Exhibit 4.11
| SHERRY D. OLSON, P.C. 2515 Kings Way Cumming, Georgia 30040 | ||
(770) 205-8858 Telephone | (770) 205-4954 Facsimile sdopc@mindspring.com E-Mail | |
March 8, 2004 | ||
VIA EMAIL | ||
Bobby R. Oliver, Jr. | Jess Sotomayor | |
| BANK OF AMERICA, N.A. | IHOP PROPERTIES, INC. | |
| Franchise Financial Services | 450 North Brand Boulevard | |
| 600 Peachtree Street, N.E. | 7th Floor | |
| 13th Floor, Bank of America Plaza | Glendale, CA 91203 | |
| Atlanta, Georgia 30308-2214 | Los Angeles County, CA | |
Inter-Bank Mail #GA1-006-13-20 | ||
Phone No.: (404) 607-4673 | Phone No.: 818-240-6055 | |
| Fax No.: (404)607-4075 | Fax No.: 818-240-0270 | |
Dear Bobby and Jess:
Attached is a signed copy of the Third Addendum to Loan Agreement. Jess, please remember to mail the original to me.
Best regards,
Sincerely, /s/ SHERRY D. OLSON Sherry D. Olson Attorney at Law |
THIRD ADDENDUM TO LOAN AGREEMENT
THIS THIRD ADDENDUM TO LOAN AGREEMENT (this "Amendment") is made and entered into as of this 8th day of March, 2004, by and among: (i) BANK OF AMERICA, N.A. ("Lender"); (ii) IHOP PROPERTIES, INC., a California corporation ("Borrower"); and (iii) INTERNATIONAL HOUSE OF PANCAKES, INC., a Delaware corporation, IHOP Corp., a Delaware corporation ("IHOP Parent") and IHOP Realty Corp., a Delaware corporation (collectively, the "Guarantor").
WHEREAS, on April 27, 2001, Borrower, Guarantor and Lender entered into that certain Loan Agreement (the "Loan Agreement") relating to a $12,018,206.00 loan secured by Borrower's interest in land, building and fixtures comprising equipment and signage to be used in connection with thirteen (13) IHOP restaurants;
WHEREAS, on March 13, 2002, Borrower, Guarantor and Lender entered into that certain First Addendum to Loan Agreement to reflect an additional loan to Borrower in the original principal amount of $17,203,432.00 secured by Borrower's interest in land, building and fixtures comprising seventeen (17) IHOP Restaurants; and
WHEREAS, on October 28, 2002, Borrower, Guarantor and Lender entered into that certain Second Addendum to Loan Agreement modifying modify certain negative covenants set forth in the Loan Agreement relating to restrictions on Liens.
WHEREAS, Borrower, Guarantor and Lender now desire to modify the Fixed Charge Coverage Ratio as hereinafter set forth.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) in hand paid, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Recitals. Borrower, Guarantor and Lender hereby approve the foregoing recitations and agree that said recitations are true and correct in all respects.
2. Affirmative Covenants. Section 5.A.i is hereby deleted in its entirety and replaced with the following Section 5.A.i.
3. Ratification and Reaffirmation. Borrower and Guarantor hereby ratify and reaffirm each of the Loan Documents and all of Borrower's and Guarantor's covenants, duties and liabilities thereunder.
4. Representations and Warranties. Borrower and Guarantor represent and warrant to Lender, to induce Lender to enter into this Amendment, that no Default or Event of Default exists on the date hereof; the execution, delivery and performance of this Amendment have been duly authorized by all requisite corporate action on the part of the Borrower and/or Guarantor and this Amendment has been executed and delivered by Borrower and Guarantor; and except as may have been disclosed in writing by Borrower and/or Guarantor to Lender prior to the date hereof, all of the representations and warranties made by Borrower in the Loan Agreement are true and correct on and as of the date hereof.
5. Expenses of Lender. Borrower agrees to pay all costs and expenses incurred by Lender in connection with the preparation, negotiation and execution of this Amendment and any other Loan Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation, the costs and fees of Lender's legal counsel.
6. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws of the State of Georgia. The parties stipulate and agree that the Borrower and Guarantor have numerous business operations in the State of Georgia and this Amendment has been made, delivered and is performable in the State of Georgia at Bank's main office in the State of Georgia and the laws of the State of Georgia and applicable United States federal law shall apply and this Agreement shall be construed in accordance with the laws of the State of Georgia and applicable United State federal law. Wherever possible each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Amendment. The invalidity or unenforceability of any provision of any Loan Document to any person or circumstance shall not affect the enforceability or validity of such provision as it may apply to other persons or circumstances.
7. Successors and Assigns. The Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
8. No Novation, etc. This Amendment is not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the Loan Agreement as herein modified shall continue in full force and effect.
9. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken together shall be one and the same instrument.Further, this Amendment may be executed by facsimile signatures which shall be binding upon the parties.
10. Waiver of Notice. Borrower and Guarantor hereby waive notice of acceptance of this Amendment by Lender.
11. General. Except as specifically modified herein, all other terms and conditions of the Loan Agreement shall remain unchanged and in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have signed and sealed this Amendment on the day and year first above-written.
| GUARANTOR: | BORROWER: | |||||
INTERNATIONAL HOUSE OF PANCAKES, INC. | IHOP PROPERTIES, INC. | |||||
By: | /s/ THOMAS CONFORTI | By: | /s/ THOMAS CONFORTI | |||
| Name: | Thomas Conforti | Name: | Thomas Conforti | |||
| Title: | Chief Financial Officer | Title: | Chief Financial Officer | |||
By: | /s/ MARK WEISBERGER | By: | /s/ MARK WEISBERGER | |||
| Name: | Mark Weisberger | Name: | Mark Weisberger | |||
| Title: | Vice President—Legal | Title: | Vice President—Legal | |||
(CORPORATE SEAL) | (CORPORATE SEAL) | |||||
GUARANTOR: | GUARANTOR: | |||||
IHOP REALTY CORP. | IHOP CORP. | |||||
BY: | /s/ THOMAS CONFORTI | By: | /s/ THOMAS CONFORTI | |||
| Name: | Thomas Conforti | Name: | Thomas Conforti | |||
| Title: | Chief Financial Officer | Title: | Chief Financial Officer | |||
By: | /s/ MARK WEISBERGER | By: | /s/ MARK WEISBERGER | |||
| Name: | Mark Weisberger | Name: | Mark Weisberger | |||
| Title: | Vice President—Legal | Title: | Vice President—Legal | |||
(CORPORATE SEAL) | (CORPORATE SEAL) | |||||
SIGNATURES CONTINUED ON NEXT PAGE | ||||||
| SIGNATURE PAGE TO SECOND ADDENDUM TO LOAN AGREEMENT | ||||||
BANK/LENDER: | ||||||
BANK OF AMERICA, N.A. | ||||||
By: | /s/ BOBBY R. OLIVER, JR. | |||||
| Name: | Bobby R. Oliver, Jr. Title: Vice President | |||||
