factual

In the Bor Restoration franchise agreement, what is the purpose of the 'RECITALS' section?

Bor_Restoration Franchise · 2024 FDD

Answer from 2024 FDD Document

e Franchise Disclosure Supplemental Agreements are amended accordingly.

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EXHIBIT 8 GUARANTY

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GUARANTY OF FRANCHISEE'S OBLIGATIONS

This Guaranty of Franchisee's Obligations (Guaranty) is entered into as of the date that it is signed by all Parties (Effective Date) of this Guaranty, between BOR Franchising, LLC (Franchisor), (Franchisee) and , and (jointly and severally known as "Guarantor(s)"). Franchisor, Franchisee, and Guarantors may be referred to as a "Party" or as the "Parties." Any capitalized term not defined here will have the meaning given to it in the Franchise Agreement.
RECITALS
Franchisee signed a franchise agreement with Franchisor on the day of, 20
(Franchise Agreement).
As an inducement to the Franchisor for granting the
franchise rights, the
Guarantor(s) agreed to fully guaranty the payment and performance of Franchisee under the Franchise
Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants found herein and for other
good and valuable consideration, which consideration is deemed to be adequate by all Parties, each of the
undersigned personally and unconditionally agrees
to the following:
COVENANTS
1.
Guarantor(s) guarantee to Franchisor and its successors and assigns, for the Term of the
Franchise Agreement, that Franchisee will
timely pay any amount required by the Franchise Agreement
and will perform every undertaking, agreement, and covenant under the Franchise Agreement and any
addenda or Exhibits attached to it
as each may be amended or renewed.
2.
Guarantor(s) also agrees to be personally bound by every term of the Franchise
Agreement, as amended or renewed,
and agrees to be personally liable for the breach of and cure of every
breach of any term, covenant, or condition of the Franchise Agreement.
Guarantor(s) agree that this
Guaranty is one of payment and performance and not one of just collection.
3.
By signing this Guaranty, each Guarantor further agrees that each shall also be subject to
all restrictive covenants in the Franchise Agreement, including
all covenants of Articles
6, 14, 15,
and 16.
4.
As part of the inducement given to Franchisor by Guarantor(s),
the Guarantor(s) further
agree to waive the following,
a.
acceptance or notice of acceptance;
b.
notice of demand for payment of any indebtedness or notice of any
nonperformance of any obligations;
c.
protest and notice of default concerning
the indebtedness or nonperformance of
any obligations guaranteed;
d.
any right Guarantor may have to require that any action be first brought against
Franchisee or any other Person
as a condition of liability; and
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  • e. all other notices and legal or equitable defenses to which Guarantor may be entitled.
      1. Guarantor(s) further consent and agrees that:
  • a. Guarantor(s) is directly and immediately liable under this Guaranty, and if signed by more than one Person, such liability is joint and several;
  • b. Guarantor(s) shall render any payment or performance required under the Franchise Agreement upon demand of Franchisor if Franchisee fails or refuses punctually to do so;
  • c. Guarantor(s) performance shall not be contingent or conditioned upon the pursuit of any remedies against Franchisee or any other Person;
  • d. Guarantor(s) liability shall not be diminished, relieved, or otherwise affected by an extension of time, credit, or another indulgence, including the acceptance of any partial payment or performance, or the compromise or release of any claims which Franchisor may from time to time grant to Franchisee or any other Person, none of which shall in any way modify or amend this Guaranty, which shall be continuing and irrevocable during the Term of the Franchise Agreement, including renewals thereof;
  • e. this Guaranty will be continuing and irrevocable during the Term of the Franchise Agreement, including renewals thereof; and,
  • f. Franchisor's rights under this Guaranty will not be exhausted by any action of Franchisor until all of the terms, covenants, and conditions of the Franchise Agreement have been met.
    1. Guarantor waives all of the following, whether created or imposed by or under statute, common law or otherwise:
  • a. any right to require Franchisor to proceed against Franchisee or any other Person or any security now or hereafter held by Franchisor or to pursue any other remedy whatsoever;
  • b. any defense based upon any legal disability of Franchisee or any Guarantor, or any discharge or limitation of the liability of Franchisee or any Guarantor to Franchisor, or any restraint or stay applicable to actions against Franchisee or any other Guarantor, whether such disability, discharge, limitation, restraint or stay is consensual, or by order of a court or other governmental authority, or arising by operation of law or any liquidation, reorganization, receivership, bankruptcy, insolvency or debtor-relief proceeding, or from any other cause;
  • c. all setoffs, counterclaims, presentment, demand, protest, or notice of any kind, except for any notice which may be expressly required by the provisions of this Guaranty.
  • d. any defense based upon the modification, renewal, extension, or other alteration of the obligations under the Franchise Agreement or of the documents executed in connection therewith;
  • e. any defense based upon the negligence of Franchisor, including the failure to file a claim in any bankruptcy of the Franchisee or any guarantor;
    • f. all rights of subrogation, reimbursement, and indemnity;
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  • g. any defense based upon or related to Guarantor's lack of knowledge as to Franchisee's financial condition;
    • h. all rights to revoke this Guaranty in whole or in part;
  • i. any defense based upon any action taken or omitted by Franchisor in any bankruptcy or other insolvency proceeding involving Franchisee; and,
  • j. all rights and defenses arising out of an election of remedies by Franchisor, even though that election of remedies impairs or destroys Guarantor's right of subrogation or reimbursement against Franchisee.
    1. Guarantor agrees to pay upon Franchisor's demand, Franchisor's reasonable out-of-pocket costs and expenses, including to attorneys' fees, costs, and disbursements, incurred to collect or enforce any of the terms, covenants, or conditions of the Franchise Agreement, or this Guaranty, regardless whether any lawsuit is filed.
    1. Guarantor, and each Person executing this Guaranty as Guarantor jointly and individually, makes the following representations and warranties, which are deemed to be continuing representations and warranties until payment and performance in full of terms, covenants, and conditions of the Franchise Agreement:
  • a. Guarantor has all the requisite power and authority to execute, deliver, and be legally bound by this Guaranty on the terms and conditions herein stated;
  • b. this Guaranty constitutes the legal, valid, and binding obligations of Guarantor enforceable against Guarantor under its terms;
  • c. the execution and delivery of this Guaranty and the consummation of the transaction contemplated herein will not, with or without notice or lapse of time, (i) constitute a breach of any of the terms and provisions of any note, contract, document, agreement or undertaking, whether written or oral, to which Guarantor is a party or to which Guarantor's property is subject; (ii) accelerate or constitute any event entitling the holder of any indebtedness of Guarantor to accelerate the maturity of any such indebtedness; (iii) conflict with or result in a breach of any writ, order, injunction or decree against Guarantor of any court or governmental agency or instrumentality; or (iv) conflict with or be prohibited by any federal, state, local or other governmental law, statute, rule or regulation;
  • d. No consent of any other Person is required in connection with the valid execution, delivery, or performance by Guarantor of this Guaranty; and,
  • e. this Guaranty and any other statement furnished by Guarantor contain no untrue statements of a material fact or omits to state a material fact necessary to make the statements contained herein or therein true and not misleading.
    1. Each Guarantor understands and agrees that each is bound by the Dispute Resolution covenants of the Franchise Agreement found at Article 16, which are incorporated herein by this reference as if fully set forth here.

| 10. | TO | THE | FULLEST | EXTENT | PERMITTED | BY | | APPLICABLE | LAW, | |------------|----|-------------------------------------------------------------|---------|--------|-----------|----|------------|--------------|------| | GUARANTORS | | FURTHER © 2024 All rights reserved BOR Franchising, LLC Gen 3-30-24 | WAIVE | AND | RELEASE | | FRANCHISOR Initials | FROM Initials | THE 94 |

ENFORCEMENT OF ANY PROVISIONS OF APPLICABLE LAW (INCLUDING, FOR EXAMPLE, COLORADO REVISED STATUTE § 13-50-103), WHICH PROVIDES, IN PART, THAT IF ONE OR MORE JOINT DEBTORS ARE RELEASED OF LIABILITY, NONE OF THE REMAINING DEBTORS WILL BE LIABLE FOR MORE THAN THEIR PROPORTIONATE SHARE OF THE INDEBTEDNESS. AS A RESULT, EACH GUARANTOR COVENANTS AND AGREES THAT EACH WILL BE LIABLE JOINTLY AND SEVERALLY FOR THE ENTIRE AMOUNT DUE REGARDLESS OF THE CONTRIBUTION OR FAILURE TO CONTRIBUTE BY ANOTHER GUARANTOR.

  1. The Recitals are incorporated by this reference.

DONE AS OF THE EFFECTIVE DATE.

BOR FRANCHISING, LLC Member date: its: date: IF FRANCHISEE IS/ARE INDIVIDUAL(S) Name: Date: GUARANTOR(S) Print Name: Print Name:

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EXHIBIT 9 CLOSING ACKNOWLEDGEMENTS

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CLOSING ACKNOWLEDGEMENT

| Franchisee Name: | | | |-------------------------------|----|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Address: | | | | Telephone: | | | | Today's Date: | | | | A. | | GENERAL QUESTIONS | | was: | 1. | The date I received the Franchise Disclosure Document (FDD) from Franchisor | | | | | | (not including the Receipt) | 2. | The earliest date I signed the Franchise Agreement or any other binding document was: | | | | | | | 3. | The earliest date I delivered cash, check, or consideration to the franchise marketing representative or any other Person was: | | | | | | | 4. | Did you initiate negotiations about the Franchise Agreement with the Franchisor? Yes No If yes, what was that date? | | | | | | B. | | REPRESENTATIONS | | IS IMPORTANT TO YOU. | 1. | THE STATEMENT IS TRUE OR FALSE AND PROVIDE ANY OTHER INFORMATION THAT I had an opportunity to review the FDD and other agreements attached to the disclosure document and understand the terms, conditions, and obligations of these agreements. | |  | |  | | Yes | | No | | | | _ | | | | | | | | Initials | | Agreement, | 2. | I had an opportunity to seek professional advice regarding the FDD, the Franchise and all matters concerning my franchise purchase. | |  | |  | | Yes | | No | | | | | | | | | | | | Initials | | made to or with me concerning | 3. | Except as specifically written in the Franchise Agreement, no promises, agreements, contracts, commitments, representations, understandings, "side deals" or otherwise have been any matter, including any representations or promises regarding advertising, marketing, operational assistance or other services. | |  Agree | |  Disagree © 2024 All rights reserved BOR Franchising, LLC Gen 3-30-24 97 | | | | Initials Initials |

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4. No oral, written, or visual claim or representation, promise, agreement, contract, commitment, representation, understanding, or otherwise which contradicted or was inconsistent with the disclosure document or the Franchise Agreement was made to me.
Agree Disagree
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5. Franchisor. Except as specifically stated in Item 19 of the disclosure document, no oral, written, visual, or other claim or representations were made that expense, profits, cash flow, tax effects, or otherwise was made to me by any Person stated or suggested any sales, income, representing the
Agree Disagree
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6. I have adequate working capital to develop, open, and operate my Franchised
Business.
Agree Disagree
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7. I understand that my investment in this business contains substantial business risks, and there is no guarantee that it will be profitable.
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8. Business.

Source: Item 23 — Receipts (FDD pages 40–202)

What This Means (2024 FDD)

According to Bor Restoration's 2024 Franchise Disclosure Document, the 'RECITALS' section in both the Guaranty of Franchisee's Obligations and the General Release serves to provide context and background for the agreements. Specifically, the recitals outline the existing relationship between Bor Restoration (the Franchisor), the Franchisee, and any Guarantors.

In the Guaranty of Franchisee's Obligations, the recitals section states that the Franchisee has signed a franchise agreement with Bor Restoration on a specific date. It also clarifies that the Guarantor(s) have agreed to fully guarantee the payment and performance of the Franchisee's obligations under the Franchise Agreement as an incentive for Bor Restoration to grant the franchise rights. This establishes the foundation for the Guarantor's commitment.

Similarly, in the General Release, the recitals section indicates that Bor Restoration and the Franchisee have an existing franchise agreement, and a Guarantor guarantees the Franchisee's performance. It further explains that the Franchisee desires to take some action or amendment to the Franchise Agreement, which necessitates a General Release either as stipulated in the Franchise Agreement or required by Bor Restoration. The Franchisee and Guarantor agree to provide the Release as an inducement for Bor Restoration's approval. This section sets the stage for the release of certain obligations or liabilities.

In essence, the 'RECITALS' sections in these Bor Restoration documents act as introductory statements that explain the reasons and circumstances leading to the creation of the agreements, clarifying the roles and intentions of each party involved.

Disclaimer: This information is extracted from the 2024 Franchise Disclosure Document and is provided for research purposes only. It does not constitute legal or financial advice. Consult with a franchise attorney before making any investment decisions.