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Exhibit 4.4
EXECUTION COPY
GUARANTY
THIS GUARANTY (this " Guaranty ") is made and entered
into as of March 16, 2007, by IHOP CORP., a Delaware corporation
(the " Guarantor ") in favor of IHOP HOLDINGS, LLC, a
Delaware limited liability company (the " Beneficiary
"). This Guaranty constitutes the entire and full agreement
of the parties with respect to the subject matter hereof.
Capitalized terms used but not defined herein are defined in (or
incorporated by reference into) the Parent Asset Sale Agreement (as
defined below), including the Standard Terms of Asset Sale
Agreements attached as Annex A thereto (the " Standard
Terms ") (and including Appendix A , Appendix B
or Appendix C to such Standard Terms).
PRELIMINARY STATEMENT
International House of Pancakes, Inc., as seller (the "
Seller "), and IHOP Holdings, LLC, as purchaser, have
entered into the Asset Sale Agreement, dated as of March 16, 2007
(as may be amended, restated, supplemented or otherwise modified
from time to time, the " Parent Asset Sale Agreement ").
NOW, THEREFORE, in consideration of the foregoing preliminary
statement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties hereto, it is hereby agreed as follows:
ARTICLE I
GUARANTY
Section
1.1
Guarantee by IHOP Corp . The Guarantor
hereby unconditionally and irrevocably guarantees the obligations
of Seller under the Parent Asset Sale Agreement. This
Guarantee shall be a continuing and irrevocable guarantee of
payment of all amounts due by the Seller under the Parent Asset
Sale Agreement, and the Guarantor shall remain liable on its
obligations hereunder until the payment in full of any amounts due
thereunder. The Guarantor hereby represents that it has all
requisite corporate power and authority to undertake its
obligations set forth in this Section 1.1 and to guarantee
the full and prompt payment of any amounts due by the Seller under
the Parent Asset Sale Agreement.
Section
1.2
Liability of Guarantor Absolute . The Guarantor agrees
that its obligations under this Guaranty are irrevocable, absolute,
independent and unconditional and shall not be affected by any
circumstance that constitutes a legal or equitable discharge of a
guarantor or surety. In furtherance of the foregoing and
without limiting the generality thereof, the Guarantor agrees as
follows: (a) the obligations of the Guarantor hereunder
are independent of the obligations of the Seller under the Parent
Asset Sale Agreement or under the other Transaction Documents; (b)
the obligations of the Guarantor hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason, including
without limitation, the occurrence of any of the following, whether
or not the Guarantor shall have had notice or knowledge of any of
them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or
enjoining, by order of court, by operation of law or otherwise, of
the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising at law, in equity or otherwise)
with respect to any failure of the Seller under the Parent Asset
Sale Agreement or under any of the other Transaction Documents;
(ii) any rescission, waiver, amendment or modification of, or any
consent to departure from any of the terms or provisions
(including, without limitation, provisions relating to events of
default) of the Servicing Agreement, any of the other Transaction
Documents or any of the Serviced Documents, the Franchise Documents
or the Franchise Arrangements; (iii) the Seller’s consent to
the
addition, change, reorganization or termination
of any of the Securitization Entities or to any amendment to the
documents governing the formation or organization and operation of
the Securitization Entities; (iv) any other act or thing or
omission, or delay to do any other act or thing, which may or might
in any manner or to any extent vary the risk of the Guarantor as an
obligor in respect of the Seller’s obligations under the
Parent Asset Sale Agreement.
Section
1.3
Waivers by the Guarantor . The Guarantor agrees not to
assert, and hereby waives, all rights (whether by counterclaim,
set-off or otherwise) and defenses (including, without limitation,
the defense of fraud), whether acquired by subrogation, assignment
or otherwise, to the extent that such rights and defenses may be
used by the Guarantor to avoid performance hereunder, including but
not limited to: (a) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of
the Seller including, without limitation
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