Exhibit
10.75


CONFIDENTIAL


TCBY
SYSTEMS, LLC


Distribution
Service Agreement


with
Banta Foods, Inc.


November
22, 2006



 1
 









DISTRIBUTION
AGREEMENT


THIS
AGREEMENT is  made
and entered into as of the 22nd day of November, 2006, by and between TCBY SYSTEMS, LLC, a Delaware limited
liability company (“COMPANY”) and BANTA
FOODS, INC., a Missouri Corporation (“DISTRIBUTOR”). DISTRIBUTOR
will commence distribution services under this Agreement on January 8, 2007
(the “Effective Date”) unless otherwise mutually agreed upon by the parties.


RECITALS


A.            The COMPANY is engaged
in the worldwide business of franchising or licensing retail TCBY Stores and
other related concepts (“Franchised Stores”). 
COMPANY also has several COMPANY-owned stores that it supports directly
(“Company Stores”).  The Franchised
Stores and or individual franchisees (the “Franchisees”) function as
independent companies and are individually and solely responsible for the
activities at each location, including purchasing needed products and supplies,
which includes responsibility for purchasing from DISTRIBUTOR.  COMPANY is responsible for activities at its
Company Stores.  Company Stores and
Franchised Stores are jointly referred to herein as “Stores”, the Franchisees
and individuals responsible for Company Stores are jointly referred to as (“Operators”)
and the combined efforts of the COMPANY and its Franchisees is referred to as
the “System”.  COMPANY takes steps to
assist Stores to meet its purchasing needs and has the right to designate
distributors and suppliers for the System.


B.            The DISTRIBUTOR is
engaged in the business of purchasing, selling, distributing and delivering
food service products (including the Products, as defined below).  In connection therewith, the DISTRIBUTOR
manages, controls, prepares and furnishes reports to its customers concerning
the inventories of products and supplies the DISTRIBUTOR purchases, manages and
controls for sale, distribution and delivery to its customers.


C.            COMPANY wishes to appoint DISTRIBUTOR as a
distributor of certain approved proprietary food and related products to the
Stores located within the Territory (as defined below), and DISTRIBUTOR wishes
to accept such appointment, all on the terms and conditions hereinafter set
forth.



 2
 









AGREEMENT


NOW, THEREFORE, in
consideration of the mutual covenants herein set forth and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


1.             Appointment
- Subject to all terms and conditions of this Agreement, COMPANY hereby
appoints DISTRIBUTOR as a distributor of the products within the product
categories listed in Schedule 1 (the
“Products”), to the Stores in the territory serviced by DISTRIBUTOR’s
distribution center located in Springfield, Missouri (the “Territory”) as
reflected in the map depicted in Schedule 2
and DISTRIBUTOR hereby accepts such appointment.


2.             Distribution of
Products


2.01        Products - DISTRIBUTOR
will maintain in its inventory of Products the following: (i) Products
designated by COMPANY that contain the proprietary trademarks, service marks,
logos or labels of COMPANY or any of its affiliates or that are made pursuant
to specifications provided by COMPANY, its affiliates, or licensors for limited
distribution to Operators (defined below) or other entities licensed by
COMPANY, its affiliates or licensors (“TCBY Branded Products”), and (ii) other
supplies or other national or regional branded Products designated or
contracted for by COMPANY to be maintained in inventory by DISTRIBUTOR for
distribution to COMPANY, its affiliates and the Operators.  (Collectively, Products described in clauses
(i) and (ii) are referred to as “Proprietary Products”).  DISTRIBUTOR will also maintain in its
inventory non-proprietary Products which DISTRIBUTOR stocks in its inventory
for sale to COMPANY, its affiliates and its Operators. DISTRIBUTOR shall not be
required to maintain more than two hundred (200) Proprietary Products in
inventory at any time.  All Coca Cola
Products carried for COMPANY shall be excluded from the calculation of the
number of Proprietary Products.


2.02        Approved Operators
- DISTRIBUTOR shall sell and deliver to Franchisees and Operators of Stores
approved by COMPANY and located within the Territory such quantities of the
Products (subject to minimum Product order requirements) as the Operators may
order from time to time during the term of this Agreement. DISTRIBUTOR shall
cease selling TCBY Branded Products to any Operator not later than three (3)
days following receipt of written notice from COMPANY advising DISTRIBUTOR that
such Operator is no longer approved by COMPANY and shall, within such
timeframe, further cease selling, under the terms of any supplier agreement
negotiated by COMPANY, all Proprietary Products to such Operators referenced in
such notice. In addition, DISTRIBUTOR shall have the right to cease the sale
and distribution of Products to



 3
 









any Operator (a) who is in default of its obligations
to DISTRIBUTOR, provided that DISTRIBUTOR has given COMPANY at least three (3)
business days notice of such default before ceasing deliveries to such
Operator, or (b) who has filed a voluntary petition in bankruptcy or under any
other similar insolvency or debtor relief law or who has had such a petition
filed against it, or who has made a general assignment for the benefit of its
creditors. COMPANY shall also have the right to reinstate delivery to any
Operator that COMPANY previously stopped selling by providing written notice to
DISTRIBUTOR and DISTRIBUTOR shall provide such delivery as soon as mutually
agreed between the parties.


A list of the present Operators with Stores located
within the Territory and approved by COMPANY and their respective Store
locations is attached hereto as Schedule 3.  During the term of this Agreement, COMPANY
shall maintain and provide to DISTRIBUTOR a current list of all Operators with
Stores within the Territory who have been approved by COMPANY for distribution
of the Products under this Agreement. DISTRIBUTOR shall have the right to rely
upon such list, as amended or modified by COMPANY in writing from time to time,
in performing its obligations under this Agreement. COMPANY shall notify
DISTRIBUTOR of new Stores within the Territory not less than fourteen (14) days
prior to the desired date of first shipment of Products to any such new Stores.
In addition, provided and to the extent that COMPANY and DISTRIBUTOR mutually
agree in writing, DISTRIBUTOR shall provide distribution services to Stores
located outside the Territory, as designated by COMPANY.


COMPANY represents and warrants that the terms of this
Agreement, as and if amended in the manner permitted under this Agreement, are
binding upon and shall govern DISTRIBUTOR and COMPANY’s obligations with
respect to distribution services performed by DISTRIBUTOR hereunder and that
each Franchisee that is an owner or operator of a Franchised Store within the
System shall be bound by the terms of this Agreement, as it may hereafter be
amended, upon such Operator’s purchase of Proprietary Products from DISTRIBUTOR.


2.03        Product
Orders - All Product orders shall be submitted by the Operators
to DISTRIBUTOR and shall specify the location of the Operator’s Stores, the
type of Product, and the quantity desired. 
Operators may place orders electronically (“Electronic Orders”) or by
telephoning or faxing DISTRIBUTOR’s customer service center in accordance with
the guidelines detailed below. Orders placed by fax or telephone will be
subject to a higher Markup as detailed in Section 4.12.  All shipment expenses from DISTRIBUTOR’s
distribution center to the Operator’s location shall be at DISTRIBUTOR’s
expense unless otherwise noted elsewhere in this Agreement. Product order
guides will be provided by DISTRIBUTOR to the Operators monthly via DISTRIBUTOR’s
website and with a hard copy delivered to each Store, with availability of such
order guides to be 



 4
 









made prior to the beginning of the month, but only
after review and approval of the order guide by COMPANY. The order guides will
be organized by Product categories and will include, among other things, the
Product Sell Price (as defined herein), Product units and new Products.
DISTRIBUTOR will assign one product code number to each stock-keeping unit (“SKU”)
of each Product, which will be common throughout its entire distribution system
and will be used on all documents such as order guides, invoices, monthly
reports, etc. SKU’s, and, accordingly, the assigned product code number, must
differ for equivalent Products supplied by different suppliers. DISTRIBUTOR
will utilize the existing TCBY product item numbers.  Only Products approved for sale to its
Operators by the COMPANY will be listed on this order guide. Electronic Orders
will be placed via internet using DISTRIBUTOR’s web-site.  All Electronic Orders, including order
add-ons and modifications, are subject to the standard order cut-off time of
11:00 a.m. local time, two (2) days prior to their scheduled delivery day.  Orders not placed electronically may be
subject to earlier cut-off times than those established above as mutually
agreed upon between COMPANY and DISTRIBUTOR. 
Operators will be notified prior to the time of final order cut-off if a
product is expected to be out of stock so that an alternative may be ordered,
subject to the provisions of Section 3.02. 
Notwithstanding the foregoing, Stores that have a scheduled delivery day
of Monday, must have their orders placed by 11:00 a.m. local time on the
preceding Friday and Stores that have a scheduled delivery day of Tuesday must
have their orders placed by 11:00 a.m. on the preceding Sunday.


DISTRIBUTOR may schedule deliveries at any time and
day of the week. However, where reasonably possible, DISTRIBUTOR will schedule
ordering days and delivery days that are mutually agreed upon by and between
DISTRIBUTOR and each Operator and will provide notice to the affected Operator
at least fourteen (14) days before routing changes. On an exception basis,
DISTRIBUTOR will consider shortening the permissible time frames for scheduled
deliveries for those Operators that, given unique and compelling business
needs, require the same.  Operator will
be notified of any Product shortages at the time of order placement in the case
of an Electronic Order and, if not an Electronic Order, no later than the
morning of their order cut-off day.


2.04        Deliveries.    Delivery vehicles used by DISTRIBUTOR will
only display the marks of DISTRIBUTOR, except for locations that cannot
accommodate delivery by DISTRIBUTOR’S existing tractor trailers or in the
instances where recovery deliveries are made by outside services or DISTRIBUTOR
has the need for temporary short term rental equipment.


DISTRIBUTOR agrees that, excluding key drops (deliveries scheduled to
be made during the period running from one (1) hour or more after the retail
closing time of the Store to deliveries 



 5
 









one (1) hour or more before the retail opening time of the Store), an
overall average of 90% of all regularly scheduled deliveries will be made
within a two (2) hour window, meaning no earlier than one (1) hour before and
no later than one (1) hour after the scheduled delivery time. If a delivery is
anticipated to fall outside of this two (2) hour window, DISTRIBUTOR will
immediately notify the Operator. DISTRIBUTOR will provide an inside delivery to
each Operator in accordance with Company’s temperature store requirements as
detailed in Section 4.09, placing refrigerated and frozen Products into their
appropriate storage areas, but will not be responsible for stocking shelves or
rotating inventories.


All invoices for deliveries made during Store’s business hours will be
signed for by the Store’s store manager or other representative prior to
DISTRIBUTOR’s driver leaving the Store (provided that the driver is not
unreasonably delayed).  Copies of
invoices for deliveries made after the Store’s regular business hours will be
left at the Store.


The COMPANY agrees to use its commercially reasonable
efforts to cause Operators to provide keys and security codes for night
deliveries where necessary.  In the event
Operator refuses to provide keys and security codes, Operator will promptly
meet the delivery driver at the scheduled appointment time or at such other
time as Operator has been notified in the event of a late delivery.  If the Operator fails to meet the DISTRIBUTOR
delivery at the appropriate time on more than one occasion, the Operator shall
be responsible for payment of a penalty fee of [CONFIDENTIAL](1)
to DISTRIBUTOR for subsequent occurrences. 
In the event of a Product shortage or delivery problem that occurs
during an unattended delivery, the authorized representative of the Stores will
contact the distribution center no later than the first Notification Deadline
following such unattended delivery.  The “Notification
Deadline” is 4:00 p.m. local time each day for the affected Stores.


2.05        Delivery Frequency/Routing - DISTRIBUTOR will provide each Operator with a minimum
delivery frequency based on annual case volume as shown below as long as the
Operator meets the minimum order requirements set forth in Section 5 hereof:


	
  

  	
   

  	
  Delivery Frequency

  
	
  Annual Case
  Volume

  	
   

  	
  Summer Routing

  	
   

  	
  Winter Routing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 200
  cases

  	
   

  	
  4 deliveries
  during a 12 month period

  
	
  200-349 cases

  	
   

  	
  6 deliveries
  during a 12 month period

  
	
  350-499 cases

  	
   

  	
  8 deliveries
  during a 12 month period

  
	
  500-999 cases

  	
   

  	
  Every 4 weeks

  	
   

  	
  Every 4 weeks

  
	
  1,000-1,999
  cases

  	
   

  	
  Every 3 weeks

  	
   

  	
  Every 4 weeks

  
	
  2,000-3,499
  cases

  	
   

  	
  Every week

  	
   

  	
  Every 2 weeks

  
	
  Greater than
  3,499 cases

  	
   

  	
  Every week

  	
   

  	
  Every week

  



 






(1)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 6
 









This schedule is intended to serve as a guideline only and DISTRIBUTOR
agrees to provide additional regular deliveries as requested by Operator and
approved by COMPANY in writing.  COMPANY
will provide DISTRIBUTOR with the initial delivery frequency for each Store in Schedule 3. 
COMPANY and DISTRIBUTOR will mutually agree on the exact date for
routing changes from summer to winter and winter to summer but each period will
be approximately six (6) months with summer routing from April through
September and winter routing from October through March.


In the event an emergency delivery is required based upon the Operator’s
needs and not due to a delivery error by DISTRIBUTOR nor during the time
periods specified in Section 2.06, DISTRIBUTOR will accommodate the Operator’s
request with the most efficient available delivery method. All additional
freight expense will be at the Operator’s expense and will be billed upon
DISTRIBUTOR’s receipt of the invoice from the shipping agent. If DISTRIBUTOR is
able to schedule such an emergency delivery in conjunction with a nearby route,
the additional freight expense will be [CONFIDENTIAL](2). 
Where possible, a store may order up to [CONFIDENTIAL](3)
cases to be delivered to a nearby store, on that store’s delivery day (and with
that store’s consent) without an additional charge.  Products delivered to a nearby store will be
billed on a separate invoice.


Should the need arise for an emergency or special delivery due to
supplier error, DISTRIBUTOR and COMPANY will work with the supplier to remedy
the shortage at the supplier’s expense. If supplier fails to pay the additional
freight expense, COMPANY will be required to do so provided DISTRIBUTOR
notifies COMPANY immediately of supplier non-performance.  If an emergency delivery is necessary due to
DISTRIBUTOR error, DISTRIBUTOR will arrange a special delivery with any
additional freight to be paid by DISTRIBUTOR.


2.06        Special Deliveries During Roll-Out - DISTRIBUTOR and COMPANY recognize that during the initial
roll-out phase of the DISTRIBUTOR distribution program, many new processes will
be in place for each of COMPANY, the Operators and DISTRIBUTOR, including
changes in the way the Operators order, the distance from the DISTRIBUTOR
distribution center to the Operators, and lead times from order day to delivery
day for the Operators. Therefore, DISTRIBUTOR will process up to one (1)
emergency order for each Operator for the first thirty (30) days following the
commencement of distribution service at no additional charge, subject to 






(2)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(3)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC



 7
 









the minimum order requirements and applicable handling fees, if any, as
set forth in Section 5 of this Agreement. 
Such additional deliveries will be made within the confines of
DISTRIBUTOR’s existing route schedule unless products required by Operator are
a Kill Item, in which case the delivery will be expedited in accordance with
Section 3.02.


2.07        Return of Products/Credits –Any Products ordered by
Operators which are returned to DISTRIBUTOR for any reason must be returned no
later than the next regularly scheduled delivery (except that, in the case of
Products to be returned as a result of concealed damage, within the remaining
shelf life of such Products) and all claims for Products to be returned must be
made either to the driver upon check-in of the order, by telephone by 4 p.m. on
the day of delivery following receipt of the Products if an unattended delivery
or, in the case of concealed damage, within twenty-four (24) hours of discovery
of concealed damage by the Operator.  All
returned items must be in unmarked original packaging and must be in suitable
condition for resale (unless damaged or mis-marked Product was the reason for
the return). Subject to the foregoing, DISTRIBUTOR shall provide credit to the
affected Operator for defective, shorted or damaged Products within twenty-four
(24) hours of the driver’s return if brought to the driver’s attention or
noticed by the driver during delivery or, in any event, within forty-eight (48)
hours of DISTRIBUTOR’s receipt of the Operator’s claim of damaged, shorted or
defective Products (or receipt of product, if warranted) and will immediately
provide documentation on its website for Operator of such credit if the
original order was placed electronically or via fax or phone if the order was
placed in some other manner. 
Notwithstanding the foregoing, no returns will be permitted for cooler
or freezer items, or fresh produce due to misorder by the Operator.  Products refused by Operator at time of
delivery for reasons other than damage or remaining shelf life below agreed
upon parameters will be subject to a [CONFIDENTIAL](4) restocking charge to be paid by Operator.  In the event that the shorted, defective or
damaged Product is a Kill Item, then DISTRIBUTOR will remedy the situation in
accordance with Section 3.02 if so requested by the Operator.


2.08        Limited Time Offers (“LTO’s”)
- In order to allow DISTRIBUTOR to maintain service levels to the
Operators, COMPANY will provide DISTRIBUTOR with at least twenty-eight (28)
days prior written notice of any and all LTO’s to be run by COMPANY (subject to
availability of LTO Products from the supplier within the twenty-eight (28) day
period). Such written notices shall include estimated usage for the Products to
be promoted if such usage is expected to deviate materially from historical
levels or if a new Product. Subject to the above, DISTRIBUTOR agrees to stock sufficient
inventory for any new Proprietary Products to be used in national LTO 






(4)      Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 8
 









promotions and other key items, as reasonably requested by
COMPANY.  Unless retained on the Operator’s
menu at the instruction of the COMPANY or mutually agreed to between COMPANY
and DISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTOR
distribution centers no later than sixty (60) days after the completion of the
LTO and COMPANY shall purchase all remaining inventory of such LTO as provided
in Section 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTO
Products may not be returned to DISTRIBUTOR, unless the return is necessitated
due to a DISTRIBUTOR error or due to Product damage not caused by the Operator.


3.             Suppliers of
Products; Inventory of Products.


3.01        Suppliers/Contracted
Products - The Proprietary Products to be distributed to the Operators
under the terms and conditions of this Agreement shall be purchased by
DISTRIBUTOR, on its own account, from the suppliers (including COMPANY)
selected by COMPANY, pursuant to terms and conditions as are agreed upon by and
between DISTRIBUTOR and such suppliers (including COMPANY). In the event
COMPANY enters into direct contracts with suppliers, the terms and conditions
of such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTOR
for its business and legal review and, if the business and legal terms of the
proposed contract that apply to DISTRIBUTOR are reasonably acceptable to
DISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteed
supplier price provided under such supplier contract (net of billbacks by
DISTRIBUTOR, if any), [CONFIDENTIAL](5) and billed by COMPANY or its
supplier, shall be the “Cost” of the Product. 
COMPANY agrees that no Royalty and Advertising Charges will be included
in the Cost of any of the Products. 
Products governed by such supplier contracts negotiated by COMPANY are
referred to herein as “Contracted Products.” The freight charges for Contracted
Products will be an amount negotiated with the supplier by COMPANY.  DISTRIBUTOR agrees that Cost for any
Contracted Products will not include any unloading costs for palletized and
slipsheet loads.


3.02        Inventory -
During the term of this Agreement, DISTRIBUTOR shall maintain an inventory of
the Products in quantities necessary to provide the Operators with an adequate
supply of such Products based upon initial usage projections by COMPANY, future
historical usage of such Products by the Operators, and the fill rate
performance requirements detailed below. DISTRIBUTOR agrees to work with
COMPANY, to attempt to maximize the quantities of Products purchased to
efficiently reduce the cost of Products purchased, and to maximize Product
inventory turns. In addition, DISTRIBUTOR agrees to order Products in the
quantities indicated 






(5)      Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 9
 









on the inbound quantity matrix attached hereto as Schedule 5, as amended by COMPANY to
reflect the growth in the number of Stores serviced by DISTRIBUTOR in the
Territory from time to time.  DISTRIBUTOR
further agrees that any Products transported between its Jackson, Mississippi
and Clanton, Alabama distribution centers will be done without increasing the
Cost of the Product to the Operator.  To
further insure DISTRIBUTOR’s ability to comply with the performance
requirements detailed later in this Section 3.02, DISTRIBUTOR will also
maintain at each distribution center servicing Operators, “safety stock” of not
less than [CONFIDENTIAL] (6) days
historical usage for all Proprietary Products and will also have an additional [CONFIDENTIAL](7) days historical usage of white chocolate mousse, chocolate and
vanilla frozen yogurt on the road at all times. DISTRIBUTOR agrees that all
Products delivered to Operators will have at least one-third of their original
shelf-life remaining as of the date of delivery.


COMPANY categorizes Products into three classes:


Proprietary Products that Operators must have (“Kill
Items”), which Kill Items will not number more than one hundred (100) at any
time, excluding beverage Products and LTO items. COMPANY will provide a list of
Kill Items to DISTRIBUTOR, which list will be updated by COMPANY from
time-to-time.  The initial list of Kill
Items is attached as Schedule 4.


Other Proprietary
Products that can be substituted in an emergency.


Non-proprietary Products, including, any produce items
that DISTRIBUTOR may agree to provide.


DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnight
emergency delivery, if requested, an overall aggregate “fill rate” for all
Products of [CONFIDENTIAL](8), and at least [CONFIDENTIAL](9) of all invoices issued by DISTRIBUTOR to the Operators will be
completely accurate at the time of initial issuance, with all of the above
measured quarterly.  The “fill rate”
equals the percentage of Products or Kill Items, as the case may be, obtained
by dividing the total number of Products or Kill Items shipped by DISTRIBUTOR
and received by the Operators at the time of delivery for the month, by the
total number of Product or Kill Items ordered by the Operators from the
DISTRIBUTOR for that same month.  All
fill rate 






(6)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(7)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(8)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(9)      Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 10
 









measurements (and invoice accuracy requirements) will be net of
supplier-related issues such as shortages and delayed deliveries to
DISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event of
supplier non-performance. If emergency delivery is required due to supplier
(including COMPANY) error, costs of emergency delivery shall be at supplier
(including COMPANY) expense, provided that, if the supplier fails to absorb
such expense, such delivery costs shall be paid by the Operator provided
DISTRIBUTOR has notified COMPANY immediately in the event of such
non-performance and Operator has approved the additional expense in
advance.   If the emergency delivery is
due to DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in as
efficient manner as possible, which may include emergency deliveries and
special freight shipments, at DISTRIBUTOR’S sole expense. If the emergency
delivery is due to Operator error, the Operator shall pay delivery costs for
such emergency delivery.  From the moment
of receipt of the Products for storage by DISTRIBUTOR until the Products have been
accepted by Operator at the Store, DISTRIBUTOR assumes all risk of loss or
damage with respect thereto, shall be directly liable to COMPANY for any such
loss or damage to the Products and the related costs and expenses for replacing
the Products and agrees to obtain and maintain adequate insurance coverage to
insure against such loss or damage.


In the event of substitution of a Proprietary Product, the substituted
Product must have been previously approved by COMPANY in writing and, if the
need for substitution was caused due to DISTRIBUTOR error, the price of the
substituted Product will be determined based on the lower of the Cost (as
hereinafter defined) of the substituted Product or the Cost of the out-of-stock
Product that it replaces.  In addition,
DISTRIBUTOR will reimburse COMPANY to the extent that COMPANY would have
realized a difference between its selling price to DISTRIBUTOR and the amount
that COMPANY would have paid for the Proprietary Product from its supplier,
unless the substitution is due to COMPANY’s error.  Upon request, COMPANY shall provide to
DISTRIBUTOR copies of invoices and other documentation reasonably necessary to
verify the amount of the difference claimed by COMPANY.  If substitution is due to supplier (including
COMPANY) error, then COMPANY shall cause supplier to, or if COMPANY is the
supplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable losses
sustained due to such error.


To the extent that DISTRIBUTOR is unable to sell to the Operators
quantities of the Proprietary Products in DISTRIBUTOR’s inventory for any
reason whatsoever, including, but not limited to, Product discontinuation,
slow-moving inventory, unused LTO Products, promotional or seasonal Products or
exceeded shelf life due to sudden decline in Product movement and not due to
DISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase,
all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost,
F.O.B. the 



 11
 









DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling and
carrying charges, if properly approved by COMPANY in advance as outlined
below.  In such event, COMPANY will
purchase or cause to be purchased all perishable Proprietary Products within [CONFIDENTIAL](10) days after notice from DISTRIBUTOR or by the expiration date
of the Proprietary Products, whichever is earlier, and all nonperishable
Proprietary Products within [CONFIDENTIAL](11) days after notice from
DISTRIBUTOR.  In addition, if the
inventory re-purchase is necessitated for any reason other than DISTRIBUTOR
error, COMPANY shall reimburse to DISTRIBUTOR all reasonable out-of-pocket
costs and expenses (not to exceed an amount equal to [CONFIDENTIAL](12)
of the Product’s Cost unless DISTRIBUTOR receives COMPANY’S prior written
consent) incurred by DISTRIBUTOR in selling, returning or otherwise disposing
of such Products.  DISTRIBUTOR shall
provide COMPANY with documentation or other proof that any such costs and
expenses were incurred by DISTRIBUTOR. 
In order to allow COMPANY to monitor the supply and usage of the
Proprietary Products, DISTRIBUTOR shall provide to COMPANY a monthly obsolete
and slow-moving inventory report.


3.03        Aged Inventory
Notification-DISTRIBUTOR will immediately notify COMPANY in writing in
the event that any quantities of its Proprietary Products are within [CONFIDENTIAL](13) days of expiration of product life.  If DISTRIBUTOR fails to do so, COMPANY shall
not be required to comply with the requirements set forth in Section 3.02.


3.04        Present DISTRIBUTOR’s
Inventory - DISTRIBUTOR agrees to purchase the existing merchantable
and saleable inventory of Proprietary Products from COMPANY’S present
distributor located in Alsip, Illinois in quantities not to exceed a [CONFIDENTIAL](14) days’ supply of such Products, in the aggregate, provided
that DISTRIBUTOR and COMPANY have been given an opportunity by the present
distributor to inspect any such Product prior to purchase pursuant to this
Section 3.04.   DISTRIBUTOR will pay, via
check, the present distributor for Products purchased from it, within ten (10)
days of the later of DISTRIBUTOR’S receipt of the Products or the receipt of
the invoice approved by COMPANY for the Products.   DISTRIBUTOR shall be responsible for all
freight and unloading costs associated with transporting such inventory from
the existing DISTRIBUTOR’s locations listed above. DISTRIBUTOR will not be
responsible for any handling or other fees charged by the current distributor
in connection with DISTRIBUTOR’s loading and transferring of such inventory. 






(10)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(11)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(12)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(13)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(14)    Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 12
 









COMPANY and the current distributor will be required to provide all
reasonable assistance and cooperation to DISTRIBUTOR in connection with the
purchase, loading and transportation of such inventory from the current
distributor to the DISTRIBUTOR distribution center, including the scheduling of
mutually agreeable inventory inspection and pick-up times.


In the event that the Cost of the Product, as purchased from the
existing distributor, exceeds or is less than the Cost that DISTRIBUTOR would
otherwise utilize in determining the Sell Price for such Products obtained
through suppliers, including COMPANY, DISTRIBUTOR shall utilize the Cost
designated by COMPANY in determining the Sell Price and shall invoice, pay to
COMPANY or charge the Operator, as directed by the COMPANY, in the amount of
the difference.  In the event COMPANY
directs DISTRIBUTOR to invoice the COMPANY, COMPANY shall pay such invoiced
amount within [CONFIDENTIAL](15) days of the date of the
invoice.  In the case of a rebate to
COMPANY, DISTRIBUTOR shall pay the rebated amount within [CONFIDENTIAL](16) days of its determination of the amount to be rebated.


4.             Sell Price/Payment
Terms/Financial Reporting


4.01        Sell Price - Beginning
on the Effective Date and throughout the entire term of this Agreement, the
maximum purchase price at which DISTRIBUTOR shall sell the Products, (the “Sell
Price”), to the Operators shall be determined by adding the “Cost” (as
hereinafter defined) of the Product plus [CONFIDENTIAL](17) per case for all deliveries
(collectively, “Markup”), subject to the other provisions of this
Agreement.  For purposes of this
Agreement, the “Cost” of a Product other than a Contracted Product shall be the
sum of (a) the cost of the Product as shown on the invoices to DISTRIBUTOR from
the respective supplier, including COMPANY, plus (b) if the invoiced cost of
the Product is not a delivered price, the applicable freight charges related to
shipping the Product from the supplier to DISTRIBUTOR’S distribution center,
plus (c) the Sourcing Fees (as later defined in Section 4.06), if any,
attributable to the Product, less (d) promotional allowances reflected on
supplier invoices to DISTRIBUTOR. Applicable freight, in those cases where the
invoice cost to DISTRIBUTOR for non-proprietary Products is not a delivered cost,
means that DISTRIBUTOR has added a reasonable freight charge, agreed to in
advance and in writing by COMPANY for delivering such non-proprietary Products
from suppliers to DISTRIBUTOR. 
Applicable freight for any non-proprietary Product will not exceed the
rate charged by nationally recognized carriers operating in the same market for
the same type of freight service. Cost for any non-proprietary Product will not
be reduced by discounts for cash or prompt payment available to DISTRIBUTOR,
breakage allowances or by backhaul revenue. 






(15)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(16)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(17)    Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 13
 









Fuel or other transportation surcharges indicated on the manufacturer’s
or supplier’s invoice or on freight invoices will increase Cost. The Cost of a
Contracted Product shall be determined in accordance with Section 3.01.  In no event will the Cost of Contracted
Products include amounts to be rebated to DISTRIBUTOR and therefore,
DISTRIBUTOR will not negotiate off-invoice manufacturer rebates,
labels/promotional allowances or any other “soft money” received from supplier
or freight carriers of Contracted Products. 
In order to allow verification of the foregoing commitment, DISTRIBUTOR
agrees to provide documentation substantiating the Cost of items DISTRIBUTOR
purchases from suppliers and freight carriers. 
DISTRIBUTOR agrees to limit its collection of such “soft money” to the
manufacturers of non-proprietary Products. 
The Cost of Contracted Products will not be reduced by discounts for
cash or prompt payment available to DISTRIBUTOR, breakage allowances or by
backhaul revenue. Fuel or other transportation surcharges indicated on the
manufacturer’s or supplier’s invoice or on freight invoices will increase Cost.


The invoice format to be used by DISTRIBUTOR will be
approved by COMPANY and will contain separate lines showing subtotals for
various Product categories, applicable taxes, the date of the ACH debit and
other summary line items as detailed elsewhere in this Agreement.


No splits will be permitted for any Contracted
Products except for maraschino cherries and malt.  Each of these split Products will have a
Markup of [CONFIDENTIAL](18) per case, whether sold as a split
or full case.


4.02                “Cost” for Contracted Products/True-Up
Methodology- In the case of Contracted Products, COMPANY agrees
to notify DISTRIBUTOR as soon as practical after a change in Cost has been
agreed to with a supplier.  COMPANY shall
have the right to adjust the Markup for individual Products (not including the
fuel surcharge or the [CONFIDENTIAL](19) Markup on the items listed in
Section 4.01 above) from time to time to an amount that is more or less than
the agreed upon Markup per case.  If
COMPANY exercises its right to lower DISTRIBUTOR’s Markup on any Products, it
will simultaneously and correspondingly increase the Markup on other Products
so as to provide DISTRIBUTOR continuously with an average overall Markup of [CONFIDENTIAL](20) per case, as adjusted from time to time pursuant to this
Agreement.


Following each calendar quarter, DISTRIBUTOR shall provide a cumulative
report that reflects:  (i) the total
number of cases of Products delivered to the Stores under this Agreement during
the preceding quarter (“x”); (ii) the total of the Sell Prices charged for all
Products delivered to the 






(18)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(19)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(20)    Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 14
 









Stores under this Agreement during the preceding quarter (“y”), (iii)
the total of the Cost of each Product delivered to the Stores during such
quarter (“z”), and (iv) the “Average Putative Markup” for Products delivered to
the Stores, which shall be calculated as follows: [(y-z)/x].   If the Average Putative Markup is less than
the Markup required pursuant to Section 4.01 (and as modified pursuant to the
other provisions of this Agreement), with such deficiency being referred to
herein as the “Markup Deficiency”, COMPANY shall remit to DISTRIBUTOR, an
amount equal to the number of cases delivered to the Stores under this
Agreement during the preceding quarter (“x”), multiplied by the Markup
Deficiency.  If the Average Putative
Markup exceeds the Markup required pursuant to Section 4.01 (and as modified
pursuant to the other provisions of this Agreement), with such excess being
referred to as the “Markup Excess”, DISTRIBUTOR shall remit to COMPANY an
amount equal to the number of cases delivered to the Stores under this
Agreement during that quarter (“x”), multiplied by the Markup Excess.  Payments owed by either party under this
Section 4.02 shall be made by such party to the other party, via check, within
ten (10) days of the determination of the amounts owed and, in any case, within
thirty (30) days following the end of the applicable calendar quarter for which
such payments are owed or by making adjustments to the Sell Price as mutually
agreed upon between COMPANY and DISTRIBUTOR.


4.03        Fuel Cost Adjustments
- If the operating costs of DISTRIBUTOR are increased or decreased as a result
of fuel cost increases or decreases, DISTRIBUTOR may adjust the Markup (as and
if otherwise adjusted pursuant to the terms of this Agreement) to compensate
for such fluctuations in fuel costs, on a monthly basis. The amount of the
adjustment computed in accordance with this Section 4.02 shall also be added to
or subtracted from, as applicable, the specified price for Contracted Operator
Sell Price Products described in Section 4.11. 
The method for determining the fuel surcharge or adjustment will be made
monthly beginning December 1, 2006 and will be based on the Midwest Weekly
Retail On-Highway diesel fuel price which is compiled by the Energy Information
Administration. The Web site to access this information electronically is as
follows:


http://www.eia.doe.gov/pub/oil_gas/petroleum/data_publications/weekly_on_highway_diesel_prices/current/  html/diesel.html


If such publication is no longer published or available, then the
parties will mutually agree upon an acceptable alternative source.


As fuel prices increase or decrease, the fuel cost adjustments will
move according to changes in the prior four (4) week average for the Midwest
fuel price bracket, and will take effect on the



 15















first day of the calendar month following the applicable publication
date.  For example, the fuel cost
adjustment beginning the first day in December, if any, will be determined
based on the four (4) week average ending immediately prior to or on November 30th.


	
  Price Per Gallon Including
  Taxes

  	
   

  	
  Per Case Surcharge/Credit

  
	
  [CONFIDENTIAL](21)

  	
   

  	
   

  



 


If the price per gallon, including taxes, exceeds [CONFIDENTIAL](22), the surcharge will equal [CONFIDENTIAL](23) per case plus an additional [CONFIDENTIAL](24) per case for each [CONFIDENTIAL](25) increment (or portion thereof)
that the price per gallon exceeds [CONFIDENTIAL](26). 
If the price per gallon, including taxes, falls below [CONFIDENTIAL](27), a credit will be issued in the amount of [CONFIDENTIAL](28) per case plus an additional [CONFIDENTIAL](29) per case for each [CONFIDENTIAL](30) increment (or portion thereof) that the price is less than [CONFIDENTIAL](31).  Any such surcharge or
credit will be shown as a separate line item on the Operator’s invoice.


4.04        Markup Adjustments due
to Material Change in Average Delivery Size & CPI-U


The [CONFIDENTIAL](32) Markup during the first [CONFIDENTIAL](33) months after the Effective Date
is premised upon an average annual delivery size of [CONFIDENTIAL](34)
cases to the Stores serviced by DISTRIBUTOR.






(21)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(22)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(23)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(24)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(25)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(26)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(27)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(28)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(29)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(30)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(31)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(32)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(33)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(34)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 16
 









After the first [CONFIDENTIAL](35) months of service and after each [CONFIDENTIAL](36)
month period thereafter, the Markup for the Stores for the next [CONFIDENTIAL](37) months will be based on the actual average delivery size for
the preceding [CONFIDENTIAL](38) months.


The average
delivery size will be calculated by summing up all of the cases delivered to
the Stores serviced by DISTRIBUTOR in the Territory for the previous [CONFIDENTIAL](39) months and dividing the total number of cases delivered by
the total number of deliveries made by DISTRIBUTOR as modified below.  The number of deliveries made by DISTRIBUTOR
shall not include deliveries to correct errors made by DISTRIBUTOR or
suppliers, nor shall it include deliveries for which DISTRIBUTOR has received
the [CONFIDENTIAL](40) special delivery fee in
accordance with Section 2.05.


In the event the
average delivery size for the previous [CONFIDENTIAL](41) months is greater than or equal
to [CONFIDENTIAL](42) but less than or equal to [CONFIDENTIAL](43) cases, the Markup will remain at [CONFIDENTIAL](44)
per case as further adjusted for the change in CPI-U discussed later in this
section. If the average delivery size for the previous [CONFIDENTIAL](45) months falls outside of the range described above, or, if the
total number of cases sold during any prior [CONFIDENTIAL](46) month period is less than [CONFIDENTIAL](47) or greater than [CONFIDENTIAL](48), the COMPANY and DISTRIBUTOR will
negotiate a new Markup adjustment in good faith.  In the event COMPANY and DISTRIBUTOR fail to
agree on such a Markup adjustment within thirty (30) days after the
commencement of negotiations under this Section 4.04, then both COMPANY and
DISTRIBUTOR will have the right to terminate this Agreement with ninety (90)
days written notice to the other party in accordance with Section 6.02 (b)(ii).


In addition to the
Markup adjustment discussed above, COMPANY and DISTRIBUTOR agree that the
Markup will also be adjusted on January 1st of
each year based on the percentage change






(35)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(36)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(37)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(38)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(39)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(40)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(41)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(42)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(43)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(44)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(45)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(46)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(47)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(48)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 17
 









in the United
States Government announced change in the CPI-U, less food and energy cost
changes, for the prior [CONFIDENTIAL](49) month period.  This percentage change in the CPI-U will be
applied to the [CONFIDENTIAL](50) Markup to determine the new
Markup for the next [CONFIDENTIAL](51) months the change in Markup will
be rounded to the nearest full cent.  For
example, if the percentage change in the CPI-U for the first [CONFIDENTIAL](52) months after the Effective Date is [CONFIDENTIAL](53),
the Markup commencing January 1, 2008 would be [CONFIDENTIAL](54)/case
+ [CONFIDENTIAL](55)= rounded to [CONFIDENTIAL](56) per case.  This same
Markup adjustment of [CONFIDENTIAL](57) per case will be added to the
Markup for the stores not placing their orders electronically, pursuant to
Section 4.12.


4.05        Payment Terms/Markup Adjustments
due to Payment Methodology


(a)   Standard Payment Terms.  Except as noted below, DISTRIBUTOR and
COMPANY have agreed that payments to DISTRIBUTOR for Products delivered to the
Operators (including Contract Feeders as defined below) shall be received by
ACH debit entry initiated by DISTRIBUTOR, so that the amount is credited to
DISTRIBUTOR’s account on Friday of each week for deliveries made during the
preceding [CONFIDENTIAL](58) days. Thus, stores which receive
deliveries on Saturday or Sunday, would have their account debited [CONFIDENTIAL](59) and [CONFIDENTIAL](60) days, respectively, after receipt
of their order.  DISTRIBUTOR may also
accept payment by check if so requested by Operator and approved by
DISTRIBUTOR.  All new Operators will initially
receive credit terms as outlined above, provided that they satisfy DISTRIBUTOR’S
credit criteria for such terms, as such criteria is uniformly applied among all
similarly situated Operators, in light of all relevant facts and
circumstances.  Payment terms will be
extended only to those Operators that are creditworthy as shall have been
solely determined by DISTRIBUTOR. DISTRIBUTOR may, in its sole discretion,
provide alternate payment terms to those Operators not meeting DISTRIBUTOR’s
standards for creditworthiness. 
DISTRIBUTOR will provide email or fax notice to each Operator at






(49)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(50)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(51)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(52)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(53)    Confidential treatment has been requested
for the redacted portion.  The confidential,
redacted portions have been filed separately with the SEC.


(54)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(55)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(56)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(57)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(58)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(59)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(60)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 18
 









least [CONFIDENTIAL](61) days prior to the ACH debit entry
actually taking place, advising Operator of the amount of the ACH debit, along
with the invoice number and any credits posted during the prior [CONFIDENTIAL](62) days.


Notwithstanding the foregoing, DISTRIBUTOR agrees to provide extended
credit terms to Operators performing as Contract Feeders (as defined below) in
non-traditional locations provided that they satisfy DISTRIBUTOR’s credit
criteria for such terms, as such criteria is uniformly applied among all
similarly situated Operators in light of all relevant facts and circumstances.
To qualify for such credit terms, each location operated by a Contract Feeder
in the Territory must be approved by COMPANY in writing and the Contract Feeder
must comply with these extended credit terms. 
“Contract Feeders” are Operators who operate non-traditional food
service locations in facilities such as airports, sports facilities, travel
plazas, universities, tech centers, etc.


(b)           No
Set-Off/Late Fees/Collection Costs. 
No deductions or set offs from payments due to DISTRIBUTOR may be made
by Operators for any reason without the prior written authorization of DISTRIBUTOR.  Failure of the Operator to make any payment
required when due shall result in DISTRIBUTOR having the right to impose more
stringent credit or payment terms, such as, without limitation, cash in
advance, cash on delivery, delivery of acceptable letters of credit or third
party guaranties, or additional collateral, or, after three (3) business days’
prior notice to COMPANY and the affected Operator, to suspend all deliveries,
and declare the entire unpaid balance of the Operator’s account immediately due
and payable. The COMPANY shall pay, and shall use its commercially reasonable
efforts to cause each Operator to pay, all reasonable costs of collection,
including reasonable attorneys fees incurred or paid by DISTRIBUTOR, but only
to the extent related to their respective accounts. DISTRIBUTOR will have the
right to charge interest at the maximum rate permitted by law but not exceeding
[CONFIDENTIAL](63) percent per annum on all unpaid
amounts due or owing by Operators and/or COMPANY to DISTRIBUTOR.


(c)           COMPANY’S
Liability for Payments. COMPANY agrees that it shall be liable for all
liabilities of COMPANY expressly set forth in this Agreement.  COMPANY will not be liable for the debts or
obligations of Operators unless otherwise agreed to in writing by COMPANY.






(61)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(62)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(63)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 19
 









(d)           Payments
to COMPANY.   In addition to the
invoice for the frozen yogurt Products submitted to DISTRIBUTOR by the
supplier, COMPANY will also invoice DISTRIBUTOR directly for [CONFIDENTIAL](64) for its frozen yogurt Products as shipped from the
manufacturer and will designate the [CONFIDENTIAL](65) as separate line items for each
Product. [CONFIDENTIAL](66) COMPANY reserves the right to
alter [CONFIDENTIAL](67) on its frozen yogurt Products in
its discretion but no more frequently than quarterly.    DISTRIBUTOR agrees to pay COMPANY for these
invoices within [CONFIDENTIAL](68) days of receipt.


In addition to the invoice for the frozen cake and pie Products
submitted to DISTRIBUTOR by the supplier, COMPANY will also invoice DISTRIBUTOR
for [CONFIDENTIAL](69) on its frozen cake and pie
Products for each Product as shown on [CONFIDENTIAL](70). 
Company reserves the right to alter [CONFIDENTIAL](71) on its frozen cake and pie
Products in its discretion but no more frequently than quarterly.  Distributor shall pay all invoices for [CONFIDENTIAL](72) on its frozen cake and pie Products when invoiced by the
COMPANY within [CONFIDENTIAL](73) days of invoice date, which date
will be no earlier than the date of receipt of the applicable Products by the
DISTRIBUTOR.


In the event COMPANY decides to establish a new procedure for new and
or established Stores to bill and collect [CONFIDENTIAL](74), such that the [CONFIDENTIAL](75) is billed and collected from the Stores by DISTRIBUTOR,
DISTRIBUTOR agrees to remit such fees each Friday via ACH credit for all sales
made the previous week.


4.06            Sourcing Fees.  COMPANY may, from time to time, collect
compensation from the Operators for services that it provides to such
Operators, either by increasing the Cost of a product supplied by COMPANY, to
DISTRIBUTOR for distribution under this Agreement, or through the assessment of
an additional fee (a “Sourcing Fee”) that COMPANY instructs DISTRIBUTOR to add
in the






(64)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(65)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(66)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(67)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(68)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(69)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(70)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(71)    Confidential treatment has been requested
for the redacted portion.  The confidential,
redacted portions have been filed separately with the SEC.


(72)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(73)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(74)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(75)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 20
 









calculation of the Sell Price of Products not
purchased from COMPANY.  Any changes in
the Sourcing Fees shall occur no more frequently than monthly.  COMPANY specifically represents and warrants
that such Sourcing Fees (or increases in the invoiced Cost) have been and will
continue to be disclosed to all Operators, and that the charging and collection
of such Sourcing Fees (or increased Cost) I permitted under its or its
affiliates’ agreements with the Operators and does not violate any applicable
laws.  COMPANY shall indemnify, defend
and hold harmless DISTRIBUTOR, its affiliates and each of their respective
officers, agents, directors, shareholders or employees for any claims, loss,
liability or expense (including reasonable attorney’s fees and disbursements)
arising from a breach of this representation and warranty.


DISTRIBUTOR shall pay all Sourcing Fees to COMPANY via initiation of an
ACH credit entry each Friday with respect to those Products delivered to the
Operators during the preceding week and on which a Sourcing Fee was assessed.


4.07            Financial
Information.  DISTRIBUTOR may
request balance sheets, income statements and such further financial
information from each Operator from time to time as will enable DISTRIBUTOR to
accurately assess the Operators’ financial condition.   The COMPANY may require DISTRIBUTOR to
supply annual audited balance sheets and income statements and such further
financial information from time to time as will enable COMPANY to accurately
assess DISTRIBUTOR’S financial condition.


4.08            Price
Verifications-Audit- COMPANY will be allowed to perform electronic
Purchase Price verifications for purchases made under this Agreement on a
weekly basis and DISTRIBUTOR will supply the necessary files and information to
COMPANY for these audit purposes on a timely basis and in a form acceptable to
COMPANY and DISTRIBUTOR.  As part of this
electronic auditing procedure, COMPANY may also audit the payments made to it
for accuracy as well.  If any such audit
reveals net pricing, delivery surcharge or COMPANY payment errors (overcharges
set off by undercharges) in excess of $2,000 in the aggregate during the
audited period (not to exceed a twelve (12) month period) COMPANY shall have
the right to conduct additional audits, at its option and at DISTRIBUTOR’S
reasonable expense, until the aggregate net pricing errors disclosed by an such
additional audits are less than $2,000 for the applicable audit period.  For any audit conducted pursuant to this
Section 4.08 that discloses that Operators were either overcharged or
undercharged for Products, or that COMPANY was overpaid or overcharged during
the audited period, DISTRIBUTOR and COMPANY agree to correct the overcharge,
undercharge, overpayment or underpayment, as the case may be.  The form and method for making these
adjustments will be mutually agreed upon by DISTRIBUTOR and COMPANY; provided,



 21
 









however, in any event the remittance of any such adjustments shall be
made by either party within forty-five (45) days from the final determination
of the undercharge or overcharge, as applicable.


4.09                DISTRIBUTOR
Operator Support -DISTRIBUTOR agrees to provide the following Operator
support to COMPANY.


(a)           DISTRIBUTOR will
support the System by participating in the supplier show at its own
expense.  In addition, DISTRIBUTOR will
pay COMPANY an annual support payment equal to [CONFIDENTIAL](76)
payable within [CONFIDENTIAL](77) days of written request by
COMPANY.  COMPANY may submit such
requests [CONFIDENTIAL](78) during each calendar year and a
total of [CONFIDENTIAL](79) such requests during the term of
this Agreement.


(b)           DISTRIBUTOR
will support COMPANY in terms of activating product recalls in accordance with
DISTRIBUTOR’S standard product recall policies.


(c)           DISTRIBUTOR will adhere
to the following HACCP requirements for monitoring of temperature controls for
perishable products both in the DISTRIBUTOR distribution center and in
DISTRIBUTOR’S transportation equipment.


	
  ITEM

  	
   

  	
  FORM

  	
   

  	
  TEMPERATURE

  REQUIREMENTS IN

  DISTRIBUTION 

  CENTER

  	
   

  	
  UPPER TEMP.
  RANGE WHILE 

  TRANSPORTED TO

  STORES

  
	
  Soft Serve Frozen Yogurt

  	
   

  	
  Frozen

  	
   

  	
  -10o or lower

  	
   

  	
  0o

  
	
  Hand-Dipped Frozen Yogurt

  	
   

  	
  Frozen

  	
   

  	
  -10o or lower

  	
   

  	
  0o

  
	
  Yogurt Cakes and Pies

  	
   

  	
  Frozen

  	
   

  	
  -10o or lower

  	
   

  	
  0o

  
	
  Various Toppings

  	
   

  	
  Refrigerated

  	
   

  	
  34o to 36o

  	
   

  	
  38o

  
	
  Nuts and Liquid Toppings

  	
   

  	
  Frozen

  	
   

  	
  0 or lower

  	
   

  	
  0o

  
	
  Various Toppings

  	
   

  	
  Dry

  	
   

  	
  Above 38

  	
   

  	
  Above 38

  



 


(d)           DISTRIBUTOR will
provide COMPANY with periodic EDI file transfers to include the following:






(76)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(77)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(78)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(79)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 22
 









Weekly invoice register
by store outlining the SKU’s and quantity purchased


Weekly inventory levels,
age of inventory, sales and pending orders and delivery dates by item


Weekly report of Current
Stores


Weekly report of average
drop sizes for each store


Monthly delivery
performance report with on-time performance, fill rates and clean invoice
percentages


Daily out-of-stock report
and stores so affected


Monthly costing detail on
all Products used by the SYSTEM


Such additional reports as may be reasonable requested
by the COMPANY


4.10      Taxes – Franchisees
and COMPANY shall each be responsible for their applicable sales and use
taxes.  DISTRIBUTOR shall collect
applicable taxes from each responsible party and be responsible for remitting
all taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for paying
those taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defend
COMPANY pursuant to Section 8.01 of this Agreement should Company receive a
claim for the DISTRIBUTOR’s failure to pay taxes.  Neither party will pay a claimwhich is
allegedly the responsibility of the other without first notifying the other and
giving the other the opportunity to contest the claim.


4.11      Special Pricing Arrangements - Products that are governed by
national billing agency or other programs for which the price at which the
DISTRIBUTOR must sell the Product to the Operator is prescribed by agreements
between COMPANY, or any other franchisor or group purchasing organization, on
the one hand, and the supplier or manufacturer of such Products, on the other,
are referred to in this Agreement as “Contracted Operator Sell Price Products”.  Notwithstanding Section 4.01, the Sell Price
for Contracted Operator Sell Price Products shall be the amount prescribed (or
calculated in accordance with) the above-described programs or agreements.  Contracted Operator Sell Price Products
include, but are not limited to, soft drink syrup products including, without
limitation, the following Coca Cola Products: 
Coke Bag in Box (“BiB”), Diet Coke BiB, Sprite BiB and Barq’s Root Beer
BIB.


4.12      Additional Markup for
Stores Not Ordering Electronically- Commencing the first day of the
month at least sixty (60) days after the Effective Date, Operators who desire
to continue to place orders by fax or telephone will be charged an additional
fee of [CONFIDENTIAL](80) for each case delivered on that
fax or phone order in addition to any other charges applicable under this
Agreement.  This additional fee will be
included in the Markup and, hence, the Sell Price for each of the
Products.  This additional Markup will






(80)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 23
 









not be assessed to Operators in the event that DISTRIBUTOR’S website is
not operational or in the infrequent circumstance where, an Operator who has
been in the habit of ordering electronically, may be unable to place an order
in this fashion due to technical difficulties.


5.     Minimum Deliveries - The
Operators will be required to order Products in minimum quantities of [CONFIDENTIAL](81) cases of Products per delivery unless due to DISTRIBUTOR or
supplier error.  In addition, Operator
will be required to pay DISTRIBUTOR a [CONFIDENTIAL](82) handling fee per order for orders
of less than [CONFIDENTIAL](83) cases but greater than [CONFIDENTIAL](84) cases and a [CONFIDENTIAL](85) handling fee per order for orders
of less than [CONFIDENTIAL](86) cases but greater than or equal
to [CONFIDENTIAL](87) cases unless due to DISTRIBUTOR
or supplier, including failure to fulfill the order in its entirety.


6.     Term and Termination


6.01        Term - The
initial term of this Agreement shall commence on the Effective Date and shall
continue until exactly three (3) years after the commencement of full service
to all Stores to be serviced in the Territory (“Initial Term”), unless sooner
terminated as provided in Section 6.02. 
This Agreement shall automatically renew for one (1) additional year
upon the completion of the Initial Term unless one party notifies the other in
writing at least one hundred eighty (180) days before the expiration of the
Initial Term of its desire to terminate the relationship.


6.02        Termination


(a)           Either
party shall have the right, upon prior written notice, to immediately terminate
this Agreement if the other party fails to make payment of any amounts due and
payable under this Agreement, and such failure shall have continued for a
period of ten (10) days from and after the date of written notice to the
defaulting party or in the event the other party files a voluntary petition or
consents to the filing of a petition against it in bankruptcy or any similar
insolvency or debtor relief action, or if the other party makes a general
assignment for the benefit of creditors, or in the event a receiver is
appointed or any proceeding is demanded or initiated by, for or






(81)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(82)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(83)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(84)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(85)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(86)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(87)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 24
 









against the other party under any provision of the Federal Bankruptcy
Act or any amendment thereof.


(b)           Either
party shall have the right to terminate this Agreement upon ninety (90) days
written notice under any of the following conditions:


(i)            Upon
the occurrence of any material breach or material default by the other party,
which remains uncured after expiration of the applicable Cure Period (as herein
defined), of any of the terms, obligations, covenants, representations and
warranties under this Agreement (except for a default specified in Section 6.02
(a) above) which is not waived in writing by the non-defaulting party.  In such case, the non-defaulting party shall
notify the other of such alleged beach or default and the other party shall
have a period of thirty (30) days to cure the same (the “Cure Period”). If the
defaulting party cures its breach or default within any applicable Cure Period
to the reasonable satisfaction of the non-defaulting party, the notice shall be
void and this Agreement shall continue; otherwise, it shall terminate in
accordance with the notice.


or


(ii)           In
the event the parties fail to agree on a Markup adjustment pursuant to Section
4.04.


6.03        Effect of
Expiration/Termination - Upon expiration or sooner termination of this
Agreement, for any reason, COMPANY shall promptly purchase or arrange for the
purchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),
F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of the
Proprietary Products and any labeling and packaging materials used in
connection with the Proprietary Products. 
COMPANY will purchase or cause to be purchased perishable Proprietary
Products within [CONFIDENTIAL](88) days after the effective date of
termination of this Agreement or by the expiration date of such Proprietary
Product, whichever is earlier, and all nonperishable Proprietary Products
within [CONFIDENTIAL](89) days after the effective date of
termination of this Agreement. In addition, if this agreement is terminated due
to COMPANY’s breach or default, COMPANY shall reimburse to DISTRIBUTOR all
other reasonable out-of-pocket costs






(88)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(89)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 25
 









and expenses (not to exceed an amount equal to [CONFIDENTIAL](90) of the Markup on each Product unless DISTRIBUTOR receives
COMPANY’s prior written consent) incurred by DISTRIBUTOR in selling, returning
or otherwise disposing of such Proprietary Products. DISTRIBUTOR shall provide
COMPANY with documentation or other proof that any such costs and expenses were
incurred by DISTRIBUTOR. Termination of this Agreement shall not relieve either
party of any obligation or liability which accrues prior to the effective date
of termination (including, but not limited to, obligations related to the
payment of COMPANY’s accounts receivable or accounts payable and the purchase
of excess inventories). Notwithstanding the foregoing provisions of this
Section 6.03 to the contrary, if this Agreement is terminated due to
DISTRIBUTOR’s breach or default or expires in accordance with the provisions of
Section 6.01, COMPANY shall have the obligation to purchase, or shall direct
the replacing distributor or other suitable purchaser to purchase, from
DISTRIBUTOR only such inventory of the Proprietary Products which is
merchantable and saleable but COMPANY shall have no obligation to reimburse
DISTRIBUTOR for its out-of-pocket costs and expenses related to selling,
returning or otherwise disposing of such Proprietary Products.


7.             Trademarks
and Trade Names - COMPANY hereby represents and warrants that it
is the owner of, or has the right to use under license or sublicense, all trademarks,
logos, trade names, and other markings used on the Proprietary Product’s
packaging and labels (the “Trademarks”). COMPANY hereby grants to DISTRIBUTOR
the right to use the Trademarks solely in connection with the approved sale and
distribution of the Proprietary Products in accordance with the provisions of
this Agreement and only for as long as this Agreement remains in effect.
COMPANY also grants to DISTRIBUTOR the right and license to use the Trademarks
in advertising and promotional materials when the Trademarks are used therein
to identify the Proprietary Products, subject to COMPANY’s prior written
approval of form and content. Provided DISTRIBUTOR is using the Trademarks in
accordance with the terms and provisions of this Agreement, COMPANY shall
indemnify, defend and hold DISTRIBUTOR and its subsidiaries, affiliates,
officers, shareholders, directors, employees, members, managers, agents,
successors and assigns harmless from and against any and all claims, demands,
liabilities, causes of action, damages, costs (including reasonable attorneys’
fees and disbursements) and judgments made or incurred by or found against any
of them resulting from or arising out of any claim or suit alleging
infringement by COMPANY or its affiliates, through any of the Trademarks or
otherwise.


8.             Indemnification


8.01        Indemnification by
DISTRIBUTOR - DISTRIBUTOR agrees to indemnify, defend and hold COMPANY,
its subsidiaries, affiliates, officers, directors, members, managers,
stockholders, employees, agents, successors and assigns harmless from and
against any and all claims,






(90)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 26
 









demands, liabilities, causes of action, damages, costs (including
reasonable attorneys’ fees and disbursements) and judgments made or incurred by
or found against any of them, resulting from or arising out of:


(a)           Any
breach or default by DISTRIBUTOR of any term or provision of this Agreement; or


(b)           Any
negligent act or negligent omission or willful misconduct of DISTRIBUTOR in
respect of DISTRIBUTOR’s performance of its obligations under this Agreement.


8.02        Indemnification by
COMPANY – COMPANY agrees to indemnify, defend and hold DISTRIBUTOR, it
subsidiaries, affiliates, officers, directors, members, managers, stockholders,
employees, agents, successors and assigns harmless from and against any and all
claims, demands, liabilities, causes of action, damages, costs (including
reasonable attorney’s fees and disbursements) and judgments made or incurred by
or found against any of them resulting from or arising out of:


(a)           Any breach or default
by COMPANY of any term or provision of this Agreement.


(b)           Any
breach or default by COMPANY of any term or provision of any agreement between
COMPANY, on the one part, and an Operator or a supplier of the Proprietary
Products, on the other part, or any negligent or willful act or omission of
COMPANY, or any of its employees or agents, in respect of the purchase, resale,
distribution, storage or delivery of the Proprietary Products or the COMPANY’s
performance of its obligations under this Agreement; and


(c)           Claims
by any franchisee of COMPANY and/or Operator that may arise from DISTRIBUTOR
ceasing further sales to such franchisee or other Operator under this Agreement
at the direction of COMPANY.


(d)           Claims
by any franchisee of COMPANY and/or Operator that may arise from COMPANY’s role
in the distribution/product procurement process or the use or allocation of funds
collected by COMPANY from DISTRIBUTOR.


8.03        Limitation of
Liability; Disclaimer of Warranties - NOTWITHSTANDING SECTIONS 8.01 AND
8.02 TO THE CONTRARY, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE IN CONTRACT,
TORT, STRICT LIABILITY OR OTHERWISE,  TO
THE OTHER PARTY



 27
 









OR ITS RESPECTIVE SUBSIDIARIES, AFFILIATES,
FRANCHISEES OR OTHER OPERATORS FOR ANY TYPE OF INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS
OPPORTUNITY) ARISING FROM A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER ANY
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY SUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANY TERM OR PROVISION
OF THIS AGREEMENT.


COMPANY ACKNOWLEDGES AND AGREES THAT DISTRIBUTOR IS
NOT THE MANUFACTURER OR PRODUCER OF THE PRODUCTS SUPPLIED BY DISTRIBUTOR.  IN NO EVENT SHALL DISTRIBUTOR BE LIABLE WITH
RESPECT TO ANY CONDITIONS, DEFECTS, DEFICIENCIES, DANGERS, FAULTS OR FAILURES,
OF ANY KIND, IN OR RELATING TO ANY PRODUCTS SUPPLIED BY DISTRIBUTOR EXCEPT,
SUBJECT TO THE LIMITATIONS STATED IN THIS AGREEMENT, TO THE EXTENT OF
DISTRIBUTOR’S ACTUAL NEGLIGENCE IN ITS HANDLING OF SUCH PRODUCTS.  EXCEPT AS EXPLICITLY
PROVIDED IN THIS AGREEMENT,  DISTRIBUTOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.


8.04        Third Party Claims
- The indemnities in this Section 8 are contingent upon: (i) the
indemnified party promptly notifying the indemnifying party in writing of any
action or other proceeding which may give rise to a claim for indemnification
hereunder; unless such failure to promptly notify does not materially prejudice
the claim; (ii) the indemnifying party being allowed to control the defense and
settlement of such claim; and (iii) the indemnified party reasonably
cooperating with the indemnifying party (at the indemnifying party’s expense)
in providing information relevant to the defense or settlement of a claim. The
indemnified party shall have the right, at its option and expense, to
participate in the defense of any action or proceeding through counsel of its
own choosing.


9.             Insurance


9.01        DISTRIBUTOR’s Insurance
- During the term of this Agreement and for a period of one (1) year
thereafter, DISTRIBUTOR shall purchase and maintain, at its sole cost and
expense, the following insurance coverage:



 28
 









(a)           commercial
general liability insurance and products liability coverage with broad form
vendor endorsement, which specifically insures all liabilities of DISTRIBUTOR
to COMPANY and Operator under this Agreement, to the extent afforded by normal
ISO policy forms and definitions, with all such insurance coverage providing
for combined single limit bodily injury/property damage liability of not less
than [CONFIDENTIAL](91) (combined single limits bodily
injury and property damage) and a [CONFIDENTIAL](92) umbrella policy; and


(b)           commercial
automobile liability insurance coverage providing for combined single limit
bodily injury/property damage liability of not less than [CONFIDENTIAL](93) (combined single limits bodily injury and property damage)
and a [CONFIDENTIAL](94) umbrella policy.


All such insurance shall be provided by insurance
companies which are licensed and authorized to do business in the United States
of America, shall be occurrence based policies and which insurance companies
are reasonably satisfactory to COMPANY. 
DISTRIBUTOR agrees to deliver to COMPANY, on or prior to the Effective
Date, certificates of insurance evidencing the existence of all the above
insurance coverage and naming COMPANY as an additional insured under such
policies.  The certificates shall contain
an agreement by the insurance carrier to notify COMPANY, in writing, at least
thirty (30) days prior to the date of any cancellation or change in such
insurance coverage.


9.02        COMPANY’s Insurance
- During the term of this Agreement, and for a period of one (1) year
thereafter, COMPANY shall purchase and maintain, at its sole cost and expense,
commercial general liability insurance and products liability coverage, and a
contractual liability endorsement which specifically insures all liabilities of
COMPANY to DISTRIBUTOR under this Agreement, to the extent afforded by normal
ISO policy forms and definitions, with all such insurance coverage providing
for combined single limit bodily injury/property damage liability of not less
than [CONFIDENTIAL](95). All such insurance shall be
provided by insurance companies which are licensed and authorized to do
business in the United States of America, and which are reasonably satisfactory
to DISTRIBUTOR. COMPANY agrees to deliver to DISTRIBUTOR, on or prior to the
Effective Date, a certificate of insurance evidencing the existence of all the
above






(91)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(92)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(93)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(94)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(95)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.



 29
 









insurance coverage and naming DISTRIBUTOR as an additional insured
under such policies. The certificate shall contain an agreement by the
insurance carrier to notify DISTRIBUTOR, in writing, at least thirty (30) days
prior to the date of any change in such insurance coverage.


10.          Representations and
Warranties


10.01      Representations and
Warranties of DISTRIBUTOR - DISTRIBUTOR hereby represents and warrants
to COMPANY as follows:


(a)           DISTRIBUTOR is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Missouri. DISTRIBUTOR has the requisite power to own
properties, to carry on its business as now being conducted by it, and to
execute, deliver and perform this Agreement.


(b)           This
Agreement is, when executed and delivered by DISTRIBUTOR and by the COMPANY,
the valid and binding obligation of DISTRIBUTOR enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors’ rights generally, and further subject to general equity principles.


(c)           The
execution, delivery and performance by DISTRIBUTOR of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
violate, conflict with, result in a breach or termination of, or constitute a
default under (or an event which with due notice or lapse of time, or both,
would constitute a breach of or default under), (i) the certificate of
incorporation, as amended to date, of DISTRIBUTOR, (ii) any judgment, order,
decree, ruling or injunction applicable to DISTRIBUTOR, or (iii) any contract
or agreement between DISTRIBUTOR and any third party.


(d)           There
is no action, suit or proceeding pending or, to the knowledge of DISTRIBUTOR,
threatened against DISTRIBUTOR which, if decided adversely to DISTRIBUTOR, may
prevent the consummation of the transactions contemplated by this Agreement.


10.02      Representations and
Warranties of COMPANY  –COMPANY hereby represents and warrants to
DISTRIBUTOR as follows:



 30















(a)           COMPANY is a limited
liability COMPANY duly organized, validly existing in good standing under the
laws of the State of Delaware. COMPANY has the corporate power to own
properties, to carry on its business as now being conducted by it, and to
execute, deliver and perform this Agreement.


(b)           This
Agreement is, when executed and delivered by COMPANY and DISTRIBUTOR, the valid
and binding obligation of COMPANY enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors’ rights
generally, and further subject to general equity principles.


(c)           The
execution, delivery and performance by COMPANY of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
violate, conflict with, result in a breach or termination of, or constitute a
default under (or an event which with due notice or lapse of time, or both,
would constitute a breach of or default under), (i) the certificate of
formation or operating agreement, as amended to date, of COMPANY, (ii) any
judgment, order, decree, ruling or injunction applicable to COMPANY, or (iii)
any contract or agreement between COMPANY and any third party.


(d)           There
is no action, suit or proceeding pending or, to the knowledge of COMPANY,
threatened against COMPANY which, if decided adversely to COMPANY, may prevent
the consummation of the transactions contemplated by this Agreement.


(e)           The
details of the purchasing arrangement, including the purchase and resale of
products by COMPANY, have been disclosed to its Operators as required by law.


11.                               Notices
- Any notice or other communication to be given under this Agreement by one
party to the other shall be in writing and delivered by overnight messenger
service, or delivered by telecopy or facsimile transmission, or sent by United
States registered or certified mail, postage prepaid, addressed as follows:


If to DISTRIBUTOR:        Banta
Foods, Inc.


PO Box 8246


Springfield, MO 65801


Attention:  Rick Sweet


FAX:  (417) 865-7223



 31
 









If to COMPANY:              TCBY
Systems, LLC


2855 E. Cottonwood
Parkway, Suite 400


Salt Lake City, UT
84121-7050


Attention: Purchasing
Director


FAX: (801)
736-5941


or to such other addresses as may be communicated in writing by either
party to the other as provided hereunder. 
Notices shall be deemed to have been given when received.


12.                               Force Majeure - Notwithstanding any
term or provision contained in this Agreement to the contrary, it is understood
and agreed that DISTRIBUTOR will not be responsible or liable in any manner
whatsoever for the failure by it to sell and/or deliver the Products or
otherwise perform any obligation under this Agreement or otherwise, and COMPANY
will not be responsible or liable in any manner whatsoever for the failure by
it to purchase and accept, the Products, if such failure is due to fire,
strike, accident, explosion, riot, rebellion, terrorist action or threat,
flood, embargo, war, interruption or delay in transportation, epidemic,
pandemic, shortage of raw materials, acts of God or government (including, but
not limited to, laws, regulations and restrictions of all kinds), or any other
causes or contingencies of any character (other than lack of funds) beyond the
reasonable control of DISTRIBUTOR or COMPANY. 
Nothing expressed or implied in this Section 12 shall excuse the
non-performance or delay in performance of any payment obligation of the
COMPANY or DISTRIBUTOR, any affiliate or any Operator.


13.                               Relationship of Parties - This
Agreement is not intended and shall not be construed to constitute either party
as the joint venturer, partner, agent or legal representative of the
other.  Neither party has any authority,
whether express, implied, or apparent, to assume or create any obligations on
behalf of the other.


14.                               Entire
Agreement; Modifications - This Agreement and the Schedules attached
hereto and made a part hereof, constitute the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersede all prior proposals, negotiations, communications, representations,
written or oral agreements and understandings between the parties with respect
to the subject matter hereof. No modification of any term or provision of this
Agreement shall be enforceable unless embodied in a writing executed by all
parties to this Agreement.



 32
 









15.                               Severability
- The provisions of this Agreement are severable, and the invalidity or
unenforceability of any term or provision hereof shall not operate to invalidate
or render unenforceable the remaining terms and provisions which are valid and
enforceable.


16.                               Waivers
- The waiver by either party hereto of any of its rights or breaches of the
other party under this Agreement in a particular instance shall not be
construed as a waiver of the same or different rights or breaches in subsequent
instances. All remedies, rights, undertakings and obligations, hereunder shall
be cumulative and none shall operate as a limitation of any other remedy,
right, undertaking or obligation hereof.


17.                               Assignment:
Successors and Assigns - Except as hereinafter set forth, neither of
the parties may assign this Agreement without the prior written consent of the
other, except that either party shall have the right to assign this Agreement
to a parent, subsidiary or affiliated COMPANY, or may assign this Agreement in
conjunction with the sale or transfer of all or substantially all of its stock
or assets by way of a sale of stock or assets, a merger or other business
reorganization, without the prior consent of the other party; provided,
however, that any such assignment shall not relieve the assigning party from
any liability or obligation under this Agreement that accrues prior to the
assignment and notice thereof to the other party and provided further, that in
the event of a transfer of all or substantially all of the stock or assets of a
party or merger or other business reorganization, the surviving entity or
transferee is at least as financially strong as the assigning or original
party.  The assigning party shall give
notice of such assignment to the other party. The provisions of this Agreement
will be binding upon and will inure to the benefit of the parties and their
respective successors and assigns. 
DISTRIBUTOR may assign its accounts receivables, and related contract
rights, in connection with its accounts receivable financing and
securitization.


18.                               No
Offer - The submission by DISTRIBUTOR to COMPANY of this Agreement
shall have no binding force or effect, shall not constitute an offer to sell
the Products, nor confer any right or impose any obligation upon either party
until executed by both parties.


19.                               Confidentiality
- Any proprietary information supplied by either party to the other party
(whether set forth in writing, on any data base or in any other medium),
including, but not limited to information on customer and supplier identity or
any other customer or supplier information, purchasing volumes and history,
pricing, purchasing specifications, and product market results (the “Confidential
Information”), is and shall remain confidential and proprietary information of
the disclosing party, and valuable trade secrets owned solely by the disclosing
party. The recipient party of any Confidential Information shall not disclose
any such Confidential Information to any third person or entity without the
prior written consent of the disclosing party in every instance, and shall not
use any such Confidential Information, nor permit



 33
 









any such Confidential Information to be used, for any reason other than
to fulfill the terms of this Agreement; provided, however, that either party
and its respective successors and assigns may (i) disclose any Confidential
Information to the extent compelled by law, regulation, rule, subpoena, or other
process of law and (ii) provide invoices, and any information relating to
historical payments or payments due or to become due from franchisees or
Operators hereunder to its auditors and legal counsel, and to present and
potential financing sources and rating agencies and their respective auditors
and legal counsel). The parties’ obligations under this Section 19 shall not
apply to any of the Confidential Information delivered or made available to
them by the other party which the recipient of the Confidential Information can
reasonably establish (a) was known to the recipient party at the time the
Confidential Information was disclosed or made available to the recipient
party; (b) was known to the public at the time the Confidential Information was
disclosed or made available to the recipient party; (c) becomes known to the
public after the date the Confidential Information was disclosed or made
available to the recipient party through no fault or breach of this Section 19
by the recipient party; (d) is given to or made available to the recipient
party by a third party who has a lawful right to disclose the Confidential
Information to the recipient party; or, (e) is independently developed by the
Recipient party without reference to the Confidential Information.


20.                               Arbitration
- All actions, disputes, claims or controversy with the exception of seeking an
injunction, now existing or hereafter arising between DISTRIBUTOR and COMPANY,
including, but not limited to any action, dispute, claim or controversy arising
out of this Agreement or the delivery by DISTRIBUTOR of any Products to COMPANY
(a “Dispute”) shall be resolved by binding arbitration in Salt Lake City, Utah,
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association and, to the maximum extent applicable, the Federal Arbitration
Act.  Arbitrations shall be conducted
before one arbitrator mutually agreeable to COMPANY and DISTRIBUTOR.  If the parties cannot agree on an arbitrator
within thirty (30) days after the request for an arbitration, then each
party will select an arbitrator and the two arbitrators will select a third who
shall act as the sole arbitrator of the dispute.  Judgment on any award rendered by an
arbitrator may be entered in any court having jurisdiction.  All fees of the arbitrator and other costs
and expenses of the arbitration shall be paid by DISTRIBUTOR and COMPANY
equally unless otherwise awarded by the arbitrator.  Disputes between DISTRIBUTOR and any Operator
other than COMPANY shall not be subject to arbitration under this section 20.


21.                               Governing Law- This Agreement shall be
deemed executed in Springfield, Missouri and shall be governed by the construed
in accordance with the laws of the State of Missouri as applicable therein.


22.                             Miscellaneous - The
section and paragraph headings contained in this Agreement are for reference
only and shall not be considered as substantial parts of this Agreement. The
use of the singular or plural from in



 34
 









this Agreement shall include the other form and the use of the
masculine, feminine or neuter gender shall include the other gender.


23.                               Counterparts;
Facsimile- This agreement may be executed in one or more counterparts,
each of which shall constitute an original but all of which, when taken
together, shall constitute but one agreement binding on all parties hereto,
notwithstanding that all of the parties are not signatory to an original or
same counterpart.  The parties may
execute and deliver this Agreement by facsimile transmission.


 


[Remainder
of page intentionally blank.  Signature
page and Schedules follow.]



 35
 









IN
WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officers on the
day and year first above written.


	
  TCBY SYSTEMS, LLC

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Michael Ward

  	
   

  
	
   

  
	
  Its: Executive
  VP, Chief Legal Officer

  
	
   

  
	
   

  
	
  BANTA FOODS,
  INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Joe Manlove

  	
   

  
	
   

  
	
  Its: Major
  Account Sales

  
				



 



 36
 









SCHEDULE
1

BANTA FOODS DISTRIBUTION
AGREEMENT


Product
Categories


Frozen Yogurts- Soft Serve and Hand Dipped


Hand Dipped Yogurts


Yogurt Cakes and Pies


Confectionary Fruits, Nuts, Toppings and Cones


Miscellaneous Dessert Items


Snacks


Beverages including Fountain Syrup


Packaging & Paper Items


Cleaning Supplies


Miscellaneous Items-as
agreed to by and between Company and Distributor



 37
 









Schedule 2


Map consisting
depiction of Territory



 38
 









Schedule 3


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have been filed separately with the
SEC]



 39
 









Schedule 4


Product Listing


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have been filed separately with the
SEC]



 40
 









Schedule 5


Jackson, MS Inbound Quantity Matrix


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have been filed separately with the
SEC]



 41
 









Schedule 6


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have been filed separately with the
SEC]



 42
 









Schedule 7


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have been filed separately with the
SEC]



 43