EXHIBIT 4.0
SIXTH AMENDMENT TO LETTER AGREEMENT
THIS SIXTH AMENDMENT TO LETTER AGREEMENT (this "Sixth Amendment") is
made and dated as of June 30, 1999 among INTERNATIONAL HOUSE OF PANCAKES,
INC. (the "Borrower"), IHOP CORP., as Guarantor (the "Guarantor"), and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (successor by merger to
Bank of America Illinois) (the "Bank"), and amends that certain Letter
Agreement between the parties dated as of June 30, 1993, as amended by a
letter dated July 15, 1993 from Continental Bank to the Borrower, a First
Amendment to Letter Agreement dated as of December 31, 1994, a Second
Amendment to Letter Agreement dated as of March 11, 1996, a Third Amendment
to Letter Agreement dated as of September 3, 1996, a Fourth Amendment to
Letter Agreement dated as of November 1, 1996, a letter from the Bank to the
Borrower dated June 25, 1997 and a Fifth Amendment to Letter Agreement dated
as of June 30, 1998 (as so amended, the "Agreement").
RECITAL
The Borrower has requested that the Bank agree to certain amendments to
the Agreement, and the Bank is willing to do so on the terms and conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the
Agreement.
2. AMENDMENTS TO AGREEMENT. The parties hereto agree that the
Agreement is hereby amended as follows:
(a) Section 1 of the Agreement is hereby amended by deleting "June
30, 2001" and inserting "June 30, 2002" in lieu thereof.
(b) Section 14.12(a) of the Agreement is amended and restated in
its entirety as follows:
"(a) incur capital expenditures in excess of $55,000,000
per fiscal year, net of all proceeds relating to sale leaseback transactions
in such fiscal year; PROVIDED, HOWEVER, that in the fiscal year ending
December 31, 2000 only, the Borrower may incur capital expenditures up to
$70,000,000, net of all proceeds relating to sale leaseback transactions in
such fiscal year;"
3. REAFFIRMATION OF IHOP GUARANTY. IHOP does hereby reaffirm that the
terms and provisions of Section 17 of the Agreement continue in full force
and effect and are ratified and confirmed in all respects on and as of the
date hereof, after giving effect to this Sixth Amendment. IHOP agrees that
any references to the Note in the Agreement, including without limitation
Section 17 of the Agreement, shall be deemed a reference to the Agreement and
amounts owing thereunder, as evidenced by the loan accounts referred to in
Section 3 of the Agreement, as amended hereby.
4. REPRESENTATIONS AND WARRANTIES. IHOP and the Borrower do hereby
represent and warrant as follows:
(a) AUTHORITY. Each of the Borrower and IHOP has been duly
incorporated and is a validly existing corporation under the laws of the
State of Delaware, has full legal right, power and authority to enter into
this Sixth Amendment and to carry out and consummate all transactions
contemplated by the Agreement and this Sixth Amendment.
(b) ENFORCEABILITY. This Sixth Amendment has been duly authorized
and is a valid and binding obligation of the Borrower and IHOP, enforceable
in accordance with its terms.
(c) NO CONFLICT. This Sixth Amendment will not conflict with or
constitute a breach of or a default under their respective articles of
incorporation or bylaws, or any material agreement to which the Borrower or
IHOP is a party or by which the Borrower or IHOP or any of their respective
properties are bound, or any rule or regulation of any court or governmental
agency or body having jurisdiction over the Borrower or IHOP or any of their
respective activities or properties.
(d) NO EVENT OF DEFAULT. No event of Default under the Agreement
has occurred and is continuing.
(e) REPRESENTATIONS AND WARRANTIES. The representations and
warranties in Section 11 of the Agreement are true and correct in all
respects on and as of the date hereof as though made on and as of the date
hereof.
5. CONDITIONS EFFECTIVENESS. The effectiveness of this Sixth Amendment
shall be subject to:
(a) the compliance by the Borrower with its agreements herein
contained;
(b) the delivery to the Bank of copies of this Sixth Amendment
signed by the Company and IHOP and a Guarantor Acknowledgement
and Consent (in the form attached to this Sixth Amendment)
executed by IHOP Restaurants, Inc.; IHOP Properties, Inc.;
and IHOP Realty Corp;
(c) the delivery of such other evidence with respect to the
Company, IHOP, and any other person as the Bank may reasonably
request in connection with this Amendment and the compliance
with the conditions set forth herein; and
(d) payment by the Borrower to the Bank of an amendment fee of
$10,000.00.
6. MISCELLANEOUS
(a) Except as hereby expressly amended, all terms, covenants and
provisions of the Agreement shall remain in full force and effect and all
references to the Agreement therein and in any agreement, contract, indenture,
document or instrument mentioned in the Agreement shall henceforth refer to
the Agreement as amended by this Sixth Amendment. This Sixth Amendment shall
be deemed incorporated into, and a part of, the Agreement.
(b) This Sixth Amendment is specific in time and in intent and does
not constitute, nor shall it be construed as, a waiver of any other right,
power or privilege under the Agreement, or under any agreement, contract,
indenture, document or instrument mentioned in the Agreement; nor does it
preclude other or further exercise hereof or the exercise of any other right,
power or privilege, nor shall any waiver of any right, power, privilege or
default hereunder, or under any agreement, contract,
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indenture, document or instrument mentioned in the Agreement, constitute a
waiver of any other default of the same or of any other term or provision.
(c) This Sixth Amendment shall be a contract made under and governed
by the internal laws of the state of Illinois.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document and any other document required
herein) may be delivered by any party thereto either in the form of an
executed original or an executed original sent by facsimile transmission to
be followed promptly by mailing of a hard copy original, and that receipt by
the Bank of a facsimile transmitted document purportedly bearing the
signature of the Borrower and IHOP shall bind the Borrower and IHOP with the
same force and effect as the delivery of a hard copy original. Any failure by
the Bank to receive the hard copy executed original of such document shall
not diminish the binding effect of receipt of the facsimile transmitted
executed original of such document which hard copy page was not received by
the Bank.
IN WITNESS WHEREOF, each of the parties hereto has caused its respective
duly authorized officer to execute and deliver this Sixth Amendment as of the
date first written above.
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ RICHARD K. HERZER
---------------------------------
Title: PRESIDENT
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IHOP CORP.
By: /s/ RICHARD K. HERZER
---------------------------------
Title: PRESIDENT
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
(SUCCESSOR BY MERGER OF BANK OF AMERICA ILLINOIS)
By: /s/ RICHARD G. PARKHURST
---------------------------------
Title: MANAGING DIRECTOR
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GUARANTOR ACKNOWLEDGMENT AND CONSENT
The undersigned, each a guarantor with respect to the Borrower's obligations
to the Bank under the Agreement, each hereby:
(1) acknowledges and consents to the execution, delivery and performance by
the Borrower and the Guarantor of the foregoing Sixth Amendment to Letter
Agreement (the "AMENDMENT"), and
(2) Reaffirms and agrees that the respective guaranty to which the
undersigned is party and all other documents and agreements executed and
delivered by the undersigned to the Bank in connection with the
Agreement are in full force and effect, without defense, offset or
counterclaim.
IHOP REALTY CORP.
By: /s/ RICHARD K. HERZER
---------------------------------
Title: PRESIDENT
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IHOP RESTAURANTS, INC.
By: /s/ RICHARD K. HERZER
---------------------------------
Title: PRESIDENT
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IHOP PROPERTIES,INC.
By: /s/ RICHARD K. HERZER
---------------------------------
Title: PRESIDENT
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