Master Distributor Agreement - U.S. Foodservice Inc. d/b/a U.S. Foodservice(TM) and Rubio's Restaurant inc.
MASTER DISTRIBUTOR AGREEMENT
THIS AGREEMENT (hereinafter "Agreement"), is made as of the 27th day of January,
2003, by and between U.S. Foodservice, Inc., d/b/a U.S. Foodservice(TM), a
Delaware corporation with its principal place of business located at 9755
Patuxent Woods Drive, Columbia, MD 21046, on its own behalf and on behalf of its
subsidiaries and affiliates (hereinafter, "USF") and Rubio's Restaurant, Inc., a
California corporation with its principal place of business located at 1902
Wright Place, Suite 300 - Carlsbad, CA 92008 (hereinafter, "Rubio's" or
"Customer").
RECITALS
A. Customer is the owner, operator, agent, or manager of certain
facilities; and
B. Customer desires to designate a Master Distributor to perform a
substantial portion of the purchasing, warehousing, and distribution
functions for food and related non-food products for Customer; and
C. USF carries or is willing to carry certain products required by
Customer; and
D. USF desires to perform the functions of purchasing, warehousing, and
distributing certain products for and to Customer.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements and promises herein
contained, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. SUBJECT MATTER OF AGREEMENT. Customer hereby appoints USF as its Master
Distributor and USF hereby accepts such appointment. In connection therewith,
Customer agrees to purchase from USF, and USF agrees to purchase, warehouse,
sell and distribute to Customer certain products in accordance with the terms
and conditions contained herein. A summary of program assumptions
("Assumptions") used to create the Master Distributor Program as described
herein and a list of Customer units to be serviced by USF are outlined on
ATTACHMENT A. The service benefits defined for this program are automatically
extended within the geographic distribution area of any USF distribution center
outlined on Attachment A, provided all parameters and requirements of the
program are met.
2. PRODUCTS.
a. Product Categories. Distributor shall supply Customer with
items ordered by Customer which are within the categories of products listed
below, and such additional categories of products as the parties may agree to in
writing (collectively, "Specified Products"). With respect to the categories of
products to be distributed to Customer, USF offers a wide variety of Private and
Signature Brand Products that offer quality and value.
b. Specified Products. USF will maintain an appropriate inventory
of all Specified Products, including Proprietary Products (as defined below),
under the following conditions:
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i. Customer purchases from USF a minimum of
[***] cases per week or [***] turns per
year, per Distribution Center.
ii. A minimum of [***] days written notice is
required for new products to be brought into
USF inventory for distribution.
iii. Customer will notify USF at least [***] days
in advance of special promotions that may
cause unusual or excessive demand on
inventory.
iv. If USF does not presently transact business
with a supplier/packer designated by
Customer, a complete Seller's Agreement from
that supplier/packer is required before any
product is brought into inventory. This
process may take up to [***] days. The
current insurance requirement under the
Seller's Agreement of $[***] is intended to
protect Customer and USF from costs
associated with product defect and other
third party acts or omissions.
v. Customer's national contracts with
manufacturers and manufacturer
representatives will be honored by USF. As
more specifically set forth in Section 4(f)
below, under no circumstances will USF
implement manufacturer deviated pricing
without written confirmation from the
specific manufacturer. If Customer has
contracts with a given manufacturer for
products not stocked by USF, Customer will
give consideration to similar products
stocked by USF, provided that the stocking
manufacturer will equalize the pricing.
Notwithstanding the foregoing, when the cost
of products has been negotiated directly
between Customer and vendors, such vendors
may attempt to place specific performance
parameters on USF. These may include, but
are not limited to, payment terms, purchase
quantity minimums, pick-up minimums and
reporting requirements. As USF must manage
its own negotiations with vendors to control
inventories, warehouse and receiving
efficiencies, USF will not accept, and shall
in no event be required to accept, such
conditions established by Customer specified
vendors. USF retains exclusive
responsibility for all in-bound logistics.
c. Proprietary Products. For purposes of this Agreement,
"Proprietary Products" are products that USF has in inventory, in transit or for
which non-cancelable orders have been placed, that have been ordered, purchased,
transferred or consigned for Customer's account, including without limitation,
special order products, test products, menu special products, seasonal products,
Customer label and non-Customer label products and other products brought into
stock especially to service Customer's account, including requests from Customer
units.
i. USF recognizes Customer's need to
differentiate, among other things, in theme,
menu and products. While it is USF's desire
to support Customer's needs in the product
area, the combination of warehouse capacity
restraints, freight scheduling, receiving
dock congestion and other issues requires
USF to charge the fee described below for
any Proprietary Products beyond those items
set forth below, carried for Customer's
account:
<TABLE>
<CAPTION>
Category # of Slots
-------- -----------
<S> <C>
Dry [***]
Frozen [***]
Refrigerated [***]
</TABLE>
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Proprietary Products requiring USF to allocate
warehouse slots in any USF distribution center in
excess of those listed above will mutually agreed
upon between Rubio's and USF.
ii. Customer and USF will mutually agree upon
the disposition of Proprietary Products
showing no movement for [***] days ("Dead
Inventory") and Customer will be responsible
for the disposition of the Proprietary
Products that we agree to. If such Dead
Inventory is not distributed within [***]
days thereafter, at Customer's option (1)
Customer shall purchase all such Dead
Inventory or (2) advise USF how to dispose
of such products with USF being reimbursed
for any loss on the cost of said product
that is returned to vendors or disposed of
in any manner other than distribution
through normal channels. If said product is
distributed through normal channels, the
normal mark-up will apply. Customer will be
responsible for re-stocking charges or
freight cost incurred in connection with
Dead Inventory. If Dead Inventory is not
disposed of within [***] days of being
designated as such, USF will move the Dead
Inventory to outside storage, with the cost
of the outside storage being the
responsibility of Customer.
iii. USF and Rubio's will mutually agree to
Proprietary Products moving less than [***]
cases per week ("Slow Inventory"). Customer
shall have [***] days to increase movement
of such Slow Inventory to [***] cases per
week. If such movement does not occur, USF
shall have the right not to stock any such
Slow Inventory and Customer may use an
alternative item stocked by USF or consider
an alternative procurement option (e.g.,
Next Day Gourmet, direct shipping from
manufacturer, etc.).
iv. In the event this Agreement is terminated
for any reason, Customer agrees to purchase,
or cause a third party to purchase, at full
selling price, including the applicable fee
per case and any additional surcharges
incurred by USF, all Proprietary Products.
The pick-up of these products, either by
Customer or a third party (acceptable to
USF) at Customer's direction, shall be
within [***] days of termination date for
all frozen and refrigerated products and
within [***] days of termination date for
all other products. Customer assumes
responsibility for full payment to USF for
all such products. Payment must be received
by USF within [***] days of Agreement
termination. USF may, at its option, elect
to subtract payment from credits or
allowance payments due to Customer from USF.
In the event such product is not removed
from USF within the prescribed time frames,
Customer understands and agrees that USF
will have the right to move such products to
outside storage, with the cost of the
outside storage being the responsibility of
Customer, and Customer will continue to be
responsible for the full payment for such
product as stated above.
Customer will be required to complete the New Product/Special
Order Notification and Agreement attached hereto as ATTACHMENT
B for all Proprietary Products.
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d. Substitutions. In the event a Specified Product is out of
stock or otherwise cannot be delivered to Customer as ordered, the following
procedures shall be followed:
i. All substitutions will be priced in
accordance with the applicable fee per case
and be of acceptable quality reasonably
determined by Customer.
e. Title and Risk of Loss. Title to all goods shall pass to
Customer upon delivery to the receiving dock of Customer and acceptance by
authorized signature, subject to rejection of certain items by notation on the
invoice. All deliveries may be checked in jointly by the driver of the delivery
vehicle and an authorized representative of Customer, both of whom shall note on
the invoice any shortages and damaged or rejected goods. Customer shall have
[***] from the time of delivery to notify USF (i) of any concealed damage or
rejected goods or (ii) with respect to products not jointly checked in, of any
shortages, damages, or rejected goods. USF shall ensure that all billings
reflect all shortages and damaged or rejected goods noted on the invoice.
Customer shall make arrangements through USF order department for any goods to
be returned to USF. USF shall issue a receipt to Customer for any goods picked
up for return to ensure that Customer receives a proper credit therefore. USF
shall bear all risk of loss, damage, or destruction until title passes to
Customer pursuant to this Section 2(e).
3. SERVICE ARRANGEMENTS
a. Deliveries. While USF's goal is to accommodate Customer's
needs and preferences regarding delivery days and hours, the pricing of this
Agreement and/or certain market transportation conditions may dictate USF's need
to route deliveries for utmost efficiency. As such, while USF will review
Customer's delivery preference, USF reserves the option to assign specific
delivery days and/or maintain open delivery windows to Customer's locations. All
such delivery designations shall be reviewed with Customer prior to the
initiation of the program. USF agrees regular deliveries will not be made
between the hours of 11:00 am and 2:00 pm with the exception of recoveries and
off-cycles.
b. On-Line Electronic Order Entry System. The financial
evaluation of this Agreement included the efficiencies that Customer's use of
USF's electronic ordering system would generate. USF's order entry system
provides complete order information, including confirmation. Wherever possible,
USF encourages its customers to use electronic means of ordering. The USF
website is intended to provide Customer with real time visibility to Customer's
standard Order Guide, the ability to order online, information on outstanding
orders and historical information on past purchases. Additionally, the website
is intended to allow users to search the USF catalog of products and gain access
to real time pricing of items, even those not on Customer's standard Order
Guide. USF agrees to provide Customer at no additional charge, use of USF's web
based order entry system. However, requests to integrate USF's internet
infrastructure to Customer's own or third party provided ordering system may
carry additional costs not covered in this Agreement.
While electronic ordering is a necessary economic component of this
Agreement, USF recognizes that a transition period to begin ordering
electronically may be necessary. Therefore, Rubio's units that are currently not
utilizing USF's web based ordering system may place orders using the Customer
Service department of the USF distribution center(s) assigned to your account,
without any additional charge. After May 31, 2003, all orders routinely placed
to USF by Rubio's outside of the USF web based system will be assessed a charge
of $[***] per invoice; provided, however, that no such charge will be assessed
in the event that USF's web based system is inoperable.
c. Order/Delivery Schedule. A next day or skip-day order delivery
schedule will be mutually determined to achieve optimum service levels.
d. Special Arrangements. Should Customer request the use of a
"loaner" truck, USF will make reasonable efforts to accommodate supplying a
truck for special occasions. The cost associated
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with use of the truck, the condition of the truck and driver wages will be the
responsibility of the Customer. Customer will be required to sign USF's standard
hold harmless agreement prior to it use of the truck.
e. Split Case Surcharge. USF, at Customer's request, may choose
in its sole discretion, to make available products sold in units less than
manufacturer's standard containers, in which case USF will upcharge an
additional [***] per unit to help defray additional handling expenses and
increased damage loss experience.
f. Restocking Fee. USF may, at its option, agree to accept
product returns from Customer for reasons other than USF delivery error. Such
product must be unopened, full case non-perishable product, in good condition
with adequate shelf life remaining to allow for resale. To defray USF's
additional handling expenses for the return of such products, USF reserves the
right to charge a restocking fee of [***] of the selling price. Customer returns
of certain products, including but not limited to, seasonal, special order,
discontinued or promotional products will not be accepted unless Customer or the
vendor of such products agrees to reimburse USF for selling price and other
expenses involved with such returns.
4. PRICING STRUCTURE.
a. Cost. The price of product to Customer shall equal USF's
invoice cost (as hereinafter defined) plus the agreed upon fee per case on cost
as outlined below. USF's invoice cost is defined as the manufacturer's
(supplier, packer or any other vendor) delivered cost or f.o.b. unit price plus
standard freight (as hereinafter defined) to USF's distribution center, less
off-invoice discounts or off-invoice allowances (such off-invoice discounts or
off-invoice allowances to mean manufacturer generated discounts or allowances on
particular items for set periods of time and which are specifically reflected on
the invoice). Invoice cost shall not be adjusted for, and Customer shall not be
entitled to, promotional allowances, cash discounts, prompt pay discounts,
growth programs or any other supplier incentives received by USF. Unless
in-bound freight is included in vendor's delivered pricing, standard freight
charges will be based on market conditions and will not exceed the freight rate
normally payable by the USF distribution center for inbound shipments of regular
quantity requirements of such products. Freight charges may include common or
contract carrier charges by the product vendor or a carrier, and/or charges
billed by USF for its freight management service. It is expressly acknowledged
and agreed that USF may utilize its internal logistics or branch generated
back-haul program, provided that freight cost charged to Customer does not
exceed standard freight. USF retains sole responsibility for all in bound
logistics activity.
b. Price Structure. The price structure for this Agreement on the
following product categories shall be:
<TABLE>
<CAPTION>
CATEGORY FEE PER CASE
-------- ------------
<S> <C>
- [***] $[***] flat
- [***] $[***] flat
- [***] $[***] flat
</TABLE>
Exceptions to Above
Equipment and supply shall be handled as a separate
contract.
The above pricing structure was generated on the basis of system wide average
deliveries of $[***], as set forth on ATTACHMENT A.
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c. Price Guarantees and Adjustments. Pricing will be guaranteed
for [***]. Regardless of the normal pricing cycle assigned to a product, USF
reserves the right, with prior notice and as mutually agreed upon by Rubio's to
immediately adjust the selling price of products when the replacement cost
increases by [***] or more. Selling price will be re-established by applying the
applicable fee per case amount to the increased cost.
d. Rounding. To simplify pricing, receiving and inventory
valuation, USF rounds all prices with calculated penny fractions to the next
highest penny per unit of sale.
e. Joint Buying Decisions. Will be mutually agreed upon between
Rubio's and USF.
f. Deviated Cost Programs. USF agrees to maintain deviated
costing programs in its contract pricing system when deviated cost(s) has been
negotiated directly between Customer and vendors. USF may impose a charge upon
vendors providing deviated costing in part to help defray additional
administrative, systems, financing and other costs incurred by USF in handling
products subject to cost deviations. USF will only maintain those deviated cost
programs documented by the vendor and communicated to USF via notice on vendor
letterhead, via electronic file or by completion of a USF "Deviated Cost
Program" form. The communication shall, at a minimum, contain:
Adequate lead time of [***] working days prior to the month
to be implemented
i. Program start/end dates
ii. Information pertaining to deviated cost type
(delivered to distributor, allowance, f.o.b.
origin)
iii. Information on specific products covered,
including manufacturer product code
iv. Signature of vendor representative
authorized to offer program
v. Vendor contact
USF will not be responsible for collection, payment or any reimbursement of
monies due to Customer as a result of vendors supplying inadequate information,
communication received after program start date, predated or retroactive
programs. As USF acts as an administrator regarding negotiated deviated cost
programs, USF will not be held liable for any vendor omissions or errors in
maintaining the programs and all such related recoveries shall be from the
involved vendor. Upon reaching the stated end date of a deviated costing
program, based on the vendor documentation described above, USF's pricing to
Customer will revert to the regular price structure as described in Section 4
above. The vendor will be responsible for supplying updates/extensions on
existing programs based on the description and timing set forth above.
5. FINANCIAL. Customer payment terms are set at [***] days, subject to
prior and ongoing corporate credit approval. Acceptable forms of payment include
cash, wire transfer or bank draft only. Customer shall be primarily responsible
for all financial obligations hereunder, irrespective of the entity to which
Customer may direct that products be delivered. USF reserves the right to charge
interest on all monies due beyond the agreed upon payment terms. Interest will
be charged at the lower of [***]% per month or the highest rate permissible by
law.
a. Prompt Pay Incentive. Your payment terms are [***] days. If
you elect to pay prior to the net due date, then USF will pay you an incentive
amount based upon the following schedule:
<TABLE>
<CAPTION>
Average Days Paid Incentive
----------------- ---------
<S> <C>
Less than [***] days [***]%
</TABLE>
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The incentive will be paid on invoices that average less than [***] days paid
allowing for the processing time of the wire transfer and for the Monday banking
holidays. The amount due is based on a USF electronic file transmitted each
Monday for the sales of the previous Monday through Sunday (the "Applicable
Sales Period"). Customer shall make weekly payments via wire transfer on the
following Thursday, for the sales of the Applicable Sales Period that ended
approximately one-week prior. The incentive, which will be paid within [***]
days following the close of each of USF's respective monthly accounting periods,
will be calculated by multiplying the incentive amount by the amount of payments
received by USF that averaged less than [***] days paid during the respective
monthly period. No invoice deductions will be permitted. The incentive will be
paid by check.
b. Incentives.
i. [***]
ii. [***]
c. Indemnity. Customer shall indemnify, defend and hold USF
harmless from any and all claims, demands, actions, causes of action,
liabilities, damages, costs and expenses (including reasonable attorneys' fees)
arising from any Customer unit in any way related to the payment to Customer of
any of the incentives set forth above.
d. EDI. Rubio's shall update their EDI transmission requirements
to the industry standard by May 31, 2003.
e. Uniform Sales & Tax Certificate. Customer agrees to complete
the Uniform Sales & Tax Certificate where applicable. Customer agrees to provide
full and continuing disclosure to USF of the identity and legal structure of all
subsidiary, affiliated and managed entities to which the provisions above are to
be applied.
Notwithstanding anything contained herein or in any other agreement to the
contrary, to the extent there is any change in Customer's creditworthiness or
financial capabilities (which shall include Customer's failure to pay invoices
within payment terms and a reasonable period of time thereafter), or to the
extent Customer experiences other circumstances which affect its ability to meet
the payment terms established hereunder, USF shall have the right to change the
terms outlined herein including, but not limited to, Customer's payment terms
and service arrangements.
6. ACCOUNT MANAGEMENT.
a. Personnel.
i. USF will assign a Corporate Account Manager
to coordinate the management of Customer's needs.
ii. USF will also appoint a Distribution Center
Chain Account Manager to coordinate activities and
ensure program integrity at the unit level.
iii. Each participating Distribution Center will
assign a non-commissioned telephone Customer Service
Representative to Customer.
iv. USF's corporate headquarters in Columbia,
Maryland will serve as a resource for all
Distribution Centers involved in this program.
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b. Program Review. The parties shall conduct quarterly,
semi-annual or annual review as agreed by the parties to discuss and monitor the
implementation of this program and evaluate ways of improving its day to day
operation and achieving additional operational and cost efficiencies.
Participants in such reviews shall include Customer's designated representative
and USF's National Account representatives, together with other representatives
of both parties as mutually agreed. Should the results of the review reveal that
the parameters of the Program are significantly different than those outlined on
Attachment A, USF reserves the right to propose a new program, including mark-up
structure, service arrangements and credit terms, or terminate the Agreement
pursuant to the terms of Section 8(d).
c. MIS Capabilities. Various computer generated reports are
available to Customer upon request utilizing USF's data programs and formats.
Reports may be printed or supplied electronically on a monthly and/or quarterly
basis. Reports consisting of product usage, sales volume, delivery size, and
vendor allocation are considered industry standard and may be provided upon
Customer request.
7. PRICE VERIFICATION. Upon no less than [***] weeks written
notice and during regular business hours, but no more frequently than once every
[***] months, Customer may examine documentation to support pricing of products
sold to Customer pursuant to this Agreement; provided, however, that any such
verification shall be limited to no more than [***] items with [***] per item.
If such documentation is unavailable at the distribution center office, USF's
computer generated reports will be made available at the distribution center
office or the audit may be conducted at USF's headquarters, at USF's option. The
invoice date to be verified shall be limited to a date within the [***] weeks
immediately preceding such verification. Certain vendors/suppliers provide USF
with electronic statements as the billing mechanism. In such instance, these
vendor electronic files will be considered valid audit tools.
a. Only USF and Customer management personnel will participate in
the price verification process set forth in this Section 7. Customer shall take
all reasonable steps to maintain the confidentiality of information provided by
USF. In the rare circumstance where Customer and USF agree that Customer may
utilize the services of an outside consultant to aid Customer in the price
verification, said consultant shall be required to execute a confidentiality
agreement in favor of USF containing terms reasonably acceptable to USF as a
condition to the consultant's participation in the price verification. USF
reserves the right of final approval for the use of any outside consultant, such
approval not to be unreasonably withheld.
b. Credit or debit memos for any uncontested adjustments
determined by a price verification process will be processed at Customer's
direction within one (1) week. c. Price verification audits will not be
scheduled at a time which would interfere with USF year end accounting
activities.
d. Any monies due Customer from the price verification process
will be offset by all monies due USF that are beyond the agreed upon credit
terms.
e. Pricing discrepancies found outside of the audit process will
be handled separately. Additionally, pricing verification shall be limited to a
date within the [***] weeks immediately preceding such verification.
8. TERM AND TERMINATION.
a. The term of this Agreement shall commence on January 27, 2003
and shall continue for a period of five (5) years through January 27, 2008 and
shall be renewably each year thereafter, unless sooner terminated in accordance
with the provisions hereof.
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b. Upon the occurrence of a Breach (as defined below) of this
Agreement, the non-breaching party may terminate this Agreement, at its option
and upon written notice of termination to the breaching party, and except as
provided herein, may seek any and all remedies available at law or in equity in
connection with the Breach.
c. A Breach of this Agreement is defined as:
(i) USF's or Customer's, as the case may be,
failure to perform any material term,
covenant or agreement contained herein or in
any document or instrument delivered
pursuant to or in connection with this
Agreement, which failure continues uncured
for [***] days after written notice of such
failure has been delivered by the
non-breaching party; provided, however, that
if written notice of a similar failure has
previously been provided during the
preceding [***] months, the cure period
shall be [***] days; provided, further, that
there shall be [***] days to cure failure by
Customer to make timely payments in
accordance with the payment terms
established in Section 5 above; or
(ii) USF's or Customer's, as the case may be,
application for or consent to the
appointment of a receiver, custodian,
trustee or liquidator; inability to pay its
debts as such debts become due; general
assignment for the benefit of its creditors;
commencement of a voluntary case under the
United States Bankruptcy Code; filing of a
petition seeking to take advantage of any
other law of any jurisdiction relating to
bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment
of debts or commencement by a third party of
a proceeding seeking any similar relief
under any law of any jurisdiction relating
to bankruptcy, insolvency, reorganization,
winding-up, or readjustment of its debts,
and such proceeding shall continue
undismissed for a period of sixty (60) days.
d. Notwithstanding anything contained herein to the contrary,
either party may terminate this Agreement without cause upon [***] days prior
written notice.
9. CONFIDENTIALITY. USF and Customer agree that all information as to
source, quantity, and price of goods and services disclosed or obtained in
connection with this Agreement and the performance of this Agreement shall be
maintained in confidence and shall not be released to any private third party
for any reason whatsoever other than pursuant to a validly issued subpoena from
a court or governmental authority having jurisdiction over the party, pursuant
to the rules, regulations or requirements of any state or federal agency or
department or pursuant to a discovery request made under applicable court rules
and to which the party is required to respond.
10. WARRANTY AND LIMITATION OF LIABILITY. USF shall use reasonable efforts
to obtain warranties or representations from its suppliers that the goods to be
furnished hereunder are pure, unadulterated, and of first rate quality and that
they shall be merchantable and fit for the ordinary purpose for which they are
intended. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 10, ALL WARRANTIES,
GUARANTEES, AND REPRESENTATIONS, EITHER EXPRESSED OR IMPLIED, WHETHER ARISING
UNDER ANY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY EXCLUDED. USF SHALL IN NO WAY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR RELIANCE DAMAGES, EVEN IF USF
IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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11. NOTICE. All notices required or permitted to be given hereunder shall
be in writing and sent by an overnight delivery service, or by United States
registered or certified mail, postage prepaid, return receipt requested,
addressed to the parties as follows:
TO CUSTOMER: TO USF:
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________
Attn:___________________ Attn:__________________
With Copy to:
U.S. Foodservice
9755 Patuxent Woods Drive
Columbia, MD 21046
Attn: Mr. Mark Natale
Senior Vice President -
Business Development
Or to such other addresses as the parties may direct by notice given as herein
above provided. Notice shall be deemed given when received as evidenced by the
return receipt or the date such notice is first refused, if that be the case.
12. MISCELLANEOUS.
a. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and may not be modified except by an agreement in
writing executed by the party hereto against whom the modification is sought to
be enforced. This Agreement supersedes all prior agreements between the parties
hereto governing the supply of products to the Customer and the Customer units
to be supplied hereunder, and all purchase orders submitted after the effective
date hereof shall be subject to the terms of this Agreement, conflicting terms
contained in any invoice to the contrary notwithstanding.
b. Force Majeure. Neither party will be in default in the
performance of its obligations under this Agreement if such performance is
prevented or delayed because of war, hostilities, revolution, civil commotion,
strike, labor dispute, epidemic, shortage in supply, fire, wind, earthquake or
flood, use of any law, order, proclamation, regulation or ordinance of any
government, or of any subdivision thereof, because of Acts of God or for any
other cause, whether similar or dissimilar to those enumerated, that is beyond
the reasonable control and without the fault or negligence of the party whose
performance is affected. If a force majeure event prevents USF from supplying
all of the product needs of its customers, USF shall allocate such product as is
available to USF among its customers in such manner as USF reasonably
determines. No force majeure event shall excuse Customer from its payment
obligations contained herein.
c. Choice of Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Maryland
without reference to the conflicts of laws principles thereof.
d. Attorney's Fees. In the event this Agreement is breached, the
breaching party shall pay any and all reasonable attorney's fees and relevant
costs incurred by the non-breaching party as a result of the breach.
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e. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other, which consent shall not be
unreasonably withheld; provided, however, that USF may assign this Agreement to
any current or after-acquired affiliate without the consent of Customer if such
assignment has no operational affect with respect to the distribution centers
servicing this Agreement. In the event this Agreement is assigned, the assignor
shall in no event be relieved of or be released from its obligations contained
herein. USF may assign any accounts receivable due from Customer hereunder to
any third party.
f. No Agency. Nothing contained in this Agreement shall be
construed or interpreted as creating an agency, partnership, co-partnership or
joint venture relationship between the parties.
g. Non-Discrimination. USF is an equal opportunity employer. It
is the policy of USF to comply with all applicable state and federal laws
prohibiting discrimination in employment based on race, age, color, sex,
national origin, disability, religion or other protected classification.
Customer acknowledges that it is also an equal opportunity employer and that it
will comply with all applicable state and federal laws prohibiting
discrimination in employment based on race, age, color, sex, national origin,
disability, religion or other protected classification.
As evidence of this Agreement:
CUSTOMER
By: /s/ Sheri L. Miksa Date: March 14, 2003
-------------------------------------
Name: Sheri L. Miksa
Title: President and COO
Company: Rubio's Restaurants, Inc.
U.S. FOODSERVICE, INC.
By: /s/ Dean Baldwin Date: March 14, 2003
-------------------------------------
Name: Dean Baldwin
Title: Regional Vice President
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<PAGE>
ATTACHMENT "A"
SUMMARY OF ASSUMPTIONS
Minimum of [***]% of purchases to be directed to USF
Average dollar per delivery: $[***]
Annual purchases: $[***]
Deliveries per unit per week: [***]
Number of units: [***]
Servicing divisions: [***]
Number of proprietary items: [***]
Credit terms: [***]
CIS requirements:__________________________
Should on-going performance review reveal significant differences from our
assumptions, the specific cause of the difference will be identified and the
parties will agree on a plan of action to either correct the cause or modify the
program, as necessary.
List of Customer units
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<PAGE>
ATTACHMENT "B"
[U.S. FOODSERVICE (TM) LOGO]
NEW PRODUCT/SPECIAL ORDER NOTIFICATION AND AGREEMENT
________________________________________________("Customer") requests U.S.
Foodservice, Inc., d/b/a U.S. Foodservice ("USF") to stock on a regular basis
the following product which is not presently in inventory at USF's distribution
center:
Product:________________________________Pack Size:______________________________
Mfg. ID Code:_____________________________Cost:_________________________________
Minimum Shipment:______________________Case Cube:_______________________________
Case Gross Wgt.:________________________Net Wgt.:_______________________________
Date Product Needed:__________________Sequence No.:_____________________________
Initial Order:___________________Estimated Monthly Usage:_______________________
If replacing another product, what item:____________________Code #______________
Is this product restricted to selective units?_____If so, please identify:______
USF Division Involved:____________________Representative:_______________________
Order Guides Affected: Hotels______F.S.M.______Hospital______Education__________
Additional Instructions:________________________________________________________
Customer will be responsible for the disposition of items showing no movement
for [***] days ("Dead Inventory"). If such Dead Inventory is not distributed
within [***] days thereafter, at Customer's option (1) Customer shall purchase
all such Dead Inventory or (2) advise USF how to dispose of such products with
USF being reimbursed for any loss on the cost of said product that is returned
to vendors or disposed of in any manner other than distribution through normal
channels. If said product is distributed through normal channels, the normal
mark-up will apply. Customer will be responsible for re-stocking charges or
freight cost incurred in connection with Dead Inventory.
In the event the Master Distributor Agreement is terminated for any reason,
Customer will remain liable for the products specified above and purchased at
its direction. In such instance, Customer will coordinate the transfer of such
products to the new distributor in the time frames provided for in the
Agreement, or make full payment to USF for such products, within [***] days of
Agreement termination.
______________________________
By:
Its:
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