Does a delay by Benihana in exercising its rights under the franchise agreement constitute a waiver of those rights?
Benihana Franchise · 2024 FDDAnswer from 2024 FDD Document
- (i) GUARANTOR'S liability will not be diminished, relieved, or otherwise affected by any extension of time, credit, or other indulgence, or any waiver FRANCHISOR may from time to time grant to FRANCHISEE or to any other person, including without limitation, the acceptance of any partial payment or performance, or the compromise or release of any claims (including the release of other owners or Guarantors), or FRANCHISOR taking any action that may have the effect of increasing GUARANTOR'S obligations.
None of those actions or occurrences will in any way modify or amend this Guaranty, which will be continuing and irrevocable during the term of the Franchise Agreement and so long as FRANCHISEE's performance is or may be owed under any of the BENIHANA Agreements and so long as FRANCHISOR may have any cause of action against FRANCHISEE or its owners;
Source: Item 22 — CONTRACTS (FDD pages 73–74)
What This Means (2024 FDD)
According to Benihana's 2024 Franchise Disclosure Document, the Guarantor's liability, as it relates to the franchise agreement, will not be diminished or affected by any extension of time, credit, or other leniency that Benihana may grant to the franchisee or any other person. This includes the acceptance of partial payment or performance, compromise or release of claims, or Benihana taking any action that may increase the Guarantor's obligations.
None of these actions or occurrences will modify or amend the Guaranty, which remains continuous and irrevocable during the term of the Franchise Agreement. This applies as long as the franchisee's performance is or may be owed under any of the Benihana Agreements and as long as Benihana may have any cause of action against the franchisee or its owners.
In simpler terms, even if Benihana allows some flexibility or delays in enforcing certain aspects of the agreement, it does not mean they are waiving their rights. The Guarantor remains fully responsible under the terms of the Guaranty, regardless of any leniency Benihana might show to the franchisee. This protects Benihana's interests and ensures that the Guarantor's obligations remain intact throughout the duration of the franchise agreement.