factual

In the context of the Chem Dry Business Note, are the undersigned guaranteeing payment as a primary obligation or as an accommodation party?

Chem_Dry Franchise · 2024 FDD

Answer from 2024 FDD Document

The undersigned issues this GUARANTY AND ASSUMPTION OF OBLIGATIONS as of the Effective Date.

In consideration of, and as an inducement to, the execution of the Franchise Agreement on this date by CDI, each of the undersigned personally and unconditionally (a) guarantees to us and our successors and assigns, for the term of the Agreement (including extensions) and afterward as provided in the Agreement, that Franchisee will punctually pay and perform each and every undertaking, agreement, and covenant set forth in the Agreement (including any amendments or modifications of the Agreement) and will punctually pay the Business Note issued by Franchisee in conjunction with the execution and delivery of the Agreement, and (b) agrees to be personally bound by, and personally liable for the breach of, each and every provision in the Agreement (including any amendments or modifications of the Agreement), and by any failure to pay principal of or interest on the Business Note, including without limitation monetary obligations and obligations to take or refrain from taking specific actions or to engage or refrain from engaging in specific activities, including the non-competition, confidentiality, transfer, and arbitration requirements.

Each of the undersigned consents and agrees: (1) his or her direct and immediate liability under this Guaranty will be joint and several, both with Franchisee and among other guarantors; (2) he or she will render any payment or performance required under the Agreement upon demand if Franchisee fails or refuses punctually to do so; (3) this liability will not be contingent or conditioned upon our pursuit of any remedies against Franchisee or any other person; (4) this liability will not be diminished, relieved, or otherwise affected by any extension of time, credit, or other indulgence which we 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 (including the release of other guarantors), none of which will in any way modify or amend this Guaranty, which will be continuing and irrevocable during the term of the Agreement (including extensions), for so long as any performance is or might be owed under the Agreement by Franchisee or its owners, and for so long as we have any cause of action against Franchisee or its owners; and (5) this Guaranty will continue in full force and effect for (and as to) any extension or modification of the Agreement and despite the transfer of any interest in the Agreement or Franchisee, and each of the undersigned waives notice of any and all renewals, extensions, modifications, amendments, or transfers.

Each of the undersigned waives: (i) all rights to payments and claims for reimbursement or subrogation which any of the undersigned may have against Franchisee arising as a result of the undersigned's execution of and performance under this Guaranty; and (ii) acceptance and notice of acceptance by us of his or her undertakings under this Guaranty, notice of demand for payment of any indebtedness or non-performance of any obligations hereby guaranteed, protest and notice of default to any party with respect to the indebtedness or nonperformance of any obligations hereby guaranteed, and any other notices to which he or she may be entitled.

Source: Item 23 — Receipts (FDD pages 68–264)

What This Means (2024 FDD)

According to Chem Dry's 2024 Franchise Disclosure Document, the undersigned, when issuing the GUARANTY AND ASSUMPTION OF OBLIGATIONS, are undertaking a primary obligation to ensure the franchisee's payments. This is explicitly stated in Exhibit A to the Franchise Agreement, where the undersigned personally and unconditionally guarantee that the franchisee will punctually pay the Business Note issued in conjunction with the Franchise Agreement. This guarantee extends for the term of the agreement, including any extensions.

This means that the guarantor's obligation is not secondary to the franchisee's; instead, it is a direct and immediate liability. The guarantor agrees to render any payment required under the agreement upon demand if the franchisee fails or refuses to do so. This liability is not contingent upon Chem Dry pursuing remedies against the franchisee or any other person, highlighting the primary nature of the obligation.

Furthermore, the guarantor's liability will not be diminished or affected by any extensions of time, credit, or other indulgences granted to the franchisee. The guarantor also waives rights to payments and claims for reimbursement or subrogation against the franchisee arising from their performance under the Guaranty. This waiver includes notice of acceptance, demand for payment, and notice of default, reinforcing that the guarantor's obligation is a primary one, directly tied to the franchisee's performance and the Business Note.

Disclaimer: This information is extracted from the 2024 Franchise Disclosure Document and is provided for research purposes only. It does not constitute legal or financial advice. Consult with a franchise attorney before making any investment decisions.