What is the Guarantor's obligation regarding payment of the Guaranteed Obligations to Fly Fitness?
Fly_Fitness Franchise · 2024 FDDAnswer from 2024 FDD Document
ty are in partial consideration for, and a condition to the granting of, the rights granted in the Franchise Agreement to Franchisee, and that Franchisor would not have granted these rights without the execution of this Guaranty by Guarantor.
Guarantor hereby individually makes, agrees to be bound by, and agrees to perform, all of the monetary obligations and non-competition covenants and agreements of the Franchisee as set forth in the Franchise Agreement, including but not limited to, the covenants set forth in Sections 19.2, 19.5, 19.6, 19.8 and 19.9 of the Franchise Agreement ("Guaranteed Obligations"). Guarantor shall perform and/or make punctual payment to Franchisor of the Guaranteed Obligations in accordance with the terms of the Franchise Agreement or other applicable document forthwith upon demand by Franchisor.
This Guaranty is an absolute and unconditional continuing guaranty of payment and performance of the Guaranteed Obligations. This Guaranty shall not be discharged by renewal of any claims guaranteed by this instrument, change in ownership or control of the Franchisee entity, transfer of the Franchise Agreement, the suffering of any indulgence to any debtor, extension of time of payment thereof, nor the discharge of Franchisee by bankruptcy, operation of law or otherwise. Presentment, demand, protest, notice of protest and dishonor, notice of default or nonpayment and diligence in collecting any obligation under any agreement between Franchisee and Franchisor are each and all waived by Guarantor and/or acknowledged as inapplicable. Guarantor waives notice of amendment of any agreement between Franchisee and Franchisor and notice of demand for payment by Franchisee. Guarantor further agrees to be bound by any and all amendments and changes to any agreement between Franchisee and Franchisor.
Franchisor may pursue its rights against Guarantor without first exhausting its remedies against Franchisee and without joining any other guarantor hereto and no delay on the part of Franchisor in the exercise of any right or remedy shall operate as a waiver of such right or remedy, and no single or partial exercise by Franchisor of any right or remedy shall preclude the further exercise of such right or remedy.
If other guarantors have guaranteed any and or all of the Guaranteed Obligations, their liability shall be joint and several to that of Guarantor.
Until all of the Guaranteed Obligations have been paid in full and/or performed in full, Guarantor shall not have any right of subrogation, unless expressly given to Guarantor in writing by Franchisor.
All Franchisor's rights, powers, and remedies hereunder and under any other agreement now or at any time hereafter in force between Franchisor and Guarantor shall be cumulative and not alternative and shall be in addition to all rights, powers and remedies given to Franchisor by law.
Should any one or more provisions of this Guaranty be determined to be illegal or unenforceable, all other provisions nevertheless shall remain effective.
This Guaranty shall extend to and inure to the benefit of Franchisor and its successors and assigns and shall be binding on Guarantor and its successors and assigns.
Source: Item 22 — CONTRACTS (FDD pages 44–45)
What This Means (2024 FDD)
According to Fly Fitness's 2024 Franchise Disclosure Document, the Guarantor is obligated to fulfill the monetary obligations and non-competition agreements of the Franchisee, as outlined in specific sections of the Franchise Agreement. These sections include 19.2, 19.5, 19.6, 19.8, and 19.9. The Guarantor must make timely payments to Fly Fitness according to the Franchise Agreement terms upon demand.
This obligation is an absolute and unconditional continuing guarantee of both payment and performance. The Guaranty remains in effect regardless of any renewals of claims, changes in ownership, transfer of the Franchise Agreement, or any leniency shown to the debtor. It also persists even if the Franchisee is discharged due to bankruptcy or other legal reasons. The Guarantor waives their right to certain notices, such as presentment, demand, protest, notice of default, or nonpayment, and agrees to be bound by any amendments to agreements between the Franchisee and Fly Fitness.
Fly Fitness can pursue its rights against the Guarantor without first attempting to collect from the Franchisee or involving other guarantors. The franchisor's ability to act against the guarantor directly offers Fly Fitness a streamlined approach to securing owed payments and enforcing agreements. The Guarantor does not have rights to subrogation until all obligations are fully paid, unless Fly Fitness provides express written consent.
All rights and remedies available to Fly Fitness are cumulative and in addition to those provided by law. The Guaranty extends to the benefit of Fly Fitness and its successors, and it is binding on the Guarantor and their successors. This comprehensive guarantee ensures Fly Fitness has strong recourse in case the franchisee fails to meet their financial or non-competition obligations.