**Exhibit10.71**

**TCBYSYSTEMS, LLC**

**DistributionService Agreement**

**withKaleel Brothers, Inc.**

**March 1, 2006**

1

----

**DISTRIBUTIONAGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 1st day of March, 2006, by and between **TCBY Systems, LLC,** a Delaware limited liabilitycompany (“COMPANY”) and **Kaleel Bros, INC.,**anOhio Corporation (“DISTRIBUTOR”). DISTRIBUTOR will commence distributionservices under this Agreement on March 6, 2006 (the “Effective Date”) unlessotherwise mutually agreed upon by the parties.

**RECITALS**

**A**.                                    TheCOMPANY is engaged in the worldwide business of franchising or licensing retailTCBY Stores and other related concepts (“Franchised Stores”).  COMPANY also has several COMPANY-owned storesthat it supports directly (“Company Stores”). The Franchised Stores and or individual franchisees (the “Franchisees”)function as independent companies and are individually and solely responsiblefor the activities at each location, including purchasing needed products andsupplies, which includes responsibility for purchasing from DISTRIBUTOR.  COMPANY is responsible for activities at itsCompany Stores.  Company Stores andFranchised Stores are jointly referred to herein as “Stores”, the Franchiseesand individuals responsible for Company Stores are jointly referred to as (“Operators”)and the combined efforts of the COMPANY and its Franchisees is referred to asthe “System”.  COMPANY takes steps toassist Stores to meet its purchasing needs and has the right to designatedistributors and suppliers for the System.

**B.****                                   **TheDISTRIBUTOR is engaged in the business of purchasing, selling, distributing anddelivering food service products (including the Products, as definedbelow).  In connection therewith, theDISTRIBUTOR manages, controls, prepares and furnishes reports to its customersconcerning the inventories of products and supplies the DISTRIBUTOR purchases,manages and controls for sale, distribution and delivery to its customers.

C.                                     COMPANYwishes to appoint DISTRIBUTOR as a distributor of certain approved proprietaryfood and related products to the Stores located within the Territory (asdefined below), and DISTRIBUTOR wishes to accept such appointment, all on theterms and conditions hereinafter set forth.

2

----

# **AGREEMENT**

**NOW, THEREFORE,**inconsideration of the mutual covenants herein set forth and other good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties agree as follows:

**1.****                                      Appointment**- Subject to all terms and conditions of this Agreement, COMPANY hereby appointsDISTRIBUTOR as a distributor of the products within the product categorieslisted in **Schedule 1**(the “Products”),to the Stores in the territory serviced by DISTRIBUTOR’s distribution centerlocated in Youngstown, Ohio (the “Territory” as reflected in the maps depictedin **Schedule 2**) and DISTRIBUTOR hereby accepts suchappointment. To the extent that conflicts arise between the maps and theTerritory description in **Schedule 2**,the maps shall prevail.  Subject toSection 2.02, COMPANY may appoint DISTRIBUTOR as a distributor of Products toStores outside of the Territory and DISTRIBUTOR may agree to such designation.

**2.****             Distribution ofProducts**

**2.01****                        Products-**DISTRIBUTOR will maintain in its inventory of Products the following: (i)Products designated by COMPANY that contain the proprietary trademarks, servicemarks, logos or labels of COMPANY or any of its affiliates or that are madepursuant to specifications provided by COMPANY, its affiliates, or licensorsfor limited distribution to Operators (defined below) or other entitieslicensed by COMPANY, its affiliates or licensors (“TCBY Branded Products”), and(ii) other supplies or other national or regional branded Products designatedor contracted for by COMPANY to be maintained in inventory by DISTRIBUTOR fordistribution 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 itsinventory non-proprietary Products which DISTRIBUTOR stocks in its inventoryfor sale to COMPANY, its affiliates and its Operators. DISTRIBUTOR shall not berequired to maintain more than two hundred (200) Proprietary Products ininventory at any time.  All Coca ColaProducts carried for COMPANY shall be excluded from the calculation of thenumber of Proprietary Products.

**2.02****                        ApprovedOperators -**DISTRIBUTOR shall sell and deliver to Franchisees andOperators of Stores approved by COMPANY and located within the Territory suchquantities of the Products (subject to minimum Product order requirements) asthe Operators may order from time to time during the term of this Agreement.DISTRIBUTOR shall cease selling TCBY Branded Products to any Operator not laterthan three (3) days following receipt of written notice from COMPANY 

3

----

advising DISTRIBUTOR that such Operator is no longer approved byCOMPANY and shall, within such timeframe, further cease selling, under theterms of any supplier agreement negotiated by COMPANY, all Proprietary Productsto such Operators referenced in such notice. In addition, DISTRIBUTOR shallhave the right to cease the sale and distribution of Products to any Operator(a) who is in default of its obligations to DISTRIBUTOR, provided thatDISTRIBUTOR has given COMPANY at least three (3) business days notice of suchdefault before ceasing deliveries to such Operator, or (b) who has filed avoluntary petition in bankruptcy or under any other similar insolvency ordebtor relief law or who has had such a petition filed against it, or who hasmade a general assignment for the benefit of its creditors. COMPANY shall alsohave the right to reinstate delivery to any Operator that COMPANY previouslystopped selling by providing written notice to DISTRIBUTOR and DISTRIBUTORshall provide such delivery as soon as mutually agreed between the parties.

A list of the present Operators with Stores locatedwithin the Territory and approved by COMPANY and their respective Storeslocations is attached hereto as **Schedule 3**.  During the term of this Agreement, COMPANYshall maintain and provide to DISTRIBUTOR a current list of all Operators withStores within the Territory who have been approved by COMPANY for distributionof the Products under this Agreement. DISTRIBUTOR shall have the right to relyupon such list, as amended or modified by COMPANY in writing from time to time,in performing its obligations under this Agreement. COMPANY shall notifyDISTRIBUTOR of new Stores within the Territory not less than seven (7) daysprior 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 mutuallyagree in writing, DISTRIBUTOR shall provide distribution services to Storeslocated outside the Territory, as designated by COMPANY.

COMPANY represents and warrants that the terms of thisAgreement, as and if amended in the manner permitted under this Agreement, arebinding upon and shall govern DISTRIBUTOR and COMPANY’s obligations withrespect to distribution services performed by DISTRIBUTOR hereunder and thateach Franchisee that is an owner or operator of a Franchised Store within theSystem shall be bound by the terms of this Agreement, as it may hereafter beamended, upon such Operator’s purchase of Proprietary Products fromDISTRIBUTOR.

**2.02****                        ProductOrders -**All Product orders shall be submitted by the Operators toDISTRIBUTOR and shall specify the location of the Operator’s Stores, the typeof Product, and the quantity desired. Operators may place orders electronically (“Electronic Orders”) or bytelephoning or faxing DISTRIBUTOR’s customer service center in accordance withthe guidelines detailed below. All shipment expenses from DISTRIBUTOR’sdistribution center to the Operator’s location shall be 

4

----

at DISTRIBUTOR’s expense unless otherwise notedelsewhere in this Agreement. Product order guides will be provided byDISTRIBUTOR to the Operators monthly via DISTRIBUTOR’s website and with a hardcopy delivered to each Store, with availability of such order guides to be madeprior to the beginning of the month, but only after review and approval of theorder guide by COMPANY. The order guides will be organized by Productcategories and will include, among other things, the Product Sell Price (asdefined herein), Product units and new Products. DISTRIBUTOR will assign oneproduct code number to each stock-keeping unit (“SKU”) of each Product, whichwill be common throughout its entire distribution system and will be used onall documents such as order guides, invoices, monthly reports, etc. SKU’s, and,accordingly, the assigned product code number, must differ for equivalentProducts supplied by different suppliers. Only Products approved for sale toits Operators by the COMPANY will be listed on this order guide. ElectronicOrders will be placed via telephone modem or internet using DISTRIBUTOR’sautomated order entry system.  All ordersare subject to the standard order cut-off time of 4:00 p.m. two (2) days priorto their scheduled delivery day. Operators will be notified prior to the time of final order cut-off if aproduct is expected to be out of stock so that an alternative may be ordered,subject to the provisions of Section 3.02. Operators will have until 5:00 p.m, one (1) day before their ordershipping day to modify or add-on to their order (Friday at 5:00 p.m. for Storeswhose deliveries will leave DISTRIBUTOR’s facility on Monday).  Where reasonably possible, DISTRIBUTOR willschedule ordering days and delivery days that are mutually agreed upon by andbetween DISTRIBUTOR and each Operator and will provide notice to the affectedOperator of at least fourteen (14) days before routing changes. Whereverreasonably possible, DISTRIBUTOR will include no more than three (3) “skip days”between the date of order and date of delivery. For example, orders scheduledfor delivery on Friday will be placed no earlier than Monday. Orders scheduledfor delivery on Tuesday will be placed on Friday. In the event DISTRIBUTOR mustinclude more than four (4) “skip days” between the date of order and date ofdelivery it will notify COMPANY in advance. In no event will there ever be more than four (4) “skip days” permittedwithout the prior written approval of COMPANY. DISTRIBUTOR may scheduledeliveries on any day of the week.  On anexception basis, DISTRIBUTOR will consider shortening the permissible timeframes for scheduled deliveries for those Operators that, given unique andcompelling business needs, require the same. Operator will be notified of any Product shortages at the time of orderplacement or, in the case of an Electronic Order, one (1) day prior to theloading of the delivery truck.

**2.04****                       Deliveries.**    Delivery vehicles used by DISTRIBUTOR willonly display the marks of DISTRIBUTOR, except for locations that cannotaccommodate delivery by DISTRIBUTOR’S existing tractor trailers or in theinstances where recovery deliveries are made by outside services or DISTRIBUTORhas the need for temporary short term rental equipment.

5

----

Commencing ninety (90) days after the Effective Date, DISTRIBUTORagrees that at an overall average of 75% of all regularly scheduled deliverieswill be made within a four (4) hour window, meaning no earlier than two (2)hours before and no later than two (2) hours after the scheduled delivery time.If a delivery is anticipated to fall outside of this four (4) hour window,DISTRIBUTOR will immediately notify the Operator. DISTRIBUTOR will provide aninside delivery to each Operator in accordance with Company’s temperature storerequirements as detailed in Section 4.09, placing refrigerated and frozenProducts into their appropriate storage areas, but will not be responsible forstocking shelves or rotating inventories.

All invoices for deliveries made during Store’s business hours will besigned for by the Store’s store manager or other representative prior toDISTRIBUTOR’s driver leaving the Store (provided that the driver is notunreasonably delayed).  Copies ofinvoices for deliveries made after the Store’s regular business hours will beleft at the Store.

The COMPANY agrees to use its commercially reasonableefforts to cause Operators to provide keys and security codes for nightdeliveries where necessary.  In the eventOperator refuses to provide keys and security codes, Operator will promptlymeet the delivery driver at the scheduled appointment time or at such othertime as Operator has been notified in the event of a late delivery.  If the Operator fails to meet the DISTRIBUTORdelivery at the appropriate time on more than one occasion, the Operator shall beresponsible for payment of a penalty fee to DISTRIBUTOR for subsequentoccurrences.  The penalty fee will bedetermined via mutual agreement between DISTRIBUTOR and COMPANY.  In the event of a Product shortage ordelivery problem that occurs during an unattended delivery, the authorizedrepresentative of the Stores will contact the distribution center no later thanthe first Notification Deadline following such unattended delivery.  The “Notification Deadline” is the earlier of12:00 p.m. local time or one hour after the normal Store opening time each dayfor the affected Stores.

**2.05****                        Delivery Frequency/Routing -**DISTRIBUTOR will provide eachOperator with a minimum delivery frequency based on annual case volume as shownbelow as long as the Operator meets the minimum order requirements set forth inSection 5 hereof:

|                           | ** ** | **Delivery Frequency** |
|---------------------------|------------|------------------------|
| **Annual Case  Volume**   | ** ** | **Summer Routing**     | ** ** | **Winter Routing** |
| Less than 1,000  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 |

 

6

----

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

In the event an emergency delivery is required based upon the Operator’sneeds and not due to a delivery error by DISTRIBUTOR nor during the timeperiods specified in Section 2.08, DISTRIBUTOR will accommodate the Operator’srequest with the most efficient available delivery method. All additionalfreight expense will be at the Operator’s expense and will be billed uponDISTRIBUTOR’s receipt of the invoice from the shipping agent. If DISTRIBUTOR isable to schedule such an emergency delivery in conjunction with a nearby route,the additional freight expense will be **[CONFIDENTIAL](1)**.  Where possible, a store may order up to **[CONFIDENTIAL](2)** cases to be delivered to a nearby store,on that store’s delivery day (and with that store’s consent) without anadditional charge.  Products delivered toa nearby store will be billed on a separate invoice.

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

DISTRIBUTOR will arrange its routes to insure that itsdelivery trucks will be in all markets (SMSA’s of at least 250,000 population)within each Territory at least once a week where at least twenty-five (25)Stores serviced by DISTRIBUTOR under this Agreement are located.

**2.06****                        Special Deliveries During Roll-Out and NewOperator Openings -**DISTRIBUTORand COMPANY recognize that during the initial roll-out phase of the DISTRIBUTORdistribution program, many new processes will be in place for each of COMPANY,the Operators and 

----

(1)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(2)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

7

----

DISTRIBUTOR, including changes in the way theOperators order, the distance from the DISTRIBUTOR distribution center to theOperators, and lead times from order day to delivery day for the Operators.Therefore, DISTRIBUTOR will work diligently with COMPANY and Operator toprocess emergency orders for all Stores for the first thirty (30) daysfollowing the commencement of distribution service at no additional charge fromDISTRIBUTOR, subject to the minimum order requirements and applicable handlingfees, if any, as set forth in Section 5 of this Agreement and any chargesincurred from a 3rd party which will be paid by Operator.  In addition, during the term of thisAgreement, DISTRIBUTOR will also work diligently with COMPANY and Operator toprocess emergency orders for all Operators’ newly added Stores within the firstthirty (30) days following the opening of the new Stores, subject only tominimum order requirements and applicable handling fees, if any, as set forthin Section 5 of this Agreement and any charges incurred from a 3rd party which will be paid by Operator.

**2.07****                        Returnof Products/Credits** —Any Products ordered by Operators which arereturned to DISTRIBUTOR for any reason must be returned no later than the nextregularly scheduled delivery (except that, in the case of Products to bereturned as a result of concealed damage, within the remaining shelf life ofsuch Products) and all claims for Products to be returned must be made eitherto the driver upon check-in of the order, by telephone by the earlier of 12p.m. or one hour after the normal Store opening on the day of deliveryfollowing receipt of the Products if an unattended delivery or, in the case ofconcealed damage, within twenty-four (24) hours of discovery of concealeddamage by the Operator.  For attendeddeliveries, all cakes and pies must be inspected at the time of delivery byOperator.  DISTRIBUTOR will not beobligated to issue subsequent credits for cakes and pies for such attendeddeliveries unless reimbursed by the supplier. All returned items must be in unmarked original packaging and must be insuitable condition for resale (unless damaged or mis-marked Product was thereason for the return). Subject to the foregoing, DISTRIBUTOR shall providecredit to the affected Operator for defective, shorted or damaged Productswithin twenty-four (24) hours of the driver’s return if brought to the driver’sattention 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, shortedor defective Products (or receipt of product, if warranted) and willimmediately provide documentation on its website for Operator of such credit ifthe original order was placed electronically or via fax or phone if the orderwas placed in some other manner. Notwithstanding the foregoing, no returns will be permitted for cooleror freezer items, or fresh produce due to misorder by the Operator.  Products refused by Operator at time ofdelivery for reasons other than damage, DISTRIBUTOR error or remaining shelflife below agreed upon parameters will be subject to a **[CONFIDENTIAL](3)**restocking charge to be paid by Operator. In the event that the 

----

(3)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

8

----

shorted, defective or damaged Product is a Kill Item, then DISTRIBUTORwill remedy the situation in accordance with Section 3.02.

**2.08****                        LimitedTime Offers (“LTO’s”) -**In order to allow DISTRIBUTOR to maintainservice levels to the Operators, COMPANY will provide DISTRIBUTOR with at leasttwenty-eight (28) days prior written notice of any and all LTO’s to be run byCOMPANY (subject to availability of LTO Products from the supplier within thetwenty-eight (28) day period). Such written notices shall include estimatedusage for the Products to be promoted if such usage is expected to deviatematerially from historical levels or if a new Product. Subject to the above,DISTRIBUTOR agrees to stock sufficient inventory for any new ProprietaryProducts to be used in national LTO promotions and other key items, asreasonably requested by COMPANY.  Unlessretained on the Operator’s menu at the instruction of the COMPANY or mutuallyagreed to between COMPANY and DISTRIBUTOR, all LTO Products must be removedfrom the DISTRIBUTOR distribution centers no later than sixty (60) days afterthe completion of the LTO and COMPANY shall purchase all remaining inventory ofsuch LTO as provided in Section 3.02. The sale of LTO Products by DISTRIBUTORis final and LTO Products may not be returned to DISTRIBUTOR, unless the returnis necessitated due to a DISTRIBUTOR error or due to Product damage not causedby the Operator.

**3.****             Suppliers ofProducts; Inventory of Products.**

**3.01****                        Suppliers/ContractedProducts -**The Proprietary Products to be distributed to the Operatorsunder the terms and conditions of this Agreement shall be purchased byDISTRIBUTOR, on its own account, from the suppliers (including COMPANY)selected by COMPANY, pursuant to terms and conditions as are agreed upon by andbetween DISTRIBUTOR and such suppliers (including COMPANY). In the eventCOMPANY enters into direct contracts with suppliers, the terms and conditionsof such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTORfor its business and legal review and, if the business and legal terms of theproposed contract that apply to DISTRIBUTOR are reasonably acceptable to DISTRIBUTOR,DISTRIBUTOR will approve the supplier contract. The guaranteed supplier priceprovided under such supplier contract (net of billbacks by DISTRIBUTOR, ifany), plus applicable freight if the supplier price is not a delivered price,plus **[CONFIDENTIAL](4)** if any, attributableto the Product, plus **[CONFIDENTIAL](5)**,if any, attributable to the Product, plus any applicable Sourcing Fees (definedbelow) shall be the “Cost” of the Product. Products governed by such 

----

(4)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(5)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

 

9

----

supplier contracts negotiated by COMPANY are referred to herein as “ContractedProducts.” The freight charges for Contracted Products will be an amountnegotiated with the supplier by COMPANY. DISTRIBUTOR agrees that Cost for any Contracted Products will notinclude any unloading costs for palletized and slipsheet loads.

**3.02****                        Inventory**- During the term of this Agreement, DISTRIBUTOR shall maintain an inventory ofthe Products in quantities necessary to provide the Operators with an adequate supplyof such Products based upon initial usage projections by COMPANY, futurehistorical usage of such Products by the Operators, and the fill rateperformance requirements detailed below. DISTRIBUTOR agrees to work withCOMPANY, to attempt to maximize the quantities of Products purchased toefficiently reduce the cost of Products purchased, and to maximize Productinventory turns. In addition, DISTRIBUTOR agrees to order Products in thequantities indicated on the inbound quantity matrix attached hereto as **Schedule 5,**as amended by COMPANY toreflect the growth in the number of Stores serviced by DISTRIBUTOR in theTerritory from time to time. To further insure DISTRIBUTOR’s ability to complywith the performance requirements detailed later in this Section 3.02,DISTRIBUTOR will also maintain at each distribution center servicing Operators “safetystock” of not less than **[CONFIDENTIAL](6)**dayshistorical usage for all Proprietary Products and will also have an additional **[CONFIDENTIAL](7)** days historical usage of white chocolatemousse, chocolate and vanilla frozen yogurt on the road at all times.DISTRIBUTOR agrees that all Products delivered to Operators will have at leastone-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 (“KillItems”), which Kill Items will not number more than **[CONFIDENTIAL](8)**at any time, excluding beverage Products and LTO items. COMPANY will provide alist of Kill Items and other Proprietary Products to DISTRIBUTOR, which listwill be updated by COMPANY from time-to-time. The initial list of Kill Items is attached as **Schedule 4**.

Other ProprietaryProducts that can be substituted in an emergency.

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

----

(6)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(7)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(8)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

10

----

DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnightemergency delivery, if requested, an overall aggregate “fill rate” for allProducts of **[CONFIDENTIAL](9)**, and at least **[CONFIDENTIAL](10)** of all invoices issued by DISTRIBUTOR tothe Operators will be completely accurate at the time of initial issuance, withall of the above measured quarterly.  The“fill rate” equals the percentage of Products or Kill Items, as the case maybe, obtained by dividing the total number of Products or Kill Items shipped byDISTRIBUTOR and received by the Operators at the time of delivery for themonth, by the total number of Product or Kill Items ordered by the Operatorsfrom the DISTRIBUTOR for that same month. All fill rate measurements (and invoice accuracy requirements) will benet of supplier-related issues such as shortages and delayed deliveries toDISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event ofsupplier 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 absorbsuch expense, such delivery costs shall be paid by the Operator providedDISTRIBUTOR has notified COMPANY immediately in the event of suchnon-performance and Operator has approved the additional expense inadvance.   If the emergency delivery isdue to DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in asefficient manner as possible, which may include emergency deliveries andspecial freight shipments, at DISTRIBUTOR’S sole expense. If the emergencydelivery is due to Operator error, the Operator shall pay delivery costs forsuch emergency delivery.  From the momentof receipt of the Products for storage by DISTRIBUTOR until the Products havebeen accepted by Operator at the Store, DISTRIBUTOR assumes all risk of loss ordamage with respect thereto, shall be directly liable to COMPANY for any suchloss or damage to the Products and the related costs and expenses for replacingthe Products and agrees to obtain and maintain adequate insurance coverage toinsure against such loss or damage.

In the event of substitution of a Proprietary Product, the substitutedProduct must have been previously approved by COMPANY in writing and, if theneed for substitution was caused due to DISTRIBUTOR error, the price of thesubstituted Product will be determined based on the lower of the Cost (ashereinafter defined) of the substituted Product or the Cost of the out-of-stockProduct that it replaces.  In addition,DISTRIBUTOR will reimburse COMPANY to the extent that COMPANY would haverealized a difference between its selling price to DISTRIBUTOR and the amountthat 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 toDISTRIBUTOR copies of invoices and other documentation reasonably necessary toverify the amount of the difference claimed by COMPANY.  If substitution is due to supplier (including

----

(9)                          Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(10)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

 

11

----

COMPANY) error, then COMPANY shall cause supplier to, or if COMPANY isthe supplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable losses sustaineddue to such error.

To the extent that DISTRIBUTOR is unable to sell to the Operatorsquantities of the Proprietary Products in DISTRIBUTOR’s inventory for anyreason whatsoever, including, but not limited to, Product discontinuation,slow-moving inventory, unused LTO Products, promotional or seasonal Products orexceeded shelf life due to sudden decline in Product movement and not due toDISTRIBUTOR 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 DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling andcarrying charges, if properly approved by COMPANY in advance as outlinedbelow.  In such event, COMPANY willpurchase or cause to be purchased all perishable Proprietary Products within **[CONFIDENTIAL](11)** days after notice from DISTRIBUTOR or bythe expiration date of the Proprietary Products, whichever is earlier, and allnonperishable Proprietary Products within **[CONFIDENTIAL](12)**days after notice from DISTRIBUTOR.  Inaddition, if the inventory re-purchase is necessitated for any reason otherthan DISTRIBUTOR error, COMPANY shall reimburse to DISTRIBUTOR all reasonableout-of-pocket costs and expenses (not to exceed an amount equal to ten percent(10%) of the Product’s Cost unless DISTRIBUTOR receives COMPANY’S prior writtenconsent) incurred by DISTRIBUTOR in selling, returning or otherwise disposingof such Products.  DISTRIBUTOR shallprovide COMPANY with documentation or other proof that any such costs andexpenses were incurred by DISTRIBUTOR. In order to allow COMPANY to monitor the supply and usage of theProprietary Products, DISTRIBUTOR shall provide to COMPANY a monthly obsoleteand slow-moving inventory report.

**3.03****                        AgedInventory Notification-**DISTRIBUTOR will immediately notify COMPANY inwriting in the event that any quantities of its Proprietary Products are within**[CONFIDENTIAL](13)**days of expiration ofproduct life.  If DISTRIBUTOR fails to doso, COMPANY shall not be required to comply with the requirements set forth inSection 3.02.

**3.04****                        PresentDISTRIBUTOR’s Inventory** - DISTRIBUTOR agrees to purchase the existingmerchantable and saleable inventory of Proprietary Products from COMPANY’Spresent distributor located in Swedesboro, New Jersey and Columbus, Ohio and inquantities not to 

----

(11)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(12)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(13)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

 

12

----

exceed a **[CONFIDENTIAL](14)** supply of suchProducts, in the aggregate for each location listed above, provided thatDISTRIBUTOR and COMPANY have been given an opportunity by the presentdistributor to inspect any such Product prior to purchase pursuant to thisSection 3.04.   DISTRIBUTOR will pay, viacheck, the present distributor for Products purchased from it, within **[CONFIDENTIAL](15)** days of the later of DISTRIBUTOR’Sreceipt of the Products or the receipt of the invoice approved by COMPANY forthe Products.   DISTRIBUTOR shall beresponsible for all freight and unloading costs associated with transportingsuch inventory from the existing DISTRIBUTOR’s locations listed above.DISTRIBUTOR will not be responsible for any handling or other fees charged bythe current distributor in connection with DISTRIBUTOR’s loading andtransferring of such inventory. COMPANY and the current distributor will berequired to provide all reasonable assistance and cooperation to DISTRIBUTOR inconnection with the purchase, loading and transportation of such inventory fromthe current distributor to the DISTRIBUTOR distribution center, including thescheduling of mutually agreeable inventory inspection and pick-up times.

In the event that the Cost of the Product, as purchasedfrom the existing distributor, exceeds or is less than the Cost thatDISTRIBUTOR would otherwise utilize in determining the Sell Price for suchProducts obtained through suppliers, including COMPANY, DISTRIBUTOR shallutilize the Cost designated by COMPANY in determining the Sell Price and shallinvoice, pay to COMPANY or charge the Operator, as directed by the COMPANY, inthe amount of the difference.  In theevent COMPANY directs DISTRIBUTOR to invoice the COMPANY, COMPANY shall paysuch invoiced amount, via check, so that it is received by DISTRIBUTOR within **[CONFIDENTIAL](16)** days of the date of the invoice.  In the case of a rebate to COMPANY,DISTRIBUTOR shall pay the rebated amount within **[CONFIDENTIAL](17)**days of its determination of the amount to be rebated.

**4.****             Sell Price/PaymentTerms/Financial Reporting**

**4.01****                        SellPrice -**Beginning on the Effective Date and throughout the entire termof this Agreement, the maximum purchase price at which DISTRIBUTOR shall sellthe Products, (the “Sell Price”), to the Operators shall be determined byadding the “Cost” (as hereinafter defined) of the Product plus **[CONFIDENTIAL](18)** per case for all deliveries(collectively, “Markup”), subject to the other provisions of thisAgreement.  For purposes of this Agreement,the “Cost” of a Product 

----

(14)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(15)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(16)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(17)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(18)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

13

----

other than a Contracted Product shall be the sum of(a) the cost of the Product as shown on the invoices to DISTRIBUTOR from therespective supplier, including COMPANY, plus (b) if the invoiced cost of theProduct is not a delivered price, the applicable freight charges related toshipping the Product from the supplier to DISTRIBUTOR’S distribution center,plus (c) the Sourcing Fees, 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 fornon-proprietary Products is not a delivered cost, means that DISTRIBUTOR hasadded a reasonable freight charge, agreed to in advance and in writing byCOMPANY for delivering such non-proprietary Products from suppliers toDISTRIBUTOR.  Applicable freight for anynon-proprietary Product will not exceed the rate charged by nationallyrecognized carriers operating in the same market for the same type of freightservice. Cost for any non-proprietary Product will not be reduced by discountsfor cash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increase Cost.The Cost of a Contracted Product shall be determined in accordance with Section3.01.  In no event will the Cost ofContracted 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 supplieror freight carriers of Contracted Products. In order to allow verification of the foregoing commitment, DISTRIBUTORagrees to provide documentation substantiating the Cost of items DISTRIBUTORpurchases from suppliers and freight carriers. DISTRIBUTOR agrees to limit its collection of such “soft money” to themanufacturers of non-proprietary Products. The Cost of Contracted Products will not be reduced by discounts forcash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increase Cost.

The invoice format to be used by DISTRIBUTOR will beapproved by COMPANY and will contain separate lines showing subtotals forvarious Product categories, the total amount of **[CONFIDENTIAL](19)**invoiced to the Operator for that particular delivery, applicable taxes, thedate of the ACH debit and other summary line items as detailed elsewhere inthis Agreement.

DISTRIBUTOR may also charge a **[CONFIDENTIAL](20)**delivery surcharge fee for each delivery made to an Operator in the states ofConnecticut, Rhode Island, Maine, Massachusetts, New Hampshire and Vermont aswell as to Operators located in the five (5) buroughs of New 

----

(19)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(20)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

14

----

York City and on Long Island, New York and the portionof Indiana west of Highways US 231/431 and south of US Highway 50.  This **[CONFIDENTIAL](21)**surcharge shall be shown as a separate line item on each applicable invoice.

Partial case shipments (also known as “splits”) shallbe permitted for the malt, maraschino cherries, chocolate sprinkles, assortedsprinkles in which individual units of such Products are separately packagedwithin each case. Notwithstanding anything else contained in this agreement tothe contrary, the Markup for the following items will be limited to **[CONFIDENTIAL](22)**: malt, maraschino cherries, mediumspoons, taster spoons, straws, water, chocolate sprinkles and assortedsprinkles.

In addition, DISTRIBUTOR agrees to reduce the Markupto each Operator any time they place an order greater than **[CONFIDENTIAL](23)**cases according to the following schedule (“Large Order Credit”):
| Order Size             | ** ** | **Large Order Credit** |
|------------------------|------------|------------------------|
| ** **             | ** ** | ** **             |
| **[CONFIDENTIAL](24)** | ** ** | ** **             |

 

This Large Order Credit shall be shown as a separateline item on the invoice.

**4.02****                        “Cost”for Contracted Products/ True-Up Methodology** – In the case ofContracted Products, COMPANY agrees to notify DISTRIBUTOR as soon as practicalafter a change in Cost has been agreed to with a supplier.  COMPANY shall have the right to adjust theMarkup for individual Products (not including the fuel surcharge or the **[CONFIDENTIAL](25)** mark-up on the items listed in Section4.01 above) from time to time to an amount that is more or less than the agreedupon Markup per case. If COMPANY exercises its right to lower DISTRIBUTOR’sMarkup on any Products, it will simultaneously and correspondingly increase theMarkup on other Products so as to provide DISTRIBUTOR continuously with anaverage overall Markup of **[CONFIDENTIAL](26)**per case, again subject to the other provisions of this Agreement. DISTRIBUTORwill provide a report by Tuesday of each week for all delivery activity of thepreceding week showing the total number of cases delivered for that week,DISTRIBUTOR’s total case fees charged, the average case fee charged and thedifference for the week and quarter-

----

(21)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(22)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(23)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(24)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(25)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(26)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

 

15

----

to-date between the total case fees charged and the product obtained bymultiplying the total number of cases delivered by the Markup.

Following each calendar quarter, DISTRIBUTOR shallprovide a cumulative report that reflects: (i) the total number of cases ofProducts delivered to the Stores under this Agreement during the precedingquarter (“x”); (ii) the total of the Sell Prices charged for all Productsdelivered to the Stores under this Agreement during the preceding quarter,excluding the effect of any Large Order Credits given Operators during thequarter (“y”), (iii) the total of the Cost of each Product delivered to theStores during such quarter (“z”), and (iv) the “Average Putative Markup” forProducts delivered to the Stores, which shall be calculated as follows:[(y-z)/x].   If the Average PutativeMarkup is less than the Markup required pursuant to Section 4.01 (and asmodified pursuant to the other provisions of this Agreement), with suchdeficiency being referred to herein as the “Markup Deficiency”, COMPANY shallremit to DISTRIBUTOR, an amount equal to the number of cases delivered to theStores under this Agreement during the preceding quarter (“x”), multiplied bythe Markup Deficiency.  If the AveragePutative Markup exceeds the Markup required pursuant to Section 4.01 (and asmodified pursuant to the other provisions of this Agreement), with such excessbeing referred to as the “Markup Excess”, DISTRIBUTOR shall remit to COMPANY anamount equal to the number of cases delivered to the Stores under thisAgreement during that quarter (“x”), multiplied by the Markup Excess.  Payments owed by either party under thisSection 4.02 shall be made by such party to the other party, via check, withinten (10) days of the determination of the amounts owed and, in any case, withinthirty (30) days following the end of the applicable calendar quarter for whichsuch payments are owed or by making adjustments to the Sell Price as mutuallyagreed upon between COMPANY and DISTRIBUTOR.

**4.03****                        FuelCost Adjustments** - If the operating costs of DISTRIBUTOR are increasedor decreased as a result of fuel cost increases or decreases, DISTRIBUTOR mayadjust the Markup (as and if otherwise adjusted pursuant to the terms of thisAgreement) for all Stores not subject to the $15 delivery surcharge describedin Section 4.01 to compensate for such fluctuations in fuel costs, on aquarterly basis. The amount of the adjustment computed in accordance with thisSection 4.03 shall also be added to or subtracted from, as applicable, thespecified price for Contracted Operator Sell Price Products described inSection 4.11.  The method for determiningthe fuel surcharge or adjustment will be made monthly beginning April 1, 2006and will be based on the U.S. Weekly Retail On-Highway diesel fuel price whichis compiled by the Energy Information Administration. The Web site to accessthis information electronically is as follows:

16

----

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 theparties will mutually agree upon an acceptable alternative source.

As fuel prices increase or decrease, the fuel cost adjustments willmove according to changes in the four or five (4 or 5) week average, asapplicable, for the U.S. fuel price bracket, and will take effect on the firstday of the calendar month following the applicable publication date.  For example, the fuel cost adjustmentbeginning the first day in July, if any, will be determined based on the fouror five (4 or 5) week average ending immediately prior to or on June 30th.

| Price Per Gallon Including  Taxes | ** ** | **Per Case Surcharge/ Credit** |
|-----------------------------------|------------|--------------------------------|
| ** **                        | ** ** | ** **                     |
| **[CONFIDENTIAL](27)**            |       |                           |

 

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL](28)**,the surcharge will equal **[CONFIDENTIAL](29)**per case plus an additional **[CONFIDENTIAL](30)**per case for each **[CONFIDENTIAL](31)**increment (or portion thereof) that the price per gallon exceeds **[CONFIDENTIAL](32)**. If the price per gallon, including taxes, falls below **[CONFIDENTIAL](33)**, a credit will be issued in the amount of**[CONFIDENTIAL](34)** per case plus anadditional **[CONFIDENTIAL](35)** per case foreach **[CONFIDENTIAL](36)** increment (orportion thereof) that the price is less than **[CONFIDENTIAL](37)**.  Any such surcharge or credit will be shown asa separate line item on the Operator’s invoice. The fuel surcharge will be 

----

(27)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(28)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(29)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(30)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(31)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(32)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(33)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(34)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(35)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(36)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(37)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

17

----

**[CONFIDENTIAL](38)**/case for alldeliveries made between the Effective Date through **[CONFIDENTIAL](39)**.

For all Stores subject to the **[CONFIDENTIAL](40)**delivery surcharge described in Section 4.01, DISTRIBUTOR will be entitled toincrease this surcharge to reflect increases in diesel fuel costs according tothe same methodology as described above, utilizing the published National fuelbracket, adjusted quarterly, except that the adjustment will be made to thedelivery surcharge itself by adding or subtracting amounts from the basic **[CONFIDENTIAL](41)** delivery surcharge according to thefollowing schedule:

Price Per Gallon Including Taxes       Adjustment to **[CONFIDENTIAL](42)** Delivery Surcharge

**[CONFIDENTIAL](43)**

Adjustments based on fuel prices above and below the range outlinedabove will be made at the rate of +/- **[CONFIDENTIAL](44)**per delivery for each ten cent increment/decrement in costs.  The initial delivery surcharge for applicableStores as described in Section 4.01 will be **[CONFIDENTIAL](45)**for all deliveries made between the Effective Date through **[CONFIDENTIAL](46)**.

**4.04****                        MarkupAdjustments due to Variances from Projections.**

The **[CONFIDENTIAL](47)** Markup during the first **[CONFIDENTIAL](48)** months after the Effective Date ispremised upon an average delivery size of **[CONFIDENTIAL](49)**cases to the Stores serviced by DISTRIBUTOR.

After the first **[CONFIDENTIAL](50)** months of service and after each **[CONFIDENTIAL](51)**

----

(38)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(39)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(40)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(41)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(42)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(43)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(44)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(45)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(46)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(47)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(48)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(49)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(50)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(51)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

18

----

month periodthereafter the Markup for the next **[CONFIDENTIAL](52)**months will be based on the actual average delivery size for the previous **[CONFIDENTIAL](53)** months according to the followingschedule:

Average DeliverySize for   

    Preceding **[CONFIDENTIAL](54)**Months     Markup forNext **[CONFIDENTIAL](55)**Months

  **[CONFIDENTIAL](56)**

The averagedelivery size will be calculated by summing up all of the cases delivered tothe Stores serviced by DISTRIBUTOR in the Territory for the previous **[CONFIDENTIAL](57)** months (with each partial case or “split”counting as a full case) and dividing the total number of cases delivered bythe total number of deliveries made by DISTRIBUTOR as modified below.  The number of deliveries made by DISTRIBUTORshall not include deliveries made by third parties arranged by DISTRIBUTOR, nordeliveries to correct errors made by DISTRIBUTOR or suppliers, nor shall itinclude deliveries for which DISTRIBUTOR has received the **[CONFIDENTIAL](58)**special delivery fee in accordance with Section 2.05.

In the event theaverage delivery size for the previous **[CONFIDENTIAL](59)**months falls outside of the ranges described above, COMPANY and DISTRIBUTORwill negotiate a new Markup for that DISTRIBUTOR facility in good faith.  In the event COMPANY and DISTRIBUTOR fail toagree on such a Markup adjustment within **[CONFIDENTIAL](60)**days after the commencement of negotiations under this Section 4.04, then bothCOMPANY and DISTRIBUTOR will have the right to terminate this Agreement with **[CONFIDENTIAL](61)** days written notice to the other party inaccordance with Section 6.02 (b)(ii).

----

(52)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(53)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(54)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(55)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(56)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(57)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(58)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(59)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(60)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(61)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

 

19

----

**4.05****                        PaymentTerms/Markup Adjustments due to Payment Methodology**

(a)          Standard PaymentTerms.  Except as noted below,DISTRIBUTOR and COMPANY have agreed that payments to DISTRIBUTOR for Productsdelivered to the Operators (including Contract Feeders as defined below) shallbe received by ACH debit entry initiated by DISTRIBUTOR, so that the amount iscredited to DISTRIBUTOR’s account on Friday of each week for all deliveriesmade for the prior week and no Operator will be charged sooner than **[CONFIDENTIAL](62)** days after the date of delivery.  Operator’s who receive deliveries on Saturdayor Sunday will have their debit entry initiated by DISTRIBUTOR on the Friday **[CONFIDENTIAL](63)** and **[CONFIDENTIAL](64)**days, respectively, following such delivery.  DISTRIBUTOR may also accept payment by check if so requested by Operatorand approved by DISTRIBUTOR.  All newOperators will initially receive credit terms of **[CONFIDENTIAL](65)**days, 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 thoseOperators that are creditworthy as shall have been solely determined byDISTRIBUTOR. DISTRIBUTOR may, in its sole discretion, provide alternate paymentterms to those Operators not meeting DISTRIBUTOR’s standards forcreditworthiness.  DISTRIBUTOR willprovide email or fax notice to each Operator on Monday of each week of theamount of the ACH debit entry to take place that following Friday along withthe invoice number and any credits posted during the prior **[CONFIDENTIAL](66)**days.

Notwithstanding the foregoing, DISTRIBUTOR agrees to provide extendedcredit terms to Operators performing as Contract Feeders (as defined below) innon-traditional locations provided that they satisfy DISTRIBUTOR’s creditcriteria for such terms, as such criteria is uniformly applied among allsimilarly situated Operators in light of all relevant facts and circumstances.Payment terms will be extended only to those Operators that are creditworthy asshall have been solely determined by DISTRIBUTOR. DISTRIBUTOR may, in its solediscretion, provide alternate payment terms to those Operators not meetingDISTRIBUTOR’s standards for creditworthiness. To qualify for such credit terms,each location operated by a Contract Feeder in the Territory must be approvedby COMPANY in writing and the Contract Feeder must comply with these extendedcredit terms.  “Contract Feeders” areOperators who operate non-traditional food 

----

(62)                    Confidential treatmenthas been requested for the redacted portion. The confidential, redacted portions have been filed separately with theSEC.

(63)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(64)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(65)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(66)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

20

----

service locations in facilities such as airports, sports facilities,travel plazas, universities, tech centers, etc.

(b)                                 NoSet-Off/Late Fees/Collection Costs. No deductions or set offs from payments due to DISTRIBUTOR may be madeby Operators for any reason without the prior written authorization ofDISTRIBUTOR.  Failure of the Operator tomake any payment required when due shall result in DISTRIBUTOR having the rightto impose more stringent credit or payment terms, such as, without limitation, cashin advance, cash on delivery, delivery of acceptable letters of credit or thirdparty 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 dueand payable. The COMPANY shall pay, and shall use its commercially reasonableefforts to cause each Operator to pay, all reasonable costs of collection,including reasonable attorneys fees incurred or paid by DISTRIBUTOR, but onlyto the extent related to their respective accounts. DISTRIBUTOR will have theright to charge interest at the maximum rate permitted by law but not exceeding**[CONFIDENTIAL](67)** percent per month onall unpaid amounts due or owing by Operators and/or COMPANY to DISTRIBUTOR.

(c)                                  COMPANY’SLiability for Payments. COMPANY agrees that it shall be liable for allliabilities of COMPANY expressly set forth in this Agreement.  COMPANY will not be liable for the debts orobligations of Operators unless otherwise agreed to in writing by COMPANY.

(d)                                 Paymentsto COMPANY as Supplier.  COMPANYpurchases its frozen yogurt Products and resells them to DISTRIBUTOR afteradding the **[CONFIDENTIAL](68)** to the sellprice.  This **[CONFIDENTIAL](69)**varies by Product and a schedule of the current **[CONFIDENTIAL](70)**for its frozen yogurt Products is attached as **Schedule6**.  COMPANY reserves the rightto alter **[CONFIDENTIAL](71)** on its frozen yogurtProducts in its discretion but no more frequently than **[CONFIDENTIAL](72)**.  COMPANY will invoice DISTRIBUTOR for theseproducts as shipped from the manufacturer and will designate the **[CONFIDENTIAL](73)** as separate line items for each 

----

(67)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(68)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(69)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(70)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(71)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(72)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(73)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

21

----

Product.  DISTRIBUTOR agrees topay these invoices within **[CONFIDENTIAL](74)**days of receipt.

COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL](75)**on its frozen cake and pie Products at the maximum rate of **[CONFIDENTIAL](76)**for each Product as shown on **Schedule 7**.  Company reserves the right to alter **[CONFIDENTIAL](77)** on its frozen cake and pie Products inits discretion but no more frequently than **[CONFIDENTIAL](78)**.  Distributor shall pay all invoices for **[CONFIDENTIAL](79)**on its frozen cake and pie Products wheninvoiced by the COMPANY within **[CONFIDENTIAL](80)**daysof invoice date, which date will be no earlier than the date of receipt of theapplicable Products by the DISTRIBUTOR.

Each month, DISTRIBUTOR will provide a report and invoice to COMPANYshowing the amount of **[CONFIDENTIAL](81)**billed to each Store compared with the amount paid on these same Products byDISTRIBUTOR in accordance with Schedule 7 and the amount owed to DISTRIBUTOR BYCOMPANY.  COMPANY agrees to pay thisinvoice within **[CONFIDENTIAL](82)** days ofreceipt.

Notwithstanding the foregoing, DISTRIBUTOR shall not be responsible toreimburse COMPANY for **[CONFIDENTIAL](83)**on any Products not billed and collected from the Operators (for example due toProduct damage or accounts receivable uncollectibility) provided such loss isnot due to DISTRIBUTOR negligence and, in the case of account uncollectibility,DISTRIBUTOR has exhausted all reasonable collection efforts and has written theentire accounts receivable off of his books. **[CONFIDENTIAL](84)**

**[CONFIDENTIAL](85)**

**4.06**                        **Sourcing Fees. **COMPANYmay, from time to time, collect compensation from the Operators for servicesthat each of them provide to such Operators, either by increasing the Cost of a

----

(74)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(75)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(76)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(77)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(78)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(79)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(80)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(81)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(82)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(83)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(84)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(85)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

22

----

Product supplied by either of them to DISTRIBUTOR for distributionunder this Agreement, or through the assessment of an additional fee (a “SourcingFee”) that COMPANY instructs DISTRIBUTOR to add in the calculation of the SellPrice of Products not purchased from COMPANY. Any changes in the Sourcing Fees shall occur no more frequently than **[CONFIDENTIAL](86)**. COMPANY specifically represents and warrants that such Sourcing Fees (orincreases in the invoiced Cost) have been and will continue to be disclosed toall Operators, and that the charging and collection of such Sourcing Fees (orincreased Cost) is permitted under its or its affiliates’ agreements with theOperators and does not violate any applicable laws.  COMPANY shall indemnify, defend and holdharmless DISTRIBUTOR, its affiliates, and each of their respective officers, agents,directors, shareholders, or employees for any claims, loss, liability orexpense (including reasonable attorney’s fees and disbursements) arising from abreach of this representation and warranty.

DISTRIBUTOR shall pay all Sourcing Fees to COMPANY via initiation of anACH credit entry each Friday with respect to those Products delivered to theOperators during the preceding week and on which a Sourcing Fee wasassessed.   The COMPANY shall repay toDISTRIBUTOR any Sourcing Fees paid to the COMPANY by DISTRIBUTOR that theOperators fail to pay DISTRIBUTOR. This repayment obligation shall only applyto those Sourcing Fees incurred and unpaid by Operators during the first **[CONFIDENTIAL](87)** day period from the point in time thatOperator was last current with DISTRIBUTOR. For example, if Operator fails to pay DISTRIBUTOR forinvoices/indebtedness incurred and unpaid over a **[CONFIDENTIAL](88)**day period (**[CONFIDENTIAL](89)** deliveries),DISTRIBUTOR will be liable for paying COMPANY the Sourcing Fees for thoseProducts purchased for the **[CONFIDENTIAL](90)**.

**4.07****                        FinancialInformation **DISTRIBUTOR mayrequest balance sheets, income statements and such further financialinformation from each Operator from time to time as will enable DISTRIBUTOR toaccurately assess the Operators’ financial condition. The COMPANY may requireDISTRIBUTOR to supply annual unaudited balance sheets and such furtherfinancial information from time to time as will enable COMPANY to accuratelyassess DISTRIBUTOR’S financial condition.

**4.08****                        PriceVerifications-Audit-**COMPANY will be allowed to perform electronicPurchase Price verifications for purchases made under this Agreement on aweekly basis and 

----

(86)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(87)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(88)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(89)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(90)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

23

----

DISTRIBUTOR will supply the necessary files and information to COMPANYfor these audit purposes on a timely basis and in a form acceptable to COMPANYand DISTRIBUTOR.  As part of thiselectronic auditing procedure, COMPANY may also audit the payments made to itfor accuracy as well.  If any such auditreveals net pricing, delivery surcharge or COMPANY payment errors (overchargesset off by undercharges) in excess of **[CONFIDENTIAL](91)**in the aggregate during the audited period (not to exceed a **[CONFIDENTIAL](92)**month period) COMPANY shall have the rightto conduct additional audits, at its option and at DISTRIBUTOR’S reasonableexpense, until the aggregate net pricing errors disclosed by an such additionalaudits are less than **[CONFIDENTIAL](93)**forthe applicable audit period.  For anyaudit conducted pursuant to this Section 4.08 that discloses that Operatorswere either overcharged or undercharged for Products, or that COMPANY wasoverpaid or overcharged during the audited period, DISTRIBUTOR and COMPANYagree to correct the overcharge, undercharge, overpayment or underpayment, asthe case may be.  The form and method formaking these adjustments will be mutually agreed upon by DISTRIBUTOR andCOMPANY; provided, however, in any event the remittance of any such adjustmentsshall be made by either party within **[CONFIDENTIAL](94)**days from the final determination of the undercharge or overcharge, asapplicable.

**4.09****                        DISTRIBUTOROperator Support -**DISTRIBUTOR agrees to provide the following Operatorsupport to COMPANY.

(a)                                  DISTRIBUTORwill support the System by participating in the supplier show at its own expense.  In addition, DISTRIBUTOR will pay COMPANY anannual support payment equal to **[CONFIDENTIAL](95)**payable within **[CONFIDENTIAL](96)** days of writtenrequest by COMPANY.  COMPANY may submitsuch requests only once during each calendar year and a total of **[CONFIDENTIAL](97)** such requests during the term of thisAgreement.

(b)                                 DISTRIBUTORwill support COMPANY in terms of activating product recalls in accordance withDISTRIBUTOR’S standard product recall policies.

----

(91)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(92)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(93)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(94)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(95)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(96)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(97)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

24

----

(c)                                  DISTRIBUTORwill adhere to the following HACCP requirements for monitoring of temperaturecontrols for perishable products both in the DISTRIBUTOR distribution centerand in DISTRIBUTOR’S transportation equipment.

| ITEM                       | ** ** | **FORM**     | ** ** | **TEMPERATURE  REQUIREMENTS IN  DISTRIBUTION  CENTER** | ** ** | **UPPER TEMP.  RANGE WHILE  TRANSPORTED TO  STORES** |
|----------------------------|------------|--------------|------------|--------------------------------------------------------|------------|------------------------------------------------------|
| Soft Serve  Frozen Yogurt  |       | Frozen       |       | 0o 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 provideCOMPANY with periodic EDI file transfers to include the following:

Weekly invoice register by store outlining the SKU’sand quantity purchased

Weekly inventory levels, age of inventory, sales andpending 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-timeperformance, fill rates and clean invoice percentages

Daily out-of-stock report and stores so affected

Monthly costing detail on all Products used by theSYSTEM

Such additional reports as may be reasonable requestedby the COMPANY

**4.10****                  Taxes –**Franchiseesand COMPANY shall each be responsible for their applicable sales and usetaxes.  DISTRIBUTOR shall collectapplicable taxes from each responsible party and be responsible for remittingall taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for payingthose taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defendCOMPANY pursuant to Section 8.01 of this Agreement should Company receive aclaim for the 

25

----

DISTRIBUTOR’s failure to pay taxes. Neither party will pay a claim which is allegedly the responsibility ofthe other without first notifying the other and giving the other theopportunity to contest the claim.

**4.11****            Special PricingArrangements -**Products that are governed by national billing agency orother programs for which the price at which the DISTRIBUTOR must sell theProduct to the Operator is prescribed by agreements between COMPANY, or anyother franchisor or group purchasing organization, on the one hand, and thesupplier or manufacturer of such Products, on the other, are referred to inthis Agreement as “Contracted Operator Sell Price Products”.  Notwithstanding Section 4.01, the Sell Pricefor Contracted Operator Sell Price Products shall be the amount prescribed (orcalculated in accordance with) the above-described programs or agreements andCOMPANY will receive full credit under the true-up calculation required inSection 4.02 for all funds actually received or which could have been receivedfrom the suppliers of such Contracted Operator Sell Price Products as ifDISTRIBUTOR maximized such funds, including credit for all payment discountswhether or not actually taken by DISTRIBUTOR. Contracted Operator Sell Price Products include, but are not limited to,soft drink syrup products including, without limitation, the following CocaCola Products:  Coke Bag in Box (“BiB”),Diet Coke BiB, Sprite BiB and

Barq’s Root Beer BIB.

**5.****              MinimumDeliveries -**The Operators will be required to order Products in minimumquantities of **[CONFIDENTIAL](98)** cases ofProducts per delivery unless due to DISTRIBUTOR or supplier error.  In addition, Operator will be required to payDISTRIBUTOR a **[CONFIDENTIAL](99)** handling feeper order for orders of less than **[CONFIDENTIAL](100)**  cases and **[CONFIDENTIAL](101)**  handling fee per order for orders of lessthan **[CONFIDENTIAL](102)** cases but equal toor greater than **[CONFIDENTIAL](103)**  cases unless due to DISTRIBUTOR or supplierincluding failure to fulfill the order in its entirety. Products with a Markupof **[CONFIDENTIAL](104)** pursuant to section4.01 will be counted as cases for determining the applicability and amount ofthese handling fees.  These handling feeswill be credited to COMPANY for purposes of the true-up calculation required inSection 4.02.  However, the **[CONFIDENTIAL](105)** special delivery fees in Section 2.05 and the **[CONFIDENTIAL](106)**delivery surcharge fee in Section 4.01 will not be credited to COMPANY forpurposes of the true-up calculation required in Section 4.02.

----

(98)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(99)                    Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(100)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(101)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(102)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(103)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(104)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(105)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(106)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

26

----

**6.****              Term andTermination**

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

**6.02**        **Termination**

(a)           Eitherparty shall have the right, upon prior written notice, to immediately terminatethis Agreement if the other party fails to make payment of any amounts due andpayable under this Agreement, and such failure shall have continued for aperiod of ten (10) days from and after the date of written notice to thedefaulting party or in the event the other party files a voluntary petition orconsents to the filing of a petition against it in bankruptcy or any similarinsolvency or debtor relief action, or if the other party makes a generalassignment for the benefit of creditors, or in the event a receiver isappointed or any proceeding is demanded or initiated by, for or against theother party under any provision of the Federal Bankruptcy Act or any amendmentthereof.

(b)           Eitherparty shall have the right to terminate this Agreement upon 180 days writtennotice under any of the following conditions:

(i)            Uponthe occurrence of any material breach or material default by the other party,which remains uncured after expiration of the applicable Cure Period (as hereindefined), of any of the terms, obligations, covenants, representations andwarranties 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 shallnotify the other of such alleged beach or default and the other party shallhave a period of thirty (30) days to cure the same (the “Cure Period”). If thedefaulting party cures its breach or default within any applicable Cure Periodto the reasonable satisfaction of the non-defaulting party, the notice shall bevoid and this Agreement shall continue; otherwise, it shall terminate inaccordance with the notice.

or

27

----

(ii)           Inthe event the parties fail to agree on a Markup adjustment pursuant to Section4.04.

**6.03****                        Effectof Expiration/Termination -**Upon expiration or sooner termination ofthis Agreement, for any reason, COMPANY shall promptly purchase or arrange forthe purchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of theProprietary Products and any labeling and packaging materials used inconnection with the Proprietary Products. COMPANY will purchase or cause to be purchased perishable ProprietaryProducts within thirty (30) days after the effective date of termination ofthis Agreement or by the expiration date of such Proprietary Product, whicheveris earlier, and all nonperishable Proprietary Products within thirty (30) daysafter the effective date of termination of this Agreement. In addition, if thisagreement is terminated due to COMPANY’s breach or default, COMPANY shallreimburse to DISTRIBUTOR all other reasonable out-of-pocket costs and expenses(not to exceed an amount equal to 50% of the Markup on each Product unlessDISTRIBUTOR receives COMPANY’s prior written consent) incurred by DISTRIBUTORin selling, returning or otherwise disposing of such Proprietary Products.DISTRIBUTOR shall provide COMPANY with documentation or other proof that anysuch costs and expenses were incurred by DISTRIBUTOR. Termination of thisAgreement shall not relieve either party of any obligation or liability whichaccrues prior to the effective date of termination (including, but not limitedto, obligations related to the payment of COMPANY’s accounts receivable oraccounts payable and the purchase of excess inventories). Notwithstanding theforegoing provisions of this Section 6.03 to the contrary, if this Agreement isterminated due to DISTRIBUTOR’s breach or default or expires in accordance withthe provisions of Section 6.01, COMPANY shall have the obligation to purchase,or shall direct the replacing distributor or other suitable purchaser topurchase, from DISTRIBUTOR only such inventory of the Proprietary Productswhich is merchantable and saleable but COMPANY shall have no obligation toreimburse DISTRIBUTOR for its out-of-pocket costs and expenses related toselling, returning or otherwise disposing of such Proprietary Products.

**7.**                                      **Trademarks and Trade Names -**COMPANYhereby represents and warrants that it is the owner of, or has the right to useunder license or sublicense, all trademarks, logos, trade names, and othermarkings used on the Proprietary Product’s packaging and labels (the “Trademarks”).COMPANY hereby grants to DISTRIBUTOR the right to use the Trademarks solely inconnection with the approved sale and distribution of the Proprietary Productsin accordance with the provisions of this Agreement and only for as long asthis Agreement remains in effect. COMPANY also grants to DISTRIBUTOR the rightand license to use the Trademarks in advertising and promotional materials whenthe Trademarks are used 

28

----

therein to identify the Proprietary Products, subject to COMPANY’sprior written approval of form and content. Provided DISTRIBUTOR is using theTrademarks 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 reasonableattorneys’ fees and disbursements) and judgments made or incurred by or foundagainst any of them resulting from or arising out of any claim or suit alleginginfringement by COMPANY or its affiliates, through any of the Trademarks orotherwise.

**8.****             Indemnification**

**8.01****                        Indemnificationby DISTRIBUTOR -**DISTRIBUTOR agrees to indemnify, defend and holdCOMPANY, its subsidiaries, affiliates, officers, directors, members, managers,stockholders, employees, agents, successors and assigns harmless from andagainst any and all claims, demands, liabilities, causes of action, damages,costs (including reasonable attorneys’ fees and disbursements) and judgmentsmade or incurred by or found against any of them, resulting from or arising outof:

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

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

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

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

(b)                                 Anybreach or default by COMPANY of any term or provision of any agreement betweenCOMPANY, on the one part, and an Operator or a supplier of the ProprietaryProducts, on the other part, or any negligent or willful act or omission ofCOMPANY, or any of its employees or agents, in respect of the purchase, resale,distribution, storage or 

29

----

delivery of the Proprietary Products or the COMPANY’sperformance of its obligations under this Agreement; and

(c)                                  Claimsby any franchisee of COMPANY and/or Operator that may arise from DISTRIBUTORceasing further sales to such franchisee or other Operator under this Agreementat the direction of COMPANY.

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

**8.03****                        Limitationof Liability; Disclaimer of Warranties -** NOTWITHSTANDING SECTIONS 8.01AND 8.02 TO THE CONTRARY, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE INCONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, TO THE OTHER PARTY OR ITS RESPECTIVE SUBSIDIARIES, AFFILIATES,FRANCHISEES OR OTHER OPERATORS FOR ANY TYPE OF INCIDENTAL, CONSEQUENTIAL ORPUNITIVE DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESSOPPORTUNITY) ARISING FROM A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER ANYOF THE TERMS AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUTLIMITATION, ANY SUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANY TERM OR PROVISIONOF THIS AGREEMENT.

COMPANY ACKNOWLEDGES AND AGREES THAT DISTRIBUTOR ISNOT THE MANUFACTURER OR PRODUCER OF THE PRODUCTS SUPPLIED BY DISTRIBUTOR.  IN NO EVENT SHALL DISTRIBUTOR BE LIABLE WITHRESPECT 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 OFDISTRIBUTOR’S ACTUAL NEGLIGENCE IN ITS HANDLING OF SUCH PRODUCTS.  **EXCEPT AS EXPLICITLYPROVIDED IN THIS AGREEMENT,****DISTRIBUTOR MAKES NOWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OFMERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.**

**8.04****                        ThirdParty Claims -**The indemnities in this Section 8 are contingent upon:(i) the indemnified party promptly notifying the indemnifying party in writingof any action or other proceeding 

30

----

which may give rise to a claim for indemnificationhereunder; unless such failure to promptly notify does not materially prejudicethe claim; (ii) the indemnifying party being allowed to control the defense andsettlement of such claim; and (iii) the indemnified party reasonablycooperating with the indemnifying party (at the indemnifying party’s expense)in providing information relevant to the defense or settlement of a claim. Theindemnified party shall have the right, at its option and expense, toparticipate in the defense of any action or proceeding through counsel of itsown choosing.

**9.**                                      **Insurance**

**9.01****                        DISTRIBUTOR’sInsurance -** During the term of this Agreement and for a period of one(1) year thereafter, DISTRIBUTOR shall purchase and maintain, at its sole costand expense, the following insurance coverages:

(a)                                  commercialgeneral liability insurance and products liability coverage with broad formvendor endorsement, which specifically insures all liabilities of DISTRIBUTORto COMPANY and Operator under this Agreement, to the extent afforded by normalISO policy forms and definitions, with all such insurance coverages providingfor combined single limit bodily injury/property damage liability of not lessthan **[CONFIDENTIAL](107)** Dollars; and

(b)                                 commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL](108)**Dollars.

All such insurance shall be provided by insurance companieswhich are licensed and authorized to do business in the United States ofAmerica, shall be occurrence based policies and which insurance companies arereasonably satisfactory to COMPANY. DISTRIBUTOR agrees to deliver to COMPANY, on or prior to the EffectiveDate, certificates of insurance evidencing the existence of all the aboveinsurance coverages and naming COMPANY as an additional insured under suchpolicies.  The certificates shall containan agreement by the insurance carrier to notify COMPANY, in writing, at leastthirty (30) days prior to the date of any cancellation or change in suchinsurance coverage.

----

(107)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

(108)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

31

----

**9.02****                        COMPANY’sInsurance -**During the term of this Agreement, and for a period of one(1) year thereafter, COMPANY shall purchase and maintain, at its sole cost andexpense, commercial general liability insurance and products liabilitycoverage, and a contractual liability endorsement which specifically insuresall liabilities of COMPANY to DISTRIBUTOR under this Agreement, to the extentafforded by normal ISO policy forms and definitions, with all such insurancecoverages providing for combined single limit bodily injury/property damageliability of not less than **[CONFIDENTIAL](109)**Dollars. All such insurance shall be provided by insurance companies which arelicensed and authorized to do business in the United States of America, andwhich are reasonably satisfactory to DISTRIBUTOR. COMPANY agrees to deliver toDISTRIBUTOR, on or prior to the Effective Date, a certificate of insuranceevidencing the existence of all the above insurance coverages and namingDISTRIBUTOR as an additional insured under such policies. The certificate shallcontain an agreement by the insurance carrier to notify DISTRIBUTOR, inwriting, at least thirty (30) days prior to the date of any change in suchinsurance coverage.

**10.****          Representations andWarranties**

**10.01****                 Representationsand Warranties of DISTRIBUTOR -**DISTRIBUTOR hereby represents andwarrants to COMPANY as follows:

(a)                                  DISTRIBUTORis a corporation duly organized, validly existing and in good standing underthe laws of the State of Ohio. DISTRIBUTOR has the requisite power to ownproperties, to carry on its business as now being conducted by it, and toexecute, deliver and perform this Agreement.

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

(c)                                  Theexecution, delivery and performance by DISTRIBUTOR of this Agreement and theconsummation of the transactions contemplated hereby do not and will notviolate, conflict with, result in a breach or termination of, or constitute adefault 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 ofincorporation, as amended to date, of 

----

(109)              Confidentialtreatment has been requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

32

----

DISTRIBUTOR, (ii) any judgment, order, decree, rulingor injunction applicable to DISTRIBUTOR, or (iii) any contract or agreementbetween DISTRIBUTOR and any third party.

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

**10.02****                 Representationsand Warranties of COMPANY –**COMPANY hereby represents and warrants toDISTRIBUTOR as follows:

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

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

(c)                                  Theexecution, delivery and performance by COMPANY of this Agreement and theconsummation of the transactions contemplated hereby do not and will notviolate, conflict with, result in a breach or termination of, or constitute adefault 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 offormation or operating agreement, as amended to date, of COMPANY, (ii) anyjudgment, order, decree, ruling or injunction applicable to COMPANY, or (iii)any contract or agreement between COMPANY and any third party.

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

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

33

----

**11.****                               Notices-**Any notice or other communication to be given under this Agreement by oneparty to the other shall be in writing and delivered by overnight messengerservice, or delivered by telecopy or facsimile transmission, or sent by UnitedStates registered or certified mail, postage prepaid, addressed as follows:
|   | If to DISTRIBUTOR: | Kaleel Bros., Inc.                    |
|--------|--------------------|---------------------------------------|
|   |               | 761 Bev Road                          |
|   |               | Youngstown, Ohio 44512                |
|   |               | Attention: Ron Kaleel                 |
|   |               | President                             |
|   |               | FAX: (330) 758-1244                   |
|   |               |                                  |
|   |               |                                  |
|   | 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 eitherparty to the other as provided hereunder. Notices shall be deemed to have been given when received.

**12.**                               **Force Majeure -**Notwithstanding anyterm or provision contained in this Agreement to the contrary, it is understoodand agreed that DISTRIBUTOR will not be responsible or liable in any mannerwhatsoever for the failure by it to sell and/or deliver the Products orotherwise perform any obligation under this Agreement or otherwise, and COMPANYwill not be responsible or liable in any manner whatsoever for the failure byit 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, butnot limited to, laws, regulations and restrictions of all kinds), or any othercauses or contingencies of any character (other than lack of funds) beyond thereasonable control of DISTRIBUTOR or COMPANY. Nothing expressed or implied in this Section 12 shall excuse thenon-performance or delay in performance of any payment obligation of theCOMPANY or DISTRIBUTOR, any affiliate or any Operator.

**13.**                               **Relationship of Parties -**ThisAgreement is not intended and shall not be construed to constitute either partyas the joint venturer, partner, agent or legal representative of theother.  Neither party has any 

34

----

authority, whether express, implied, or apparent, to assume or createany obligations on behalf of the other.

**14.****                               EntireAgreement; Modifications -**This Agreement and the Schedules attachedhereto and made a part hereof, constitute the entire agreement and understandingof the parties with respect to the subject matter hereof, and supersede allprior proposals, negotiations, communications, representations, written or oralagreements and understandings between the parties with respect to the subjectmatter hereof. No modification of any term or provision of this Agreement shallbe enforceable unless embodied in a writing executed by all parties to thisAgreement.

**15.****                               Severability-** The provisions of this Agreement are severable, and the invalidity orunenforceability of any term or provision hereof shall not operate toinvalidate or render unenforceable the remaining terms and provisions which arevalid and enforceable.

**16.****                               Waivers-**The waiver by either party hereto of any of its rights or breaches of theother party under this Agreement in a particular instance shall not beconstrued as a waiver of the same or different rights or breaches in subsequentinstances. All remedies, rights, undertakings and obligations, hereunder shallbe 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 ofthe parties may assign this Agreement without the prior written consent of theother, except that either party shall have the right to assign this Agreementto a parent, subsidiary or affiliated COMPANY, or may assign this Agreement inconjunction with the sale or transfer of all or substantially all of its stockor assets by way of a sale of stock or assets, a merger or other businessreorganization, without the prior consent of the other party; provided,however, that any such assignment shall not relieve the assigning party fromany liability or obligation under this Agreement that accrues prior to theassignment and notice thereof to the other party and provided further, that inthe event of a transfer of all or substantially all of the stock or assets of aparty or merger or other business reorganization, the surviving entity ortransferee is at least as financially strong as the assigning or originalparty.  The assigning party shall givenotice of such assignment to the other party. The provisions of this Agreementwill be binding upon and will inure to the benefit of the parties and theirrespective successors and assigns. DISTRIBUTOR may assign its accounts receivables, and related contractrights, in connection with its accounts receivable financing andsecuritization.

35

----

**18.****                               NoOffer -**The submission by DISTRIBUTOR to COMPANY of this Agreement shallhave no binding force or effect, shall not constitute an offer to sell theProducts, nor confer any right or impose any obligation upon either party untilexecuted 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 orany other customer or supplier information, purchasing volumes and history, pricing,purchasing specifications, and product market results (the “ConfidentialInformation”), is and shall remain confidential and proprietary information ofthe disclosing party, and valuable trade secrets owned solely by the disclosingparty. The recipient party of any Confidential Information shall not discloseany such Confidential Information to any third person or entity without theprior written consent of the disclosing party in every instance, and shall notuse any such Confidential Information, nor permit any such ConfidentialInformation to be used, for any reason other than to fulfill the terms of thisAgreement; provided, however, that either party and its respective successorsand assigns may (i) disclose any Confidential Information to the extentcompelled by law, regulation, rule, subpoena, or other process of law and (ii)provide invoices, and any information relating to historical payments orpayments due or to become due from franchisees or Operators hereunder to itsauditors and legal counsel, and to present and potential financing sources andrating agencies and their respective auditors and legal counsel). The parties’obligations under this Section 19 shall not apply to any of the ConfidentialInformation delivered or made available to them by the other party which therecipient of the Confidential Information can reasonably establish (a) wasknown to the recipient party at the time the Confidential Information wasdisclosed or made available to the recipient party; (b) was known to the publicat the time the Confidential Information was disclosed or made available to therecipient party; (c) becomes known to the public after the date theConfidential Information was disclosed or made available to the recipient partythrough no fault or breach of this Section 19 by the recipient party; (d) isgiven to or made available to the recipient party by a third party who has alawful right to disclose the Confidential Information to the recipient party;or, (e) is independently developed by the Recipient party without reference tothe Confidential Information.

**20.****                               Arbitration** -All actions, disputes, claims or controversy with the exception of seeking aninjunction, now existing or hereafter arising between DISTRIBUTOR and COMPANY,including, but not limited to any action, dispute, claim or controversy arisingout 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 ArbitrationAssociation and, to the maximum extent applicable, the Federal ArbitrationAct.  Arbitrations shall be conductedbefore one arbitrator mutually agreeable to COMPANY and DISTRIBUTOR.  If the parties cannot agree on an arbitratorwithin thirty (30) days after the request for an arbitration, then eachparty will select an arbitrator 

36

----

and the two arbitratorswill select a third who shall act as the sole arbitrator of the dispute.  Judgment on any award rendered by anarbitrator may be entered in any court having jurisdiction.  All fees of the arbitrator and other costsand expenses of the arbitration shall be paid by DISTRIBUTOR and COMPANYequally unless otherwise awarded by the arbitrator.  Disputes between DISTRIBUTOR and any Operatorother than COMPANY shall not be subject to arbitration under this section 20.

**21.**                               **Governing Law**- This Agreement shall bedeemed executed in Salt Lake City, Utah and shall be governed by the construedin accordance with the laws of the State of Utah as applicable therein.

**22.****                            Miscellaneous-**The section and paragraph headings contained in this Agreement are forreference only and shall not be considered as substantial parts of thisAgreement. The use of the singular or plural from in this Agreement shallinclude the other form and the use of the masculine, feminine or neuter gendershall 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 takentogether, shall constitute but one agreement binding on all parties hereto,notwithstanding that all of the parties are not signatory to an original orsame counterpart.  The parties mayexecute and deliver this Agreement by facsimile transmission.

*[Remainderof page intentionally blank.  Signaturepage and Schedules follow.]*

37

----

**IN WITNESS WHEREOF,**eachof the parties hereto has caused this Agreement to be executed and delivered byits duly authorized officers on the day and year first above written.
| TCBY SYSTEMS, LLC             |
|-------------------------------|
|                          |
|                          |
| By:                           | /s/ Michael Ward |   |
| Its: Executive Vice President |
|                          |
|                          |
| KALEEL BROS., INC.            |
|                          |
|                          |
| By:                           | /s/ Ron Kaleel |   |
| Its: President                |
|                               |  |  |  |

 

38

----