Under the Kitchen Solvers Guaranty, is the Guarantor's liability direct and immediate?
Kitchen_Solvers Franchise · 2025 FDDAnswer from 2025 FDD Document
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- Guarantor hereby consents and agrees that:
- (a) Guarantor's liability under this undertaking is direct, immediate, and independent of the liability of, and is joint and several with, Developer and the other parties who may be held liable for Developer's performance of the ADA;
- (b) Guarantor will render any payment or performance required under the ADA upon demand if Developer fails or refuses punctually to do so;
- (c) Franchisor is entitled to proceed against Guarantor and Developer jointly and severally, or Franchisor may, at its option, proceed against Guarantor, without having commenced any action or having obtained any judgment against Developer; and
- (d) Guarantor agrees to pay all reasonable attorneys' fees and all costs and other expenses incurred in any collection or attempt to collect amounts due pursuant to this undertaking (including any amounts expended in pursuing payment from Developer) or any negotiations relative to the obligations hereby guaranteed or in enforcing this undertaking against Guarantor.
Source: Item 23 — Receipts (FDD pages 49–190)
What This Means (2025 FDD)
According to Kitchen Solvers' 2025 Franchise Disclosure Document, the Guarantor's liability under the Guaranty is direct and immediate. Specifically, the Guarantor's liability is independent of the liability of the Developer and is joint and several with the Developer and other parties who may be held liable for the Developer's performance under the agreement. This means Kitchen Solvers can pursue the Guarantor directly without first having to pursue action against the Developer.
Furthermore, the Guarantor must render any payment or performance required under the Agreement upon demand if the Developer fails or refuses to do so punctually. Kitchen Solvers is entitled to proceed against the Guarantor and Developer jointly or separately, at its option, without initiating any action or obtaining any judgment against the Developer. This provides Kitchen Solvers with a streamlined approach to securing obligations, as they are not required to exhaust remedies against the Developer before seeking recourse from the Guarantor.
The Guarantor also agrees to pay all reasonable attorneys' fees and costs incurred in any collection attempts, including those expended in pursuing payment from the Developer, or in any negotiations related to the guaranteed obligations, or in enforcing the Guaranty against the Guarantor. The Guarantor also waives certain rights, including notice of acceptance by Kitchen Solvers, notice of demand for payment, protest, and notice of default, as well as any right to require that an action be brought against the Developer as a condition of liability. These waivers further solidify the Guarantor's immediate and direct responsibility.