DeclarationCal. Super. - 6th Dist.November 5, 20151o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -C.) 2.) Alan L. Brodkin State Bar No. 85991 Law Offices ALAN L. BRODKIN & ASSOCIATES A Professional Corporation 15500 B Rockfield Blvd. Irvine, CA 92618 (949) 457-8686 Fax (949) 457-8688 Attorney for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ, CENTRAL JUDICIAL DISTRICT US FOODS, CASE NO. 15CV00265 DECLARATION RE: LOST DOCUMENTS Plaintiff, vs. UNLIMITED CIVIL JOE’S PIZZA & SUBS, ET AL., DEPT: 5 Defendants. vvvvvvvvvvvvvv I, ALAN L. BRODKTN, declare as follows: 1. I am the attorney for Plaintiff herein; 2. The original CONTRACT, cannot be located after a thorough search of this file_and other files in this office, as well as plaintiff's office. Therefore, this declarant respectfully requests leave to file a copy of said lost documents, attached hereto as Exhibit "A", which this declarant asserts is a true and correct copy of the Declaration Re: Lost Document, Page 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (J x.) original documents herein. I declare under penalty of perjury that the above and foregoing is true and correct. ~~ ~~ Executed on January 25, 2016, at Irvin , _lifo ALAN L. DKIN ORDER~ Having read the foregoing and good cause appearing therefore, IT IS HEREBY ORDERED that Plaintiff may file a copy of the original document in lieu of the original. DATED: JUDGE OF THE SUPERIOR COURT /// /// /// Declaration Re: Lost Document, Page 2 KEEPING KITCHENS COOKING." Thlo Custom" Applicallon ("Ill "Appllcallon") lo made to US Foodl, lnc.. dolng butlnou Is US Foodl. and all of I!- «mums. " ' mama, N0 23357777- . Customer AccountApplication “Sonar? forlho purpose of ' ‘ ‘ q, Seller: In ‘ ‘cmdlt ~~ SHIP TO: SHIPPING AN!) 13111.1( l ~ ~ lCJRLl-l‘l‘low .. .~ lathe ‘rr' ‘ BILL TO: .1 Check Here I! Billing Address ls Same As Delivery Address Applicant Legal Name (INC.LLC.LP) Trade Name/00mg Business As £90 A) Billing Address MAN c. I 113/37,; A u! 6/} 9957969,; Delivery Address (Attach Location Sheel If More Than One) 09/9/74 C/afi ~~ Stale/Province Zip . . 1‘ ,/ Clly Slale/Provmce Zip Couhfiv ' -._’) ' ' , . J01 Wimwa AM? (I; 9/) $14" 2715. County Counlry Accounts Payable Contact Tulle \Phone Number J: x .m ~ -mall Address \jll‘n 573! 1/973 0&0 (,0 W1 ~ ~ R x . umber EXHIBIT fl...’ , TELL US ABOUT YOUR OWNERSHIP g C-Corporation CI S-Corp Ct Limited Liability Company (LLC) 0 Limited Partnership (LP) Cl Proprietorship Cl Non-Profit CI Government 0 Other Government Funded? 0 Yes ‘10 _°/. ol Revenue Gov't Funded Medicaid/Medicare Funded? a Yes w ____% of Revenue Med Funded Building/Facility: Ci Owned fleased Date Business Opened or Ownershl c an ed: State of Formation: Federal ID Number: OWNER/ OFFICER/ AUTHORIZED CORPORATE AGENT INFORMATION fflJ'L-E WW4 Name ‘ Name Name Social Security Number Social Security Number Social Security Number (Ow N 9‘) 22 Title Title Title Home ress Home Address Home Address City. a e. tp City, State. Zip City. State, Zip (#053302 _ ’ Driver's Licénse Number Driver's License Number Dnver’s License Number~ ~ ~ ~ ~~ ~~ e-Pho Nurn rv A -'~ # - , - Home'Phone Number ‘ “‘Home Phone Number“ ‘ ' "‘ ‘ "" ” ’ ' (2 an 906-; £069 WI Phone Number ' Cell Phone Number Cell Phone Number ~ ~ WHO ELSE DO YOU DO BUSINESS WITH? us 902:5 23%;???~ VerWame (Present Food Supplier) Account Number City/State A Phone Number LE0,” Mao?) Vendor Name Account Number City/State Phone Number 1 /' Cants/ @421 oz Vendor Name Account Number City7S'tate Phone Number 5g of f) 14?“ /0 i Be'nT CityIState Contact Name Phone Number 39 <00”)? 952/05/ Checking Account # Loan Account it DO YOU HAVE ANY OTHER EXISTING BUSINESSES? D Yes D No DO YOU HAVE EXISTING OR PFIIOFI US FOODS ACCOUNTS? Wes CI No (Please attach list if more than one business) (Please attach list it more than one buelness) .fiéfi V/ZZA é, bMQ‘? .3 Lac/Win15 Easiness Name Business Name SM”? Efluz, a4: Address City/State City/State Account Number 1) RESALE on EXEMPT TAX CERTIFICATE: 2} US FOODS REQUESTS YOUR MOST RECENT TWO YEARS FINANCIAL STATEMENTS APPLICANT’S CERTIFICATIONS Applicant hereby certifies that the inlonnation lumished under this Application and Agreement and any other financial statements Iurnlshed in connection herewith at inducing Sellers to extend credit and/or provide goods/semaes to Applicant. and understands that Sellers intend to rely upon such inlormation. Applicant rep and has capital sulflcient to carry on its business. Applicant understands and agrees to be bound by the terms contained In this Application and Agreement Incorporated herein by relerance, and to promptly advise Sellers. in writing via certified mail. at any material change in the iniormation provided herein, Sellers will lflIZlI‘I this Application and Agreement whether or not it is approved. [Applicant's Principals hereby authorize Sellers in check lrom time to time Applicant's Business and Principals' personal credit history and trade, bank and personal relerences {whether or not listed in this Application) lor customary credit inlormation. a copy (xerox. carbon etc.) at this an ', . ,- ol the undersigned. shall be deemed to be the equivalent at the original and can be used as such to , d conllrrn the ' ' ‘ on this A “ ' and , ' ‘ , out not limited to. sending a copy nereol la the trade. bank and personal relentless. and to release’ ' to other ‘ . ,_ .. ‘ , ' 5 man With Sellers. the Applicant hereby authorizes their DariIIIS)/Iender(s) to release‘ ‘ about the ‘ r ‘ ' , dale . , opened. average checking balance. account history, open loanis) halanceis), Iine(si at credit, availability under liners; or credit. payment history. covenants and their status. and arty security interests. along with any other lnlormatipn that may assist Sellers in eslabllshing an open account and credit line. Sellers agree that inlormatiun obtained will be kept in the sttlctest at soniidenceJHE UNDEHSIGNED is EXECUTING THIS APPLICATION m HIS/HER CAPACITY As AN OFFICER 0F APPLICANT, AND INDIVIDUALLY FOR THE LIMITED PURPOSE OF AUTHO RIZING SELLERS TO OBTAIN FROM TIME TO TIME A NDN-EUSINESS CONSUMER CREDIT REPORT ON THE INDIVIDUAL UNDERSIGNEO. IN ORDER TO FURTHER EVALUATE THE CREDITWORTHINESS OF SUCH INDIVIDUAL AS PRINCIPAL PROPRIETOR AND/DR GUARANTOR IN CONNECTION WITH THE EXTENSION OF BUSINESS CREDIT THE UNDERSIGNED. AS AN INDIVIDUAL. HEREBY KNOWINGLY CONSENTS TO THE USE OF SUCH CREDIT REPORT CDNSISTENT WITH THE FEDERAL FAIR CREDIT REPORTING ACT AS CONTAINED IN 15 U S CJDIGBI. et. seq. APPLICANT UNOERSTANDS THAT THE TERMS AND CONDITIONS CONTAINED HEREINAFI ER ARE MATERIAL HERETO AND SPECIFICALLY MADE A PART HEREOE] . is true. correct. complete. and that this inlormarton is being furnished to Seller! for the purpose resents and warrants that it is solvent. generally able to pay its debts as such debts become due. and all invoices and other documents lurrlished by Sellers lrorrl time to time. all at which are Including. but not limited to. change at ownership. address or telephone. Applicant understands that oxntm .212; r r f In consideration of the extension of credit by Seller to Applicant, orthe delivery of goods and/or services, Applicant agrees to the following terms and conditions: 1. Upon approval of this Application and Agreement. Seller in its sole discretion. and notwithstanding any request of Applicant. will assign Applicant a maximum credit line (if applicable) and shall have the right to increase. decrease or terminate Applicant's credit privileges under this Application and Agreement at any time without prior notice to Applicant, except as otherwise provided by law. 2. All purchases by Applicant of goods and/or services from Seller will be made in accordance with the terms and conditions of this Application and Agreement, and any invoice, distributor agreement, and/or other documents evidencing Applicant‘s obligations to Seller (each, a “distributor agreement”), all of which are incorporated herein by this reference. To the extent Applicant is part of or subsequently becomes part of a national or regional pricing program governed by a distributor agreement, Applicant acknowledges and agrees that it shall be bound by the terms and conditions of any such distributor agreement, J notwithstanding that Applicant is not and will not be a signatory to such agreement. Applicant further agrees to waive, release, forever discharge and hold harmless the Seller, its officers, directors, employees and agents, from any and all losses, damages, costs, expenses, rights, claims, demands, judgments, obligations, actions and causes of action, which Applicantmay have arising our of or in connection with-any dispute or disagreement regarding whether or not Applicant is bound by the terms of such distributor agreement. Applicant agrees and understands that this is a legally binding agreement. and that Seller, in its sole discretion, may change £"‘t’h€’t’érms and conditions of this Application and Agreement. Any such Changes shall apply to all sales after such change is made. If Applicant is or subsequently becomes party to or bound by the terms of a distributor agreement, Applicant acknowledges and agrees that to the exrent that there is any conflict between the terms and conditions set forth in this Application and Agreement and the distributor agreement, the terms and conditions of the distributor agreement shall control. 3. Title to all goods purchased from Seller shall pass upon delivery to the receiving dock of Applicant and acceptance by authorized signature, subject to rejection of certain items by notation on the invoice. Applicant shall have twenty-four (24) hours from the time of delivery to notify Seller (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. Applicant shall make arrangements through Seller's sales department for any goods to be returned to Seller in accordance with Seller’s return policy as in effect from time to time. Seller may terminate its obligations to provide product to Applicant pursuant to the terms of this Application and Agreement at any time. unless otherwise provided in a distributor agreement. Seller shall not be in default in the performance of its obligations under this Application and Agreement if such performance is prevented or delayed because of any cause beyond the reasonable control and without the fault or negligence of Seller. 4. Payment of the purchase price for goods and/or services Applicant ("Customer") Legal Name (lnc., LLC, etc.) Signature: fl acquired from Seller shall be made pursuant to the terms set forth on each invoice, and Applicant agrees to pay all charges according to the payment terms established in said invoice. The entire outstanding balance due to Seller on all invoices shall Income due in full immediately upon default in the payment of any invoice. Applicant agrees to pay interest in the amount of 1.5“" per month, or the maximum rate that Applicant may lawfully contract to pay, whichever is less, and in all events calculated in accordance with applicable law, on any payment considered past due until collected. Applicant agrees to pay all costs of collection incurred by Seller, including reasonable attorneys‘ fees and expenses, should a default in payment or any other obligation of Applicant occur. 5. This Application and all transactions between Applicant and Seller shall be governed by and interpreted in accordance with the laws and decisions of the State of Delaware. 6. Applicant hereby agrees to immediately notify Seller via certified mail of any sale of a significant portion of the assets or business of Applicant, or a sale of a substantial interest in the capital stock or other ownership interest of Applicant. 7. IF THIS APPLICATION AND AGREEMENT IS NOT APPROVED IN FULL OR IF ANY OTHER ADVERSE ACTION ls TAKEN WITH RESPECT TO APPLICANT'S CREDIT WITH SELLER, APPLICANT HAS THE RIGHT TO REQUEST WITHIN 60 DAYS OF SELLER'S NOTlElCATION OF SUCH ADVERSE ACTION,. A STATEMENT OF SPECIFIC REASONS FOR SUCH ACTION, WHICH STATEMENT WILL BE PROVIDED WITHIN 30 DAYS OF SAID REQUEST. The federal Equal Credit Opportunity Act prohibits creditors from discrimination against credit applicants on the basis of race, color, religion, national origin, sex. marital status or age (provided that the applicant has the capacity to enter into a binding contract); because all or part of the applicant's income derives from any public assistance programs; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning the creditor is the Federal Trade Commission, Washington, DC. 8. Applicant irrevocably agrees and hereby consents and submits to the non-exclusive jurisdiction of any state or federal court located in the state where Seller's operating company which provided this Application and Agreement is located, without regard to the conflicts of law provisions thereof (the “Applicable State”), with regard to any actions or proceedings arising from, relating to or in connection with Applicant's obligations to Seller or this Application and Agreement. Applicant waives any right it may have to change the venue of any litigation brought against it by Seller. 9. Applicant agrees that all Information as to source, quantity. and price of goods and services provided by Seller 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 Applicant. 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 Applicant ls required to respond. Page 2 of ~ I; . V TERMS AND CONDITIONS 10. WAIVER OF JURY TRIAL. APPLICANT HEREB WAIVES TRIAL BY JURY IN ANY ACTION 0 PROCEEDING TO WHICH THE SELLER AND TI-i APPLICANT MAY BE PARTIES, ARISING OUT OF OR 1 ANY WAY PERTAINING TO (A) THIS APPLICATlO AND AGREEMENT; AND (3) ANY OTHE GOVERNING DOCUMENTS INCLUDING lNVOICi AND DISTRIBUTOR AGREEMENTS. IT IS AGREE AND UNDERSTOOD THAT THIS WAIVE CONSTITUTES A WAIVER OF TRIAL BY JURY OF AI CLAIMS AGAINST ALL PARTIES T0 SUCH ACTIOI‘ OR PROCEEDINGS, INCLUDING CLAIMS AGAINS PARTIES WHO ARE NOT PARTIES TO TH APPLICATION AND AGREEMENT. THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY MAE BY THE APPLICANT AND THE APPLICANT HEREB REPRESENTS AND WARRANTS THAT N REPRESENTATIONS OF FACT OR OPINION HAY BEEN MADE BY ANY INDIVIDUAL TO INDUCE TH WAIVER OF TRIAL BY JURY OR TO IN ANY WA MODIFY OR NULLIFY ITS EFFECT. 11. Applicant hereby (a) agrees that Seller may, at Seller sole option. require Applicant to arbitrate any controversy: claim arising out of or relating to this Application ar Agreement. any credit extended by Seller to Applicant or at other issue with the American Arbitration Association or at other recognized arbitration group In accordance with i Commercial Arbitration rules. and any judgment or awat rendered‘in‘c‘onn’ection‘therewith‘sfi‘all b5 ‘ehte‘r§d‘ifi ar court having jurisdiction thereof: and (b) consents to tI' Arbitration in the Applicable State. and to the application I Delaware law with the exception of Delaware conflicts I laws rules; and (c) agrees to pay all cost .andfixpenses . connection with the arbitration. including. but not limited Ii arbitrators' fees, administration fees and attorneys' fees. 12. To secure the full and timely payment by Applicant I Seller of all now existing and hereafter arising amounts dt Seller, Applicant hereby grants to Seller a priority (purchn: money) security interest and lien in and to all goods, inventor equipment and fixtures sold to Applicant by Seller from tin to time, and a seperare security interest in all other assets I Applicant, including, without limitation. all of Applicant now existing or owned hereafter arising or aquired (a accounts; (b) goods for sale, lease or other disposition Wl’llL have given rise to Accounts and have been returned to t repossessed or stopped in transit by Applicant; and (c) good including, without limitation, inventory, equipment, fixture trade fixtures and vehicles. Applicant hereby authorizes Sell: to file and perfect any and all statutory lien rights and at rights under indemnity or performance bonds at any tin regardless of whether payment is due to Seller under Seller payment terms with Applicant. Applicant hereby authoriz: Seller to prepare and file any Uniform Commercial Coc ("UCC") financing statements. ammendments to UC financing statements and any other filings or recordings in a jurisdictions where Seller determines appropriate withot Applicant's signature, and authorizes Seller to describe ti collateral in such financing statements in any manner as Sellt determines appropriate. 13. This Agreement may be delivered by electroni transmission or facsimile which shall be deemed to be a original. ‘ Title: 0w“; LETK Print Name: [ZEA Date: 3 I/AI/l//3 Signature: Title: Print Name: Date: Sales Associate: Terms Requested: Terms Approved: For Office Use Only: FT” -r----\ ..___I-_.____.l EXHIBIT £25.... The undersigned, hereinafter referred to individually or collectively as “Guarantor”, having a financial interest in Applicant, and benefiting from the transactions contemplated by this Agreement, hereby personally and unconditionally guaranties the payment by Applicant to Sellers of all amounts due and owing now, and from time to time hereafter (“Liabilities“), from Applicant to Sellers. Guarantor expressly waives notice from Sellers of its acceptance and reliance on this Personal Guaranty (this “Guaranty‘L notice of sales made to Applicant, and notice of default by Applicant. The obligations of Guarantor hereunder shall not be affected. excused, modified or impaired upon the happening. from time to time. of any event. No set-off. counter-claim or reduction of any obligation, or any defense of any kind or nature which Guarantor has or may have against Applicant or Sellers shall be available hereunder to Guarantor against Sellers. In the event of a default by Applicant on its obligations to Sellers, Sellers may proceed directly to enforce their rights hereunder and shall have the right to proceed first against Guarantor, without proceeding with or exhausting any other remedies it may have. Guarantor (i) hereby acknowledges that he or she may have rights of indemnification. contribution, reimbursement or exoneration from Applicant if Guarantor performs his or her obligations under this Guaranty (collectively the “Rights'); (ii) understands the benefits of having such Rights. Guarantor authorizes Sellers to obtain from time to time a consumer credit report and asset/lien search, in order to further evaluate the credit worthiness of Guarantor in connection with extension of credit under this Guaranty. Guarantor x f f "fi/Afié ykymm irrevocably agrees to provide personal financial statements, historical tax return or Other similar financial documents as requested from Sellers from time to time, for continuing and ongoing consideration for extension of credit under this Guaranty. Guarantor agrees to pay all costs, expenses and fees, including reasonable attorneys‘ fees and expenses, which may be incurred by Sellers in enforcing this Guaranty or protecting their rights following any default on the part of Guarantor. Guarantor agrees that an interest charge of one and one-half (lid/1%) percent per month, or the maximum rate that Guarantor may lawfully contract to pay. whichever is less, and in all events calculated in accordance with applicable law, shall be assessed on any amount due and owing to Sellers by Guarantor under this Guaranty until collected. This Guaranty shall be binding upon Guarantor, Guarantor's heirs, successors, assigns, and representatives and survivors. and shall inure to the benefit of Sellers, and each of them, jointly and severally, their successors. assigns, affiliates and shareholders and may be assigned by Sellers without notice to Guarantor. This Guaranty shall be govemed by and interpreted with the laws and decisions of the State of Delaware. Guarantor irrevocably agrees, and hereby consents and submits to the non-exclusive jurisdiction of any state or federal court located in the state where Sellert’ operating company which provided this Guaranty is located, without regard to the conflicts of law provisions thereof (the “Applicable State”), with regard to any actions or proceedings arising from, relating to or in connection with the Liabilities, this Guaranty or any collateral or security~ ~ therefor. Guarantor hereby waives any right Guarantor i: have to transfer or change the venue of any litigation brou against it by Sellers and further waives any right to trial jury. If more than one, the obligations of the undersigned s'. be joint and several. This Guaranty may only be terminated in the prior written notice of Guarantor delivered to Sellers certified mail or upon the termination of the relationship Applicant with Sellers provided that such notice of terminal shall not release or affect any of Guarantor's liabilities exist as of the date Sellers receive such notice of terminati Guarantor hereby (a) agrees that Sellers may, at Sellers‘ 5 option, require Guarantor to arbitrate any controversy or cl: arising out of or relating to this Guaranty or any other issue v the American Arbitration Association in accordance with Commercial Arbitration rules and any judgment or aw rendered in connection therewith shall be entered in any cc having jurisdiction thereof, (b) consents to the arbitration in Applicable State, and to the application of- Delaware law VI the exception of Delaware conflicts of laws rules, and (c) agr to pay all costs and expenses in connection with the arbitrati including, but not limited to, arbitrators' fees, administtat fees and attorneys‘ fees. If there are more than one of undersigned, each shall remain liable on this Guaranty until e. has given separate written noricc delivered via certified mail Sellers. Guarantor shall immediately notify Sellers, in writing certified mail, in the event of any sale of a significant portior Guntantor‘s interest in the capital stock or other owners interest of Applicant. ~~~ ~ (Signalmo) / (Print Name) (Social Security Number) (Home Address) x (Signature) (Print Name) (Social Security Number) (Home Address) one) x (Signature) (Print Name) (Soaal Security Number) (Home Address) (Date) x (signalute) (Print Name) (Social Security Number) (Home Address) (Dale) ~ ~ (USE OF A CORPORATE TITLE SHALL IN NO WAY LIMIT THE PERSONAL LIABILITY OF THE SIGNATORY) ACH AUTO-DEDUCT/DIRECT DEBIT ENROLLMENT QUESTIONS? Call 800-253-0277 (Option 6) EFFECTIVE DATE: CUSTOMER ll: DIVISION: BUS. NAME: CONTACT NAME: BILLING STREET ADDRESS: 'E-MAIL: CITY: STATE: ZIP CODE: BEST PHONE NUMBER TO REACH YOU AT: FAX NUMBER: 'COnllnrratlan a! each transaction will be sent to you by statement and to (lie Email address you list on this farm. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ENTER BANK ACCOUNT NUMBER ENTER BANK NAME: ENTER 9 DIGIT ROUTING NUMBER Please Attach a Copy of a Blank Voided Check Our company agrees to pay US Foods, Inc. by electronic funds translor and harsh payment terms provided by US Foods. it is acknowledged that US Foods will have lerms as indicated on your invoice. In no event will US Foods be authorized to wi aoplied to the invoice prior to initiating the debit. y authorizes us Foods or its designated representative to periodically debit the undersigned bank aocouniis) in line w. no authority to draw upon Ihe bank accounts ol the undersigned at anytime prior to the due data based on your payme ihdraw any amounts in excess of lhe net invoice amount. Credits due and identified at the limo of delivery will also i This agreement may be revoked by the undersigned or US Foods upon 30 days written notice to eiiher party. This agreement may be revoked immediately by US Foods upon notification that any charg due has not been paid due to insufficient funds or is paid but reversed by any bank of notice to US Foods of the undersignod‘s bankruptcy. in the event my electronic debit or transler is returned, I agree that a 52500 return item has will be electronically charged to my account. The undersrgned agrees to provide a copy 0! this agreement to its bank or olher depository from which the direct debits are lo be made and shall request such bank to cooperate with US Foods in ll payment of all Charges. To: To the Undersigned: US Foods, Inc. Company Name: Attn: AR - Auto Deduct Attention: __ 10410 S. 50th Place Street: Phoenix, AZ 85044 City, State, Zip: Signature: Date: Print Name and Title: R .Vil pr; EXHIBIT 7 ..... m ~ ZUIEFEB~i PH 2:1;2 ~