Does the Lessor have an obligation to pursue remedies against a Bens Soft Pretzels subtenant?
Bens_Soft_Pretzels Franchise · 2025 FDDAnswer from 2025 FDD Document
4.3 Lessor's Remedies. In the event of a default in any term, covenant or condition on the Subtenant's part to be performed under the Lease, Lessor shall have the right, but not the obligation, to pursue the remedies available to it under the Lease or otherwise, directly against Subtenant without prejudice to its rights to pursue Sublessor jointly or severally in the same manner. Sublessor, at its election, may require Lessor to (a) proceed against Subtenant; (b) proceed against or exhaust any security held from Subtenant; or (c) pursue any remedy in Lessor's power whatsoever. Subtenant waives any defenses that may be acquired by reason of Lessor's election of any remedy against Subtenant, including without limitation, an election by Lessor to exercise any of its rights under the provisions of applicable law, under the Lease, or hereunder. Subtenant waives the right to require Lessor to enforce or pursue any remedy which Lessor now has or may hereafter have against Sublessor, and further hereby waives the benefit of, or any right to participate in any security now or hereafter held by Landlord from any other party except to the extent that such security remains after performance of the obligations of said other party in full. No failure, delay or election to pursue Subtenant on the part of Sublessor or Lessor or to pursue any remedy hereunder or under the Lease, shall constitute a waiver on its part of the right to pursue said remedy against the Subtenant on the basis of the same or subsequent breach.
Source: Item 22 — CONTRACTS (FDD pages 46–47)
What This Means (2025 FDD)
According to Bens Soft Pretzels' 2025 Franchise Disclosure Document, the Lessor (the landlord) does not have an obligation to pursue remedies against a Subtenant. Instead, the Lessor has the right, but not the obligation, to pursue remedies available under the lease directly against the Subtenant if the Subtenant defaults on any term, covenant, or condition. This is without prejudice to the Lessor's rights to pursue the Sublessor (Bens Soft Pretzels) jointly or severally.
Bens Soft Pretzels, as the Sublessor, can require the Lessor to take certain actions. These actions include proceeding against the Subtenant, proceeding against or exhausting any security held from the Subtenant, or pursuing any remedy within the Lessor's power. The Subtenant also waives any defenses related to the Lessor's choice of remedy and waives the right to require the Lessor to enforce any remedy against the Sublessor.
This arrangement provides the Lessor with flexibility in addressing defaults, allowing them to pursue the most effective course of action. For a prospective Bens Soft Pretzels franchisee (the Subtenant), this means they could be directly targeted by the Lessor for lease violations, regardless of whether the Lessor also pursues the Sublessor (Bens Soft Pretzels). The franchisee also gives up some rights to dictate which remedies the Lessor chooses to pursue.