Does the guarantor for a Brain Balance franchise waive all legal or equitable defenses to which he or she may be entitled?
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
Source: Item 23 — RECEIPTS (FDD pages 72–292)
What This Means (2025 FDD)
According to the 2025 Brain Balance Franchise Disclosure Document, a guarantor for a Brain Balance franchise expressly waives several rights and defenses. This waiver is part of the guaranty agreement that the guarantor must sign.
The guarantor waives acceptance and notice of acceptance by Brain Balance, notice of demand for payment, protest and notice of default, and any right to require Brain Balance to bring an action against the franchisee or any other person before pursuing the guarantor. The guarantor also waives any requirement that Brain Balance exhaust its remedies against the franchisee before demanding payment or performance from the guarantor.
Most significantly, the guarantor waives "any and all other notices and legal or equitable defenses to which he or she may be entitled." This means the guarantor gives up virtually all rights to contest the guaranty, which could have significant financial implications. The guarantor also consents to joint and several liability, meaning they can be held fully responsible for the franchisee's obligations. This liability is not contingent on Brain Balance pursuing remedies against the franchisee first, nor is it affected by any extensions of time or credit Brain Balance may grant to the franchisee.
Prospective franchisees should ensure that any individual acting as a guarantor fully understands the implications of this waiver, as it significantly limits their ability to defend against claims made by Brain Balance under the guaranty.