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IHOP CORP.
INTERNATIONAL HOUSE OF PANCAKES, INC.
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SENIOR NOTE PURCHASE AGREEMENT
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$32,000,000 7.79% SENIOR NOTES DUE 2002
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Dated as of November 19, 1992
TABLE OF CONTENTS
(Not Part of Agreement)
Section Heading Page
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1. Authorization and Issue of Notes.............................. 1
2. Purchase and Sale of Notes.................................... 2
3. Payments of Notes............................................. 2
3.1. Mandatory Payments of Principal........................ 2
3.2. Optional Prepayments of the Notes...................... 3
3.3. Notice of Prepayment of the Notes...................... 3
3.4. Allocation of Payments................................. 4
3.5. Surrender of Notes; Notation Thereon................... 4
3.6. Purchase of Notes...................................... 4
4. Representations and Warranties................................ 5
4.1. Corporate Existence and Power.......................... 5
4.2. Corporate Authority.................................... 5
4.3. Binding Effect......................................... 5
4.4. Capital Stock.......................................... 6
4.5. Business Operations and Other
Information; Financial Condition...................... 6
4.6. Subsidiaries........................................... 9
4.7. Litigation; No Violation of
Governmental Orders or Laws........................... 10
4.8. Outstanding Debt....................................... 10
4.9. Consents, Etc.......................................... 11
4.10. Title to Properties.................................... 11
4.11. Taxes.................................................. 12
4.12. No Conflicts with Agreements, Etc...................... 12
4.13. Disclosure............................................. 13
4.14. Offering of Securities................................. 13
4.15. Broker's or Finder's Commissions....................... 14
4.16. Labor Matters.......................................... 14
4.17. Environmental Matters.................................. 14
4.18. Margin Regulations..................................... 16
4.19. Compliance with ERISA.................................. 17
4.20. Material Contracts..................................... 18
4.21. Insurance.............................................. 19
4.22. Status Under Certain Laws.............................. 19
4.23. Legality............................................... 19
4.24. Possession of Franchises, Licenses,
Etc................................................... 19
(i)
Section Heading Page
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4.25. Franchises............................................. 19
4.26. Use of Proceeds........................................ 20
4.27. Patents and Tradernarks................................ 20
4.28. Compliance with Laws................................... 20
4.29. Franchisees............................................ 20
4.30. Other Agreements....................................... 20
4.31. Solvency............................................... 20
4.32. Foreign Assets Control Regulations..................... 21
5. Representations of Purchasers................................. 21
5.1. Authority.............................................. 21
5.2. Investment Intent...................................... 21
5.3. Source of Funds........................................ 21
5.4. Investor Status........................................ 22
6. Conditions to Obligation of Purchasers........................ 22
6.1. Proceedings Satisfactory............................... 22
6.2. Opinion of Purchasers' Special Counsel................. 22
6.3. Opinion of Counsel to the Borrower and
Holdings.............................................. 22
6.4. Representations and Warranties True, .
Etc.; Certificates.................................... 22
6.5. Absence of Material Adverse Change, Etc. . ............ 23
6.6. Consents and Approvals................................. 23
6.7. Absence of Litigation, Orders, Etc..................... 23
6.8. Other Purchasers....................................... 24
6.9. Legal Investment....................................... 24
6.10. Rating................................................. 24
6.11. Fees................................................... 24
6.12. PPN Number............................................. 24
6.13. Subsidiary Guarantee................................... 24
6.14. Corporate Status and Documentation..................... 24
6.15. Amended Bank Agreement................................. 26
6.16. Use of Proceeds........................................ 26
7. Condition to Obligations of Borrower.......................... 27
7.1. Representations and Warranties True, Etc............... 27
7.2. Absence of Litigation, Orders, Etc..................... 27
7.3. Other Purchasers....................................... 27
8. Financial Statements and Information.......................... 27
9. Inspection of Properties and Books............................ 32
(ii)
Section Heading Page
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10. Affirmative Covenants......................................... 33
10.1. Payment of Principal, Prepayment Charge
and Interest; Etc..................................... 33
10.2. Payment of Taxes and Claims............................ 33
10.3. Maintenance of Properties and Corporate
Existence............................................. 34
10.4. Insurance.............................................. 34
11. Negative and Maintenance Covenants............................ 34
11.1. Restrictions on Liens.................................. 34
11.2. Limitation on Funded Debt.............................. 36
11.3. Consolidated Tangible Net worth........................ 37
11.4. Limitation on Debt of Subsidiaries..................... 37
11.5. Restricted Payments; Restricted
Investments........................................... 37
11.6. Sale of Assets......................................... 38
11.7. Consolidation or Merger................................ 39
11.8 Maintenance of Fixed Charge Coverage................... 40
11.9. Transactions with Affiliates........................... 41
11.10 Acquisition of Margin Securities....................... 41
11.11 Conduct of Business.................................... 41
12. Definitions................................................... 41
13. Events of Default............................................. 55
13.1. Events of Default; Remedies............................ 55
13.2. Acceleration of Notes.................................. 57
13.3. Rescission of Acceleration............................. 58
13.4. Suits for Enforcement.................................. 58
13.5. Remedies Cumulative.................................... 59
13.6. Remedies Not Waived.................................... 59
14. Registration, Exchange, and Transfer of Notes................. 59
15. Lost, Stolen, Damaged and Destroyed Notes..................... 59
16. Miscellaneous................................................. 60
16.1. Home Office Payment.................................... 60
16.2. Amendment and Waiver................................... 60
16.3. Expenses............................................... 61
16.4. Survival of Representations
and Warranties........................................ 62
(iii)
Section Heading Page
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16.5. Successors and Assigns................................. 62
16.6. Notices................................................ 62
16.7. Governing Law.......................................... 63
16.8. Submission to Jurisdiction; Waiver
of Service and Venue.................................. 63
16.9. Indemnification........................................ 64
16.10. Integration and Severability........................... 65
16.11. Payments Due on Days not Business Days................. 65
16.12. Further Assurances..................................... 66
16.13. Counterparts........................................... 66
16.14. Guarantee of Holdings.................................. 66
16.15. Waiver of Right to Trial by Jury....................... 70
Signatures.............................................................. 70
(iv)
Schedules
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Schedule I - Purchaser Information and Payment Instructions
Schedule 4.5 - Interim Changes
Schedule 4.6 - Subsidiaries
Schedule 4.7 - Litigation
Schedule 4.8 - Existing Current and Funded Debt and Liens
Schedule 4.9 - Consents and Approvals
Schedule 4.11 - Taxes
Schedule 4.16 - Labor Matters
Schedule 4.17 - Environmental Matters
Schedule 4.19 - Compliance with ERISA
Schedule 4.25 - Non-Conforming Franchising Arrangements
Schedule 6.16 - Surviving Obligations
Schedule 12 - Existing Investments
Exhibits
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Exhibit A - Form of Note
Exhibit B - Form of Opinion of Counsel for the Purchaser
Exhibit C - Form of Opinion of Counsel for the Borrower
Exhibit D - Form of Subsidiary Guarantee
Exhibit E - Form of IHOP Realty Lease
Exhibit F-1 - Form of Quarterly Compliance Statement
Exhibit F-2 - Form of Compliance Certificate
(v)
IHOP CORP.
INTERNATIONAL HOUSE OF PANCAKES, INC.
SENIOR NOTE PURCHASE AGREEMENT
November 19, 1992
To The Purchaser Whose Name
Appears in the Acceptance
Form at the End Hereof
Ladies and Gentlemen:
The undersigned, International House of Pancakes, Inc., a Delaware
corporation (the "Borrower"), and IHOP Corp., a Delaware corporation of which
the Borrower is a wholly owned Subsidiary ("Holdings"), hereby agree with you as
follows:
Section 1. Authorization and Issue of Notes. The Borrower has duly
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authorized the issue, sale and delivery of its 7.79% Senior Notes Due 2002 in
the aggregate principal amount of $32,000,000, to be dated the date of issue
thereof, to bear interest on the outstanding principal thereof (computed on the
basis of a 360-day year of twelve 30-day months) from such date, payable in
arrears in cash semi-annually on the 19th day of May and November in each year
(commencing May 19, 1993) and at maturity, at the rate of 7.79% per annum, and
to bear interest at a rate equal to the greater of 9.79% or the rate of interest
announced publicly from time to time by Citibank, N.A. in New York, New York as
its "prime rate" on any overdue principal and prepayment charge and, to the
extent permitted by applicable law, on any overdue interest (determined as of
the date such principal, payment charge or interest first becomes overdue),
until the same shall be paid in full, to mature on November 19, 2002, and to be
substantially in the form of Exhibit A hereto attached (all such Notes
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originally issued pursuant to this Agreement or the Other Agreements, or
delivered in substitution or exchange for any thereof, being collectively called
the "Notes" and individually a "Note").
You, together with the other purchasers named in Schedule I to this
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Agreement, are herein sometimes referred to collectively as the "Purchasers" and
individually as a "Purchaser" .
Section 2. Purchase and Sale of Notes. Subject to the terms and
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conditions herein set forth, the Borrower hereby agrees to sell to you and you
agree to purchase from the Borrower, Notes in the respective aggregate principal
amounts set forth opposite your name in Schedule I hereto, at a purchase price
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of 100% of the principal amount thereof.
The purchase and delivery of the Notes to be purchased by you shall take
place at the offices of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York time on November 19, 1992 (or such
other time and place as the parties shall agree provided however, that in no
event shall funding be provided after 3:00 p.m., New York time) (herein called
the "Closing Date"). On the Closing Date, the Borrower will deliver to you
Notes registered in your name or in the name of your nominee, each such Note to
be duly executed and dated the Closing Date, each to be in the respective
aggregate principal amounts to be purchased by you as specified above, in such
denominations (multiples of $1,000) as you may specify by timely notice to the
Borrower (or, in the absence of such notice, one Note registered in your name in
a principal amount equal to the aggregate principal amount of Notes to be
purchased by you), against your delivery to the Borrower of immediately
available funds in the amount of the aggregate purchase price therefor.
Section 3. Payments of Notes.
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3.1. Mandatory Payments of Principal. The principal amount of the Notes
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shall be prepaid by the Borrower in installments, payable on each of the dates
set forth below in the respective aggregate amounts set forth opposite such
dates:
Payment Date Principal Amount
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November 19, 1996 $4,571,428.00
November 19, 1997 4,571,428.00
November 19, 1998 4,571,428.00
November 19, 1999 4,571,428.00
November 19, 2000 4,571,428.00
November 19, 2001 4,571,428.00;
provided, however, that if Notes aggregating less than $32,000,000 in principal
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amount are issued and sold pursuant to this Agreement and the Other Agreements,
each of the prepayment amounts set forth above shall be reduced to an amount
which is equal to the product achieved by multiplying each amount set forth
above by a fraction, the numerator of which shall be the aggregate principal
amount of all Notes issued and sold pursuant to this Agreement and the Other
Agreements and the denominator of which shall be $32,000,000.
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The entire remaining principal amount of the Notes shall become due and
payable on November 19, 2002. Each payment of Notes made pursuant to this
Section 3.1 shall be allocated as provided in Section 3.4.
3.2. Optional Prepayments of the Notes. The Borrower, at its option, upon
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notice given as provided in Section 3.3, may, on any Interest Payment Date,
prepay all or any part of the principal amount of outstanding Notes (in the
minimum amount of $100,000 and additional increments of integral multiples of
$100,000), at a price equal to the sum of (i) the greater of the principal
amount of the Notes being so prepaid or the Present Value Amount of the Notes
being so prepaid, plus (ii) all accrued but unpaid interest on the outstanding
principal amount of the Notes being prepaid through the date of such prepayment.
Each prepayment made pursuant to this Section 3.2 shall be allocated as
provided in Section 3.4. All principal amounts prepaid pursuant to this Section
3.2 shall be applied to reduce the amounts of the mandatory payments of
principal thereafter due pursuant to Section 3.1 in the inverse order of
maturity of those mandatory payments.
3.3. Notice of Prepayment of the Notes. The Borrower shall call Notes for
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prepayment pursuant to Section 3.2 by giving written notice thereof to each
holder of Notes, which notice shall be given not less than 30 nor more than 60
days prior to the date fixed for such prepayment in such notice and shall
specify the principal amount so to be prepaid, the accrued interest applicable
to such prepayment and the date fixed for such prepayment. Notice of prepayment
having been so given, the aggregate amount to be paid as specified in such
notice (together with the prepayment charge, if any) shall become due and
payable on the specified prepayment date. At least three Business Days prior to
the date of any such prepayment, the Borrower shall furnish to each holder of
Notes, via telecopy (with delivery of the original by overnight courier on the
next Business Day), an Officer's Certificate of the Borrower setting forth
computations in reasonable detail showing an estimate of the prepayment charge,
if any, required to be paid in connection with such prepayment, and the manner
of calculation of the prepayment charge and attaching a copy of the source of
market data by reference to which the Treasury Yield was determined in
connection with such computations. No later than noon eastern time one Business
Day prior to the date of any such prepayment, the Borrower shall furnish to each
holder of Notes, via telecopy (with delivery of the original by overnight
courier on the next Business Day), a certificate of an Appropriate Officer of
the Borrower setting forth computations in reasonable detail showing the manner
of
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calculation of the actual prepayment charge, if any, required to be paid in
connection with such prepayment and attaching a copy of the source of market
data by reference to which the Treasury Yield was determined in connection with
such computations. Prior to 2:00 p.m. eastern time on the Business Day referred
to in the immediately preceeding sentence, the Borrower shall call each
Purchaser to confirm receipt of such certificate.
3.4. Allocation of Payments. In the event of any payment or prepayment of
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less than all of the outstanding Notes pursuant to Section 3.1 or Section 3.2,
the Borrower shall allocate the principal amount so to be paid or prepaid by it
(but only in units of $1,000) and the interest and prepayment charge, if any,
among the Notes in proportion, as nearly as may be practicable, to the
respective unpaid principal amounts thereof.
3.5. Surrender of Notes; Notation Thereon. Subject to the provisions of
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Section 16.1, the Borrower shall not, as a condition of payment of all or any
part of the principal of, prepayment charge (if any) and interest on, any Note,
require the holder to present such Note for notation of such payment or require
the surrender thereof. Upon receipt of payment in full of the principal of,
prepayment charge (if any) and interest on, any Note, such Note shall be deemed
to be automatically cancelled, without any further action on the part of the
Borrower or the Noteholder. However, each Noteholder shall make reasonable
efforts to promptly return all cancelled Notes.
3.6. Purchase of Notes. Except as set forth in Sections 3.1, 3.2 or the
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next following sentence of this Section 3.6, neither the Borrower nor Holdings
will, nor will either of them permit any of its Subsidiaries or Affiliates to,
acquire directly or indirectly by purchase or prepayment or otherwise any of the
outstanding Notes except by way of payment or prepayment in accordance with the
provisions of this Agreement. The Borrower may repurchase the Note or Notes of
any holder provided that, prior to any such repurchase, the Borrower offers, in
a written notice, to repurchase a Pro Rata Portion of each holder's Notes on the
same terms, and, at such time, the Borrower shall have sufficient funds then
available to it to repurchase such Notes. Each holder of Notes shall have ten
(10) Business Days after receipt of such written notice to accept or reject the
Borrower's offer set forth in such notice. Failure of any holder of Notes to
respond to any such notice within ten (10) Business Days after its receipt
thereof shall be deemed to be a rejection of the offer therein. In the event
that the Borrower has purchased less than the entire outstanding principal
balance of the Notes, the amount of the principal balance so purchased shall be
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multiplied by a fraction, the numerator of which is 1 and the denominator of
which is the number of scheduled principal payments pursuant to Section 3.1
(including the payment scheduled to be made on November 19, 2002) which have not
yet been made as of the date of the purchase of the Notes and such product shall
be deducted from each of the payments otherwise due following the date of the
purchase of the Notes. The remaining payments due after giving effect to this
deduction shall be allocated in accordance with Section 3.4.
Section 4. Representations and Warranties. The Borrower and Holdings,
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jointly and severally, represent and warrant to the Purchasers that:
4.1. Corporate Existence and Power. Each of the Borrower, Holdings, and
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each of their respective Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and is duly qualified to do business in each additional jurisdiction where the
failure to so qualify would have a Material Adverse Effect. Each of the
Borrower, Holdings and each of their respective Subsidiaries has all requisite
corporate power to own its Properties and to carry on its business as now being
conducted and as proposed to be conducted, and in the case of the Borrower and
Holdings to execute, deliver and perform its obligations under this Agreement
and the Other Agreements, in the case of the Borrower to execute, issue, sell,
deliver and perform its obligations under the Notes, in the case of IHOP Realty
to execute, deliver and perform its obligations under the Subsidiary Guarantee,
and in the case of each such Person to engage in the respective transactions
contemplated by this Agreement and the Other Agreements.
4.2. Corporate Authority. The execution, delivery and performance (a) by
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the Borrower of this Agreement, the Other Agreements and the Notes, (b) by
Holdings of this Agreement and the Other Agreements, and (c) by IHOP Realty of
the Subsidiary Guarantee, are within the respective corporate powers of such
Persons and have been duly authorized by all necessary corporate action on the
part of the respective Boards of Directors and stockholders of each of them.
4.3. Binding Effect. This Agreement and the Other Agreements are the
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legal, valid and binding obligations of the Borrower and Holdings, and the Notes
when issued and delivered against payment therefor as herein provided will be
the legal, valid and binding obligations of the Borrower; and the Subsidiary
Guarantee will, when executed and delivered by IHOP Realty on the Closing Date
be the legal, valid and binding obligation of IHOP Realty; in each case
enforceable against
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such respective parties in accordance with their respective terms, except, in
each case, as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other laws relative to or affecting
the enforcement of creditors' rights generally in effect from time to time and
by general principles of equity.
4.4. Capital Stock. (a) On the Closing Date, the authorized capital stock
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of the Borrower will consist of 1,000 shares of common stock, no par value, and
all of the capital stock of the Borrower is validly issued, fully paid and non-
assessable and owned, of record and beneficially, free and clear of any Liens,
by Holdings. On the Closing Date, the Borrower will not have outstanding any
securities convertible into or exchangeable for any of its capital stock, nor
will it have outstanding any rights to subscribe for or to purchase, or any
options or warrants for the purchase of, or any agreements (contingent or
otherwise) providing for the issuance of, or any calls, commitments or claims of
any character relating to, any of its capital stock or any securities
convertible into or exchangeable for any of its capital stock. The Borrower is
not subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any of its capital stock, or to any obligation
(contingent or otherwise) evidencing the right of the holder thereof to purchase
any of its capital stock.
(b) On the Closing Date, the authorized capital stock of Holdings
will consist of 40,000,000 shares of common stock and 10,000,000 shares of
preferred stock. On the Closing Date, Holdings will not have outstanding any
securities convertible into or exchangeable for any of its capital stock, nor
will it have outstanding any rights to subscribe for or to purchase, or any
options or warrants for the purchase of, or any agreements (contingent or
otherwise) providing for the issuance of, or any calls, commitments or claims of
any character relating to, any of its capital stock or any securities
convertible into or exchangeable for any of its capital stock, except for
options and other securities issued pursuant to the IHOP Corp. 1991 Stock
Incentive Plan. Holdings is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any of its capital
stock, or to any obligation (contingent or otherwise) evidencing the right of
the holder thereof to purchase any of its capital stock.
4.5. Business Operations and Other Information; Financial Condition.
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(a) The Borrower (or Continental Bank N.A., on behalf of the
Borrower) has delivered to you (or, in the case of clause (iv) below, made
available and delivered to the extent
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requested) true and complete copies of (i) the Confidential Private Placement
Memorandum dated September 1992 prepared by the Borrower and Continental Bank
N.A. in connection with the offering of the Notes to be purchased by you
hereunder (together with the Exhibits thereto, the "Confidential Memorandum"),
(ii) the audited consolidated balance sheets of Holdings and its Subsidiaries as
at December 31 for 1989, 1990 and 1991, and the related audited consolidated
statements of operations, shareholders' equity and cash flows for the fiscal
years ended December 31, 1989, 1990 and 1991, together with the notes thereto
and the reports thereon of Coopers & ▇▇▇▇▇▇▇ (the "Audited Financial
Statements"), (iii) (A) the unaudited consolidating balance sheets of Holdings
and its Subsidiaries as at December 31, 1991 and the related consolidating
statements of operations for the fiscal year then ended and (B) the unaudited
consolidated balance sheet of Holdings and its Subsidiaries as at June 30, 1992,
and the related consolidated statements of operations, shareholders' equity and
cash flows for the fiscal quarter then ended (the "Unaudited Financial
Statements"; the Audited Financial Statements and the Unaudited Financial
Statements are sometimes hereinafter collectively referred to as the "Financial
Statements"), (iv) the Financial Projections of Holdings and its Subsidiaries
for 1992 through 1995 (the "Projections"), and (v) the SEC Reports. The
Confidential Memorandum and the SEC Reports correctly describe in all material
respects the businesses, operations and principal Properties of Holdings, the
Borrower and their Subsidiaries. The Financial Statements have been prepared in
accordance with GAAP (except as noted thereon) consistently applied throughout
the periods involved, and fairly present the consolidated and consolidating
financial position of Holdings and its Subsidiaries as at each of the dates and
for each of the periods covered thereby, subject to, in the case of the
Unaudited Financial Statements, year-end audit adjustments and the notes
required by GAAP and, with respect to the consolidating statements, the failure
to prepare statements of cash flows and stockholders' equity and the failure to
include notes thereon as required by GAAP. As of the date of each of the
balance sheets included in the Financial Statements, neither Holdings, the
Borrower nor any of their Subsidiaries had any material Debt or liability,
absolute or contingent, liquidated or unliquidated, except Debt and liabilities
reflected or reserved against on the Financial Statements or described in the
notes thereto. Neither Holdings nor any of its Subsidiaries has made any filing
with the SEC on Form 8-K since December 31, 1991. The Projections were prepared
by the Borrower on the basis of assumptions which the Borrower reasonably
believes are fair and reasonable in light of the historical financial
performance of Holdings and its Subsidiaries and of current and reasonably
foreseeable business conditions.
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(b) Except as contemplated herein, or as disclosed in the
Confidential Memorandum or the SEC Reports or on Schedule 4.5 hereto, or
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reflected in the Financial Statements, since December 31, 1991, neither
Holdings, the Borrower nor any of their Subsidiaries has:
(1) incurred or assumed any Debt (other than draws of revolving Debt
pursuant to the Existing Agreement (as defined in Section 6.15) and the
documents pursuant to which the Debt owing to HomeFed (as defined in Section
6.16) was incurred which, when reduced by repayment of such Debt, during such
period do not increase the total amount of revolving Debt outstanding under each
of such facilities as reflected on the financial statements included in the
quarterly report on Form l0-Q as filed by Holdings with the SEC for the
quarterly period ended September 30, 1992 (the "September 30, 1992 10-Q")),
obligations or liabilities which are, individually or in the aggregate, material
(absolute, accrued, or contingent and whether due or to become due), except
current liabilities incurred in the ordinary course of business, except as set
forth in Schedule 4.8 attached hereto and except for Capitalized Leases not
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required to be disclosed on Schedule 4.8;
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(2) paid any Debt (other than reductions of outstanding revolving
Debt made during such period pursuant to the Existing Agreement (as defined in
Section 6.15) and the documents pursuant to which the Debt owing to HomeFed (as
defined in Section 6.16) was incurred), obligations or liabilities which are,
individually or in the aggregate, material, other than current liabilities in
the ordinary course of business, or discharged any Liens which are, individually
or in the aggregate, material, other than Liens securing current liabilities
discharged in the ordinary course of business;
(3) declared or paid any dividend or distribution to its
shareholders, or purchased or redeemed any of its shares, or incurred or paid
any management fee or similar charge, or obligated itself to do so;
(4) subjected any of its Property to any Lien other than Permitted
Liens;
(5) sold, disposed, transferred, licensed or released any of its
Property except in the ordinary course of business;
(6) suffered any physical damage, destruction, or loss (whether or
not covered by insurance) which had or could reasonably be expected to have a
Material Adverse Effect;
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(7) entered into any material transaction other than in the ordinary
course of business;
(8) encountered any strike, work stoppage or other adverse collective
labor action or any labor union organizing activities;
(9) issued or sold any shares or other securities or granted any
material options or similar rights with respect thereto, except for the issuance
or sale of shares or other securities pursuant to the 1991 IHOP Corp. Stock
Incentive Plan;
(10) made any change in accounting methods, practices or principles;
(11) waived, released, granted or transferred any rights having,
individually or in the aggregate, material value, or modified or changed in any
material respect any existing franchise, license, lease, contract or other
document, other than in the ordinary course of business; or
(12) agreed to do any of the foregoing.
4.6. Subsidiaries. Holdings has no direct equity interest in any Person
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other than the Borrower, and no indirect equity interest in any Person other
than the Subsidiaries of the Borrower. Set forth on Schedule 4.6 attached
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hereto is a true and complete list of all Subsidiaries of the Borrower (the
"Subsidiaries List"), setting forth as to each such Subsidiary its jurisdiction
of incorporation and the percentage of capital stock of each such Subsidiary
owned by the Borrower or a Subsidiary of the Borrower. On the Closing Date, (i)
except as disclosed in the Financial Statements, the Borrower will have no
direct or indirect equity interest in any Person other than the Subsidiaries
listed on the Subsidiaries List, the Borrower will have good title to all of the
shares it owns of each of its Subsidiaries, free and clear in each case of any
Lien, (ii) all such shares of each such Subsidiary will have been duly and
validly issued, and will be fully paid and non-assessable and owned of record or
beneficially by the Borrower and/or one or more of such Subsidiaries, and (iii)
there will be no securities outstanding that are convertible into or
exchangeable for any shares of the Borrower's Subsidiaries, nor will there be
outstanding any rights to subscribe for or purchase, or any options or warrants
for the purchase of, or any agreements (contingent or otherwise) providing for
the issuance of, or any calls, commitments or claims of any character relating
to, any shares of the Borrower's Subsidiaries or any securities convertible into
or exchangeable for any such shares.
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4.7. Litigation; No Violation of Governmental Orders or Laws. Except as
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set forth on Schedule 4.7:
(a) There are no actions, suits or proceedings pending, or, to the
knowledge of Holdings or the Borrower after due inquiry, threatened against or
affecting Holdings or any of its Subsidiaries or any Properties or rights of any
of them which, if adversely determined, individually or in the aggregate would
have a Material Adverse Effect.
(b) There are no actions, suits or proceedings pending, or, to the
knowledge of Holdings or the Borrower after due inquiry, threatened against or
affecting Holdings or any of its Subsidiaries which seek to enjoin, or otherwise
prevent the consummation of, the transactions contemplated herein or to recover
any damages or obtain any relief as a result of any of the transactions
contemplated herein in any court or before any arbitrator of any kind or before
or by any Governmental Body.
(c) Neither Holdings nor any of its Subsidiaries is or will be, after
or as a result of giving effect to the transactions contemplated herein, in
default under or in violation of any Order of any court, arbitrator or
Governmental Body or of any statute or law or of any rule or regulation of any
Governmental Body, which default or violation has or could reasonably be
expected to have a Material Adverse Effect; and none of them is subject to or a
party to any Order of any court or Governmental Body arising out of any action,
suit or proceeding under any statute or other law respecting antitrust,
monopoly, restraint of trade, unfair competition or similar matters.
(d) All cash payments required to be paid pursuant to that certain
Settlement Agreement entered into on November 7, 1973, together with all
amendments thereto, approved by an order dated November 29, 1973 of the United
States District Court for the Western District of Missouri, with respect to In
--
re: IHOP Franchise Litigation, M.D.L. Docket No. 77 have been paid, all
-----------------------------
litigation regarding such Settlement Agreement has been settled or dismissed and
all payments required to be paid pursuant thereto have been paid, and all of the
Borrower's current documents evidencing its franchising arrangements with its
franchisees are in a form permitted by such Settlement Agreement.
4.8. Outstanding Debt. Schedule 4.8 sets forth a correct and complete
----------------- ------------
list and description of all Debt of Holdings and its Subsidiaries (after giving
effect to the use of proceeds from the sale and issuance of the Notes) other
than Capitalized Leases which (i) on any consolidated balance sheet of Holdings
and its Subsidiaries would have a capitalized value of less
-10-
than $2.5 million and (ii) cover Property on which a restaurant unit operated by
the Borrower or a franchisee in the ordinary course is located and all Liens on
Property of Holdings or its Subsidiaries securing such Debt outstanding or
existing on the Closing Date (excluding any Debt evidenced by the Notes or any
Guaranty thereof), and there exists no breach or default or event of default in
the terms and provisions of any instrument, agreement or contract pertaining to
any such Debt.
4.9. Consents, Etc. No consent, approval or authorization of or
--------------
declaration, registration or filing with any Governmental Body or any
nongovernmental Person, including, without limitation, any creditor or
shareholder of Holdings or any of its Subsidiaries, is required in connection
with the execution or delivery of this Agreement, the Notes or the Subsidiary
Guarantee, or the performance by the Borrower, its Subsidiaries and Holdings of
their respective obligations hereunder and thereunder, or as a condition to the
legality, validity or enforceability of this Agreement or the Notes or the
Subsidiary Guarantee, except for any thereof as are set forth on Schedule 4.9,
------------
all of which have been made or obtained and are in full force and effect and
except for declarations, registrations or filings with Governmental Bodies
which, in accordance with law, are to be made following the Closing Date.
4.10. Title to Properties. Holdings and each of its Subsidiaries (after
--------------------
giving effect to the use of proceeds from the sale and issuance of the Notes)
have (i) good and marketable fee simple title to their respective real
Properties (other than real Properties which are leased from others), subject to
no Lien of any kind except Permitted Liens, and (ii) good title to all of their
other respective Properties and assets (other than Properties and assets leased
from others), subject to no Lien of any kind except Permitted Liens. Holdings
and each of its Subsidiaries have possession, not subject to encumbrances which
materially affect the rights of the lessee thereunder, under all leases under
which they are lessees (subject to the rights of sublessees, in their capacities
as sublessees under subleases entered into in the ordinary course of the
Borrower's business), whether of realty or personalty, to which they
respectively are parties, none of which contains any unusually burdensome
provisions, and all such leases are the legal, valid and binding obligations of
those of Holdings, the Borrower and their Subsidiaries which are parties thereto
and, to the knowledge of Holdings and the Borrower, the other parties thereto
and each is subsisting and in full force and effect. Neither Holdings nor any
of its Subsidiaries is in material breach or violation of the terms of any such
lease, and neither Holdings nor the Borrower knows of any material breach or
violation of any of such lease by any third party.
-11-
Each of the leases under which Holdings or any of its Subsidiaries is
a lessee is in substantially the form of Exhibit E hereto, if IHOP
---------
Realty is the lessor. Each such lease is the legal, valid and binding
obligation of Holdings or of the Subsidiary of Holdings which is the lessee
thereunder and IHOP Realty. Neither Holdings nor the Borrower is aware of the
existence of a material breach or default under any such lease, and each such
lease is in full force and effect on the Closing Date.
Each lease or sublease under which Holdings or any of its Subsidiaries
is lessor or sublessor is free of unusually burdensome provisions and all such
leases and subleases are the legal, valid and binding obligations of those of
Holdings, the Borrower and their Subsidiaries which are parties thereto and, to
the knowledge of Holdings and the Borrower, the other parties thereto and each
is, to the knowledge of Holdings and the Borrower, subsisting and in full force
and effect. Neither Holdings nor any of its Subsidiaries is in material breach
or violation of the terms of any such lease, and neither Holdings nor the
Borrower knows of any breach or violation of any such lease by any third party,
which breach or violation could be expected to have, individually or in the
aggregate, a Material Adverse Effect.
4.11. Taxes. Holdings and each of its Subsidiaries has filed (or has had
-----
filed on its behalf), all federal, state and local tax returns, which are
required to have been filed by any of them, and there have been paid all taxes
shown to be due and payable on such returns and all other material taxes and
assessments payable by any of them, to the extent the same have become due and
payable and before they have become delinquent. Except as set forth in Schedule
--------
4.11, no material tax assessment against Holdings or any of its Subsidiaries has
----
been proposed and all of their respective tax liabilities are adequately
provided for or reserved against on their respective books and financial
statements in accordance with GAAP. Neither Holdings nor any of its
Subsidiaries have taken any reporting position for which it does not have a
reasonable basis. The tax returns of Holdings and its Subsidiaries are
currently being audited as set forth in Schedule 4.11. Schedule 4.11 sets
-------------- -------------
forth consents to the waiver or extension of relevant statutes of limitations.
4.12. No Conflicts with Agreements, Etc. Neither the execution and
----------------------------------
delivery of this Agreement, the Other Agreements, the Subsidiary Guarantee or
the Notes, nor the offering, issuance or sale of the Notes nor the fulfillment
of or compliance with the terms and provisions hereof or thereof, will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, or
-12-
result in the creation of any Lien on any Properties or assets of Holdings or
any of its Subsidiaries, or cause Holdings or any of its Subsidiaries to be
unable to pay any of its Debt when due, or result in any violation of, or
require for its validity any authorization, consent, approval, exemption or
other action by, or notice to any Governmental Body or any of the stockholders
of Holdings or any of its Subsidiaries, pursuant to the charter or by-laws of
any of them, or pursuant to any award of any arbitrator, or pursuant to any
material contract, agreement, mortgage, indenture, lease, instrument, Order,
statute, law, rule or regulation to which any of them or any of their respective
assets is subject. Neither Holdings nor any of its Subsidiaries is in violation
of, or in default under, any (i) Order, law or administrative regulation binding
upon it or any of its Properties, or (ii) contract, mortgage, indenture, lease,
instrument or agreement binding upon it or any of its Properties, which breach,
conflict, violation or default could reasonably be expected to have a Material
Adverse Effect.
4.13. Disclosure. Neither this Agreement, the Subsidiary Guarantee nor
----------
any other document, certificate or statement furnished to any Purchaser by or on
behalf of the Borrower, Holdings or any of their Subsidiaries in connection
herewith, including the Confidential Memorandum and the SEC Reports, contained
(when taken together, to the extent that any later document supersedes or
supplements an earlier document), as of its respective date, or now contains,
any untrue statement of a material fact or as of any such date omitted, or now
omits, to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact known to the
Borrower or Holdings which now has or in the future could reasonably be expected
to have (so far as the Borrower or Holdings can reasonably foresee) a Material
Adverse Effect other than (i) facts with respect to economic conditions,
generally and (ii) facts that have been disclosed to the Purchasers in writing
in connection with this transaction.
4.14. Offering of Securities. None of Holdings, the Borrower, any of
----------------------
their Subsidiaries or any of their representatives has, directly or indirectly,
offered any of the Notes or any security similar to any of them for sale to, or
solicited any offers to buy any of the Notes, the Subsidiary Guarantee or any
security similar to any of them from, or otherwise approached or negotiated with
respect thereto with, more than 44 Persons including you, and none of Holdings,
the Borrower, any of their Subsidiaries or any such representative has taken or
will take any action which would subject the issuance or sale of any of the
Notes to the registration requirements of Section 5 of the Securities Act or
violate the
-13-
provisions of any securities or Blue Sky laws of any applicable jurisdiction.
4.15. Broker's or Finder's Commissions. Neither the Borrower, Holdings
--------------------------------
nor any of their Subsidiaries has engaged any broker or finder other than
Continental Bank N.A. with respect to the issuance and sale of the Notes. The
Borrower and Holdings agree, jointly and severally, to indemnify you and hold
you harmless against any loss, cost, claim or liability (including, without
limitation, reasonable attorneys' fees and disbursements for the investigation
and defense of claims) arising out of or relating to any claim for a fee or
commission by any such actual or alleged broker or finder.
4.16. Labor Matters. Except as set forth in the Confidential Memorandum,
-------------
during the past five years there has been no strike, work stoppage, slowdown or
other labor dispute or grievance involving Holdings or any of its Subsidiaries,
or employees of any of such Persons, which has had or could reasonably be
expected to have a Material Adverse Effect, nor to the knowledge of Holdings or
the Borrower after due inquiry is any such action, dispute or grievance
currently pending or threatened against Holdings or its Subsidiaries. Except as
set forth in the Confidential Memorandum or on Schedule 4.16, none of Holdings
-------------
or any of its Subsidiaries is a party to any collective bargaining agreement and
none of them has any knowledge after due inquiry of any pending or threatened
effort to organize any employees of Holdings or any of its Subsidiaries. Except
as set forth in the Confidential Memorandum, there are currently no pending
retaliatory or wrongful discharge claims or federal, state or local employment
discrimination charges or complaints or administrative or judicial complaints
arising therefrom pending against Holdings or any of its Subsidiaries, or any
employees of any of such Persons, which has had or could reasonably be expected
to have a Material Adverse Effect, nor to the knowledge of the Borrower or
Holdings after due inquiry are any such charges or complaints threatened against
Holdings or any of its Subsidiaries. The Borrower and its Subsidiaries are in
compliance with all applicable federal, state and local statutes, laws, rules,
ordinances, regulations, codes, licenses and orders relating to the employment
of labor, including, without limitation, any provisions thereof relating to
wages, bonuses, collective bargaining agreements, equal pay, occupational safety
and health, equal employment opportunity and wrongful or retaliatory termination
of employment, except where non-compliance could not reasonably be expected to
have a Material Adverse Effect.
4.17. Environmental Matters. Except as disclosed in the SEC Reports or on
---------------------
Schedule 4.17,
-------------
-14-
(a) there is no Environmental Matter relating to Holdings or any of
its Subsidiaries or any Properties of any of such Persons, which could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and Holdings and the Borrower are aware of no facts that could
reasonably be expected to result in any such Environmental Matter. Neither
Holdings nor any of its Subsidiaries has agreed to assume by contract with any
Person or consent order or other written agreement with a Governmental Body any
liability of any other Person for cleanup, compliance, or required capital
expenditures in connection with any Environmental Matter arising prior to the
date hereof and, to the best knowledge of Holdings and the Borrower, no such
liability has arisen by operation of law;
(b) the Properties presently and, to the best knowledge of Holdings
and the Borrower, previously used, owned, leased, operated, managed or
controlled by Holdings or any of its Subsidiaries are free of contamination from
Hazardous Materials, including, without limitation, any contamination of the
associated air, soil, groundwater or surface waters, except for such instances
of contamination as could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect;
(c) Holdings and its Subsidiaries are currently in compliance in all
material respects with all applicable Environmental Laws, are not currently in
receipt of any notice of violation, are not currently in receipt of any notice
of any potential liability for cleanup of Hazardous Materials and are not now
subject to any investigation known to Holdings or the Borrower, or information
request by a Governmental Body concerning Hazardous Materials or any
Environmental Laws. Holdings and its Subsidiaries hold and are in compliance in
all material respects with all governmental permits, licenses, and
authorizations necessary to operate their businesses that relate to siting,
wetlands, coastal zone management, air emissions, discharges to surface or
ground water, discharges to any sewer or septic system, noise emissions, solid
waste disposal or the generation, use, transportation or other management of
Hazardous Materials. Neither Holdings nor any of its Subsidiaries has
generated, manufactured, refined, recycled, discharged, emitted, released,
buried, processed, produced, reclaimed, stored, treated, transported, or
disposed of any Hazardous Materials except in compliance with all applicable
laws and regulations, including permit requirements (except for such instances
of non-compliance as could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect);
-15-
(d) no Properties of Holdings or any of its Subsidiaries are subject
to any material Lien or claim for material Lien in favor of any Person as a
result of any Environmental Matter or response thereto;
(e) no Hazardous Materials, including leachate and effluents,
generated, disposed of, transported, managed or released by Holdings or any of
its Subsidiaries have caused or are reasonably likely to cause in whole or in
part any contamination or injury to any Person, Property or the environment,
except for such contamination or injury as could not reasonably be expected to
have, individually, or in the aggregate, a Material Adverse Effect. Neither
Holdings nor any of its Subsidiaries has handled, transported, disposed of or
managed any Hazardous Material in any manner that may reasonably be expected to
form the basis for any present or future claim, demand or action seeking cleanup
of any site, location, or body of water, surface or subsurface, except for such
claims, demands or actions as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and none of them
has any material liabilities, absolute or contingent, on the date hereof with
respect thereto; and
(f) to the best knowledge of Holdings and the Borrower, all
facilities where any Person has treated, stored, disposed of, reclaimed, or
recycled any Hazardous Material on behalf of Holdings or any of its Subsidiaries
are in compliance in all material respects with all applicable Environmental
Laws.
4.18. Margin Regulations. None of Holdings or any of its Subsidiaries
------------------
owns or now intends to acquire any "margin stock" as defined in Regulation G of
the Board of Governors of the Federal Reserve System of the United States (12
CFR 207). No part of the proceeds from the sale of the Notes will be used, and
no part of the proceeds of any loans repaid with the proceeds from the sale of
the Notes was used, directly or indirectly, for the purpose of buying or
carrying any margin stock within the meaning of Regulation G of the Board of
Governors of the Federal Reserve System of the United States (12 CFR 207), or
for the purpose of buying or carrying or trading in any securities under such
circumstances as to involve any of Holdings or any Subsidiary in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Neither Holdings, any of
its Subsidiaries nor any agent acting on behalf of Holdings or any such
Subsidiary has taken or will take any action which might cause this Agreement or
the Notes to violate Regulation G, Regulation X, Regulation T or any other
regulation of the Board of Governors of the Federal Reserve System or to violate
the Exchange Act.
-16-
in each case as in effect now or as the same may hereafter be in effect. As
used in this Section, the term "purpose of buying or carrying" has the meaning
assigned thereto in the aforesaid Regulation G.
4.19. Compliance with ERISA.
---------------------
(a) No Pension Plan which is subject to Part 3 of Subtitle B of Title
1 of ERISA or Section 412 of the Code had an accumulated funding deficiency (as
such term is defined in Section 302 of ERISA or Section 412 of the Code),
whether or not waived, as of the last day of the most recent fiscal year of such
Pension Plan heretofore ended;
(b) no liability to the PBGC (other than required insurance premiums,
all of which have been paid) has been incurred and is outstanding with respect
to any Pension Plan, and there has not been any Reportable Event, or any other
event or condition, which presents a material risk of involuntary termination of
any Pension Plan by the PBGC;
(c) neither any Multiemployer Plan or Plan nor any trust created
thereunder, nor any trustee or administrator thereof, has, to the knowledge of
Holdings or the Borrower, engaged in a prohibited transaction (as such term is
defined in Section 4975 of the Code or Section 406 of ERISA) that could subject
Holdings or any of its Subsidiaries or ERISA Affiliates to any material tax or
penalty on prohibited transactions imposed under said Section 4975;
(d) no material liability has been incurred and is outstanding with
respect to any Multiemployer Plan as a result of the complete or partial
withdrawal by Holdings or any of its Subsidiaries or ERISA Affiliates from such
Multiemployer Plan under Title IV of ERISA, nor has Holdings or any of its
Subsidiaries or ERISA Affiliates been notified by any Multiemployer Plan that
such Multiemployer Plan is currently in reorganization or insolvency under and
within the meaning of Section 4241 or 4245 of ERISA or that such Multiemployer
Plan intends to terminate or has been terminated under Section 4041A of ERISA;
(e) Holdings and its Subsidiaries and ERISA Affiliates are in
compliance in all material respects with all applicable provisions of ERISA and
the Code and the regulations and published interpretations thereunder with
respect to all Plans and Multiemployer Plans;
(f) as of the Closing Date, the actuarial present value of all
benefit liabilities (as defined in Section 4001(a)(16) of ERISA) under all
Pension Plans that are subject
-17-
to Title IV of ERISA did not exceed the fair market value of the assets
allocable to such liabilities, determined as if all such Plans were terminated
as of the Closing Date, and by using the Plan's actuarial assumptions as set
forth in the most recent actuarial report pertaining to each Plan;
(g) as of the Closing Date, none of Holdings, the Borrower or any of
their Subsidiaries or ERISA Affiliates is a party to a "multiple employer plan"
(as defined in 29 CFR 2530.210(c)(3)) or, except as set forth on Schedule 4.19,
-------------
a Multiemployer Plan. With respect to the Multiemployer Plan listed on Schedule
--------
4.19, as of the Closing Date, such Multiemployer Plan has no unfunded vested
----
benefits within the meaning of Section 4213(c) of ERISA for which Holdings, the
Borrower or any of their Subsidiaries or ERISA Affiliates is or could become
liable;
(h) no event has occurred with respect to any Plan or with respect to
any other employee benefit pension plan (as defined in Section 3(2) of ERISA)
established or maintained at any time during the five-year period immediately
preceding the Closing Date for the benefit of employees of Holdings or any of
its Subsidiaries or ERISA Affiliates which presents a risk of material liability
of Holdings or any of its Subsidiaries or ERISA Affiliates under Section 4069 of
ERISA;
(i) there are no material liabilities under the Plans that are
employee welfare benefit plans (as defined in Section 3(1) of ERISA) providing
for medical, health, life or other welfare benefits that are not insured by
fully paid non-assessable insurance policies, and no such Plan provides for
continued medical, health, life or other welfare benefits for employees after
they leave the employment of Holdings or any of its Subsidiaries or ERISA
Affiliates (other than any such welfare benefits required to be provided under
the Consolidated Omnibus Budget Reconciliation Act or other similar law); and
(j) Schedule 4.19 contains a complete and accurate list of each of
-------------
the employee benefit plans (as defined in Section 3(3) of ERISA) with respect to
which the Borrower or Holdings or any of their respective Subsidiaries or ERISA
Affiliates is a "party in interest" as defined in Section 3 of ERISA or a
"disqualified person" as defined in Section 4975 of the Code.
4.20. Material Contracts. Each of the Material Contracts is valid,
------------------
subsisting and in full force and effect, and neither Holdings nor any of its
Subsidiaries is in breach or violation of the terms, conditions or provisions of
any of the Material Contracts to which it is a party which is reasonably likely
to
-18-
have a Material Adverse Effect. On the Closing Date, neither Holdings nor any
of its Subsidiaries will be a party to any Material Contract or be subject to
any restriction contained in the charter or by-laws of any of them which has or
is reasonably likely to have a Material Adverse Effect.
4.21. Insurance. All policies of workers compensation, general liability,
---------
fire, property, casualty, marine, business interruption, errors and omissions,
flood and other insurance carried by Holdings and its Subsidiaries are in full
force and effect on the date hereof, and neither Holdings nor any of its
Subsidiaries has received notice of cancellation with respect to any such
policy.
4.22. Status under Certain Laws. None of Holdings or any Subsidiary of
-------------------------
Holdings is an "investment company" or a "person directly or indirectly
controlled by or acting on behalf of an investment company" within the meaning
of the Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
4.23. Legality. The Borrower, upon giving effect to the issuance of the
--------
Notes will be, a "solvent institution", as such term is used in Section 1405(c)
of the New York Insurance Law, whose "obligations are not in default as to
principal or interest", as such terms are used in Section 1405(c).
4.24. Possession of Franchises, Licenses, Etc. Holdings and its
----------------------------------------
Subsidiaries possess all franchises, certificates, licenses, permits,
registrations, and other authorizations from national, state and local
governmental or regulatory authorities, free from unusually burdensome
restrictions, that are necessary for the ownership, maintenance and operation of
their respective Properties and assets, and for the conduct of their respective
businesses as now conducted and as described in the Confidential Memorandum, and
none of Holdings or any of its Subsidiaries is in violation of any thereof in
any material respect.
4.25. Franchises. Except as set forth on Schedule 4.25, each of the
---------- -------------
Borrower's franchisees has entered into documents evidencing its franchising
arrangement with the Borrower (including the sublease, if any, from the Borrower
of the franchised premises) which, with respect to such arrangements initially
entered into prior to 1979 (or renewed, on substantially similar terms and
conditions since that date) were entered into (or renewed, as the case may be)
in accordance with all then applicable laws and regulations
-19-
including, without limitation, all applicable disclosure periods and waiting
requirements and, with respect to such arrangements entered into since 1979, are
substantially in the forms of the exhibits to the Franchise Offering Circular
for Prospective Franchisees Required by the Federal Trade Commission as in
effect on the date such arrangements were entered into (the "Offering Circular")
and such documents have been entered into in accordance with all applicable laws
and regulations, including, without limitation, all applicable disclosure
requirements and waiting periods. All such franchising documents are in full
force and effect and neither Holdings nor the Borrower is aware of any breaches
of any such documents by the franchisees thereunder which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
4.26. Use of Proceeds. The proceeds from the sale and issuance of the
---------------
Notes will be used (i) to repay substantially all of the existing Debt of the
Borrower's Subsidiary, IHOP Realty Corp., a Delaware corporation, (ii) to
refinance existing Debt of the Borrower, and (iii) for general corporate
purposes.
4.27. Patents and Trademarks. Holdings and each Subsidiary own or
----------------------
possess all the patents, trademarks, trade names, service marks, copyright,
licenses and rights with respect to the foregoing necessary for the present and
planned future conduct of their respective businesses, without any known
conflict with the rights of others.
4.28. Compliance with Laws. Neither Holdings nor any of its
--------------------
Subsidiaries is in violation of any federal, state or local law, statute,
regulation, ordinance or rule which violation could reasonably be expected to
have a Material Adverse Effect.
4.29. Franchisees. Except as disclosed in the SEC Reports, during the
-----------
fiscal year ended December 31, 1991, no franchisee accounted for more than 10%
of Holdings' consolidated revenues from sales of products or services.
4.30. Other Agreements. Simultaneously with the execution and delivery of
----------------
this Agreement, the Borrower and Holdings are entering into the Other
Agreements, which are identical in all respects with this Agreement (except for
the respective principal amounts of Notes to be purchased) with the other
Purchasers named in Schedule I hereto. The purchases by you and said other
----------
Purchasers are to be separate and several transactions.
4.31. Solvency. On the Closing Date, and after the payment of all
--------
estimated legal, investment banking, accounting
-20-
and other fees related hereto, Holdings and each of its Subsidiaries will be
Solvent.
4.32. Foreign Assets Control Regulations. Neither the sale of the Notes
----------------------------------
by the Borrower hereunder nor the use of the proceeds thereof as contemplated
hereby will violate the Foreign Assets Control Regulations, the Transaction
Control Regulations, the Cuban Assets Control Regulations, the Iranian
Transactions Regulations, the Iranian Assets Control Regulations, the Libyan
Sanctions Regulations, the Iraqi Sanctions Regulations, or the Haitian
Transaction Regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended), or the restrictions on transactions with
Yugoslavia contained in Executive Orders 12808 and 12810, dated May 30, 1992 and
June 5, 1992, respectively.
Section 5. Representations of Purchasers. You represent, and in making
-----------------------------
this sale to you it is specifically understood and agreed, that:
5.1. Authority. You are authorized to enter into this Agreement and to
---------
perform your obligations hereunder and to consummate the transactions
contemplated hereby.
5.2. Investment Intent. You are purchasing the Notes being purchased
-----------------
hereunder for your own account and with no intention of distributing or
reselling such Notes or any part thereof in any transaction which would be in
violation of the securities laws of the United States of America or any state
thereof, without prejudice, however, to your rights at all times to sell or
otherwise dispose of all or any part of said Notes pursuant to an effective
registration statement under the Securities Act and other applicable state
securities laws, or under an exemption therefrom, and subject, nevertheless, to
the disposition of your property being at all times within your control.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Notes shall bear a legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM.
5.3. Source of Funds. No part of the funds to be used to purchase the
---------------
Notes being purchased by you hereunder constitutes assets of any employee
benefit plan such that the use of such
-21-
assets constitutes a non-exempt prohibited transaction under ERISA. This
representation is made in reliance upon Schedule 4.19 and is based upon your
-------------
determination that a statutory or administrative exemption is applicable or that
the Borrower or Holdings are not parties in interest or disqualified persons
with respect to such employee benefit plan. As used in this paragraph, the
terms "employee benefit plan" and "party in interest" shall have the meanings
assigned to such terms in Section 3 of ERISA, and the term "disqualified person"
shall have the meaning assigned to such term in Section 4975 of the Code.
5.4. Investor Status. You are an "accredited investor" within the meaning
---------------
of Rule 501 under the Securities Act.
Section 6. Conditions to Obligations of the Purchasers. Your obligation to
-------------------------------------------
purchase and pay for the Notes to be purchased by you hereunder on the Closing
Date shall be subject to the satisfaction, on or before the Closing Date, of the
following conditions:
6.1. Proceedings Satisfactory. All corporate and other proceedings taken
------------------------
or to be taken by Holdings and its Subsidiaries in connection with the
transactions contemplated hereby and all documents incident thereto shall be
reasonably satisfactory in form and substance to you and your special counsel,
and you and your special counsel shall have received all such counterpart
originals or certified or other copies of such documents as you or they may
reasonably request.
6.2. Opinion of Purchasers' Special Counsel. You shall have received from
-------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, who are acting as special counsel for you in
connection with this transaction, an opinion addressed to you and dated the
Closing Date, substantially in the form of Exhibit B. Such opinion shall also
---------
cover such other matters incident to the matters herein contemplated as you may
reasonably request.
6.3. Opinion of Counsel to the Borrower and Holdings. You shall have
-----------------------------------------------
received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to the
Borrower and Holdings, and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, general counsel to the Borrower and
Holdings, legal opinions addressed to you and dated the Closing Date. Such
opinions shall cover the matters set forth in the form of legal opinion attached
hereto as Exhibit C, and shall also cover such other matters incident to the
---------
matters herein contemplated as you may reasonably request.
6.4. Representations and Warranties True, Etc.;
------------------------------------------
Certificates. The representations and warranties contained in Section 4 of this
------------
Agreement shall be true on and as of the
-22-
Closing Date with the same effect as if such representations and warranties had
been made on and as of the Closing Date. The Borrower shall have performed all
agreements on its part required to be performed under this Agreement prior to
the Closing Date; there shall exist on the Closing Date no Default or Event of
Default; the Borrower and Holdings shall have delivered to you an Officer's
Certificate, dated the Closing Date, to the effect of the foregoing clauses of
this Section 6.4, and Sections 6.5, 6.6 and 6.7, and certifying that, on the
Closing Date, giving effect to the transactions contemplated by this Agreement
and the Other Agreements, the Borrower and its Subsidiaries could incur $1.00 of
additional Debt pursuant to Section 11.2(c); and you shall have received such
certificates or other evidence as you may request to establish that the proceeds
of the sale of the Notes on the Closing Date will be applied as contemplated by
Section 4.26.
6.5. Absence of Material Adverse Change, Etc. Since December 31, 1991,
---------------------------------------
no change or changes shall have occurred to the business, operations,
Properties, assets, income, prospects or condition, financial or otherwise, of
Holdings and its Subsidiaries, taken as a whole, which you reasonably believe in
good faith to constitute a Material Adverse Effect.
6.6. Consents and Approvals. All necessary consents, approvals and
----------------------
authorizations of, and declarations, registrations and filings with,
Governmental Bodies and nongovernmental Persons required in order to consummate
the transactions contemplated herein shall have been obtained or made and shall
be in full force and effect except for declarations, registrations or filings
with Governmental Bodies which, in accordance with law, are to be made following
the Closing Date.
6.7. Absence of Litigation, Orders, Etc. Except as disclosed on Schedule
---------------------------------- --------
4.7 attached hereto, there shall not be pending or, to the knowledge of
---
Holdings or the Borrower after due inquiry, threatened, any action, suit,
proceeding, governmental investigation or arbitration against or affecting any
of Holdings or its Subsidiaries or their respective assets or Property (and, as
to any action, suit, proceeding, governmental investigation or arbitration so
disclosed, there shall not have occurred since the date of this Agreement any
development) which seeks to enjoin or restrain any of the transactions
contemplated herein or which you reasonably believe in good faith could have a
Material Adverse Effect. No Order of any court, arbitrator or Governmental Body
shall be effect which purports to enjoin or restrain any of the transactions
contemplated herein or which you reasonably believe in good faith to constitute
a Material Adverse Effect.
-23-
6.8. Other Purchasers. The other Purchasers referred to in Section 1
----------------
shall have purchased and made payment for the Notes to be purchased by them
pursuant to the Other Agreements referred to in said Section.
6.9. Legal Investment. Your purchase of and payment for the Notes to be
----------------
purchased by you hereunder on the Closing Date shall be permitted by the laws
and regulations of the jurisdictions to which you are subject, including without
limitation all applicable laws and regulations regulating investments for life
insurance companies (without reference to any "basket" or "leeway" provision
which permits the making of an investment without restriction as to the
character of the particular investment being made); and you shall have received
such certificates or other evidence as you may request to establish compliance
with this condition.
6.10. Rating. The investment represented by the Notes shall have received
------
a preliminary designation of "2" or better from the National Association of
Insurance Commissioners and neither Holdings nor the Borrower has received an
indication from the National Association of Insurance Commissioners that such
designation has been, or is expected to be, rescinded.
6.11. Fees. The fees and out-of-pocket expenses and disbursements
----
incurred by ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ in connection with the preparation of
this Agreement and the transactions contemplated hereby shall be paid in full on
the Closing Date.
6.12. PPN Number. You shall have been supplied with a private placement
----------
number for the Notes from Standard and Poor's Corporation.
6.13. Subsidiary Guarantee. IHOP Realty shall have executed and delivered
--------------------
the Subsidiary Guarantee.
6.14. Corporate Status and Documentation.
----------------------------------
(a) CERTIFICATES OF INCORPORATION. You shall have received true and
-----------------------------
correct copies of the Certificates of Incorporation of Holdings, the Borrower
and IHOP Realty, together with all amendments thereto, certified as of a recent
date by the Secretary of State of the jurisdiction of incorporation of each such
Person.
(b) SECRETARY'S CERTIFICATE. You shall have received certificates
-----------------------
dated the Closing Date of the Secretary or an Assistant Secretary of each of
Holdings, the Borrower and IHOP Realty, duly certifying that:
-24-
(i) attached thereto is a true, complete and correct copy of the
by-laws of such Person, which have been in full force and effect since the
date specified in such certificate and to which no amendments or
modifications have been made since such date;
(ii) attached thereto is an incumbency certificate, in a format
satisfactory to the Purchasers, duly executed by the Secretary or an
Assistant Secretary and those other officers of such Person who have
executed documents and agreements in connection with the transactions
hereby contemplated; and
(iii) attached thereto are true and correct copies of the
resolutions, in form and substance satisfactory to the Purchasers, adopted
by the Board of Directors or authorized Executive Committee of such Person
(with evidence of such authorization), evidencing, with respect to such
Person, approval of the transactions contemplated by this Agreement, the
Other Agreements, the Notes, the Subsidiary Guarantee and the other
documents and instruments executed and delivered in connection therewith or
pursuant thereto, and authorizing the appropriate officers of such Person
to negotiate the form of, and to execute and deliver, this Agreement, the
Other Agreements, the Notes, the Subsidiary Guarantee and such other
documents and instruments (in each case to the extent such Person is a
party thereto), with such modifications as such authorized officers shall
approve.
(c) GOOD STANDING CERTIFICATES. You shall have received a
--------------------------
certificate of recent date of the Secretary of State or other appropriate
official of the jurisdiction of incorporation of Holdings, the Borrower and IHOP
Realty certifying that each such Person is in good standing in its jurisdiction
of incorporation. You shall also have received certificates of recent date of
the appropriate governmental officials in each other jurisdiction in which
Holdings, the Borrower or IHOP Realty conducts business as a foreign corporation
or owns assets certifying that the Borrower, Holdings or IHOP Realty, as the
case may be, is in good standing as a foreign corporation in such jurisdiction,
except where the failure to so qualify would not have a Material Adverse Effect.
(d) BRING-DOWN AND OTHER CERTIFICATES. Each of the Borrower,
---------------------------------
Holdings and IHOP Realty shall have delivered to the Purchasers certifications,
each dated the Closing Date and duly executed by an Appropriate Officer of such
Person, to the effect that no amendments to or changes in its Certificate of
Incorporation have been made since the date certified by the Secretary of State
of the jurisdiction of its incorporation and that no dissolution proceedings
with respect to it have been commenced or are contemplated.
-25-
6.15. New Credit Agreement. The Borrower and Holdings shall have entered
--------------------
into a Credit Agreement with Continental Bank N.A. (the "Bank") (the "Credit
Agreement"), which will replace in its entirety the existing loan agreement
dated April 7, 1992 with Bank of America National Trust and Savings Association
("B of A") (the "Existing Agreement") and IHOP Realty shall have executed a
subsidiary guarantee in respect of the Credit Agreement. Such Credit Agreement
will be substantially in the form of the draft of such Credit Agreement dated
November 16, 1992, except that such Credit Agreement shall not prohibit (i)
amendments or modifications to this Agreement, the Other Agreements, the Notes
or the Subsidiary Guarantee (except those which prohibit advancing any payment
due pursuant to Section 3.1 to a date sooner than January 31, 1994) or (ii) the
payment of principal of or interest or prepayment charges on the Notes in
accordance with the terms thereof and the terms of this Agreement and the Other
Agreements (except that optional prepayments may be prohibited prior to January
31, 1994), and you shall have received an Officer's Certificate of the Borrower
stating that the Existing Agreement has been terminated (together with the
Exhibits and Schedules thereto) and that the Credit Agreement (together with the
Exhibits and Schedules thereto) is in full force and effect, binding on the
Borrower and Holdings and to the best of their knowledge, on the Bank, in
accordance with its terms and you shall have received evidence satisfactory to
you that the Existing Agreement shall have been terminated in its entirety
(except as set forth in Schedule 6.16) and none of Holdings, the Borrower or any
-------------
of their Subsidiaries shall have any further obligations thereunder and all
Liens in favor of B of A have been released or terminated.
6.16. Use of Proceeds. You and your special counsel shall have received
---------------
evidence satisfactory to you that the proceeds of the issuance of the Notes are
being used substantially simultaneously with the closing of this transaction,
for the repayment in full of (i) the 12 1/4% Senior Subordinated Notes due 1997
issued by the Borrower, (ii) the Debt of the Borrower and IHOP Realty to HomeFed
Savings Bank, Federal Savings Bank, its successors and assigns ("HomeFed") and
(iii) the Debt of the Borrower to B of A and, in each case (except as set forth
on Schedule 6.16) there are no further obligations of Holdings or any of its
-------------
Subsidiaries thereunder and all commitments to lend in connection therewith
shall have been terminated and all Liens in favor of HomeFed or B of A on any
Property of Holdings or any of its Subsidiaries have been or substantially
contemporaneously herewith shall be released or terminated.
-26-
Section 7. Conditions to Obligations of the Borrower. The Borrower's
-----------------------------------------
obligation to issue and sell the Notes to be sold by it hereunder on the Closing
Date shall be subject to the satisfaction, on or before the Closing Date, of the
following conditions:
7.1. Representations and Warranties True, Etc. The representations and
----------------------------------------
warranties contained in Section 5 of this Agreement shall be true on and as of
the Closing Date with the same effect as if such representations and warranties
had been made on and as of the Closing Date.
7.2. Absence of Litigation, Orders, Etc. There shall not be pending or,
----------------------------------
to the knowledge of Holdings or the Borrower after due inquiry, threatened, any
action, suit, proceeding, governmental investigation or arbitration against or
affecting any of Holdings or its Subsidiaries or their respective assets or
Property which seeks to enjoin or restrain any of the transactions contemplated
herein. No Order of any court, arbitrator or Governmental Body shall be in
effect which purports to enjoin or restrain any of the transactions contemplated
herein.
7.3. Other Purchasers. Notes representing no less than $29 million of
----------------
initial principal amount shall have been purchased by the Purchaser and
Purchasers purchasing Notes pursuant to the Other Agreements on the Closing
Date.
Section 8. Financial Statements and Information. The Borrower and
------------------------------------
Holdings will furnish to you and to any of your Purchaser Affiliates, so long as
you or such Purchaser Affiliate shall be obligated to purchase or shall hold any
Notes, and to each other institutional holder of any Notes (such a holder in any
such case being hereinafter called an "Eligible Holder"), in duplicate:
(A) as soon as available and in any event within 45 days after the
end of each of the first three quarterly accounting periods in each fiscal year
of Holdings ("quarterly accounting period"),
(1) either (a) copies of Holdings' Quarterly Report on Form l0-Q
for the quarterly accounting period then ended, as filed with the
Securities and Exchange Commission or (b) if Holdings is not subject to
Section 13 or 15(d) of the Exchange Act, copies of the consolidated balance
sheet of Holdings and its Subsidiaries as of the end of the quarterly
accounting period and of the related consolidated statements of operations,
shareholders' equity and cash flows for such accounting period, all in
-27-
reasonable detail and stating in comparative form the consolidated figures
as of the end of and for the corresponding date and period in the previous
fiscal year, all Certified by an Appropriate Officer of Holdings; and
(2) a written statement in the form of Exhibit F-1 hereto
-----------
executed by Appropriate Officers of Holdings and the Borrower setting forth
computations or other pertinent information in reasonable detail showing as at
the end of such quarterly accounting period (a) whether or not the financial
covenants set forth in Sections 11.2 through 11.8 hereof, inclusive, have been
met, accompanied by calculations setting forth the maximum amount of Funded Debt
that could have been incurred pursuant to Sections 11.2(B) and 11.2(C) hereof,
and the maximum amount of dividends or distributions that could have been
declared or paid pursuant to Section 11.5 hereof, and (b) whether or not Liens
on Property or assets of Holdings or its Subsidiaries or securing Debt of
Holdings or its Subsidiaries, as the case may be, exceed the threshold set forth
in Section 11.1(I) hereof, accompanied by calculations setting forth the maximum
amount of additional Funded Debt secured by Liens that could have been incurred
under Section 11.1(I) hereof (a "Quarterly Compliance Statement");
(B) as soon as available and in any event within 90 days after the
end of each fiscal year of Holdings,
(1) either (a) copies of Holdings' Annual Report on Form 10-K
and Annual Report to Shareholders, in each case, for the year then ended
and as filed with the Securities and Exchange Commission together with
copies of the consolidating balance sheets of Holdings and its Subsidiaries
as of the end of such fiscal year and the related consolidating statements
of operations, or (b) if Holdings is not subject to Section 13 or 15(d) of
the Exchange Act, copies of the consolidated and consolidating balance
sheets of Holdings and its Subsidiaries as of the end of such fiscal year,
and of the related consolidated and consolidating statements of operations
and the related consolidated statements of shareholders' equity and cash
flows, together with the notes to such consolidated statements, which
consolidated statements state in comparative form the respective
consolidated figures as of the end of and for the previous fiscal year, and
in the case of such consolidated financial statements referred to in
subclauses (a) or (b), accompanied by a report thereon of Coopers & ▇▇▇▇▇▇▇
or other independent public accountants of recognized national standing
selected by
-28-
Holdings (the "Accountants"), which report shall be unqualified as to going
concern and scope of audit and shall state that such consolidated financial
statements present fairly the consolidated financial position of Holdings
and its Subsidiaries as at the end of such fiscal year and the consolidated
results of operations and cash flow for such fiscal year in conformity with
GAAP, and that the examination by the Accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards. Together with each delivery of
financial statements or Annual Reports required by this subparagraph (1),
the Accountants shall deliver to Holdings or the Borrower (which recipient
shall deliver the same to each Purchaser, Purchaser Affiliate and Eligible
Holder) their report (on which the Purchasers, Purchaser Affiliates and
Eligible Holders shall be entitled to rely) stating that, in making the
audit necessary to the certification of such financial statements, they
have obtained no knowledge of any Default or Event of Default or, if any
such Default or Event of Default has occurred, specifying the nature and
period of existence thereof; and
(2) a Quarterly Compliance Statement.
(C) concurrently with the financial statements or reports furnished
pursuant to Subsections A and B of this Section 8, a certificate of Appropriate
Officers of the Borrower and Holdings in the form of Exhibit F-2, stating that,
-----------
based upon such examination or investigation and review of this Agreement as in
the opinion of the signer is necessary to enable the signer to express an
informed opinion with respect thereto, no Default or Event of Default by
Holdings, the Borrower or any of their Subsidiaries in the fulfillment of any of
the terms, covenants, provisions or conditions of this Agreement exists or has
existed during such period or, if such a Default or Event of Default shall exist
or have existed, the nature and period of existence thereof and what action
Holdings, the Borrower or such Subsidiary, as the case may be, has taken, is
taking or proposes to take with respect thereto;
(D) promptly after the same are available and in any event within 15
days thereof, copies of all such proxy statements, financial statements, notices
and reports as Holdings or any of its Subsidiaries shall send or make available
generally to any of their securityholders, and copies of all regular and
periodic reports and of all registration statements which Holdings or any of its
Subsidiaries may file with the SEC or with any securities exchange;
-29-
(E) promptly (and in any event within 5 days) after becoming aware of
(1) the existence of any Default or Event of Default, a certificate of
Appropriate Officers of Holdings and the Borrower specifying the nature and
period of existence thereof and what action the Borrower or Holdings is taking
or proposes to take with respect thereto; or (2) any Debt of Holdings, the
Borrower or any Subsidiary being declared due and payable before its expressed
maturity, or any holder of such Debt having the right to declare such Debt due
and payable before its expressed maturity, because of the occurrence of any
default (or any event which, with notice and/or the lapse of time, shall
constitute any such default) under such Debt or the agreement pursuant to which
such Debt was issued, a certificate of an Appropriate Officer describing the
nature and status of such matters and what action Holdings or such Subsidiary is
taking or proposes to take with respect thereto; provided, however, that any
-------- -------
Default or Event of Default which is deemed to have arisen upon Holdings' or the
Borrower's failure to promptly notify the Purchasers of another Default or Event
of Default in accordance with this Section 8(E) shall be deemed to be waived so
long as (i) such underlying Default or Event of Default as to which notice is
required to be given (the "Underlying Default") has been completely cured; (ii)
the Underlying Default, if it had not been completely cured, would not have had
a Material Adverse Effect and (iii) notice of the Underlying Default is
delivered within 30 days of its occurrence;
(F) promptly and in any event within 10 days after Holdings or the
Borrower knows or, in the case of a Pension Plan has reason to know, that a
Reportable Event with respect to any Pension Plan has occurred, that any Pension
Plan or Multiemployer Plan is or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA, or that Holdings or any of its
Subsidiaries or ERISA Affiliates will or may incur any material liability to or
on account of a Pension Plan or Multiemployer Plan under Title IV of ERISA or
any other material liability under ERISA has been asserted against Holdings or
any of its Subsidiaries or ERISA Affiliates, a certificate of an Appropriate
Officer of Holdings setting forth information as to such occurrence and what
action, if any, Holdings or such Subsidiary or ERISA Affiliate is required or
proposes to take with respect thereto, together with any notices concerning such
occurrences which are (a) required to be filed by Holdings or such Subsidiary or
ERISA Affiliate or the plan administrator of any such Pension Plan controlled by
Holdings or such Subsidiary or ERISA Affiliate with the Internal Revenue Service
or the PBGC, or (b) received by Holdings or such Subsidiary or ERISA Affiliate
from any plan administrator of a Pension Plan not under their control or from a
Multiemployer Plan;
-30-
(G) promptly after the Borrower or Holdings becomes aware of any
Material Adverse Effect with respect to which notice is not otherwise required
to be given pursuant to this Section 8, a certificate of an Appropriate Officer
setting forth the details of such Material Adverse Effect and stating what
action Holdings, the Borrower or any of their respective Subsidiaries has taken
or proposes to take with respect thereto;
(H) promptly (and in any event within 15 days) after the Borrower or
Holdings knows of (a) the institution of, or threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting
Holdings or any of its Subsidiaries or any Property of any of them, or (b) any
material development in any such action, suit, proceeding, governmental
investigation or arbitration, which, in either case, is likely to have a
Material Adverse Effect, a certificate of an Appropriate Officer describing the
nature and status of such matter in reasonable detail;
(I) in the event that Borrower is no longer a consolidated Subsidiary
of Holdings, financial statements of Borrower and its consolidated Subsidiaries
at such times and in such form (together with such certifications) as are
required to be delivered pursuant to Sections 8(A), (B) and (C); and
(J) any other information, including financial statements and
computations, relating to the performance of obligations arising under this
Agreement and/or the affairs of Holdings, the Borrower or any of their
Subsidiaries that the Purchaser or any other Eligible Holder may from time to
time reasonably request and which is capable of being obtained, produced or
generated by Holdings, the Borrower or such Subsidiary or of which any of them
has knowledge, including, without limitation, a brief statement describing any
significant events relating to Holdings, the Borrower and their Subsidiaries for
any fiscal period.
It is further understood and agreed that, for the purpose of effecting
compliance with Rule 144A promulgated by the SEC in connection with any resales
of Notes that may hereafter be effected pursuant to the provisions of such Rule,
if Holdings is not subject to Section 13 or 15(d) of the Exchange Act, each
prospective purchaser of Notes designated by a holder thereof shall have the
right to obtain from Holdings and the Borrower, upon the written request of such
holder, the information required pursuant to Rule 144A(d)(4) under the
Securities Act.
Each of Holdings and the Borrower will keep at its principal executive
office a true copy of this Agreement, and cause the same to be available for
inspection at said offices
-31-
during normal business hours by any holder of any of the Notes or any
prospective purchaser of any thereof designated by the holder thereof.
Section 9. Inspection of Properties and Books. Each of the Borrower and
----------------------------------
Holdings agrees that you or any Qualified Holder who agrees to abide by the
confidentiality requirement set forth below in this Section may, so long as you
or such Qualified Holder owns any Notes, after giving reasonable notice to
Holdings and the Borrower, visit at your or its own expense the offices and
Properties of Holdings, the Borrower or any of their Subsidiaries, and may
examine and make copies of the relevant books and records, and discuss the
affairs, finances and accounts of such companies with their officers and public
accountants (and by this provision the Borrower and each Subsidiary hereby
authorizes said accountants to discuss with you or such Qualified Holder its
affairs, finances and accounts) all at reasonable times during normal business
hours as often as you or it may reasonably desire. At any time when a Default or
an Event of Default shall have occurred and be continuing, the Borrower shall be
required to pay or reimburse you or any such Qualified Holder for expenses which
you or such Qualified Holder may reasonably incur in connection with any such
visitation or inspection. You and any other Qualified Holder shall use such
information only for your own purposes, shall keep it confidential and shall not
disclose it to any third person (other than a Purchaser Affiliate or an
affiliate of a Qualified Holder or accountants engaged by you or such Qualified
Holder), except for disclosures to: (i) such Qualified Holder's or Purchaser
Affiliate's directors, trustees, partners, officers, employees, agents and
professional consultants, (ii) any other Noteholder, (iii) any Person to which
such Qualified Holder offers to sell such Note or any part thereof, (iv) any
Person to which such Qualified Holder sells or offers to sell a participation in
all or any part of such Note, (v) any Person from which such Qualified Holder
offers to purchase any security of the Borrower, (vi) any federal, state or
Canadian provincial regulatory authority having jurisdiction over such Qualified
Holder, (vii) the National Association of Insurance Commissioners or any similar
organization, (viii) any nationally recognized financial rating service that is
rating or reviewing the rating of the Notes or (ix) any other Person to which
such delivery or disclosure may be necessary or appropriate (a) in compliance
with any law, rule, regulation or order applicable to such Qualified Holder, (b)
in response to any subpoena or other legal process or informal investigative
demand, (c) in connection with any litigation to which such Qualified Holder is
a party, or (d) to protect such Qualified Holder's investment in the Notes;
provided, however, that, (1) prior
--------- -------
-32-
to any disclosure of any such information to any Person described in clause
(iii), (iv) or (v) above, such Person agrees to keep any non-public information
so delivered to it confidential or (2) if you (or such Qualified Holder) is
required to disclose any such information in connection with judicial or
governmental proceedings, you (or such Qualified Holder) shall provide the
Borrower and Holdings with prompt prior notice of such requirement. Any bona
fide transferee of any Note (or any participant in your interest in the Notes),
by its acceptance thereof, shall be bound by the provisions of this Section 9 to
the same extent as you are bound.
Section l0. Affirmative Covenants. The Borrower and Holdings covenant and
---------------------
agree that so long as any of the Notes shall be outstanding:
10.1. Payment of Principal, Prepayment Charge and Interest; Etc. The
---------------------------------------------------------
Borrower will duly and punctually pay the principal of, prepayment charge (if
any) and interest on the Notes in accordance with the terms of such Notes and
this Agreement. The Borrower and Holdings will comply with all of the covenants,
agreements and conditions contained in this Agreement.
10.2. Payment of Taxes and Claims. Holdings and the Borrower will, and
---------------------------
will cause each of their respective Subsidiaries to, pay before they become
delinquent:
(A) all taxes (including excise taxes), assessments and governmental
charges or levies imposed upon it or its income or profits or upon its Property,
real, personal or mixed, or upon any part thereof;
(B) all claims for labor, materials and supplies which, if unpaid,
might result in the creation of a Lien upon its Property; and
(C) all claims, assessments, or levies required to be paid by any of
them pursuant to any agreement, contract, law, ordinance or governmental rule or
regulation governing any pension, retirement, profit-sharing or any similar
plan;
provided, that the taxes, assessments, charges and levies described in this
--------
Section 10.2 need not be paid while being diligently contested in good faith and
by appropriate proceedings so long as adequate book reserves have been
established with respect thereto in accordance with GAAP. The Borrower and
Holdings will timely file, and will cause their Subsidiaries to file, all tax
returns required to be filed in
-33-
connection with the payment of taxes required by this Section 10.2.
10.3. Maintenance of Properties and Corporate Existence. Holdings and the
-------------------------------------------------
Borrower will, and will cause each of their respective Subsidiaries to:
(A) maintain its Property in good condition and make all renewals,
repairs, replacements, additions, betterments, and improvements thereto as are
necessary in the reasonable opinion of management;
(B) keep books, records and accounts in accordance with GAAP;
(C) do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights and powers and
franchises including, without limitation thereof, any necessary qualification or
licensing in any foreign jurisdiction; and
(D) comply with all applicable statutes, regulations, franchises, and
Orders of, and all applicable restrictions imposed by, any Governmental Body
(all as now or at any time hereafter may be in effect), in respect of the
conduct of its business and the ownership of its Properties (including, without
limitation, applicable statutes, rules, ordinances, regulations and Orders
relating to Environmental Laws), except where non-compliance could not
reasonably be expected to have a Material Adverse Effect.
10.4. Insurance. Holdings and the Borrower will maintain, and will cause
---------
to be maintained on behalf of each Subsidiary, insurance coverage by financially
sound and reputable insurers, against such casualties and contingencies, of such
types (including without limitation public liability, workmens' compensation,
larceny and embezzlement or other criminal misappropriation insurance) and in
such amounts as are prudent, and in any event in such amounts as are adequate to
cover foreseeable losses to the business of Holdings, the Borrower and their
Subsidiaries. The Borrower or Holdings shall furnish to the Purchasers on or
prior to the Closing Date a summary of insurance presently in force in a
separate letter.
Section 11. Negative and Maintenance Covenants. The provisions of this
----------------------------------
Section 11 shall remain in effect so long as any Notes shall remain outstanding.
11.1. Restrictions on Liens. Holdings and the Borrower covenant that they
---------------------
will not, nor will they permit any
-34-
Subsidiary to, directly or indirectly, create, assume or suffer to exist any
Lien upon any of their respective Properties or assets whether now owned or
hereafter acquired, except for:
(A) Liens for taxes, assessments or governmental charges or claims
the payment of which is not at the time required by Section 10.2;
(B) Statutory Liens of landlords, and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law incurred in
the ordinary course of business for sums not yet delinquent or being diligently
contested in good faith, so long as a reserve or other appropriate provision, if
any, shall have been made therefor;
(C) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with obligations not due
or delinquent with respect to workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(D) Any attachment or judgment Lien (including judgment or appeal
bonds) which shall, within 30 days after the entry thereof, have been discharged
or execution thereof stayed pending appeal, or which shall have been discharged
within 30 days after the expiration of any such stay, or which is being
diligently contested in good faith so long as a reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made therefor;
(E) Easements, rights-of-way, restrictions and other similar rights
in land which do not, individually or in the aggregate, materially detract from
the value of such Property and do not interfere with the ordinary conduct of the
business of Holdings, the Borrower or any of their Subsidiaries;
(F) Liens securing Debt of a Subsidiary to the Borrower or Holdings;
(G) Liens (other than Liens created pursuant to Capitalized Leases)
existing on the date hereof and described in Schedule 4.8 attached hereto,
------------
securing Debt
-35-
not exceeding $1,000,000 in the aggregate in principal amount;
(H) Liens pursuant to Capitalized Leases existing on the Closing Date
and Liens created following the Closing Date pursuant to Capitalized Leases so
long as, with respect to Liens pursuant to Capitalized Leases created following
the Closing Date, the Funded Debt represented by such Capitalized Leases is
permitted pursuant to Section 11.2(C); and
(I) Liens including Liens arising out of purchase money financing not
otherwise permitted by the foregoing clauses of this Section 11.1 securing Debt
(without duplication) of Holdings, the Borrower or any Subsidiary of Holdings or
the Borrower, provided that the sum of (i) the principal amount of such Debt
--------
plus (ii) unsecured Debt 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.
The Liens referred to in Section 11.1(A) through (I) are herein collectively
referred to as "Permitted Liens," individually, a "Permitted Lien."
11.2. Limitation on Funded Debt Holdings and the Borrower shall not, and
-------------------------
shall not permit (except to the extent permitted in Section 11.4) any Subsidiary
to, incur Funded Debt other than:
(A) the Notes, the Guarantee of Holdings as set forth herein and the
Subsidiary Guarantee and all Funded Debt of Holdings, the Borrower and their
Subsidiaries existing as of the Closing Date, as set forth on Schedule 4.8
------------
attached hereto;
(B) any replacement, refinancing or extension of any Funded Debt,
provided that the aggregate principal amount of such Funded Debt (or, if such
Funded Debt is issued with an original issue discount, the original issue price
of such Funded Debt) does not exceed the then outstanding principal amount of
the Funded Debt so replaced, refinanced or extended (or, if the Funded Debt
being replaced, refinanced or extended was issued with an original issue
discount, the original issue price plus the amortized portion of the original
issue discount to the date that such Funded Debt is replaced, refinanced or
extended); and
-36-
(C) Additional Funded Debt of Holdings, the Borrower and their
Subsidiaries, provided that after giving effect to such incurrence (including
--------
payment of interest and principal following such incurrence) and to the
application of any proceeds thereof (i) the ratio of Consolidated Income
Available for Fixed Charges to Fixed Charges would be not less than that ratio
required to be maintained pursuant to Section 11.8 and (ii) the aggregate
consolidated Funded Debt (without duplication) of Holdings, the Borrower and
their Subsidiaries would not exceed 50% of Total Capitalization, measured in
each case on a pro forma basis as of the most recently ended fiscal quarter as
if such incurrence had occurred on the last day of such fiscal quarter.
11.3. Consolidated Tangible Net Worth. Holdings and its Subsidiaries
-------------------------------
shall not permit Consolidated Tangible Net Worth at any time to be less than the
sum of $40,000,000 plus 50% of Consolidated Net Income on a cumulative basis
from September 30, 1992, to and including any date of determination hereunder.
11.4. Limitation on Debt of Subsidiaries. Holdings and the Borrower shall
----------------------------------
not permit any of their Subsidiaries (other than the Borrower) to incur any Debt
other than:
(A) Debt owed to Holdings or the Borrower or to a wholly-owned
Subsidiary of Holdings or the Borrower in each case by a direct or indirect
wholly-owned Subsidiary of the creditor thereunder; and
(B) additional Debt, provided that the 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.
11.5. Restricted Payments; Restricted Investments. Holdings will not,
-------------------------------------------
directly or indirectly, through any Subsidiary or otherwise, (a) pay or declare
any dividend on any class of its capital stock (but may declare and pay
dividends payable solely in capital stock or warrants, rights or options to
acquire capital stock) or make any other distribution on account of any class of
its capital stock; retire, redeem, purchase or otherwise acquire, directly or
indirectly, any shares of any class of its capital stock or any warrants, rights
or options to acquire any such shares (other than any such redemption,
retirement, purchase or other acquisition in
-37-
which the consideration paid by Holdings or such Subsidiary consists solely of
shares of capital stock of Holdings); or make or provide for any mandatory
sinking fund payments required in connection with any class of its capital stock
(all of the foregoing being called "Restricted Payments") or (b) make any
Restricted Investment, unless after giving effect to any Restricted Payment or
Restricted Investment the cumulative aggregate amount of all Restricted Payments
and Restricted Investments made by Holdings and its Subsidiaries after September
30, 1992 would not exceed the sum of: (i) $2,000,000, plus (ii) 50% of
----
cumulative Consolidated Net Income from September 30, 1992 through the date of
determination (or if Holdings and its Subsidiaries on a consolidated basis have
a cumulative Consolidated Net Loss for such period, then minus 100% of such
-----
Consolidated Net Loss), plus (iii) the net proceeds from the issuance or sale of
----
any shares of any class of equity securities of Holdings which are not
mandatorily redeemable or otherwise subject to repurchase, retirement, call, put
or other reacquisition prior to or on the maturity date of the Notes (and not
subject to acceleration or redemption repurchase, retirement, call, put or other
reacquisition prior to the maturity date of the Notes) received after September
30, 1992; provided that at the time of any such Restricted Payment or
--------
Restricted Investment, both immediately before and immediately after giving
effect thereto, (a) no Default or Event of Default shall have occurred and be
continuing, and (b) Holdings, the Borrower and their Subsidiaries shall be able
to incur, pursuant to Section l1.2(C)(ii) above, at least $1 of additional
Funded Debt. So long as no Default or Event of Default has occurred or would be
continuing after giving effect thereto, this Section 11.5 shall not prevent (a)
the payment of any dividend within 60 days after the date of its declaration if
the dividend would have been permitted on the date of its declaration, or (b)
the acquisition, repurchase, retirement, call, put or redemption of any shares
of capital stock of Holdings out of the proceeds of the substantially concurrent
sale (other than to a Subsidiary of Holdings) of, shares of capital stock of
Holdings, provided that any such acquisition, repurchase, retirement, call, put
--------
or redemption shall be deemed to be a Restricted Payment for the purpose of
determining the ability of Holdings and its Subsidiaries to make future
Restricted Payments.
11.6. Sale of Assets. Holdings and the Borrower shall not, and shall not
--------------
permit any of their Subsidiaries to, effect a Disposition of any assets unless
(i) no Default or Event of Default has occurred (except in the case of subclause
(a) below) and is continuing, and (ii) one of the following applies:
(a) such Disposition is in the ordinary course of business, including,
without limitation, sales and leases of
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operating restaurants in accordance with the Borrower's ordinary course
franchising operations and is made pursuant to the reasonable business judgment
of the Borrower in accordance with past practice;
(b) in each fiscal year, Holdings, the Borrower and their respective
Subsidiaries may effect Dispositions of assets for Fair Market Value and which
(A) have an aggregate Book Value, together with all other assets disposed of in
that fiscal year (other than Dispositions permitted by clause (a), (c) or (d) of
this Section 11.6), of less than 10% of Gross Assets on a consolidated basis
determined as at the date of such sale; (B) generate, together with all other
assets disposed of in that fiscal year (other than Dispositions permitted by
clause (a), (c) or (d) of this Section 11.6), net income, which is less than 10%
of the Consolidated Net Income (in each case, determined as of the end of the
immediately preceding fiscal year); and (C) together with all assets previously
disposed of since September 30, 1992 (other than Dispositions permitted by
clause (a), (c) or (d) of this Section 11.6), have an aggregate Book Value of
less than 25% of Gross Assets on a consolidated basis determined as at the date
of such sale, provided that after giving effect to any Disposition described in
--------
this subsection (b), Holdings, the Borrower or any of their Subsidiaries could
incur at least $1 of additional Funded Debt without being in default of their
obligations under Section 11.2(C)(ii);
(c) such Dispositions are made for Fair Market Value and the proceeds of
such Disposition are used (i) within six months following such Disposition, to
purchase assets ("Business Asset Acquisition") used in the operations of the
Borrower or (ii) to repay Debt of Holdings or its Subsidiaries which is not
junior in right of payment to the Notes; or
(d) the assets disposed of were disposed of for Fair Market Value (taking
into consideration the rental rate to be paid by the Borrower in connection with
the Disposition and leaseback of the assets so disposed of) and were constructed
or acquired following September 30, 1992 and are immediately leased back from
the purchaser thereof by Holdings or any of its Subsidiaries; provided that no
--------
assets may be sold and leased back pursuant to this clause (d) following the
third anniversary of the acquisition or construction of such assets by Holdings,
the Borrower or any of their Subsidiaries.
11.7. Consolidation or Merger. Holdings and the Borrower covenant that
-----------------------
neither of them will, nor will they permit any of their respective Subsidiaries
to, enter into any transaction of merger or consolidation, whether in one
transaction or a series
-39-
of related or unrelated transactions and whether at the same time or over a
period of time, provided that:
--------
(A) (i) the Borrower may merge with Holdings or any of Holdings'
other Subsidiaries, (ii) Holdings may merge with the Borrower or any of
Holdings' other Subsidiaries and (iii) any Subsidiary may merge with Holdings,
the Borrower or any other Subsidiary, so long as, with respect to any mergers of
Holdings, the Borrower or IHOP Realty in which such party is not the surviving
Person, (a) the surviving Person of such transaction shall be a solvent U.S. or
Canadian corporation, and such surviving Person shall have assumed in writing
all of the obligations of the Borrower, Holdings or IHOP Realty, as the case may
be, under this Agreement, the Notes and the Subsidiary Guarantee, as the case
may be, a copy of which writing shall be provided to you and each holder of
Notes not less than 10 Business Days prior to any such transaction and which
shall be acceptable in form and substance to the Majority Holders, (b) at the
time of, and immediately after giving effect to, any such consolidation or
merger, no Default or Event of Default shall have occurred and be continuing,
and (c) immediately after any such consolidation or merger, the surviving Person
could incur an additional $1 of Funded Debt pursuant to Section 1l.2(C)(ii)
hereof; and
(B) Holdings or the Borrower may merge with any other Person so long
as (i) the surviving Person of such transaction shall be a solvent U.S. or
Canadian corporation, and such surviving Person shall have assumed in writing
all of the obligations of the Borrower under the Notes and this Agreement or of
Holdings under this Agreement, as the case may be, a copy of which writing shall
be provided to you and each holder of Notes not less than 10 Business Days prior
to any such transaction and which shall be acceptable in form and substance to
the Majority Holders, (ii) at the time of, and immediately after giving effect
to, any such consolidation or merger, no Default or Event of Default shall have
occurred and be continuing, and (iii) immediately after any such consolidation
or merger, the surviving or continuing Person could incur an additional $1 of
Funded Debt pursuant to Section 11.2(C)(ii) hereof.
11.8. Maintenance of Fixed Charge Coverage. Holdings and the Borrower
------------------------------------
covenant that on the last day of any quarterly accounting period of Holdings and
its Subsidiaries, the ratio of Consolidated Income Available for Fixed Charges
to Fixed Charges for the period consisting of any four of the immediately
preceding five quarterly accounting periods shall not be less than:
-40-
Ratio Fiscal Quarter Ending in the Period
----- -----------------------------------
1.40:1.00 from Closing Date through September 29, 1993; and
1.50:1.00 from September 30, 1993 and thereafter.
11.9. Transactions with Affiliates. Each of Holdings and the Borrower
----------------------------
covenants that it will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property or the rendering of any service), with any Affiliate on terms that are
less favorable to Holdings, the Borrower or such Subsidiary, as the case may be,
than those that would be obtainable at the time in an arms' length transaction
with any Person who is not such an Affiliate; provided, however, that this
-------- -------
Section shall not prohibit the payment of compensation and benefits to directors
and officers of Holdings, the Borrower and their Subsidiaries in the ordinary
course of business and consistent with past practices.
11.10. Acquisition of Margin Securities. Each of Holdings and the
--------------------------------
Borrower covenants that it will not, and will not permit any of its Subsidiaries
to, own, purchase or acquire (or enter into any contract to purchase or acquire)
any "margin security" as defined by any regulation of the Board of Governors of
the United States Federal Reserve System as now in effect or as the same may
hereafter be in effect unless, prior to any such purchase or acquisition or
entering into any such contract, the holders of the Notes shall have received an
opinion of counsel satisfactory to the holders of the Notes to the effect that
such purchase or acquisition will not cause this Agreement or the Notes to be in
violation of Regulation G or any other regulation of such Board then in effect.
11.11. Conduct of Business. Each of Holdings and the Borrower covenants
-------------------
that it will not, and will not permit any of its Subsidiaries to, engage in any
business activity if, such business activity would result in a substantial
change in the general nature of the business of Holdings and its Subsidiaries,
taken as a whole, from that described in the Confidential Memorandum.
Section 12. Definitions.
-----------
(A) For the purposes of this Agreement, the following terms shall
have the following respective meanings:
"Acceleration Price" is defined in Section 13.2(A) hereof.
-41-
"Accountants" has the meaning specified in Section 8.
"Affiliate" shall mean any Person (other than a Subsidiary) (i) which
directly or indirectly controls, or is controlled by, or is under common control
with, Holdings, (ii) which beneficially owns or holds 10% or more of any class
of the Voting Stock of Holdings, (iii) 10% or more of the Voting Stock of which
is beneficially owned or held by Holdings or a Subsidiary of Holdings or (iv)
any officer or director of Holdings or any of its Subsidiaries. For purposes of
this definition, "control" of a Person shall mean the power, direct or indirect,
(i) to vote or direct the voting of a majority of the Voting Stock of such
Person, or (ii) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Appropriate Officer" shall mean, with respect to any corporation,
such corporation's President, Vice President, Chief Executive Officer, Chief
Financial Officer, Treasurer or Controller.
"Audited Financial Statements" has the meaning specified in Section
4.5(a).
"Bank" is defined in Section 6.15.
"B of A" is defined in Section 6.15.
"Board" means the Board of Directors of any corporation or a committee
of said corporation having authority to exercise, when the Board of Directors is
not in session, the powers of the Board of Directors (subject to any designated
limitations) in the management of the business and affairs of said corporation.
"Book Value" of an asset of any Person means the value of such asset
as reported in the books and records of such Person in accordance with GAAP.
"Borrower" means International House of Pancakes, Inc., a Delaware
corporation, or any successor thereto.
"Business Asset Acquisition" is defined in Section 11.6 hereof.
"Business Day" means any day except a Saturday, a Sunday or a legal
holiday in New York City.
"Capitalized Lease" means a lease of Property which in accordance with
GAAP should be capitalized on the balance sheet of any Person.
-42-
"Capitalized Lease Obligations" shall mean the aggregate rentals due
and to become due under all Capitalized Leases which any Person, as a lessee,
would be required to reflect as a liability on the consolidated balance sheet of
such Person in accordance with GAAP.
"Certified" when used with respect to any financial information of any
Person to be certified by any of its officers, indicates that such information
is to be accompanied by a certificate to the effect that such financial
information has been prepared in accordance with GAAP consistently applied,
subject in the case of interim financial information to non-recurring material
year-end audit adjustments, and presents fairly the information contained
therein as at the dates and for the periods covered thereby.
"Closing Date" has the meaning specified in Section 2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Memorandum" has the meaning specified in Section 4.5(a).
"Consolidated Income Available for Fixed Charges" means the sum of (a)
Consolidated Net Income (b) consolidated income tax expense of Holdings and its
Subsidiaries in accordance with GAAP and (c) Fixed Charges.
"Consolidated Net Income or Loss" shall mean the Net Income or Loss of
Holdings, the Borrower and their Subsidiaries, as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean shareholders' equity of
Holdings and its Subsidiaries less intangible assets booked after the Closing
----
Date, less Restricted Investments in excess of 10% of shareholders' equity of
----
Holdings and its Subsidiaries at any date of determination, all as determined
for Holdings and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"Debt" with respect to any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the liability of such
Person created by granting a Lien to which the property or assets of such Person
are subject whether or not such Person has assumed or become legally liable for
the payment of any obligation (provided that, if such obligation has not been
assumed or become the legal liability of such Person, the amount of the
liability shall be deemed to
-43-
be in an amount not to exceed the Fair Market Value of the property to which the
Lien relates, as determined in good faith by such Person), (iii) Capitalized
Lease Obligations of such Person, to the extent such obligations exceed accounts
receivable by such Person as lessor under direct financing leases with
franchisees so long as such direct financing leases are, at the time of
determination to the best knowledge of the lessor thereunder, valid and
enforceable against their lessees and are current as to payment and not
otherwise in default to the extent that there is a reasonable likelihood that
any such lease would be terminated by the lessor prior to its stated expiration
and (iv) the aggregate amount of all Guarantees given by such Person with
respect to any of the foregoing.
"Default" means any event or condition which, with due notice or lapse
of time or both, would become an Event of Default.
"Disposition" shall mean any sale, transfer, assignment, lease,
conveyance or other disposition of any asset.
"Disposition Date" is defined in Section 11.6 hereof.
"Eligible Holder" has the meaning specified in Section 8.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. (S)(S) 9601 to 9675, the Resource
Conservation and Recovery Act, 42 U.S.C. (S)(S) 6901 to 6992, the Emergency
Planning and Community Right to Know Act, 42 U.S.C. SS 11001 to 11050, the Safe
Drinking Water Act, 42 U.S.C. (S)(S) 300f to 300j-26, the Hazardous Materials
Transportation Act, 49 U.S.C.A. (S)(S) 1801 to 1819, the Clean Air Act, 42
U.S.C. (S)(S) 7401 to 7671q, the Clean Water Act, 33 U.S.C. (S)(S) 1251 to 1387,
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S)(S) 136 to
136y, the Noise Control Act, 42 U.S.C. (S)(S) 4901 to 4918, the Occupational
Safety and Health Act, 29 U.S.C.A. (S)(S) 651 to 678, the Toxic Substances
Control Act, 15 U.S.C. (S)(S) 2601 to 2671, any so-called "Superfund" or
"Superlien" law, any regulation promulgated under any of the foregoing or any
other Federal, state, or local statute, law, ordinance, code, rule, regulation,
order, decree, common law or other requirement of any Governmental Body
regulating or imposing liability or standards of conduct concerning the
environment, health and safety, or any Hazardous Material.
"Environmental Matter" means any claim, investigation (known to
Holdings or the Borrower), litigation, administrative proceeding, whether
pending or, to the knowledge of Holdings or
-44-
the Borrower, threatened, or judgment or Order, relating to any Hazardous
Materials, the release thereof, or any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
from time to time amended.
"ERISA Affiliate" means any corporation or other Person which is a
member of the same controlled group (within the meaning of Section 414(b) of the
Code) of corporations or other Persons as Holdings or any of its Subsidiaries,
or which is under common control (within the meaning of Section 414(c) of the
Code) with Holdings or any of its Subsidiaries, or any corporation or other
Person which is a member of an affiliated service group (within the meaning of
Section 414(m) of the Code) with Holdings or any of its Subsidiaries, or any
corporation or other Person which is required to be aggregated with Holdings or
any of its Subsidiaries pursuant to Section 414(o) of the Code or the
regulations promulgated thereunder.
"Event of Default" has the meaning specified in Section 13.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar U.S. statute then in effect, and a reference to a particular
section thereof shall include a reference to the comparable section, if any, of
any such similar U.S. statute.
"Fair Market Value" means what a willing buyer would pay to a willing
seller in an arm's-length transaction.
"Financial Statements" has the meaning specified in Section 4.5(a).
"Fixed Charges" means the sum of (a) Interest Expense and (b) rental
expense under operating leases, all as determined for Holdings and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"Funded Debt" shall mean (i) all Debt of a Person (other than
Guarantees) having a final maturity of more than one year from the date of
incurrence thereof (or which is renewable or extendable at the option of the
obligor for a period or periods of more than one year from the date of
incurrence), including all payments in respect thereof that are required to be
made within one year from the date of any determination of Funded Debt, whether
or not included in current liabilities, (ii) in the case of Guarantees, all
Guarantees of obligations maturing more than one year after the
-45-
date as of which the Guarantee is incurred, and (iii) the recourse portion, if
any, of obligations under sales of notes or receivables programs.
"GAAP" means generally accepted accounting principles in the United
States in effect from time to time.
"Governmental Body" means any federal, state, Canadian provincial,
county, city, town, village, municipal or other governmental department,
commission, board, bureau, agency, authority or instrumentality, domestic or
foreign.
"Gross Assets" means the total assets and Properties of Holdings and
its Subsidiaries less accumulated depreciation, as indicated on the audited
balance sheets of Holdings and its Subsidiaries for the fiscal year end
immediately prior to the date of any determination.
"Guarantee" means any guarantee or other contingent liability (other
than any endorsement for collection or deposit in the ordinary course of
business), direct or indirect, with respect to any obligations of another
Person, through an agreement or otherwise, including, without limitation, (a)
any other endorsement or discount with recourse or undertaking substantially
equivalent to or having economic effect similar to a guarantee in respect of any
such obligations and (b) any agreement (i) to purchase, or to advance or supply
funds for the payment or purchase of, any such obligations, (ii) to purchase,
sell or lease Property, products, materials or supplies, or transportation or
services, in respect of enabling such other Person to pay any such obligation or
to assure the owner thereof against loss regardless of the delivery or
nondelivery of the Property, products, materials or supplies or transportation
or services or (iii) to make any loan, advance or capital contribution to or
other investment in, or to otherwise provide funds to or for, such other Person
in respect of enabling such Person to satisfy any obligation (including any
liability for a dividend, stock liquidation payment or expense) or to assure a
minimum equity, working capital or other balance sheet condition in respect of
any such obligation. The amount of liability of any Person attributable to any
Guarantee shall be equal to the maximum amount for which such Person could be
liable under such Guarantee.
"Hazardous Material" and "Hazardous Materials" shall mean as follows:
(1) any "hazardous substance" as defined in, or for purposes of, the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.A. (S)(S) 9601 & 9602,
-46-
as may be amended from time to time, or any other so-called "superfund" or
"superlien" law and any judicial interpretation of any of the foregoing;
(2) any "regulated substance" as defined pursuant to 40 C.F.R. Part
280;
(3) any "pollutant or contaminant" as defined in 42 U.S.C.A. (S)
9601(33);
(4) any "hazardous waste" as defined in, or for purposes of, the
Resource Conservation and Recovery Act;
(5) any "hazardous chemical" as defined in 29 C.F.R. Part 1910;
(6) any "hazardous material" as defined in, or for purposes of, the
Hazardous Materials Transportation Act; and
(7) any other substance, regardless of physical form, or form of energy
or pathogenic agent that is subject to any Environmental Law.
Without limiting the generality of the foregoing, the term "Hazardous
Material" thus includes, but is not limited to, any material, waste or substance
that contains petroleum or any fraction thereof, asbestos, or polychlorinated
biphenyls, or that is flammable, explosive or radioactive that is subject to any
Environmental Law.
"Holdings" means IHOP Corp., a Delaware corporation, or any successor
thereto.
"HomeFed" is defined in Section 6.16.
"IHOP Realty" means IHOP Realty Corp., a Delaware corporation which is
a wholly-owned Subsidiary of the Borrower.
"Interest Expense" shall mean interest expense, determined for Holdings
and its Subsidiaries on a consolidated basis in accordance with GAAP.
"Interest Payment Date" shall mean any date on which the payment of
interest on any Note becomes due and payable.
"Internal Revenue Service" means the United States Internal Revenue
Service and any successor or similar agency performing similar functions.
-47-
"Investment" when used with reference to any investment of Holdings,
the Borrower or any of their Subsidiaries, means any investment so classified
under GAAP (and, specifically, shall not include trade receivables which are
classified as current assets under GAAP), and, whether or not so classified,
includes (a) any loan or advance made by Holdings, the Borrower or any of their
Subsidiaries to any other Person, and (b) any ownership or similar interest in
any other Person; and the amount of any Investment shall be the original
principal or capital amount thereof less all cash returns of principal or equity
thereof (and without adjustment by reason of the financial condition of such
other Person).
"Lien" means any security interest, mortgage, pledge, lien, claim,
charge, encumbrance, conditional sale or title retention agreement, lessor's
interest under a Capitalized Lease or analogous instrument, in, of or on any of
a Person's Property (whether held on the date hereof or hereafter acquired), or
any signed or filed financing statement which names such Person as the debtor,
or the execution of any security agreement or the like authorizing any other
Person as the secured party thereunder to file such a financing statement;
provided that neither (a) the interest of a lessee or a sublessee in its
--------
capacity as lessee or sublessee under a lease or sublease entered into by
Holdings, the Borrower or any of their Subsidiaries in the ordinary course of
business nor (b) the rights of franchisees in their capacities as franchisees to
use and possession of certain properties and rights pursuant to franchise
documentation entered into by Holdings, the Borrower or any of their
Subsidiaries in the ordinary course of business shall be deemed to constitute a
Lien for purposes hereof.
"Majority Holders" means the holders of at least a majority in
principal amount of the Notes at the applicable time outstanding.
"Material Adverse Effect" means any change or changes or effect or
effects that individually or in the aggregate are or are likely to be materially
adverse to (i) the assets, business, operations, income, prospects or condition
(financial or otherwise) of Holdings and its Subsidiaries taken as a whole or
the Borrower and its Subsidiaries taken as a whole, (ii) the transactions
contemplated by this Agreement, or (iii) taken as a whole, the ability of the
Borrower and Holdings to fulfill their respective obligations under this
Agreement and the Notes.
"Material Contracts" means all supply agreements, requirements
contracts, leases, customer agreements, franchise agreements, license
agreements, distribution agreements, joint
-48-
venture agreements, asset purchase agreements, stock purchase agreements, merger
agreements, agency or advertising agreements and other contracts, agreements and
commitments to which Holdings or any of its Subsidiaries are parties, and which
are material to the respective businesses, assets or operations of Holdings and
its Subsidiaries.
"Multiemployer Plan" means a multiemployer plan as defined in Section
3(37) or Section 4001(a)(3) of ERISA or Section 414(f) of the Code contributed
to by Holdings or any of its Subsidiaries or ERISA Affiliates.
"Net Income or Loss" of any Person, with respect to any period, shall
mean the net income or net loss of such Person after excluding the sum of (i)
any net loss or any undistributed net income of any Person other than a
Subsidiary of such Person, (ii) the net income or net loss of any Subsidiary of
such Person earned or incurred prior to the date on which it became a Subsidiary
of such Person, (iii) the gain or loss (net of any tax effect) resulting from
the sale of any capital assets other than in the ordinary course of business,
and (iv) extraordinary or nonrecurring gains or losses (net of any tax effect),
all as determined for the relevant period in accordance with GAAP.
"Note" has the meaning specified in Section 1.
"Offering Circular" has the meaning specified in Section 4.25.
"Officer's Certificate" shall mean a certificate executed on behalf of
Holdings, the Borrower or any of their Subsidiaries, in each case by an
Appropriate Officer thereof.
"Order" means any order, writ, injunction, decree, judgment, award,
determination or written direction or demand of any court, arbitrator or
Governmental Body.
"Other Agreements" shall mean the agreements which are identical in all
respects with this Agreement (except for the respective principal amounts of the
Notes to be purchased) and executed and delivered to the other Purchasers named
in Schedule I hereto simultaneously with the execution and delivery of this
----------
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
successor agency or Governmental Body performing similar functions.
-49-
"Pension Plan" means an employee pension benefit plan, as defined in
Section 3(2) of ERISA, excluding any Multiemployer Plans, maintained by or
contributed to by Holdings or any of its Subsidiaries or ERISA Affiliates.
"Permitted Lien" is defined in Section 11.1.
"Person" means and includes an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
"Plan" and "Plans" means any employee benefit plan as defined in
Section 3(3) of ERISA, excluding a Multiemployer Plan, established or maintained
for the benefit of employees of Holdings or any of its Subsidiaries or ERISA
Affiliates.
"Present Value Amount" means at any time with respect to any Notes
being prepaid in whole or in part pursuant to Section 3.2 hereof or being
declared or becoming due and payable pursuant to Section 13.2(A) or (B) hereof,
the sum of the Present Values of (A) the aggregate amount of the principal being
so prepaid or being declared or becoming due and payable plus (B) each amount of
----
interest which would have been payable on the amount of such principal being
prepaid or being declared or becoming due and payable (assuming that all
payments and prepayments of principal and interest would have been made in
accordance with the terms of this Agreement and the Notes and that interest
accrued and unpaid on such principal to the date of prepayment or the date such
principal is declared or becomes due and payable has been paid). "Present
--------
Value", for any amount of principal or interest, shall be computed on a
------
semiannual basis at a discount rate equal to the Treasury Yield plus 50 basis
points. The "Treasury Yield" shall be determined by reference to (i) the yields
----------------
reported, as of 10:00 a.m. (New York City time) on the Business Day next
preceding the prepayment date or the date any such principal is declared or
becomes due and payable, on the display designated as "Page 500" on the Telerate
Service (or such other display as may replace Page 500 on the Telerate Service)
for actively traded U.S. Treasury securities having a constant maturity equal to
the then remaining Weighted Average Life to Maturity of the principal being
prepaid or being declared or becoming due and payable, or if such yields shall
not be reported as of such time or the yields reported as of such time shall not
be ascertainable, (ii) the most recent Federal Reserve Statistical Release H.15
(519) which has become available not more than two Business Days prior to the
date of prepayment or the date such principal becomes or is declared due and
payable (or, if such Statistical Release is no longer published, any publicly
-50-
available source of similar market data acceptable to the Majority Holders), and
shall be the most recent yield on actively traded U.S. Treasury securities
adjusted to a constant maturity equal to the then remaining Weighted Average
Life to Maturity of the principal being prepaid or being declared or becoming
due and payable. If the Weighted Average Life to Maturity (so computed) is not
equal to the constant maturity of a U.S. Treasury security for which a yield is
given, the Treasury Yield shall be obtained by linear interpolation (calculated
to the nearest one-twelfth of a year) from the yields of U.S. Treasury
securities for which such yields are given, except that if the Weighted Average
Life to Maturity (so computed) is less than one year, the yield on actively
traded U.S. Treasury securities adjusted to a constant maturity of one year
shall be used.
"Pro Rata Portion" shall mean with respect to any Noteholder, the ratio
of the principal balance outstanding on the Note or Notes held by that
Noteholder on the date of determination to the aggregate principal balance
outstanding on all the Notes on the date of determination.
"Projections" is defined in Section 4.5 hereof.
"Property" with respect to any Person, means any interest in any kind
of property or asset, whether real, personal or mixed, tangible or intangible,
of such Person.
"Purchaser Affiliate" shall mean any Person (i) which directly or
indirectly controls, or is controlled by, or is under common control with, a
Purchaser, (ii) which beneficially owns or holds 5% or more of any class of the
Voting Stock of a Purchaser, or (iii) 5% or more of the Voting Stock of which is
beneficially owned or held by a Purchaser; provided, however, that a director,
officer or employee of a Purchaser shall not be deemed to control, to be
controlled by, or to be under common control with, a Purchaser for purposes
hereof solely by reason of such status. For purposes of this definition,
"control" of a Person shall mean the power, direct or indirect, (i) to vote or
direct the voting of a majority of the Voting Stock of such Person, or (ii) to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise. For the purposes of this Agreement, the
Purchasers shall not be deemed to be Affiliates of Holdings or any of its
Subsidiaries.
"Qualified Holder" shall mean, as of any date of determination, any
original Purchaser or Purchaser Affiliate and any direct or indirect successor,
assign or transferee of any Purchaser or Purchaser Affiliate holding Notes
representing
-51-
at least 10% of the aggregate principal amount of all Notes at the time
outstanding.
"quarterly accounting period" is defined in Section 8(A) hereof.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder for which the 30-day notice requirement
applies.
"Restricted Investments" shall mean all Investments made by Holdings,
the Borrower or their Subsidiaries in or to any Person except (i) Investments in
notes of franchisees and receivables of franchisees in the ordinary course of
business other than notes and receivables held in settlement of franchise
obligations, and in Property of Holdings or its Subsidiaries to be used in the
ordinary course of business, (ii) Investments in Subsidiaries, (iii) Investments
in obligations issued or unconditionally guarantied by the U.S. or any agency
thereof, in each case maturing within one year from the date of acquisition
thereof; (iv) Investments in obligations issued by any political subdivision of
the U.S. or any public instrumentality thereof maturing within one year from the
date of acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either Standard & Poor's Corporation or
▇▇▇▇▇'▇ Investors Service, Inc. or some other mutually agreeable rating system
if either of these entities no longer exists; (v) commercial paper maturing no
more than 270 days from the date of creation thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. or some other
mutually agreeable rating system if either of these entities no longer exists;
(vi) certificates of deposit, repurchase agreements or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by the
Borrower's cash management concentration bank (provided that such bank is rated
investment grade or better by either Standard & Poor's Corporation or ▇▇▇▇▇'▇
Investors Services, Inc. or some other mutually agreeable rating system if
either of these entities no longer exists), Continental Bank N.A., or other
commercial banks located in the U.S. and Canada having combined capital, surplus
and undivided profits of not less than $100,000,000 and who have a rating at all
times from Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc., or
some other mutually agreeable rating system if either of these entities no
longer exists, of "A-" or better; (vii) Investments in mutual funds and money
market accounts, which funds or accounts are traded on a national exchange or
are managed by a commercial bank and which invests solely in Investments which
satisfy the
-52-
criteria set forth in the foregoing clauses (iii) through (vi); and (viii) other
Investments existing on the Closing Date and set forth on Schedule 12 hereto.
-----------
"SEC" means the Securities and Exchange Commission and any succeeding
agency, authority, commission or Governmental Body.
"SEC Reports" means, collectively, (a) the annual report on Form 10-K
as filed by Holdings with the Securities and Exchange Commission pursuant to
Section 13 or 15(d) of the Exchange Act, for the fiscal year ended December 31,
1991, (b) the quarterly report on Form l0-Q as filed by Holdings with the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act, for the quarterly period ended June 30, 1992, and (c) the
quarterly report on Form l0-Q as filed by Holdings with the Securities and
Exchange Commission pursuant to Section 13 or 15(d) of the Exchange Act, for the
quarterly period ended September 30, 1992.
"Securities Act" means as of any date the Securities Act of 1933, as
amended, or any similar federal statute then in effect, and a reference to a
particular section thereof shall include a reference to the comparable section,
if any, of any such similar Federal statute.
"September 30, 1992 l0-Q" has the meaning specified in Section 4.5(b).
"Solvent" means, when used with respect to any Person, that:
(a) the present fair salable value of such Person's assets is in excess
of the total amount of such Person's liabilities;
(b) such Person is able to pay its debts as they become due; and
(c) such Person does not have unreasonably small capital to carry on
such Person's business as theretofore operated and all businesses in which such
Person is about to engage.
"Subsidiaries List" is defined in Section 4.6 hereof.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other entity (a) organized under the laws of the United States, the District of
Columbia or Canada or any state or political subdivision of any thereof, (b) all
or
-53-
substantially all of whose assets and business operations are located or
conducted within the United States or Canada and (c) of which at least a
majority of the outstanding Voting Stock is at the time directly or indirectly
owned or controlled by such Person or by one or more of such Person's wholly-
owned Subsidiaries.
"Subsidiary Guarantee" shall mean the Subsidiary Guarantee in the form
of Exhibit D hereto.
---------
"Total Capitalization" shall mean the sum of (i) Funded Debt of
Holdings, the Borrower and their Subsidiaries and (ii) Consolidated
Tangible Net Worth.
"Unaudited Financial Statements" has the meaning specified in Section
4.5(a).
"U.S." means the United States of America.
"Voting Stock" with respect to any Person shall mean capital stock of
such Person of any class or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of members of the
Board (or Persons performing similar functions) of such Person.
"Weighted Average Life to Maturity" means, with respect to any Debt, as
at any time of determination, the number of years obtained by dividing the then
Remaining Dollar-years of such Debt by the then outstanding principal balance of
such Debt (before giving effect to any prepayment to be made at the time of such
determination). For such purposes, the "Remaining Dollar-years" of any Debt
shall be determined by (1) multiplying (a) the amount of each required payment
of principal of such Debt (including each required installment payment or
mandatory prepayment thereof, if any, and payment of the principal balance
thereof at final maturity, but assuming no optional prepayments thereof are
made) by (b) the number of years (calculated to the nearest one-twelfth) which
will elapse between the time of determination and the date the respective
required payment or mandatory prepayment of principal is due, and (2) adding all
of the products so obtained.
(B) Accounting Terms. All accounting terms used in this Agreement
----------------
shall be applied on a consolidated basis for Holdings, the Borrower and their
Subsidiaries, unless otherwise specifically indicated herein. Any accounting
terms not specifically defined herein shall have the meanings customarily given
them in accordance with GAAP.
-54-
Section 13. Events of Default.
-----------------
13.1. Events of Default; Remedies. If any of the following events shall
---------------------------
have occurred and be continuing (whatever the reason for such event and whether
it shall be voluntary or involuntary or by operation of law or otherwise), it
shall constitute an "Event of Default":
(A) the Borrower shall default in the due and punctual payment or
prepayment of all or any part of the principal of, or prepayment charge (if any)
on, any Note when and as the same shall become due and payable, whether at
stated maturity, by acceleration, by notice of prepayment or otherwise;
(B) the Borrower shall default in the due and punctual payment or
prepayment of any interest on any Note or any other sum or amount due under any
Note or this Agreement when and as such interest, sum or amount shall become due
and payable, and such default shall continue for a period of five (5) Business
Days;
(C) the Borrower shall default in the performance or observance of any
covenant, agreement or condition contained in Section 8(E) and Sections 11.1
through 11.11 hereof, inclusive;
(D) the Borrower shall default in the performance or observance of any
other covenant, agreement or condition contained in this Agreement and such
default shall continue for a period of 30 days following the earlier to occur of
(i) notice of such default from any holder of a Note or (ii) the date on which
any Authorized Officer of Holdings, the Borrower or any of their Subsidiaries
otherwise becomes aware of the existence of such default;
(E) any event shall occur or any condition shall exist in respect of
any Debt of Holdings, the Borrower or their Subsidiaries in excess of $2,000,000
in the aggregate for all such Debt (other than the Funded Debt evidenced by this
Agreement and the Notes), which constitutes a breach, default or event of
default under any agreement or document securing or relating to any such Debt
(following all applicable notice or grace periods), the effect of which is to
cause, or to permit any holder or holders of such Debt or an agent or trustee to
cause, the acceleration of the maturity of such Debt;
(F) final order, decree or judgment for the payment of money shall be
rendered by a court of competent jurisdiction against Holdings, the Borrower or
any of their Subsidiaries, and Holdings, the Borrower or such Subsidiary, as the
case may be, shall not discharge the same or provide for its discharge
-55-
in accordance with its terms, or procure a stay of execution thereof, within 60
days from the date of entry thereof and within said period of 60 days, or such
longer period during which execution of such order, decree or judgment shall
have been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal, and such order, decree or judgment together with all other
such orders, decrees or judgments then existing shall exceed in the aggregate
$3,000,000 (net of insurance proceeds actually received, if any);
(G) any representation, warranty, certification or statement made by
or on behalf of the Borrower or Holdings in this Agreement or by or on behalf of
IHOP Realty in the Subsidiary Guarantee or in any certificate, instrument,
financial statement or other document now or hereafter delivered hereunder or
thereunder or pursuant to or in connection with any provision hereof or thereof
shall prove to be false or incorrect or breached in any material respect on the
date as of which made;
(H) a proceeding or case shall be commenced, without the application
or consent of Holdings, the Borrower or any of their Subsidiaries in any court
of competent jurisdiction, seeking (1) the liquidation, reorganization,
dissolution, winding up of any thereof or composition or readjustment of the
debts of any of them, or (2) similar relief in respect of Holdings, the Borrower
or any of their Subsidiaries under any law providing for the relief of debtors,
and such proceeding or case shall continue undismissed, or unstayed and in
effect, for a period of 90 days; or an order for relief shall be entered in an
involuntary case under the applicable bankruptcy laws against Holdings, the
Borrower or any of their Subsidiaries; or action under the laws of the
jurisdiction of organization of any of Holdings, the Borrower or any of their
Subsidiaries analogous to any of the foregoing shall be taken with respect to
any of Holdings, the Borrower or any of their Subsidiaries and shall continue
undismissed, or unstayed and in effect, for a period of 90 days;
(I) Holdings, the Borrower or any of their Subsidiaries shall (1)
apply for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its Property, (2) be generally unable to pay its debts as such debts
become due, (3) make a general assignment for the benefit of its creditors, (4)
commence a voluntary case under the applicable bankruptcy laws (as now or
hereafter in effect), (5) file a petition seeking to take advantage of any other
law providing for the relief of debtors, (6) fail to controvert in
-56-
a timely or appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under such bankruptcy laws, (7) admit in
writing its inability to pay its debts generally as such debts become due, (8)
take any action under the laws of its jurisdiction of organization analogous to
any of the foregoing, or (9) take any requisite action for the purpose of
effecting any of the foregoing;
(J) A custodian, liquidator, trustee or receiver is appointed for
Holdings, the Borrower or any of their Subsidiaries or for all or a substantial
portion of the Property of any of them, without the application or consent of
Holdings or any such Subsidiary, and is not discharged within 90 days after such
appointment; or
(K) If either of the Subsidiary Guarantee or the Guarantee of Holdings
contained in Section 16.14 hereof shall cease to be in full force and effect or
either of Holdings or IHOP Realty or any Person acting by or on behalf of either
of them shall deny or disaffirm their respective obligations under such
Guarantees.
13.2. Acceleration of Notes.
---------------------
(A) Upon the occurrence of an Event of Default described in
Subsections (A) or (B) of Section 13.1 with respect to any Note, the holder of
any such Note may, by written notice to the Borrower, declare such Note to be,
and the same shall forthwith become, immediately due and payable, at a price
(the "Acceleration Price") equal to the sum of (i) the greater of the principal
amount being declared immediately due and payable or the Present Value Amount,
plus (ii) all accrued but unpaid interest on the principal amount being declared
immediately due and payable, all without presentment, demand, notice, protest or
other requirements of any kind, all of which are hereby expressly waived. If any
holder of any Note shall exercise the option specified in this Subparagraph (A),
the Borrower shall forthwith give written notice thereof to the holders of all
other outstanding Notes and each such holder may (whether or not such notice is
given or received), by written notice to the Borrower, declare the principal of
all Notes held by it to be, and the same shall forthwith become, immediately due
and payable, at a price equal to the Acceleration Price.
(B) Upon the occurrence of any Event of Default described in
Subsections 13.1(C), (D), (E), (F), (G) or (K) of Section 13.1, the Majority
Holders may, by written notice to the Borrower, declare all of the Notes to be,
and the same shall forthwith become, immediately due and payable, at a price
-57-
equal to the Acceleration Price, without any presentment, demand, notice,
protest or other requirement of any kind, all of which are hereby expressly
waived.
(C) Upon the occurrence of an Event of Default described in
Subsections (H), (I) and (J) of Section 13.1, all of the Notes shall
automatically become immediately due and payable, at a price equal to the
Acceleration Price, without presentment, demand, notice, protest or other
requirements of any kind, all of which are hereby expressly waived.
13.3. Rescission of Acceleration. The provisions of Section 13.2 are
--------------------------
subject, however, to the condition that if, at any time after any Note shall
have become due and payable pursuant to Section 13.2, (i) the Borrower shall pay
all arrears of interest on the Notes and all payments on account of the
principal of and, to the extent permitted by law, prepayment charge (if any) on
the Notes which shall have become due otherwise than by acceleration (with
interest on all such overdue principal and prepayment charge, if any, and, to
the extent permitted by law, on overdue payments of interest, at the applicable
rate per annum provided for in the Notes or this Agreement in respect of overdue
amounts of principal, prepayment charge and interest), and (ii) the Borrower
shall pay to the Noteholders all amounts that are then due and owing pursuant to
this Agreement, and (iii) all Events of Default (other than nonpayment of
principal of, prepayment charge (if any) and accrued interest on the Notes, due
and payable solely by virtue of acceleration) shall be remedied or waived by the
Majority Holders, and (iv) no judgment or decree has been entered by any court
for the payment of any amounts due and owing under the Notes or pursuant to this
Agreement or the Subsidiary Guarantee, then, and in every such case, the
Majority Holders, by written notice to the Borrower, may rescind and annul any
such acceleration and its consequences with respect to the Notes; but no such
action shall affect any subsequent Default or Event of Default or impair any
right consequent thereon.
13.4. Suits for Enforcement. If any Event of Default shall have occurred
---------------------
and be continuing, the holder of any Note may proceed to protect and enforce its
rights, either by suit in equity or by action at law, or both, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the exercise of any power granted in this Agreement, and the holder of
any Note may proceed to enforce the payment of all sums due upon such Note, and
such further amounts as shall be sufficient to cover the costs and expenses of
collection (including, without limitation, reasonable counsel fees and
disbursements), or to enforce any other legal or equitable right of the holder
of such Note.
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13.5. Remedies Cumulative. No remedy herein conferred upon you or the
-------------------
holder of any Note is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.
13.6. Remedies Not Waived. No course of dealing between the Borrower and
-------------------
you or the holder of any other Note and no delay or failure in exercising any
rights hereunder or under any Note in respect thereof shall operate as a waiver
of any of your rights or the rights of any holder of such Note.
Section 14. Registration, Exchange, and Transfer of Notes. The Borrower
---------------------------------------------
will keep at its principal executive office a register, in which, subject to
such reasonable regulations as it may prescribe, but at its expense (other than
transfer taxes, if any), the Borrower will provide for the registration and
transfer of Notes. Whenever any Note or Notes shall be surrendered either at the
principal executive office of the Borrower, or at the place of payment named in
the Note, for transfer or exchange, accompanied (if so required by the Borrower)
by a written instrument of transfer in form reasonably satisfactory to the
Borrower duly executed by the holder thereof or by such holder's attorney duly
authorized in writing, the Borrower will execute and deliver in exchange
therefor a new Note or Notes in such denominations (multiples of $100,000) as
may be requested by such holder, of like tenor and in the same aggregate unpaid
principal amount as the aggregate unpaid principal amount of the Note or Notes
so surrendered. Any Note issued in exchange for any other Note or upon transfer
thereof shall carry the rights to unpaid interest and interest to accrue which
were carried by the Note so exchanged or transferred, and neither gain nor loss
of interest shall result from any such transfer or exchange. Any transfer tax or
governmental charge relating to such transaction shall be paid by the holder
requesting the exchange. The Borrower and any of its agents may treat the Person
in whose name any Note is registered as the owner of such Note for the purpose
of receiving payment of the principal of, prepayment charge (if any) and
interest and other amounts on such Note and for all other purposes whatsoever,
whether or not such Note be overdue.
Section 15. Lost, Stolen, Damaged and Destroyed Notes. At the request of
-----------------------------------------
any holder of any Note, the Borrower will issue and deliver at its expense, in
replacement of any Note or Notes lost, stolen, damaged or destroyed, upon
surrender thereof, if mutilated, a new Note or Notes in the same aggregate
unpaid principal amount, and otherwise of the same tenor, as the Note or Notes
so lost, stolen, damaged or destroyed, duly executed
-59-
by the Borrower. The Borrower may condition the replacement of a Note or Notes
reported by the holder thereof as lost, stolen, damaged or destroyed, upon the
receipt from such holder of an indemnity or security reasonably satisfactory to
the Borrower; provided, that if such holder shall be you or your nominee or
--------
another Eligible Holder or its nominee, your or such Eligible Holder's unsecured
agreement of indemnity shall be sufficient for purposes of this Section.
Section 16. Miscellaneous.
-------------
16.1. Home Office Payment. Notwithstanding anything to the contrary in
-------------------
this Agreement or in the Notes, the Borrower agrees that, so long as you or any
nominee designated by you shall hold any Notes, the Borrower shall cause all
payments of principal, prepayment charge (if any) and interest on the Notes to
be made to you in the manner and to the address specified in Schedule I hereto,
----------
or in such other manner or to such other address as you may designate in
writing. You agree that prior to the sale, transfer or disposition of any Note
you will make a notation thereon of the portion of the principal amount paid or
prepaid and the date to which interest has been paid thereon or surrender the
same in exchange for a new Note or Notes of the same tenor and of authorized
denominations in aggregate principal amount equal to the aggregate unpaid
principal amount of the Note or Notes so surrendered, duly executed by the
Borrower. Borrower shall enter into an agreement similar to that contained in
this Section with any other Eligible Holder (or nominee thereof).
16.2. Amendment and Waiver.
--------------------
(A) Any term, covenant agreement or condition of this Agreement or of
the Notes may, with the consent of the Borrower be amended, or compliance
therewith may be waived (either generally or in a particular instance and either
retroactively or prospectively), by one or more substantially concurrent written
instruments signed by the Majority Holders, except that
(1) no such amendment or waiver shall (a) change the principal of,
or the rate of interest on, any of the Notes, (b) change the time of payment
of all or any portion of the principal of or interest on or any prepayment
charge payable with respect to any of the Notes, (c) modify any of the
provisions of this Agreement or of the Notes with respect to the payment or
prepayment of the principal thereof or prepayment charge or interest
thereon, (d) change the percentage of Notes required with respect to any
such amendment or to effectuate any such waiver, (e) modify any provision of
this Section or (f) modify any
-60-
provision of Section 13.1 or 16.14 hereof or of the Subsidiary Guarantee,
without in each case the specific prior written consent of the holders of
all of the Notes at the time outstanding; and
(2) no such waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
(B) Any amendment or waiver pursuant to Subsection (A) of this Section
16.2 shall apply equally to all holders of the Notes at the time outstanding and
shall be binding upon them, upon each future holder of any Note, and upon the
Borrower, in each case whether or not a notation thereof shall have been placed
on any Note.
(C) Notwithstanding any other provision contained in this Section 16.2
or elsewhere in this Agreement to the contrary, Notes which at any time are held
by Holdings, the Borrower or by any or their Subsidiaries or Affiliates shall
not be deemed outstanding for purposes of any vote, consent, approval, waiver or
other action required or permitted to be taken by the holders of Notes, or by
any of them, under the provisions of this Section 16.2 or Section 13 of this
Agreement, and none of Holdings, the Borrower or any such Subsidiary or
Affiliate shall be entitled to exercise any right as a holder of Notes with
respect to any such vote, consent, approval or waiver or to take or participate
in taking any such action at any time.
(D) The parties hereto agree that no amendments or waivers pursuant to
this Section 16.2 shall be granted unless each holder of Notes has had the
opportunity to participate in conferences and discussions with respect to any
such amendments or waivers, and has received the same information, drafts,
notices, memoranda and other written communications pertaining to such amendment
or waiver as are received by any other Purchaser or Eligible Holder.
16.3. Expenses. The Borrower agrees, whether or not the transactions
--------
hereby contemplated shall be consummated, to pay and save you harmless against
any and all liability for the payment of all reasonable out-of-pocket expenses
arising in connection with this Agreement, the Subsidiary Guarantee and the
other instruments and the transactions hereby contemplated, including without
limitation all such expenses incurred with respect to the enforcement of any
provision of any such agreement or instrument, any proposed amendments or
waivers (whether or not the same shall be signed or shall become effective)
under or in respect of any such agreement or
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instrument and the consideration of any legal questions relevant thereto, all
expenses incurred in connection with the reproduction of such agreements and
instruments and all stamp and other similar taxes (together in each case with
interest and penalties, if any) which may be payable in respect of the execution
and delivery of such agreement or instruments, or the issuance, delivery or
acquisition by you of any Note or otherwise pursuant to this Agreement, the
Subsidiary Guarantee, and expenses incurred in obtaining a private placement
number from Standard & Poor's Corporation and a rating from the National
Association of Insurance Commissioners, and the fees and disbursements of
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and of any special or local counsel in connection
with preparation of such agreements and instruments and the transactions hereby
and thereby contemplated (including, without limitation, in connection with any
such enforcement, amendment, waiver or consideration of legal questions), and
the fees and disbursements of the Accountants. The obligations of the Borrower
under this Section 16.3 shall survive the payment or transfer of any Note, the
enforcement of any provision hereof or thereof, any such amendments or waivers
and any such consideration of legal questions.
16.4. Survival of Representations and Warranties. All representations and
------------------------------------------
warranties contained herein or made in writing by or on behalf of any party to
this Agreement or otherwise in connection herewith, shall (i) survive the
execution and delivery of this Agreement and the delivery of the Notes to you
and shall continue in effect as long as any of the Notes is outstanding and
thereafter as provided in Section 16.3, and (ii) be deemed to be material to
your decision to enter into this transaction and to have been relied upon by
you, regardless of any investigation made by you or on your behalf.
16.5. Successors and Assigns. All representations, warranties, covenants
----------------------
and agreements in this Agreement contained by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not, except that you shall
not be obligated to purchase any Note from any issuer other than the Borrower.
The provisions of this Agreement are intended to be for the benefit of all
holders, from time to time, of any Notes purchased pursuant hereto, and shall be
enforceable by any such holder, whether or not an express assignment to such
holder of rights under this Agreement has been made by you or your successor or
assign.
16.6. Notices. All communications provided for hereunder shall be in
-------
writing and delivered by hand or sent by first
-62-
class mail or sent by telex or telecopy (with such telex or telecopy to be
confirmed promptly in writing sent by first class mail), sent (i) if to you, to
the address or telex or telecopy number set forth by you for such communications
on Schedule I hereto, or to such other address or telex or telecopy number as
----------
you may have designated to the Borrower in writing; (ii) if to any other holder
of any Notes, to the address or telex or telecopy number (if any) of such holder
as set forth in the register maintained pursuant to Section 15; and (iii) if to
the Borrower or Holdings, to IHOP Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Executive Vice President --
Administration, Secretary and General Counsel; facsimile # (▇▇▇) ▇▇▇-▇▇▇▇; or to
such other address or addresses or telex or telecopy number or numbers as the
Borrower may most recently have designated in writing to the holders of Notes by
such notice. All such communications shall be deemed to have been given or made
when so delivered by hand or sent by telex (answer back received) or telecopy,
or three Business Days after being so mailed.
16.7. Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE).
16.8. Submission to Jurisdiction: Waiver of Service and Venue.
-------------------------------------------------------
(A) EACH OF HOLDINGS AND THE BORROWER CONSENTS AND AGREES TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK,
STATE OF NEW YORK, AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM NON
----- ---
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREES THAT ANY
----------
DISPUTE CONCERNING THE RELATIONSHIP BETWEEN THE PURCHASER OR HOLDER OF NOTES, ON
THE ONE HAND, AND THE BORROWER OR HOLDINGS, ON THE OTHER HAND OR THE CONDUCT OF
ANY PARTY IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE HEARD ONLY IN
THE COURTS DESCRIBED ABOVE.
(B) EACH OF HOLDINGS AND THE BORROWER HEREBY WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY
BE MADE BY HAND DELIVERY OR MAIL TO HOLDINGS AND THE BORROWER AT ITS ADDRESS SET
FORTH IN, AND IN ACCORDANCE WITH, SECTION 16.6. EACH OF HOLDINGS AND THE
BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS AS AFORESAID.
(C) NOTHING IN THIS SECTION 16.8 SHALL AFFECT THE RIGHT OF THE
PURCHASER OR ANY HOLDER OF NOTES TO SERVE LEGAL
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PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE
PURCHASER OR ANY HOLDER OF NOTES TO BRING ANY ACTION OR PROCEEDING AGAINST
HOLDINGS OR THE BORROWER OR THEIR RESPECTIVE PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
16.9. Indemnification. In consideration of the execution and delivery of
---------------
this Agreement by you, the Borrower and Holdings hereby agree, jointly and
severally, to defend, indemnify, exonerate and hold you and each of your and its
officers, directors, employees and agents (herein collectively called the
"Indemnitees") free and harmless from and against any and all actions, causes of
------------
action, suits, losses, liabilities and damages, and expenses in connection
therewith, including, without limitation, reasonable counsel fees and
disbursements (herein collectively called the "Indemnified Liabilities"),
incurred by the Indemnitees or any of them as a result of, or arising out of or
relating to:
(A) any transaction financed or to be financed in whole or in part
directly or indirectly with proceeds from the sale of any of the Notes, or
(B) any Environmental Matter, any Environmental Law or the actual or
alleged existence or release of any Hazardous Material, except for any such
Indemnified Liabilities arising on account of any Indemnitee's gross negligence
or willful misconduct, and if and to the extent that the foregoing undertaking
may be unenforceable for any reason, Holdings and the Borrower hereby agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
In addition to the foregoing, all payments required to be made by the
Borrower or Holdings under this Agreement, by IHOP Realty under the Subsidiary
Guarantee or by the Borrower under the Notes shall be made to the holder of the
Notes free and clear of, and without deduction for, any and all present and
future taxes, withholdings, levies, duties, interest, penalties and other
governmental charges of any nature whatsoever of Canada ("Withholding Taxes"),
excluding those Withholding Taxes which are imposed by any jurisdiction or
political subdivision thereof as a result of the relevant holder of the Notes
(a) carrying or deemed to be carrying on a trade or business therein or having
or being deemed to have a permanent establishment therein, (b) being organized
under the laws of such jurisdiction or any political subdivision thereof, (c)
being or being deemed resident in such jurisdiction, or which would not have
been imposed but for a failure of such Person to satisfy a relevant authority
that such Person was not a Person mentioned in (a), (b) or (c) above. If the
Borrower or
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Holdings or IHOP Realty is obligated to make any such withholding or deduction
from any such payment, it shall simultaneously pay to the relevant holder of the
Notes such additional amount or amounts as shall be necessary to ensure that the
payment that is made (including all such additional amounts) equals the amount
which would have been received or receivable by the relevant holder of the Notes
hereunder in the absence of such withholding or deduction. Upon request by the
holder of the Notes, the Borrower or Holdings or IHOP Realty shall furnish to
such holder a receipt for any such Withholding Taxes paid by the Borrower or
Holdings or IHOP Realty pursuant to this Section, or, if no such Withholding
Taxes are payable with respect to any payments required to be made by the
Borrower or Holdings under this Agreement, by IHOP Realty under the Subsidiary
Guarantee or by the Borrower under the Notes, either a certificate from each
appropriate taxing authority or an opinion of counsel, in either case stating
that such payment is exempt from or not subject to such Withholding Taxes. If
any such Withholding Taxes are paid by the holder of the Notes, the Borrower or
Holdings or IHOP Realty will, upon demand of the holder of the Notes, jointly
and severally indemnify the holder of the Notes for such payments, together with
any interest, penalties and expenses in connection therewith plus interest
thereon at the rate specified in the Notes (calculated as if such payments
constituted overdue amounts of principal as of the date of the making of such
payments).
The obligations of the Borrower and Holdings under this Section 16.9 shall
survive the payment or transfer of any Note and the enforcement of any
provision hereof or thereof.
16.10. Integration and Severability. This Agreement embodies the entire
----------------------------
agreement and understanding among you, the Borrower and Holdings, and supersedes
all prior agreements and understandings relating to the subject matter hereof.
In case any one or more of the provisions contained in this Agreement or in any
instrument contemplated hereby for such date, or any application thereof, shall
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein, and any
other application thereof, shall not in any way be affected or impaired thereby.
16.11. Payments Due on Days not Business Days. Whenever any payment
--------------------------------------
hereunder or under the Notes shall be stated to be due on a day other than a
Business Day, that payment shall be made on the next succeeding Business Day and
the extension of time shall be included in the computation of interest due
thereon.
-65-
16.12. Further Assurances. Each of the Borrower and Holdings covenants
------------------
that, so long as you shall hold any of the Notes, it shall, and shall cause its
Subsidiaries to, cooperate with you and execute such further instruments and
documents as you shall reasonably request to carry out to your satisfaction the
transactions contemplated by this Agreement.
16.13. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same instrument.
16.14. Guarantee of Holdings.
---------------------
(a) Guarantees. Holdings, in consideration of the Purchaser's
----------
entering into this Agreement and purchasing Notes, unconditionally and
irrevocably guarantees to the Purchaser and each and every holder from time to
time of any of the Notes the due and punctual payment of all sums which may
become due or be stated in the Notes or in this Agreement to become due under
the terms and provisions of the Notes and this Agreement in respect of the
principal of and prepayment charge, if any, and interest on the Notes (including
interest on any overdue principal, prepayment charge, if any, and, to the extent
permitted by applicable law, on any overdue interest), whether at stated
maturity, by acceleration, by notice of prepayment or otherwise, and all other
sums which may become due from the Borrower or be stated to be or become so due
under the Notes or this Agreement. Holdings further guarantees to the Purchasers
and each holder as aforesaid the due performance and observance by the Borrower
of all covenants, agreements and conditions on the Borrower's part to be
performed under this Agreement and any other document from time to time
delivered by the Borrower pursuant to this Agreement. Holdings further
guarantees to the Purchasers and each holder as aforesaid payment of all other
amounts payable by the Borrower under this Agreement or the Notes, including
costs, expenses (including fees and expenses of counsel) and taxes (such
principal, prepayment charge, if any, interest and other obligations guaranteed
as aforesaid being hereinafter collectively called the "Obligations" and to the
-----------
extent lawful agrees to pay any and all expenses (including fees and expenses of
counsel) incurred by each holder of any Note in enforcing any rights in
connection with this Section.
(b) Waiver of Notice of Acceptance, Etc. Holdings hereby waives
-----------------------------------
notice of acceptance of this Agreement by any holder of a Note, of any action
taken or omitted in reliance hereon or of any default in the payment of any of
the Obligations or in the performance of any covenants and agreements of the
Borrower contained in this Agreement or the
-66-
Notes, and any diligence, presentment, demand, protest, dishonor or notice of
any kind.
(c) Guarantees Absolute. The Guarantees of Holdings under this
-------------------
Agreement constitute present and continuing Guarantees of payment and not of
collectibility of the Obligations, and shall be absolute, primary, present and
unconditional, and to the extent permitted by applicable law, the Obligations
shall not be subject to any counterclaim, setoff, reduction or defense based
upon any claim Holdings may have against the Borrower, or any other Person, and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected or impaired by any thing, event,
happening, matter, circumstance or condition whatsoever (whether or not Holdings
shall have any knowledge or notice thereof or shall consent thereto), including,
without limitation: (1) any amendment or other modification of or supplement to
any provision of this Agreement or the Subsidiary Guarantee or any of the Notes,
or any assignment or transfer thereof, including without limitation any renewal
or extension of the terms of payment of any of the Notes or the granting of time
in respect of any payment thereof, or any furnishing or acceptance of security
or any release of any security furnished or accepted for any of the Notes or in
respect of the Obligations of Holdings hereunder; (2) any waiver, consent,
extension, granting of time, forbearance, indulgence or other action or inaction
under or in respect of this Agreement or the Subsidiary Guarantee or any of the
Notes, or any exercise or nonexercise of any right, remedy or power in respect
hereof or thereof; (3) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceedings with respect to
Holdings, the Borrower or any other Person, or the properties or creditors of
any of them; (4) the occurrence of any Event of Default or event which, with the
giving of notice and/or lapse of time, would become an Event of Default, or any
invalidity or any unenforceability of, or any misrepresentation, irregularity or
other defect in, this Agreement or any of the Notes or any other agreement; (5)
any transfer of any assets to or from Holdings or the Borrower, including
without limitation any transfer or purported transfer to Holdings or the
Borrower from any Person, any invalidity, illegality of, or inability to
enforce, any such transfer or purported transfer, any consolidation or merger of
Holdings or the Borrower with or into any other corporation or entity, or any
change whatsoever in the objects, capital structure, constitution or business of
Holdings or the Borrower or any Affiliate or Subsidiary of Holdings or the
Borrower; (6) any disposition by Holdings of any capital stock of the Borrower;
(7) any failure on the part of the Borrower or any other Person to perform or
comply with any term of the Notes, this
-67-
Agreement, or any other agreement; (8) any suit or other action brought by any
stockholder or creditor of, or by, Holdings, the Borrower or any other Person
for any reason whatsoever, including without limitation any suit or action in
any way attacking or involving any issue, matter or thing in respect of the
Notes, this Agreement or any other agreement; (9) any lack or limitation of
status or power, incapacity or disability of Holdings or the Borrower or of any
officer, director or agent of Holdings or the Borrower or any of their
respective stockholders; (10) the cessation from any cause whatsoever (other
than payment of the Obligations) of liability of the Borrower; (11) the
termination of, or release or compromise of this Agreement, any of the Notes or
any other agreement (other than as a result of payment of the Obligations); (12)
any lack or limitation of the genuineness, validity, regularity or
enforceability of the Notes, this Agreement, the Other Agreements, any other
documents and agreements executed or delivered in connection therewith or
pursuant thereto, or any other agreement; (13) any failure by any holder of
Notes to take any steps to preserve their rights with respect to the
Obligations; (14) any election by any holder of Notes, in any proceeding
instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. (S)
101 et seq.) (the "Bankruptcy Code"), of the application of Section 1l11(b)(2)
-- ---
of the Bankruptcy Code; (15) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of any of the Holders' claims for
repayment of the Obligations; or (16) any other thing, event, happening, matter,
circumstance or condition whatsoever, not in any way limited to the foregoing,
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
(d) Obligations of the Borrower Independent. The obligations of
---------------------------------------
Holdings and the Borrower under the Notes and the other Sections of this
Agreement (other than this Section 16.14) are independent of the Obligations of
Holdings under this Section 16.14, and a separate action or actions may be
brought or prosecuted against Holdings irrespective of whether action is brought
against the Borrower and/or any other Guarantor or whether the Borrower and/or
any other Guarantor is joined in any action or actions.
(e) Waiver of Certain Rights. Holdings expressly waives any right it
------------------------
may have to require any person seeking enforcement of its Obligations under this
Section 16.14 and the Guarantee in respect of any Note to (1) proceed against
the Borrower or any other Person, (2) proceed against or exhaust any security or
(3) pursue any other remedy in the power of the Person seeking such enforcement.
The Borrower waives the right to have any security first applied to the
discharge of the
-68-
Obligations. The Purchasers and the other holders from time to time of the
Notes may, at their election, exercise any right or remedy they may have against
the Borrower or Holdings or the Company, including without limitation the right
to foreclose upon any such security by judicial or non-judicial sale, without
affecting or limiting in any way the liability of Holdings hereunder, except to
the extent the Obligations have been paid. Holdings waives any defense arising
out of the absence, impairment or loss of any right of reimbursement,
contribution or subrogation or any other rights or remedy of Holdings against
the Borrower, or any such security, whether resulting from such election by the
holders of the Notes or otherwise.
(f) Reinstatement. Holdings agrees that its obligations under this
-------------
Agreement shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Borrower or Holdings or IHOP Realty is
rescinded or must be otherwise restored by any holder of any Note, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise. Holdings
further agrees that, without limiting the generality of such obligations, if an
Event of Default shall have occurred and be continuing and you or the holder of
any Note is prevented by applicable law from exercising any remedy under this
Agreement or under any of the Notes, the holders of the Notes shall be entitled
to receive from Holdings upon demand therefor, the sums which would have
otherwise been due from the Borrower had such remedies been exercised.
(g) Waiver of Subrogation. Holdings waives and releases any claim
---------------------
(within the meaning of 11 U.S.C (S) 101) which it may have against the Borrower
and agrees not to assert or take advantage of any subrogation rights or any
right to proceed against the Borrower for reimbursement. It is expressly
understood that the waivers and agreements of Holdings set forth above
constituted additional and cumulative benefits given to the Purchasers as
further inducement for the purchase of the Notes.
(h) Waiver of Certain Rights. Holdings hereby expressly waives any
------------------------
and all benefits under California Civil Code Sections 2809, 2810, 2819, 2845,
2847, 2848, 2849, 2850, 2899 and 3433, and California Code of Civil Procedure
Sections 580(a), 580(b), 580(d) and 726.
-69-
16.15. Waiver of Right to Trial by Jury. THE BORROWER, HOLDINGS AND THE
--------------------------------
PURCHASER HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR (ii) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM IN RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. HOLDINGS, THE
BORROWER AND THE PURCHASER HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
-70-
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,
IHOP CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-----------------------------
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-----------------------------
Accepted as of the date first
above written:
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Managing Director
---------------------------
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,
IHOP CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PRESIDENT
-----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-----------------------------
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PRESIDENT
----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-----------------------------
Accepted as of the date first
above written:
MONY LIFE INSURANCE
COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Authorized Agent
------------------------------
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,
IHOP CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
------------------------------
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
------------------------------
Accepted as of the date first
above written:
THE MANUFACTURERS LIFE
INSURANCE COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President,
---------------------------------
U.S. Investments
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,
IHOP CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
---------------------------------
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
---------------------------------
Accepted as of the date first
above written:
THE FRANKLIN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
----------------------------------
Title:
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant Secretary
----------------------------------------
Title:
----------------------------------------
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,
IHOP CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-----------------------------
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-----------------------------
Accepted as of the date first
above written:
THE CANADA LIFE ASSURANCE COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇
----------------------------
Name: ▇.▇. ▇▇▇▇▇
---------------------------
Title: Associate Treasurer
-----------------------------
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,
IHOP CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
--------------------------------
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Accepted as of the date first above written:
MODERN WOODMEN OF AMERICA
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
------------------------------
Title: President
-----------------------------
SCHEDULE I
TO SENIOR NOTE PURCHASE AGREEMENT
----------------------------------
MANNER OF PAYMENT AND
COMMUNICATIONS TO PURCHASERS
This Schedule I shows the names and addresses of the Purchasers under the
foregoing Senior Note Purchase Agreement and the Other Agreements referred to
therein, and the respective principal amount of the Notes purchased, the name
under which the Notes will be registered and the purchase price thereof to be
purchased by each.
Registered Name Principal Purchase
Appearing on Amount of Price of
Purchaser the Note the Note the Note
----------------- --------------- --------------- -------------
The Mutual Life Insurance The Mutual LIfe $ 9,000,000 9,000,000
Company of New York Insurance Company
of New York
The Mutual Life Insurance The Mutual LIfe 3,000,000 3,000,000
Company of New York Insurance Company
of New York
MONY Life Insurance Company MONY Life Insurance 3,000,000 3,000,000
of America Company of America
The Manufacturers Life Hullbird & Co. 7,000,000 7,000,000
Insurance Company
The Franklin Life The Franklin Life 4,000,000 4,000,000
Insurance Company Insurance Company
The Canada Life Assurance Ince & Co. 1,000,000 1,000,000
Company
The Canada Life Assurance Ince & Co. 2,000,000 2,000,000
Company
Modern Woodmen of America Modern Woodmen of 3,000,000 3,000,000
America
Name of Noteholder
------------------
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
Manner of Payment
-----------------
All payments on account of the Note shall be made by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
Chemical Bank, ABA #▇▇▇▇▇▇▇▇▇, for credit to The Mutual Life Insurance Company
of New York's Security Remittance account No. ▇▇▇-▇▇▇▇▇▇
Tax Identification No.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of Wire Transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
Telecopy Confirms and Notices: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Securities Custody
---------
Mailing Confirms and Notices:
Glenpointe Marketing & Operations Center - MONY
Glenpointe Center West
▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Securities Custody
---------
Address for all Other Communications
------------------------------------
The Mutual Life Insurance Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MONY Capital Management Unit
---------
Address for Delivery of Securities
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The Mutual Life Insurance
Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Name of Noteholder
------------------
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
Chemical Bank, ABA #▇▇▇▇▇▇▇▇▇, for credit to The Mutual Life Insurance Company
of New York, account No. ▇▇▇-▇▇▇▇▇▇
Tax Identification No.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of Wire Transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
Telecopy Confirms and Notices: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Securities Custody
---------
Mailing Confirms and Notices:
Glenpointe Marketing & Operations Center - MONY
Glenpointe Center West
▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Securities Custody
---------
Address for all Other Communications
------------------------------------
The Mutual Life Insurance Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MONY Capital Management Unit
---------
Address for Delivery of Securities
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The Mutual Life Insurance Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Name of Noteholder
------------------
MONY LIFE INSURANCE COMPANY OF AMERICA
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
Chemical Bank, ABA #▇▇▇▇▇▇▇▇▇, for credit to MONY Life Insurance Company of
America, account No. ▇▇▇-▇▇▇▇▇▇
TAX IDENTIFICATION NO.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of Wire Transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
Telecopy Confirms and Notices: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Securities Custody
---------
Mailing Confirms and Notices:
Glenpointe Marketing & Operations Center - MONY
Glenpointe Center West
▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Securities Custody
---------
Address for all Other Communications
------------------------------------
MONY Life Insurance Company of America
c/o The Mutual Life Insurance
Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: MONY CAPITAL MANAGEMENT UNIT
---------
Address for Delivery of Securities
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The Mutual Life Insurance Company of New York
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Name of Noteholder
------------------
HULLBIRD & CO.
(beneficial owner - The Manufacturers Life Insurance Company)
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
State Street Bank & Trust Company, N.A.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA #▇▇▇▇▇▇▇▇▇
BNF = New Money Private Placement Free
AC-4362-720-7
OBI = New Money Private Placement Free
Fund Number LN73
TAX IDENTIFICATION NO.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of Payments and Confirmation of Wire
---------------------------------------------------------------------------
Transfers
---------
All notices of payments and written confirmation of wire transfers should be
sent to:
State Street Bank & Trust Company, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mutual Funds
---------
Re: The Manufacturers Life Insurance Company Fund No.LN73, New Money Private
Placement Free AC-4362-720-7
With copies to:
Manulife Financial
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Securities Admin. NT5
Address for all Other Communications
------------------------------------
The Manufacturers Life Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ Tower 6
Toronto, Ontario, Canada ▇▇▇ ▇▇▇
Attention: U.S. Private Placements, Investment Division
---------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Delivery of Securities
----------------------------------
State Street Bank & Trust Company, N.A.
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Concourse Level, Securities Cage
Re: LN73
The Manufacturers Life Insurance Company
Private Placement New Money Free
Name of Noteholder
------------------
THE FRANKLIN LIFE INSURANCE COMPANY
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ #▇▇▇▇-▇▇▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention : Money Transfer Department For
--------- The Franklin Life Insurance Company
Account No. ▇▇▇-▇▇-▇▇▇
Tax Identification No.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of wire transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
The Franklin Life Insurance Company
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Investment Division
---------
Address for all Other Communications
------------------------------------
The Franklin Life Insurance Company
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Investment Division
---------
Address For Delivery of Securities
----------------------------------
The Franklin Life Insurance Company
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Noteholder
------------------
INCE & CO.
(beneficial owner - The Canada Life Assurance Company)
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
Ince & Co.
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company of New York
ABA #021 000 238
Account No. ▇▇▇-▇▇-▇▇▇
Attn: Custody Collection
for: The Canada Life Assurance Company
Trust Account No. 41233
reference: Name of issuer, rate, type of security, maturity,
whether principal or interest, and due date
Tax Identification No.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of Wire Transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
▇▇▇▇▇▇ Guaranty Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
copy to: The Canada Life Assurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ MSG IR8
Attn: Supervisor, Securities Accounting
Address for all Other Communications
------------------------------------
The Canada Life Assurance Company
Investment Department, U-6
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: U.S. Private Placements
Address for Delivery of Securities
----------------------------------
▇▇▇▇▇▇ Guaranty Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10260-0023
Custody Incoming
Attn: ▇▇▇ ▇▇▇▇▇▇▇
for: The Canada Life Assurance Company
Trust Account No. 41233
Name of Noteholder
------------------
INCE & CO.
(beneficial owner - The Canada Life Assurance Company)
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
Ince & Co.
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company of New York
ABA #021 000 238
Account No. ▇▇▇-▇▇-▇▇▇
Attn: Custody Collection
for : The Canada Life Assurance Company
Trust Account No. 41235
reference : Name of issuer, rate, type of security, maturity,
whether principal or interest, and due date
Tax Identification No.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of Wire Transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
▇▇▇▇▇▇ Guaranty Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
copy to: The Canada Life Assurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: Supervisor, Securities Accounting
Address for all Other Communications
------------------------------------
The Canada Life Assurance Company
Investment Department, U-6
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: U.S. Private Placements
Address for Delivery of Securities
----------------------------------
▇▇▇▇▇▇ Guaranty Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10260-0023
Custody Incoming
Attn: ▇▇▇ ▇▇▇▇▇▇▇
for: The Canada Life Assurance Company
Trust Account No. 41235
Name of Noteholder
------------------
MODERN WOODMEN OF AMERICA
Manner of Payment
-----------------
All payments on account of the Notes to be by bank wire or transfer of
immediately available funds (identifying the issue upon which payment is being
made and the application of the payment as between interest, principal and
premium) to:
Account No. ▇▇▇-▇▇▇-▇
▇▇▇▇▇▇ Trust & Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇-▇▇▇-▇▇▇
For the account of Modern Woodmen of America
Tax Identification No.: ▇▇-▇▇▇▇▇▇▇
Address for Communications for Notices of
-----------------------------------------
Payments and Confirmation of Wire Transfers
-------------------------------------------
All notices of payments and written confirmation of wire transfers should be
sent to:
Modern Woodmen of America
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Investment Department
Address for all Other Communications
------------------------------------
Modern Woodmen of America
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Investment Department
Address for Delivery of Securities
----------------------------------
Modern Woodmen of America
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Investment Department
SCHEDULE 4.5
INTERIM CHANGES
1. Additional Debt in the amount of $1,727,000 incurred pursuant to the
Existing Agreement.
SCHEDULE 4.6
IHOP CORP.
LIST OF DIRECT AND INDIRECT SUBSIDIARIES
OWNERSHIP STATE OF
ENTITY PERCENTAGE INCORPORATION
------ ---------- -------------
International House of 100% owned by Delaware
Pancakes, Inc. IHOP Corp.
IHOP Realty Corp. 100% owned by Delaware
International House
of Pancakes, Inc.
Copper ▇▇▇▇▇ Corporation 100% owned by Delaware
International House
of Pancakes, Inc.
III Industries of 100% owned by Canada
Canada, Ltd. International House
of Pancakes, Inc.
International Industries, Inc. 100% owned by California
International House
of Pancakes, Inc.
Blue Roof Advertising, Inc. 100% owned by California
International House
of Pancakes, Inc.
SCHEDULE 4.7
------------
LITIGATION SUMMARY
1. THE COASTAL GROUP v. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., et al.
--------------------------------------------------
IHOP has been named as a defendant in a lawsuit filed by a real estate
developer that purchased certain real property in Sayreville, New Jersey, from
three individuals who had previously acquired the property from IHOP. The
plaintiff contends that it discovered petroleum hydrocarbon contaminants and
construction debris on the property. The plaintiff is seeking to recover
approximately $6 million from IHOP and numerous other defendants for the
remediation of the property and consequential damages, plus punitive damages in
an unspecified amount. IHOP has raised various defenses to the plaintiff's
claims and has asserted claims for contribution and indemnity against several of
the other named defendants, who in turn have asserted claims for contribution
and indemnity against IHOP. In addition, IHOP has commenced a third party action
against its liability insurers seeking damages and declaratory relief for the
insurers' refusal to defend and indemnify IHOP. In response to a motion for
partial summary judgment made by IHOP, in January 1992 the court entered an
order requiring three of IHOP's liability insurers to pay IHOP's past, present
and future expenses for the defense of the underlying lawsuit. An attempt by one
of the insurers to bring an interlocutory appeal of that order has been rejected
by an intermediate appellate court and the New Jersey Supreme Court. IHOP
intends to continue to contest these claims vigorously.
2. ▇▇▇▇ ▇. ▇▇▇▇▇▇, et al. v. IHOP and ▇▇▇ ▇▇▇▇▇
--------------------------------------------
On February 7, 1992, 15 individuals filed suit against IHOP and one its
restaurant managers alleging discriminatory actions at a restaurant in
Milwaukee, Wisconsin, owned and operated by IHOP. IHOP petitioned for removal of
the case to the U.S. District Court. The plaintiffs have alleged that they were
denied admission to the International House of Pancakes restaurant on the basis
of their race and seek to have the case certified as a class action on behalf of
themselves and others similarly situated. IHOP's policies strictly prohibit race
discrimination and IHOP denies that any systematic or classwide discrimination
has occurred.
The plaintiffs' complaint does not specify the amount of damages to which
each plaintiff, or the plaintiffs as a class, allege entitlement, but seeks both
actual and punitive damages as well as injunctive relief prohibiting
discriminatory practices and requiring certain remedial actions by IHOP. The
plaintiffs also seek recovery of an unspecified amount of litigation costs and
expenses, including
-1-
attorneys' fees, and statutory payments to the State of Wisconsin. Discovery has
been commenced by both the plaintiffs and IHOP.
A settlement has been agreed to by 19 of the 20 now-known plaintiffs, in
which IHOP will pay the amount of $185,000.00, include a summary of its non-
discrimination policy in the statement of policies formally acknowledged by
IHOP management employees, and take other steps to insure that IHOP employees
are aware of its non-discrimination policy. The settlement is subject to court
approval.
IHOP is seeking reimbursement from its insurance carrier for a portion or
all of the amount of the settlement plus its attorneys' fees and expenses,
although there are arguments that coverage may not be available.
3. SYDNEY MINE WASTE DISPOSAL SITE
-------------------------------
By letters dated August 17, 1992, and October 1, 1992, IHOP received
demands on behalf of certain parties who have incurred or will incur costs of
response with respect to the remediation of the Sydney Mine Waste Disposal Site
located in Hillsborough County, Florida. The demands seek reimbursement and/or
contribution from IHOP pursuant to CERCLA and Chapter 376, Florida Statutes.
According to the demands, the parties have incurred response costs of $7,300,000
in the aggregate. The basis of the demands is IHOP's alleged disposal of
materials at the disposal site. IHOP has notified the parties making the demands
that IHOP had little or no activity in the State of Florida during the period in
question, inasmuch as all of the IHOP restaurants operating in the State of
Florida during that time period and subsequently were owned and operated by
IHOP's Florida area franchisee, FMS Management Systems, Inc., and, therefore, it
is unlikely that IHOP directly or indirectly conducted any activity that could
impose any liability on IHOP pursuant to these statutes. IHOP has requested that
the parties furnish it with copies of the "trip tickets" so that IHOP can
investigate further.
-2-
SCHEDULE 4.8
EXISTING CURRENT AND FUNDED DEBT AND LIENS
Mortgage Note by and Between IHOP Realty Corp.
and Pizza Hut of America for property in La Grange,
Illinois (IHOP #1281) $429,250
Obligations under Letters of Credit (Various) 208,494
SCHEDULE 4.9
CONSENTS AND APPROVALS
None.
SCHEDULE 4.11
TAXES
The Internal Revenue Service (the "Service") is presently auditing the tax
returns of Holdings and its Subsidiaries for the years 1987-1990. Although the
examination has not yet been completed, the Service has tentatively proposed
certain nonrecurring adjustments which, if agreed to by Holdings, would result
in an increased federal income tax liability (including interest) for such years
in the approximate amount of $350,000, and an increased state income tax
liability (including interest and net of federal income tax benefit) for such
years in the approximate amount of $125,000. Holding and the Service are
currently engaged in informal negotiations to resolve such issues at the audit
level. Tax returns of Holdings and/or of its Subsidiaries are currently being
audited as disclosed below. Consents waiving or extending the statute of
limitations with respect to taxes have been granted by Holdings and/or its
Subsidiaries as disclosed below.
CURRENT AUDITS:
--------------
INTERNAL REVENUE SERVICE - INCOME TAXES - ▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ - INCOME TAXES - 1984 - 1986
STATE OF NEW YORK - INCOME TAXES - 1988 - 1990
STATE OF PENNSYLVANIA - SALES & USE TAXES - 1986-1992
COUNTY OF ▇▇▇▇▇, COLORADO - PERSONAL PROPERTY TAXES - 1991
COUNTY OF LARIMER, COLORADO - PERSONAL PROPERTY TAXES - 1991
CITY & COUNTY OF DENVER, CO - SALES & USE TAXES; BUSINESS
OCCUPATIONAL PRIVILEGE TAXES-
1989-1991
CONSENTS TO WAIVER OR EXTENSION OF THE STATUTE OF LIMITATIONS
-------------------------------------------------------------
INTERNAL REVENUE SERVICES - 1987 - EXTENDED TO 12/31/93
- 1988 - EXTENDED TO 12/31/93
- 1989 - EXTENDED TO 12/31/93
STATE OF CALIFORNIA - 1984 - EXTENDED TO 10/15/93
- 1985 - EXTENDED TO 10/15/93
- 1986 - EXTENDED TO 10/15/93
- 1987 - EXTENDED TO ▇▇/▇▇/▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ - ▇▇▇▇ - EXTENDED TO 06/15/93
STATE OF PENNSYLVANIA - 1989 - EXTENDED TO 12/31/92
CITY & COUNTY OF DENVER, CO - 1989 - EXTENDED TO 11/30/92
- 1990 - EXTENDED TO 11/30/92
SCHEDULE 4.16
LABOR MATTERS
"Agreement Between Hotel Employees & Restaurant Employees Union Local 340 and
International House of Pancakes, September 1, 1990 Through June 30, 1992" which
continues in effect during negotiations on a successor agreement. This agreement
applies only to employees at IHOP #0648 in South San Francisco, CA.
SCHEDULE 4.17
-------------
ENVIRONMENTAL MATTERS
---------------------
Please see Items 1 and 3 on Schedule 4.7.
IHOP #5 - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
----------------------------------------------
Used prior to 1961 as auto shop, including UST's - UST's and petroleum
contamination discovered recently - investigation by IHOP is ongoing -
corrective action plan to be proposed.
SCHEDULE 4.19
COMPLIANCE WITH ERISA
San Mateo Hotel Employees and Restaurant Employees Trust, a health and
welfare benefit plan
SCHEDULE 4.25
-------------
1. License Agreement for All Japan
2. Area Franchise Agreement (Florida)
3. License Agreement for British Columbia, Canada
-1-
SCHEDULE 6.16
SURVIVING OBLIGATIONS
---------------------
1. Obligations of the Borrower and Holdings pursuant to Section 12B of
the Purchase Agreement, dated as of April 15, 1987, by and among the Borrower,
Holdings and New York Life Insurance and Annuity Corporation, as amended.
2. Obligations of the Borrower and IHOP Realty pursuant to Sections
3.4, 3.5, 10.3, 10.8, 10.20 and 10.22 of the Loan Agreement, dated as of April
7, 1992, among the Borrower, IHOP Realty, Holdings and Bank of America National
Trust and Savings Association, as amended, to the extent such obligations
survive termination of such agreement; reimbursment obligations thereunder
pursuant to outstanding standby letters of credit not in excess of $210,000 in
aggregate principal amount; and the obligations of Holdings as guarantor of such
obligations.
3. Obligations of IHOP Realty, pursuant to Section 11.13 of the First
Amended and Restated Real Estate Credit Agreement, datid as of December 29,
1989, among IHOP Realty and HomeFed Bank, Federal Savings Bank, as amended, and
the obligations of the Borrower and Holdings as guarantors of such obligations
of IHOP Realty.
SCHEDULE 12
RESTRICTED INVESTMENTS AT CLOSING DATE
DESCRIPTION AMOUNT
----------- ------
Note Receivable (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) $1,283,000
Cash Surrender Value of Life
Insurance Policy (Executive Life Insurance) 575,000
Ex-Franchisee Notes Receivable (various) 445,600
Employee Notes Receivable and Advances (various) 52,000
----------
Total Restricted Investments $2,355,600
==========
EXHIBIT A
Form of Note
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM.
INTERNATIONAL HOUSE OF PANCAKES, INC.
7.79% Senior Note
Due November 19, 2002
No. R- ___ New York, New York
November 19, 1992
$________
INTERNATIONAL HOUSE OF PANCAKES, INC., a company incorporated under the laws
of the State of Delaware (the "Borrower"), for value received, hereby promises
to pay to ____________________________ (the "Lender") or registered assigns,
$__________, payable in annual installments of $_________ (subject to adjustment
pursuant to Section 3 of the Note Agreement, as hereinafter defined) commencing
on November 19, 1996, and on every November 19 thereafter through November 19,
2001, with a final payment of the remaining outstanding principal balance
payable at maturity on November 19, 2002 and to pay interest (computed on the
basis of a 360-day year of twelve 30-day months) on the principal amount from
time to time remaining unpaid hereon at the rate of 7.79% per annum, from the
date hereof until maturity, payable semi-annually on the 19th day of each May
and November in each year commencing May 19, 1993, and at maturity. The Borrower
agrees to pay interest on overdue principal and prepayment charge, if any, and
(to the extent legally enforceable) on any overdue installment of interest, at a
rate equal to the greater of 9.79% or the rate of interest announced publicly
from time to time by Citibank, N.A. in New York, New York, as its "prime rate"
after the due date, whether by acceleration or otherwise, until paid. Both the
principal hereof and interest hereon are payable to the Lender in the manner and
pursuant to the instructions indicated on Schedule l to the Note Agreement as
hereinafter defined, or in such other manner or pursuant to such other
instructions as shall be designated in writing in accordance with the terms of
the Note Agreement, in currency of the United States of America which at the
time of payment shall be legal tender for the payment of public and private
debts.
This Note is issued pursuant to the terms and provisions of the Senior Note
Purchase Agreement, dated as of November __, 1992 (the "Note Agreement"),
entered into by the Borrower, IHOP Corp., a Delaware corporation of which the
Borrower is a wholly-owned Subsidiary ("Holdings"), and the Lender. Reference is
hereby made to the Note Agreement for a statement of such terms and provisions.
This Senior Note is guaranteed by (i) Holdings, as set forth in Section
16.14 of the Note Agreement and (ii) IHOP Realty Corp., a Delaware corporation
and a wholly-owned Subsidiary of the Borrower, pursuant to the Subsidiary
Guarantee of even date herewith.
This Note may be declared due prior to its maturity date and certain
prepayments may be made thereon, in the events, on the terms and conditions, and
in the amounts set forth in the Note Agreement.
This Note is not subject to prepayment or redemption at the option of the
Borrower prior to its maturity date except in the event, on the terms and
conditions, and in the amounts set forth in the Note Agreement.
This Note is registered on the books of the Borrower and is transferable
only by surrender thereof at the principal office of the Borrower at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, duly endorsed or accompanied
by a written instrument of transfer duly executed by the registered holder of
this Note or its attorney duly authorized in writing. Payment of or on account
of principal and interest on this Note shall be made only to or upon the order
in writing of the registered holder.
The Note Agreement and this Note shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York.
INTERNATIONAL HOUSE OF PANCAKES, INC.
By:
--------------------------------
Its
--------------------------------
-2-
EXHIBIT B
November 19, 1992
To the Purchasers set forth on
Schedule I attached hereto
Ladies and Gentlemen:
We have acted as your special counsel in connection with the
transactions contemplated by the several Senior Note Purchase Agreements, each
dated as of November 19, 1992 (the "Purchase Agreements"), by and between
International House of Pancakes, Inc., a Delaware corporation (the "Company"),
IHOP Corp., a Delaware corporation of which the Company is a wholly-owned
subsidiary ("Holdings") and each of you. Any term used herein without a
definition shall have the meaning assigned to such term in the Purchase
Agreements. In acting as your special counsel, we have participated in the
preparation and negotiation of the Purchase Agreements, the Notes and the
Subsidiary Guarantee.
In connection with this opinion, we have examined the following
documents:
1. The Purchase Agreements.
2. The Notes.
3. The Subsidiary Guarantee.
4. The Restated Certificate of Incorporation of the Company certified by
the Delaware Secretary of State on October 21, 1992.
5. The By-Laws of the Company certified by the Secretary of the Company as
of the date hereof.
6. Resolutions of the Board of Directors of the Company, certified by the
Secretary of the Company as of the date hereof.
7. Long Form of Certificate of Good Standing of the Company certified by
the Delaware Secretary of State on October 22, 1992.
To the Purchasers set forth on
Schedule I attached hereto
November 19, 1992
Page 2
8. Certificate of Incumbency for the officers of the Company certified by
the Secretary of the Company as of the date hereof.
9. The Restated Certificate of Incorporation of Holdings certified by the
Delaware Secretary of State on October 21, 1992.
10. The By-Laws of Holdings certified by the Secretary of Holdings as of
the date hereof.
11. Resolutions of the Board of Directors of Holdings, certified by the
Secretary of Holdings as of the date hereof.
12. Long Form of Certificate of Good Standing of Holdings certified by the
Delaware Secretary of State on October 22, 1992.
13. Certificate of Incumbency for the officers of Holdings certified by the
Secretary of Holdings as of the date hereof.
14. The Certificate of Incorporation of IHOP Realty Corp. (the
"Subsidiary") certified by the Delaware Secretary of State on October
21, 1992.
15. The By-Laws of the Subsidiary certified by the Secretary of the
Subsidiary as of the date hereof.
16. Resolutions of the Board of Directors of the Subsidiary, certified by
the Secretary of the Subsidiary as of the date hereof.
17. Long Form of Certificate of Good Standing of the Subsidiary certified
by the Delaware Secretary of State on October 22, 1992.
18. Certificate of Incumbency for the officers of the Subsidiary certified
by the Secretary of the Subsidiary as of the date hereof.
19. Legal opinion, dated November 19, 1992, from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ ("Skadden"), special counsel to the Company and
Holdings.
To the Purchasers set forth on
Schedule I attached hereto
November 19, 1992
Page 3
20. Legal opinion, dated November 19, 1992, from ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("▇▇▇"),
general counsel to the Company and Holdings.
We have also examined and relied upon the representations and warranties as
to factual matters contained in and made pursuant to the Purchase Agreements and
the Subsidiary Guarantee and have relied upon the originals or copies identified
to our satisfaction of such records, documents, certificates and other
instruments, and have made such other investigations as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below.
In giving our opinion set forth herein, we have assumed the legal capacity
of all natural persons, the genuineness of all signatures, the authenticity of
all documents examined by us, the conformity to original documents of all
documents submitted to us as copies, the due authorization, execution and
delivery of all documents and instruments by all parties thereto other than the
Company, Holdings and the Subsidiary, the accuracy of all representations and
warranties made by the Company, Holdings and you in the Purchase Agreements and
by the Subsidiary in the Subsidiary Guarantee and that the consideration to be
paid in connection with the transaction is adequate.
In addition, we attended the closing held today at our offices in New York,
New York at which delivery of the Notes and the other transactions contemplated
by the Purchase Agreements were effected, all in accordance with the Purchase
Agreements.
Based upon the foregoing and having regard to legal considerations that we
deem relevant, we render to you our opinion, as follows:
1. Based solely upon the opinions of Skadden and ▇▇▇ and on our review of
certificates of good standing issued by the Secretary of State of the State of
Delaware and certified copies of the charter documents and by-laws of the
Company, Holdings and the Subsidiary, each of the Company, Holdings and the
Subsidiary is a corporation validly existing and in good standing under the laws
of the State of Delaware, has all requisite corporate power and authority to (a)
own and operate its properties, (b) to conduct its business as now being
conducted, (c) to enter into, to the extent each is a party
To the Purchasers set forth on
Schedule I attached hereto
November 19, 1992
Page 4
thereto, the Purchase Agreements and the Subsidiary Guarantee, (d) to perform
its obligations under each of such documents to the extent each is a party
thereto and (e) in the case of the Company, to issue, sell and deliver the
Notes.
2. The Company has duly authorized by all requisite corporate action,
executed and delivered the Purchase Agreements and the Notes, and such
agreements and instruments constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms.
3. Holdings has duly authorized by all requisite corporate action, executed
and delivered the Purchase Agreements, and such agreements constitute the legal,
valid and binding obligations of Holdings, enforceable against Holdings in
accordance with their terms.
4. The Subsidiary has duly authorized by all requisite corporate action,
executed and delivered the Subsidiary Guarantee, and such guarantee constitutes
the legal, valid and binding obligation of the Subsidiary, enforceable against
the Subsidiary in accordance with its terms.
5. Under existing circumstances, the execution and delivery by the Company
and Holdings of the Purchase Agreements, the issue, sale, execution and delivery
by the Company of the Notes, the execution and delivery by the Subsidiary of the
Subsidiary Guarantee and the performance by the Company, Holdings and the
Subsidiary of their respective obligations under such documents and instruments,
do not, as of the date hereof, contravene any provisions of their respective
charters or by-laws.
6. Assuming, with your permission, that (a) you are purchasing the Notes
for your own account for investment, and not with a view to the public resale or
distribution thereof, (b) the Notes were offered and sold in the manner
described in the letter of Continental Bank N.A. dated October 19, 1992 and
furnished to you, (c) the representations and warranties of the Purchasers in
Sections 5.2 and 5.4 of the Purchase Agreements and the representations and
warranties of the Company and Holdings in Section 4.14 of the Purchase
Agreements are true and correct, and (d) none of Holdings, the Company or anyone
acting on their behalf has offered or sold or will offer or sell any of the
Company's or Holdings' securities, or has solicited or will solicit any offer to
acquire any of the Company's or Holdings' securities from the Company or
Holdings,
To the Purchasers set forth on
Schedule I attached hereto
November 19, 1992
Page 5
if the sale of any such securities and the sale of the Notes would be integrated
as a single offering for purposes of the Securities Act, the offering, issuance,
sale and delivery of the Notes under the circumstances contemplated by the
Purchase Agreements constitute exempt transactions under the registration
provisions of the Securities Act of 1933, as now in effect; and no qualification
of an Indenture with respect to the Notes under the Trust Indenture Act of 1939,
as now in effect, is required in connection therewith.
The opinions expressed above as to the enforceability of any agreement are
subject to the exceptions that such enforceability may be limited by the
application of general principles of equity and by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally.
We express no opinion as to the enforceability of the indemnification
provisions contained in Section 16.9 of the Purchase Agreements.
The opinions of Skadden and ▇▇▇, dated the date hereof and delivered to you
pursuant to Section 6.3 of the Purchase Agreements, are satisfactory to us in
form and scope with respect to the matters specified therein, and we believe
that you are justified in relying thereon.
We express no opinion as to the laws of any jurisdiction other than the
State of New York, the Federal laws of the United States of America and the
General Corporation Law of the State of Delaware.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
SCHEDULE I
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
Modern Woodmen of America
EXHIBIT C
(Opinion of counsel of Holdings, the Borrower
and IHOP Realty addressed to each of the
Purchasers and ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇)
1. Holdings, the Borrower and each of their Subsidiaries are corporations
duly incorporated, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, and each has the requisite corporate
power and authority to own, lease and operate its respective Properties and to
carry on its respective businesses as presently owned and conducted, and each is
duly qualified and in good standing in the jurisdictions in which the character
of the Properties owned or leased by it or the nature of the business transacted
by it makes such qualification necessary.
2. The Purchase Agreements, the Notes and the Subsidiary Guarantee have
been duly authorized, executed and delivered by Holdings, the Borrower and IHOP
Realty, to the extent each is party thereto and such documents constitute the
legal, valid and binding agreements of Holdings, the Borrower and IHOP Realty,
to the extent each is a party thereto, enforceable against Holdings, the
Borrower and IHOP Realty, to the extent each is a party thereto, in accordance
with their terms.
3. The issuance and sale of the Notes, the execution and delivery of, and
performance by Holdings and the Borrower of their respective contractually
required obligations and undertakings under, the Purchase Agreements and the
execution and delivery of, and performance by IHOP Realty of its contractually
required obligations and undertakings under, the Subsidiary Guarantee, do not
conflict with or result in any breach of any provision of, constitute a default
under, or result in the creation or imposition of any Lien upon any of the
respective Properties of Holdings, the Borrower or IHOP Realty or any of their
Subsidiaries pursuant to the provisions of the charter documents of any of them,
or any agreement, order, decree, indenture, judgment or other instrument or
document to which any of them is a party or by which any of them or their
respective Properties may be bound.
4. There are no proceedings pending or threatened against Holdings, the
Borrower or any of their Subsidiaries in any court or before any Governmental
Body or arbitration board or tribunal which could materially and adversely
affect the Properties, business, profits or condition (financial or otherwise)
of Holdings, the Borrower or any of their Subsidiaries or the ability of
Holdings or the Borrower to perform their respective obligations under the
Purchase
Agreements or the Notes or the ability of IHOP Realty to perform its obligations
under the Subsidiary Guarantee.
5. The issuance, sale and delivery of the Notes and the Subsidiary Guarantee
under the circumstances contemplated by the Purchase Agreements constitute an
exempt transaction under the registration provisions of the Securities Act of
1933, as amended, and do not under existing law require the registration of the
Notes or the Subsidiary Guarantee under the Securities Act of 1933, as amended,
or the qualification of an indenture in respect thereof under the Trust
Indenture Act of 1939, as amended.
6. Assuming that the proceeds of the issuance and sale of the Notes are
utilized as set forth in Section 4.26 of the Purchase Agreements, neither the
issuance of the Notes nor the use of the proceeds from the sale thereof will
violate or result in a violation of Section 7 of the Securities Exchange Act of
1934, as amended, or any regulations issued pursuant thereto, including, without
limitation, Regulations G, T and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R., Chapter II.
7. No consent, approval, authorization, or order of, or other action by or
filing with, any Governmental Body is required in connection with the execution,
delivery or performance of the Purchase Agreements or the Subsidiary Guarantee,
the issuance of the Notes or compliance by Holdings, the Borrower and IHOP
Realty, to the extent each is a party thereto with the terms and provisions
thereof.
8. None of Holdings, the Borrower nor any of their Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any franchising arrangement, material
lease, agreement, indenture or loan document to which it is a party, and no
condition exists which, with the giving of notice or the lapse of time or both,
would constitute such a default.
9. None of Holdings, the Borrower nor any of their Subsidiaries is, nor are
any of them directly or indirectly controlled by or acting on behalf of any
Person which is, an "investment company" within the meaning of the Investment
Company Act of 1940, and none of Holdings, the Borrower nor any of their
Subsidiaries is subject to any law, statute, rule or regulation limiting its
ability to incur indebtedness for money borrowed.
-2-
10. All of the shares of issued and outstanding capital stock of the
Borrower are owned of record and, to our knowledge, beneficially, by Holdings
and all of the shares of issued and outstanding capital stock of IHOP Realty are
owned of record and, to our knowledge, beneficially, by the Borrower, in each
case free and clear of Liens.
-3-
EXHIBIT D
SUBSIDIARY GUARANTEE
IHOP REALTY CORP.
FOR VALUE RECEIVED and in consideration of the purchase by the Purchasers
(as hereinafter defined) of those certain 7.79% Senior Notes Due 2002 (the
"Notes") of International House of Pancakes, Inc., a Delaware corporation
(herein called, together with its successors and assigns, the "Borrower"),
pursuant to the several senior Note Purchase Agreements, each dated as of
November 19, 1992, by and among the several purchasers named in Schedule I
thereto (the "Purchasers"), IHOP Corp., a Delaware corporation ("Holdings"), and
the Borrower, which is the wholly-owned subsidiary of Holdings (the "Purchase
Agreements"), the undersigned (the "Guarantor"), a wholly-owned Subsidiary of
the Borrower, unconditionally guarantees (a) the full and prompt payment, when
due, whether at maturity or earlier by reason of acceleration or otherwise, and
at all times thereafter of all obligations of the Borrower with respect to
payment of the principal of, prepayment charges (if any), and interest on the
Notes (including interest on any overdue principal and prepayment charges, if
any, and, to the extent permitted by law, on any overdue interest), and all
other amounts due, and (b) the prompt and faithful performance, discharge and
observance of all other obligations, covenants, agreements, conditions,
representations, warranties, indemnities and liabilities of the Borrower and
Holdings to be performed, discharged or observed by the Borrower and Holdings,
under or pursuant to the Purchase Agreements and all agreements, instruments and
documents executed or delivered in connection therewith or pursuant thereto (all
such obligations of the Borrower and Holdings guaranteed by the Guarantor herein
being hereinafter called the "Obligations"). In the event the Borrower or
Holdings defaults in the payment or performance, when due, of any of the
Obligations (whether at their stated maturity, by acceleration, or otherwise),
the Guarantor shall pay to the unpaid holders of the Notes ("Holders"), on
demand, the full amount of such Obligations in immediately available funds at
the place provided in the applicable Purchase Agreements or shall, on demand,
fully perform such Obligations. The Guarantor further agrees to pay (a) all
costs and expenses including, without limitation, all court costs and reasonable
attorneys' fees and expenses paid or incurred by each of the Holders in
endeavoring to collect all or any part of the Obligations from, or in
prosecuting any action against, Holdings, the Borrower, the Guarantor, or any
other guarantor of all or any part of the Obligations, and (b) to the extent
permitted by law, interest on the Obligations and such costs and expenses at the
applicable per annum rate set forth in the
Purchase Agreements. Unless otherwise defined herein, the capitalized terms
used herein which are defined in the Purchase Agreements shall have the meanings
specified therein.
The Guarantor hereby represents and warrants that:
(a) The Guarantor has full power, authority and legal right to execute
this Guarantee.
(b) This Guarantee has been duly authorized, executed and delivered by
the Guarantor and constitutes a legal, valid and binding obligation of the
Guarantor enforceable in accordance with its terms.
(c) No consent, approval or authorization of or filing with any
Governmental Body or other Person on the part of the Guarantor is required in
connection with this Guarantee.
(d) The execution, delivery and performance of this Guarantee will not
violate any provision of any applicable law or regulation or of any order,
judgment, writ, award or decree of any court, arbitrator or Governmental Body,
domestic or foreign, or of the charter or by-laws of the Guarantor or of any
securities issued by the Guarantor or of any mortgage, indenture, lease,
contract, or loan agreement to which the Guarantor is a party, or any other
agreement, instrument or undertaking to which the Guarantor is a party or which
purports to be binding upon the Guarantor or upon any of its assets, and will
not result in the creation or imposition of any Lien on any of the assets of the
Guarantor except as contemplated by this Guarantee.
The Guarantor hereby waives notice of acceptance of this Guarantee by any
Holder, of any action taken or omitted in reliance hereon or of any default in
the payment of any of the Obligations or in the performance of any covenants and
agreements of the Borrower contained in the Purchase Agreements or the Notes,
and any diligence, presentment, demand, protest, dishonor or notice of any kind.
This Guarantee constitutes a present and continuing Guarantee of payment and
performance and not of collectability of the Obligations, and shall be absolute,
primary, present and unconditional, and to the extent permitted by applicable
law, shall not be subject to any counterclaim, setoff, reduction or defense
based upon any claim the Guarantor may have against the Borrower, or any other
Person, and shall remain in full force and effect without regard to, and shall
not be released, discharged or in any way affected or impaired by any thing,
event, happening, matter, circumstance or condition whatsoever (whether or not
the Guarantor shall have any knowledge or notice thereof or shall consent
thereto), including, without limitation:
-2-
(i) any amendment or other modification of or supplement to any
provision of the Purchase Agreements, any other agreements or documents executed
or delivered in connection therewith or pursuant thereto or any of the Notes or
any assignment or transfer thereof, including without limitation any renewal or
extension of the terms of payment of any of the Notes or the granting of time in
respect of any payment thereof, or any furnishing or acceptance of security or
any release of any security furnished or accepted for any of the Notes or in
respect the obligations of the Guarantor hereunder;
(ii) any waiver, consent, extension, granting of time, forbearance,
indulgence or other action or inaction under or in respect of this Guarantee or
any of the Notes or any exercise or nonexercise of any right, remedy or power in
respect hereof or thereof;
(iii) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceedings with respect to
the Guarantor, the Borrower or any other Person, or the properties or creditors
of any of them;
(iv) the occurrence of any Default or Event of Default, or any
invalidity or unenforceability of, or any misrepresentation, irregularity or
other defect in, the Purchase Agreements, any other agreement or document
executed or delivered in connection therewith or pursuant thereto, any of the
Notes or any other agreement;
(v) any transfer of any assets to or from the Guarantor, Holdings or
the Borrower, including without limitation any transfer or purported transfer to
the Guarantor, Holdings or the Borrower from any Person, any invalidity,
illegality of, or inability to enforce, any such transfer or purported transfer,
any consolidation or merger of the Guarantor, Holdings or the Borrower with or
into any other corporation or entity, or any change whatsoever in the objects,
capital structure, constitution or business of the Guarantor, Holdings or the
Borrower or any Affiliate or Subsidiary of the Guarantor, Holdings or of the
Borrower;
(vi) any failure on the part of the Borrower or any other Person to
perform or comply with any term of the Notes, the Purchase Agreements, or
any other agreement;
(vii) any suit or other action brought by the Guarantor, Holdings, the
Borrower or any other Person, or
-3-
by any stockholder or creditor of any of such Persons, for any reason
whatsoever, including without limitation any suit or action in any way attacking
or involving any issue, matter or thing in respect of the Notes, the Purchase
Agreements or any other agreement;
(viii) any lack or limitation of status or power, incapacity or
disability of the Guarantor, Holdings or the Borrower or of any officer,
director or agent of the Guarantor, Holdings or the Borrower or any of their
respective stockholders;
(ix) the cessation from any cause whatsoever (other than payment of
the Obligations) of liability of the Borrower;
(x) the termination of, or release or compromise of the Purchase
Agreements, any other agreement or document executed or delivered in connection
therewith or pursuant thereto, any of the Notes or any other agreement,
including, without limitation, the Guarantee of Holdings set forth in Section
16.14 of the Purchase Agreements (other than as a result of payment of the
Obligations);
(xi) any lack or limitation of the genuineness, validity, regularity
or enforceability of the Notes, the Purchase Agreements, any other agreement or
document executed or delivered in connection therewith or pursuant thereto, or
any other agreement;
(xii) any failure by any of the Holders to take any steps to perfect
or maintain their security interest (if any) in or Liens (if any) upon, or to
preserve their rights to, any security or collateral for the Obligations;
(xiii) any election by any of the Holders, in any proceeding
instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C.(S)
101 et seq.) (the "Bankruptcy Code"), of the application of Section 1111(b)(2)
-- ---
of the Bankruptcy Code;
(xiv) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of any of the Holders' claims for repayment of the
Obligations; or
(xv) any other thing, event, happening, matter, circumstance or
condition whatsoever, not in any way limited to the foregoing, which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
The liability of the undersigned Guarantor under this Guarantee shall not
exceed at any time the greater of (i) 95% of the Adjusted Net Assets (as
hereinafter defined) of the
-4-
Guarantor at the time of delivery hereof and (ii) 95% of the Adjusted Net Assets
of the Guarantor at the time of any payment hereunder. As used herein, the term
"Adjusted Net Assets" means at any time the lesser of (x) the amount by which
the fair market value of the assets of the Guarantor exceeds the total amount of
liabilities (including, without limitation, contingent liabilities, but
excluding liabilities under this Guarantee) of the Guarantor at such time, and
(y) the amount by which the present fair market value of the assets of the
Guarantor at such time exceeds the amount that will be required to pay the
probable liability of the Guarantor on its debts (excluding debt in respect of
this Guarantee), as they become absolute and matured. Contingent liabilities of
the Guarantor (including, without limitation, liabilities in respect of
guarantees, pension and other employee benefit plans and pending or threatened
litigation and claims), shall be valued at amounts which, in light of all the
facts and circumstances existing at the time, represent amounts which can
reasonably be expected to become actual or matured liabilities.
Notwithstanding anything to the contrary contained herein or in any other
agreement, document or instrument, the Guarantor hereby irrevocably waives all
rights of subrogation (whether such rights arise under common law, contract or
Federal law, including, without limitation, Section 509 of the Bankruptcy Code)
to the claims of the Holders against the Borrower, and waives all contractual,
statutory and common law rights of contribution, reimbursement, indemnification
and similar rights and claims (as such term is defined in the Bankruptcy Code)
against the Borrower which may arise in connection with, or as a result of, this
Guarantee.
The Guarantor expressly waives any and all benefits under California Civil
Code Sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433 and
California Code of Civil Procedure Sections 580(a), 580(b), 580(d) and 726.
The Guarantor expressly waives any right it may have to require any Person
seeking enforcement of its obligations hereunder to (a) proceed against the
Borrower, Holdings or any other Person, (b) proceed against or exhaust any
security, or (c) pursue any other remedy in the power of the Person seeking such
enforcement, including without limitation, its remedies pursuant to the
Holdings' Guarantee set forth in Section 16.14 of the Purchase Agreements. The
Holders from time to time may, at their election, exercise any right or remedy
they may have against the Guarantor, including, without limitation, the right to
foreclose upon any such security by judicial or non-judicial sale, without
affecting or limiting in any way the liability of the Guarantor hereunder,
except to the extent the Obligations
-5-
have been paid. The Guarantor waives any defense arising out of the absence,
impairment or loss of any right of reimbursement, contribution or subrogation or
any other right or remedy of the Guarantor against the Borrower, Holdings or any
such security, whether resulting from such election by the Holders of the Notes
or otherwise.
The Guarantor agrees that its obligations hereunder shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of the Borrower, Holdings or the Guarantor is rescinded or must be otherwise
restored by any Holder of any Notes, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise. The Guarantor further agrees that,
without limiting the generality of the foregoing, if an Event of Default shall
have occurred and be continuing and the Holder is prevented by applicable law
from exercising any remedy under this Guarantee or under any of the Notes, such
Holder shall be entitled to receive from the Guarantor upon demand therefor, the
sums which would otherwise have been due from the Borrower had such remedies
been exercised.
The Guarantor agrees that this Guarantee shall continue in full force and
effect and may not be terminated or otherwise revoked by the Guarantor until the
Obligations shall have been fully discharged.
This Guarantee shall be binding upon the Guarantor and upon the successors
and assigns of the Guarantor and shall inure to the benefit of each of the
Purchasers and each other Holder and their respective successors and assigns;
all references herein to the Borrower, Holdings and to the Guarantor shall be
deemed to include their respective successors and assigns, including, without
limitation, a receiver, trustee or debtor-in-possession of or for the Borrower,
Holdings or the Guarantor. All references to the singular shall be deemed to
include the plural where the context so requires.
THIS GUARANTEE SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PRINCIPLES OF SUCH STATE).
THE GUARANTOR CONSENTS AND AGREES TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND WAIVES
ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION
----- --- ----------
INSTITUTED THEREIN, AND AGREES THAT ANY DISPUTE CONCERNING THE RELATIONSHIP
BETWEEN ANY PURCHASER OR HOLDER OF NOTES, ON THE ONE HAND, AND THE GUARANTOR. ON
THE OTHER HAND, OR THE CONDUCT OF ANY PARTY IN CONNECTION WITH THIS GUARANTEE OR
OTHERWISE SHALL BE HEARD ONLY IN THE COURTS DESCRIBED ABOVE.
-6-
THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT
AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY HAND DELIVERY OR
MAIL TO THE GUARANTOR AT ITS ADDRESS SET FORTH BELOW. THE GUARANTOR HEREBY
CONSENTS TO SERVICE OF PROCESS AS AFORESAID.
NOTHING IN THIS GUARANTEE SHALL AFFECT THE RIGHT OF ANY PURCHASER OR HOLDER
OF NOTES TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
THE RIGHT OF ANY PURCHASER OR HOLDER OF NOTES TO BRING ANY ACTION OR PROCEEDING
AGAINST THE GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
Wherever possible each provision of this Guarantee shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Guarantee shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Guarantee.
THE GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTEE OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE GUARANTOR IN RESPECT TO THIS GUARANTEE OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. THE GUARANTOR HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS GUARANTEE WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE GUARANTOR TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
-7-
IN WITNESS WHEREOF, this Guarantee has been duly executed by the Guarantor
as of the __ day of November, 1992.
IHOP REALTY CORP.
By:
-------------------------
Title:
Address:
--------------------
----------------------------
----------------------------
-8-
EXHIBIT E
LEASE
-----
between
IHOP REALTY CORP.,
a Delaware corporation,
Lessor
and
INTERNATIONAL HOUSE OF PANCAKES, INC.,
a Delaware corporation,
Lessee
______________, 1992
LEASE
-----
between
IHOP REALTY CORP.,
a Delaware corporation, Lessor,
and
INTERNATIONAL HOUSE OF PANCAKES, INC.,
a Delaware corporation, Lessee
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I - DEMISED PREMISES; TERM...................................... l
1.1 Demised Premises.............................................. l
1.2 Term.......................................................... l
1.3 Options to Extend Term........................................ l
1.4 Short Form of Lease........................................... l
ARTICLE II - RENT....................................................... l
2.1 Minimum Monthly Rental........................................ l
2.2 Percentage Rent............................................... 2
2.3 Statements of Gross Sales..................................... 2
2.4 "Gross Sales" Defined......................................... 2
2.5 Verification of Gross Sales; Audit............................ 2
ARTICLE III - TAXES AND ASSESSMENTS..................................... 6
3.1 Taxes and Assessments......................................... 6
3.2 Installment Payments ........................................ 8
3.3 Personal Property Taxes....................................... 8
3.4 Proration..................................................... 8
3.5 Contest....................................................... 8
ARTICLE IV - CONSTRUCTION OF IMPROVEMENTS; REPAIR AND MAINTENANCE;
ALTERATIONS AND IMPROVEMENTS............................... 9
4.1 Construction of Improvements.................................. 9
4.2 Repair and Maintenance........................................ 9
4.3 Alterations and Improvements.................................. 9
ARTICLE V - LIENS....................................................... 10
5.1 Discharge of Liens; Contest................................... 10
ARTICLE VI - USE OF PREMISES............................................ 11
6.1 Permitted Use................................................. 11
ARTICLE VII - LIABILITY INSURANCE....................................... 11
7.1 Lessee's Insurance............................................ 11
ARTICLE VIII - BANKRUPTCY............................................... 12
8.1 Continuation of Lease......................................... 12
ARTICLE IX - ASSIGNMENT AND SUBLETTING.................................. 12
9.1 Assignment.................................................... 12
9.2 Subletting.................................................... 13
ARTICLE X - REMEDIES IN THE EVENT OF DEFAULT............................ 13
10.1 Remedies...................................................... 13
ARTICLE XI - PROPERTY INSURANCE......................................... 16
11.1 Lessee to Obtain "All Risk" Insurance......................... 16
11.2 Blanket Policy................................................ 16
ARTICLE XII - DAMAGE AND DESTRUCTION.................................... 17
12.1 Abatement of Rent............................................. 17
12.2 Restoration of Improvements - Insured Loss.................... 17
12.3 Restoration of Improvements - Uninsured Loss.................. 17
12.4 Extension of Lease............................................ 18
-i-
Table of Contents (continued)
-----------------------------
Page
----
ARTICLE XIII - CONDEMNATION............................................. 19
13.1 Complete Taking............................................ 19
13.2 Partial Taking............................................. 19
13.3 Allocation of Condemnation Award........................... 19
13.4 Rent Reduction in Case of Partial Taking................... 20
ARTICLE XIV - QUIET ENJOYMENT AND TITLE................................. 20
14.1 Covenant of Quiet Enjoyment................................ 20
14.2 Right to Possession........................................ 21
14.3 Superior Encumbrances...................................... 21
14.4 Ownership; Authority; Restrictions......................... 21
ARTICLE XV - TRADE FIXTURES............................................. 22
15.1 Ownership; Removal......................................... 22
ARTICLE XVI - SUBORDINATION............................................. 23
16.1 Subordination.............................................. 23
ARTICLE XVII - RIGHT OF FIRST REFUSAL................................... 24
17.1 Purchase................................................... 24
17.2 Lease...................................................... 24
17.3 Incorporation in Short Form of Lease....................... 25
ARTICLE XVIII - REMOVAL OF DISTINCTIVE FEATURES......................... 25
18.1 Removal; Repairs........................................... 25
ARTICLE XIX - PROHIBITION AGAINST COMPETITION AND
PROTECTION FOR EXPOSURE................................... 26
19.1 Lessor's Covenant.......................................... 26
19.2 Lessee's Remedies for Breach............................... 26
19.3 Incorporation in Short Form of Lease ...................... 27
ARTICLE XX - TITLE CONSIDERATIONS....................................... 27
20.1 CC&Rs; Lender's Lien....................................... 27
ARTICLE XXI - HAZARDOUS SUBSTANCE OR WASTE.............................. 29
21.1 Mutual Indemnity........................................... 29
ARTICLE XXII - REAL ESTATE COMMISSIONS.................................. 30
22.1 Payment; Mutual Indemnity.................................. 30
ARTICLE XXIII - NOTICES AND DEMANDS.................................... 31
23.1 To Lessor.................................................. 31
23.2 To Lessee.................................................. 31
ARTICLE XXIV - ATTORNEYS' FEES.......................................... 31
24.1 Paid to Prevailing Party................................... 31
ARTICLE XXV - GENERAL PROVISIONS........................................ 32
25.1 Binding on Successors...................................... 32
25.2 Severability............................................... 32
25.3 Entire Agreement........................................... 32
25.4 Captions................................................... 32
25.5 Gender and Number.......................................... 33
25.6 Approvals.................................................. 33
25.7 No Waiver.................................................. 33
25.8 Holdover................................................... 33
25.9 Time of Essence............................................ 33
25.10 Governing Law.............................................. 33
25.11 Counterparts............................................... 33
25.12 No Third Party Rights...................................... 33
25.13 Unexecuted Lease........................................... 34
25.14 Lessor's Right of Entry.................................... 34
25.15 Estoppel Certificates...................................... 34
25.16 Due Authorization.......................................... 34
25.17 Relationship of Parties.................................... 35
-ii-
E X H I B I T S
---------------
Exhibit "A" - Legal Description
Exhibit "B" - Permitted Exceptions
-iii-
L E A S E
---------
AGREEMENT OF LEASE, made this __ day of _______, 1992, by and between
IHOP REALTY CORP., a Delaware corporation, having its principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter called "Lessor"), and INTERNATIONAL HOUSE OF
PANCAKES, INC., a Delaware corporation, having its principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter called "Lessee").
W I T N E S S E T H:
ARTICLE I
DEMISED PREMISES; TERM
1.1 Demised Premises. For and in consideration of the rents, taxes,
----------------
insurance and other charges and expenses to be paid by Lessee, and in
consideration of the performance by Lessee of the covenants herein set
forth, Lessor does hereby grant, demise and lease to Lessee all that
certain real property consisting of approximately _____________________
(________) square feet of land, together with the Improvements (as defined
in Article 4.1 (hereinbelow) constructed thereon and the rights appurtenant
thereto, located and situate in the City of _________, County of ________,
State of ____________, and more particularly described in Exhibit A
attached hereto and, by this reference, incorporated herein (hereinafter
referred to as the "Demised Premises").
1.2 Term. The term of this Lease shall commence on the date of the first
----
payment of rent pursuant to Article 2.1 hereinbelow and shall terminate
twenty-five (25) years thereafter.
1.3 Options to Extend Term. Provided it shall not then be in default
----------------------
under this Lease (beyond any applicable cure period) , Lessee shall have
the option to extend said term for an additional period of five (5) years
by giving notice to Lessor of its intention to exercise said option at
least ninety (90) days prior to the expiration of the original term.
Provided it shall not then be in default under this Lease (beyond any
applicable cure period), Lessee shall have the option to extend said term
for an additional period of five (5) years (less one day) by giving notice
to Lessor of its intention to exercise that option at least ninety (90)
days prior to the expiration of the first extended term. All of the terms
and conditions of this Lease shall apply during each of the aforedescribed
extended terms, except those pertaining to the initial construction of the
Improvements (as defined in Article 4.1 hereinbelow) and expired options to
extend the term of this lease.
1.4 Short Form of Lease. Upon the commencement date of the TERM hereof in
-------------------
accordance with Article 1.2 hereinabove, the parties AGREE to execute and
record a short form of this Lease, which shall incorporate the provisions
of Articles XVII and XIX hereinbelow. In no event shall the parties record
a long form lease.
ARTICLE II
RENT
2.1 Minimum Monthly Rental. Lessee agrees to pay to Lessor during the
----------------------
full term hereof a minimum monthly rental of _________
__________________________________ Dollars ($_________) (hereinafter
referred to as the "Minimum Monthly Rental"), payable in advance on the
first day of each calendar month. Said Minimum Monthly Rental shall
commence thirty (30) days after the date of
completion of the Improvements (as defined in Article 4.1 herein-below) to
be erected on the Demised Premises or when Lessee opens for business,
whichever date is earlier. If the first day upon which rent becomes
payable is other than the first day of any calendar month, the rent for the
balance of said month shall be payable by Lessee at a daily rate based upon
the Minimum Monthly Rental.
2.2 Percentage Rent. In addition to the Minimum Monthly Rental agreed to
---------------
be paid by Lessee, Lessee shall pay to Lessor, at the time and in the
manner specified in this Lease, an additional rental in an amount
(hereinafter referred to as "Percentage Rent") equal to five percent (5%)
of the amount of Lessee's gross sales made in, upon or from the business on
the Demised Premises during each calendar year of the term hereof, less (a)
the aggregate amount of the Minimum Monthly Rental previously paid by
Lessee for said calendar year, (b) all real property taxes and general and
special assessments levied against the Demised Premises as provided in
Article 3.1 hereinbelow and paid by Lessee or accrued, (c) all expenses for
exterior maintenance and upkeep of the building and adjacent walkways and
landscape areas, (d) all premiums for insurance required hereby, and (e)
all similar costs and expenses, if any, arising under the terms of the
CC&Rs (as defined in Article 20.1 hereinbelow). If the amount of any such
deductions in any year exceeds the amount of Percentage Rent payable for
said year, then such excess shall be carried forward and applied to reduce
the amount of Percentage Rent payable in any succeeding year or portion
thereof should this Lease terminate prior to the expiration of a full year.
The term "exterior maintenance and upkeep" is not to be construed to
include any janitorial or regular maintenance service which is to be
provided by Lessee or its assignee without deduction or offset, but rather
is intended to include repairs and maintenance for wear and tear. The
Percentage Rent shall be paid quarterly (as herein provided) based upon
gross sales during such quarterly period. In the event the quarterly
payments of Percentage Rent do not in the aggregate equal the Percentage
Rent when calculated on an annual basis, then, in such event, an adjustment
shall be made within forty-five (45) days after the end of each year of the
term hereof, and the party owing money shall promptly pay the amount owed
to the other party. Percentage Rent shall be paid quarterly on the twenty-
fifth (25th) day of the month immediately following the quarterly period in
which the gross sales are made. Notwithstanding expiration or sooner
termination of this Lease, Lessee shall pay to Lessor the Percentage Rent
on the twenty-fifth (25th) day of the month immediately following
expiration or sooner termination for the last quarterly period of the term
of this Lease or fraction thereof. For the purposes of computing
Percentage Rent for the first and last quarterly periods of the term or
extended term of this Lease, if either is less than a full calendar
quarter, the prorated Minimum Monthly Rental and other expenses enumerated
above for such fractional period shall be deducted from the percentage of
sales realized during such fractional period.
2.3 Statements of Gross Sales. Together with the quarterly Percentage
-------------------------
Rent, Lessee shall furnish to Lessor a statement in writing, certified by
Lessee to be correct, showing the total gross sales made in, upon or from
said restaurant during the said calendar quarter or portion thereof.
2.4 "Gross Sales" Defined. The term "gross sales" as used herein shall
---------------------
include the entire receipts of each kind and nature from sales and services
made in, upon or from the said restaurant, whether upon credit or for cash,
whether operated by Lessee or by a sublessee or sublessees, or by a
concessionaire or concessionaires, excepting therefrom any rebates and/or
refunds to customers, and the amount of all sales tax or similar tax
receipts which have to be accounted for by Lessee or by any sublessee or
concessionaire to any government or governmental agency. Sales upon credit
shall be deemed cash sales and shall be included in the gross sales for the
period during which the merchandise is delivered to the customer, whether
or not
-2-
title to the merchandise passes with delivery. The term "gross sales"
shall not include sales from coin operated vending machines.
2.5 Verification of Gross Sales: Audit. Lessee shall keep full, complete
----------------------------------
and proper books, records and accounts of its daily gross sales, both for
cash and on credit, of each separate department and concession at any time
operated in the Demised Premises. Lessor and its agents and employees,
upon reasonable notice, shall have the right at any and all times, during
regular business hours, to examine and inspect all of the books and records
of Lessee (including any sales tax reports) pertaining to the business of
Lessee conducted in, upon or from the Demised Premises, which Lessee shall
produce upon demand by Lessor or Lessor's agents for the purpose of
investigating and verifying the accuracy of any statement of gross sales.
Lessor may once in any lease year cause an audit of the gross sales of
Lessee to be made by an independent certified accountant of Lessor's
selection, and if the statement of gross sales previously made to Lessor by
Lessee shall be found to be understated by more than five percent (5%),
Lessee shall immediately pay to Lessor the cost of such audit, not to
exceed Five Hundred Dollars ($500), as well as the additional rental shown
to be payable by Lessee to Lessor; otherwise the cost of such audit shall
be paid by Lessor. If the statement of gross sales previously made to
Lessor by Lessee shall otherwise be found to be incorrect, then the party
found to be owing money shall promptly pay over such sums to the other
party. It is understood and agreed that the Percentage Rent provisions
apply only to sales made in, upon or from the business to be operated upon
the Demised Premises and do not apply to sales of any other business.
ARTICLE III
TAXES AND ASSESSMENTS
3.1 Taxes and Assessments. Lessee shall pay, as additional rent, all real
---------------------
estate taxes and assessments (or installments thereof) coming due during
the term hereof under any general or special assessments created or imposed
during the term hereof, sewer rent and water charges, gas power, electric
current and all other taxes and charges in the same or similar categories
(sometimes hereinafter referred to collectively as "impositions" and
individually as "imposition") levied or imposed upon the Demised Premises
or Improvements (as defined in Article 4.1 hereinbelow), or arising from
the use and occupancy or possession of the Demised Premises or the
Improvements (as defined in Article 4.1 hereinbelow), it being the
intention of the parties that the Minimum Monthly Rental to be received by
Lessor shall be a net rental to Lessor and not subject to any deductions
whatsoever arising from the use and occupancy of the Demised Premises by
Lessee. Lessee shall pay such additional rent directly to the taxing
authorities, utility companies or other entities to whom such charges may
be payable, and shall, upon written request therefor, furnish to Lessor
reasonably satisfactory evidence of the payment of the same. In the event
that Lessee fails to make any such payment within the period (or grace
period) provided for the payment thereof, Lessor may, at its option, pay
the same, and Lessee shall immediately reimburse Lessor therefor.
3.2 Installment Payments. If any assessment is payable at the option of a
--------------------
taxpayer in installments, Lessee may pay it in equal annual installments as
they respectively become due; provided, however, that in no event shall
Lessee be required to reimburse Lessor for any installments attributable to
any period after the expiration of the term of this Lease.
3.3 Personal Property Taxes. Lessee shall also pay all personal property
-----------------------
tax levied upon the personal property on the Demised Premises during the
term of this Lease.
3.4 Proration. All of the above impositions (except utility or other
---------
charges attributable solely to Lessee's use) for the first
-3-
year of the term hereof shall be prorated between the parties as of the
commencement date hereof, and during the last year of the term hereof,
shall be prorated as of the termination date.
3.5 Contest. Lessee, at its own expense, may contest any impositions in
-------
any manner permitted by law, in Lessee's name, and, whenever necessary, in
Lessor's name. Lessor will cooperate with Lessee and execute any documents
or pleadings required for such purpose. Such contest may include appeals
from any judgment(s), decree(s) or order(s) until a final determination is
made by a court or governmental department or authority having final
jurisdiction in the matter. Before commencing any such contest, Lessee
shall obtain a surety bond sufficient to cover the amount of the possible
imposition which would be due if the decision were adverse to Lessee.
ARTICLE IV
CONSTRUCTION OF IMPROVEMENTS; REPAIR AND MAINTENANCE;
ALTERATIONS AND IMPROVEMENTS
4.1 Construction of Improvements. Lessor has heretofore constructed upon
----------------------------
the Demised Premises, at Lessor's sole cost and expense, an air conditioned
restaurant together with a paved parking lot and a free-standing sign in
accordance with plans and specifications, as approved by all governmental
agencies having jurisdiction therefor, the master plans for which have been
heretofore approved by the parties hereto (hereinafter referred to as the
"Improvements").
4.2 Repair and Maintenance. Lessee agrees that during the term hereof it
----------------------
will make, at its own expense, all necessary repairs to the Improvements
upon the Demised Premises, including all parking areas and sidewalks, and
that it will keep the Demised Premises and the Improvements thereon in good
condition and repair throughout the entire term of this Lease.
4.3 Alterations and Improvements. Lessee shall have the right at any
----------------------------
time and from time to time during the term of this Lease, at its own
expense, to make changes or alterations, structural or otherwise, to the
Improvements on the Demised Premises and to erect, construct or install
upon the Demised Premises buildings and improvements in addition to or in
substitution for those now or hereafter located thereon, and to demolish
and remove the Improvements or any other structures hereafter located on
the Demised Premises for the purposes of replacing the same; provided,
however, that the fair market value of all improvements on the Demised
Premises following each such change, alteration, construction or
installation shall be at least equal to the fair market value of all
improvements on the Demised Premises immediately prior to such change,
alteration, construction or improvement. Lessee shall make no structural
changes or alterations at any given time of a cost in excess of Ten
Thousand Dollars ($10,000) without first having secured the consent of
Lessor, which consent shall not be unreasonably delayed or withheld.
ARTICLE V
LIENS
5.1 Discharge of Liens; Contest. Except as hereinafter provided, Lessor
---------------------------
reserves the fee in the Demised Premises and specifically does not consent
by virtue of this Lease that said fee or the remainder interest of Lessor
in the Demised Premises shall be subject to any lien for labor or materials
furnished to Lessee in the repair or improvement of the Demised Premises.
While the parties intend hereby that the interest of Lessor hereunder
cannot be subjected to any lien on account of Lessee's use of or actions
with respect to the Demised Premises and that any future modifications of
law to the contrary would constitute an impairment of vested rights
hereunder, nevertheless, should a court of competent
-4-
Jurisdiction hold that, or should a valid statute be enacted whereby, any
interest of Lessor in the Demised Premises at any time hereafter shall be
subjected to any such lien, then Lessee shall, within thirty (30) days
after written notice to Lessee of the existence and perfection of said
lien, cause said lien to be bonded or discharged and shall otherwise save
Lessor harmless on account thereof; provided, however, that if Lessee
desires in good faith to contest the validity or correctness of any such
lien, it may do so and Lessor shall cooperate to whatever extent shall be
necessary, provided only that Lessee must indemnify Lessor against any
loss, liability or damage on account thereof.
ARTICLE VI
USE OF PREMISES
6.1 Permitted Use. Lessee, its sublessees or assignees, shall use the
-------------
Demised Premises for the purpose of conducting thereon the business of a
restaurant or a coffee shop and for incidental purposes related thereto,
or for any other legally permissible business or commercial venture;
provided, however, that Lessee shall not use the Demised Premises in such
manner as to knowingly violate the CC&Rs (as defined in Article 20.1
hereinbelow) or any applicable law, rule, ordinance or regulation of any
governmental body.
ARTICLE VII
LIABILITY INSURANCE
7.1 Lessee's Insurance. Lessee agrees that on or before the commencement
------------------
of the term of this Lease it will obtain for the mutual benefit of Lessor
and Lessee public liability insurance covering the Demised Premises from an
insurance company authorized (or admitted) to do business in the state in
which the Demised Premises are located. Said policy or policies shall be
for an amount of at least Two Million Dollars ($2,000,000) Combined Single
Limit for the death or injury to one (1) or more persons or property
damage, which said policy or policies to insurance shall name Lessor as an
additional assured thereunder, and Lessee agrees to maintain same at
Lessee's sole cost and expense in full force and effect during the entire
term of this Lease. Lessee shall furnish Lessor with a copy of such
insurance coverage, or with a certificate of the company issuing such
insurance, certifying that the same is in full force and effect. Lessee
may, at its option, bring its obligations to insure hereunder under any so-
called blanket policy or policies of insurance; provided, however, that the
interests of Lessor shall be as fully protected thereby as if Lessee
obtained individual policies of insurance.
ARTICLE VIII
BANKRUPTCY
8.1 Continuation of Lease. If at any time during the term hereof
---------------------
proceedings in bankruptcy, insolvency or other similar proceedings shall be
instituted by or against Lessee, whether or not such proceedings result in
an adjudication against Lessee, or should a receiver of the business or
assets of Lessee be appointed, such proceedings or adjudications shall not
affect the validity of this Lease, so long as the Minimum Monthly Rental
and additional rent reserved hereunder continues to be paid to Lessor and
the other terms, covenants and conditions of this Lease on the part of
Lessee to be performed, are performed, and in such event this Lease shall
continue to remain in full force and effect in accordance with the terms
herein contained.
-5-
ARTICLE IX
ASSIGNMENT AND SUBLETTING
9.1 Assignment. Lessee may not assign this Lease, in whole or in part,
----------
without first obtaining the prior written consent of Lessor, which consent
shall not be unreasonably delayed or withheld; provided, however, that
Lessee may, without such consent, assign this Lease, in whole or in part,
as security or otherwise to any national or state chartered bank or lending
institution or corporation controlled by, controlling, or under common
control with Lessee, it being understood that Lessee shall remain liable
hereunder, or to any surviving corporation resulting from a merger or
consolidation of Lessee with any other corporation, or to any corporation
which purchases or otherwise acquires all or substantially all of the
assets of Lessee. Any consent to any assignment shall not be deemed to be
a consent to any subsequent assignment. Any assignment by Lessee other than
in accordance with this Article IX shall be void.
9.2 Subletting. Lessee or its assignee shall have and is hereby given the
----------
unqualified right and privilege, at its option, of subletting the Demised
Premises, in whole or in part, subject to all of the rents, terms and
conditions of this Lease. It is specifically understood and agreed by and
between Lessor and Lessee that any subletting which Lessee or its assignees
make, as permitted herein, shall in no event relieve Lessee of the
obligations of Lessee hereunder, and that the right of subletting shall be
that of Lessee or its assignees only, and shall not extend to any
subtenant.
ARTICLE X
REMEDIES IN THE EVENT OF DEFAULT
10.1 Remedies. In the event of any breach of this Lease by Lessee which
--------
shall not have been cured within fifteen (15) days after Lessee shall have
received notice of such breach (or if such breach is not in payment of
money, if within such period Lessee shall not have commenced to cure said
breach and shall not thereafter continue its efforts with due diligence),
then Lessor may, at Lessor's option and without limiting Lessor in the
exercise of any other rights or remedies which Lessor may have at law or in
equity by reason of such default or breach, with or without notice of
demand:
(A) without terminating this Lease, reenter the Demised Premises with
or without process of law and take possession of the same and expel or
remove Lessee and all other parties occupying the Demised Premises,
and at any time and from time to time to relet the Demised Premises or
any part thereof for the account of Lessee, for such term, upon such
conditions and at such rental as Lessor may deem proper. In such
event Lessor may receive and collect the rent from such reletting and
apply it against any amounts due from Lessee hereunder (including,
without limitation, such expenses as Lessor may have incurred in
recovering possession of the Demised Premises, placing the same in
good order and condition, altering or repairing the same for
reletting, and all other expenses, commission and charges, including
attorney's fees, which Lessor may have paid or incurred in connection
with such repossession and reletting). Lessor may execute any Lease
made pursuant hereto in Lessor's name or in the name of Lessee, as
Lessor may see fit, and the Lessee thereunder shall be under no
obligation to see to the application by Lessor of any rent collected
by Lessor, nor shall Lessee have any right to collect any rent
thereunder. Whether or not the Demised Premises are relet, Lessee
shall pay to Lessor all amounts required to be paid by Lessee up to
the date of Lessor's reentry, and thereafter Lessee shall pay to
Lessor, until the end of the term hereof, the amount of all rent and
other charges required to be paid by Lessee hereunder, less the
proceeds of such reletting as provided
-6-
above. Such payments by Lessee shall be due at such times as are
provided elsewhere in this Lease, and Lessor need not wait until the
termination of this Lease to recover them by legal action or
otherwise. Lessor shall not, by any reentry or other act, be deemed
to have terminated this Lease or the liability of Lessee for the total
rent hereunder unless Lessor shall give Lessee written notice of
Lessor's election to terminate this Lease.
(B) terminate this Lease by giving written notice to Lessee of
Lessor's election to so terminate, reenter the Demised Premises with
or without process of law and take possession of the same and expel or
remove Lessee and all other parties occupying the Demised Premises. In
such event, Lessor shall thereupon be entitled to recover from Lessee:
(i) the worth at the time of award of any unpaid rent
which had been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which (A),
the unpaid rent which would have been earned after termination
until the time of award, exceeds (B), the amount of such rental
loss Lessee proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which (A),
the unpaid rent for the balance of the term after the time of
award, exceeds (B), the amount of such rental loss that Lessee
proves could be reasonably avoided; plus
(iv) any other amount reasonably necessary to compensate Lessor
for all the detriment proximately caused by Lessee's failure to
perform its obligations under this Lease or which, in the
ordinary course of things, would be likely to result therefrom.
As used in Subsections (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the rate of ten percent
(10%) per annum. As used in Subsection (iii) above, the "worth at the
time of award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of
award, plus one percent (1%).
ARTICLE XI
PROPERTY INSURANCE
11.1 Lessee to Obtain "A1l Risk" Insurance. Lessee will, at Lessee's own
-------------------------------------
cost and expense, carry and maintain fire insurance with extended coverage
endorsement with an insurance company authorized (or admitted) to do
business in the state in which the Demised Premises are located, for the
mutual benefit of Lessee, Lessor, and its mortgagee, if any, on all
buildings erected upon the Demised Premises in an amount equal to at least
one hundred percent (100%) of the full replacement cost thereof, excluding
foundation and excavating costs. As often as any such policy or policies
shall expire or terminate, renewal or additional policies shall be procured
by Lessee in like manner and to like extent. Proceeds of any such
policies, in the event of fire or other casualty, shall be payable to
Lessor and Lessee, as their respective interests may appear, and in
accordance with the terms of Article XII hereinbelow. Lessee shall furnish
Lessor with a copy of such insurance coverage, or with a certificate of the
company issuing such insurance, certifying that the same is in full force
and effect.
11.2 Blanket Policy. Lessee may, at its option, bring its obligations to
--------------
insure under this Article XI within the coverage of any so-
-7-
called blanket policy or policies of insurance which it may now or
hereafter carry, by appropriate amendment, rider endorsement, or otherwise;
provided, however, that the interest of Lessor shall thereby be as fully
protected as they would otherwise be if this option to Lessee to use
blanket policies were not permitted.
ARTICLE XII
DAMAGE AND DESTRUCTION
12.1 Abatement of Rent. Notwithstanding any statute or rule of law of the
-----------------
state in which the Demised Premises are located to the contrary, in the
event of any damage or destruction to the Improvements, or any part
thereof, by fire or other casualty, this Lease shall continue in full force
and effect, except that until either such damage or destruction shall be
repaired, or in the alternative this Lease shall be terminated as
hereinafter provided in this Article XII, all rent, additional rent and
other charges payable hereunder by Lessee shall ▇▇▇▇▇ so that Lessee shall
be required to pay only a fraction thereof, the numerator of which shall be
the fair rental value of the Demised Premises and Improvements thereto
after such damage or destruction, and the denominator of which shall be the
fair rental value of the Demised Premises and Improvements thereto
immediately prior to such damage or destruction, provided, however, if the
damage or destruction is such that Lessee's business at the Demised
Premises cannot reasonably or lawfully be continued after the date of said
damage or destruction, said rent, additional rent and other charges
hereunder shall ▇▇▇▇▇ entirely.
12.2 Restoration of Improvements - Insured Loss. If the damage or
------------------------------------------
destruction of the Improvements was caused by a peril or perils covered
under a standard fire insurance policy, with "extended coverage"
endorsement, then Lessee shall proceed, within a reasonable period of time
after the date of the occurrence of such damage or destruction, to repair,
restore and replace said Improvements and shall have available to it any
proceeds from the property insurance to be maintained by Lessee pursuant to
Article 11.1 hereinabove.
12.3 Restoration of Improvements - Uninsured Loss. If the damage or
-------------------------------------------------
destruction of the Improvements was not caused by a peril or perils covered
under a standard fire insurance policy, with "extended coverage"
endorsement, then Lessor may, within thirty (30) days after the occurrence
of said damage or destruction, pay to Lessee such amount as shall be
required by Lessee to make such repair, restoration and replacement.
Lessee shall then proceed with due diligence to so repair, restore and
replace said Improvements. In the event Lessor shall elect not to pay such
amount, Lessor shall give Lessee written notice thereof within thirty (30)
days after the occurrence of said damage or destruction, and Lessee shall
then have fifteen (15) days to elect to pay such amount itself and to serve
Lessor with written notice of its said election. In the event Lessee
elects to pay such amount, then, in such event, Lessee shall, at its
option, be permitted to extend the term hereof for a period sufficient, if
required, to result in Lessee having a minimum term, including any
available options to extend, of ten (10) years remaining after the date of
completion of the repairs, replacement or restoration; said extended term
to be under the same terms and conditions in effect just prior to the
expiration of the preceding term. In the event Lessee elects to extend
said term pursuant to this Article XII, it shall serve Lessor with written
notice thereof within the same fifteen (15) day period during which Lessee
has the right to elect to pay the aforementioned amount. In the event
neither party shall elect to pay such amount, then, upon the expiration of
the fifteen (15) day period during which Lessee has the right to elect to
pay such amount, this Lease shall terminate.
12.4 Extension of Lease. In the event this Lease continues in full force
------------------
and effect and is not terminated or otherwise extended pursuant to the
provisions of this Article XII, and there has been an abatement of rent,
the then current term of this Lease shall be
-8-
extended by the total number of months during which there was such an
abatement; however, in no event shall the abatement of rent exceed six (6)
months duration in connection with each instance of damage or destruction
during the term or extended term hereof.
ARTICLE XIII
CONDEMNATION
13.1 Complete Taking. If at any time during the term of this Lease, or
---------------
any extension thereof, the whole of the Demised Premises shall be taken for
any public or quasi-public purpose by any lawful power or authority by the
exercise of the right of condemnation or eminent domain, including any such
taking by "inverse condemnation," then this Lease shall terminate as of the
date that title shall vest in the condemnor, and the rent and additional
rent payable hereunder shall be adjusted and paid to the date of such
termination.
13.2 Partial Taking. If at any time during the term of this Lease, or any
--------------
extension thereof, any part of the building, or twenty percent (20%) or
more of the designated parking spaces, or any part of a driveway or other
access way reasonably necessary for access to the business upon the Demised
Premises shall be so taken, Lessee shall have the right to terminate this
Lease as of the date that title shall vest in the condemnor, by giving
written notice of such termination to Lessor within ninety (90) days after
notice to Lessee of the date of such vesting. In such event, the rent and
additional rent payable hereunder shall be adjusted and paid to the date of
such termination.
13.3 Allocation of Condemnation Award. In the event of such a
--------------------------------
condemnation of the whole or a part of the Demised Premises, Lessor shall
have the unqualified right to pursue its remedies against the condemnor for
the full value of Lessor's fee interest and other property interests in and
to the Demised Premises. Similarly, Lessee shall have the unqualified
right to pursue its remedies against the condemnor for the full value of
Lessee's leasehold interest and other property interest in and to the
Demised Premises. If the laws of the state in which the Demised Premises
are located allow or require the recovery from the condemnor to be paid
into a common fund or to be paid to Lessor only, and if such recovery is so
paid into such common fund or to Lessor only, then in that event the
recovery so paid shall be apportioned between the parties according to the
value of their respective property interests as they existed on the date of
such condemnation. The provisions of this Article 13.3 shall survive any
termination of this Lease pursuant to the provisions of Articles 13.1 or
13.2 hereinabove.
13.4 Rent Reduction in Case of Partial Taking. If at any time during the
----------------------------------------
term of this Lease, or any extension thereof, a part of the Demised
Premises shall be taken by condemnation, and Lessee shall not be entitled
to or shall not exercise its right to terminate, this lease shall
continue in full force and effect, except that the net Minimum Monthly
Rental shall be reduced as of the date of vesting in the condemnor so that
Lessee shall pay, for the remainder of the term, only such portion of the
Minimum Monthly Rental as the rental value of the part remaining after
condemnation bears to the rental value of the entire demised premises at
the date of condemnation. Lessor shall have the obligation to pay for the
cost of and to perform the construction, repair, alteration or restoration
of the remaining part of the Demised Premises so the same shall constitute
a complete unit suitable for the use made by Lessee immediately prior to
said condemnation.
ARTICLE XIV
QUIET ENJOYMENT AND TITLE
14.1 Covenant of Quiet Enjoyment. Lessee, subject to the terms of this
---------------------------
Lease, upon paying the Minimum Monthly Rental and additional
-9-
rent and performing the other terms, covenants and conditions of this
Lease, shall and may peaceably and quietly have, hold, occupy, possess and
enjoy the Demised Premises during the term of this Lease.
14.2 Right to Possession. Lessor covenants, warrants and represents that
-------------------
the Demised Premises are now unoccupied and tenant-free, and that absolute,
tenant-free possession of the Demised Premises will be delivered to Lessee
on the date of the commencement of the term hereof.
14.3 Superior Encumbrances. Lessor further covenants, warrants and
---------------------
represents that there are no liens, mortgages or encumbrances on the
Demised Premises superior to the rights of Lessee under this Lease, except
as set forth in Article 20.1 hereinbelow and for the lien of a first
mortgage which may have been heretofore or may hereafter be made by Lessor.
14.4 Ownership; Authority; Restrictions. Lessor further covenants,
----------------------------------
warrants and represents that Lessor is the owner in fee of the Demised
Premises and alone has the full right to lease the Demised Premises for the
term and/or extended term as aforesaid; that there are no existing
restrictions or encumbrances affecting the Demised Premises which would
prohibit the use and occupancy thereof as a restaurant; and that the
Demised Premises are not subject to any zoning laws or regulations which
would prohibit or restrict the construction, maintenance and operation of a
restaurant. It is expressly understood and agreed that these covenants by
Lessor constitute a warranty by Lessor, and that in case Lessor is not the
owner or has not the right aforesaid, or in case there are any such
restrictions, (a) this Lease, at the option of Lessee, shall become null
and void and no rent shall accrue for the term aforesaid or for any part
thereof, and (b) Lessee may pursue any remedy available at law or in equity
to recover damages or other relief.
ARTICLE XV
TRADE FIXTURES
15.1 Ownership Removal. Lessor and Lessee acknowledge, consent and agree
-----------------
that all furniture, fixtures, and equipment installed in or on or located
in or about the Improvements or other parts of the Demised Premises,
whether affixed to the Demised Premises or otherwise (hereinafter referred
to as the "Trade Fixtures"), are being leased by Lessor to Lessee under the
terms of that certain Equipment Master Lease of even date herewith between
Lessor, as lessor, and Lessee, as lessee, and the Trade Fixtures shall at
all times remain the property of Lessor and the same may not be removed by
Lessee at any time during the term hereof or upon the expiration or earlier
termination of the term hereof.
ARTICLE XVI
SUBORDINATION
16.1 Subordination. Provided that Lessor furnishes to Lessee an
-------------
agreement in writing and in recordable form from any present or future
mortgagee or holder of a deed of trust or other encumbrance with respect to
the Demised Premises, that:
(A) such person shall not for any reason disturb the possession, use
or enjoyment of the Demised Premises by Lessee, its successors and
assigns, so long as all of the obligations of Lessee are fully
performed in accordance with the terms of this Lease; and
(B) such person shall permit application of the insurance proceeds
and condemnation proceeds in accordance with Articles XII and XIII
hereinabove, respectively, in the
-10-
event of damage or destruction to the Improvements or condemnation of
the Improvements or any part of the Demised Premises,
Lessee agrees to subordinate its rights hereunder to the lien of such
mortgage, deed of trust or other encumbrance which may now or hereafter
affect the Demised Premises. Provided such agreement is obtained, Lessee
shall, upon demand, promptly execute and deliver to Lessor any instrument
which may be necessary to effectuate such subordination.
ARTICLE XVII
RIGHT OF FIRST REFUSAL
17.1 Purchase. If at any time after the date of the mutual execution of
--------
this Lease and prior to the date of the expiration of the term or extended
term of this Lease, Lessor shall desire to sell the Demised Premises or the
property of which the Demised Premises are a part, Lessee shall have the
right of first refusal as follows: Lessor shall give to Lessee a notice in
writing specifying the terms and conditions upon which it desires to sell
the Demised Premises and offering to sell same to Lessee upon said terms
and conditions. Within ten (10) days after receipt of said notice, Lessee
shall either accept or reject said offer. If Lessee shall reject said
offer, then for a period of ninety (90) days after the expiration of said
ten (10) day period Lessor shall be free to sell to any other person upon
the terms and conditions specified in said notice. If the sale is to be
made on terms and conditions other than so specified, then the right to
purchase shall again be offered to Lessee as set forth above. The
rejections of any one or more such offers by Lessee shall not affect its
right of first refusal as to any other sales by Lessor or its successors or
assigns.
17.2 Lease. If at any time after the date of the mutual execution of this
-----
Lease and prior to the date of the expiration of the term or extended term
of this Lease, Lessor shall desire to lease the Demised Premises for a term
commencing after the expiration of the term or extended term hereof, Lessee
shall have the right of first refusal as follows: Lessor shall give to
Lessee a notice in writing specifying the terms and conditions upon which
it desires to lease the Demised Premises and offering to lease same to
Lessee upon said terms and conditions. Within ten (10) days after receipt
of said notice, Lessee shall either accept or reject said offer. If Lessee
shall reject said offer, then for a period of ninety (90) days after the
expiration of said ten (10) day period Lessor shall be free to lease to any
other person upon the terms and conditions specified in said notice. If
the lease is to be made on terms and conditions other than so specified,
then the right to lease shall again be offered to Lessee as set forth
above. The rejections of any one or more such offers by Lessee shall not
affect its right of first refusal as to any other proposed Leases by Lessor
or its successors or assigns.
17.3 Incorporation in Short Form of Lease. The provisions of Articles
------------------------------------
17.1 and 17.2 hereinabove shall be included in the short form of this lease
provided in Article 1.4 hereinabove.
ARTICLE XVIII
REMOVAL OF DISTINCTIVE FEATURES
18.1 Removal; Repairs. Lessor agrees that upon the expiration of the
----------------
term of this lease, or any extension thereof, or upon the earlier
termination thereof as provided for herein, Lessee shall have the
unqualified right to remove from the Demised Premises and the Improvements
thereon all signs or other distinctive features or Lessee's operation.
Lessee shall, at its expense, repair any damage to the building caused by
such removal. In addition, Lessee, at its sole cost and expense, shall have
the right, but not the obligation,
-11-
to paint the Improvements in a neutral color. Lessor agrees that Lessor
will not thereafter cause, permit or suffer the Improvements to be painted
the colors or combination of colors associated with the operations of
Lessee or its corporate affiliates.
ARTICLE XIX
PROHIBITION AGAINST COMPETITION AND PROTECTION FOR EXPOSURE
19.1 Lessor's Covenant. Lessor agrees that during the term or extended
-----------------
term of this Lease it will not permit, lease, allow or use, either by
itself or any tenants thereof, directly or indirectly, any portion of the
property of which the Demised Premises are a part or any property within
one (1) mile of the Demised Premises now or hereafter owned or controlled
by Lessor for any kind of restaurant, diner, coffee shop, luncheonette or
any other business involving "on the premises consumption of food or
beverage."
19.2 Lessee's Remedies for Breach. The covenant of Lessor contained in
----------------------------
Article 19.1 hereinabove is a material inducement for Lessee to enter into
this Lease, and upon any breach by Lessor of said covenant, which breach is
not cured within thirty (30) days after written notice thereof by Lessee to
Lessor, Lessee shall have the right to pursue all of its rights available
at law or in equity, including cancellation of this Lease, a suit for
damages, and/or a suit for injunctive relief (it being understood that the
enumeration of the foregoing rights and remedies shall not preclude the
exercise of any other rights or remedies which might be available at law or
in equity).
19.3 Incorporation in Short Form of Lease. The provisions of Articles
------------------------------------
19.1 and 19.2 hereinabove shall be included in the short form of this Lease
provided in Article 1.4 hereinabove.
ARTICLE XX
TITLE CONSIDERATIONS
20.1 CC&Rs; Lender's Lien. Lessee hereby acknowledges, consents and
--------------------
agrees that the Demised Premises and this Lease shall be subject and
subordinate to all of those covenants, conditions, restrictions, easements
and other matters specified on Exhibit B attached hereto and, by this
---------
reference, incorporated herein (hereinbefore and hereinafter collectively
referred to as the "CC&Rs"), as well as the lien of any mortgage, deed to
secure debt, or deed of trust, as the case may be, securing the obligations
of Lessor under the terms of any credit agreement between Lessor, as
borrower, and any third party, as lender, that may heretofore or hereafter
be secured against the Demised Premises. Additionally, Lessee hereby
agrees to perform and abide by all of the terms, covenants, conditions,
obligations and undertakings of Lessor under the CC&Rs.
ARTICLE XXI
HAZARDOUS SUBSTANCE OR WASTE
21.1 Mutual Indemnity. Lessor hereby represents and warrants that, to
----------------
the best of its knowledge, there does not exist on, in or under the Demised
Premises (including the parking area) any "hazardous substance" or
"hazardous waste as those terms are used under the various federal and
state environmental laws (hereinafter referred to as the "hazardous
substance/waste"); and in the event such Hazardous Substance/Waste is
discovered at any time during the term of this Lease or extensions thereof
under circumstances where it is reasonably clear that such hazardous
Substance/Waste became present on or before the commencement of the term
hereof, Lessor shall indemnify, defend (with counsel reasonably
satisfactory to Lessee), and hold and save Lessee and its sublessees
harmless from and against all claims, liabilities, actions, judgments,
responsibilities and damages of every kind and nature arising from or
-12-
related to the presence of said Hazardous Substance/Waste; and in the event
such Hazardous Substance/Waste is discovered at any time during the term of
this Lease or extensions thereof, or any time thereafter, under
circumstances where it is reasonably clear that such Hazardous
Substance/Waste became present at any time after the commencement of the
term hereof until the expiration or earlier termination of this Lease,
Lessee shall indemnify, defend (with counsel reasonably satisfactory to
Lessor) and hold and save Lessor harmless from and against all claims,
liabilities, actions, judgments, responsibilities and damages of every kind
and nature arising from or related to the presence of said Hazardous
Substance/Waste during said period.
ARTICLE XXII
REAL ESTATE COMMISSIONS
22.1 Payment; Mutual Indemnity. Each party represents to the other party
--------------------------
that it has not dealt with any real estate broker or other person acting in
a similar capacity who might be entitled to a commission or finder's fee in
this transaction; and each party hereby indemnifies the other party and
agrees to hold the other party harmless from any commission and/or finder's
fee claims arising through actions of the indemnifying party in derogation
of the representations contained herein.
ARTICLE XXIII
NOTICES AND DEMANDS
23.1 To Lessor. Any notices or demands required or permitted by law or
---------
any provisions of this Lease shall be in writing, and, if the same is to be
served upon Lessor, may be deposited in the United States mail, registered
or certified, with return receipt requested, postage prepaid, and addressed
to Lessor at the address first above stated or at such other address as
Lessor may designate in writing, or in lieu of mailing any such notice or
demand, the same may be personally delivered to said party at such address.
At all times, Lessor may designate in writing any person(s), firm(s) or
corporation(s) to receive all notices and demands, and service upon any one
of those persons, firms or corporations as so designated shall constitute
sufficient service upon Lessor.
23.2 To Lessee. Any such notice or demand to be served upon Lessee shall
---------
be in writing and in duplicate, and shall be served either personally to
the attention of the Legal Department at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or by deposit in the United States
mail, registered or certified, return receipt requested, postage prepaid,
addressed to Lessee attention of Legal Department, at ▇.▇. ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or any other address that Lessee may
designate in writing.
ARTICLE XXIV
ATTORNEYS' FEES
24.1 Paid to Prevailing Party. In the event any action or proceeding is
------------------------
commenced with respect to any claim or controversy by the parties hereto
arising from the breach, interpretation, or enforcement of this Lease or
the exhibits attached hereto, the prevailing party or parties in such
action or proceeding shall receive and be entitled to, in addition to any
and all other relief, all costs and expenses, including reasonable
attorneys' fees, incurred by it in such action or proceeding.
-13-
ARTICLE XXV
GENERAL PROVISIONS
25.1 Binding on Successors. All of the covenants, agreements, provisions
---------------------
and conditions of this Lease shall inure to the benefit of and be binding
upon the parties hereto, their successors, legal representatives and
assigns.
25.2 Severability. If any term or provision of this Lease or the
------------
application thereof to any persons or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
25.3 Entire Agreement. This Lease and the exhibits attached hereto
----------------
contain the entire agreement between the parties and shall not be modified
in any manner except by an instrument in writing executed by the parties
hereto or their respective successors in interest.
25.4 Captions. The captions are inserted only as a matter of convenience
--------
and for reference, and in no way define, limit or describe the scope of
this Lease or the intention of the parties hereto, nor do they in any way
affect this Lease.
25.5 Gender and Number. Words of any gender in this Lease shall be held
-----------------
to include any other gender, and words in the singular number shall be held
to include the plural when the sense requires.
25.6 Approvals. Wherever Lessor's approval or consent is required
---------
herein, approval or consent shall not be unreasonably delayed or withheld.
25.7 No Waiver. No waiver by Lessor or Lessee of any breach of any
---------
provision of this Lease shall be deemed a waiver of any breach of any other
provision hereof or of any subsequent breach by Lessee or Lessor of the
same or any other provision.
25.8 Holdover. In the event Lessee shall hold over after the term of
--------
this Lease with the consent, express or implied, of Lessor, such holding
over shall be construed to be a tenancy only from month to month, and
Lessee shall pay the rent, additional rent and other sums as herein
required for such further time as Lessee may continue its occupancy. The
foregoing does not affect Lessor's right of reentry or any rights of Lessor
hereunder or as otherwise provided by law.
25.9 Time of Essence. Time is of the essence of this Lease and the
---------------
exhibits attached hereto and every provision herein and therein.
25.10 Governing Law. This agreement shall be governed by and construed in
-------------
accordance with the laws of the state in which the Demised Premises are
located.
25.11 Counterparts. This Lease may be executed in any number of
------------
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
25.12 No Third Party Rights. The terms and provisions of this Lease
---------------------
shall not be deemed to confer any rights upon, nor obligate any parties
hereto to, any person or entity other than the parties hereto.
25.13 Unexecuted Lease. The submission of this Lease for review or
----------------
execution does not constitute a reservation of or option for the rights
conferred herein. This Lease shall become effective as a lease only upon
execution and delivery thereof by both Lessor and Lessee.
-14-
25.14 Lessor's Right of Entry. Lessor reserves the right to enter upon
-----------------------
the Demised Premises at any time during business hours to inspect same or
for the purpose of exhibiting same to prospective purchasers, mortgagees,
and, during the last six (6) months of the term hereof or any extensions
thereof, to prospective lessees. Lessor may post any customary sign stating
"for lease" or "for sale" during the last six (6) months of the term or
extended term hereof.
25.15 Estoppel Certificates. Lessor and Lessee agree that within fifteen
---------------------
(15) days following the written request by either, or both, to the other,
to execute and deliver to the requesting party a certificate (a) certifying
that this Lease is unmodified and in full force and effect, or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect, and the date to which
the rent and other charges hereunder are paid in advance, if any, and (b)
acknowledging that there are not, to the certifying party's knowledge, any
uncured defaults hereunder on the part of the requesting party, or so
specifying such defaults, if any, as are claimed by the certifying party.
25.16 Due Authorization. Each person executing this Lease on behalf of
-----------------
Lessor and Lessee, respectively, warrants and represents that the
partnership, joint venture or corporation, as the case may be, for whom he
or she is acting, has duly authorized the transactions contemplated herein
and the execution of this Lease by him or her.
25.17 Relationship of Parties. Nothing contained in this Lease shall be
-----------------------
deemed to constitute a partnership or joint venture between Lessor and
Lessee, and Lessor and Lessee's relationship herein shall only be deemed to
be one of landlord and tenant.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day
and year first above written.
LESSOR:
IHOP REALTY CORP., a Delaware corporation
By:______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President
-------------------------------------
LESSEE:
INTERNATIONAL HOUSE OF PANCAKES, INC.,
a Delaware corporation
By:______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President
-------------------------------------
-15-
State of California )
County of Los Angeles )
On ____________ , 1992, before me, _____________________ ,
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President of IHOP REALTY
CORP., personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on
the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________________ (Seal)
State of California )
County of Los Angeles )
On ___________, 1992, before me, ____________________ ,
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President of INTERNATIONAL
HOUSE OF PANCAKES, INC., personally known to me (or proved to me
on the basis of satisfactory evidence) to be the ▇▇▇▇▇▇ whose
name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________________ (SEAL)
-16-
EXHIBIT F-1
Form of Quarterly Compliance Statement
THE UNDERSIGNED, ____________ ________________ of International House of
Pancakes, Inc., a Delaware corporation (the "Borrower"), and ____________,
_________________ of IHOP Corp., a Delaware corporation ("Holdings"), pursuant
to Section 8(A)(2) of the several Senior Note Purchase Agreements, dated as of
November 19, 1992 (the "Purchase Agreements"), among the Borrower, Holdings, and
the Purchasers listed in Schedule l thereto, do hereby certify as follows
(capitalized terms used herein shall have the meanings ascribed thereto in the
Purchase Agreements):
(a) as at the end of the quarterly accounting period ending __________,
the financial covenants set forth in Sections 11.2 through 11.8 of the Purchase
Agreements, inclusive, have [have not] been met, and the maximum amount of
dividends or distributions that could have been declared or paid pursuant to
Section 11.5 of the Purchase Agreements is $________________, and attached
hereto as Exhibit A are computations and other pertinent information
demonstrating the accuracy of the matters set forth in this clause (a);
(b) attached hereto as Exhibit B are calculations setting forth the
maximum amount of Funded Debt that could have been incurred as at the end of the
quarterly accounting period ending _____________, pursuant to Sections 11.2(B)
and 11.2(C) of the Purchase Agreements;
(c) as at the end of the quarterly accounting period ending __________,
the Liens on Property or assets of Holdings or its Subsidiaries or securing Debt
of Holdings or its Subsidiaries, as the case may be, do [do not] exceed the
threshold set forth in Section 11.1(I) of the Purchase Agreements, and attached
hereto as Exhibit C are computations and other pertinent information
demonstrating the accuracy of the matters set forth in this clause (c); and
(d) attached hereto as Exhibit D are calculations (and materials in
support of the basis therefor) setting forth the maximum amount of additional
Funded Debt secured by Liens that could have been incurred under Section 11.1(I)
of the Purchase Agreements.
IN WITNESS WHEREOF, the undersigned have signed their names this _______
day of ___________, ______.
INTERNATIONAL HOUSE OF PANCAKES, INC.
By:______________________________________
Name:
Title:
IHOP CORP.
By:______________________________________
Name:
Title:
EXHIBIT F-2
Form of Compliance Certificate
THE UNDERSIGNED, ______________, ______________ of International House of
Pancakes, Inc., a Delaware corporation (the "Borrower"), and ____________
_____________ of IHOP Corp., a Delaware corporation ("Holdings"), pursuant to
Section 8(C) of the several Senior Note Purchase Agreements, dated as of
November ___, 1992 (the "Purchase Agreements"), among the Borrower, Holdings and
the Purchasers listed in Schedule I thereto, do hereby certify as follows
(capitalized terms used herein shall have the meanings ascribed thereto in the
Purchase Agreements):
Based upon such examination or investigation and review of the Purchase
Agreements as in the opinion of the undersigned is necessary to enable the
undersigned to express an informed opinion with respect thereto, no Default or
Event of Default by Holdings, the Borrower or any of their Subsidiaries in the
fulfillment of any of the terms, covenants, provisions or conditions of the
Purchase Agreements exists or has existed during the period ending ___________
[, other than Default[s] or Event[s] of Default arising under Section(s) ______
of the Purchase Agreements, as more fully described on Annex A hereto].*
IN WITNESS WHEREOF, the undersigned have signed their names this ____ day
of _________, ____.
INTERNATIONAL HOUSE OF PANCAKES, INC.
By: _____________________________________
Name:
Title:
IHOP CORP.
By: _____________________________________
Name:
Title:
-------------------
* In the event such a Default or Event of Default exists or has existed,
Annex A to this certificate shall specify the nature and period of
existence thereof and what action Holdings, the Borrower or such
Subsidiary, as the case may be, has taken, is taking or proposes to take
with respect thereto.