Exhibit 10.44(b)
AMENDMENT NO. 1 TO
MASTER LEASE AGREEMENT NO. 2
THIS AMENDMENT NO. 1 TO MASTER LEASE AGREEMENT NO. 2 (this "Amendment") is
made as of the 28th day of February, 1997, between GENERAL ELECTRIC CAPITAL
CORPORATION, for itself and as agent for certain Participants (hereinafter
called, together with its successors and assigns, if any, "Lessor"), and BOSTON
CHICKEN, INC. (hereinafter called "Lessee").
Lessor and Lessee have heretofore executed that certain Master Lease
Agreement No. 2 dated as of December 9, 1996 (the "Agreement"), and desire to
amend the Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Agreement is hereby amended as follows:
(a) In clause (xvi) of Section I(c), the phrase ", petroleum or
hazardous substances" is inserted between the phrases "hazardous wastes"
and "as Lessor".
(b) In the third sentence of Section III(a): (i) the phrase "and the
Participants (on an after-tax basis)" is inserted between the phrases
"reimburse Lessor" and "upon receipt", and (ii) the phrase "or any
Participant" is inserted between the phrases "against Lessor" and "and
submission".
(c) In clause (v) of Section III(c), the phrase "and the Participants"
is inserted between the word "Lessor" and the phrase "harmless from".
(d) In Section IV(b), the following provisions are added as the final
sentence to thereof:
"Such inspection may include the taking of samples of the soil,
air, water or building materials on, at or under any Fee Property or
subject to any Ground Lease."
(e) In Section V(c), the following provisions are added as the final
sentence thereof:
"Notwithstanding any other provision to the contrary, a
"Permitted Lien" shall not be any lien or encumbrance in favor of a
governmental entity for any
damages arising from, or costs incurred by such governmental entity in
response to, a release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration of any
pollutant, contaminant, chemical, or industrial, toxic or hazardous
substances or wastes (including, but not limited to, asbestos and
petroleum) into the indoor or outdoor environment, which has not been
adequately bonded."
(f) In Section X(c), the phrase "and the Participants" is inserted
between the word "Lessor" and the phrase "harmless from" and the phrase "or
the Participants" is inserted between the phrases "shall Lessor" and "be
guilty".
(g) In clause (2) of the sixth sentence of Section XI(b), the phrase
"and the Participants" is inserted between the word "Lessor" and the phrase
"all sums due".
(h) In Subsection (3) of Section XII(b), the first sentence thereof is
amended and restated as follows:
"Anything to the contrary set forth herein notwithstanding, any
assignee or Participant hereunder shall (x) (i) so long as no Default
shall have occurred and be continuing, not be engaged in the quick-
service restaurant business (nor shall any Affiliate of such assignee
or Participant be engaged in the quick-service restaurant business)
(at the time of acquisition or transfer of a Participant's interest)
and (ii) have (or its ultimate parent shall have) a net worth or
combined capital and surplus of not less than $50,000,000 or (y) be
approved by Lessee (which approval shall not be unreasonably withheld,
delayed or conditioned) upon Lessor's or a Participant's request;
provided, that AT&T Commercial Finance Corporation ("ATTCFC") may
sell, assign or otherwise transfer all or any portion of its interest
as a Participant without it or its assignee satisfying clause (x)(i)
or clause (y) above if (m) such sale, assignment or transfer occurs in
connection with a sale of all or substantially all of the assets of
the Capital Markets Division of ATTCFC, and (n) the assets and
revenues of the quick-service restaurant business of the proposed
assignee and its Affiliates do not constitute more than 20% of the
consolidated assets and 20% of the consolidated revenues of the
proposed assignee and its Affiliates taken as a whole during the
fiscal year immediately preceding the date of such proposed sale,
assignment or transfer."
(i) In Section XIV(a), the word "or" between the phrases
"environmental damage)," and "(ii) the condition" is hereby deleted, and
the following provisions are hereby added after the words "or any
Sublessee" and before the semi-colon:
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"or (iii) in connection with the transactions contemplated by, or
the provisions of, (A) the Intercreditor Agreement or (B) any
participation or similar agreement between or among the Lessor and any
Participant or Participants".
(j) In Section XIV(b)(3), the word "petroleum," is inserted between
the phrase "polychlorinated biphenyls ("PCBs")," and "and radioactive
substances".
(k) In Section XIV(c), the words "and Participants'" are inserted
between the phrases "of Lessor's" and "rights, privileges".
(l) In the fourth sentence of Section XVII(a), the phrase "or any
Participant" is inserted between the word "Lessor" and the phrase "shall in
no event".
(m) In Subsection (3) of Section XVII(b), the phrase "first priority"
is inserted between the word "a" and the phrase "security interest".
2. The form of Sublease Agreement No. 2, attached as Exhibit No. 3 to the
Agreement, is hereby amended as follows:
(a) In Section IV(b), the following provisions are added as the final
sentence thereof:
"Such inspection may include the taking of samples of the soil,
air, water or building materials on, at or under any Fee Property or
subject to any Ground Lease."
(b) In Section V(c), the following provisions are added as the final
sentence thereof:
"Notwithstanding any other provision to the contrary, a
"Permitted Lien" shall not be any lien or encumbrance in favor of a
governmental entity for any damages arising from, or costs incurred by
such governmental entity in response to, a release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration or any pollutant, contaminant, chemical, or
industrial, toxic or hazardous substances or wastes (including, but
not limited to, asbestos and petroleum) into the indoor or outdoor
environment, which has not been adequately bonded."
(c) In Section XIV(b)(3), the word "petroleum" is inserted between the
phrase "polychlorinated biphenyls ("PCBs")," and "and radioactive
substances".
3. Except as expressly set forth herein, the terms and conditions of the
Agreement remain unmodified and in full force and effect.
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4. 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
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
5. This Amendment may be executed in counterparts, each of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment No. 1 to
Master Lease Agreement No. 2 to be executed by their duly authorized
representatives as of the date first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL BOSTON CHICKEN, INC.
CORPORATION, FOR ITSELF AND AS
AGENT FOR CERTAIN PARTICIPANTS
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx Name: Xxxxxxxxxx Xxxxxxx
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Title: Transaction and Syndication Title: Vice President
Senior Manager ------------------------------
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