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 McCabe's QUALITY FOODS
("McCabe's") and LA SALSA, INC. ("Buyer").
RECITALS
WHEREAS, McCabe's 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
McCabe's will purchase, warehouse, and distribute for sale to Restaurants, and
Restaurants will purchase from McCabe's 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 McCabe's
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, McCabe's
shall maintain an inventory of the Products in quantities necessary
to provide the Restaurants with an adequate supply of such Products.
McCabe's shall use reasonable, good faith efforts to minimize the
risk of inventory obsolescence. McCabe's shall not buy or stock more
than four weeks supply unless authorized by Buyer. McCabe's will
provide Buyer with monthly status reports of slow moving items.
Buyer will communicate with McCabe's regarding menu changes and
Product mix changes.
IV SERVICES
A. Delivery Frequency - McCabe's will determine Order and delivery
schedules. McCabe's will make two deliveries per week to each Restaurant
unless otherwise mutually agreed in writing between Buyer and McCabe's.
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, McCabe's 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 - McCabe's 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 McCabe's may have particular scheduling needs for specific
Restaurants where unusual circumstances may exist, and each party agree to
address such needs in good faith.
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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 - McCabe's delivery drivers will
bring all Products into those Restaurants where it is possible to safely
roll a two-wheel cart. McCabe's delivery drivers will separate and deliver
the order to the Restaurants freezer, cooler and dry storeroom. McCabe's
delivery driver will not put Products on the shelves. McCabe's delivery
drivers shall use caution and care in using access driveways, hallways,
and pathways. McCabe's shall repair damages (other than reasonable wear
and tear) caused by McCabe's 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," McCabe's 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. McCabe's 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 McCabe's by 4:00 PM two
days prior to scheduled delivery. Restaurant may place orders
electronically to McCabe's when available systems are in place at
both Restaurant and McCabe's.
I. Shortages - McCabe's shall promptly notify Restaurants of shorted
items prior to delivery. McCabe's shall arrange delivery of shorted
items within twenty-four (24) hours from the time of delivery.
McCabe's 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 McCabe's 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.
B. McCabe's Fee Per Case - The Sell Price of each Product sold under this
Agreement will equal the cost ("Cost") of each Product delivered to all
McCabe's 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).
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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
mark-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 McCabe's 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, McCabe's 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:www.cia.doe.gov/pub/oil_gas/
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. McCabe's 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 McCabe's 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
A. McCabe's 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 McCabe's and accepted by the Company
Restaurants hereunder. The prices on invoices for all Products
supplied by McCabe's 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 McCabe's
pursuant to that Agreement shall be made by wire transfer of
immediately available funds to a bank account designated by McCabe's
not fewer than two days prior to such payment, or the last bank
account used for any such transfer, as the case may be,
B. McCabe's 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 McCabe's 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
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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 McCabe's 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 McCabe's pursuant to this Agreement shall be
terminable, at McCabe's 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
McCabe's solely for Buyer within sixty (60) days.
IX ASSIGNMENT
A. McCabe's 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 McCabe's from employing common carriers, contract carriers,
public warehousemen or other similar parties to temporarily perform
its services hereunder.
B. Notwithstanding subsection VIII A above, McCabe's may not assign its
rights and obligations under this Agreement without Buyer's consent
to any subsidiary or affiliate of McCabe's 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 McCabe's shall not be deemed to be an assignment of rights under
this Agreement for which Buyer's consent is required.
C. McCabe's 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 McCabe's
in original condition and a credit is due the Restaurant, McCabe's shall provide
credits for Product(s) within seven (7) days of pickup. Restaurant shall make
arrangements through McCabe's 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 McCabe's. McCabe's shall promptly issue
a receipt to Restaurant for any Products determined acceptable by McCabe's for
return and ensure that, Buyer receives a proper credit therefor within seven (7)
days of pickup. McCabe's shall bear all risk of loss, damage, or destruction
until title passes to Buyer. Credits will be automatically processed after ten
(10) days if McCabe s fails to make the customer pickup as agreed with the
Restaurant.
XI REPORT REQUIREMENTS
Within five (5) days of the commencement of a McCabe's Accounting Period,
McCabe's will provide Buyer with an Accounting Period Order Guide and Price
List. For purposes of determining commodity Sell Prices, McCabe's will provide a
Weekly Price Change Notice. McCabe's 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.
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XII INSURANCE
McCabe's 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 McCabe's 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 McCabe's 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
McCabe's 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 McCabe's:
McCabe's Quality Foods.
17600 E, San Rafael
Portland, OR 91230
Attention: Joe Kemetz - President/CEO
With Copy to:
Services Group of America, Inc
4025 Delridge Way SW, Suite 500
Seattle WA 98106
Attention: Peter K. Smith. CFO
Jeffrey R. Masi, General Counsel
5
(B) If to Buyer:
La Salsa. Inc.
3916 State Street
Santa Barbara, CA 93105
Attn: Michele Rushing Vice- President Purchasing
With Copy to:
La Salsa. Inc.
6307 Carpinteria Avenue
Carpinteria, CA 93013-2901
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
McCabe's warrants that all Products distributed by it to the Restaurants shall
be received, handled, stored, shipped, delivered and sold by McCabe's in
compliance with all applicable federal, state and local laws, ordinances, rules
and regulations.
XIX NO PARTNERSHIP
McCabe's 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.
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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.
McCabe's BUYER BUYER
BY McCabe's Quality Foods La Salsa, Inc. La Salsa Inc.
Signature /s/ Joe Kemetz /s/ Michele Rushing /s/ Michael W. Liby
-------------- ------------------- -------------------
It's: President/CEO VP Purchasing Executive Vice President Chief Operating Officer
Date: 11/7/03 11/10/03 11/10/03
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Exhibit A La Salsa, Inc.
Company Restaurant Listing
PS# Old Phone Fax Unit Name Address 1 City St Zip
Unit
#
- ------- ---- ------------ ------------ ------------------- -------------------------- ----------------- --- ----------
1610001 1 310-479-0919 310-477-2388 PICO 11077 W. Pico Blvd. Los Angeles CA 90064
1610005 5 310-276-2373 310-273-2375 BEVERLY HILLS 9631 Santa Monica Blvd. Beverly Hills CA 90210
1610006 6 949-640-4289 640-640-2761 NEWPORT BEACH 401 Newport Center Dr. Newport Beach CA 92660
A-107
1610008 8 619-234-6906 619-234-6214 NORTON PLAZA 415 Horton Plaza San Diego CA 92101
1610009 9 760-747-6605 760-747-8051 NO. COUNTY FAIR 200 E. Via Rancho Pkwy Escondido CA 92025
1610016 16 310-826-7337 310-826-7704 BRENTWOOD 11740 San Vicente Blvd. Brentwood CA 90049
#102
1610019 19 619-435-7778 619-435-3664 CORONADO 1360 Orange Avenue Coronado Island CA 92118
1610027 27 310-473-7880 310-312-0638 VINCI PLAZA 11901 Santa Monica Blvd. Los Angeles CA 90025
Ste 111
1610035 35 805-963-1001 805-963-1660 STATE ST 1131 State Street Santa Barbara CA 93101
1610037 37 818-760-7797 818-760-1970 STUDIO CITY 12048 Ventura Blvd. Studio City CA 91604
1610039 39 805-964-1146 805-964-5766 FIVE POINTS 3987 State St. Suite D Santa Barbara CA 93104
1610040 40 310-208-7083 310-208-3176 WESTWOOD 1154 Westwood Blvd. Los Angeles CA 90024
1610041 41 213-892-8227 213-892-8415 ROOSEVELT 727 W. 7th Street Los Angeles CA 90017
1610044 44 310-587-0755 310-587-3515 PROMENADE 1401 3rd Street Promenade Santa Monica CA 90401
1610064 64 916-446-7133 916-446-1316 SACRAMENTO 545 Downtown Plaza Ste. Sacramento CA 95814
2095
1610067 67 818-789-8587 818-789-8589 SHERMAN OAKS 14006 Riverside Dr. Space Sherman Oaks CA 91423
#256
1610068 68 949-786-7692 949-786-7694 IRVINE 3850 Barranca Pkwy. Ste D Irvine CA 92606
1610069 69 408-946-6696 408-946-6586 MILPITAS 602 Great Mall Drive #447 Milpitas CA 95035
1610070 70 510-352-9095 510-352-9098 SAN LEANDRO 1207 Marina Blvd. San Leandro CA 94577
1610071 71 650-917-8290 650-917-9293 MOUNTAIN VIEW 660 San Antonio Road Ste A Mountain View CA 94040
1610072 72 916-565-0144 916-565-1006 ARDEN FAIR 1689 Arden Way #2012 Sacramento CA 95815
1610073 73 650-588-9722 650-588-9725 SAN BRUNO 1230 El Camino Real Ste. Q San Bruno CA 94066
1610074 74 650-579-3684 650-579-4754 BURLINGAME 1125 Burlingame Avenue Burlingame CA 94010
1610075 75 510-834-3422 510-834-3420 OAKLAND 501 14th Street Ste 24 Oakland CA 94612
1610076 76 702-735-8228 702-735-1145 CAESARS 3500 S. Las Vegas Blvd. Las Vegas NV 89109
SPE7
1610077 77 702-369-1234 702-369-8632 BOULEVARD MALL 3840 S. Maryland Parkway Las Vegas NV 89109
FC#108
1610078 78 805-777-0090 805-777-0190 WESTLAKE 180 Promenade Way Ste E Westlake Village CA 91362
1610079 79 310-318-5904 310-318-2634 REDONDO SHORES 409 N. Pacific Coast Hwy Redondo Beach CA 90277
E#110
1610080 80 213-683-8815 213-683-8817 UNION BANK 445 S. Figueroa St Space Los Angeles CA 90071
#104
1610082 82 213-623-6390 213-623-4161 BUNKER HILL 601 W. 5th Street Los Angeles CA 90071
Ste.#R-201
1610084 84 818-343-6744 818-343-6867 TARZANA 18660 Ventura Blvd Los Angeles CA 91356
1610085 85 415-771-7848 415-771-7835 FILLMORE 2401 California Street San Francisco CA 94115
1610090 90 510-339-9311 510-339-9235 MOTCLAIR 2064 Antioch Street Oakland CA 94611
1610091 91 818-591-7787 818-591-1785 CALABASAS 4799 Commons Way Ste. G Calabasas CA 91302
1610093 93 760-735-8253 760-735-8645 AUTO PARKWAY 1290 Auto Parkway Escondido CA 92029
1610094 94 760-436-9266 760-436-4580 ENCINITAS 219 N. El Camino Real Encinitas CA 92024
1610095 95 619-589-6696 619-589-2547 LA MESA 4990 Baltimore Drive La Mesa CA 91941
1610096 96 310-317-9466 310-317-9416 MALIBU 22800 Pacific Coast Hwy Malibu CA 90265
1610097 97 858-483-1007 858-483-1080 PACIFIC BEACH 980 Grand Avenue Pacific Beach CA 92109
1610098 98 818-888-2246 818-888-8097 TOPANGA 6600 Topanga Canyon Blvd. Canoga Park CA 91303-2678
Ste. 1-E
1610099 99 702-739-1776 702-739-1796 LUXOR 3900 Las Vegas Blvd South Las Vegas NV 89119
1610100 100 510-477-0141 510-477-0128 UNION LANDING 32248 Dyer Street Union City CA 94587
1610101 101 925-803-9200 925-803-9201 DUBLIN 4930 Dublin Blvd. Dublin CA 94568
1610102 102 949-475-2506 949-475-2508 MAC ARTHUR 4341 Mac Arthur Blvd. Ste Newport Beach CA 92660
F
610104 104 310-453-7551 310-828-3171 ARBORETUM 2200 Colorado Avenue Santa Monica CA 90404
610105 105 310-234-8338 310-234-8320 W. SIDE PLAZA 10800 W. Pico Blvd. Los Angeles CA 90064
610106 106 949-574-1315 949-5741-1318 COSTA MESA 279 E 17th Street Costa Mesa CA 92627
610107 107 714-685-1840 714-685-1468 ORANGE VILLA 2094 N. Tustin Avenue A-2 Orange CA 92865-3928
610108 108 858-350-8307 858-350-6579 CARMEL COUNTRY ROAD 12880 Carmel Country Rd San Diego CA 92130
Ste D-100
610109 109 310-265-5570 310-265-5560 ROLLING HILLS 55-A Peninsula Center Rolling Hills CA 90274
Estate
610110 110 949-888-8530 949-888-8641 SANTA MARGARITA 30642 Santa Margarita Pkwy Rancho Santa CA 92688
Margarita
610111 111 949-450-8511 949-450-8510 IRVINE CENTER 8673 Irvine Center Drive Irvine CA 92618
610112 112 909-517-3560 909-517-2171 CHINO HILLS 13089 Peyton Dr. Bldg. 3A Chino CA 91709
Ste. J
610117 117 858-974-1305 858-974-1487 CLAIREMONT 9211 Clairemont Mesa San Diego CA 92123-1211
Blvd. #106
610118 118 760-724-8170 760-724-8170 OCEANSIDE 4111 Oceanside Blvd. Ste Oceanside CA 92056-6004
102
610119 119 415-291-0717 415-291-0817 PIER 39 Pier 39 Bldg. P San Francisco CA 94133
610120 120 805-981-2276 805-981-4867 ESPLANADE 641 W. Esplanade Drive Oxnard CA 93030
610121 121 562-529-3570 562-529-3764 LAKEWOOD 500 Lakewood Center Mall Lakewood CA 90712
FC-10
610122 122 714-838-8253 714-838-8235 TUSTIN 535 E. Main Street Tustin CA 92780
610123 123 949-551-6680 949-551-6685 TRABUCO GROVE 14171 Jeffrey Road Irvine CA 92620
8
Name Unit# Owner/Operator Name Street Address St Zip Phone Fax
- -------- ----- --------------------- ------------- ------------------------------ --- ---------- ------------ ------------
La Salsa 24 Anthony Luis, Inc. San Diego 1010 University Ave. #101 CA 92103 619-543-0777 619-297-2127
La Salsa 501 Bing & Connie Magpayo Hayward 792 B St. CA 94541-5008 510-940-3737 510-940-3663
La Salsa 405 Bravo Group, LLC Tucson 4881 E. Grant Road #101 AZ 85712 520-325-2200 520-325-2200
La Salsa 421 Bravo Group, LLC Tucson 7090 N. Oracle Road #128 AZ 85704 520-531-1211 520-531-8188
La Salsa 422 Bravo Group, LLC Tucson 1800 E. Fort Lowell Road #156 AZ 85719 520-325-0082 520-325-0089
La Salsa 492 Bravo Group, LLC Tucson 1021 N. Wilmot Road AZ 85711 520-747-0066 520-747-3855
La Salsa 431 Campico, Inc. Primm 129 Stateline Road NV 89102 702-874-2340 702-874-2340
La Salsa 485 Campico, Inc. Las Vegas 2901 S. Las Vegas Blvd. NV 89109 702-697-4401 000-000-0000
La Salsa 20 Goldmex Glendale 1144 Glendale Galleria CA 91210 818-548-5341 818-548-5341
La Salsa 401 Goldmex Northridge 9301 Tampa Avenue Space FC5 CA 91324 818-700-1501 818-700-1501
La Salsa 415 Host Marriott #2 Ontario 1 Mills Circle #F11 CA 91764 909-476-1313 909-476-1316
La Salsa 416 Host Marriott #4 Los Angeles
Airport 201 World Way CA 90045 310-646-6470 310-646-8058
La Salsa 428 Host Marriott #5 Sacramento 6850 Airport Blvd. Ste 28 CA 95837 916-929-9596 918-929-3543
La Salsa 427 John Ricci Thousand Oaks 488 W. Hillcrest Drive CA 91360 805-496-1327 805-496-7760
La Salsa 488 LTS Enterprises, Inc. Las Vegas -
Alladin 3863 S. Las Vegas Blvd. #380 NV 89109 702-892-0645 702-892-9741
La Salsa 489 LTS Enterprises, Inc. Las Vegas - 450 Freemont Street Ste. 195 NV 89101 702-384-1720 702-384-1734
Neonopolis
La Salsa 420 Marco Garcia San Diego 3707 N. Harbor Drive CA 92101 619-296-3789 619-296-4187
La Salsa 497 Nevada Franchise,
LLC/DBA Bola VI, LLC Las Vegas 3785 S. Las Vegas Blvd. Ste NV 89109 702-240-6944 702-644-6946
1500
La Salsa 32 Northern Restaurants Scottsdale 7014 E. Camelback Road AZ 85258 480-994-4112 000-000-0000
La Salsa 408 Northern Restaurants Phoenix 10855 N. Tatum Blvd. AZ 85028 480-948-2600 480-948-8282
La Salsa 484 Northern Restaurants Glendale 7700 W. Arrowhead Town Center AZ 85308 623-412-8803 623-412-8810
#2073
La Salsa 487 QSR Enterprises, Inc. Upland 960-A Mountain Avenue CA 91786-3657 909-946-6949 909-946-6948
La Salsa 21 R&R Enterprises San Diego 8750 Genesee Avenue #240 CA 92122 858-455-7229 858-455-5305
La Salsa 435 Sodexho-Marriott Burbank Riverside Commissary Mail Code CA 91521 818-460-5777 818-460-5266
Services 5019
La Salsa 502 Sodexho-Marriott San Diego Main Exchange Foodcourt MCAS CA 92101 858-695-7303 858-689-9615
Services Miramar
La Salsa 414 USC Hospitality Los Angeles 830 W. 36th Place CA 90089 213-740-5544 213-740-8831
La Salsa 38 YSJA America, Inc. Redondo Beach 2790 Manhattan Beach Blvd. CA 90278 310-793-9444 310-793-1472
La Salsa 46 YSJA America, Inc. Torrance 24223 Crenshaw Blvd CA 90505 310-326-1444 310-326-2529
La Salsa 403 YSJA America, Inc. Cerritos 137 Los Cerritos Center CA 90703 562-809-4034 562-809-0583
La Salsa 406 YSJA America, Inc. Redondo Beach 1759 South Elena Avenue CA 90277 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 McCabe's on behalf of itself and certain of its
operating companies (collectively, "McCabe's") 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 McCabe's 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 McCabe's 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.
B. McCabe's, 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 McCabe's 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 McCabe's 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 McCabe's 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 McCabe's 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 McCabe's has indicated its acceptance hereof through the
signature of its authorized representative below, McCabe's 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.
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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 McCabe's; 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 McCabe's, 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 McCabe's has received written notice with
regard to any required disclosure (provided that notice of the requited
disclosure is not prohibited by lax;'), and McCabe's 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 McCabe's. If the Owner's accounts payable balance due
McCabe's 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 McCabe's obligation to provide distribution
services to the Subject Locations may be terminated:
(i) By McCabe's upon site termination of the Distribution Agreement,
or by reason of the circumstances permitting termination of the
Distribution Agreement, even if not exercised, by McCabe's;
(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 McCabe's open written notice to Owner In the event that
McCabe's 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
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(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, McCabe's shall be entitled to, forthwith upon notice to Owner,
withhold any future deliveries of Products to the Subject Locations until
McCabe's 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,
McCabe's 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
McCabe's for such Products, and/or the pledging of collateral to secure such
payments.
6. Release. Owner agrees that McCabe's 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
McCabe's to do so. Accordingly, Owner hereby releases McCabe's 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 McCabe's
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:
-----------------
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