Under the Amorino Guaranty, is the guarantor's liability direct or indirect?
Amorino Franchise · 2025 FDDAnswer from 2025 FDD Document
Each Guarantor hereby consents and agrees that:
- (a)Guarantor's liability under this undertaking shall be direct, immediate, and independent of the liability of, and shall be joint and several with, Franchisee and the other owners of Franchisee;
- (b)Guarantor shall render any payment or performance required under the Agreement upon demand if Franchisee fails or refuses punctually to do so;
- (c)this liability will not be contingent or conditioned upon our pursuit of any remedies against Franchisee or any other person;
- (d)this liability shall not be diminished, relieved or otherwise affected by any extension of time, credit, or other indulgence which Franchisor may grant to Franchisee or to any other person, including the acceptance of any partial payment or performance, or the compromise or release of any claims (including the release of other Guarantors), none of which shall in any way modify or amend this Guaranty, which shall be continuing and irrevocable during the term of the Agreement, for so long as any performance is or might be owed under the Agreement by Franchisee or its owners, and for so long as Franchisor has any cause of action against Franchisee or its owners;
- (e)this Guaranty will continue in full force and effect for (and as to) any extension or modification of the Agreement and despite the transfer of any interest in the Agreement or Franchisee, and
- (f) each Guarantor waives notice of any and all renewals, extensions, modifications, amendments, or transfers;
- (g)upon our request, Guarantor must submit to Franchisor suitable credit and information to allow Franchisor to make a reasonable decision as to the Guarantor's creditworthiness and financial position including, without limitation, a personal net worth statement and such other
information which would reasonably be considered relevant to Franchisor in determining whether or not Guarantor has the ability to satisfy their obligations under this Guaranty;
- (h)this Guarantor will continue unchanged by the occurrence of any bankruptcy with respect to Franchisee or any assignee or successor of Franchisee or by any abandonment of the Agreement by a trustee of Franchisee. Neither Guarantor's obligations to make payment or render performance in accordance with the terms of this undertaking nor any remedy for enforcement shall be impaired, modified, changed, released or limited in any manner whatsoever by any impairment, modification, change, release or limitation of the liability of Franchisee or its estate in bankruptcy or of any remedy for enforcement, resulting from the operation of any present or future provision of the U.S. Bankruptcy Act or other statute, or from the decision of any court or agency;
- (i) Franchisor may proceed against Guarantor and Franchisee jointly and severally, or Franchisor may, at its option, proceed against any number of Guarantors, without having commenced any action, or having obtained any judgment against Franchisee or any other Guarantor. Guarantor hereby waives the defense of the statute of limitations in any action hereunder or for the collection of any indebtedness or the performance of any obligation hereby guaranteed;
- (j) Guarantor agrees to pay all reasonable attorneys' fees and all costs and other expenses incurred in any collection or attempt to collect amounts due pursuant to this undertaking or any negotiations relative to the obligations hereby guaranteed or in enforcing this undertaking against Guarantor; and
- (k)Guarantor is bound by the restrictive covenants, confidentiality provisions, posttermination obligations, and indemnification provisions contained in the Agreement.
Source: Item 22 — CONTRACTS (FDD pages 80–81)
What This Means (2025 FDD)
According to Amorino's 2025 Franchise Disclosure Document, the guarantor's liability is direct. Each guarantor consents and agrees that their liability under the guaranty is direct, immediate, and independent of the franchisee's liability. It is also joint and several with the franchisee and other owners of the franchisee.
This means that Amorino can seek payment or performance directly from the guarantor if the franchisee fails to fulfill their obligations under the franchise agreement. The guarantor's obligation is not contingent on Amorino first pursuing remedies against the franchisee or any other person. This provides Amorino with a more straightforward path to recover any amounts owed or ensure compliance with the franchise agreement.
Furthermore, the guarantor's liability will not be affected by any extensions of time, credit, or other allowances that Amorino may grant to the franchisee. The guaranty remains continuing and irrevocable during the term of the agreement, as long as any performance is owed by the franchisee or its owners, and as long as Amorino has any cause of action against them. The guarantor also waives notice of any renewals, extensions, modifications, amendments, or transfers related to the agreement.
Amorino may request the guarantor to submit credit and financial information to assess their creditworthiness and ability to satisfy their obligations under the guaranty. This includes a personal net worth statement and other relevant information. The guarantor is also bound by the restrictive covenants, confidentiality provisions, post-termination obligations, and indemnification provisions contained in the franchise agreement.