Does the Fat Shack FDD receipt prohibit any actions by the guarantor?
Fat_Shack Franchise · 2025 FDDAnswer from 2025 FDD Document
EXHIBIT V TO FRANCHISE AGREEMENT
GUARANTY AND ASSUMPTION OF FRANCHISEE'S OBLIGATIONS
- A. In consideration of, and as an inducement to, the execution of the above Franchise Agreement ("Franchise Agreement") by FAT SHACK INC. ("FSI"), each of the undersigned hereby personally and unconditionally:
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- Guarantees to FSI and its successors and assigns, for the term of the Franchise Agreement, including renewals thereof, that franchisee named on the signature page ("Franchisee") shall punctually pay and perform each and every undertaking, agreement and covenant set forth in the Franchise Agreement; and
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- Agrees to be personally bound by, and personally liable for the breach of, each and every provision in the Franchise Agreement, including but not limited to, the terms of the articles and sections pertaining to non-competition during and after the term, confidentiality and the Marks and copyrighted works of FSI.
- B. Each of the undersigned waives the following:
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- Acceptance and notice of acceptance by FSI of the foregoing undertaking;
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- Notice of demand for payment of any indebtedness or nonperformance of any obligations hereby guaranteed;
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- Protest and notice of default to any party with respect to the indebtedness or nonperformance of any obligations hereby guaranteed;
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- Any right he or she may have to require that any action be brought against Franchisee or any other person as a condition of liability; and
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- Notice of any amendment, modification, deletion or addition of any term or condition of or to any of the obligations hereby guaranteed.
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- Notice of any termination as to future liability of any other guarantor.
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- Any and all other notices and legal or equitable defenses to which he or she may be entitled.
- C. Each of the undersigned consents and agrees that:
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- His or her direct and immediate liability under this guaranty will be joint and several;
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- He or she will render any payment or performance required under the Franchise Agreement upon demand if Franchisee fails or refuses punctually to do so;
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- His or her liability hereunder will not be contingent or conditioned upon pursuit by FSI of any remedies against Franchisee or any other person; and
Source: Item 23 — Receipts (FDD pages 53–223)
What This Means (2025 FDD)
According to the 2025 Fat Shack FDD, the guarantor has specific obligations and restrictions outlined in the Guaranty and Assumption of Franchisee's Obligations agreement. This agreement details actions that the guarantor is prohibited from doing, as well as actions they must take.
The guarantor personally guarantees that the franchisee will fulfill every agreement and covenant in the Development Agreement or Franchise Agreement, including payment obligations and other responsibilities. The guarantor also agrees to be personally bound by and liable for any breaches of these agreements, including non-competition, confidentiality, and protection of Fat Shack's trademarks and copyrighted materials. The guarantor waives certain rights, such as the right to demand action against the franchisee before being held liable.
The guarantor's liability is direct, immediate, and joint and several, meaning Fat Shack can seek full payment or performance directly from the guarantor without first pursuing the franchisee. The guarantor's obligations are not contingent on Fat Shack pursuing other remedies against the franchisee. Any changes to the Development Agreement or Franchise Agreement, or extensions of time granted, do not diminish the guarantor's liability. The guarantor must make payments or fulfill obligations if the franchisee fails to do so.
These stipulations in the Guaranty and Assumption of Franchisee's Obligations agreement are standard practice in franchising, as they provide Fat Shack with an additional layer of financial security and assurance that the franchisee's obligations will be met. Prospective franchisees should carefully review these terms with their legal and financial advisors to fully understand the implications of having a guarantor and the extent of the guarantor's responsibilities and potential liabilities.