Can the Lessor pursue remedies directly 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, if a subtenant defaults on any term, covenant, or condition under the lease, the Lessor has the right, but not the obligation, to pursue remedies directly against the subtenant. This action would not prejudice the Lessor's rights to also pursue the Sublessor (Bens Soft Pretzels LLC) jointly or severally.
Bens Soft Pretzels LLC, as the Sublessor, can require the Lessor to take specific actions, including proceeding against the Subtenant, pursuing any security held from the Subtenant, or using any other remedy available to the Lessor. The Subtenant waives any defenses they might acquire due to the Lessor's choice of remedy, including rights under applicable law or the lease.
The subtenant also waives the right to demand that the Lessor enforce any remedy against the Sublessor and waives any benefit from security held by the Lessor from another party, except to the extent that security remains after the other party's obligations are fulfilled. Any failure or delay by the Sublessor or Lessor in pursuing the Subtenant or any remedy does not waive their right to pursue that remedy against the Subtenant for the same or subsequent breach. These rights and remedies are cumulative and in addition to any other remedies available at law or in equity.