EXHIBIT 4.2
INTERNATIONAL HOUSE OF PANCAKES, INC.
000 XXXXX XXXXX XXXXXXXXX
XXXXX XXXXX
XXXXXXXX, XXXXXXXXXX 00000
November 1, 1996
To the Holder Whose Name
Appears in the Acceptance
Form at the End Hereof
Re: 7.79% Senior Notes due 2002 of
International House of Pancakes, Inc.
-------------------------------------
Ladies and Gentlemen:
Please refer to the Senior Note Purchase Agreements, dated as of
November 19, 1992, among International House of Pancakes, Inc. (the "Borrower"),
IHOP Corp. ("Holdings") and the several purchasers named in Schedule I thereto
(collectively, the "Purchase Agreements"). Capitalized terms used in this
letter and not otherwise defined shall have the meanings ascribed thereto in the
Purchase Agreements.
International House of Pancakes, Inc. proposes to issue in a private
placement $35,000,000 aggregate principal amount of its senior notes (the "New
Notes"). The New Notes will be guaranteed by IHOP Realty, IHOP Restaurants,
Inc. and IHOP Properties, Inc. (collectively, the "Subsidiaries"), and by
Holdings. Borrower and Holdings have entered into that certain Letter Agreement
(the "Letter Agreement") with Bank of America Illinois(the "Bank"), dated as of
June 30, 1993, as amended by (i) a letter dated July 15, 1993, (ii) the First
Amendment to the Letter Agreement dated as of December 31, 1994 and (iii) the
Second Amendment to the Letter Agreement dated as of March 11, 1996, which
Letter Agreement, as amended, provides for the obligations of Borrower
thereunder to be guaranteed by the Subsidiaries.
In connection with the issuance of the New Notes, the Borrower has
requested that you (i) enter into an Intercreditor Agreement in the form
attached hereto
November 1, 1996
Page 2
(the "Intercreditor Agreement") and (ii) waive and amend certain covenants in
the Purchase Agreements, and you are willing to do so on the terms and
conditions set forth herein.
Subject to the condition that (i) each of the Bank and the purchasers
of the New Notes shall enter into the Intercreditor Agreement, (ii) you have
received a copy of the form of Senior Note Purchase Agreement relating to the
New Notes in substantially final form and (iii) the Letter Agreement shall be
amended in substantially the same manner as the Purchase Agreements, you hereby
(x) agree to duly authorize, execute, deliver and perform the Intercreditor
Agreement, (y) consent to the amendment of the Purchase Agreements as set forth
below and (z) agree to waive any Default or Event of Default resulting from the
issuance by the Subsidiaries of guarantees to the Bank (including, without
limitation, any Default or Event of Default arising from a breach of Section
11.1 or Section 11.4 of the Purchase Agreements).
The Purchase Agreements are hereby amended as follows:
1. Clause (ii) of Section 11.1(I) of the Purchase Agreements is
amended and restated in its entirety as follows:
"(ii) unsecured Debt (other than Additional Permitted Subsidiary
Guarantees) of Subsidiaries of Holdings (other than the Borrower) and
Subsidiaries of the Borrower not otherwise permitted under Section 11.4(A) does
not exceed at any time 15% of Consolidated Tangible Net Worth."
2. Section 11.4(B) of the Purchase Agreements is amended and
restated in its entirety as follows:
"(B) additional Debt (other than Addition al Permitted Subsidiary
Guarantees), provided that the
November 1, 1996
Page 3
sum of the aggregate principal amount of such Debt plus the aggregate principal
amount of all other Debt (without duplication) of Holdings, the Borrower and any
of their Subsidiaries which is secured by Liens not permitted by Sections
11.1(A) through (H) does not exceed 15% of Consolidated Tangible Net Worth."
3. Section 12 of the Purchase Agreements is amended to include the
following definitions:
"Additional Permitted Subsidiary Guarantees" shall mean those
Guarantees delivered by any Subsidiary Guarantor which guarantees Debt of the
Borrower the beneficiaries of which are or become a party to, and thereby agree
to undertake and perform the duties, rights and obligations of a party under the
Intercreditor Agreement.
"Intercreditor Agreement" means the Intercreditor Agreement dated
as of November 1, 1996 among the 1992 Noteholders (as defined therein),the 1996
Noteholders (as defined therein), Bank of America Illinois and additional
creditors which may become a party thereto from time to time, substantially in
the form attached hereto as Exhibit I.
"Subsidiary Guarantors" shall mean collectively IHOP Realty,
IHOP Properties, Inc. and IHOP Restaurants, Inc.
4. The Purchase Agreements are amended to include the Intercreditor
Agreement as Exhibit I.
5. Upon and by virtue of this letter agreement becoming effective
as herein contemplated, the failure of the Borrower and Holdings to comply with
the provisions of Section 11.1(I) and Section 11.4 of the Purchase Agreements by
virtue of the execution and delivery by the Subsidiaries of guarantees to the
Bank which constitute an Event of Default under the Purchase Agreements shall
be deemed to have been waived by the holders
November 1, 1996
Page 4
of the Notes. The Borrowers and Holdings understand and agree that the waivers
contained in this paragraph pertain only to the Event of Defaults herein
described and to the extent so described and not to any other Default or Event
of Default which may exist under, or any other matters arising in connection
with, the Purchase Agreements or to any rights which the holders of the Notes
have arising by virtue of any such other actions or matters.
Except for the specific consent and waiver granted herein, the Purchase
Agreements shall continue in full force and effect.
November 1, 1996
Page 5
If you are in agreement with the foregoing, please sign the form of
acceptance in the space provided below whereupon this letter shall become a
binding agreement between you and the undersigned.
Very truly yours,
INTERNATIONAL HOUSE OF IHOP CORP.
PANCAKES, INC.
By: _________________ By: _______________
Name: Name:
Title: Title:
By its execution hereof, each of the undersigned acknowledges and agrees
to the terms hereof and confirms that its Guaranty dated as of November 19, 1992
or December 29, 1993, as the case may be, remains in full force and effect:
IHOP RESTAURANTS, INC. IHOP REALTY CORP.
By: _________________ By: _____________________
Name: Name:
Title: Title:
IHOP PROPERTIES, INC.
By: ______________________
Name:
Title:
Accepted as of the date first
above written:
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By:____________________
Name:
Title:
November 1, 1996
Page 5
If you are in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this letter shall become a binding
agreement between you and the undersigned.
Very truly yours,
INTERNATIONAL HOUSE OF IHOP CORP.
PANCAKES, INC.
By: _________________ By: _______________
Name: Name:
Title: Title:
By its execution hereof, each of the undersigned acknowledges and agrees
to the terms hereof and confirms that its Guaranty dated as of November 19, 1992
or December 29, 1993, as the case may be, remains in full force and effect:
IHOP RESTAURANTS, INC. IHOP REALTY CORP.
By: _________________ By: _____________________
Name: Name:
Title: Title:
IHOP PROPERTIES, INC.
By: ______________________
Name:
Title:
Accepted as of the date first
above written:
THE FRANKLIN LIFE INSURANCE COMPANY
By:____________________
Name:
Title:
November 1, 1996
Page 5
If you are in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this letter shall become a binding
agreement between you and the undersigned.
Very truly yours,
INTERNATIONAL HOUSE OF IHOP CORP.
PANCAKES, INC.
By: _________________ By: _______________
Name: Name:
Title: Title:
By its execution hereof, each of the undersigned acknowledges and agrees
to the terms hereof and confirms that its Guaranty dated as of November 19, 1992
or December 29, 1993, as the case may be, remains in full force and effect:
IHOP RESTAURANTS, INC. IHOP REALTY CORP.
By: _________________ By: _____________________
Name: Name:
Title: Title:
IHOP PROPERTIES, INC.
By: ______________________
Name:
Title:
Accepted as of the date first
above written:
THE MANUFACTURERS LIFE INSURANCE COMPANY
By:____________________
Name:
Title:
November 1, 1996
Page 5
If you are in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this letter shall become a binding
agreement between you and the undersigned.
Very truly yours,
INTERNATIONAL HOUSE OF IHOP CORP.
PANCAKES, INC.
By: _________________ By: _______________
Name: Name:
Title: Title:
By its execution hereof, each of the undersigned acknowledges and agrees
to the terms hereof and confirms that its Guaranty dated as of November 19, 1992
or December 29, 1993, as the case may be, remains in full force and effect:
IHOP RESTAURANTS, INC. IHOP REALTY CORP.
By: _________________ By: _____________________
Name: Name:
Title: Title:
IHOP PROPERTIES, INC.
By: ______________________
Name:
Title:
Accepted as of the date first
above written:
THE CANADA LIFE ASSURANCE COMPANY
By:____________________
Name:
Title:
November 1, 1996
Page 5
If you are in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this letter shall become a binding
agreement between you and the undersigned.
Very truly yours,
INTERNATIONAL HOUSE OF IHOP CORP.
PANCAKES, INC.
By: _________________ By: _______________
Name: Name:
Title: Title:
By its execution hereof, each of the undersigned acknowledges and agrees
to the terms hereof and confirms that its Guaranty dated as of November 19, 1992
or December 29, 1993, as the case may be, remains in full force and effect:
IHOP RESTAURANTS, INC. IHOP REALTY CORP.
By: _________________ By: _____________________
Name: Name:
Title: Title:
IHOP PROPERTIES, INC.
By: ______________________
Name:
Title:
Accepted as of the date first
above written:
MODERN WOODMEN OF AMERICA
By:____________________
Name:
Title:
November 1, 1996
Page 5
If you are in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this letter shall become a binding
agreement between you and the undersigned.
Very truly yours,
INTERNATIONAL HOUSE OF IHOP CORP.
PANCAKES, INC.
By: _________________ By: _______________
Name: Name:
Title: Title:
By its execution hereof, each of the undersigned acknowledges and agrees
to the terms hereof and confirms that its Guaranty dated as of November 19, 1992
or December 29, 1993, as the case may be, remains in full force and effect:
IHOP RESTAURANTS, INC. IHOP REALTY CORP.
By: _________________ By: _____________________
Name: Name:
Title: Title:
IHOP PROPERTIES, INC.
By: ______________________
Name:
Title:
Accepted as of the date first
above written:
MONY LIFE INSURANCE COMPANY OF AMERICA
By:____________________
Name:
Title:
================================================================================
INTERCREDITOR AGREEMENT
Dated as of November 1, 0000
Xxxxx
XXXX XX XXXXXXX XXXXXXXX
And
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
MONY LIFE INSURANCE COMPANY OF AMERICA
THE MANUFACTURERS LIFE INSURANCE COMPANY
THE FRANKLIN LIFE INSURANCE COMPANY
THE CANADA LIFE ASSURANCE COMPANY
and
MODERN WOODMEN OF AMERICA
And
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
UNITED OF OMAHA LIFE INSURANCE COMPANY
and
SECURITY FIRST LIFE INSURANCE COMPANY
And
Additional Lenders
================================================================================
TABLE OF CONTENTS
Section Heading Page
Parties................................................................ 1
Recitals............................................................... 1
Section 1. Definitions.......................................... 3
Section 2. Sharing of Recoveries................................ 5
Section 3. Agreements Among the Creditors....................... 6
Section 3.1. Independent Actions by Creditors.................. 6
Section 3.2. Relation of Creditors............................. 6
Section 3.3. Acknowledgment of Guarantees...................... 6
Section 3.4. Additional Lenders................................ 6
Section 4. Miscellaneous........................................ 6
Section 4.1. Entire Agreement.................................. 6
Section 4.2. Notices........................................... 7
Section 4.3. Successors and Assigns............................ 7
Section 4.4. Consents, Amendment, Waivers...................... 7
Section 4.5. Governing Law..................................... 7
Section 4.6. Counterparts...................................... 7
Section 4.7. Severability...................................... 7
Section 4.8. Expenses.......................................... 7
Signature Page......................................................... 8
i
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT dated as of November 1, 1996 among BANK OF
AMERICA ILLINOIS (the "Lender"), THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK,
MONY LIFE INSURANCE COMPANY OF AMERICA, THE MANUFACTURERS LIFE INSURANCE
COMPANY, THE FRANKLIN LIFE INSURANCE COMPANY, THE CANADA LIFE ASSURANCE COMPANY
and MODERN WOODMEN OF AMERICA (each institution is referred to herein as a "1992
Noteholder" and the institutions are collectively referred to as the "1992
Noteholders") and XXXXXXX NATIONAL LIFE INSURANCE COMPANY, PHOENIX HOME LIFE
MUTUAL INSURANCE COMPANY, UNITED OF OMAHA LIFE INSURANCE COMPANY and SECURITY
FIRST LIFE INSURANCE COMPANY (each institution is referred to herein as a "1996
Noteholder" and the institutions are collectively referred to herein as the
"1996 Noteholders"; the 1996 Noteholders, the 1992 Noteholders and the Lender
and each of the additional Persons, if any, that become a party hereto as
contemplated by (S)3.4 hereof (each such Person is referred to as an "Additional
Lender") are individually referred to herein as a "Creditor" and are
collectively referred to herein as the "Creditors").
R E C I T A L S:
A. Under and pursuant to the separate and several Senior Note Purchase
Agreements each dated as of November 1, 1996 (collectively, the "1996 Note
Agreements"), among International House of Pancakes, Inc., a Delaware
corporation (the "Borrower"), IHOP Corp., a Delaware corporation ("Holdings")
and each of the 1996 Noteholders, the Borrower has issued and sold to the 1996
Noteholders $35,000,000 aggregate principal amount of its 7.42% Senior Notes,
Due November, 2008 (the "1996 Notes").
B. Under and pursuant to the separate and several Senior Note Purchase
Agreements each dated as of November 19, 1992 (collectively, as amended the
"1992 Note Agreements"), among the Borrower, Holdings and each of the 1992
Noteholders, the Borrower has issued and sold to the 1992 Noteholders
$32,000,000 aggregate principal amount of its 7.79% Senior Notes, Due November,
2002 (the "1992 Notes").
C. Under and pursuant to that certain Letter Agreement dated as of June
30, 1993 (as such agreement may be modified, amended, renewed or replaced,
including any increase in the amount thereof, the "Bank Credit Agreement") among
the Borrower, Holdings, and the Lender, the Lender has made available to the
Borrower certain credit facilities in a current aggregate principal amount up to
$20,000,000 (all amounts outstanding in respect of said credit facilities being
hereinafter collectively referred to as the "Loans").
D. In connection with the execution of the 1992 Note Agreements and as
security for the 1992 Notes issued thereunder, IHOP Realty Corp., IHOP
Properties, Inc. and IHOP Restaurants, Inc., (individually, a "Subsidiary
Guarantor" and collectively, the "Subsidiary Guarantors") each of which is a
wholly-owned subsidiary of the Borrower, have guaranteed to the 1992 Noteholders
the payment of the principal of, premium, if any, and interest on
the 1992 Notes and payment and performance of all other obligations of the
Borrower under the 1992 Note Agreements under the Subsidiary Guarantee dated as
of November 19, 1992 executed by IHOP Realty Corp., the Subsidiary Guarantee
dated as of December 29, 1993 executed by IHOP Properties, Inc., and the
Subsidiary Guarantee dated as of December 29, 1993 executed by IHOP Restaurants,
Inc. (as such agreements may be modified, amended, renewed or replaced,
including any increase in the amount thereof, individually, a "1992 Noteholder
Guaranty" and collectively, the "1992 Noteholder Guarantees").
E. In connection with the execution of the Bank Credit Agreement and as
support for the Loans made thereunder, the Subsidiary Guarantors have guaranteed
to the Lender the payment of the Loans and all other obligations of the Borrower
under the Bank Credit Agreement under the Subsidiary Guarantee dated as of June
30, 1993 executed by IHOP Realty Corp., the Subsidiary Guarantee dated as of
December 29, 1993 executed by IHOP Properties, Inc., and the Subsidiary
Guarantee dated as of December 29, 1993 executed by IHOP Restaurants, Inc. (as
such agreements may be modified, amended, renewed or replaced, including any
increase in the amount thereof, individually, a "Lender Guaranty" and
collectively, the "Lender Guarantees").
F. Each Subsidiary Guarantor is entering into a Guaranty Agreement
(individually, a "1996 Noteholder Guaranty" and collectively, the "1996
Noteholder Guarantees") dated as of the date hereof pursuant to which each
Subsidiary Guarantor shall guarantee to the 1996 Noteholders the payment of the
principal of, premium, if any, and interest on the 1996 Notes and the payment
and performance of all other obligations of the Borrower under the 1996 Note
Agreements. The Lender Guarantees, the 1992 Noteholder Guarantees, the 1996
Noteholder Guarantees and the Additional Permitted Subsidiary Guarantees, if
any, are each hereinafter referred to individually, as a "Subsidiary Guaranty"
and collectively, as the "Subsidiary Guarantees."
G. Each of the Creditors desires to provide for their respective rights
in respect of the Subsidiary Guarantees and certain collections from the
Subsidiary Guarantors and to make certain other commitments and undertakings in
connection with the 1992 Note Agreements, the Bank Credit Agreement, the 1996
Note Agreements, the Additional Debt Facility Agreements, if any, the Subsidiary
Guarantees, the obligations incurred by the Subsidiary Guarantors under such
agreements and the rights of the Creditors under such agreements.
H. The 1992 Noteholders, the Lender, and the 1996 Noteholders hereby
contemplate that in the event that any of the Subsidiary Guarantors execute and
deliver an Additional Permitted Subsidiary Guarantee, the beneficiary of such
Additional Permitted Subsidiary Guarantee shall become a party to this Agreement
upon compliance with the terms and conditions set forth in (S)3.4 hereof.
Now, Therefore, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree a follows:
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SECTION 1. DEFINITIONS.
The following terms shall have the meanings assigned to them below in this
(S)1 or in the provisions of this Agreement referred to below:
"Additional Debt Facility" shall mean Debt of the Borrower which is
guaranteed by an Additional Permitted Subsidiary Guarantee.
"Additional Debt Facility Agreement" shall mean the agreement executed and
delivered by the Borrower and the Additional Lenders evidencing the Additional
Debt Facility.
"Additional Lender" shall have the meaning assigned thereto in the
introductory paragraph hereto.
"Additional Permitted Subsidiary Guarantees" shall mean those Guarantees
delivered by any Subsidiary Guarantor which guarantees any of the Borrower's
Guaranteed Obligations the beneficiaries of which are or become a party to, and
thereby agree to undertake and perform the duties, rights and obligations of a
party under, the Intercreditor Agreement.
"Bank Credit Agreement" shall have the meaning assigned thereto in the
Recitals hereof.
"Bankruptcy Proceeding" shall mean, with respect to any person, a general
assignment of such person for the benefit of its creditors, or the institution
by or against such person of any proceeding seeking relief as debtor, or seeking
to adjudicate such person as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of such person or its debts, under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for such person or for any substantial part of its property.
"Borrower" shall have the meaning assigned thereto in the Recitals hereof.
"Borrower's Guaranteed Obligations" shall mean all principal of, premium,
if any, and interest on, the 1996 Notes, the 1992 Notes, the Loans and the
Additional Debt Facilities, if any, and all other obligations of the Borrower
under or in respect of the 1996 Notes, the 1992 Notes, the Loans and the
Additional Debt Facilities, if any, under the 1996 Note Agreements, the 1992
Note Agreements, the Bank Credit Agreement and the Additional Debt Facility
Agreements and any other obligations of the Borrower to the Creditors which are
guaranteed by the Subsidiary Guarantees; provided that any amount of such
Borrower's Guaranteed Obligations which is not allowed as a claim enforceable
against the Borrower in a Bankruptcy Proceeding under applicable law shall be
excluded from the computation of "Borrower's Guaranteed Obligations" hereunder.
-3-
"Creditor" shall have the meaning assigned thereto in the introductory
paragraph hereto.
"Excess Guaranty Payment" shall mean as to any Creditor an amount equal to
the Guaranty Payment received by such Creditor less the Pro Rata Share of
Guaranty Payments to which such Creditor is then entitled.
"Guaranty Payment" shall have the meaning assigned thereto in (S)2.
"Lender" shall have the meaning assigned thereto in the introductory
paragraph hereto.
"Lender Guaranty" and "Lender Guarantees" shall have the meanings assigned
thereto in the Recitals hereof.
"Loans" shall have the meaning assigned thereto in the Recitals hereof.
"1992 Note Agreements" shall have the meaning assigned thereto in the
Recitals hereof.
"1996 Note Agreements" shall have the meaning assigned thereto in the
Recitals hereof.
"1992 Noteholder" shall have the meaning assigned thereto in the
introductory paragraph hereto.
"1996 Noteholder" shall have the meaning assigned thereto in the
introductory paragraph hereto.
"1992 Noteholder Guaranty" and "1992 Noteholder Guarantees" shall have the
meanings assigned thereto in the Recitals hereof.
"1996 Noteholder Guaranty" and "1996 Noteholder Guarantees" shall have the
meanings assigned thereto in the Recitals hereof.
"1992 Notes" shall have the meaning assigned thereto in the Recitals
hereof.
"1996 Notes" shall have the meaning assigned thereto in the Recitals
hereof.
"Pro Rata Share of Guaranty Payments" shall mean as of the date of any
Guaranty Payment to a Creditor under any Subsidiary Guaranty an amount equal to
the product obtained by multiplying (x) the amount of all Guaranty Payments made
by the Subsidiary Guarantors to all Creditors concurrently with the payments to
such Creditor less all reasonable costs incurred by such Creditors in connection
with the collection of such Guaranty Payments by (y) a fraction, the numerator
of which shall be the Specified Amount owing to such Creditor, and the
denominator of which is the aggregate amount of all
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outstanding Borrower's Guaranteed Obligations (without giving effect in the
denominator to the application of any such Guaranty Payments).
"Receiving Creditor" shall have the meaning assigned thereto in (S)2.
"Specified Amount" shall mean as to any Creditor the aggregate amount of
the Borrower's Guaranteed Obligations owed to such Creditor.
"Subsidiary Guarantor" and "Subsidiary Guarantors" shall have the meanings
assigned thereto in the Recitals hereof.
"Subsidiary Guaranty" and "Subsidiary Guarantees" shall have the meanings
assigned thereto in the Recitals hereof.
SECTION 2. SHARING OF RECOVERIES.
Each Creditor hereby agrees with each other Creditor that payments
(including payments made through setoff of deposit balances or otherwise or
payments or recoveries from any security interest granted to any Creditor) made
pursuant to the terms of any Subsidiary Guaranty (a "Guaranty Payment") (x)
within 90 days prior to the commencement of a Bankruptcy Proceeding with respect
to any Subsidiary Guarantor or the Borrower or (y) following the acceleration of
the 1996 Notes, the 1992 Notes or the Loans or the acceleration of any other
Borrower's Guaranteed Obligation, shall be shared so that each Creditor shall
receive its Pro Rata Share of Guaranty Payments. Accordingly, each Creditor
hereby agrees that in the event (a) an event described in clauses (x) or (y)
above shall have occurred, (b) any Creditor shall receive a Guaranty Payment (a
"Receiving Creditor"), and (c) any other Creditor shall not concurrently receive
its Pro Rata Share of Guaranty Payments from the same Subsidiary Guarantor, then
the Receiving Creditor shall promptly remit the Excess Guaranty Payment to each
other Creditor who shall then be entitled thereto so that after giving effect to
such payment (and any other payments then being made by any other Receiving
Creditor pursuant to this (S)2) each Creditor shall have received its Pro Rata
Share of Guaranty Payments.
Any such payments shall be deemed to be and shall be made in consideration
of the purchase for cash at face value, but without recourse, ratably from the
other Creditors such amount of 1996 Notes, 1992 Notes, Loans or Additional Debt
Facility, if any, as the case may be, to the extent necessary to cause such
Creditor to share such Excess Guaranty Payment with the other Creditors as
hereinabove provided; provided, however, that if any such purchase or payment is
made by any Receiving Creditor and if such Excess Guaranty Payment or part
thereof is thereafter recovered from such Receiving Creditor by any Subsidiary
Guarantor (including, without limitation, by any trustee in bankruptcy of any
Subsidiary Guarantor or any creditor thereof), the related purchase from the
other Creditors shall be rescinded ratably and the purchase price restored as to
the portion of such Excess Guaranty Payment so recovered, but without interest;
and provided further nothing herein contained shall obligate any Creditor to
resort to any setoff, application of deposit balance or other means of payment
under any Subsidiary Guaranty or avail itself of any
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recourse by resort to any property of the Borrower or any Subsidiary Guarantor,
the taking of any such action to remain within the absolute discretion of such
Creditor without obligation of any kind to the other Creditors to take any such
action.
SECTION 3. AGREEMENTS AMONG THE CREDITORS.
Section 3.1. Independent Actions by Creditors. Nothing contained in
this Agreement shall prohibit any Creditor from accelerating the maturity of, or
demanding payment from any Subsidiary Guarantor on, any Borrower's Guaranteed
Obligation of the Borrower to such Creditor or from instituting legal action
against the Borrower or any Subsidiary Guarantor to obtain a judgment or other
legal process in respect of such Borrower's Guaranteed Obligation, but any funds
received from any Subsidiary Guarantor in connection with any recovery therefrom
shall be subject to the terms of this Agreement.
Section 3.2. Relation of Creditors. This Agreement is entered into
solely for the purposes set forth herein, and no Creditor assumes any
responsibility to any other party hereto to advise such other party of
information known to such other party regarding the financial condition of the
Borrower or any Subsidiary Guarantor or of any other circumstances bearing upon
the risk of nonpayment of any Borrower's Guaranteed Obligation. Each Creditor
specifically acknowledges and agrees that nothing contained in this Agreement is
or is intended to be for the benefit of the Borrower or any Subsidiary Guarantor
and nothing contained herein shall limit or in any way modify any of the
obligations of the Borrower or any Subsidiary Guarantor to the Creditors.
Section 3.3. Acknowledgment of Guarantees. The Lender hereby
expressly acknowledges the existence of the 1992 Noteholder Guarantees and the
1996 Noteholder Guarantees. The 1992 Noteholders hereby expressly acknowledge
the existence of the Lender Guarantees and the 1996 Noteholder Guarantees. The
1996 Noteholders hereby expressly acknowledge the existence of the Lender
Guarantees and the 1992 Noteholder Guarantees.
Section 3.4. Additional Lenders. Additional Persons may become
"Creditors" hereunder by executing and delivering to each of the then existing
Creditors (i) a copy of this Agreement so executed and (ii) a copy of the
agreement or documents pursuant to which such Person becomes a creditor of the
Borrower and of any Subsidiary Guarantor. Accordingly, upon the execution and
delivery of such copy of this Agreement by any such Person, such Person shall,
upon the acknowledgement of the then existing Creditors, thereinafter become a
Creditor for all purposes of this Agreement.
SECTION 4. MISCELLANEOUS.
Section 4.1. Entire Agreement. This Agreement represents the entire
Agreement among the Creditors and, except as otherwise provided, this Agreement
may not be altered, amended or modified except in a writing executed by all the
parties to this Agreement.
-6-
Section 4.2. Notices. Notices hereunder shall be given to the
Creditors at their addresses as set forth in the 1996 Note Agreements, the 1992
Note Agreements, the Bank Credit Agreement or the Additional Debt Facility
Agreements, as the case may be, or at such other address as may be designated by
each in a written notice to the other parties hereto.
Section 4.3. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the Creditors and their respective
successors and assigns, whether so expressed or not, and, in particular, shall
inure to the benefit of and be enforceable by any future holder or holders of
any Borrower's Guaranteed Obligations, and the term "Creditor" shall include any
such subsequent holder of Borrower's Guaranteed Obligations, wherever the
context permits.
Section 4.4. Consents, Amendment, Waivers. All amendments, waivers
or consents of any provision of this Agreement shall be effective only if the
same shall be in writing and signed by all of the Creditors.
Section 4.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 4.6. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
Agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 4.7. Severability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired thereby.
Section 4.8. Expenses. In the event of any litigation to enforce
this Agreement, the prevailing party shall be entitled to its reasonable
attorney's fees (including the allocated costs of in-house counsel).
-7-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed as of the date first above written.
BANK OF AMERICA ILLINOIS, this Lender
By /s/ Xxxx X. Xxxx
----------------
Vice President
THE MUTUAL LIFE INSURANCE COMPANY OF
NEW YORK, a 1992 Noteholder
By /s/ Xxxxxxx X. Xxxxxx
---------------------
Managing Director
MONY LIFE INSURANCE COMPANY OF
AMERICA, a 1992 Noteholder
By /s/ Xxxxxxx X. Xxxxxx
---------------------
Authorized Agent
THE MANUFACTURERS LIFE INSURANCE
COMPANY, a 1992 Noteholder
By /s/ Xxxxxxx X. Xxxxx
--------------------
Portfolio Manager -
High Yield Securities
THE FRANKLIN LIFE INSURANCE COMPANY,
a 1992 Noteholder
By /s/ Xxxxx X. Xxxxxx
-------------------
Investment Officer
-8-
THE CANADA LIFE ASSURANCE COMPANY, a
1992 Noteholder
By /s/ Xxxxx X. Xxxxx
----------------------------------
Associate Treasurer
MODERN WOODMEN OF AMERICA, a 1992
Noteholder
By /s/ X. X. Xxxxxxx
----------------------------------
Director, Treasurer
and Investment Manager
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY, a 1996 Noteholder
By: PPM AMERICA, INC., as Agent
By /s/ Xxxxx Xxxxx
------------------------------
Vice President
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY, a 1996 Noteholder
By /s/ Xxxxx Xxxxxxx
----------------------------------
Vice President
-9-
UNITED OF OMAHA LIFE INSURANCE
COMPANY, a 1996 Noteholder
By /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------------
First Vice President
SECURITY FIRST LIFE INSURANCE COMPANY,
a 1996 Noteholder
By /s/ X.X. Xxxxxxx
---------------------------------------
Director -- U.S. Fixed Income
By /s/ Xxxx Xxx XxXxxxxx
---------------------------------------
Manager -- U.S. Fixed Income
[ADDITIONAL LENDER]
By_______________________________________
Its_________________________________
The undersigned hereby acknowledge and agree to the foregoing Agreement.
INTERNATIONAL HOUSE OF PANCAKES, INC.
By /s/ Xxxx X. Xxxxxxxxxx
---------------------------------------
Vice President -- Legal
IHOP CORP.
By /s/ Xxxx X. Xxxxxxxxxx
---------------------------------------
Vice President -- Legal
-10-
IHOP REALTY CORP.
By /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Vice President -- Legal
IHOP PROPERTIES, INC.
By /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Vice President -- Legal
IHOP RESTAURANTS, INC.
By /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Vice President -- Legal
-11-
