Does a Brain Balance guarantor need to be notified of the franchisor's acceptance of undertakings?
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.
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 required to be notified of the franchisor's acceptance of undertakings. The guarantor explicitly waives this right, along with other notifications and demands. This waiver is part of the guarantor's agreement to ensure the franchisee fulfills all obligations under the franchise agreement.
This means that if you act as a guarantor for a Brain Balance franchisee, you will not receive a formal notice when Brain Balance accepts the guarantee. Your liability as a guarantor begins immediately upon signing the guaranty, and you are responsible for ensuring the franchisee complies with the agreement terms. This includes financial obligations and other performance requirements.
The guarantor also waives the right to demand that Brain Balance first pursue action against the franchisee or any other person before seeking payment or performance from the guarantor. The guarantor's liability is joint and several, meaning Brain Balance can seek full payment or performance directly from the guarantor without first exhausting remedies against the franchisee. This arrangement is designed to provide Brain Balance with a direct and efficient recourse in case of franchisee default.
As a prospective guarantor, it is crucial to fully understand the implications of these waivers. You should carefully review the franchise agreement and guaranty with legal counsel to assess the risks and obligations involved. Be aware that your liability is not contingent upon Brain Balance pursuing other remedies and that you will not receive notifications of acceptance or demands for payment before being held responsible for the franchisee's obligations.