Is the Boulder Designs Personal Guarantee described as a continuing, absolute, and irrevocable guarantee?
Boulder_Designs Franchise · 2025 FDDAnswer from 2025 FDD Document
eunder shall be deemed to have become immediately due and payable, without demand, presentment, protest or notice of any kind, all of which are hereby waived, and without any suit or action against the Franchisee or the Guarantor and without further steps to be taken or further conditions to be performed by Franchisor or anyone. Failure of Franchisor to make any demand or otherwise to proceed against the Guarantor in respect to any default by the Franchisee or the Guarantor, or any delay by Franchisor in doing so, shall not constitute a waiver of any Franchisor's right to proceed in respect to any or all other defaults by the Franchisee or the Guarantor.
Boulder Designs® 1 The liability of the Guarantor is primary and shall not be terminated or otherwise affected or impaired by, and the Guarantor waives notice of, any granting time by Franchisor to the Franchisee (regardless of the number of length of such grant of time) or any other indulgence or indulgences granted by Franchisor to the Franchisee; Franchisor heretofore, now or hereafter acquiring, releasing or in any way modifying any guaranty from any other person or persons or any collateral or other security in whatever form for any of the obligations hereby guaranteed, whether or not notice thereof shall have been or be given to the Guarantor; any failure on the part of Franchisor to take any action with respect to, or to realize upon any security, rights, endorsements or guaranties which Franchisor may now or hereafter hold with respect to any obligation hereby guaranteed, including without limitation rights against the Franchisee; any alterations, waivers, extensions, renewals or modifications of any such obligation to which Franchisor may agree from time to time; any invalidity or unenforceability of any of the obligations guaranteed hereby; any change in the membership of any partnership which shall be the Franchisee; any fraud, illegal or improper acts of the Franchisee; any relief of the Franchisee with respect to its obligations to Franchisor because of any right of set-off, deduction or defense of any kind or otherwise; any other defenses which might constitute a legal or equitable discharge of a surety or guarantor; the failure of Franchisor to perfect any lien securing any Franchisee obligations or the obligations of other parties, including any other guarantors; voluntary or involuntary bankruptcy (including a reorganization in bankruptcy) of the Franchisee or entry of an order for relief against or with respect to the Franchisee under any applicable bankruptcy or like laws; composition, extension, moratoria or other forms of debtor relief granted to the Franchisee pursuant to law presently in force or hereafter enacted; payment of any or all obligations and indebtedness of the Franchisee in the event such payment is invalidated or avoided by a trustee, custodian or receiver of the Franchisee; the dissolution of the Franchisee; or the reorganization, merger or consolidation of the Franchisee into or with another entity, corporate or otherwise, or the sale or disposition of all or substantially all of the capital
Franchise Agreement | 2025
stock, business or assets of the Franchisee to any other person or party. The Guarantor further waives all suretyship defenses and defenses in the nature thereof; any right or claim to right to cause a marshalling of the guarantors before enforcing this guaranty;
Source: Item 22 — CONTRACTS (FDD page 50)
What This Means (2025 FDD)
According to Boulder Designs' 2025 Franchise Disclosure Document, the personal guarantee is not explicitly described as a "continuing, absolute, and irrevocable guarantee." However, the FDD does state that the guarantor's liability is primary and not terminated or affected by any leniency the franchisor grants to the franchisee. The guarantor also waives notice of any time extensions or other indulgences granted by Boulder Designs to the franchisee. This suggests a strong and ongoing commitment from the guarantor.
The personal guarantee ensures the prompt and full payment of all amounts owed by the franchisee under the Franchise Agreement. The guarantor agrees to pay all amounts due within 14 days of receiving notice from Boulder Designs that the franchisee has failed to make payment. Boulder Designs does not need to exhaust its remedies against the franchisee before seeking recovery from the guarantor. This clause emphasizes the direct and immediate responsibility of the guarantor.
Furthermore, the FDD states that no modification, change, impairment, or suspension of any of Boulder Designs' rights or remedies will affect the guarantor's obligations. The guarantor's liability remains even if Boulder Designs releases other security or if other persons have personally guaranteed the franchisee's obligations. The guarantor also waives trial by jury in any action related to the Franchise Agreement. These provisions collectively indicate a robust and comprehensive guarantee, even though the specific terms "continuing, absolute, and irrevocable" are not explicitly used. Prospective franchisees should carefully review the full text of the personal guarantee to fully understand their obligations.