Is a Brain Balance guarantor entitled to notice of demand for payment of any indebtedness?
Brain_Balance Franchise · 2025 FDDAnswer from 2025 FDD Document
hereby personally and unconditionally: (1) guaranties to FRANCHISOR and its successors and assigns, for the term of the Agreement and thereafter as provided in the Agreement; and agrees to punctually pay and perform each and every undertaking, agreement and covenant set forth in the Agreement, and (2) agrees to be personally bound by, and personally liable for the breach of, each and every term, condition, covenant and provision in the Agreement. Each Guarantor expressly represents and acknowledges that he or she has read the Agreement and has had the opportunity to review the same, and this Guaranty, with counsel. Each Guarantor hereby expressly waives:
- (1) acceptance and notice of acceptance by FRANCHISOR, of the foregoing undertakings;
- (2) notice of demand for payment of any indebtedness or non performance of any obligations hereby guaranteed;
- (3) protest and notice of default to any party with respect to the indebtedness or nonperformance of any obligations hereby guaranteed;
- (4) any right he or she may have to require that an action be brought against FRANCHISEE, Guarantor or any other person as a condition of liability;
- (5) any requirement that FRANCHISOR proceed against or exhaust its remedies with respect to FRANCHISEE or any other person before demanding payment or performance by Guarantor; and
- (6) any and all other notices and legal or equitable defenses to which he or she may be entitled. Each Guarantor consents and agrees that:
- (1) his or her direct and immediate liability under this guaranty shall be joint and several;
- (2) he or she shall render any payment or performance required under the Agreement upon demand if FRANCHISEE fails or refuses to do so punctually;
- (3) such liability shall not be contingent or conditioned upon pursuit by FRANCHISOR of any remedies against FRANCHISEE or any other person;
- (4) such liability shall not be diminished, relieved or otherwise affected by any extension of time, credit or other indulgence which FRANCHISOR may, from time to time, grant to FRANCHISEE or to any other person, including without limitation the acceptance of any partial payment or performance, or the compromise or release of any claims, none of which shall in any
Source: Item 23 — RECEIPTS (FDD pages 72–292)
What This Means (2025 FDD)
According to Brain Balance's 2025 Franchise Disclosure Document, a guarantor is not entitled to notice of demand for payment of any indebtedness. The guarantor expressly waives this right, as indicated in the guaranty agreement. This means that Brain Balance can demand payment from the guarantor without first notifying them of the franchisee's failure to pay.
This waiver is part of a broader set of waivers designed to protect Brain Balance's interests. The guarantor also waives acceptance and notice of acceptance by Brain Balance, protest and notice of default, any right to require action against the franchisee first, any requirement that Brain Balance exhaust remedies against the franchisee before demanding payment from the guarantor, and any other notices and legal or equitable defenses.
The guarantor also consents to several conditions, including joint and several liability, immediate payment upon demand if the franchisee fails to pay, and that their liability is not contingent upon Brain Balance pursuing remedies against the franchisee. The guarantor's liability will also not be affected by any extensions of time or credit that Brain Balance may grant to the franchisee.
For a prospective Brain Balance franchisee, this means that anyone acting as a guarantor for their obligations under the Franchise Agreement takes on significant personal financial risk. They should be fully aware that they can be held liable for the franchisee's debts without prior notice and should carefully consider the implications before signing the guaranty.