Does the Burros Fries Guarantor waive the defense of the statute of limitations?
Burros_Fries Franchise · 2024 FDDAnswer from 2024 FDD Document
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- Each Guarantor further hereby consents and agrees that:
- (a) Guarantor's liability under this undertaking shall be direct, immediate, and independent of the liability of Franchisee, other guarantors, and the other owners of the Franchisee;
- (b) This undertaking will continue unchanged by the occurrence of any bankruptcy with respect to Franchisee or any assignee or successor of Franchisee or by an abandonment of the Agreement by a trustee of Franchisee. Neither the Guarantor's obligations to make payment or render performance in accordance with the terms of this undertaking nor any remedy for enforcement shall be impaired, modified, changed, released or limited in any manner whatsoever by impairment, modification, change, release or limitation of the liability of the Franchisee or its estate in bankruptcy or any remedy for enforcement resulting from the operation of any present or future provision of the U.S. Bankruptcy Act or other statute, or from the decision of any court or agency;
- (c) Franchisor may proceed against Guarantor and Franchisee jointly and severally, or Franchisor may, at its option, proceed against Guarantor, without having commenced any action, or having obtained any judgment against Franchisee. Guarantor hereby waives the defense of the statute of limitations in any action hereunder or for the collection of any indebtedness or the performance of any obligation hereby guaranteed; and
- (d) Guarantor agrees to pay all reasonable attorneys' fees and costs and other expenses incurred in any collection or attempt to collect amounts due pursuant to this undertaking or any negotiations relative to the obligations hereby guaranteed or in the enforcing this undertaking against Guarantor.
Source: Item 22 — CONTRACTS (FDD page 53)
What This Means (2024 FDD)
According to Burros Fries's 2024 Franchise Disclosure Document, the Guarantor does waive the defense of the statute of limitations. This waiver is part of the Individual Guaranty that is used when the franchisee is a corporation, partnership, or other entity. This means that the person guaranteeing the franchisee's obligations cannot use the statute of limitations as a defense in any action taken against them related to the franchise agreement.
Specifically, the guarantor waives this defense in any action related to the guaranty itself, or for the collection of any debt or the performance of any obligation that is guaranteed. This is a significant point for potential guarantors, as it extends their potential liability beyond the typical statutory time limits.
This waiver ensures that Burros Fries retains the ability to pursue the guarantor for any breaches or unfulfilled obligations, even if a considerable amount of time has passed since the initial default. The guarantor also agrees to cover all reasonable attorney's fees, costs, and other expenses incurred during any collection attempts or negotiations related to the guaranteed obligations or the enforcement of the guaranty.