with the giving of
notice or the lapse of time, or both, would become a Default, has then occurred,
at such time as Lessee satisfies the requirements of Section I(b) of the
Agreement with respect to Additional Equipment, Lessor shall release from escrow
and remit to Lessee an amount equal to the aggregate Capitalized Lessor's Cost
of such Additional Equipment.
c. Provided that no Default or event which, with the giving of
notice or the lapse of time, or both, would become a Default, has then occurred,
at such time as Lessee has satisfied the requirements of Section I(b) of the
Agreement with respect to Additional Equipment having an aggregate Capitalized
Lessor's Cost equal to or in excess of the Allocated Capitalized Lessor's Cost,
Lessor shall release from escrow and remit to Lessee the then remaining balance,
if any, then held in escrow by Lessor.
x. Xxxxxx undertakes to hold the Escrowed Funds and to perform
such duties and only such duties as are specifically set forth herein and no
implied covenants or obligations shall be read into this Amendment against
Lessor. Lessor shall not be liable to Lessee for any action taken or omitted to
be taken by Lessor hereunder or pursuant hereto, except for the failure to
comply with the express provisions hereof. In acting hereunder, Lessor may rely
and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties; and
Lessor shall not be bound to make any investigation into the facts or matters
stated in any thereof. Lessor may exercise its powers and perform its duties by
or through such attorneys, agents and servants as it shall appoint, and it shall
be entitled to the advice of counsel in anything done or omitted to be done in
accordance with such advice; and Lessor shall not be required to take any action
nor shall any provision herein set forth be deemed to impose a duty on Lessor to
take any action, if Lessor shall have been advised by counsel that such action
is contrary to the terms hereof or is otherwise contrary to law.
4. Lessee hereby grants to Lessor a first priority security
interest in all right, title and interest of Lessee in and to the Escrowed Funds
and any and all money, deposit accounts,
documents, instruments, uncertificated securities and other accounts in which
the Escrowed Funds may at any time be held, and all proceeds (both cash and non-
cash) thereof, in order to secure the prompt payment of the Rent and all of the
other amounts from time to time outstanding under and with respect to the
Agreement and the Schedules, and the performance and observance by Lessee of all
the agreements, covenants and provisions of the Agreement and the Schedules
(including, without limitation, all of the agreements, covenants and provisions
hereof and thereof that are incorporated in the Schedules).
5. The failure of Lessee timely to perform its obligations under
Section 2 hereof (which failure continues unremedied for a period of ten (10)
days) shall constitute a Default under the Agreement.
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT
OF LAWS PRINCIPALS OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. The parties agree that any action or proceeding
arising out of or relating to this amendment may be commenced in the United
States District Court for the Southern District of New York.
