EXHIBIT 10.51
DISTRIBUTION SERVICE AGREEMENT
THIS DISTRIBUTION SERVICE AGREEMENT ("Agreement") is entered into and made
effective as of the 7th day of November 2003, between XxXxxx'x QUALITY FOODS
("XxXxxx'x") and LA SALSA, INC. ("Buyer").
RECITALS
WHEREAS, XxXxxx'x operates certain distribution centers in California and Oregon
from which it distributes food, packaging, and related supplies to food service
operations which are located within the service area of such distribution
centers (the "Service Area"): and
WHEREAS, Buyer presently operates certain restaurants listed on Exhibit A in
which it or an affiliate owns a controlling interest (hereinafter the "Company
Units") and licenses others to operate certain restaurants listed on Exhibit A-I
(hereinafter the "Franchised Units") under the service marks "La Salsa Fresh
Mexican Grill", "La Salsa", and "La Salsa Cantina", The Company Units and the
Franchised Units shall include additional locations opened during the term of
this Agreement within the Service Area. The Company Units and the Franchised
Units, including any such additional locations, are sometimes hereinafter
collectively referred to as the "Restaurants".
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the value and sufficiency of which are hereby acknowledged, the
parties agree as follows:
I BASIC AGREEMENT
XxXxxx'x will purchase, warehouse, and distribute for sale to Restaurants, and
Restaurants will purchase from XxXxxx'x all Buyer approved products including,
but not limited to, the following categories: dairy, frozen and refrigerated
items, poultry, beef, pork, seafood, canned and dry goods, beverages, soft drink
syrup products, paper and disposables, janitorial supplies including cleaning
chemicals and other non-food products requiring frequent replacement
(collectively the "Products"),
II PRODUCT DESIGNATION
Buyer shall designate the brands and/or suppliers of Products it requires and
may negotiate with designated suppliers the price and terms at which XxXxxx'x
shall procure Products from such suppliers for resale to the Restaurants, which
shall be based upon volume requirements that are supported by the historical
usage over the previous twelve (12) month period.
III INVENTORY MANAGEMENT
A. Inventory Management -- During the term of this Agreement, XxXxxx'x
shall maintain an inventory of the Products in quantities necessary
to provide the Restaurants with an adequate supply of such Products.
XxXxxx'x shall use reasonable, good faith efforts to minimize the
risk of inventory obsolescence. XxXxxx'x shall not buy or stock more
than four weeks supply unless authorized by Buyer. XxXxxx'x will
provide Buyer with monthly status reports of slow moving items.
Buyer will communicate with XxXxxx'x regarding menu changes and
Product mix changes.
IV SERVICES
A. Delivery Frequency - XxXxxx'x will determine Order and delivery
schedules. XxXxxx'x will make two deliveries per week to each Restaurant
unless otherwise mutually agreed in writing between Buyer and XxXxxx'x.
Under certain circumstances, individual Restaurants may only require one
weekly delivery due to less than average volume. Delivery schedule and
route changes shall have Buyer's approval four weeks before
implementation. Major route changes shall be limited to three times a
year.
B. Service Area - Subject to and in accordance with the terms of this
Agreement, XxXxxx'x shall deliver Products to all current and future
Restaurants located in the Service Area, defined as "within a 350 mile
radius of the Distribution Center".
C. Scheduling Access - XxXxxx'x may make such deliveries on any day of the
week, at any time of day, except between 11:00 a.m. -- 1:30 p.m. Buyer
agrees to provide keys and security codes for its Restaurants to
facilitate night deliveries where necessary. It is understood that either
Buyer or XxXxxx'x may have particular scheduling needs for specific
Restaurants where unusual circumstances may exist, and each party agree to
address such needs in good faith.
1
D. Order Balancing - It is understood that Restaurants receiving two
deliveries per week will use reasonable, good faith efforts to balance the
orders such that each delivery consists of approximately the same number
of cases.
E. In-store Delivers at Restaurants - XxXxxx'x delivery drivers will
bring all Products into those Restaurants where it is possible to safely
roll a two-wheel cart. XxXxxx'x delivery drivers will separate and deliver
the order to the Restaurants freezer, cooler and dry storeroom. XxXxxx'x
delivery driver will not put Products on the shelves. XxXxxx'x delivery
drivers shall use caution and care in using access driveways, hallways,
and pathways. XxXxxx'x shall repair damages (other than reasonable wear
and tear) caused by XxXxxx'x delivery drivers within a reasonable time.
F. On-time Delivery - Deliveries within sixty (60) minutes of a.
scheduled delivery are considered to be "on time," XxXxxx'x will
maintain a monthly average of no less than eighty-percent (85%")
on-time delivery.
G. Service Level - Service level is defined as the calculation of the
total number of items actually received at the time of delivery
divided by the total number of cases ordered. XxXxxx'x will maintain
a Service level of no less than ninety-nine and one-half percent
(99.5%).
H. Order Entry - Restaurant shall fax order to XxXxxx'x by 4:00 PM two
days prior to scheduled delivery. Restaurant may place orders
electronically to XxXxxx'x when available systems are in place at
both Restaurant and XxXxxx'x.
I. Shortages - XxXxxx'x shall promptly notify Restaurants of shorted
items prior to delivery. XxXxxx'x shall arrange delivery of shorted
items within twenty-four (24) hours from the time of delivery.
XxXxxx'x shall reimburse the Restaurants for related expenses
incurred for retail purchases to cover shorted items.
V TERM OF AGREEMENT AND IMPLEMENTATION
The term of this Agreement will be three (3) years and shall commence as of
October 1,2003 and terminate on September 31, 2006 unless sooner terminated as
hereinafter provided. Such term shall be extended for consecutive periods of one
(1) year from the expiration thereof and from the expiration of each subsequent
extension period, as the case may be, unless XxXxxx'x or Buyer shall have given,
either to the other, not less than one hundred twenty (120) days prior written
notice of its desire to terminate this Agreement as of such expiration.
VI PRICING
A. Sell Price - The Sell Price to Restaurant for all Products sold under
this Agreement will be the manufacturer FOB cost (excluding any "prompt
payment" discount), less any promotional allowances reflected or, invoices
to the distribution centers, plus applicable Freight Charges (collectively
referred to hereafter as "Cost"), plus a distribution fee. Freight rates
shall not exceed those negotiated and guaranteed by the Product supplier.
X. XxXxxx'x Fee Per Case - The Sell Price of each Product sold under this
Agreement will equal the cost ("Cost") of each Product delivered to all
XxXxxx'x distribution centers on a period basis, or a weekly basis for
commodity items, plus a distribution fee that will equal a prescribed
dollar amount per case of Product. (the "Fee Per Case") as stated in the
following table.
Payment Terms Days Agreed Fee Per Case
------------------ -------------------
0 $1.90
7 $1.95
14 $2.00
21 $2.05
28 $2.10
1. For example, a Product with a Cost of $20.00 and a Fee Per
Case of $1.90 will have a sell price calculated as follows:
$20.00+$1.90=$21.90
2. Fee Per Case shall be adjusted after the end of the second
(2nd) year of the term (September 31, 2005) of this Agreement
by multiplying the most recent Fee Per Case by the "Percentage
Change" (hereinafter defined) in the "Price Index"
(hereinafter defined).
2
a) "Price Index" as used herein shall mean the Consumer Price
Index for All Urban Consumers (CR1-U), West Coast City
Average, All Items (Base Year 1982-84=100) ("CPI").
b) "Percentage Change" as used herein shall mean the percentage
increase in the Price Index represented by a fraction, the
numerator of which shall be the latest Price Index available
and the denominator of which shall he the Price Index reported
for the month which was twenty-four (24) months before the
month used in the numerator.
c) There shall he no Fee Per Case increase until the CPI
Percentage Change has increased by 3.5%. Furthermore, the CPI
xxxx-up increase shall be capped at 3.5% per year.
C. Cola Supplier Products. Soft drink syrup products and bottled water
products will be priced according to the national account-pricing program
provided to XxXxxx'x by cola supplier less applicable discounts. There
will be a 1% discount, less national pricing (i.e., sell price $40.99 per
case for 2003).
D. Minimum Drop Size -- In the event the combined average shipment of
Product (cases per delivery), measured annually, falls below 75 cases of
Product per shipment, XxXxxx'x is entitled to a $0.10 per case increase.
Buyer shall have the option to go with once a week delivery for low volume
units in order to maintain the existing markup structure.
E. Fuel Price Adjustment -- The Fee Per Case shall be adjusted every six
months (6) to reflect the increases or decreases in fuel costs per gallon,
on a one month lagged basis, in the following fashion: The October 1,2003
West Coast fuel price published on the 1st day of October or first date of
publication following the 1st day of October (which is compiled by Energy
Information Administration, Retail On-Highway Diesel Prices, National
Average as shown on their Website:http:xxx.xxx.xxx.xxx/xxx/xxx_xxx/
petroleum/data_publications/weekly_on_highway_diesel_prices/current/html/
html/diesel.html) will be subtracted From the West Coast fuel price for
subsequent bi-annual adjustment. For every $0.10 per gallon increase or
decrease in fuel prices the markup per case will increase or decrease by
$0.01. Fuel cost adjustments shall be added to or subtracted from the Fee
Per Case at the beginning of the accounting period following the first of
the month fuel cost posting.
F. Cost Verification -- Within thirty (30) days of the first, second,
and third anniversaries of the agreement and upon written notice, a
representative of the Buyer has the right to verify the Cost of
Products sold under this Agreement. XxXxxx'x will furnish
documentation verifying Costs, subject to the following limitations:
1. Date and time of verification must be mutually agreed.
2. All verifications must be done at XxXxxx'x premises.
3. The period for which pricing is verified shall be the twelve
(12) months prior to the date of Cost Verification.
VII PROMPT PAYMENT
X. XxXxxx'x shall periodically invoice the Company (which may be
affected by electronic transmission of the invoice to the Company)
at the address of its corporate headquarters, Attention: Director of
Cash Management following delivery to the Company Restaurants for
all Products supplied by XxXxxx'x and accepted by the Company
Restaurants hereunder. The prices on invoices for all Products
supplied by XxXxxx'x and accepted by the Company Restaurants shall
be in accordance with Section X hereof. The terms of payment of each
invoice shall be zero days as outlined in Section VI.B. (the
"Payment Terms"). All payments made by the Company to XxXxxx'x
pursuant to that Agreement shall be made by wire transfer of
immediately available funds to a bank account designated by XxXxxx'x
not fewer than two days prior to such payment, or the last bank
account used for any such transfer, as the case may be,
X. XxXxxx'x shall periodically invoice the operator of each Franchised
Restaurant it accordance with its usual practices, provided,
however, that each Franchised Restaurant shall be offered the
Payment Terms if such Franchised Restaurants meets XxXxxx'x credit
standards as they may from time to time be amended in good faith.
VIII TERMINATION
A. Notwithstanding Section V of this Agreement, if any party fails or
refuses to comply with one or more of its material obligations
hereunder resulting in a material default which is incapable of
being cured or which is capable of being cured and is not cured
within a reasonable period of time following its receipt of oral or
written notice of such default (a "Breach"), the nonbreaching party
shall provide the breaching party written notice thereof describing
the Breach
3
and specifying a date, not less than sixty (60) days following the
breaching party's receipt of such notice, on which this Agreement
shall be terminable at the option of the nonbreaching party unless
the Breach has by that date been substantially cured. This procedure
and remedy of termination is in addition to any and all other
remedies available to a party by contract, law or otherwise,
including without limitation XxXxxx'x right to immediately modify
payment terms or stop shipment under Section VTI of this Agreement
for non-payment.
B. Any party's failure to terminate this Agreement, or to take any
other action, upon the occurrence of one or more breaches shall not
constitute a waiver or otherwise affect the right of such party to
terminate the Agreement for any subsequent Breach.
C. The obligations of XxXxxx'x pursuant to this Agreement shall be
terminable, at XxXxxx'x option, if any of the following events shall
occur and be continuing: (i) if a proceeding is instituted (and not
dismissed within sixty (60) days) by or against Buyer under any
applicable federal or state bankruptcy, insolvency, reorganization
or other similar law to he adjudicated as bankrupt or insolvent:
(ii) the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or similar official of all
or a substantial part of the assets of buyer; (iii) any assignment
for the benefit of creditors of Buyer; or (iv) if Buyer shall admit
in writing its inability to pay its debts as they became due.
D Upon termination of this Agreement by the Buyer, Buyer shall he
responsible for purchasing all Products approved by and purchased by
XxXxxx'x solely for Buyer within sixty (60) days.
IX ASSIGNMENT
X. XxXxxx'x may not assign this Agreement without the prior written
consent of Buyer, which consent shall not be unreasonably withheld
or delayed; provided, however, that nothing in this Section shall
preclude XxXxxx'x from employing common carriers, contract carriers,
public warehousemen or other similar parties to temporarily perform
its services hereunder.
B. Notwithstanding subsection VIII A above, XxXxxx'x may not assign its
rights and obligations under this Agreement without Buyer's consent
to any subsidiary or affiliate of XxXxxx'x or to any purchaser of
all or substantially all of its distribution business or assets. For
purposes of this Section, a change of control or majority ownership
of XxXxxx'x shall not be deemed to be an assignment of rights under
this Agreement for which Buyer's consent is required.
X. XxXxxx'x may assign accounts receivable payable by Buyer.
D. Any permitted assignment of this Agreement by either party shall,
except as otherwise agreed, be deemed an assignment of all of the
assignor's rights and liabilities under this Agreement accruing,
arising or relating to any period on or after the date of such
assignment
E. Any assignment made in violation of this Section shall be null and
void.
X TITLE AND RISK OF LOSS
Except in the case of night deliveries or so-called "key drop" deliveries, title
to all Products shall pass upon a Restaurant's acceptance, subject to the
rejection of certain items by notation on the delivery ticket, of such Products
for delivery.
With respect to "key drop" deliveries, title to all goods shall pass at the
close of business on the immediately succeeding business day, unless rejected by
the Restaurant prior thereto. In the event the product is picked-up by XxXxxx'x
in original condition and a credit is due the Restaurant, XxXxxx'x shall provide
credits for Product(s) within seven (7) days of pickup. Restaurant shall make
arrangements through XxXxxx'x order department before close of business the next
day for the pickup of any goods not accepted by Restaurant. Pickups are
typically made on the next scheduled delivery day. Credits for highly perishable
items can be issued without waiting for the next delivery, providing that the
Restaurant has the advance agreement of XxXxxx'x. XxXxxx'x shall promptly issue
a receipt to Restaurant for any Products determined acceptable by XxXxxx'x for
return and ensure that, Buyer receives a proper credit therefor within seven (7)
days of pickup. XxXxxx'x shall bear all risk of loss, damage, or destruction
until title passes to Buyer. Credits will be automatically processed after ten
(10) days if XxXxxx s fails to make the customer pickup as agreed with the
Restaurant.
XI REPORT REQUIREMENTS
Within five (5) days of the commencement of a XxXxxx'x Accounting Period,
XxXxxx'x will provide Buyer with an Accounting Period Order Guide and Price
List. For purposes of determining commodity Sell Prices, XxXxxx'x will provide a
Weekly Price Change Notice. XxXxxx'x agrees to provide rolling twelve (12) month
usage reports, monthly gross margin report, fill rate report by unit and roll
up, on-time delivery report by unit and rollup to Buyer. Buyer may reasonably
request additional reports that may be useful as a management tool.
4
XII INSURANCE
XxXxxx'x agrees to maintain, during the entire term of the Agreement, insurance
coverage against such risks as may he reasonably specified by Buyer, in such
minimum amounts as may be reasonably satisfactory to Buyer.
XIII FORCE MAJEURE
Either party is excused from performance hereunder (other than payment
obligations, which shall not be excused under this Section XIII) if such
non-performance results from any acts of God, war, riots, terrorism, sabotage,
subversion, acts of governmental authorities (interruption in supply, strike
lockout, labor dispute), or any other cause outside the reasonable control of
the non-performing party. Both parties shall use their best efforts to terminate
or cause the expiration of any Force Majeure as soon as practical following its
occurrence.
XIV CONFIDENTIALITY
Buyer and XxXxxx'x each agree that they will keep all terms of this Agreement
completely confidential, and that neither party will disclose any information
concerning this Agreement to any person or entity without the prior express
written consent of the other party; provided, however, that neither party will
be in breach of this requirement if such party reasonably believes such
disclosure is required based on the advise of counsel under applicable law,
regulation or court order. In the event that such disclosure is required by
applicable law, regulation or court order, however, Buyer and XxXxxx'x each
agree that, if reasonably practicable, such disclosure will not be made to, any
person or entity until after such time as the other party has received written
notice with regard to any required disclosure, and tile other party has had a
reasonable opportunity to contest the basis for disclosure and review the
content of any disclosure proposed to he made to any person or entity. Buyer and
XxXxxx'x further agree that disclosure of the terms and conditions of this
Agreement in violation of this Section constitutes a material breach of the
Agreement.
XV NOTICES
All notices required or permitted to be given hereunder shall be in writing and
delivered personally or sent by United States registered or certified mail,
postage prepaid, return receipt requested, or by express delivery service which
provides for return receipts, addressed to the parties as follows:
(A) If to XxXxxx'x:
XxXxxx'x Quality Foods.
17600 E, San Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxx - President/CEO
With Copy to:
Services Group of America, Inc
0000 Xxxxxxxx Xxx XX, Xxxxx 000
Xxxxxxx XX 00000
Attention: Xxxxx X. Xxxxx. CFO
Xxxxxxx X. Xxxx, General Counsel
5
(B) If to Buyer:
La Salsa. Inc.
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx Vice- President Purchasing
With Copy to:
La Salsa. Inc.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: General Counsel
XVI GOVERNING LAW AND VENUE
This agreement shall be governed by, and construed in accordance with, the laws
of the state of California without reference to the choice of law principles
thereof. Each party hereto agrees that it shall bring any action or proceeding
in respect of any claim arising out of or related to this agreement or the
transactions contained or contemplated by this agreement, whether in tort or
contract or at law or in equity, exclusively in the Superior Court of Orange
County, California (the "chosen court") and (i) irrevocably submits to the
exclusive jurisdiction of the chosen court, (ii) waives any objection to laying
venue in any such action or proceeding in the chosen court. (iii) waives any
objection that the chosen court is an inconvenient forum or does not have
jurisdiction over any party hereto and (iv) agrees that service of process upon
such party in any such action or proceeding shall be effective if notice is
given in accordance with section xv of this agreement.
XVII CAPTIONED HEADINGS
The section headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
XVIII COMPLIANCE WITH LA\VS
XxXxxx'x warrants that all Products distributed by it to the Restaurants shall
be received, handled, stored, shipped, delivered and sold by XxXxxx'x in
compliance with all applicable federal, state and local laws, ordinances, rules
and regulations.
XIX NO PARTNERSHIP
XxXxxx'x acknowledges that it is an independent contractor and no party is or
shall be construed as an agent, partner, joint venturer or employee of another.
No party shall have the authority to bind or otherwise obligate any other palm
in any manner and no party shall represent to anyone that it has a right to do
so,
XX WAIVERS
No waiver or waivers by any party of any provision of this Agreement, whether by
conduct or otherwise, shall be deemed to be a further or continuing waiver of
the provision or any other provision of this Agreement.
XXI ATTORNEYS' FEES
If it is necessary for either party to institute stilt to enforce any of be
provisions of this Agreement, then the prevailing party in such suit shall be
entitled to collect and receive reasonable outside attorneys' fees and court
costs,
XXII SEVERABILITY
The provisions of this agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
XXIII THIRD-PARTY RIGHTS
Notwithstanding any other provision of this Agreement, this Agreement shall not
create benefits on behalf of any third party or person other than the parties
hereto or their permitted assignees (including without limitation any broker,
finder, supplier or customer), and this Agreement shall be effective only as
between the parties hereto, their successors and permitted assigns.
6
XXIV ENTIRE. AGREEMENT/AMENDMENT'S
The parties expressly acknowledge that this Agreement contains the entire
agreement of the parties with respect to the relationship specified in this
Agreement and supersedes any prior arrangements or understandings, verbal or
written, between the parties with respect to such relationship. This Agreement
may only be amended by a written document signed by each of the parties hereto.
XXV COUNTERPARTS
This Agreement and any amendments hereto may be executed in one or more
counterparts, each of which shall be deemed to be an original by the parties
executing such counterpart, but all of which shall be considered one and the
same instrument.
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of the
parties hereto as of the date first written above.
XxXxxx'x BUYER BUYER
BY XxXxxx'x Quality Foods La Salsa, Inc. La Salsa Inc.
Signature /s/ Xxx Xxxxxx /s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxx
-------------- ------------------- -------------------
It's: President/CEO VP Purchasing Executive Vice President Chief Operating Officer
Date: 11/7/03 11/10/03 11/10/03
7
Exhibit A La Salsa, Inc.
Company Restaurant Listing
PS# Old Phone Fax Unit Name Address 1 City St Zip
Unit
#
------- ---- ------------ ------------ ------------------- -------------------------- ----------------- --- ----------
1610001 0 000-000-0000 000-000-0000 PICO 00000 X. Xxxx Xxxx. Xxx Xxxxxxx XX 00000
1610005 0 000-000-0000 000-000-0000 XXXXXXX HILLS 0000 Xxxxx Xxxxxx Xxxx. Xxxxxxx Xxxxx XX 00000
1610006 0 000-000-0000 000-000-0000 NEWPORT BEACH 000 Xxxxxxx Xxxxxx Xx. Xxxxxxx Xxxxx XX 00000
A-107
1610008 0 000-000-0000 000-000-0000 NORTON PLAZA 000 Xxxxxx Xxxxx Xxx Xxxxx XX 00000
1610009 0 000-000-0000 000-000-0000 NO. COUNTY FAIR 000 X. Xxx Xxxxxx Xxxx Xxxxxxxxx XX 00000
1610016 00 000-000-0000 000-000-0000 BRENTWOOD 00000 Xxx Xxxxxxx Xxxx. Xxxxxxxxx XX 00000
#102
1610019 00 000-000-0000 000-000-0000 CORONADO 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx XX 00000
1610027 00 000-000-0000 000-000-0000 VINCI PLAZA 00000 Xxxxx Xxxxxx Xxxx. Xxx Xxxxxxx XX 00000
Ste 111
1610035 00 000-000-0000 000-000-0000 STATE ST 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
1610037 00 000-000-0000 000-000-0000 STUDIO CITY 00000 Xxxxxxx Xxxx. Xxxxxx Xxxx XX 00000
1610039 00 000-000-0000 000-000-0000 FIVE POINTS 0000 Xxxxx Xx. Xxxxx X Xxxxx Xxxxxxx XX 00000
1610040 00 000-000-0000 000-000-0000 WESTWOOD 0000 Xxxxxxxx Xxxx. Xxx Xxxxxxx XX 00000
1610041 00 000-000-0000 000-000-0000 ROOSEVELT 000 X. 0xx Xxxxxx Xxx Xxxxxxx XX 00000
1610044 00 000-000-0000 000-000-0000 PROMENADE 0000 0xx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000
1610064 00 000-000-0000 000-000-0000 SACRAMENTO 000 Xxxxxxxx Xxxxx Xxx. Xxxxxxxxxx XX 00000
2095
1610067 00 000-000-0000 000-000-0000 XXXXXXX OAKS 00000 Xxxxxxxxx Xx. Xxxxx Xxxxxxx Xxxx XX 00000
#256
1610068 00 000-000-0000 000-000-0000 IRVINE 0000 Xxxxxxxx Xxxx. Xxx X Xxxxxx XX 00000
1610069 00 000-000-0000 000-000-0000 MILPITAS 000 Xxxxx Xxxx Xxxxx #000 Xxxxxxxx XX 00000
1610070 00 000-000-0000 000-000-0000 SAN LEANDRO 0000 Xxxxxx Xxxx. Xxx Xxxxxxx XX 00000
1610071 00 000-000-0000 000-000-0000 MOUNTAIN VIEW 000 Xxx Xxxxxxx Xxxx Xxx X Xxxxxxxx Xxxx XX 00000
1610072 00 000-000-0000 000-000-0000 ARDEN FAIR 0000 Xxxxx Xxx #0000 Xxxxxxxxxx XX 00000
1610073 00 000-000-0000 000-000-0000 SAN BRUNO 0000 Xx Xxxxxx Xxxx Xxx. X Xxx Xxxxx XX 00000
1610074 00 000-000-0000 000-000-0000 BURLINGAME 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
1610075 00 000-000-0000 000-000-0000 OAKLAND 000 00xx Xxxxxx Xxx 00 Xxxxxxx XX 00000
1610076 00 000-000-0000 000-000-0000 CAESARS 0000 X. Xxx Xxxxx Xxxx. Xxx Xxxxx XX 00000
SPE7
1610077 00 000-000-0000 000-000-0000 BOULEVARD MALL 0000 X. Xxxxxxxx Xxxxxxx Xxx Xxxxx XX 00000
FC#108
1610078 00 000-000-0000 000-000-0000 WESTLAKE 000 Xxxxxxxxx Xxx Xxx X Xxxxxxxx Xxxxxxx XX 00000
1610079 00 000-000-0000 000-000-0000 REDONDO SHORES 000 X. Xxxxxxx Xxxxx Xxx Xxxxxxx Xxxxx XX 00000
E#110
1610080 00 000-000-0000 000-000-0000 UNION BANK 000 X. Xxxxxxxx Xx Xxxxx Xxx Xxxxxxx XX 00000
#104
1610082 00 000-000-0000 000-000-0000 BUNKER HILL 000 X. 0xx Xxxxxx Xxx Xxxxxxx XX 00000
Ste.#R-201
1610084 00 000-000-0000 000-000-0000 TARZANA 00000 Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000
1610085 00 000-000-0000 000-000-0000 FILLMORE 0000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
1610090 00 000-000-0000 000-000-0000 MOTCLAIR 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
1610091 00 000-000-0000 000-000-0000 CALABASAS 0000 Xxxxxxx Xxx Xxx. X Xxxxxxxxx XX 00000
1610093 00 000-000-0000 000-000-0000 AUTO PARKWAY 0000 Xxxx Xxxxxxx Xxxxxxxxx XX 00000
1610094 00 000-000-0000 000-000-0000 ENCINITAS 000 X. Xx Xxxxxx Xxxx Xxxxxxxxx XX 00000
1610095 00 000-000-0000 000-000-0000 LA MESA 0000 Xxxxxxxxx Xxxxx Xx Xxxx XX 00000
1610096 00 000-000-0000 000-000-0000 MALIBU 00000 Xxxxxxx Xxxxx Xxx Xxxxxx XX 00000
1610097 00 000-000-0000 000-000-0000 PACIFIC BEACH 000 Xxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
1610098 00 000-000-0000 000-000-0000 TOPANGA 0000 Xxxxxxx Xxxxxx Xxxx. Xxxxxx Xxxx XX 00000-0000
Ste. 1-E
1610099 00 000-000-0000 000-000-0000 LUXOR 0000 Xxx Xxxxx Xxxx Xxxxx Xxx Xxxxx XX 00000
1610100 000 000-000-0000 000-000-0000 UNION LANDING 00000 Xxxx Xxxxxx Xxxxx Xxxx XX 00000
1610101 000 000-000-0000 000-000-0000 DUBLIN 0000 Xxxxxx Xxxx. Xxxxxx XX 00000
1610102 000 000-000-0000 000-000-0000 MAC XXXXXX 0000 Xxx Xxxxxx Xxxx. Xxx Xxxxxxx Xxxxx XX 00000
F
610104 000 000-000-0000 000-000-0000 ARBORETUM 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
610105 000 000-000-0000 000-000-0000 W. SIDE PLAZA 00000 X. Xxxx Xxxx. Xxx Xxxxxxx XX 00000
610106 000 000-000-0000 000-0000-0000 COSTA MESA 000 X 00xx Xxxxxx Xxxxx Xxxx XX 00000
610107 000 000-000-0000 000-000-0000 ORANGE VILLA 0000 X. Xxxxxx Xxxxxx X-0 Xxxxxx XX 00000-0000
610108 000 000-000-0000 858-350-6579 CARMEL COUNTRY ROAD 00000 Xxxxxx Xxxxxxx Xx Xxx Xxxxx XX 00000
Ste D-100
610109 000 000-000-0000 000-000-0000 ROLLING HILLS 00-X Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
Estate
610110 000 000-000-0000 000-000-0000 SANTA XXXXXXXXX 00000 Xxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxx XX 00000
Xxxxxxxxx
610111 000 000-000-0000 000-000-0000 IRVINE CENTER 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
610112 000 000-000-0000 000-000-0000 CHINO HILLS 00000 Xxxxxx Xx. Xxxx. 0X Xxxxx XX 00000
Ste. J
610117 000 000-000-0000 000-000-0000 CLAIREMONT 0000 Xxxxxxxxxx Xxxx Xxx Xxxxx XX 00000-0000
Blvd. #106
610118 000 000-000-0000 000-000-0000 OCEANSIDE 0000 Xxxxxxxxx Xxxx. Xxx Xxxxxxxxx XX 00000-0000
102
610119 000 000-000-0000 000-000-0000 PIER 00 Xxxx 00 Xxxx. X Xxx Xxxxxxxxx XX 00000
610120 000 000-000-0000 000-000-0000 ESPLANADE 000 X. Xxxxxxxxx Xxxxx Xxxxxx XX 00000
610121 000 000-000-0000 000-000-0000 LAKEWOOD 000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
FC-10
610122 000 000-000-0000 000-000-0000 TUSTIN 000 X. Xxxx Xxxxxx Xxxxxx XX 00000
610123 000 000-000-0000 000-000-0000 TRABUCO GROVE 00000 Xxxxxxx Xxxx Xxxxxx XX 00000
8
Name Unit# Owner/Operator Name Street Address St Zip Phone Fax
-------- ----- --------------------- ------------- ------------------------------ --- ---------- ------------ ------------
La Salsa 24 Xxxxxxx Xxxx, Inc. San Diego 0000 Xxxxxxxxxx Xxx. #000 XX 00000 619-543-0777 000-000-0000
La Salsa 501 Bing & Xxxxxx Xxxxxxx Xxxxxxx 000 X Xx. XX 00000-0000 510-940-3737 000-000-0000
La Salsa 405 Bravo Group, LLC Tucson 0000 X. Xxxxx Xxxx #000 XX 00000 520-325-2200 000-000-0000
La Salsa 421 Bravo Group, LLC Tucson 0000 X. Xxxxxx Xxxx #000 XX 00000 520-531-1211 000-000-0000
La Salsa 422 Bravo Group, LLC Tucson 0000 X. Xxxx Xxxxxx Xxxx #000 XX 00000 520-325-0082 000-000-0000
La Salsa 492 Bravo Group, LLC Tucson 0000 X. Xxxxxx Xxxx XX 00000 520-747-0066 000-000-0000
La Salsa 431 Campico, Inc. Primm 000 Xxxxxxxxx Xxxx XX 00000 702-874-2340 000-000-0000
La Salsa 485 Campico, Inc. Las Vegas 0000 X. Xxx Xxxxx Xxxx. XX 00000 702-697-4401 000-000-0000
La Salsa 20 Goldmex Glendale 0000 Xxxxxxxx Xxxxxxxx XX 00000 818-548-5341 000-000-0000
La Salsa 000 Xxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxx Xxxxx XX0 XX 00000 818-700-1501 000-000-0000
La Salsa 000 Xxxx Xxxxxxxx #0 Xxxxxxx 0 Xxxxx Xxxxxx #X00 XX 00000 909-476-1313 000-000-0000
La Salsa 000 Xxxx Xxxxxxxx #0 Xxx Xxxxxxx
Airport 000 Xxxxx Xxx XX 00000 310-646-6470 000-000-0000
La Salsa 428 Host Marriott #5 Sacramento 0000 Xxxxxxx Xxxx. Xxx 00 XX 00000 916-929-9596 000-000-0000
La Salsa 000 Xxxx Xxxxx Xxxxxxxx Xxxx 000 X. Xxxxxxxxx Xxxxx XX 00000 805-496-1327 000-000-0000
La Salsa 488 LTS Enterprises, Inc. Las Vegas -
Alladin 0000 X. Xxx Xxxxx Xxxx. #000 XX 00000 702-892-0645 000-000-0000
La Salsa 489 LTS Enterprises, Inc. Las Vegas - 000 Xxxxxxxx Xxxxxx Xxx. 000 XX 00000 702-384-1720 000-000-0000
Neonopolis
La Salsa 420 Xxxxx Xxxxxx San Diego 0000 X. Xxxxxx Xxxxx XX 00000 000-000-0000 000-000-0000
La Salsa 497 Nevada Franchise,
LLC/DBA Bola VI, LLC Las Vegas 0000 X. Xxx Xxxxx Xxxx. Xxx XX 00000 000-000-0000 000-000-0000
0000
Xx Xxxxx 00 Xxxxxxxx Xxxxxxxxxxx Xxxxxxxxxx 0000 X. Xxxxxxxxx Xxxx XX 00000 480-994-4112 000-000-0000
La Salsa 408 Northern Restaurants Phoenix 00000 X. Xxxxx Xxxx. XX 00000 480-948-2600 000-000-0000
La Salsa 000 Xxxxxxxx Xxxxxxxxxxx Xxxxxxxx 0000 X. Xxxxxxxxx Xxxx Xxxxxx XX 00000 623-412-8803 000-000-0000
#2073
La Salsa 487 QSR Enterprises, Inc. Upland 000-X Xxxxxxxx Xxxxxx XX 00000-0000 909-946-6949 000-000-0000
La Salsa 21 R&R Enterprises San Diego 0000 Xxxxxxx Xxxxxx #000 XX 00000 858-455-7229 000-000-0000
La Salsa 435 Sodexho-Marriott Burbank Riverside Commissary Mail Code CA 91521 818-460-5777 000-000-0000
Services 0000
Xx Xxxxx 502 Sodexho-Marriott San Diego Main Exchange Foodcourt XXXX XX 00000 858-695-7303 000-000-0000
Services Miramar
La Salsa 414 USC Hospitality Los Angeles 000 X. 00xx Xxxxx XX 00000 213-740-5544 000-000-0000
La Salsa 38 YSJA America, Inc. Redondo Beach 0000 Xxxxxxxxx Xxxxx Xxxx. XX 00000 310-793-9444 000-000-0000
La Salsa 46 YSJA America, Inc. Torrance 00000 Xxxxxxxx Xxxx XX 00000 310-326-1444 000-000-0000
La Salsa 403 YSJA America, Inc. Cerritos 000 Xxx Xxxxxxxx Xxxxxx XX 00000 562-809-4034 000-000-0000
La Salsa 406 YSJA America, Inc. Redondo Beach 0000 Xxxxx Xxxxx Xxxxxx XX 00000 310-543-2448 310-5433144
9
EXHIBIT B
ACCEPTANCE AGREEMENT
This Acceptance Agreement is entered into as of the ____ day of
______________________________________,, by and between the undersigned owner
(the "Owner") of the establishments described on the attached Exhibit A (the
`Subject Locations") and XxXxxx'x on behalf of itself and certain of its
operating companies (collectively, "XxXxxx'x") that are approved to provide
distribution services to the Owner, as a franchisee of La Salsa, Inc. (the
"Master Organization").
RECITALS
A. The Owner and the Master Organization dense that XxXxxx'x provide
distribution services to the Subject Locations under substantially similar terms
and conditions (the "Standard Tents") as set forth in the distribution agreement
entered into by and between XxXxxx'x and the Master Organization dated as of
_______________________ [date of Master Distribution Services Agreement] (the
"Distribution Agreement"). In certain cases, the Distribution Agreement permits
variances in the Standard Terms to address the specific delivery requirements,
credit terms, and/or other unique circumstances relating to or requirements of
the Owner or the Subject Locations.
X. XxXxxx'x, as a condition to providing distribution services to the
Subject Locations, requires that the Owner execute this Agreement, evidencing
the Owner's agreement to the terms and conditions of the Distribution Agreement,
as modified and/or supplemented by the Location Specific Terms, as set forth in
Exhibit B attached to and hereby incorporated by reference within this
Agreement. All capitalized terms not otherwise defined in this Agreement shall
have the meanings ascribed to them under the Distribution Agreement.
Therefore, in consideration of the premises and the mutual covenants, the
sufficiency of which is acknowledged by than, the Owner and XxXxxx'x agree as
follows:
1. Binding Nature of Distribution Agreement By his/her/its signature
below, the Owner specifically acknowledges and agrees: (A) that the distribution
services that XxXxxx'x provides to the Subject Locations shall to subject to the
terms and conditions of the Distribution Agreement, as the same may be modified
upon. Agreement by and between XxXxxx'x and the Master Organization, from time
to time, pursuant to its terms, and further subject to the Location Specific
Tents: (B) to be bound by any adjustments in the pricing terms permitted under
the Distribution Agreement and/or negotiated and agreed to by the Master
Organization. The Owner specifically acknowledges and agrees that the "Cost" or
`Contracted Cost' that shall be utilized in determining the sell price of
Products distributed to the Subject Locations shall be determined in the manner
provided in the Distribution Agreement The Owner specifically recognizes and
agrees that XxXxxx'x shall be entitled to compensation for its performance of
merchandising and other value-added services to or for the benefit of suppliers,
as provided in the Distribution Agreement, and that such compensation shall not
be deducted from or otherwise offset against the "Cost or Contracted Cost'
utilized in determining the sell price of Products.
Provided that XxXxxx'x has indicated its acceptance hereof through the
signature of its authorized representative below, XxXxxx'x shall provide
distribution services to the Subject Locations in accordance with the terms and
conditions of the Distribution Agreement, as amended and/or supplemented by the
Location Specific Terms.
2. Pricing Delivery and Credit Terms. Delivery frequencies and credit
terms and other supplemental and/or modified terms applicable to the Subject
Locations are set forth in Exhibit "B" attached to this Agreement, and
incorporated herein by reference or if not addressed therein, shall he the same
as set forth in the Distribution Agreement.
10
3. Confidentiality. Owner agrees that it will keep all terms of this
Agreement and Financial information completely confidential, and that it will
not disclose any information concerning this Agreement to any person or entity
without the prior express written consent of XxXxxx'x; provided, however, that
such information may be provided by Owner to .its auditors, consultants, and
advisors who agree to maintain such confidentiality or are otherwise bound to
restrictions or disclosures and to any prospective purchasers of all or part of
their respective businesses, provided that such prospective purchasers shall
have executed and delivered a confidentiality agreement in form and substance
approved by XxXxxx'x, which approval shall not unreasonably be withheld or
delayed. Owner will not be in breach of this requirement if Owner reasonably
believes such disclosure is required based on the advice of counsel under
applicable law, regulation, or court order. In. the event that such disclosure
is required by applicable law. regulation, or court order, however, Owner agrees
that, if reasonably practicable, such disclosure will not be made to any person
or entity until after such time as XxXxxx'x has received written notice with
regard to any required disclosure (provided that notice of the requited
disclosure is not prohibited by lax;'), and XxXxxx'x has had a reasonable
opportunity to contest the basis for disclosure and review the content of any
disclosure proposed to be made to any person or entity. Owner further agrees
that disclosure of the terms and conditions of this Agreement in violation of
this Section constitutes a material breach of the Agreement.
4. Financial Reports. The continuing credit worthiness of Owner is of
central importance to XxXxxx'x. If the Owner's accounts payable balance due
XxXxxx'x exceeds $12,000 at anytime, the Owner will provide quarterly and annual
financial statements consisting of a balance sheet, income statement and cash
flow statement and the financial condition of the Owner must continually support
the extension of credit granted in this Agreement. Alternatively, if the Owner
is not a natural person, the Owner [may, in lieu of quarterly financial
statements, provide personal guaranties of the payment of Owner's obligations
under the Agreement from the owners of legal or beneficial interests in the
Owner and annual personal financial statements of such guarantors, provided that
the financial condition of such guarantors continues to support the credit
extended to the Owner. In such event, the Owner shall continue to provide annual
financial statements relating tote Owner.
5. Termination/Delivery Stoppage.
(a) This Agreement and XxXxxx'x obligation to provide distribution
services to the Subject Locations may be terminated:
(i) By XxXxxx'x upon site termination of the Distribution Agreement,
or by reason of the circumstances permitting termination of the
Distribution Agreement, even if not exercised, by XxXxxx'x;
(ii) By Owner upon the termination of Owner's franchise agreement
with the Master Organization;
(iii) By either Party, upon thirty (30) days prior written notice to
the other Party, if the other Party breaches the terms and
conditions of this Agreement and fails to cure such breach within
such thirty (30) day cure period;
(iv) By XxXxxx'x open written notice to Owner In the event that
XxXxxx'x reasonably determines that Owner has suffered a material
adverse change it his/her/or its financial condition;
(v) By either Party, if the other Party is adjudicated insolvent by
any court or tribunal, or files a voluntary petition in bankruptcy,
or enters into an arrangement with its creditors or applies for or
consents to the appointment of a receiver or trustee of itself or
its property, or makes an assignment for the benefit of creditors or
suffers or permits the entry of an order adjudicating it to be
bankrupt or insolvent or appointing a receiver or trustee of itself
or its property, in which event no notice to the defaulting Party
shall he required and this Agreement shall immediately terminate; or
11
(vi) By either Party, if the oilier Party permits or suffers on
involuntary petition in bankruptcy filed against it to remain
undischarged or stayed for a period of sixty (60) days in which
event no notice TO the other Party shall be required and this
Agreement shall immediately terminate.
Absent such earlier termination, this Agreement shall remain,
in full force and effect until the expiration 0f the Distribution
Agreement.
(b) In the event Owner fails to pay for any Products delivered to any
Subject Locations within the approved payment terms established pursuant to this
Agreement, XxXxxx'x shall be entitled to, forthwith upon notice to Owner,
withhold any future deliveries of Products to the Subject Locations until
XxXxxx'x receives payment in full of the Sell Price with respect to such
Products and any finance or law charges permitted under the Distribution
Agreement. In addition, in the event that Owner fails to timely pay for Products
delivered to any 0f the Subject Locations or upon the occurrence of any of the
events described in clauses (iii), (iv), and (s') above with respect to Owner,
XxXxxx'x shall be entitled to condition future deliveries of Products to the
Subject Locations upon more stringent credit and/or payment terms, such as,
without limitation, shortened payment periods, cash on delivery, cash in
advance, the receipt of satisfactory guaranties that guaranty payment to
XxXxxx'x for such Products, and/or the pledging of collateral to secure such
payments.
6. Release. Owner agrees that XxXxxx'x ability to perform distribution
services for Owner under the terms of the Distribution Agreement as modified
herein, is expressly contingent upon the Master Organization's approval for
XxXxxx'x to do so. Accordingly, Owner hereby releases XxXxxx'x it's affiliates,
and each of their respective officers, employees, and directors from any and all
losses, damages, or claims that Owner may have or suffer as a result of XxXxxx'x
discontinuance of services to Owner as a result of express instructions from the
Master Organization to cease such services.
Effective as of the date first above written.
OWNER
By:
--------------------
Name:
------------------
Title:
-----------------
12
