Can the Aerus Guarantee be amended by course of conduct?
Aerus Franchise · 2025 FDDAnswer from 2025 FDD Document
eplacements, additions, accessories, accessions, increases, parts, substitutes therefore and proceeds of the above and all guaranties, claims, rights, remedies and privileges relating to any of the foregoing.
Description of Real Estate Upon Which Collateral is Located Premises located at
PERSONAL GUARANTEE
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Aerus Franchising, LLC 14841 Dallas Parkway, Suite 500 Dallas, Texas 75254
Re: [INSERT: Name and address of Franchisee] ("Borrower")
Ladies and Gentlemen:
Aerus Franchising, LLC ("Lender") and Borrower have entered into certain financing arrangements pursuant to which Lender may make loans and advances and provide other financial accommodations to Borrower as set forth in that certain Secured Promissory Note (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the "Note"), and other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, this Guarantee (all of the foregoing, together with the Note, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the "Financing Agreements").
Due to the close business and financial relationships between Borrower and the undersigned ("Guarantor"), in consideration of the benefits which will accrue to Guarantor and as an inducement for and in consideration of Lender making loans and advances and providing other financial accommodations to Borrower pursuant to the Note and the other Financing Agreements, Guarantor hereby agrees in favor of Lender as follows:
1. Guarantee.
Source: Item 23 — Receipts (FDD pages 74–305)
What This Means (2025 FDD)
Based on the 2025 Aerus Franchise Disclosure Document, the provided excerpts discuss a guarantee related to financing arrangements between Aerus Franchising, LLC, the franchisee (referred to as "Borrower"), and a guarantor. The document states that these financing arrangements are outlined in a Secured Promissory Note and other related agreements, collectively called "Financing Agreements."
The guarantee obligation is generally non-recourse, meaning the guarantor's personal assets are not at risk. However, there are exceptions where the guarantee becomes applicable. These exceptions include instances of fraud or misrepresentation related to the Franchise Agreement, the Note, or any other Financing Agreements. It also applies to theft or conversion of Aerus's assets, misuse of Aerus's intellectual property, or breach of the franchise agreement concerning trademarks and intellectual property.
The excerpts do not explicitly address whether the Aerus Guarantee can be amended by course of conduct. The document mentions that the Financing Agreements, including the Note and the Guarantee, can be "amended, modified, supplemented, extended, renewed, restated or replaced." However, it does not specify whether such amendments can occur through the parties' actions or behaviors over time (i.e., "course of conduct") rather than through a formal written agreement. A prospective franchisee should seek clarification from Aerus regarding the process and requirements for amending the Guarantee and whether course of conduct can play a role in such amendments.