**CONFIDENTIAL**

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**Exhibit10.69**

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**[ConformedCopy]**

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**DISTRIBUTIONAGREEMENT**

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**THISAGREEMENT**is****madeand entered into as of the 25th day of April 2006, by and between **TCBY SYSTEMS, LLC,** a Delaware limitedliability company (“COMPANY”) and **SOUTHWESTTRADERS, INC.,**a California Corporation (“DISTRIBUTOR”). DISTRIBUTORwill commence distribution services under this Agreement on May 21, 2006 (the“Effective Date”) unless otherwise 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 isreferred to as the “System”.  COMPANYtakes steps to assist Stores to meet its purchasing needs and has the right todesignate distributors 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.**                                    COMPANY wishes toappoint DISTRIBUTOR as the primary distributor of certain approved proprietaryfood and related products to the Stores located within the Territory  (as defined below), and DISTRIBUTOR wishes toaccept such appointment, all on the terms and conditions hereinafter set forth.

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**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 herebyappoints DISTRIBUTOR as a distributor of the products within the productcategories listed in **Schedule 1**(the“Products”), to the Stores in the territory serviced by DISTRIBUTOR’sdistribution centers located in Temecula, California (the “Temecula Territory”)and Sacramento, California (the “Sacramento Territory” and the TemeculaTerritory and Sacramento Territory combined the “Territory”) as reflected inthe maps depicted in **Schedule 2**and DISTRIBUTOR hereby accepts such appointment. To the extent that conflictsarise between the maps and the county listing in **Schedule 2**, the maps shall prevail.  It is the intent of both COMPANY andDISTRIBUTOR that all communities with a population of 10,000 or greater in thestates of California, Arizona, New Mexico, Nevada, Oregon, Washington and Idaho(west of and including Twin Falls) be included in the Territory.  Subject to Section 2.02, COMPANY may appointDISTRIBUTOR as a distributor of Products to Stores outside of the Territory andDISTRIBUTOR may agree to such designation.  DISTRIBUTOR will be entitled to at least 90% of all sales of theProducts to the Stores located in the Territory, calculated on an aggregatedollar basis.

**2.             Distribution of Products**

**2.01****                        Products—**DISTRIBUTOR will maintain in its inventory of Products the following: (i)Products designated by COMPANY that contain the proprietary trademarks, 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 Productsdesignated  or contracted for by COMPANYto be maintained in inventory by DISTRIBUTOR for distribution to  COMPANY, its affiliates and theOperators.  (Collectively, Productsdescribed 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.

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**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 advisingDISTRIBUTOR that such Operator is no longer approved by COMPANY and shall,within such timeframe, further cease selling, under the terms of any supplieragreement negotiated by COMPANY, all Proprietary Products to such Operatorsreferenced in such notice. In addition, DISTRIBUTOR shall have the right tocease the sale and distribution of Products to any Operator (a) who is indefault of its obligations to DISTRIBUTOR, provided that DISTRIBUTOR has givenCOMPANY at least three (3) business days notice of such default before ceasingdeliveries to such Operator, or (b) who has filed a voluntary petition inbankruptcy or under any other similar insolvency or debtor relief law or whohas had such a petition filed against it, or who has made a general assignmentfor the benefit of its creditors. COMPANY shall also have the right toreinstate delivery to any Operator that COMPANY previously stopped selling byproviding written notice to DISTRIBUTOR and DISTRIBUTOR shall provide suchdelivery 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 Storelocations 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 twenty one (21)days prior to the desired date of first shipment of Products to any such newStores. In addition, provided and to the extent that COMPANY and DISTRIBUTORmutually agree in writing, DISTRIBUTOR shall provide distribution services toStores located 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.

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**2.03**                        **Product Orders —**All Product orders shall be submitted bythe Operators to DISTRIBUTOR and shall specify the location of the Operator’sStores, the type of Product, and the quantity desired.  Operators may place orders electronically(“Electronic Orders”) or by faxing DISTRIBUTOR’s customer service center inaccordance with the guidelines detailed below. DISTRIBUTOR will also accepttelephone orders on a very limited exception basis for those Operators approvedin writing by the COMPANY.  All shipmentexpenses from DISTRIBUTOR’s distribution center to the Operator’s locationshall be at DISTRIBUTOR’s expense unless otherwise noted elsewhere in thisAgreement. Product order guides will be provided by DISTRIBUTOR to the Operatorsmonthly via DISTRIBUTOR’s website or email if so requested by Operator and, ona limited exception basis approved in writing by the COMPANY, with a hard copymailed to the affected 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. Pacific time, two(2) days prior to their scheduled delivery day, with the exception of Storeslocated in the States of Oregon, Washington, and Idaho, which must be submittedthree (3) days prior to their scheduled delivery day.  Operators will be notified prior to the timeof final order cut-off if a product is expected to be out of stock so that analternative may be ordered, subject to the provisions of Section 3.02.  Operators will have until 5:00 p.m, one (1)day before their order shipping day to modify or add-on to their order(Saturday at 5:00 p.m. for Stores whose deliveries will leave DISTRIBUTOR’sfacility on Monday).  Where reasonablypossible, DISTRIBUTOR will schedule ordering days and delivery days that aremutually agreed upon by and between DISTRIBUTOR and each Operator and willprovide notice to the affected Operator of at least fourteen (14) days beforerouting changes.

Except for deliveries to the states of Washington,Oregonand Idaho, wherever reasonably possible and unless approved in advance bythe COMPANY, DISTRIBUTOR will include no more than one “skip day” between thedate of order and date of delivery (Sunday is not counted as a skip day). Forexample, orders scheduled for delivery on Wednesday will be placed no earlierthan Monday. Orders scheduled for delivery on Monday will be placed on Friday.In the event 

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DISTRIBUTOR must include more than one “skip day”between the date of order and date of delivery it will notify COMPANY inadvance and obtain COMPANY’s approval. In no event will there ever be more than two “skip days” permitted.DISTRIBUTOR may schedule deliveries on any day of the week.  On an exception basis, DISTRIBUTOR willconsider shortening the permissible time frames for scheduled deliveries forthose Operators that, given unique and compelling business needs, require thesame.

Operator will be notified of any Product shortages atthe time of order placement or, in the case of an Electronic Order, one (1) dayprior to the loading of the delivery truck.

**2.04****                       Deliveries.**    Delivery vehicles used by DISTRIBUTOR willnot display the marks of COMPANY’S principal competitors to includeBaskins-Robbins, Stone Cold Creamery and any other restaurant concepts whoseprimary product offerings are frozen confections.

DISTRIBUTOR agrees that, excluding key drops (deliveries scheduled tobe made during the period running from one (1) hour or more after the retailclosing time of the Store to deliveries one (1) hour or more before the retailopening time of the Store) an overall average of 90% of all regularly scheduleddeliveries will be made within a three (3) hour window, meaning no earlier thanone and one half (1 1/2) hours before and no later than one and one half (11/2) hours after the scheduled delivery time. If a delivery is anticipated tofall outside of this three (3) hour window, DISTRIBUTOR will immediately notifythe Operator. DISTRIBUTOR will provide an inside delivery to each Operator inaccordance with Company’s temperature store requirements as detailed in Section4.09, placing refrigerated and frozen Products into their appropriate storageareas, but will not be responsible for stocking shelves or rotatinginventories.

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 shallbe responsible for payment of a **[CONFIDENTIAL](1)**

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

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fee to DISTRIBUTOR for subsequent occurrences.  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 4:00 p.m.Pacific time each day for the affected Stores.

In the case of Stores located in the States of Alaskaand Hawaii, DISTRIBUTOR agrees to process the orders from the Stores as well asdeliver the Products to the freight forwarder’s location or load the Productsonto the freight forwarder’s truck at DISTRIBUTOR’S distribution center, as thecase may be.  DISTRIBUTOR will invoiceOperator for the Product Cost and its Markup pursuant to Section 4 of thisAgreement.  DISTRIBUTOR’S liability for theProducts ceases upon receipt by the freight forwarder.

**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 120 cases              |       | 3  deliveries during a 12 month period |       |
| 120-199 cases                    |       | 4  deliveries during a 12 month period |       |
| 200-349 cases                    |       | 6  deliveries during a 12 month period |       |
| 350-499 cases                    |       | 8 deliveries  during a 12 month period |       |
| 500-999 cases                    |       | Every  4 weeks                         |       | Every  4 weeks |   |
| 1,000-1,999 cases                |       | Every  3 weeks                         |       | Every  4 weeks |   |
| 2,000-3,499 cases                |       | Every  week                            |       | Every  2 weeks |   |
| Greater than 3,499 cases         |       | Every week                             |       | Every week |   |

 

This schedule is intended to serve as a guideline only and DISTRIBUTORagrees to provide additional regular deliveries as requested by Operator andapproved by COMPANY in writing.  COMPANYwill provide 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 theOperator’s needs and not due to a delivery error by DISTRIBUTOR nor during thetime periods specified in Section 2.06, DISTRIBUTOR will accommodate theOperator’s request with the most efficient available 

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delivery method. All additional freight expense will be at theOperator’s expense and will be billed upon DISTRIBUTOR’s receipt of the invoicefrom the shipping agent. If DISTRIBUTOR is able to schedule such an emergencydelivery in conjunction with a nearby route, the additional freight expensewill be **[CONFIDENTIAL](2)**.  Where possible, a store may order up to **[CONFIDENTIAL](3)** cases to be delivered to a nearby store,on that store’s delivery day (and with that store’s consent) without 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 remedy theshortage 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, whereverpossible, to insure that its delivery trucks will be in all markets (SMSA’s ofat least 250,000 population) within each Territory at least twice a week whereat least twenty-five (25) Stores serviced by DISTRIBUTOR under this Agreementare 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 DISTRIBUTOR, including changes in the way the Operatorsorder, the distance from the DISTRIBUTOR distribution center to the Operators,and lead times from order day to delivery day for the Operators. Therefore,DISTRIBUTOR will process emergency orders for all Operators for the firstthirty (30) days following the commencement of distribution service at noadditional charge, subject to the minimum order requirements and applicablehandling fees, if any, as set forth in Section 5 of this Agreement.  In addition, during the term of thisAgreement, DISTRIBUTOR will process emergency orders for all Operators’ newlyadded Stores within the first thirty (30) days following the opening of the newStores, subject only to minimum order requirements and applicable handlingfees, if any, as set forth in Section 5 of this Agreement.

**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 

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

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

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                                                delivery(except that, in the case of Products to be returned as a result of concealeddamage, within the remaining shelf life of such Products) and all claims forProducts to be returned must be made either to the driver upon check-in of theorder, by telephone by 4 p.m. on the day of delivery following receipt of theProducts if an unattended delivery or, in the case of concealed damage, withintwenty-four (24) hours of discovery of concealed damage by the Operator.  All returned items must be in unmarkedoriginal packaging and must be in suitable condition for resale (unless damagedor mis-marked Product was the reason for the return). Subject to the foregoing,DISTRIBUTOR shall provide credit to the affected Operator for defective,shorted or damaged Products within twenty-four (24) hours of the driver’sreturn if brought to the driver’s attention or noticed by the driver duringdelivery or, in any event, within forty-eight (48) hours of DISTRIBUTOR’sreceipt of the Operator’s claim of damaged, shorted or defective Products (orreceipt of product, if warranted) and will immediately provide documentation onits website for Operator of such credit if the original order was placedelectronically or via fax or phone if the order was placed in some othermanner.  Notwithstanding the foregoing,no returns will be permitted for cooler or freezer items, or fresh produce dueto misorder by the Operator.  Productsrefused by Operator at time of delivery for reasons other than damage orremaining shelf life below agreed upon parameters will be subject to a **[CONFIDENTIAL](4)** restocking charge to be paid byOperator.  In the event that the shorted,defective or damaged Product is a Kill Item, then DISTRIBUTOR will remedy thesituation in accordance with Section 3.02, if so requested by the Operator.

**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, DISTRIBUTORagrees to stock sufficient inventory for any new Proprietary Products to beused in national LTO promotions and other key items, as reasonably requested byCOMPANY.  Unless retained on theOperator’s menu at the instruction of the COMPANY or mutually agreed to betweenCOMPANY and DISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTORdistribution centers no later than sixty (60) days after the completion of theLTO and COMPANY shall purchase all remaining inventory of such LTO as providedin Section 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTOProducts may not be returned to DISTRIBUTOR, unless the return is necessitateddue to a DISTRIBUTOR error or due to Product damage not caused by the Operator.

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

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**3.             Suppliers of Products; Inventoryof 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 toDISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteedsupplier price provided under such supplier contract (net of billbacks byDISTRIBUTOR, if any), plus applicable freight if the supplier price is not adelivered price, plus **[CONFIDENTIAL](5)**if any, attributable to the Product, **[CONFIDENTIAL](6)**,plus any applicable Sourcing Fees (defined below) shall be the “Cost” of theProduct.  Products governed by suchsupplier 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 adequatesupply of 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“safety stock” of not less than **[CONFIDENTIAL](7)**days historical usage for all Proprietary Products and will also have anadditional **[CONFIDENTIAL](8)** days historical 

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

(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.

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                                                usageof white chocolate mousse, chocolate and vanilla frozen yogurt on the road atall times. DISTRIBUTOR agrees that all Products delivered to Operators willhave at least one-third of their original shelf-life remaining as of the dateof delivery.

COMPANY categorizes Products into three classes:

Proprietary Products that Operators must have (“KillItems”), which Kill Items will not number more than **[CONFIDENTIAL](9)**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.

DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnightemergency delivery, if needed and requested by Operator, an overall aggregate“fill rate” for all Products of **[CONFIDENTIAL](10)**(**[CONFIDENTIAL](11)** for the period priorto the commencement of deliveries to the Operators out of the Sacramento facilityin accordance with Section 4.12), and at least **[CONFIDENTIAL](12)**of all invoices issued by DISTRIBUTOR to the Operators will be completelyaccurate at the time of initial issuance (**[CONFIDENTIAL](13)**  for the period prior to the commencement ofdeliveries to the Operators out of the Sacramento facility in accordance withSection 4.12), with all of the above measured quarterly.  The “fill rate” equals the percentage ofProducts or Kill Items, as the case may be, obtained by dividing the totalnumber of Products or Kill Items shipped by DISTRIBUTOR and received by theOperators at the time of delivery for the month, by the total number of Productor Kill Items ordered by the Operators from the DISTRIBUTOR for that samemonth.  All fill rate measurements (andinvoice accuracy requirements) will be net of supplier-related issues such asshortages and delayed deliveries to DISTRIBUTOR, provided DISTRIBUTOR notifiesCOMPANY immediately in the event of supplier non-performance. If emergencydelivery is required due to supplier (including COMPANY) error, costs ofemergency delivery shall be at supplier (including COMPANY) 

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(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)             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.

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expense, provided that, if the supplier fails to absorb such expense,such delivery costs shall be paid by the Operator provided DISTRIBUTOR hasnotified COMPANY immediately in the event of such non-performance and Operatorhas approved the additional expense in advance.   If the emergency delivery is due toDISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in as efficientmanner as possible, which may include emergency deliveries and special freightshipments, at DISTRIBUTOR’S sole expense. If the emergency delivery is due toOperator error, the Operator shall pay delivery costs for such emergencydelivery.  From the moment of receipt ofthe Products for storage by DISTRIBUTOR until the Products have been acceptedby Operator at the Store, DISTRIBUTOR assumes all risk of loss or damage withrespect thereto, shall be directly liable to COMPANY for any such loss ordamage to the Products and the related costs and expenses for replacing theProducts 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 (includingCOMPANY) error, then COMPANY shall cause supplier to, or if COMPANY is thesupplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable lossessustained due 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 

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**[CONFIDENTIAL](14)** days afternotice from DISTRIBUTOR or by the expiration date of the Proprietary Products,whichever is earlier, and all nonperishable Proprietary Products within **[CONFIDENTIAL](15)** days after notice from DISTRIBUTOR.  In addition, if the inventory re-purchase isnecessitated for any reason other than DISTRIBUTOR error, COMPANY shallreimburse to DISTRIBUTOR all reasonable out-of-pocket costs and expenses (notto exceed an amount equal to **[CONFIDENTIAL](16)**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 provide a report at the endof each month detailing the inventory on hand for each Product along with theremaining shelf life for such Product. If DISTRIBUTOR fails to provide this report, COMPANY shall not berequired to comply with the requirements set forth in Section 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 Anaheim, California; Stockton, California;Tacoma, Washington; and Phoenix Arizona and in quantities not to exceed a **[CONFIDENTIAL](17)** supply of such Products, in the aggregate for each location listedabove, provided that DISTRIBUTOR and COMPANY have been given an opportunity bythe present distributor to inspect any such Product prior to purchase pursuantto this Section 3.04.  ProprietaryProducts picked up by DISTRIBUTOR will have at least one-third of theiroriginal shelf life remaining or COMPANY will agree to waive this requirementpursuant to section 3.02.  COMPANY agreesto develop a plan to accelerate product movement for any Proprietary Productpicked up by DISTRIBUTOR that represents more than six (6) month’s historicalusage to insure all of this Product is sold or disposed of at the sooner of six(6) months or its remaining useful shelf life. DISTRIBUTOR will pay, via check, the present distributor for Productspurchased from it, within ten (10) days of the later of DISTRIBUTOR’S receiptof the Products or the receipt of the invoice approved by COMPANY for theProducts.   DISTRIBUTOR shall beresponsible for all freight and unloading 

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(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.

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                                                costsassociated with transporting such inventory from the existing DISTRIBUTOR’slocations listed above. DISTRIBUTOR will not be responsible for any handling orother fees charged by the current distributor in connection with DISTRIBUTOR’sloading and transferring of such inventory. COMPANY and the current distributorwill be required to provide all reasonable assistance and cooperation toDISTRIBUTOR in connection with the purchase, loading and transportation of suchinventory from the current distributor to the DISTRIBUTOR distribution center,including the scheduling of mutually agreeable inventory inspection and pick-uptimes.

In the event that the Cost of the Product, aspurchased from 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](18)** days of the date of the invoice.  In the case of a rebate to COMPANY, DISTRIBUTORshall pay the rebated amount within **[CONFIDENTIAL](19)**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](20)** per case for all deliveries (collectively,“Markup”), subject to the other provisions of this Agreement.  For purposes of this Agreement, the “Cost” ofa Product other than a Contracted Product shall be the sum of (a) the cost ofthe Product as shown on the invoices to DISTRIBUTOR from the respectivesupplier, including COMPANY, plus (b) if the invoiced cost of the Product isnot a delivered price, the applicable freight charges related to shipping theProduct from the supplier to DISTRIBUTOR’S distribution center, plus (c) theSourcing Fees, if any, attributable to the Product, less (d) promotionalallowances reflected on supplier invoices to DISTRIBUTOR. Applicable freight,in those cases where the invoice cost to DISTRIBUTOR for non-proprietaryProducts is not a delivered cost, means that DISTRIBUTOR has added a reasonablefreight charge, agreed to in advance and in writing by COMPANY for deliveringsuch non-proprietary Products from suppliers to DISTRIBUTOR.  

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

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                                                Applicablefreight for any non-proprietary Product will not exceed the rate charged bynationally recognized carriers operating in the same market for the same typeof freight service. Cost for any non-proprietary Product will not be reduced bydiscounts for cash or prompt payment available to DISTRIBUTOR, breakageallowances or by backhaul revenue. Fuel or other transportation surchargesindicated on the manufacturer’s or supplier’s invoice or on freight invoiceswill increase Cost. The Cost of a Contracted Product shall be determined inaccordance with Section 3.01.  In noevent will the Cost of Contracted Products include amounts to be rebated toDISTRIBUTOR and therefore, DISTRIBUTOR will not negotiate off-invoicemanufacturer rebates, labels/promotional allowances or any other “soft money”received from supplier or freight carriers of Contracted Products.  In order to allow verification of theforegoing commitment, DISTRIBUTOR agrees to provide documentationsubstantiating the Cost of items DISTRIBUTOR purchases from suppliers andfreight carriers, if such information is requested by COMPANY, with suchrequests limited to once every six (6) months. 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 R & A Charges invoiced tothe Operator for that particular delivery, applicable taxes, the date of theACH debit and other summary line items as detailed elsewhere in this Agreement.

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](21)**: malt, maraschino cherries, mediumspoons, taster spoons, straws, water, chocolate sprinkles and assortedsprinkles.

DISTRIBUTOR and COMPANY agree that the Markup forDISTRIBUTOR’S services in connection with deliveries to Stores located inAlaska and Hawaii shall be the same as all other stores located in theTerritory when DISTRIBUTOR delivers product to the freight forwarder’s 

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location and **[CONFIDENTIAL](22)**of the Markup in the event the freight forwarder picks up the order atDISTRIBUTOR’S location.

**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](23)** Markup 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](24)**per case, again subject to the other provisions of this Agreement.

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 Putative Markupis less than the Markup required pursuant to Section 4.01 (and as modifiedpursuant to the other provisions of this Agreement), with such deficiency beingreferred to herein as the “Markup Deficiency”, COMPANY shall remit toDISTRIBUTOR, an amount equal to the number of cases delivered to the Storesunder this Agreement during the preceding quarter (“x”), multiplied by theMarkup 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.

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**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) to compensate for such fluctuations in fuel costs, on a monthlybasis. The amount of the adjustment computed in accordance with this Section4.03 shall also be added to or subtracted from, as applicable, the specifiedprice for Contracted Operator Sell Price Products described in Section4.11.  The method for determining thefuel surcharge or adjustment will be made monthly beginning June 1, 2006 and willbe based on the California Weekly Retail On-Highway diesel fuel price which iscompiled by the Energy Information Administration. The Web site to access thisinformation electronically is as follows:

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

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

As fuel prices increase or decrease, the fuel cost adjustmentswill move according to changes in the four (4) week average for the Californiafuel price bracket, and will take effect on the first day of the calendar monthfollowing the applicable publication date. For example, the fuel cost adjustment beginning the first day in July,if any, will be determined based on the four (4) week average endingimmediately prior to or on June 30th.

**[CONFIDENTIAL](25)       [CONFIDENTIAL](26)**

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL](27)**, the surcharge will equal **[CONFIDENTIAL](28)**per case plus an additional **[CONFIDENTIAL](29)**per case for each **[CONFIDENTIAL](30)**increment (or portion thereof) that the price per gallon exceeds **[CONFIDENTIAL](31)**. If the price per gallon, including taxes, falls below **[CONFIDENTIAL](32)**, a credit will be issued in the amount of**[CONFIDENTIAL](33)**per case 

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plus an additional **[CONFIDENTIAL](34)**per case for each **[CONFIDENTIAL](35)**increment(or portion thereof) that the price is less than **[CONFIDENTIAL](36)**.  Any such surcharge or credit will be shown asa separate line item on the Operator’s invoice. The fuel surcharge will be **[CONFIDENTIAL](37)**/casefor all deliveries made between the Effective Date through May 31, 2006.

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

The **[CONFIDENTIAL](38)**Markup duringthe first **[CONFIDENTIAL](39)** months after theEffective Date (3.63 until the Sacramento expansion is operational pursuant tosection 4.12) is premised upon an average delivery size of **[CONFIDENTIAL](40)**cases to the Stores serviced by DISTRIBUTOR.  COMPANY and DISTRIBUTOR agree to review theservice levels provided by DISTRIBUTOR as well as the average delivery sizes **[CONFIDENTIAL](41)**days after the Effective date.  No adjustments will be made to the Markup atthat time unless the average delivery size experienced during the first **[CONFIDENTIAL](42)**days is greater than **[CONFIDENTIAL](43)**cases, adjusted for seasonality and excluding any additional deliveries made byDISTRIBUTOR during the initial transition period pursuant to Section 2.06.  In the event such a Markup adjustment isrequired, the COMPANY and DISTRIBUTOR agree to use the schedule that followslater in Section 4.04 as soon as practical after the review and such Markupwill remain in effect for the balance of the first year of the Agreement.

After the first **[CONFIDENTIAL](44)**monthsof service and after each **[CONFIDENTIAL](45)**monthperiod thereafter the Markup for the next **[CONFIDENTIAL](46)**monthswill be based on the actual average delivery size for the previous **[CONFIDENTIAL](47)**months according to the followingschedule:

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Average Delivery Size for

**[CONFIDENTIAL](48)                       [CONFIDENTIAL](49)**

The average delivery size will be calculated by summing up all of thecases delivered to the Stores serviced by DISTRIBUTOR in the Territory for theprevious **[CONFIDENTIAL](50)**months (with eachpartial case or “split” counting as a full case) and dividing the total numberof cases delivered by the total number of deliveries made by DISTRIBUTOR asmodified below.  The number of deliveriesmade by DISTRIBUTOR shall not include deliveries made by third parties arrangedby DISTRIBUTOR, nor deliveries to correct errors made by DISTRIBUTOR orsuppliers, nor shall it include deliveries for which DISTRIBUTOR has receivedthe **[CONFIDENTIAL](51)**special delivery feein accordance with Section 2.05.

In the event the average delivery size for the previous**[CONFIDENTIAL](52)** months falls outside of the rangesdescribed above or the weight/cube ratio of the average Proprietary Productcase sold to the Operators increases by more than **[CONFIDENTIAL](53**)from 32.16, COMPANY and DISTRIBUTOR will negotiate a new Markup in goodfaith.  In the event COMPANY andDISTRIBUTOR fail to agree on such a Markup adjustment within thirty (30) daysafter the commencement of negotiations under this Section 4.04, then bothCOMPANY and DISTRIBUTOR will have the right to terminate this Agreement with180 days written notice to the other party in accordance with Section 6.02(b)(ii).

**Schedule 3** includes severalStores located within airports subject to rigorous security inspections.  In the event these inspections are modifiedin such a way as to cause extensive delays during delivery beyond what iscustomary as of the Effective Date of this Agreement and these delays persistcontinuously for a period of several months, COMPANY and DISTRIBUTOR agree to meetin good faith to negotiate a solution that is mutually satisfactory to bothparties.

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

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(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 no sooner than **[CONFIDENTIAL](54)**days after the date of delivery. Operator’s who receive deliveries on Saturday or Sunday will have theirdebit entry initiated by DISTRIBUTOR on the Monday **[CONFIDENTIAL](55)**and **[CONFIDENTIAL](56)**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](57)**days, provided that they satisfy DISTRIBUTOR’S credit criteria forsuch terms, as such criteria is uniformly applied among all similarly situatedOperators, 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 at least **[CONFIDENTIAL](58)**days prior to the ACH debit entry actually taking place, advisingOperator of the amount of the ACH debit, along with the invoice number and anycredits posted during the prior **[CONFIDENTIAL](59)**days.

Notwithstanding the foregoing, DISTRIBUTOR agrees toprovide extended credit terms to Operators performing as Contract Feeders (asdefined below) in non-traditional locations provided that they satisfyDISTRIBUTOR’s credit criteria for such terms, as such criteria is uniformlyapplied among all similarly situated Operators in light of all relevant factsand circumstances. To qualify for such credit terms, each location operated bya Contract Feeder in the Territory must be approved by COMPANY in writing andthe Contract Feeder must comply with these extended credit terms.  “Contract Feeders” are Operators who operatenon-traditional food 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 

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when due shall result in DISTRIBUTOR having the rightto impose more stringent credit or payment terms, such as, without limitation,cash in advance, cash on delivery, delivery of acceptable letters of credit orthird party guaranties, or additional collateral, or, after three (3) businessdays’ prior notice to COMPANY and the affected Operator, to suspend alldeliveries, and declare the entire unpaid balance of the Operator’s accountimmediately due and payable. The COMPANY shall pay, and shall use itscommercially reasonable efforts to cause each Operator to pay, all reasonablecosts of collection, including reasonable attorneys fees incurred or paid byDISTRIBUTOR, but only to the extent related to their respective accounts.DISTRIBUTOR will have the right to charge interest at the maximum ratepermitted by law but not exceeding **[CONFIDENTIAL](60)**percentper annum on all unpaid amounts due or owing by Operators and/or COMPANY toDISTRIBUTOR.

(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.  Except as otherwise provided in thisAgreement, payments or reimbursements owed by Company to Distributor shall bepaid within fourteen (14) days of Distributor invoice date, or may be offset onthe next invoice owed by Distributor to the Company.

(d)                                 Paymentsto COMPANY as Supplier.  COMPANYinvoices the **[CONFIDENTIAL](61)** component ofits frozen yogurt Products directly to DISTRIBUTOR.  This **[CONFIDENTIAL](62)**varies by Product and a schedule of the current **[CONFIDENTIAL](63)**for its frozen yogurt Products is attached as **Schedule6A**(Temecula Territory) and**Schedule 6B**(Sacramento Territory).  COMPANY reserves the right to alter **[CONFIDENTIAL](64)** on its frozen yogurt Products in itsdiscretion but no more frequently than **[CONFIDENTIAL](65).**  COMPANY will invoice DISTRIBUTOR for theseproducts as shipped from the manufacturer and will designate the **[CONFIDENTIAL](66)**as separate line items for eachProduct.  DISTRIBUTOR agrees to pay theseinvoices within **[CONFIDENTIAL](67)**days ofreceipt.

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COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL](68)**on its frozen cake and pie Products atthe **[CONFIDENTIAL](69)**for each Product asshown on **Schedule 7A** (Temecula Territory) and **Schedule 7B** (Sacramento Territory).  Company reserves the right to alter **[CONFIDENTIAL](70)**on its frozen cake and pie Products inits discretion but no more frequently than quarterly.  Distributor shall pay all invoices for **[CONFIDENTIAL](71)** on its frozen cake and pie Products wheninvoiced by the COMPANY within **[CONFIDENTIAL](72)**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 andinvoice to COMPANY showing the amount of **[CONFIDENTIAL](73)**billedto each Store compared with the amount paid on these same Products byDISTRIBUTOR in accordance with **Schedules 7A**and**7B** and the amount owed toDISTRIBUTOR by COMPANY, payable within fourteen (14) days by COMPANY.  In the event COMPANY does not pay suchinvoice timely, DISTRIBUTOR will be authorized to take a credit for the amountowed to it by COMPANY on the next invoice payable to COMPANY.

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

**4.06**                        **Sourcing Fees. **COMPANY may, from time to time, collectcompensation from the Operators for services that each of them provide to suchOperators, either by increasing the Cost of a Product supplied by either ofthem to DISTRIBUTOR for distribution under this Agreement, or through theassessment of an additional fee (a “Sourcing Fee”) that COMPANY instructsDISTRIBUTOR to add in the calculation of the Sell Price of Products notpurchased from COMPANY.  Any changes inthe Sourcing Fees shall occur no more frequently than monthly.  COMPANY specifically represents and warrantsthat such Sourcing Fees (or increases in the invoiced Cost) have been and willcontinue to be disclosed to all Operators, and that the charging and collectionof such Sourcing Fees (or increased Cost) is permitted under its or itsaffiliates’ 

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                                                agreementswith the Operators 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, liabilityor expense (including reasonable attorney’s fees and disbursements) arisingfrom a breach of this representation and warranty.

DISTRIBUTOR shall pay all Sourcing Fees to COMPANY viainitiation of an ACH credit entry each Friday with respect to those Productsdelivered to the Operators during the preceding week and on which a SourcingFee was assessed.   The COMPANY shallrepay to DISTRIBUTOR any Sourcing Fees paid to the COMPANY by DISTRIBUTOR thatthe Operators fail to pay DISTRIBUTOR. This repayment obligation shall onlyapply to those Sourcing Fees incurred and unpaid by Operators during the first **[CONFIDENTIAL](76)**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](77)**day period (**[CONFIDENTIAL](78)**deliveries),DISTRIBUTOR will be liable for paying COMPANY the Sourcing Fees for thoseProducts purchased for the last **[CONFIDENTIAL](79)**deliveries.

**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 DISTRIBUTOR will supply the necessary files and information toCOMPANY for these audit purposes on a timely basis and in a form acceptable toCOMPANY and 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](80)**in****the aggregate during the audited period (not to exceed atwelve 

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(12) month period) COMPANY shall have the right toconduct 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](81)**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](82)**days from the final determination of the undercharge or overcharge, as applicable.

**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 ownexpense.  In addition, DISTRIBUTOR willpay COMPANY an annual support payment equal to **[CONFIDENTIAL](83)**payable within **[CONFIDENTIAL](84)**daysof written request by COMPANY.  COMPANYmay submit such requests only once during each calendar year and a total of **[CONFIDENTIAL](85) **suchrequests during the term of this Agreement.

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

(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       |       | -10o or lower                                          |       | 0                                                                   | o     |
| Hand-Dipped  Frozen Yogurt |       | Frozen       |       | -10o or lower                                          |       | 0                                                                   | o     |
| Yogurt Cakes and  Pies     |       | Frozen       |       | -10o or lower                                          |       | 0                                                                   | o     |
| Various Toppings           |       | Refrigerated |       | 34o to 36o                                        |       | 38                                                                  | o     |
| Nuts and Liquid  Toppings  |       | Frozen       |       | -10 or lower                                                |       | 0                                                                   | o     |
| Various Toppings           |       | Dry          |       | Above 38                                                    |       | Above 38                                                            |       |

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(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.

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

Weekly invoice registerby store outlining the SKU’s and quantity purchased

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

Weekly report of averagedrop sizes for each store

Monthly deliveryperformance report with on-time performance, fill rates and clean invoicepercentages

Daily out-of-stock reportand stores so affected

Monthly costing detail onall Products used by the SYSTEM

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 DISTRIBUTOR’s failure to pay taxes.  Neither party will pay a claim which isallegedly the responsibility of the other without first notifying the other andgiving the other the opportunity 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 

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required in Section 4.02 for all funds actuallyreceived or which could have been received from the suppliers of suchContracted Operator Sell Price Products as if DISTRIBUTOR maximized such funds,including credit for all payment discounts whether or not actually taken byDISTRIBUTOR.  Contracted Operator SellPrice Products include, but are not limited to, soft drink syrup productsincluding, without limitation, the following Coca Cola Products:  Coke Bag in Box (“BiB”), Diet Coke BiB,Sprite BiB and Barq’s Root Beer BIB.

**4.12****                        InitialMarkup during Sacramento Expansion —** Notwithstanding Section 4.01 tothe contrary, the Markup beginning on the Effective Date for all Productsexcept those with a Markup of **[CONFIDENTIAL](86)**,will be **[CONFIDENTIAL](87) **per case (as modified in accordance with Section 4.03) tocompensate DISTRIBUTOR for the additional costs of servicing the entireTerritory from Temecula while the DISTRIBUTOR’s Sacramento distribution centeris being expanded. This Markup will remain in place until the 1st ofthe month after the expansion is completed as evidenced by a certificate ofoccupancy from the regulating municipality at which time the Markup will be **[CONFIDENTIAL](88) **percase (as modified in accordance with Section 4.03) until the first anniversaryof the Effective Date.  In no event,however, will this **[CONFIDENTIAL](89) **Markup be in effect beyond August1, 2006.

**5.****              MinimumDeliveries —**The Operators will be required to order Products inminimum quantities of **[CONFIDENTIAL](90)** cases of Products per delivery unless due toDISTRIBUTOR or supplier error.  Inaddition, Operator will be required to pay DISTRIBUTOR a **[CONFIDENTIAL](91)**handling fee per order for orders of less than **[CONFIDENTIAL](92)**cases and **[CONFIDENTIAL](93)**handling fee perorder for orders of less than **[CONFIDENTIAL](94)**casesbut equal to or greater than **[CONFIDENTIAL](95)** cases unless due to DISTRIBUTOR or supplierincluding failure to fulfill the order in its entirety. Products with a Markupof **[CONFIDENTIAL](96)**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 

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(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.

(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.

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                        purposesof the true-up calculation required in Section 4.02.  However, the **[CONFIDENTIAL](97)**special delivery fees in Section 2.05 will not be credited toCOMPANY for purposes of the true-up calculation required in Section 4.02.

**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)           Either party shallhave the right, upon prior written notice, to immediately terminate thisAgreement 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 is appointedor any proceeding is demanded or initiated by, for or against the other partyunder any provision of the Federal Bankruptcy Act or any amendment thereof.

(b)           Either party shallhave the right to terminate this Agreement upon 180 days written notice underany 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

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

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cures its breach or default within any applicable CurePeriod to the reasonable satisfaction of the non-defaulting party, the noticeshall be void and this Agreement shall continue; otherwise, it shall terminatein accordance with the notice.

or

(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 in connectionwith the Proprietary Products.  COMPANYwill purchase or cause to be purchased perishable Proprietary Products within **[CONFIDENTIAL](98)**days after the effective date oftermination of this Agreement or by the expiration date of such ProprietaryProduct, whichever is earlier, and all nonperishable Proprietary Productswithin **[CONFIDENTIAL](99)**days after theeffective date of termination of this Agreement. In addition, if this agreementis terminated due to COMPANY’s breach or default, COMPANY shall reimburse toDISTRIBUTOR all other reasonable out-of-pocket costs and expenses (not toexceed an amount equal to **[CONFIDENTIAL](100)**of the Markup on each Product unless DISTRIBUTOR receives COMPANY’s priorwritten consent) incurred by DISTRIBUTOR in selling, returning or otherwisedisposing of such Proprietary Products. DISTRIBUTOR shall provide COMPANY withdocumentation or other proof that any such costs and expenses were incurred byDISTRIBUTOR. Termination of this Agreement shall not relieve either party ofany obligation or liability which accrues prior to the effective date oftermination (including, but not limited to, obligations related to the paymentof COMPANY’s accounts receivable or accounts payable and the purchase of excessinventories). Notwithstanding the foregoing provisions of this Section 6.03 tothe contrary, if this Agreement is terminated due to DISTRIBUTOR’s breach ordefault or expires in accordance with the provisions of Section 6.01, COMPANYshall have the obligation to purchase, or shall direct the replacingdistributor or other suitable purchaser to purchase, from DISTRIBUTOR only suchinventory of the Proprietary Products which is merchantable and saleable butCOMPANY shall have no obligation to reimburse DISTRIBUTOR for its out-of-pocketcosts and expenses related to selling, returning or otherwise disposing of suchProprietary Products.

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

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**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 other markingsused 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 therein to identify the Proprietary Products, subjectto COMPANY’s prior written approval of form and content. Provided DISTRIBUTORis using the Trademarks in accordance with the terms and provisions of thisAgreement, COMPANY shall indemnify, defend and hold DISTRIBUTOR and itssubsidiaries, affiliates, officers, shareholders, directors, employees,members, managers, agents, successors and assigns harmless from and against anyand all claims, demands, liabilities, causes of action, damages, costs(including reasonable attorneys’ fees and disbursements) and judgments made orincurred by or found against any of them resulting from or arising out of anyclaim or suit alleging infringement by COMPANY or its affiliates, through anyof the Trademarks or otherwise.

**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:

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(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 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.  

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**EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT,****DISTRIBUTOR MAKES NO WARRANTIES, EXPRESS ORIMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY ORFITNESS 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 which may give rise to a claim forindemnification hereunder; unless such failure to promptly notify does notmaterially prejudice the claim; (ii) the indemnifying party being allowed tocontrol the defense and settlement of such claim; and (iii) the indemnifiedparty reasonably cooperating with the indemnifying party (at the indemnifyingparty’s expense) in providing information relevant to the defense or settlementof a claim. The indemnified party shall have the right, at its option andexpense, to participate in the defense of any action or proceeding throughcounsel of its own 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](101)**; and

(b)                                 commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL](102)**).

All such insurance shall be provided by insurancecompanies which are licensed and authorized to do business in the United Statesof America, shall be occurrence based policies and which insurance companiesare reasonably satisfactory to COMPANY. DISTRIBUTOR agrees to deliver to COMPANY, on or prior to the EffectiveDate, 

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

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

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certificates of insurance evidencing the existence ofall the above insurance coverages and naming COMPANY as an additional insured undersuch policies.  The certificates shallcontain an agreement by the insurance carrier to notify COMPANY, in writing, atleast thirty (30) days prior to the date of any cancellation or change in suchinsurance coverage.

**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 damage liabilityof not less than **[CONFIDENTIAL](103)**. All suchinsurance shall be provided by insurance companies which are licensed andauthorized to do business in the United States of America, and which arereasonably 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 and Warranties**

**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 California. 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 in accordancewith 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.

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

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(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 of incorporation,as amended to date, of DISTRIBUTOR, (ii) any judgment, order, decree, ruling orinjunction 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**      **Representations****and Warranties of COMPANY** — COMPANYhereby represents and warrants to DISTRIBUTOR 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.

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(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.

**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:        Southwest Traders, Inc.

Attention:  KenSmithPresidentFAX:  (951) 693-1596

 

If toCOMPANY:      TCBY Systems, LLC

2855 E. Cottonwood Parkway, Suite 400Salt Lake City, UT 84121-7050Attention: Purchasing DirectorFAX:  (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. 

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                                                Nothingexpressed or implied in this Section 12 shall excuse the non-performance ordelay in performance of any payment obligation of the COMPANY 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 authority,whether express, implied, or apparent, to assume or create any obligations onbehalf of the other.

**14.****                               EntireAgreement; Modifications —**This Agreement and the Schedules attachedhereto and made a part hereof, constitute the entire agreement andunderstanding of the parties with respect to the subject matter hereof, andsupersede all prior proposals, negotiations, communications, representations,written or oral agreements and understandings between the parties with respectto the subject matter hereof. No modification of any term or provision of thisAgreement shall be enforceable unless embodied in a writing executed by allparties to this Agreement.

**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 

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                                                partiesand their respective successors and assigns. DISTRIBUTOR may assign its accounts receivables, and related contractrights, in connection with its accounts receivable financing andsecuritization.

**18.****                               NoOffer —**The submission by DISTRIBUTOR to COMPANY of this Agreementshall have no binding force or effect, shall not constitute an offer to sellthe Products, nor confer any right or impose any obligation upon either partyuntil executed by both parties.

**19.****                               Confidentiality—**Any proprietary information supplied by either party to the other party(whether set forth in writing, on any data base or in any other medium),including, but not limited to information on customer and supplier identity orany other customer or supplier information, purchasing volumes and history,pricing, purchasing specifications, and product market results (the“Confidential Information”), is and shall remain confidential and proprietaryinformation of the disclosing party, and valuable trade secrets owned solely bythe disclosing party. The recipient party of any Confidential Information shallnot disclose any such Confidential Information to any third person or entitywithout the prior written consent of the disclosing party in every instance,and shall not use any such Confidential Information, nor permit any suchConfidential Information to be used, for any reason other than to fulfill theterms of this Agreement; provided, however, that either party and itsrespective successors and assigns may (i) disclose any Confidential Informationto the extent compelled by law, regulation, rule, subpoena, or other process oflaw and (ii) provide invoices, and any information relating to historicalpayments or payments due or to become due from franchisees or Operatorshereunder to its auditors and legal counsel, and to present and potentialfinancing sources and rating agencies and their respective auditors and legal counsel). The parties’obligations under this Section 19 shall not apply to any of the 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 toCOMPANY  (a “Dispute”) shall be resolvedby binding arbitration in Salt Lake City, 

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                                                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 and the two arbitrators will select a third whoshall 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.]*

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**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 |   |
|   |                     |   |   |
|   |                     |   |   |
|   | SOUTHWEST  TRADERS, INC. |
|   |                     |   |
|   |                     |   |
|   | By:                      | /s/ Ken Smith |   |
|   | Its:                     | President |   |

 

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Schedule 1

# **ProductCategories**

Frozen Yogurts — Soft Serve and Hand Dipped

Hand Dipped Ice Creams (to be replaced with Hand Dipped Yogurts)

Yogurt Cakes and Pies

Confectionary Fruits, Nuts, Toppings and Cones

Miscellaneous Dessert Items

Snacks

Beverages including Fountain Syrup

Packaging & Paper Items

Cleaning Supplies

Miscellaneous Items — asagreed to by and between Company and Distributor

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Schedule 2

Maps of Territory

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Schedule 3

Store Listings

Schedule 4

Product Listings

[ConfidentialTreatment has been requested for these Schedules.  The confidential redacted portions have been filed separately with the SEC]

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Schedule 5

Temecula InboundQuantity Matrix

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

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Schedule 6

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

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