Così Foodservice Distribution Agreement

1.1.

We accept your appointment as your primary distributor for the Restaurant Concepts operated at the Units. We will sell and you will purchase all of your agreed upon requirements for the Products at the Units from us during each calendar quarter of the Term.

1.2.

You acknowledge that DMA is solely the marketing and coordination organization for the Distributors, and that the Distributors, and not DMA, will sell and deliver the Products to you. Accordingly, you acknowledge that all of our rights and obligations under this Agreement are rights and obligations of the Distributors, and not DMA, unless specified otherwise.

3.1.

You have the right to add Units within our then current distribution service areas by notice to us. A map is in the Appendix. DMA will furnish you with a description or map of each Distributor’s service area at the commencement of the Term of this Agreement, and thereafter upon your request.

3.2.

You have the right to request us to add Units outside of our then current distribution service areas. Upon your request, DMA will use commercially reasonable efforts to solicit a distributor to service the outside Units from among the Distributors, other DMA distributors not a party to this Agreement, or other distributors in the area.

3.3.

Any of the Units which you do not own or manage (i.e. franchisees) will be required to sign an Acceptance of this Agreement in the form we provide, prior to making purchases under this Agreement. Credit terms offered to those Units will be independently determined by the Distributors serving them, but in no case shorter than net 14 days from receipt of Products.

4.1.

DMA will serve as the central contact for the administration of this Agreement.

4.2.

DMA will appoint an Account Executive as your single contact to manage this program. Sales professionals from each Distributor will be responsible to the DMA Account Executive for the purposes of this program. DMA will also appoint a Program Account Manager to expedite communications within the program.

4.3.

Each Distributor will assign an Account Executive and Customer Service Representatives to each Unit, and it will be their responsibility to maintain contact with the Unit with regard to service levels.

4.4.

DMA will coordinate the implementation and maintenance of this program between the Distributors and you, including development of a transition plan, program planning and meetings, development of order guides, development of procedures manuals for the Units, implementation of manufacturer contracts for contracted Products, and review of service levels, inventory management, and problem resolution between our distribution centers and you.

4.5.

DMA will serve as the “clearing house” for program communications such as Product requirements, Unit changes, new Product rollouts, inventory issues, Product code changes and any other issues requiring system wide communications.

4.6.

DMA will schedule business review meetings at least once per year to review performance against your goals and requirements, and the status of the Key Performance Indicators described in the Schedule.

5.1.

You will be furnished at no additional charge with our standard usage reports generated by e-Advantage ^® , our web based order entry and reporting system. DMA will make

5.4.1.

Loss or corruption of data;

5.4.2.

Errors in data mapping or data input;

5.4.3.

Errors, omissions, or defects in the Information not described in a notice from you;

5.4.4.

Any action or failure to take action by you in reliance on the Information.

5.4.5.

Nothing in this section (5.4) modifies the rights of either party as outlined in Section 15 (Price Audit) below.

6.1.

Order guides will be available, as you elect and direct, to you and to each Unit on e-Advantage ^® , to facilitate order placement. Order guides will be categorized utilizing your chart of accounts.

6.2.

In order to permit us to capture efficiencies in the supply chain for you, you agree that each of your Units will place orders electronically. A standardized order entry format approved by you will be implemented across all our distribution centers.

6.3.

Orders placed via any non-electronic method (e.g. phone, fax, mail, etc.) will incur a [ ** ] added charge on the Unit’s invoice for that order.

6.4.

Skip day deliveries will be implemented as necessary with advance notification.

6.5.

[ ** ].

7.1.

We will make deliveries to your Units at the frequency specified in the Schedule, unless we specify otherwise with your approval at time of order, excluding holidays with prior approval.

7.2.

The delivery schedules prepared by each Distributor will take your needs and preferences into account. The delivery schedules may be modified from time to time by

7.3.1.

We recognize that some Units may have delivery restrictions imposed by public authority and/or an outside landlord. We will work to accommodate such circumstances when notified by you and to the extent practicable. Should such accommodation require additional expense on our part, such expense shall be discussed with you and may be added to each invoice as an additional charge for that Unit or handled in some other manner as mutually agreed.

7.3.2.

You will provide lock, key and alarm changes as well as key(s) via overnight delivery or other means acceptable to us, at your expense, to us at least forty-eight (48) hours prior to next dispatch. The procedures manual will set forth further policies on key drops, including (as appropriate) key drop bonding, alarm violations, loss of keys, etc.

8.

Procedures Manuals.

9.

Pricing.

10.1.

You have the right to negotiate your Cost of a Product directly with the Product’s Manufacturer. Manufacturer agreements include agreements establishing the guaranteed Cost the Manufacturer will charge us for Products to be resold to you, and agreements granting Allowances to you. Allowances are off-invoice allowances, bill-backs, and other special arrangements granted by a Manufacturer to you.

10.2.

The contract Cost you negotiate will be used to calculate the Price of the Product, so long as we have been notified appropriately, regardless of our Cost.

10.3.

We will provide for a Manufacturer Allowance for a Product by deducting the Allowance value from the Price of the Product.

10.4.

You must provide us with copies of the agreements you have with Manufacturers for the purchase of Products, and also complete our forms for contracted Cost. The agreements and forms must be transmitted to us by email or electronically. If we do not receive the copies and completed forms, we will default to calculating the Price of the contracted Products using our actual Cost as described in the Pricing section. You must submit revisions in the contract Cost to us by the 15 ^th of the month to be valid for the next month. If we fail to receive the revisions by that date, no change in the contract Cost will be made for the next month. If the contract Cost previously provided has expired, or if no prior contract Cost has been provided, we will default to calculating the Price of the Products (no longer considered “contracted Products”) using our actual Cost as described in the Pricing section. We will notify you of a contract Manufacturers denial of part, or all, of any “bill back” expected as a result of the contracts you have provided us.

10.5.

We are not responsible for inaccuracies, errors, or omissions made by your contracting Manufacturer in the billing of the pricing and Allowances, and your sole remedy for any inaccuracies, errors, or omissions shall be against the Manufacturer. If we become aware of such circumstances, we will notify you of same.

10.6.

If your contracting Manufacturer provides both the Product which you specified, and also an equivalent Product which is branded to a Distributor, that Distributor has the right to provide its equivalent branded Product to you so long as: (1) you have approved the equivalent branded Product for purchase; (2) the Manufacturer agrees that the contracted pricing can be applied to the equivalent branded Product; and (3) the equivalent branded Product is stocked by a Distributor servicing any Unit.

12.1.

We will maintain an inventory of Proprietary Product items.

12.2.

Proprietary Products are Products that would not otherwise be brought into the inventory of a distribution center except for your requirements. Proprietary Products include Products with your label or logo, special order Products, test Products, menu special Products, seasonal Products, Products branded to a Distributor (if you designate that the Product must be procured from a specific Manufacturer), and Products requested by Cosi. Proprietary Products are determined by distribution center and agreed to by Cosi, and what is a Proprietary Product in one distribution center may or may not be a Proprietary Product in another distribution center. Proprietary Products include Products that have been purchased, transferred, or consigned for your account that we have in inventory, in transit, or for which non-cancelable orders have been placed.

12.3.

You must notify DMA, in writing, to stock or discontinue Proprietary Products using DMA’s standard form or a mutually acceptable alternative.

12.4.

If you specify a particular Manufacturer for your Proprietary Products which is not currently authorized by a Distributor, then the Manufacturer will be required to complete the Distributor’s standard Manufacturer documentation before purchases can be made for resale to you. Manufacturer documentation includes agreements regarding indemnification, insurance coverage, and applicable pure food guarantees. If the Manufacturer does not provide the documentation required by a Distributor, DMA will notify you, and then you indemnify the Distributor and its employees, officers and directors from all loss, damage, and expense (including reasonable attorney’s fees) for personal injury or property damage arising from or related to the delivery, sale, use or consumption of the Proprietary Products, except to the extent caused by the Distributor’s negligence, or the negligence of its employees or agents.

12.5.

Proprietary Products will be stocked in quantities not to exceed 31 days’ supply in each of our distribution centers.

12.6.

You will purchase at least 7 units of sale of each Proprietary Product per week from each of our distribution centers, and we will notify you if you fail to do so. If you fail to increase purchases of the Proprietary Product to that minimum in the 30 days after our notice, then you will do one of the following: (1) discontinue the Proprietary Product; (2) select an alternative Product regularly stocked by the distribution center; (3) order the product on a “special order” basis; or (4) procure the Proprietary Product from another source, such as direct shipment from the Manufacturer.

12.7.

No Product substitutions for Proprietary Products will be made w