PRIMARY DISTRIBUTION AGREEMENT
This Primary Distribution Agreement (hereinafter called "Agreement") is
made as of this 17th day of February, 1995, between Fresh'n Lite, Inc., a Texas
corporation having its principal offices located at 0000 Xxxxxx Xxxx, Xxxxxxxx,
Xxxxx, (hereinafter called "Fresh'n Lite") and Consolidated Companies, Inc., a
Louisiana corporation having its principal offices located at 0000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000, (hereinafter called "Conco").
WHEREAS, Conco distributes products, including produce, disposables, paper
products, small wares, chemicals and janitorial supplies;
WHEREAS, Conco has invested $200,000 into Fresh'n Lite, Inc., for the
purchase of Common Stock of Fresh'n Lite, Inc. (the "Common Stock"), as of the
date hereof (hereinafter called "Investment Date"); and
WHEREAS, in consideration of this investment the parties desire to enter
into this Agreement where Conco will be appointed supplier for ninety percent
(90%) of the products purchased by Fresh'n Lite that are products distributed by
Conco;
NOW, THEREFORE, for and in consideration of the mutual promises hereinafter
made by the parties, Fresh'n Lite and Conco hereby agree as follows:
1. Definitions.
(a) "Product" or "Products" shall mean the typical
products which fit the Fresh'n Lite menu items and
are handled by Conco as a broadline food service
company, including food products, produce,
disposables, paper products, small wares, chemicals
and janitorial supplies.
(b) "Requirements" shall mean ninety percent (90%) of
Fresh'n Lite's requirements of the Products.
2. Sale of Requirements/Term. Conco shall sell to Fresh'n Lite
and Fresh'n Lite shall purchase from Conco the Requirements
of the Products for a period ending on the earlier of (i)
five (~) years from the Investment Date or (ii) when Conco
shall sell or otherwise dispose of any of the Common Stock.
The parties agree that Fresh'n Lite's obligation to purchase
its Requirements shall apply only to the Products.
Subject to the following limitation, Fresh'n Lite's
obligation to purchase its Requirements from Conco shall
apply to all Fresh'n Lite locations to which Conco is able
to distribute the Products within the delivery period
requirements of Fresh'n Lite for its current restaurant
locations. These current restaurant locations are described
in more detail in Exhibit 1, attached hereto
PRIMARY DISTRIBUTION AGREEMENT 47
and by this reference made a part hereof. The parties
acknowledge that the terms of this Agreement are not binding
on any franchise locations that Fresh'n Lite does not have
the power to bind under applicable franchising or other
laws. However, Fresh'n Lite agrees to use its best efforts
to promote the Products to these franchise locations in
order to encourage the franchisee to purchase the Products.
Conco agrees to use its best efforts within its current
capabilities to ship all orders made by Fresh'n Lite within
the delivery period requirements of Fresh'n Lite as
described above.
3. Price and Terms. The prices to be paid by Fresh'n Lite for
the Products shall be the best and most competitive prices
offered by Conco to any of its customers for the Products at
the time that an order is placed by Fresh'n Lite. For
Products delivered to the new locations of Fresh'n Lite
restaurants established after the date hereof the terms
will be "weekly" as such term is currently being utilized
by Conco, and for Products delivered to the current
restaurants of Fresh'n Lite, the terms will be "thirty-days"
as such term is currently being utilized by Conco.
4. Indemnity. Conco agrees to indemnify Fresh'n Lite of and
from any and all costs, expenses, damages, suits or claims
relating to or arising out of or in any way related to the
use of the Products by Fresh'n Lite or by any of its
customers that might reasonably expect to be affected by a
defect in the Products.
Conco agrees to indemnify, defend and hold harmless Fresh'n
Lite from any loss, claim, suit or liability arising out of
or as a result of any breach or violation by Conco of any of
the warranties, covenants or other provisions of this
Agreement. Fresh'n Lite agrees to indemnify, defend and hold
harmless Conco of and from any loss, claims, suit or
liability arising out of or as a result of the breach or
violations by Fresh'n Lite of any of the warranties,
covenants or provisions of this Agreement. The provisions of
this Section shall survive the term of this Agreement and
continue in effect thereafter.
5. Notice. Any notices required to be given under this
Agreement shall be deemed to have been given when in writing
and (1) actually hand-delivered to the other party, at the
address below, or (2) deposited in the United States mail,
postage prepaid, certified mail, return receipt requested
and addressed:
to Fresh'n Lite at: Fresh'n Lite, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
PRIMARY DISTRIBUTION AGREEMENT 48
cc: Xx. Xxxxxx X. Xxxxxxx
Fresh'n Lite, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxx 00000
to Conco at: Consolidated Companies, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx Xxxxxxx, III
cc: Xx. Xxxxxx Xxxxxxxxx
Consolidated Companies, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
6. Waiver. The failure of either party at any time to require
performance by the other party of any provisions hereof
shall in no way affect the right to require such
performance at any time thereafter. Waiver by either party
of a breach of any provision hereof shall not constitute a
waiver of any other breach of the same or any other such
provision nor constitute a waiver of the provision itself.
7. Relationship of Parties. This Agreement does not constitute
Conco the agent or legal representative of Fresh'n Lite for
any purpose whatsoever. Conco is not granted any express or
implied authority to assume or create any obligation or
responsibility on behalf of Fresh'n Lite or to bind Fresh'n
Lite in any manner whatsoever. This Agreement does not
constitute Fresh'n Lite the agent or legal representative of
Conco for any purpose whatsoever. Fresh'n Lite is not
granted any express or implied authority to assume or create
any obligation or responsibility on behalf of Conco or to
bind Conco in any manner whatsoever. Neither Fresh'n Lite
nor Conco are the employee, agent, partner or joint venture
of the other and neither Fresh'n Lite nor Conco shall hold
itself out to the public as such.
8. Construction. This instrument is intended by the parties as
a final expression of their agreement and as a complete and
exclusive statement of its terms. No course of prior
dealings between the parties and no usage of trade shall be
relevant or admissible to supplement, explain, or vary any
of the terms of this Agreement. Acceptance of, or
acquiescence in, the course of performance rendered under
this or any prior agreement shaj1 not be relevant or
admissible to determine the meaning of this Agreement even
though the accepting or acquiescing party has knowledge of
the nature of the performance and an opportunity to make
objection. No representations, under standings, or
agreements have been made or relied upon in the making of
this Agreement other than those specifically set forth
herein. This Agreement may
PRIMARY DISTRIBUTION AGREEMENT 49
be modified only by an instrument signed by both parties or
their duly authorized agents. In the event of any conflict
between this Agreement and any purchase order, this
Agreement shall control.
9. Assignment. Neither party may assign any of its rights or
duties under this Agreement without the prior written
consent of the other party hereto and any attempted
assignment without such written consent shall be null and
void and without legal effect.
10. Warranties of Conco. Conco hereby represents and warrants
to Fresh'n Lite that:
(a) Conco is a corporation duly organized, validly existing
and in good standing with the laws of the State of
Louisiana; it has all requisite corporate power and
authority and is entitled to carry on its business as
now being conducted, both in the State of Louisiana and
in the State of Texas;
(b) Neither the execution, deliver nor performance of this
Agreement by Conco will conflict with any provision of
Conco's Articles of Incorporation or Bylaws or any
franchise, mortgage, deed of trust, license, lease,
agreement, understanding, law, rule or regulation or
any order, judgment or decree tO which Conco is a party
or by which it may be bound or affected. Conco has the
full power and authority to enter into this Agreement
and to carry out the transactions contemplated hereby.
The Board of Directors of Conco has approved the form,
term and provisions of this Agreement and the
transactions contemplated hereby and all other
proceedings required to be taken by it to authorize the
execution, delivery and performance of this Agreement
and the agreements relating hereto have been properly
taken and this Agreement constitutes the valid and
binding obligation of Conco;
(c) Conco has the capacity and expertise to supply Product
to Fresh'n Lite in quantities sufficient to meet the
Requirements of Fresh'n Lite.
11. Warranties of Fresh'n Lite. Fresh'n Lite hereby represents
and warrants to Conco that:
(a) Fresh'n Lite is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware; it has all requisite corporate power
and authority and is entitled to carry on with its
business as now being conducted;
(b) Neither the execution, delivery nor performance of this
Agreement by Fresh'n Lite will conflict with any
provision of Fresh'n Lite's Articles
PRIMARY DISTRIBUTION AGREEMENT 50
of Incorporation or Bylaws or any franchise, mortgage,
deed of trust, license, lease, agreement,
understanding, law, rude or regulation or any order,
judgment or decree to which Fresh'n Lite is a party or
by which it may be bound or affected. Fresh'n Lite has
the full power and authority to enter into this
Agreement and to carry out the transactions
contemplated hereby. The Board of Directors of Fresh'n
Lite has approved the form, term and provisions of this
Agreement and the transactions contemplated hereby and
all other proceedings required to be taken by it to
authorize the execution, delivery and performance of
this Agreement and the agreements relating hereto have
been properly taken and this Agreement constitutes the
valid and binding obligation of Fresh'n Lite.
All of the foregoing representations and warranties shall
survive the termination of this Agreement.
12. Benefit. This Agreement sha11 be binding upon and inure to
the benefit of Conco, Fresh'n Lite, and their respective
successors and assigns; provided that this Agreement may
not be assigned by either party without the prior written
consent of the other party.
13. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS AND ASPECTS BY THE LAWS OF THE STATE OF TEXAS AND
THE PARTIES HEREBY AGREE THAT ANY LEGAL ACTION CONCERNING
THIS AGREEMENT SHALL BE BROUGHT IN A COURT OF COMPETENT
JURISDICTION IN XXXXX COUNTY, TEXAS.
EXECUTED TO BE EFFECTIVE as of the day and year first written above.
FRESH'N LITE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, its President
CONSOLIDATED COMPANIES, NC.
By: /s/ Xxxxxx Xxxxx Xxxxxxx III
--------------------------------------
Xxxxxx Xxxxx Xxxxxxx, III its
Chief Executive Officer
PRIMARY DISTRIBUTION AGREEMENT 51
EXHIBIT 1
---------
Current Restaurant Locations of Fresh'n Lite:
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxx 00000
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx 00000
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
