Does the Cream franchise agreement require the spouse of a Guarantor to acknowledge and consent to the guaranty?
Cream Franchise · 2025 FDDAnswer from 2025 FDD Document
ons contained in Section 17 (Enforcement) of the Agreement, including Section 17.F (Arbitration), Section 17.H (Consent to Jurisdiction) and Section 17.C (Costs and Attorneys'
Fees) of the Agreement are incorporated into this Guaranty by reference and shall govern this Guaranty and any disputes between the Guarantors and us. The Guarantors shall reimburse us for all costs and expenses we incur in connection with enforcing the terms of this Guaranty.
The undersigned spouse of each Guarantor indicated below, acknowledges and consents to the guaranty given herein by his/her spouse. Such consent also serves to bind the assets of the marital estate to Guarantor's performance of this Guaranty. We confirm that a spouse who signs this Guaranty solely in his or her capacity as a spouse (and not as an owner) is signing merely to acknowledge and consent to the execution of the Guaranty by his or her spouse and to bind the assets of the marital estate as described therein and for no other purpose (including to bind the spouse's own separate property).
Each Guarantor that is a business entity, retirement or investment account, or trust acknowledges and agrees that if Franchise Owner (or any of its affiliates) is delinquent in payment of any amounts guaranteed hereunder, that no dividends or distributions may be made by such Guarantor (or on such Guarantor's account) to its owners, accountholders or beneficiaries or otherwise, for so long as such delinquency exists, subject to applicable law.
This Guaranty is binding upon each Guarantor and its respective executors, administrators, heirs, beneficiaries, and successors in interest.
[Signature Page to Follow]
IN WITNESS WHEREOF, each of the undersigned has affixed his or her signature on this Guaranty and Assumption of Obligations to be effective as of the Effective Date.
Source: Item 23 — RECEIPTS (FDD pages 61–192)
What This Means (2025 FDD)
According to Cream's 2025 Franchise Disclosure Document, the spouse of a guarantor may be required to acknowledge and consent to the guaranty. The franchise agreement states that the spouse's signature indicates consent to the guaranty, which also binds the assets of the marital estate to the guarantor's performance. This ensures that marital assets can be used to fulfill the obligations under the guaranty.
However, Cream also acknowledges that spousal consent may not be required in all cases. The agreement specifies that if there is no signature from the guarantor's spouse, the guarantor represents that they are either unmarried or reside in a state that does not require spousal consent to encumber marital assets. This suggests that the necessity of spousal consent is dependent on the laws of the guarantor's state of residence.
Furthermore, the document clarifies that a spouse signing the guaranty solely in their capacity as a spouse is doing so to acknowledge the guaranty and bind the marital assets, not to bind their own separate property. This distinction protects the spouse's individual assets while ensuring the marital estate is liable for the guaranty. Cream also requires that the spouse agrees to be bound by the obligations in the Agreement regarding confidential information (Section 3.A) and the restrictive covenants regarding non-competition, non-interference, and non-disparagement (Sections 3 and 5.D).