factual

Under the Boulder Designs Personal Guarantee, is the Guarantor's liability primary or secondary?

Boulder_Designs Franchise · 2025 FDD

Answer from 2025 FDD Document

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

Source: Item 22 — CONTRACTS (FDD page 50)

What This Means (2025 FDD)

According to Boulder Designs' 2025 Franchise Disclosure Document, the liability of the guarantor is primary. This means that the guarantor is directly responsible for the franchisee's obligations to Boulder Designs, as outlined in the franchise agreement. Boulder Designs does not need to first seek payment from the franchisee before pursuing the guarantor for any outstanding debts or unfulfilled responsibilities.

This primary liability has significant implications for anyone considering acting as a guarantor for a Boulder Designs franchise. The guarantor's assets and financial stability are directly at risk should the franchisee default on their obligations. This is a more stringent requirement than a secondary guarantee, where the franchisor would first need to exhaust all options for collecting from the franchisee before turning to the guarantor.

Furthermore, the guarantor waives notice of any extensions of time or indulgences granted by Boulder Designs to the franchisee. This means that even if Boulder Designs gives the franchisee extra time to pay or meet their obligations, the guarantor remains fully liable without needing to be informed of these arrangements. The guarantor's obligations remain in effect regardless of any modifications or waivers granted to the franchisee, or any changes in security or other guarantees related to the franchisee's obligations.

In essence, by signing the personal guarantee, the guarantor is making a direct and unconditional promise to Boulder Designs that the franchisee's obligations will be met. Prospective guarantors should carefully consider the financial risks and seek legal advice before committing to such an agreement.

Disclaimer: This information is extracted from the 2025 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.