Store #21068 – CHATHAM, NJ
SETTLEMENT AGREEMENT, TERMINATION OF FRANCHISE AGREEMENT
AND SUBLEASE, AND MUTUAL RELEASE OF CLAIMS
THIS SETTLEMENT AGEEMENT, TERMINATION OF FRANCHISE AGREEMENT
AND SUBLEASE, AND MUTUAL RELEASE OF CLAIMS (“Agreement”), entered into as of
this ____ day of _______________, 2015 (“Effective Date”), by and between KAHALA
FRANCHISING, LLC, an Arizona limited liability company (“Franchisor”), COLD STONE
CREAMERY, INC., an Arizona corporation (“Sublessor”), (Franchisor and Sublessor may be
collectively herein referred to as “Kahala”), on the one hand, and R.A.G. ENTERPRISES, LLC,
a New Jersey limited liability company (“Franchisee”), and RICARDO A. GARCIA, an
individual and resident of the State of New Jersey (“Garcia”), and ELIDIA I. GONZALEZ, an
individual and resident of the State of New Jersey (“Gonzalez”) (Garcia and Gonzalez will be
collectively herein referred to as “Guarantors”), on the other hand. Kahala, Franchisee, and
Guarantors may be collectively herein referred to as the “Parties”.
RECITALS
A.
Franchisor and Franchisee are parties to that certain franchise agreement dated
as of January 11, 2007, and subsequent amendment (collectively the “Franchise Agreement”)
pursuant to which Franchisee owned and operated Cold Stone Creamery® restaurant #21068
(“Franchised Business”) located at: 469 Main Street, Chatham, NJ 07928 (“Premises”);
B.
Guarantors previously executed that certain guaranty, agreeing to
unconditionally guarantee and to pay to Kahala and to perform all the obligations and
liabilities of the Franchisee in connection with Franchised Business (“Guaranty”);
C.
Sublessor and Levin Properties, L.P. (“Landlord”), are parties to that certain
Lease dated March 22, 2005, and subsequent amendments (collectively the “Lease”) in
connection with the Premises;
D.
Sublessor and Franchisee are parties to that certain sublease dated as of June 4,
2005 (“Sublease”), pursuant to which Franchisee subleased the Premises for operation of the
Franchised Business;
E.
The term of the Franchise Agreement expires on January 10, 2017, and the term
of the Lease expires on September 30, 2015;
F.
Franchisees closed the Franchised Business on or about September 22, 2015;
G.
Franchisor alleges that termination of the Franchise Agreement and closure of
the Franchised Business prior to January 10, 2017, entitles Franchisor to damages. Franchisee
and Guarantors dispute such allegation;
H.
On September 25, 2015, Franchisee filed a lawsuit against Kahala in the Superior
Court of New Jersey, Morris County, Case No. MRS L-2277-15, for Declaratory Judgment,
Violations of New Jersey Franchise Practices Act, Breach of Contract, and Violation of the
Covenant of Good Faith and Fair Dealing (“Lawsuit”). As of the Effective Date, the Lawsuit
has not been served on Kahala.
I.
Without admitting any liability as to claims and/or defenses each party may
have against each other, the Parties wish to resolve and mutually release each other from any
and all claims in connection with the Franchised Business, the Franchise Agreement, the
Guaranty, the Sublease, and the Lawsuit as specifically set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the parties agree
as follows:
1.
The Franchise Agreement and Sublease, will hereby be deemed fully terminated
effective as of September 30, 2015 (“Termination Date”), provided however, that as a condition
precedent to such termination: A) Franchisee delivers the Premises to the Landlord in the
condition required by the Lease and the Premises are accepted by Landlord; B) Franchisee and
Guarantors comply with the terms set forth herein; and C) Franchisee and Guarantors shall
continue to be bound by the post-termination obligations and restrictions set forth in the
Franchise Agreement for the periods set forth therein, including, without limitation, that
Franchisee and Guarantors remain obligated and liable for any and all costs, fees, expenses, and
obligations incurred relating to the Franchised Business, the Guaranty, the Lease, and the
Sublease accrued up through the Termination Date.
2.
Upon termination of the Franchise Agreement and Sublease, Franchisee will
immediately return to Franchisor any and all confidential information of Franchisor used in
connection with the operation of the Franchised Business, including, but not limited to, all recipes,
manuals, menus, brochures and other media which have been provided to Franchisee by or
through the efforts of Franchisor. Franchisee will cease using any and all trademarks of
Franchisor, including the trademarks “Cold Stone”, “Cold Stone Creamery,” except as authorized
under other franchise agreements between Franchisee and Franchisor, if any. Franchisee
removed any and all materials from the Premises that contained or have affixed to it any
trademark of Franchisor, including but not limited to signage, paper goods and translights.
3.
Kahala have completed a final reconciliation of the account in connection with the
Franchised Business and Franchise Agreement, and Franchisee and Guarantors agree and
acknowledge that Kahala has collected all fees due up to and including the Termination Date
(“Final Reconciliation Payment”).
4.
The Parties agree and acknowledge that the Landlord currently holds a security
deposit in the amount $4,657.00 (“Security Deposit”), and such Security Deposit, minus any
reconciliations by the Landlord, will be returned to Franchisee within ten (10) days of
Sublessor’s receipt of such reimbursement from Landlord.
5.
No later than five (5) days after full execution of this Agreement, Franchisee
shall cause to be filed a Notice of Dismissal of the Lawsuit, with prejudice, and provide a
conformed copy of such filing to Kahala, as well as, a copy of the signed dismissal order.
6.
Kahala consents to the premature termination of the Franchise Agreement, and
agrees to forego collection of any early termination damages provided that, and conditioned
upon, Franchisee and Guarantors comply fully with the terms herein this Agreement.
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7.
Kahala acknowledges and warrants that each of the following shall constitute an
“Event of Default” of or by Franchisee or Guarantors under this Agreement:
(a)
Any failure to pay or perform any obligation, covenant or agreement of as and
when due under this Agreement, the Franchise Agreement, the Sublease, which
accrued up through the Termination Date after seven (7) days written notice of
such failure to pay or perform;
(b)
This Agreement is set aside, invalidated or voided as a preference under 11
U.S.C. § 547 or a fraudulent transfer under 11 U.S.C. § 548 or other applicable
law in any proceedings filed by or against Franchisee or Guarantors or if for any
other reason, Kahala is required to return or disgorge all or any portion of the
monies to be paid hereunder, if any, whether such return or disgorgement is for
the benefit of Franchisee, Guarantors or any other person or entity.
8.
Franchisee and Guarantors agree for themselves and their successors and assigns
that he will not disparage, denigrate, defame or comment in any manner (except as may be
required by a Court of law) upon Kahala, Kahala Corp., Kahala Franchise Corp., and/or their
respective predecessors, successors and assigns, parents, subsidiaries and affiliated
corporations, officers, directors, agents, employees and representatives, past and present, of any
and all of such corporations (collectively “Franchisor Parties”), or any of their business
dealings, financial condition, pending litigation and arbitrations, officers, directors, employees,
agents, representatives or attorneys, either publicly or privately, by any means whatsoever
(including electronic means), and will, if asked to comment on any of the Franchisor Parties,
refuse to and refrain from doing so (collectively, the “Non Disparagement Provision”). In the
event such a communication is made to anyone, known by Franchisee or Guarantors to be
anyone, including, but not limited to, third party legal counsel adverse to any of the Franchisor
Parties in any fashion, former employees of any Franchisor Parties, former shareholders of any
Franchisor Parties, current or former vendors, franchisees, licensees or area developers of any
of the Franchisor Parties’ quick service restaurant brands, media government agencies, public
interest groups, and publishing companies, it will be considered a material breach of the terms
of this Agreement thereby deeming this Agreement null and void.
9.
Franchisor and Sublessor agree for themselves and their successors and assigns
that they will not disparage, denigrate, defame or comment in any manner upon Franchisee,
Guarantors or their respective predecessors, successors and assigns, parents, subsidiaries and
affiliated corporations, officers, directors, agents, employees and representatives, past and
present, of any and all of such corporations (collectively “Franchisee Parties”), or any of their
business dealings, financial condition, pending litigation and arbitrations, officers, directors,
employees, agents, representatives or attorneys, either publicly or privately, by any means
whatsoever (including electronic means), and will, if asked to comment on any of the
Franchisee Parties, refuse to and refrain from doing so (collectively, the “Non Disparagement
Provision”). In the event such a communication is made to anyone, known by Kahala to be
anyone, including, but not limited to, third party legal counsel adverse to any of the Franchisee
Parties in any fashion, former employees of any Franchisee Parties, former shareholders of any
Franchisee Parties, media government agencies, public interest groups, and publishing
companies, it will be considered a material breach of the terms of this Agreement thereby
deeming this Agreement null and void.
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10.
FRANCHISEE AND GUARANTORS HEREBY RELEASE, REMISE AND
FOREVER DISCHARGE KAHALA AND THE FRANCHISOR PARTIES, OF AND FROM
ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, SUITS, DEBTS, DUES,
DUTIES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, COVENANTS, CONTRACTS,
AGREEMENTS, PROMISES, DAMAGES, JUDGMENTS, EXTENTS, EXECUTIONS,
LIABILITIES AND OBLIGATIONS, BOTH CONTINGENT AND FIXED, KNOWN AND
UNKNOWN, OF EVERY KIND AND NATURE WHATSOEVER IN LAW OR EQUITY, OR
OTHERWISE, UNDER LOCAL, STATE, OR FEDERAL LAW, AGAINST ANY OF THEM,
INCLUDING, WITHOUT LIMITATION, THE FRANCHISE AGEEMENT, THE
FRANCHISED BUSINESS, THE GUARANTY, THE SUBLEASE, THE LAWSUIT, AND/OR
THE PREMISES WHICH FRANCHISEE OR GUARANTORS, OR THEIR AFFILIATES,
PREDECESSORS IN INTEREST, IF ANY, EVER HAD, NOW HAVE, OR WHICH THEY OR
THEIR HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, OR ASSIGNS
HEREAFTER CAN, SHALL, OR MAY HAVE, FOR, UPON, OR BY REASON OF, ANY
MATTER, CAUSE, OR THING WHATSOEVER, FOR ACTS AND OCCURRENCES PRIOR
TO, INCLUDING, AND AFTER THE EFFECTIVE DATE. THIS INCLUDES ALL STATE,
FEDERAL, STATUTORY DAMAGE AND ANY OTHER TYPE OF CLAIM. FRANCHISEE
AND GUARANTORS SPECIFICALLY DO NOT RELEASE ANY CLAIMS ARISING FROM
THE BREACH OF THIS AGREEMENT.
11.
WITH RESPECT TO THE MATTERS HEREINABOVE RELEASED,
FRANCHISEE AND GUARANTORS KNOWINGLY WAIVE ALL RIGHTS AND
PROTECTION, IF ANY, UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF
CALIFORNIA, OR ANY SIMILAR LAW OF ANY STATE OR TERRITORY OF THE
UNITED STATES OF AMERICA. SECTION 1542 PROVIDES AS FOLLOWS:
1542 GENERAL RELEASE; EXTENT. A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF
KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
12.
Franchisee and Guarantors agree to indemnify, defend, and hold harmless
Kahala and the Franchisor Parties against any and all claims, liabilities or obligations arising in
connection with any lawsuit, action, proceeding or claim arising out of the Franchisee’s action
or omissions or the conduct of the Franchised Business by Franchisee.
13.
Franchisee and Guarantors do not intend to file bankruptcy and are making this
Agreement in good faith. In the event that an avoidance action is brought against Kahala or
any of their affiliated companies, for return of any payments made, Franchisee, Guarantors,
and/or their bankruptcy estate(s), agree to pay Kahala’s attorney's fees and costs related to
defending that action.
14.
As of the Effective Date, and subject to and without waiving any of the rights of
Kahala and/or obligations of Franchisee and Guarantors set forth in the foregoing Sections 113, Kahala hereby releases, remises and forever discharges Franchisee, Guarantors, and the
Franchisee Parties, of and from any and all claims, demands, causes of action, suits, debts, dues,
duties, sums of money, accounts, reckonings, covenants, contracts, agreements, promises,
damages, judgments, extents, executions, liabilities and obligations, both contingent and fixed,
known and unknown, of every kind and nature whatsoever in law or equity, or otherwise,
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under local, state, or federal law, against any of them, including, but not limited to, the
Franchised Business, the Franchise Agreement, the Guaranty, the Sublease, the Lawsuit, and
the Premises which Kahala or the Franchisor Parties, if any, ever had, now have, or which they
or their heirs, executors, administrators, successors, or assigns hereafter can, shall, or may have,
for, upon, or by reason of, any matter, cause, or thing whatsoever, for any and all acts and
occurrences as of the Effective Date. This includes all state, federal, statutory, contractual, tort,
extra contractual, actual damage, punitive damage, consequential damage, statutory damage
and any other type of claim. Kahala specifically does not release any claims arising from the
breach of this Agreement.
15.
Each section, part, term and provision of this Agreement shall be considered
severable, and if, for any reason, any section, part, or provision herein is determined to be
invalid and contrary to, or in conflict with, any existing or future law or regulations of a court
or agency having valid jurisdiction, such shall not impair the operation or affect the remaining
portions, sections, parts, terms or provisions of this Agreement, and the latter shall continue to
be given full force and effect and bind the parties hereto; and said invalid section, part, term or
provision shall be deemed not to be a part of this Agreement.
16.
The Parties represent that in entering this Agreement they have had an
opportunity to seek the advice of attorneys of their own choice, that they have not relied on
anything orally stated by the other party in their understanding of this Agreement, and that the
terms of this Agreement are fully understood and voluntarily accepted by the parties. The
parties further represent that failure to seek advice of an attorney of their choice was a
voluntary choice on their part.
17.
This Agreement is not an admission of any wrongdoing and is not admissible for
any purpose other than to obtain relief for rights granted hereunder.
18.
This Agreement shall be governed by, and construed and enforced in accordance
with, the law of Arizona, regardless of any conflict-of-laws provisions to the contrary. Any
dispute, claim or controversy arising out of or relating to this Agreement, the breach hereof, the
rights and obligations of the Parties hereto or the relationship between the Parties, or the entry,
making, interpretation, or performance of either Party under this Agreement (“Dispute”),
which cannot be resolved by mediation as set forth in Paragraph C below or that are excepted
from arbitration as set forth in Paragraph D below, shall be settled by arbitration administered
by the American Arbitration Association (“AAA”) in accordance with its Commercial
Arbitration Rules as modified below.
A.
Any arbitration shall take place before a sole arbitrator in Scottsdale,
Arizona or, if Kahala’s headquarters are no longer located in Scottsdale, Arizona, then
the arbitration shall take place in the city where Kahala’s principal place of business is
located at the time the arbitration is commenced. Franchisee and Guarantors agree that
conducting the arbitration where Kahala is located is appropriate due to the multiple
locations throughout the United States where Kahala’s restaurants are located. The
Parties agree that the arbitrator shall be an attorney licensed to practice law in the
United States. Judgment on the award rendered by the arbitrator may be entered in any
court of competent jurisdiction. The arbitrator shall, in the award, allocate all of the
costs of the arbitration, including the fees of the arbitrator and the reasonable attorney’s
fees of the prevailing Party, against the Party who did not prevail. To the extent
permitted by applicable law, no issue of fact or law shall be given preclusive or
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collateral estoppel effect in any other dispute, arbitration proceeding or litigation, except
to the extent such issue may have been specifically determined in another proceeding
between the Parties. This agreement to arbitrate shall survive any termination or
expiration of this Agreement, however effected. The Parties agree that any arbitration
shall be solely between them (including any affiliates) and shall not include as a Party,
by consolidation, joinder, or in any other manner, any other person or entity, unless
both Parties consent in writing. Both Parties shall have the absolute right to refuse such
consent. Further, the Parties expressly waive any right to bring and/or participate in
any class or other consolidated, joined or multi-party arbitration claim or proceeding,
whether or not permissible under the AAA Commercial Arbitration Rules, including,
without limitation, any claim brought on their behalf by an association of which it, he or
she is a member. At the request of any Party, the arbitration shall be conducted in a
manner that maintains the confidentiality of the proceedings.
B.
The arbitrator(s) will issue a reasoned award, with findings of fact and
conclusions of law. Actions to enforce an express obligation to pay monies may be
brought under the Expedited Procedures of the AAA’s Commercial Arbitration Rules.
The Federal Arbitration Act shall govern, excluding all state arbitration laws. Arizona
law will govern all other issues. With respect to discovery, the arbitrator shall require
each Party to make a good cause showing before any discovery exceeding that
specifically authorized by the AAA Commercial Arbitration Rules will be granted.
C.
Prior to the commencement of an arbitration proceeding, the Parties must
first submit any Dispute to non-binding mediation. At the request of any Party, the
mediation will be conducted in secrecy. The mediation shall be conducted in
metropolitan Phoenix, AZ, unless the Parties shall mutually agree in writing to a
different location. The Parties to the mediation will share equally in its cost and
expenses, except those costs and expenses incurred separately by each Party, including,
without limitation, counsel fees and expenses. The mediation process will be deemed
“completed” when the Parties agree that it has been completed, the mediator declares
that any impasse exists or sixty (60) days have elapsed since the date of the initiating
Party’s written notice to the other Party that it is initiating the mediation process,
whichever occurs first.
D.
Notwithstanding anything contained in this Agreement to the contrary,
the provisions of Paragraphs A, B, and C above do not apply to a Dispute where: (i)
Kahala brings an action for an express obligation to pay monies, declaratory relief,
preliminary or permanent equitable relief, any action at law for damage to Kahala’s
goodwill, or other property or for fraudulent conduct by Franchisee or Guarantors; or
(ii) the delay resulting from the mediation process may endanger or adversely affect the
public. For such disputes, Kahala may bring an action in any federal or state court
having jurisdiction or seek to arbitrate any claim, whether for monetary damages
and/or for temporary preliminary and permanent injunctive relief or specific
performance in addition to, and not exclusive of, any other remedies available to
Kahala. Franchisee and Guarantors hereby consent to and waive any objection or
defense and agree not to contest venue, forum non conveniens or jurisdiction of such
court or arbitration.
E.
Disputes concerning the validity or scope of arbitration, including whether
a dispute is subject to arbitration, are beyond the authority of the arbitrator(s) and will be
determined by a court of competent jurisdiction pursuant to the Federal Arbitration Act,
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9 U.S.C. §1 et seq., as amended from time to time.
F.
Any Party may appeal the final award of the arbitrator(s) to the
appropriate U.S. District Court. The court’s review of the arbitrator’s findings of fact
will be under the clearly erroneous standard, and the court’s review of all legal rulings
will be de novo. If it should be determined that this provision for federal court review is
not enforceable, then any Party may appeal the arbitrator’s final award to a panel of
three arbitrators chosen under AAA procedures, which will employ the same standards
of review stated immediately above.
G.
Except to the extent that the United States Trademark Act of 1946, as
amended (15 U.S.C., § 1051 et seq.) or the franchising laws of any state that may be
applicable, the laws of the State of Arizona govern all rights and obligations of the
Parties under this Agreement. Kahala, Franchisee, and Guarantors agree, subject to the
mandatory mediation and arbitration provisions of this Section 18 of this Agreement,
that any appropriate state or federal court located in Maricopa County, Arizona has
exclusive jurisdiction over any Dispute arising under or in connection with this
Agreement and is the proper forum in which to adjudicate the case or controversy;
provided, however, that notwithstanding the foregoing any action initiated by Kahala
may, at Kahala’s election, be brought in any jurisdiction where Franchisee and
Guarantors are domiciled or that has jurisdiction over Franchisee and Guarantors. The
Parties hereto irrevocably submit to the jurisdiction of, and venue in, any such court,
and hereby waive any objection or defense thereto. THE PARTIES AGREE THAT ALL
DISPUTES SUBMITTED TO THE COURT PURSUANT TO THIS SECTION SHALL BE
TRIED TO THE COURT SITTING WITHOUT A JURY, NOTWITHSTANDING ANY
STATE OR FEDERAL CONSTITUTIONAL OR STATUTORY RIGHTS OR
PROVISIONS.
Notwithstanding anything contained in this Agreement to the contrary, the Parties
agree that any claims under, arising out of, or related to, this Agreement must be
brought within two (2) years from the date on which the underlying cause of action
accrued, and Kahala, Franchisee, and Guarantors hereby waive any right to bring any
such action after such two (2)-year period.
FRANCHISEE AND GUARANTORS HEREBY WAIVE THE RIGHT TO INITIATE OR
PARTICIPATE IN A CLASS, CONSOLIDATED OR MULTI-PARTY ACTION IN ANY
FORUM, INCLUDING ARBITRATION, AND WAIVE THE RIGHT TO SEEK OR
COLLECT PUNITIVE, CONSEQUENTIAL AND SPECIAL DAMAGES IN ANY FORUM,
INCLUDING ARBITRATION. FRANCHISEE AND GUARANTORS HEREBY FURTHER
WAIVE THE RIGHT, IF ANY, OF ANY ASSOCIATION OR MEMBERSHIP GROUP TO
ASSERT CLAIMS ON ITS BEHALF IN ANY ACTION.
FRANCHISEE AND GUARANTORS HEREBY WAIVE THE RIGHT TO ANY DAMAGES
IN CONNECTION WITH OR RESULTING FROM THE WRONGFUL ISSUANCE OF AN
INJUNCTION.
IN ADDITION, THE PARTIES AGREE THAT THE MAXIMUM
DAMAGES THAT FRANCHISEE OR GUARANTORS MAY RECOVER IN CONNECTION
WITH THIS AGREEMENT AND FRANCHISED BUSINESS ARE LIMITED TO THE
AMOUNT AS CALCULATED PURSUANT TO THE TERMS OF THE FRANCHISE
AGREEMENT.
19.
Franchisee and Guarantors agree that this Agreement, including all discussion
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and negotiation leading to this Agreement, shall be kept strictly confidential. No Party or
Parties’ respective family member, agent, representative, officer, director, employee, attorney,
successor or assign shall disclose, directly or indirectly, the negotiations or terms and
conditions of this Agreement without the express written consent of the other Party, except for
disclosure required by applicable law, by a Court of law, or in the event of a breach of this
Agreement; provided, however, that a Party may disclose the fact that they entered into this
Agreement, and a Party may disclose the terms and conditions of this Agreement to its
respective attorneys or advisors for purpose of obtaining legal or tax advice. In the event any
communication is made to anyone regarding this Agreement and the negotiations related
thereto, including, but not limited to, third party legal counsel adverse to Kahala or any of the
Franchisor Parties in any fashion, former employees of Kahala or any of the Franchisor Parties,
former shareholders of Kahala or any of the Franchisor Parties, current or former vendors,
franchisees, licensees or area developers of Kahala or any of the Franchisor Parties’ quick
service restaurant brands, media government agencies, public interest groups, and publishing
companies, it will be considered a material breach of the terms of this Agreement deeming this
Agreement null and void.
20.
Whenever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under all applicable laws and regulations. If,
however, any provision of this Agreement shall be prohibited by or invalid under any such law
or regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform
to the minimum requirements of such law or regulation, or, if for any reason it is not deemed so
modified, it shall be ineffective and invalid only to the extent of such prohibition or invalidity,
without affecting the remaining provisions of this Agreement or the validity or effectiveness of
such provision in any other jurisdiction.
21.
Each Party agrees to perform any further acts and to execute and deliver any
further documents that may be reasonably necessary to carry out the provisions of this
Agreement.
22.
The representations, warranties, and agreements of the Parties contained herein
shall survive the execution and delivery of this Agreement.
23.
The captions and headings contained in this Agreement are for convenience of
reference only and shall in no way be held or deemed to be a part of or affect the interpretation
of this Agreement.
24.
The Parties understand, agree and acknowledge that: (1) this Agreement has
been freely negotiated by all Parties; and (2) that, in any controversy, dispute, or contest over
the meaning, interpretation, validity, or enforceability of this Agreement or any of its terms or
conditions, there shall be no inference, presumption, or conclusion drawn whatsoever against
any party by virtue of that Party having drafted this Agreement or any portion thereof.
25.
Any person signing this Agreement on behalf of any company represents and
warrants he or she has authority to do so and has authority to bind such company to this
Agreement.
26.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and taken together shall constitute one and the same document.
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“FRANCHISEE”
“FRANCHISOR”
R.A.G. ENTERPRISES, LLC, a New Jersey
limited liability company
KAHALA FRANCHISING, LLC, an
Arizona limited liability company
By: ___________________________________
Name:
Title:
Date: _________________________________
By: ___________________________________
Name: Kimberly A. Lane
Title: VP of Real Estate/Assist. GC
of its sole member
Date: _________________________________
“GUARANTOR”
_______________________________________
RICARDO A. GARCIA, an individual and
resident of the State of New Jersey
Date: __________________________________
“GUARANTOR”
_______________________________________
ELIDIA I. GONZALEZ, an individual and
resident of the State of New Jersey
“SUBLESSOR”
COLD STONE CREAMERY, INC., an
Arizona corporation
By: ___________________________________
Name: Kimberly A. Lane
Title: VP of Real Estate/Assist. GC
Date: ___________________________________
Date: __________________________________
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