What recourse does Burneys Sweets More have if a default is not curable?
Burneys_Sweets_More Franchise · 2025 FDDAnswer from 2025 FDD Document
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18. Obligations upon Termination, Expiration, or Non-renewal.
Upon termination, expiration, or non-renewal of this Agreement, regardless of such reason for termination, expiration, or non-renewal, all rights granted hereunder to Franchisee shall terminate and revert to Franchisor, and Franchisee shall have the following obligations:
(a) Cease to Operate. Franchisee shall immediately cease to operate the business licensed under this Agreement, and shall not thereafter, directly or indirectly, represent to the public or hold itself out as a BURNEY'S SWEETS & MORE franchisee with respect to such business.
(b) Cease to use Information. Franchisee shall immediately and permanently cease to use, in any manner whatsoever, all confidential information, methods, procedures and techniques used by or associated with the System, and the proprietary mark BURNEY'S SWEETS & MORE and all other Marks and distinctive forms, slogans, signs, symbols, logos, trade dress, décor, branding materials and devices associated with the BURNEY'S SWEETS & MORE Chain.
(c) Return Franchisor's Property. Franchisee shall immediately return to Franchisor any property held or used by Franchisee which is owned by Franchisor, including the Customer Lists and Franchised Business Data, and shall cease to use, and either destroy or convey to Franchisor, all signs, advertising materials, displays, stationery, forms, and any other materials that bear or display the Marks. Franchisee shall deliver to Franchisor all login credentials associated with any directory, marketing, Computer Systems, Online Presences, and all other accounts and systems affiliated with the Franchised Business. Franchisee shall immediately deliver to Franchisor all manuals, policy and procedure statements, instructions, Brand Standards Manual, and other materials related to operating the Shop, including, without limitation, brochures, charts and any other materials provided by Franchisor and all copies thereof, and shall neither retain nor convey to another any copy or record of any of the foregoing.
(d) Cancel Assumed Names. Franchisee shall take such actions as may be necessary to cancel any assumed name or similar registration which contains the mark BURNEY'S SWEETS & MORE or any other Marks of Franchisor, and Franchisee shall furnish Franchisor with evidence satisfactory to Franchisor of compliance with its obligation within thirty (30) days after termination, expiration, or non-renewal of this Agreement.
(e) Pay All Sums Due. Franchisee shall promptly pay all sums owed to Franchisor upon request. Such sums shall include all damages, costs, losses, and expenses, including reasonable attorneys' fees, incurred by Franchisor as a result of the default and the termination. Any outstanding obligations to Franchisor shall give rise to and remain, until paid in full, a lien in favor of Franchisor against any and all of the personal property, furnishings, equipment, signs, fixtures and inventory owned by Franchisee located on the Premises on the date this Agreement is terminated, expires, or does not renew. Within fifteen (15) days of the date of expiration, termination, or non-renewal of this Agreement, Franchisee shall pay in full all of the creditors and suppliers to the Franchised Business.
(f) Pay All Subsequent Amounts. Franchisee shall promptly pay to Franchisor all damages, costs and expenses including reasonable attorneys' fees, incurred by Franchisor subsequent to the termination, expiration, or non-renewal of this Agreement in obtaining injunctive or other relief for the enforcement of any term, covenant or provision of this Agreement.
(g) Cease use of Marks. Franchisee shall immediately and permanently cease to use, in any manner whatsoever, the Mark "BURNEY'S SWEETS & MORE" and all other Marks and distinctive forms, slogans, signs, symbols, logos and devices associated with the BURNEY'S SWEETS & MORE Chain and System.
(h) Cooperate with Franchisor's Assumption Rights. Franchisor shall have the option, to be exercised within thirty (30) days of termination, non-renewal, or expiration of this Agreement, to assume Franchisee's assumed name or equivalent registration and business licenses, telephone numbers, telephone directory listings and advertisements (whether in print or part of an Internet directory), and e-mail addresses and/or Internet domain names which contain the Mark of Franchisor or its affiliates, and Franchisee shall sign all documents necessary to permit Franchisor to assume Franchisee's rights in such items. If Franchisor elects not to exercise this option, Franchisee shall take all action necessary to cancel each of the items listed above and shall furnish Franchisor with evidence satisfactory to prove its compliance within fifteen (15) days after receiving notice of Franchisor's termination, expiration, or non-renewal of this Agreement and the expiration of the option granted herein. In the event Franchisee fails to timely do so, Franchisor shall have the right, for which purpose Franchisee hereby appoints Franchisor as its attorney-infact, to obtain such cancellation on Franchisee's behalf and at Franchisee's expense.
(i) Comply with Covenants. Franchisee and its Owners shall comply with the covenants contained in this Agreement, including, but not limited to, the covenants not to compete or solicit and the covenants not to disclose trade secrets or confidential information.
(j) Leased Premises. Franchisee shall, if Franchisor so requests, assign to Franchisor or its designee any interest which Franchisee has in any lease for the Premises or any other agreement related to the Premises. Franchisee will do whatever is necessary to effectuate and complete the assignment.
(k) Owned Premises. Franchisee shall, if Franchisor so requests and if Franchisee owns the real property on which the Shop is located, lease the Premises to Franchisor on substantially the same terms and conditions contained in Franchisee's lease for the Premises, or if no lease exists or if the existing lease is not commercially reasonable, then on commercially reasonable terms. The lease shall be for an initial five (5) year term, with two (2) five (5) year renewal terms (at Franchisor's option). If the parties cannot agree on the rent to be charged under
the lease within thirty (30) days after the expiration, termination, or non-renewal of the Agreement, the rent will be determined by a qualified independent appraiser.
Source: Item 22 — CONTRACTS (FDD page 50)
What This Means (2025 FDD)
According to Burneys Sweets More's 2025 Franchise Disclosure Document, in the event of termination due to a franchisee's default, Burneys Sweets More has several avenues of recourse. Burneys Sweets More can require the franchisee to promptly pay all sums owed, including damages, costs, losses, expenses, and reasonable attorneys' fees incurred as a result of the default and termination. These outstanding obligations create a lien in favor of Burneys Sweets More against the franchisee's personal property, furnishings, equipment, signs, fixtures, and inventory located at the premises.
Additionally, Burneys Sweets More can require the franchisee to cease operating the business, stop using all confidential information and trademarks associated with the Burneys Sweets More system, and return all of Burneys Sweets More's property, including customer lists, data, manuals, and advertising materials. The franchisee must also cancel any assumed names or registrations containing Burneys Sweets More's marks. Burneys Sweets More also has the option to assume the franchisee's assumed name, business licenses, telephone numbers, directory listings, and email addresses containing Burneys Sweets More's mark.
Furthermore, if the franchisee fails to comply with post-termination obligations, Burneys Sweets More has the right to access the premises to remove signs, trade dress, equipment, and other items identifying the location as a Burneys Sweets More shop. Burneys Sweets More can also make modifications necessary to protect its marks and system. Finally, Burneys Sweets More can seek liquidated damages from the franchisee, calculated based on the average monthly Royalty Fees and Brand Fund contributions owed during the 52-week period preceding the cessation of operations, multiplied by the lesser of 104 or the number of weeks remaining in the franchise term.