Under the Amorino Guaranty, is the guarantor's liability joint and several with the franchisee?
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;
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, immediate, and independent of the franchisee's liability, and is joint and several with the franchisee and other owners of the franchisee. This means that Amorino can pursue the guarantor directly for any obligations the franchisee fails to meet, without first having to pursue the franchisee.
This arrangement provides Amorino with a stronger assurance that all financial and contractual obligations will be fulfilled. The guarantor cannot claim that Amorino should have pursued the franchisee first or that the guarantor's liability is dependent on the franchisee's ability to pay. The guarantor is equally responsible.
Furthermore, the guaranty remains in effect even if the franchise agreement is extended or modified, or if there is a transfer of interest in the agreement or the franchisee. The guarantor also waives any notice of renewals, extensions, modifications, amendments, or transfers. This ensures that the guaranty remains robust and enforceable throughout the term of the agreement, regardless of changes to the franchise or its ownership.
This type of guaranty is common in franchising to protect the franchisor's interests. Prospective Amorino franchisees should carefully review the guaranty and understand the full extent of their obligations and potential liabilities before signing the franchise agreement. It is advisable for guarantors to seek independent legal counsel to fully understand the implications of providing such a guaranty.