AMENDMENT NO. 1 TO SERVICING AGREEMENT
Exhibit 10.17
AMENDMENT NO. 1 TO SERVICING AGREEMENT
AMENDMENT NO. 1, dated as of November 28, 2007 (this “Amendment”), to the Servicing Agreement, dated as of March 16, 2007 (as amended by this Amendment, and as the same may be further amended, amended and restated or otherwise modified from time to time, the “Servicing Agreement”), by and among (i) IHOP FRANCHISING, LLC, a Delaware limited liability company, as the issuer (the “Issuer”), (ii) IHOP IP, LLC, a Delaware limited liability company, as the co-issuer (the “Co-Issuer” and, together with the Issuer, the “Co-Issuers”), (iii) IHOP PROPERTY LEASING, LLC, a Delaware limited liability company, (iv) IHOP PROPERTIES, LLC, a Delaware limited liability company, (v) IHOP REAL ESTATE, LLC, a Delaware limited liability company, (vi) INTERNATIONAL HOUSE OF PANCAKES, INC., a Delaware corporation, as servicer (in such capacity, the “Servicer”), (vii) IHOP Corp., a Delaware corporation, as the guarantor (in such capacity, the “Guarantor”), and (viii) XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as indenture trustee (in such capacity, the “Indenture Trustee”).
R E C I T A L S
WHEREAS, the parties hereto have previously executed and delivered the Servicing Agreement, pursuant to which the Servicer services and administers the Serviced Assets (such capitalized terms and the other capitalized terms used and not defined herein having the meanings assigned thereto pursuant to Section 1.1 hereof) on behalf of the Securitization Entities in the manner provided therein;
WHEREAS, the Guarantor, CHLH Corp., a Delaware corporation that is a wholly-owned subsidiary of IHOP Corp. (the “Merger Subsidiary”), and Xxxxxxxx’x International, Inc., a Delaware corporation (“Applebee’s”), have previously executed and delivered an Agreement and Plan of Merger, dated July 15, 2007 (as the same may be amended or otherwise modified from time to time, the “Merger Agreement”), pursuant to which the Merger Subsidiary will be merged into Applebee’s such that Applebee’s will be a direct, wholly-owned subsidiary of the Guarantor following the consummation of the transactions contemplated by the Merger Agreement.
WHEREAS, on or after the date hereof, the Guarantor may enter into the documentation (the “Securitization Bridge Documentation”) relating to the securitization bridge financing (the “Securitization Bridge Financing”) to be made available by Xxxxxx Brothers Commercial Bank (“LBCB”) and Xxxxxx Commercial Paper Inc. (“LCPI”) as the initial securitization bridge lenders (the “Initial Securitization Bridge Lenders” and, together with the additional securitization bridge lenders identified by the Initial Securitization Bridge Lenders from time to time, the “Securitization Bridge Lenders”) to, among other things, finance the transactions contemplated by the Merger Agreement;
WHEREAS, on or after the date hereof, Applebee’s is expected to securitize certain assets (the “Applebee’s Securitization”) by transferring such assets through one or more subsidiaries to multiple newly formed, special purpose limited liability companies and corporations that will pledge such assets as collateral under a
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master indenture pursuant to which such limited liability companies and corporations will co-issue one or more series of notes to raise proceeds for purposes of, among other things, (i) the repayment of the Securitization Bridge Financing (if the Securitization Bridge Financing is consummated) or (ii) directly financing the transactions contemplated by the Merger Agreement (if the Securitization Bridge Financing is not consummated);
WHEREAS, on or after the date hereof, the Co-Issuers, the Indenture Trustee and Financial Guaranty Insurance Company, a New York stock insurance company, not in its individual capacity but solely as the Series Insurer thereunder (the “Series Insurer”), shall execute and deliver the Series Supplement (the “Series 2007-3 Supplement”) for the Series 2007-3 Fixed Rate Term Notes (the “Series 2007-3 Notes”) pursuant to the Base Indenture, dated as of March 16, 2007 (as supplemented by the Supplement No. 1 thereto, dated as of November 28, 2007, and as the same may be further supplemented, amended or otherwise modified and in effect from time to time, the “Indenture”), which Series 2007-3 Notes are being issued to raise proceeds for purposes of, among other things, (i) the repayment of the Securitization Bridge Financing (if the Securitization Bridge Financing is consummated) or (ii) directly financing the transactions contemplated by the Merger Agreement (if the Securitization Bridge Financing is not consummated);
WHEREAS, Section 9.3 of the Servicing Agreement permits the parties hereto to amend the Servicing Agreement by written agreement, subject to the written consent of each Series Controlling Party, the Securitization Entities party hereto, the Servicer and the Indenture Trustee;
WHEREAS, in connection with (i) the Securitization Bridge Financing, (ii) the Applebee’s Securitization and (iii) the Series 2007-3 Notes, the parties hereto desire to amend the Servicing Agreement in the manner provided in this Amendment pursuant to Section 9.3 of the Servicing Agreement;
WHEREAS, the written consent of (i) the Series Insurer, not in its individual capacity but solely in its capacity as the Series Controlling Party in respect of each Series of Notes Outstanding, (ii) each Securitization Entity, (iii) the Servicer and (iv) the Indenture Trustee to this Amendment are set forth on the signature pages hereof;
WHEREAS, promptly after the execution of this Amendment, the Servicer shall send a copy of this amendment to each of the Indenture Trustee, the Series Insurer, in its capacity as the Series Insurer in respect of each Series of Notes Outstanding, and each Rating Agency, pursuant to Section 9.3(b) of the Servicing Agreement; and
WHEREAS, the Indenture Trustee has received an opinion of counsel pursuant to Section 9.3(d) of the Servicing Agreement stating that (i) this Amendment is authorized pursuant to the Servicing Agreement and complies therewith; (ii) this Amendment shall not adversely affect the interests of the Secured Parties in any material respect and (iii) all conditions precedent to the execution, delivery and performance of this Amendment have been satisfied in full.
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NOW, THEREFORE, in consideration of the foregoing, other good and valuable consideration, and the mutual terms contained herein, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The capitalized terms used herein (including the preamble and the recitals hereto) and not otherwise defined herein shall have the meanings assigned thereto or incorporated by reference in Section 1.1 of the Servicing Agreement.
ARTICLE II
AMENDMENTS
Section 2.1 Amendment to Section 1.1 of the Servicing Agreement. Section 1.1 of the Servicing Agreement is hereby amended by amending and restating the definition of “Weekly Servicing Fee” in its entirety to read as follows:
““ Weekly Servicing Fee” means, with respect to each Weekly Allocation Date, an amount equal to the quotient of (i) the sum of (a) $11,500,000, plus (b) $13,000 for every Restaurant (excluding any Restaurant owned or operated by FMS Management Systems, Inc.) located in the contiguous United States of America as of the last day of the immediately preceding Monthly Collection Period that is contributing cash flow to the Collection Account (excluding Restaurants subject to Type 2 Property Leases that are not contributing cash flow to the Collection Account unless such failure to contribute cash flow is solely as a result of a delinquency of a franchisee), divided by (ii) 52; provided, that, each of the amounts set forth in clauses (a) and (b) above will be subject to a 2% annual increase on the first day of the Monthly Collection Period that commences immediately following each anniversary of the Closing Date; provided, further, that no such increase will apply if after giving effect to such increase the sum of amounts set forth in clauses (a) and (b) above will exceed the product of (x) 35% and (y) the Collections (after giving effect to the application of the Collections in accordance with Sections 10.9(a) and (b) of the Base Indenture on such Weekly Allocation Date), calculated with respect to the immediately preceding Weekly Collections Allocation Period.”
Section 2.2 Amendment to Section 3.1 of the Servicing Agreement. Section 3.1(g) of the Servicing Agreement is hereby amended by inserting the following at the end thereof:
“In addition, the Servicer shall on an annual basis allow the Back-Up Servicer access to its books of account (as well as those pertaining to the Securitization Entities and Applebee’s) and records and permit the Back-Up
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Servicer to discuss the affairs, finances and accounts relating to the IHOP and Applebee’s inter-company arrangements with any of its officers, directors and other representatives”
Section 2.3 Amendment to Section 4.15 of the Servicing Agreement. Section 4.15 of the Servicing Agreement is hereby amended and restated in its entirety to read as follows:
“None of the Guarantor, IHOP, Inc., Xxxxxxxx’x International, Inc., a Delaware corporation (“Applebee’s”), or their respective Affiliates shall incur Debt (including, but not limited to, guaranties or pledges of its property) other than (a) with respect to the Guarantor, IHOP, Inc., Applebee’s and their respective Affiliates, but excluding the Securitization Entities (as such term is defined in the Indenture) (referred to herein as the “IHOP Securitization Entities”) and the special purpose vehicles established by Applebee’s (the “Applebee’s Securitization Entities”) in connection with the securitization of substantially all of the assets of Applebee’s situated in the U.S. (the “Applebee’s Securitization”), Debt (excluding from the definition of “Debt” for this purpose, any “capital leases” in effect as of November 29, 2007) not in excess of U.S. $95,000,000 in aggregate outstanding principal amount at any time; provided, that in the event that Applebee’s is no longer affiliated with IHOP, Inc., the Debt allowed pursuant to this clause (a) shall not exceed U.S.$25,000,000 in aggregate outstanding principal amount at any time, (b) with respect to the Guarantor, IHOP, Inc., Applebee’s and their respective Affiliates, including the Applebee’s Securitization Entities but excluding the IHOP Securitization Entities, Debt incurred in connection with the sale-leaseback transactions contemplated by and in accordance with the requirements of the term sheet attached as a schedule to the letter, dated July 15, 2007, delivered by Financial Guaranty Insurance Company, a New York stock insurance company (the “Insurer”), and the other insurers identified therein, to the Guarantor and Applebee’s (such term sheet being referred to herein as the “Applebee’s Securitization Term Sheet”); provided, that, on a pro forma basis after giving effect to the sale-leaseback transaction, the ratio of the adjusted debt (calculated by capitalizing lease obligations whether treated as operating leases or capital leases under GAAP at 8x annual rent) to EBITDAR of the Guarantor is equal to or less than 7.30x to and including November 30, 2008 and 7.0x following such date, (c) Debt incurred by the Guarantor, IHOP, Inc., Applebee’s and their respective Affiliates pursuant to (i) the Indenture, (ii) the Applebee’s Securitization, and (iii) during the period from the date hereof to the date of the Applebee’s Securitization (and thereafter to the extent provided in clause (B) below), the loans (the “Acquisition Loans”) extended to the Guarantor pursuant to the securitization bridge financing (the “Securitization Bridge Financing”) to be provided by Xxxxxx Brothers Commercial Bank (“LBCB”) and Xxxxxx Commercial Paper Inc. (“LCPI”), as the initial securitization bridge lenders (together with their
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successors and assigns in such capacity, the “Initial Securitization Bridge Lenders”), and such other securitization bridge lenders as may be identified by the Initial Securitization Bridge Lenders from time to time; provided, that (A) the aggregate outstanding principal amount of the Acquisition Loans may in no event exceed U.S. $2,150,000,000 (including any unfunded commitment under any revolving credit facility that is a part of the Securitization Bridge Financing), (B) upon the consummation of the Applebee’s Securitization, the aggregate outstanding principal amount of the Acquisition Loans shall be permanently reduced to no more than U.S. $175,000,000 (or such higher amount as may be consented to in writing by the Insurer, such consent not to be unreasonably withheld or delayed) less the proceeds, if any, from the offering and sale of the Series 2007-3 Fixed Rate Term Notes issued by the Co-Issuers pursuant to the Indenture or any other equity investment issued in substitution therefor, and (C) if the Applebee’s Securitization is not consummated on or prior to January 15, 2008, or such later date, if any, to which the Insurer’s commitment has been extended with its written consent, then the Guarantor, IHOP, Inc., Applebee’s and their respective Affiliates (other than the IHOP Securitization Entities) shall repay the Acquisition Loans and other Debt from the net proceeds of the disposition of those certain assets, as would have been required pursuant to the Applebee’s Securitization Term Sheet had the Applebee’s Securitization been consummated, and the aggregate outstanding principal amount of the Acquisition Loans shall be permanently decreased by a corresponding amount; (d) trade debt incurred in the ordinary course of business, and (e) debt incurred in connection with any indemnification obligations of the Servicer; provided, that, for the avoidance of doubt, (x) clauses (a) through (e) of this Section 4.15 shall each constitute separate baskets of permitted Debt of the Guarantor, IHOP, Inc., Applebee’s and their respective Affiliates and (y) the Debt permitted to be incurred by the Guarantor, IHOP, Inc., Applebee’s and their respective Affiliates pursuant to clauses (a) through (e) of this Section 4.15 shall be subject to compliance with all applicable ratios, restrictions, tests and other requirements in effect under the Transaction Documents as amended or otherwise modified or waived from time to time.”
Section 2.4 Amendment to Section 6.1 of the Servicing Agreement. Section 6.1(a)(xi) of the Servicing Agreement is hereby amended by deleting the two references therein to “or IHOP Holdings” and substituting therefor the following language:
“, IHOP Holdings or any Applebee’s Securitization Entity (as such term is defined in Section 4.15 hereof)”.
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ARTICLE III
MISCELLANEOUS
Section 3.1 Effectiveness of Amendment.
(a) This Amendment shall become effective upon (x) the consummation of the Securitization Bridge Financing and/or the Applebee’s Securitization and (y) the satisfaction of the following conditions:
(i) the Series Insurer’s receipt of written confirmation from each Rating Agency that the amendments contemplated by this Amendment will not have an adverse effect on the ratings of any Notes Outstanding (without giving effect to any Insurance Policy); and
(ii) the execution and delivery of this Amendment by each of the Series Insurer, the Co-Issuers, the Indenture Trustee, the Servicer, the Guarantor and its other Affiliates identified on the signature pages hereof.
(b) This Amendment shall cease to be effective if:
(i) the Guarantor executes and delivers the Securitization Bridge Documentation (as such term is defined in the recitals to this Amendment) and the Securitization Bridge Documentation does not include the “Acquisition Loan Covenants” to be made by the Securitization Bridge Lenders set forth in the term sheet attached as a schedule to the commitment letter, dated July 15, 2007, delivered to the Guarantor by the Series Insurer relating to, among other things, this Amendment and the issuance of the Series 2007-3 Notes;
(ii) the transactions contemplated by the Merger Agreement are not consummated and the Merger Agreement is terminated in the manner provided therein; or
(iii) Supplement No.1 dated as of the date hereof to the Indenture ceases to be in effect in accordance with Section 3.1(b) thereof.
Section 3.2 Ratification of Servicing Agreement. The Servicing Agreement as modified by this Amendment and all rights and remedies of the parties thereunder are and shall continue to be in full force and effect in accordance with the terms thereof, and the same as modified by this Amendment are hereby ratified and confirmed in all such respects by the parties hereto.
Section 3.3 Effect of Section Headings. The section headings in this Amendment are for convenience only and shall not affect the construction of this Amendment.
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Section 3.4 Separability. In case any provision of this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.5 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW RULES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 3.6 Counterparts. This Amendment may be executed in any number of counterparts (including by facsimile or other electronic means of communication), each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the Servicing Agreement to be duly executed as of the date and year first above written.
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IHOP FRANCHISING, LLC, |
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as the Issuer |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: |
Xxxx Weiseberger |
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Title: |
Vice President |
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IHOP IP, LLC, |
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as the Co-Issuer |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: |
Xxxx Weiseberger |
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Title: |
Vice President |
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IHOP PROPERTY LEASING, LLC |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: |
Xxxx Weiseberger |
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Title: |
Authorized Signatory |
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IHOP PROPERTIES, LLC |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: |
Xxxx Weiseberger |
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Title: |
Vice President |
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IHOP REAL ESTATE, LLC |
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By: |
/s/ Xxx Xxxxxxxx |
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Name: |
Xxx Xxxxxxxx |
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Title: |
Vice President |
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INTERNATIONAL HOUSE OF PANCAKES, INC. |
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By: |
/s/ Xxx Xxxxxxxx |
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Name: |
Xxx Xxxxxxxx |
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Title: |
Chief Financial Officer |
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By: |
/s/ Xxx Xxxxxxxx |
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Name: |
Xxx Xxxxxxxx |
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Title: |
Chief Financial Officer |
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XXXXX FARGO BANK, NATIONAL |
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capacity but as the Indenture Trustee |
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By: |
/s/ Xxxxxxxx X. Xxxxx |
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Name: |
Xxxxxxxx X. Xxxxx |
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Title: |
Assistant Vice President |
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Consented to for purposes of Section 7.8(a)(xvii) of the
Indenture, Section 9.3 of the Servicing Agreement and
Section 6.01 of the Insurance Agreement relating to the
Series 2007-1 Notes and the Series 2007-2 Notes
FINANCIAL GUARANTY INSURANCE
COMPANY, as Series Insurer in respect of
the Series 2007-1 and 2007-2 Notes
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By: |
/s/ Rajat Basu |
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Name: |
Rajat Basu |
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Title: |
Managing Director |
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