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, any defense based
on
