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**CONFIDENTIAL**

**Exhibit 10.70**

**[Conformed Copy]**

**DISTRIBUTIONAGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 8th day of May, 2006, by and between **TCBY SYSTEMS, LLC,** a Delaware limitedliability company (“COMPANY”) and **YANCEY’SFOODSERVICE COMPANY, INC.,**a Colorado Corporation (“DISTRIBUTOR”).DISTRIBUTOR will commence distribution services under this Agreement on June19, 2006 (the “Effective Date”) unless otherwise mutually agreed upon by theparties.

**RECITALS**

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

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

**C.**                                    COMPANY wishes toappoint DISTRIBUTOR as a distributor of certain approved proprietary food andrelated 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 center located in Loveland, Colorado (the “Territory”) asreflected in the map and county listing depicted in **Schedule 2** and DISTRIBUTOR hereby accepts such appointment. Tothe extent that conflicts arise between the map and the county listing in **Schedule 2**, the map shall prevail.  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.

**2.             Distributionof 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.

**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 

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                                                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**.  **Schedule 3A**also includes a current list of the Stores to be cross-docked by DISTRIBUTORwith Valley Distributing of Montana, Inc. (“Cross-Docked Stores” and “VDI”) pursuant to Section 2.04 below. Duringthe term of this Agreement, COMPANY shall maintain and provide to DISTRIBUTOR acurrent list of all Operators with Stores within the Territory who have beenapproved by COMPANY for distribution of the Products under this Agreement.DISTRIBUTOR shall have the right to rely upon such list, as amended or modifiedby COMPANY in writing from time to time, in performing its obligations underthis Agreement. COMPANY shall notify DISTRIBUTOR of new Stores within theTerritory not less than fourteen (14) days prior to the desired date of firstshipment of Products to any such new Stores. In addition, provided and to theextent that COMPANY and DISTRIBUTOR mutually agree in writing, DISTRIBUTORshall provide distribution services to Stores located outside the Territory, asdesignated by COMPANY.

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

**2.03**                        **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.  

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                                                Operatorsmay place orders electronically (“Electronic Orders”) or by telephoning orfaxing DISTRIBUTOR’s customer service center in accordance with the guidelinesdetailed below. All shipment expenses from DISTRIBUTOR’s distribution center tothe Operator’s location shall be at DISTRIBUTOR’s expense unless otherwise noted elsewhere in thisAgreement. Product order guides will be provided by DISTRIBUTOR to theOperators monthly via DISTRIBUTOR’s website and with a hard copy delivered toeach Store, with availability of such order guides to be made prior to thebeginning of the month, but only after review and approval of the order guideby COMPANY. The order guides will be organized by Product categories and willinclude, among other things, the Product Sell Price (as defined herein),Product units and new Products. DISTRIBUTOR will assign one product code numberto each stock-keeping unit (“SKU”) of each Product, which will be commonthroughout its entire distribution system and will be used on all documentssuch as order guides, invoices, monthly reports, etc. SKU’s, and, accordingly,the assigned product code number, must differ for equivalent Products suppliedby different suppliers. DISTRIBUTOR       will use its best efforts to utilize the existing TCBY product itemnumbers.  Only Products approved for saleto its 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 2:00 p.m. one (1) day priorto their scheduled delivery day, with the exception of Stores located in theState of Utah and Durango, Colorado which must be submitted two (2) days priorto their scheduled delivery day and the Cross-docked Stores which must besubmitted one (1) day prior to the day their order is to be picked up at the DISTRIBUTORdistribution center.  Operators will benotified prior to the time of final order cut-off if a product is expected tobe out of stock so that an alternative may be ordered, subject to theprovisions of Section 3.02.  Operatorswill have until 4:30 p.m, one (1) day before their order shipping day to modifyor add-on to their order (Sunday at 4:30 p.m. for Stores whose deliveries willleave DISTRIBUTOR’s facility on Monday). Where reasonably possible, DISTRIBUTOR will schedule ordering days anddelivery days that are mutually agreed upon by and between DISTRIBUTOR and eachOperator and will provide notice to the affected Operator at least fourteen(14) days before routing changes.

Although DISTRIBUTOR may schedule deliveries on anyday of the week, it is DISTRIBUTOR’S intent to schedule deliveries on Tuesdays,Wednesdays or Thursdays, wherever possible. On an exception basis, DISTRIBUTOR will consider shortening thepermissible time frames for scheduled deliveries for those Operators that,given unique and compelling business needs, require the same.  Operator will be notified of any Productshortages at the time of order placement or, in the case of an ElectronicOrder, one (1) day prior to the loading of the delivery truck.

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

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) and Cross-docked Stores, an overall average of 90%of all regularly scheduled deliveries will be made within a two (2) hourwindow, meaning no earlier than one (1) hour before and no later than one (1)hour after the scheduled delivery time. If a delivery is anticipated to falloutside of this two (2) hour window, DISTRIBUTOR will immediately notify theOperator. 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 penalty fee of **[CONFIDENTIAL](1)**to DISTRIBUTOR for subsequent occurrences. In the event of a Product shortage or delivery problem that occursduring an unattended delivery, the authorized representative of the Stores willcontact the distribution center no later than the first Notification Deadlinefollowing such unattended delivery.  The “NotificationDeadline” is 4:00 p.m. local time each day for the affected Stores.

In the case of Storeslocated in the states of Montana, North Dakota and South Dakota and theportions of Wyoming located outside of the Territory, DISTRIBUTOR agrees tomanage the 

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(1)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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entire distribution process in conjunction with VDI,including the processing of orders from the Stores, picking, palletizing,shrink-wrapping and loading of product onto VDI’s truck at DISTRIBUTOR’Sdistribution center, invoicing of Operators and the processing of credits andpayments.  DISTRIBUTOR shall have noliability with respect to the acts or non-performance of VDI but will beresponsible for its own errors in performing the services outlined aboveincluding but not limited to mispicks and out-of-stocks not attributable tosupplier non-performance.  VDI will bepermitted to inspect and verify total case counts on each pallet prior toloading of the order onto its truck.

DISTRIBUTOR agrees to assume all liability forcompensating VDI as mutually agreed upon between VDI and COMPANY and COMPANYshall have no obligation to compensate VDI except through the Markup andsurcharges assessed to the Stores pursuant to Sections 4 and 5 of thisAgreement.  COMPANY has providedDISTRIBUTOR with a copy of the current compensation arrangement with VDI andagrees to notify DISTRIBUTOR in writing fourteen (14) days prior to anychanges.  DISTRIBUTOR will not beobligated to implement such a change in the compensation arrangement with VDIuntil COMPANY and DISTRIBUTOR have agreed on the impact of such a change on theMarkup called for in Sections 4.01 and 4.04. DISTRIBUTOR will pay VDI its compensation at times mutually agreed tobetween DISTRIBUTOR and VDI.  In theevent it should become necessary to replace VDI, COMPANY and DISTRIBUTOR agreeto work together diligently to find a solution satisfactory to bothparties.  However, DISTRIBUTOR will notbe obligated to provide delivery services to the Cross-docked Stores unless itis mutually agreed upon between DISTRIBUTOR and COMPANY.

**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 |   |

 

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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.  COMPANY willprovide DISTRIBUTOR with the initial delivery frequency for each Store in **Schedule 3**. Notwithstanding the foregoing unless and until it obtains anothercustomer in the Salt Lake City area, DISTRIBUTOR will only be obligated toservice the Utah portion of the Territory every two (2) weeks unless itacquires additional business from a 3rd party in that state and COMPANY acknowledgesthat Operators in Utah will receive service at two (2) week intervals, i.e.every 2, 4, 6, 8 10, 12, 14 or 16 weeks as the case may be, until such time asthat 3rd party business begins.  Similarly, DISTRIBUTOR will only be obligatedto service Stores located in Casper, Mills, Lander and Glen Rock, Wyoming atthree (3) week intervals, i.e. every 3, 6, 9, 12 or 15 weeks, as the case maybe, unless and until DISTRIBUTOR acquires additional business in these marketsas well. Stores to be serviced by VDI will receive service at two (2) weekintervals, i.e. every 2, 4, 6, 8, 10, 12, 14 or 16 weeks, as the case may be.  Scheduled delivery service from DISTRIBUTORto Durango, Colorado and Pocatello, Idaho will be up to ten (10) and thirteen(13) times per year, respectively, until such time as the respective Operatorpurchases 1,000 or more cases on a rolling twelve (12) month basis.  COMPANY and DISTRIBUTOR will mutually agree onthe exact date for routing changes from summer to winter and winter to summerbut each period will be approximately six (6) months with summer routing fromApril through September and winter routing from October through March.

In the event an emergency delivery is required based upon the Operator’sneeds and not due to a delivery error by DISTRIBUTOR nor during the timeperiods specified in Section 2.06, DISTRIBUTOR will accommodate the Operator’srequest with the most efficient available delivery method. All additionalfreight expense will be at the Operator’s expense and will be billed uponDISTRIBUTOR’s receipt of the invoice from the shipping agent. If DISTRIBUTOR isable to schedule such an emergency delivery in conjunction with a nearby route,the additional freight expense will be **[CONFIDENTIAL](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 remedythe shortage at the supplier’s expense. If supplier fails to pay the additionalfreight expense, COMPANY will be required to do so provided DISTRIBUTORnotifies COMPANY immediately of supplier non-performance.  If an 

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(2)           Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(3)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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emergency delivery is necessary due to DISTRIBUTOR error, DISTRIBUTORwill arrange a special delivery with any additional freight to be paid byDISTRIBUTOR.

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

**2.06****                        Special Deliveries During Roll-Out and NewOperator Openings —**DISTRIBUTORand COMPANY recognize that during the initial roll-out phase of the DISTRIBUTORdistribution program, many new processes will be in place for each of COMPANY,the Operators and 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 this Agreementand excepting new Operator openings in Utah, Wyoming, Durango, Colorado andPocatello, Idaho, DISTRIBUTOR will process emergency orders for all Operators’newly added Stores within the first thirty (30) days following the opening ofthe new Stores, subject only to minimum order requirements and applicablehandling fees, if any, as set forth in Section 5 of this Agreement.

**2.07****                        Return of Products/Credits** — AnyProducts ordered by Operators which are returned to DISTRIBUTOR for any reasonmust be returned no later than the next regularly scheduled delivery (exceptthat, in the case of Products to be returned as a result of concealed damage,within the remaining shelf life of such Products) and all claims for Productsto be returned must be made either to the driver upon check-in of the order, bytelephone by 4 p.m. on the day of delivery following receipt of the Products ifan unattended delivery or, in the case of concealed damage, within twenty-four(24) hours of discovery of concealed damage by the Operator.  All returned items must be in 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 (or receipt of product,if warranted) and will immediately provide documentation on its website forOperator of such credit if the original order was placed electronically or viafax or phone if the 

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order was placed in some other manner.  Notwithstanding the foregoing, no returnswill be permitted for cooler or freezer items, or fresh produce due to misorderby the Operator.  Products refused byOperator at time of delivery for reasons other than damage or remaining shelflife below agreed upon parameters will be subject to a **[CONFIDENTIAL](4)**restocking charge to be paid by Operator. In the event that the shorted, defective or damaged Product is a KillItem, then DISTRIBUTOR will remedy the situation in accordance with Section 3.02if so requested by the Operator.

DISTRIBUTOR’s obligations under this Section 2.07 with respect toProduct sold to Cross-docked  Stores,shall be limited to mispicks, product shortages/mis-labeling and concealeddamage.  DISTRIBUTOR does agree, however,to issue timely credits to Operators for errors committed by VDI and to adjustthe compensation of VDI as mutually agreed between DISTRIBUTOR and VDI.

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

**3.             Suppliers 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 

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(4)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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                                                termsand conditions as are agreed upon by and between DISTRIBUTOR and such suppliers(including COMPANY). In the event COMPANY enters into direct contracts withsuppliers, the terms and conditions of such contracts that obligate DISTRIBUTORshall be provided to DISTRIBUTOR for its business and legal review and, if thebusiness and legal terms of the proposed contract that apply to DISTRIBUTOR arereasonably acceptable to DISTRIBUTOR, DISTRIBUTOR will approve the suppliercontract. The guaranteed supplier price provided under such supplier contract(net of billbacks by DISTRIBUTOR, if any), plus applicable freight if the supplierprice is not a delivered price, **[CONFIDENTIAL](5)**if any, attributable to the Product, **[CONFIDENTIAL](6) **plus any applicable Sourcing Fees(defined below) shall be the “Cost” of the Product.  Products governed by such supplier contractsnegotiated by COMPANY are referred to herein as “Contracted Products.” Thefreight charges for Contracted Products will be an amount negotiated with thesupplier by COMPANY.  DISTRIBUTOR agreesthat Cost for any Contracted Products will not include any unloading costs forpalletized 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 to efficientlyreduce the cost of Products purchased, and to maximize Product inventory turns.In addition, DISTRIBUTOR agrees to order Products in the quantities indicatedon the inbound quantity matrix attached hereto as **Schedule 5,**as amended by COMPANY to reflect the growth in thenumber of Stores serviced by DISTRIBUTOR in the Territory from time to time. Tofurther insure DISTRIBUTOR’s ability to comply with the performancerequirements detailed later in this Section 3.02, DISTRIBUTOR will alsomaintain at each distribution center servicing Operators “safety stock” of notless than **[CONFIDENTIAL](7)**days historical usagefor all Proprietary Products and will also have an additional **[CONFIDENTIAL](8)**days historical usage of white chocolatemousse, chocolate and vanilla frozen yogurt on the road at all times.DISTRIBUTOR agrees that all Products delivered to Operators will have at leastone-third of their original shelf-life remaining as of the date of delivery.

COMPANY categorizes Products into three classes:

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(5)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(6)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(7)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(8)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

 

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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 willprovide a list of Kill Items and other Proprietary Products to DISTRIBUTOR,which list will be updated by COMPANY from time-to-time.  The initial list of Kill Items is attached as**Schedule 4**.

Other 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 requested, an overall aggregate “fill rate” for allProducts of **[CONFIDENTIAL](10), **and at least **[CONFIDENTIAL](11)**of all invoices issued by DISTRIBUTOR to the Operators will be completelyaccurate at the time of initial issuance, with all of the above measuredquarterly.  The “fill rate” equals thepercentage of Products or Kill Items, as the case may be, obtained by dividingthe total number of Products or Kill Items shipped by DISTRIBUTOR and receivedby the Operators at the time of delivery for the month, by the total number ofProduct or Kill Items ordered by the Operators from the DISTRIBUTOR for thatsame month.  All fill rate measurements(and invoice accuracy requirements) will be net of supplier-related issues suchas shortages and delayed deliveries to DISTRIBUTOR, provided DISTRIBUTORnotifies COMPANY immediately in the event of supplier non-performance. Ifemergency delivery is required due to supplier (including COMPANY) error, costsof emergency delivery shall be at supplier (including COMPANY) expense,provided that, if the supplier fails to absorb such expense, such deliverycosts shall be paid by the Operator provided DISTRIBUTOR has notified COMPANYimmediately in the event of such non-performance and Operator has approved theadditional expense in advance.   If theemergency delivery is due to DISTRIBUTOR error, then DISTRIBUTOR will remedythe situation in as efficient manner as possible, which may include emergencydeliveries and special freight shipments, at DISTRIBUTOR’S sole expense. If theemergency delivery is due to Operator error, the Operator shall pay deliverycosts for such emergency delivery.  Fromthe moment of receipt of the Products for storage by DISTRIBUTOR until theProducts have been accepted by Operator at the Store, DISTRIBUTOR assumes allrisk of loss or 

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(9)           Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(10)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(11)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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damage with respect thereto, shall be directly liable to COMPANY forany such loss or damage to the Products and the related costs and expenses forreplacing the Products and agrees to obtain and maintain adequate insurancecoverage to insure 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 (as hereinafterdefined) of the substituted Product or the Cost of the out-of-stock Productthat 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 losses sustaineddue to such error.

To the extent that DISTRIBUTOR is unable to sell to the Operatorsquantities of the Proprietary Products in DISTRIBUTOR’s inventory for anyreason whatsoever, including, but not limited to, Product discontinuation,slow-moving inventory, unused LTO Products, promotional or seasonal Products orexceeded shelf life due to sudden decline in Product movement and not due toDISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase,all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost,F.O.B. the DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling andcarrying charges, if properly approved by COMPANY in advance as outlinedbelow.  In such event, COMPANY willpurchase or cause to be purchased all perishable Proprietary Products within **[CONFIDENTIAL](12)**days after notice from DISTRIBUTOR or bythe expiration date of the Proprietary Products, whichever is earlier, and allnonperishable Proprietary Products within **[CONFIDENTIAL](13)**daysafter notice from DISTRIBUTOR.  Inaddition, if the inventory re-purchase is necessitated for any reason otherthan DISTRIBUTOR error, COMPANY shall reimburse to DISTRIBUTOR all reasonableout-of-pocket costs and expenses (not to exceed an amount equal to **[CONFIDENTIAL](14)**of the Product’s Cost unless DISTRIBUTORreceives COMPANY’S prior written consent) incurred by DISTRIBUTOR in selling,returning or otherwise disposing of such Products.  DISTRIBUTOR shall provide COMPANY with 

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(12)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(13)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(14)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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documentation or other proof that any such costs and expenses wereincurred by DISTRIBUTOR.  In order toallow COMPANY to monitor the supply and usage of the Proprietary Products,DISTRIBUTOR shall provide to COMPANY a monthly obsolete and slow-movinginventory report.

**3.03****                        AgedInventory Notification —**DISTRIBUTOR will immediately notify COMPANY inwriting in the event that any quantities of its Proprietary Products are within**[CONFIDENTIAL](15)**days of expirationof product life.  If DISTRIBUTOR fails todo so, COMPANY shall not be required to comply with the requirements set forthin 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 Salt Lake City, Utah and in quantities not toexceed a **[CONFIDENTIAL](16)**supply of suchProducts, in the aggregate, provided that DISTRIBUTOR and COMPANY have beengiven an opportunity by the present distributor to inspect any such Productprior to purchase pursuant to this Section 3.04.   DISTRIBUTOR will pay, via check, the presentdistributor for Products purchased from it, within ten (10) days of the laterof DISTRIBUTOR’S receipt of the Products or the receipt of the invoice approvedby COMPANY for the Products.  DISTRIBUTOR shall be responsible for all freight and unloading 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, 

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(15)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(16)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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COMPANY shall pay such invoiced amount, via check, sothat it is received by DISTRIBUTOR within **[CONFIDENTIAL](17)**daysof the date of the invoice.  In the caseof a rebate to COMPANY, DISTRIBUTOR shall pay the rebated amount within **[CONFIDENTIAL](18)**days of its determination of the amountto 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](19)**per case for all deliveries(collectively, “Markup”), subject to the other provisions of thisAgreement.  For purposes of thisAgreement, the “Cost” of a Product other than a Contracted Product shall be thesum of (a) the cost of the Product as shown on the invoices to DISTRIBUTOR fromthe respective supplier, including COMPANY, plus (b) if the invoiced cost ofthe Product is not a delivered price, the applicable freight charges related toshipping the Product from the supplier to DISTRIBUTOR’S distribution center,plus (c) the Sourcing Fees, if any, attributable to the Product, less (d)promotional allowances reflected on supplier invoices to DISTRIBUTOR.Applicable freight, in those cases where the invoice cost to DISTRIBUTOR fornon-proprietary Products is not a delivered cost, means that DISTRIBUTOR hasadded a reasonable freight charge, agreed to in advance and in writing byCOMPANY for delivering such non-proprietary Products from suppliers toDISTRIBUTOR.  Applicable freight for anynon-proprietary Product will not exceed the rate charged by nationallyrecognized carriers operating in the same market for the same type of freightservice. Cost for any non-proprietary Product will not be reduced by discountsfor cash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increase Cost.The Cost of a Contracted Product shall be determined in accordance with Section3.01.  In no event will the Cost ofContracted Products include amounts to be rebated to DISTRIBUTOR and therefore,DISTRIBUTOR will not negotiate off-invoice manufacturer rebates,labels/promotional allowances or any other “soft money” received from supplieror freight carriers of Contracted Products. In order to allow verification of the foregoing commitment, DISTRIBUTORagrees to provide documentation substantiating the Cost of items DISTRIBUTORpurchases from suppliers and freight carriers. DISTRIBUTOR agrees to limit its collection of such “soft money” to themanufacturers of non-proprietary Products. The Cost 

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(17)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(18)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(19)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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                                                ofContracted Products will not be reduced by discounts for cash or prompt paymentavailable to DISTRIBUTOR, breakage allowances or by backhaul revenue. Fuel orother transportation surcharges indicated on the manufacturer’s or supplier’sinvoice 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](20)**: 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 inMontana, North Dakota, South Dakota and Wyoming outside of the Territory usingVDI or such other distributor as may approved by COMPANY, shall be **[CONFIDENTIAL](21)**per case. VDI’s compensation for the Cross-Dock Stores will be **[CONFIDENTIAL](22)**per case except for the cases describedin the paragraph above which will be **[CONFIDENTIAL](23)**,subject to modification from time to time pursuant to Sections 2.04 and 4.04.

Any fuel surcharges collected pursuant to Section 4.03for these Stores shall be paid to VDI. Any delivery surcharges collectedpursuant to Section 5 for these Stores shall be shared with **[CONFIDENTIAL](24)**of the surcharge paid to DISTRIBUTOR and **[CONFIDENTIAL](25)**of the surcharge paid to VDI.  These surcharges are in addition to theMarkups earned by VDI as described above.

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(20)         Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(21)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(22)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(23)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(24)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(25)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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The Markup of **[CONFIDENTIAL](26)**percase has been developed by averaging the case fee for DISTRIBUTOR of **[CONFIDENTIAL](27)**on the cases which it will deliver directlyto the Stores, along with the **[CONFIDENTIAL](28)**percase DISTRIBUTOR will be compensated for the cases for the Cross-Docked Storescoupled with the **[CONFIDENTIAL](29)**case fee to beearned by VDI on the Cross-Docked Stores. This average was developed based on historical information whichindicates that approximately **[CONFIDENTIAL](30)**of all cases to be delivered will be handled in their entirety by DISTRIBUTORover a twelve (12) month period, as detailed in **Schedule 8**.

Notwithstanding the foregoing, any full palletquantities delivered by DISTRIBUTOR to Nicholas Foods will have a Markup of **[CONFIDENTIAL](31)**/case.

**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](32)**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](33)**percase, again subject to the other provisions of this Agreement. DISTRIBUTOR willprovide a report by Tuesday of each week for all delivery activity of the precedingweek showing the total number of cases delivered for that week, DISTRIBUTOR’stotal case fees charged, the average case fee charged and the difference forthe week and quarter-to-date between the total case fees charged and theproduct obtained by multiplying the total number of cases delivered by theMarkup.

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 

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(26)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(27)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(28)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(29)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(30)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(31)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(32)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(33)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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

**4.03****                        FuelCost Adjustments** — If the operating costs of DISTRIBUTOR are increasedor decreased as a result of fuel cost increases or decreases, DISTRIBUTOR mayadjust the Markup (as and if otherwise adjusted pursuant to the terms of thisAgreement) 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 October 1, 2006 andwill be based on the Rocky Mountain Weekly Retail On-Highway diesel fuel pricewhich is compiled by the Energy Information Administration. The Web site toaccess this information electronically is as follows:

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

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

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As fuel prices increase or decrease, the fuel cost adjustments willmove according to changes in the four (4) week average for the Rocky Mountainfuel 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 inOctober, if any, will be determined based on the four (4) week average endingimmediately prior to or on September 30th.

**[****CONFIDENTIAL](34)  [CONFIDENTIAL](35)**

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL](36)**, the surcharge will equal**[CONFIDENTIAL](37)**per case plusan additional **[CONFIDENTIAL](38)**percase for each **[CONFIDENTIAL](39)**increment(or portion thereof) that the price per gallon exceeds **[CONFIDENTIAL](40)**.  If the price per gallon, including taxes,falls below **[CONFIDENTIAL](41)**, acredit will be issued in the amount of **[CONFIDENTIAL](42)**per case plus an additional **[CONFIDENTIAL](43)**per case for each ten cent increment (or portion thereof) that theprice is less than **[CONFIDENTIAL](44)**.  Any such surcharge or credit will be shown asa separate line item on the Operator’s invoice.

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

The **[CONFIDENTIAL](45)**Markup during the **[CONFIDENTIAL](46)**months after the Effective Date  ispremised upon an average annual delivery size of **[CONFIDENTIAL](47)**cases to the Stores serviced by DISTRIBUTOR, the expectation that **[CONFIDENTIAL](48)** of all cases sold by DISTRIBUTOR will beoutside of the Cross-docked stores delivered by VDI and the average case Costof the Products, including **[CONFIDENTIAL](49)**.  COMPANY and DISTRIBUTOR agree to review theservice levels provided by DISTRIBUTOR as well as the average delivery 

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(34)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(35)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(36)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(37)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(38)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(39)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(40)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(41)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(42)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(43)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(44)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(45)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(46)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(47)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(48)         Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(49)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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sizes **[CONFIDENTIAL](50)**daysafter the Effective Date.  No adjustmentswill be made to the Markup at that time due to a variance in average deliverysize from projections, unless the average delivery size experienced during thefirst **[CONFIDENTIAL](51)**days isgreater than **[CONFIDENTIAL](52)**adjusted for seasonality and excluding deliveries to Cross-docked Stores andany additional deliveries made by DISTRIBUTOR during the initial transitionperiod pursuant to Section 2.06.  In theevent such a Markup adjustment is required, the COMPANY and DISTRIBUTOR agreeto use the schedule that follows later in Section 4.04 as soon as practicalafter the review and such Markup will remain in effect for the balance of thefirst year of the Agreement.

In addition to reviewing the average delivery size **[CONFIDENTIAL](53)**days after the EffectiveDate, COMPANY and DISTRIBUTOR will also review the average case Cost of theProducts **[CONFIDENTIAL](54)**Charges,but excluding any impact from the cost of inventory purchased pursuant toSection 3.04) for this same timeframe and agree to further modify the Markupschedule in this Section 4.04 as follows. The actual average case Cost experienced during the first **[CONFIDENTIAL](55)**days will be compared tothe projected level of **[CONFIDENTIAL](56)**.  If the actual case Cost is higher than **[CONFIDENTIAL](57)**, then no adjustment willbe made to the Markup at that time except as called for earlier in this Section4.04 and in Section 4.03.  However, ifthe actual average case Cost is less than **[CONFIDENTIAL](58)**then the Markup will be reduced by multiplying this difference by afactor of **[CONFIDENTIAL](59)**andsubtracting this amount from the Markup previously in effect (or which wouldbecome effective if an adjustment is also required due to a variation inaverage delivery size) and rounding to the nearest full cent.  For example, if the actual average case Costis **[CONFIDENTIAL](60)**(and thereis no adjustment called for due to a change in average delivery size), then theMarkup will be reduced **[CONFIDENTIAL](61)** times the factor of **[CONFIDENTIAL](62)**or **[CONFIDENTIAL](63)**In no event, however, will the Markup be 

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(50)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(51)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(52)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(53)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(54)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(55)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(56)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(57)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(58)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(59)         Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(60)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(61)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(62)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(63)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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reduced by more than **[CONFIDENTIAL](64)**due to this provision during the first **[CONFIDENTIAL](65)**months from the Effective Date nor by more than **[CONFIDENTIAL](66)**thereafter.  This Markup reduction willbe put into effect as soon as practical after the reduction has been determinedand it will remain in effect for the balance of the current year of theAgreement.

 

DISTRIBUTOR agrees that COMPANY may also decide in its sole discretionto change its procedures for collecting **[CONFIDENTIAL](67)**.  If these changes are such that DISTRIBUTOR isno longer required to pay **[CONFIDENTIAL](68)**thesecharges until at least ten (10) days after the Operator has been invoiced forthem by DISTRIBUTOR, then COMPANY will be entitled to present DISTRIBUTOR withits best estimate of the impact such changes will have on DISTRIBUTOR’s  average case Cost and DISTRIBUTOR agrees toimplement a Markup reduction in accordance with the calculation format calledfor above, i.e., a reduction of **[CONFIDENTIAL](69)**times the estimated reduction in average case Cost and thisreduction will become effective on the first of the month following the datethe COMPANY implements such a change in its collection procedure.  COMPANY and DISTRIBUTOR agree to review theaccuracy of COMPANY’s estimated impact on average case Cost with actual results**[CONFIDENTIAL](70)**days after ithas gone into effect and to make adjustments reasonably agreed to between theparties to reflect the actual average case Cost resulting from this change..

After the first **[CONFIDENTIAL](71)**monthsof service and after each **[CONFIDENTIAL](72)**monthperiod thereafter the Markup for the Stores including the Cross-docked Storesfor the next **[CONFIDENTIAL](73)**monthswill be based on the actual average delivery size for the previous **[CONFIDENTIAL](74)**months as calculatedbelow and according to the following schedule:

**[CONFIDENTIAL](75)**

**[CONFIDENTIAL](76)            [CONFIDENTIAL](77)**

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(64)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(65)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(66)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(67)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(68)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(69)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(70)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(71)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(72)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(73)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(74)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(75)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(76)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(77)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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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](78)**months(with each partial case or “split” counting as a full case) and dividing thetotal number of cases delivered by the total number of deliveries made by DISTRIBUTORas modified below.  The number ofdeliveries made by DISTRIBUTOR shall not include deliveries made by thirdparties arranged by DISTRIBUTOR, including Cross-docked Stores, nor deliveriesto correct errors made by DISTRIBUTOR or suppliers, nor shall it includedeliveries for which DISTRIBUTOR has received the **[CONFIDENTIAL](79)** special delivery fee in accordance withSection 2.05.

In the event the average delivery size for the previous **[CONFIDENTIAL](80)**months falls outside ofthe ranges described above, COMPANY and DISTRIBUTOR will negotiate a new Markupfor that DISTRIBUTOR facility in good faith. In the event COMPANY and DISTRIBUTOR fail to agree on such a Markupadjustment within **[CONFIDENTIAL](81)**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).

In addition to the adjustment for a change in average case drops perdelivery, after the first **[CONFIDENTIAL](82)** monthsof service and every **[CONFIDENTIAL](83)**monthsthereafter, COMPANY and DISTRIBUTOR will also review the percentage of totalcases sold and delivered by DISTRIBUTOR to the total sold and delivered byDISTRIBUTOR plus the amount sold to the Cross-docked Stores.  In the event this percentage is greater than **[CONFIDENTIAL](84)** or less than **[CONFIDENTIAL](85)** for the previous **[CONFIDENTIAL](86)**month period, COMPANYand DISTRIBUTOR will further adjust the Markup for the next **[CONFIDENTIAL](87)**months based on theactual percentage for the previous **[CONFIDENTIAL](88)**months, further adjusted to permit the Operators or DISTRIBUTOR, asthe case may be, to recover any loss or gain from the Markup of the previousyear.  This 

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(78)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(79)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(80)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(81)         Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(82)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(83)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(84)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(85)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(86)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(87)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(88)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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calculation will be based on the Markup called for above, the case feeof **[CONFIDENTIAL](89)**forDISTRIBUTOR for cases delivered to the Cross-docked Stores and the compensationfor VDI in effect as of that time.

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

(a)          Standard PaymentTerms.  Except as noted below,DISTRIBUTOR and COMPANY have agreed that payments to DISTRIBUTOR for Productsdelivered to the Operators (including Contract Feeders as defined below) shallbe received by ACH debit entry initiated by DISTRIBUTOR, so that the amount iscredited to DISTRIBUTOR’s account no sooner than **[CONFIDENTIAL](90)**days after the date of delivery.  DISTRIBUTOR may also accept payment by checkif so requested by Operator and approved by DISTRIBUTOR.  All new Operators will initially receive creditterms of **[CONFIDENTIAL](91)**days,provided that they satisfy DISTRIBUTOR’S credit criteria for such terms, assuch criteria is uniformly applied among all similarly situated Operators, inlight of all relevant facts and circumstances. Payment terms will be extended only to those Operators that arecreditworthy as shall have been solely determined by DISTRIBUTOR. DISTRIBUTORmay, in its sole discretion, provide alternate payment terms to those Operatorsnot meeting DISTRIBUTOR’s standards for creditworthiness.  DISTRIBUTOR will provide email or fax noticeto each Operator at least two (2) days prior to the ACH debit entry actuallytaking place, advising Operator of the amount of the ACH debit, along with theinvoice number and any credits posted during the prior seven (7) 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, sportsfacilities, travel plazas, universities, tech centers, etc.

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(89)         Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(90)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(91)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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(b)                                 NoSet-Off/Late Fees/Collection Costs. No deductions or set offs from payments due to DISTRIBUTOR may be madeby Operators for any reason without the prior written authorization ofDISTRIBUTOR.  Failure of the Operator tomake any payment required when due shall result in DISTRIBUTOR having the rightto impose more stringent credit or payment terms, such as, without limitation,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](92)**per annum on all unpaid amounts due or owing by Operators and/orCOMPANY to DISTRIBUTOR.

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

(d)                                 Paymentsto COMPANY as Supplier.  COMPANYpurchases its frozen yogurt Products and resells them to DISTRIBUTOR afteradding the **[CONFIDENTIAL](93). [CONFIDENTIAL](94).** COMPANY reserves the right toalter **[CONFIDENTIAL](95)**on itsfrozen yogurt Products in its discretion but no more frequently thanquarterly.  COMPANY will invoiceDISTRIBUTOR for these products as shipped from the manufacturer and willdesignate the **[CONFIDENTIAL](96)**asseparate line items for each Product. DISTRIBUTOR agrees to pay these invoices within **[CONFIDENTIAL](97).**

COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL](98)**on its frozen cake andpie Products at the maximum rate **[CONFIDENTIAL](99)**for each Product as 

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(92)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(93)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(94)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(95)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(96)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(97)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(98)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(99)         Confidential treatment has beenrequested for the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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shown on **[CONFIDENTIAL](100). **Company reserves the right toalter **[CONFIDENTIAL](101)**on itsfrozen cake and pie Products in its discretion but no more frequently thanquarterly.  Distributor shall pay allinvoices for **[CONFIDENTIAL](102)**onits frozen cake and pie Products when invoiced by the COMPANY within **[CONFIDENTIAL](103)**days of invoice date,which date will be no earlier than the date of receipt of the applicableProducts by the DISTRIBUTOR.

Each month, DISTRIBUTOR will provide a report andinvoice to COMPANY showing the amount of **[CONFIDENTIAL](104)**billed to each Store compared with the amount paid on these sameProducts by DISTRIBUTOR in accordance with Schedule 7 and the amount owed toDISTRIBUTOR BY COMPANY.  COMPANY agreesto pay this invoice within **[CONFIDENTIAL](105)**days of receipt.

In the event COMPANY decides to establish a newprocedure for new and or established Stores to bill and collect **[CONFIDENTIAL](106)**such that the **[CONFIDENTIAL](107)**are billed andcollected from the Stores by DISTRIBUTOR, DISTRIBUTOR agrees to remit such feeseach Friday via ACH credit for all sales made the previous 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’ agreements with the Operators and does not violate any applicablelaws.  COMPANY shall indemnify, defendand hold harmless DISTRIBUTOR, its affiliates, and each of their respectiveofficers, agents, directors, shareholders, or employees for any claims, loss,liability or expense 

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

(101)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(102)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(103)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(104)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(105)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(106)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(107)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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(including reasonable attorney’s fees anddisbursements) arising from 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 shall repayto DISTRIBUTOR any Sourcing Fees paid to the COMPANY by DISTRIBUTOR that theOperators fail to pay DISTRIBUTOR. This repayment obligation shall only applyto those Sourcing Fees incurred and unpaid by Operators during the first **[CONFIDENTIAL](108)**day period from thepoint in time that Operator was last current with DISTRIBUTOR.  For example, if Operator fails to payDISTRIBUTOR for invoices/indebtedness incurred and unpaid over **[CONFIDENTIAL](109)**day period **[CONFIDENTIAL](110),**DISTRIBUTOR will beliable for paying COMPANY the Sourcing Fees for those Products purchased forthe last **[CONFIDENTIAL](111)**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](112)**in the aggregate during the audited period (not to exceed a twelve(12) month period) COMPANY shall have the right to conduct additional audits,at its option and at DISTRIBUTOR’S reasonable expense, until the aggregate netpricing errors disclosed by an such additional audits are less than **[CONFIDENTIAL](113)**for the applicableaudit period.  For any audit conductedpursuant to this Section 4.08 that discloses that Operators 

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(108)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(109)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(110)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(111)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been 

(112)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(113)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

 

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were either overcharged or undercharged for Products,or that COMPANY was overpaid or overcharged during the audited period,DISTRIBUTOR and COMPANY agree to correct the overcharge, undercharge,overpayment or underpayment, as the case may be.  The form and method for making theseadjustments will be mutually agreed upon by DISTRIBUTOR and COMPANY; provided,however, in any event the remittance of any such adjustments shall be made byeither party within **[CONFIDENTIAL](114)**daysfrom 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](115)**payable within **[CONFIDENTIAL](116)**days of written request by COMPANY.  COMPANY may submit such requests **[CONFIDENTIAL](117)**during each calendaryear and a total of **[CONFIDENTIAL](118)**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       |       | 0 or lower                                                                    |       | 0                                                                                     | o     |
| Various Toppings           |       | Dry          |       | Above 38                                                                      |       | Above 38                                                                              |       |

 

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

(116)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(117)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been 

(118)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed 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 CurrentStores

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 required inSection 4.02 for all funds actually received or which could have been receivedfrom the suppliers of such Contracted Operator Sell Price Products as ifDISTRIBUTOR maximized such funds, including credit for all payment discountswhether or not actually taken by DISTRIBUTOR. Contracted 

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                        OperatorSell Price 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.

**5.****              MinimumDeliveries —**The Operators will be required to order Products inminimum quantities of **[CONFIDENTIAL](119)**cases of Products per delivery unless due to DISTRIBUTOR or suppliererror.  In addition, Operator will be requiredto pay DISTRIBUTOR a **[CONFIDENTIAL](120)**handlingfee per order for orders of less than **[CONFIDENTIAL](121)**cases and **[CONFIDENTIAL](122)**handlingfee per order for orders of less than **[CONFIDENTIAL](123)**cases but equal to or greater than **[CONFIDENTIAL](124)**cases unless due to DISTRIBUTOR or supplier including failure to fulfill theorder in its entirety. Products with a Markup of **[CONFIDENTIAL](125)**pursuant to Section 4.01 will be countedas cases for determining the applicability and amount of these handlingfees.  These handling fees will becredited to COMPANY for purposes of the true-up calculation required in Section4.02.  However, the **[CONFIDENTIAL](126)**special delivery feesin Section 2.05 will not be credited to COMPANY for purposes of the true-upcalculation 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 

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(119)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(120)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(121)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(122)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(123)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been 

(124)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(125)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(126)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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petition or consents to the filing of a petition against it in bankruptcyor any similar insolvency or debtor relief action, or if the other party makesa general assignment for the benefit of creditors, or in the event a receiveris appointed or any proceeding is demanded or initiated by, for or against theother party under any provision of the Federal Bankruptcy Act or any amendmentthereof.

(b)           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 shall havea period of thirty (30) days to cure the same (the “Cure Period”). If thedefaulting party cures its breach or default within any applicable Cure Periodto the reasonable satisfaction of the non-defaulting party, the notice shall bevoid and this Agreement shall continue; otherwise, it shall terminate inaccordance with the notice.

or

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

**6.03****                        Effectof Expiration/Termination —**Upon expiration or sooner termination ofthis Agreement, for any reason, COMPANY shall promptly purchase or arrange forthe purchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of theProprietary Products and any labeling and packaging materials used inconnection with the Proprietary Products. COMPANY will purchase or cause to be purchased perishable ProprietaryProducts within **[CONFIDENTIAL](127)**daysafter the effective date of termination of this Agreement or by the expirationdate of such Proprietary Product, whichever is earlier, and all nonperishableProprietary Products within thirty **[CONFIDENTIAL](128)**after the effective date of termination 

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(128)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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of this Agreement. In addition, if this agreement is terminated due toCOMPANY’s breach or default, COMPANY shall reimburse to DISTRIBUTOR all otherreasonable out-of-pocket costs and expenses (not to exceed an amount equal to **[CONFIDENTIAL](129)** of the Markup on eachProduct unless DISTRIBUTOR receives COMPANY’s prior written consent) incurredby DISTRIBUTOR in selling, returning or otherwise disposing of such ProprietaryProducts. DISTRIBUTOR shall provide COMPANY with documentation or other proofthat any such costs and expenses were incurred by DISTRIBUTOR. Termination ofthis Agreement shall not relieve either party of any obligation or liabilitywhich accrues prior to the effective date of termination (including, but notlimited to, obligations related to the payment of COMPANY’s accounts receivableor accounts payable and the purchase of excess inventories). Notwithstandingthe foregoing provisions of this Section 6.03 to the contrary, if thisAgreement is terminated due to DISTRIBUTOR’s breach or default or expires inaccordance with the provisions of Section 6.01, COMPANY shall have theobligation to purchase, or shall direct the replacing distributor or othersuitable purchaser to purchase, from DISTRIBUTOR only such inventory of theProprietary Products which is merchantable and saleable but COMPANY shall haveno obligation to reimburse DISTRIBUTOR for its out-of-pocket costs and expensesrelated to selling, returning or otherwise disposing of such ProprietaryProducts.

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

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

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

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

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

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

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

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

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

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

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**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](130)**; and

(b)                                 commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL](131)**.

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, certificates of insurance evidencing the existence of all the aboveinsurance coverages and naming COMPANY as an additional insured under suchpolicies.  The certificates shall containan agreement by the insurance carrier to notify COMPANY, in writing, at leastthirty (30) days prior to the date of any cancellation or change in suchinsurance coverage.

**9.02****                        COMPANY’sInsurance —**During the term of this Agreement, and for a period of one(1) year thereafter, COMPANY shall purchase and maintain, at its sole cost andexpense, commercial general liability insurance and products liabilitycoverage, and a contractual liability endorsement which specifically insuresall liabilities of COMPANY to DISTRIBUTOR under this Agreement, to the extentafforded by normal ISO policy forms and definitions, with all such insurancecoverages providing for combined single limit bodily injury/property damageliability of not less than **[CONFIDENTIAL](132)**. All such insurance shall be provided byinsurance companies which are licensed and authorized to do business in theUnited States of America, and which are reasonably satisfactory to DISTRIBUTOR.COMPANY agrees to deliver to DISTRIBUTOR, on or prior to the Effective Date, acertificate of insurance evidencing the existence of all the above insurancecoverages and naming DISTRIBUTOR as an additional insured under such policies. 

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(131)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

(132)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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                                                Thecertificate shall contain an agreement by the insurance carrier to notifyDISTRIBUTOR, in writing, at least thirty (30) days prior to the date of anychange in such insurance 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 Colorado. DISTRIBUTOR has the requisite power to ownproperties, to carry on its business as now being conducted by it, and toexecute, deliver and perform this Agreement.

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

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

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

**10.02      Representationsand Warranties of COMPANY**— COMPANY hereby represents andwarrants 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 

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                                                toown properties, 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 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) anycontract or agreement between COMPANY and any third party.

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

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

**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: |   | Yancey’s Food Service Company, Inc. |
|--------------------|--------|------------------------------------------|
|               |   | 5820 Piper Drive                         |
|               |   | Loveland, CO  80538                      |
|               |   | Attention: Chris  Boyd                   |
|               |   | Vice President                           |
|               |   | FAX: (970) 613-4334                      |

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| If to COMPANY: |   | TCBY Systems, LLC                      |
|----------------|--------|----------------------------------------|
|           |   | 2855 E.  Cottonwood Parkway, Suite 400 |
|           |   | Salt Lake City,  UT 84121-7050         |
|           |   | Attention:  Purchasing Director        |
|           |   | FAX: (801)  736-5941                   |

 

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

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

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

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

**17.****                               Assignment:Successors and Assigns —**Except as hereinafter set forth, neither ofthe parties may assign this Agreement without the prior written consent of theother, except that either party shall have the right to assign this Agreementto a parent, subsidiary or affiliated COMPANY, or may assign this Agreement inconjunction with the sale or transfer of all or substantially all of its stockor assets by way of a sale of stock or assets, a merger or other businessreorganization, without the prior consent of the other party; provided,however, that any such assignment shall not relieve the assigning party fromany liability or obligation under this Agreement that accrues prior to theassignment and notice thereof to the other party and provided further, that inthe event of a transfer of all or substantially all of the stock or assets of aparty or merger or other business reorganization, the surviving entity ortransferee is at least as financially strong as the assigning or originalparty.  The assigning party shall givenotice of such assignment to the other party. The provisions of this Agreementwill be binding upon and will inure to the benefit of the parties and theirrespective successors and assigns. DISTRIBUTOR may assign its accounts receivables, and related contractrights, in connection with its accounts receivable financing andsecuritization.

**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 “ConfidentialInformation”), is and shall remain confidential and proprietary information ofthe disclosing party, and valuable trade secrets owned solely by the disclosingparty. The recipient party of any Confidential Information shall not discloseany such Confidential Information to any third person or entity without theprior written consent of the disclosing party in every instance, and shall notuse any such Confidential Information, nor permit any such ConfidentialInformation to be used, for any reason other than to fulfill the terms of thisAgreement; provided, however, that either party and its respective successorsand assigns may (i) disclose any Confidential Information to the extentcompelled by law, regulation, rule, subpoena, or other process of law and (ii)provide invoices, and any information relating to historical payments orpayments due or to 

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                                                becomedue from franchisees or Operators hereunder to its auditors and legal counsel,and to present and potential financing sources and rating agencies  and their respective auditors and legalcounsel). The parties’ obligations under this Section 19 shall not apply to anyof the Confidential Information delivered or made available to them by theother party which the recipient of the Confidential Information can reasonablyestablish (a) was known to the recipient party at the time the ConfidentialInformation was disclosed or made available to the recipient party; (b) wasknown to the public at the time the Confidential Information was disclosed ormade available to the recipient party; (c) becomes known to the public afterthe date the Confidential Information was disclosed or made available to therecipient party through no fault or breach of this Section 19 by the recipientparty; (d) is given to or made available to the recipient party by a thirdparty who has a lawful right to disclose the Confidential Information to therecipient party; or, (e) is independently developed by the Recipient partywithout reference to the 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, Utah, in accordance with theCommercial Arbitration Rules of the American Arbitration Association and, tothe maximum extent applicable, the Federal Arbitration Act.  Arbitrations shall be conducted before onearbitrator 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 

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                                                bindingon all parties hereto, notwithstanding that all of the parties are notsignatory to an original or same counterpart. The parties may execute and deliver this Agreement by facsimiletransmission.

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

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**INWITNESS WHEREOF,**each of the parties hereto has caused thisAgreement to be executed and delivered by its duly authorized officers on theday and year first above written.
| TCBY SYSTEMS, LLC                         |                     |   |   |
|-------------------------------------------|--------------------------|--------|--------|
|                                      |                     |   |   |   |
|                                      |                     |   |   |   |
| By:                                       | /s/ Michael Ward         |   |   |   |
|                                      |                     |   |   |   |
| Its:                                      | Executive Vice President |   |   |   |
|                                      |                     |   |   |
|                                      |                     |   |   |
| YANCEY’S FOOD  SERVICE COMPANY, INC. |                     |   |   |
|                                      |                     |   |   |   |
|                                      |                     |   |   |   |
| By:                                       | /s/ Chris Boyd           |   |   |   |
|                                      |                     |   |   |   |
| Its:                                      | Vice President           |   |   |   |

 

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**SCHEDULE1**

# **ProductCategories**

Frozen Yogurts — SoftServe and Hand DippedHand Dipped Ice Creams (to be replaced with Hand Dipped Yogurts)Yogurt Cakes and PiesConfectionary Fruits, Nuts, Toppings and ConesMiscellaneous Dessert ItemsSnacksBeverages including Fountain SyrupPackaging & Paper ItemsCleaning SuppliesMiscellaneous Items — as agreed to by and between Company and Distributor

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**Schedule2 — YFS Agreement**

 

**8-May-06**

 

 

| State | ** ** | **County** | ** ** | **State** | ** ** | **County** | ** ** |
|-------|------------|------------|------------|-----------|------------|------------|------------|
| CO    |       | Weld       |       | UT        |       | Davis      |       |
| CO    |       | Denver     |       | UT        |       | Weber      |       |
| CO    |       | Denver     |       | UT        |       | Utah       |       |
| CO    |       | Denver     |       | UT        |       | Box Elder  |       |
| CO    |       | Arapahoe   |       | UT        |       | Utah       |       |
| CO    |       | Boulder    |       | UT        |       | Salt Lake  |       |
| CO    |       | La Plata   |       | UT        |       | Salt Lake  |       |
| CO    |       | Mesa       |       | UT        |       | Salt Lake  |       |
| CO    |       | Larimer    |       | UT        |       | Salt Lake  |       |
| CO    |       | Arapahoe   |       | UT        |       | Salt Lake  |       |
| CO    |       | Boulder    |       | UT        |       | Salt Lake  |       |
| CO    |       | Adams      |       | UT        |       | Salt Lake  |       |
| CO    |       | Larimer    |       | WY        |       | Natrona    |       |
| CO    |       | Garfield   |       | WY        |       | Fremont    |       |
| CO    |       | Montrose   |       | WY        |       | Laramie    |       |
| CO    |       | Gunnison   |       | WY        |       | Laramie    |       |
| CO    |       | Moffat     |       | WY        |       | Albany     |       |
| CO    |       | Routt      |       | WY        |       | Converse   |       |
| CO    |       | Larimer    |       | WY        |       | Natrona    |       |
| CO    |       | Chaffee    |       | WY        |       | Natrona    |       |
| ID    |       | Bannock    |       | WY        |       | Platte     |       |
| NE    |       | Thomas     |       |      |       |       |       |
| NE    |       | Dawes      |       |      |       |       |       |
| NE    |       | Red Willow |       |      |       |       |       |

 

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| District | ** ** | **FBC**       | ** ** | **Region** | ** ** | **Company [CONFIDENTIAL](133)** | ** ** |
|----------|------------|---------------|------------|------------|------------|--------------------------------------|------------|
| 62       |       | Chuck Webb    |       | 350        |       | 1001                                 |       |
| 63       |       | Kim Kowalczik |       | 350        |       | 1001                                 |       |
| 63       |       | Kim Kowalczik |       | 350        |       | 1001                                 |       |
| 63       |       | Kim Kowalczik |       | 350        |       | 1001                                 |       |
| 62       |       | Chuck Webb    |       | 350        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 62       |       | Chuck Webb    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 62       |       | Chuck Webb    |       | 350        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 62       |       | Chuck Webb    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 67       |       | Lawana Smith  |       | 400        |       | 1001                                 |       |
| 67       |       | Lawana Smith  |       | 400        |       | 1001                                 |       |
| 67       |       | Lawana Smith  |       | 400        |       | 1001                                 |       |
| 67       |       | Lawana Smith  |       | 400        |       | 1001                                 |       |
| 67       |       | Lawana Smith  |       | 400        |       | 1001                                 |       |
| 62       |       | Chuck Webb    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 31       |       | Dan Cataldo   |       | 250        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |
| 65       |       | Alex Hakim    |       | 350        |       | 1001                                 |       |

 

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(133)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

 

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Schedule 3A

Stores to beCross-Docked by VDI

 
| District   | ** ** | **FBC**      | ** ** | **Region** | ** ** | **Company [CONFIDENTIAL](134)**            | ** ** | ** ** |
|------------|------------|--------------|------------|------------|------------|--------------------------------------------|------------|------------|
| ** ** | ** ** | ** **   | ** ** | ** ** | ** ** | ** **                                 | ** ** | ** ** |
| ** ** | ** ** | ** **   | ** ** | ** ** | ** ** | ** **                                 | ** ** | ** ** |
| 62         |       | Chuck Webb   |       | 350        |       | 1001                                       | ** ** | ** ** |
| 62         |       | Chuck Webb   |       | 350        |       | 1001                                       | ** ** | ** ** |
| 65         |       | Alex Hakim   |       | 350        |       | 1001                                       | ** ** | ** ** |
| 65         |       | Alex Hakim   |       | 350        |       | 1001                                       | ** ** | ** ** |
| 65         |       | Alex Hakim   |       | 350        |       | 1001                                       | ** ** | ** ** |
| 67         |       | Lawana Smith |       | 400        |       | 1001                                       | ** ** | ** ** |
| 67         |       | Lawana Smith |       | 400        |       | 1001                                       | ** ** | ** ** |
| 67         |       | Lawana Smith |       | 400        |       | 1001                                       | ** ** | ** ** |
| 67         |       | Lawana Smith |       | 400        |       | 1001                                       | ** ** | ** ** |
| 67         |       | Lawana Smith |       | 400        |       | 1001                                       | ** ** | ** ** |
| 67         |       | Lawana Smith |       | 400        |       | 1001                                       | ** ** | ** ** |
| 65         |       | Alex Hakim   |       | 350        |       | 1001                                       | ** ** | ** ** |
|       |       |         |       | 1040       |       |                                       | ** ** | ** ** |
|       |       |         |       |       |       | Grand Total                                |       |       |
|       |       | Kaleel       |       | 297        |       |                                       | ** ** | ** ** |
|       |       | Rice Vistar  |       | 79         |       | Count                                      | ** ** | ** ** |
|       |       | SWT          |       | 318        |       | Weekly # of Orders                         |       |       |
|       |       |         |       | 694        |       | Avg Drop                                   | ** ** | ** ** |
|       |       |         |       |       | ** ** | **Revised Orders >[CONFIDENTIAL](135)** |       |       |
|       |       |         |       |       |       | Revised Avg Drop                           |       |       |
|       |       |         |       |       |       | Original Orders Minus Adj Orders           |       |       |

 

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(135)       Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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Schedule 4

Product Listing

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

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Schedule 5

Loveland InboundQuantity Matrix

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

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Schedule 6

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

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Schedule 7

YFS Agreement

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

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Schedule 8

YFS Agreement

Blended Case RateCalculation

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

 

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