**Exhibit 10.74**

** **

**TCBYSYSTEMS, LLC**

**DistributionService Agreement**

**with TheMerchants Company**

**September 7, 2006**

1

----

**DISTRIBUTIONAGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 7th day of September, 2006, by and between **TCBY SYSTEMS, LLC,** a Delaware limitedliability company (“COMPANY”) and **THEMERCHANTS COMPANY,**a Mississippi Corporation (“DISTRIBUTOR”).DISTRIBUTOR will commence distribution services under this Agreement on October16, 2006 (the “Effective Date”) unless otherwise mutually agreed upon by theparties.

**RECITALS**

**A**.            The COMPANY is engagedin the worldwide business of franchising or licensing retail TCBY Stores andother related concepts (“Franchised Stores”). COMPANY also has several COMPANY-owned stores that it supports directly(“Company Stores”).  The FranchisedStores and or individual franchisees (the “Franchisees”) function asindependent companies and are individually and solely responsible for theactivities at each location, including purchasing needed products and supplies,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.****           **The DISTRIBUTOR isengaged in the business of purchasing, selling, distributing and deliveringfood service products (including the Products, as defined below).  In connection therewith, the DISTRIBUTORmanages, controls, prepares and furnishes reports to its customers concerningthe inventories of products and supplies the DISTRIBUTOR purchases, manages andcontrols for sale, distribution and delivery to its customers.

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

2

----

# **AGREEMENT**

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

**1.****             Appointment**- Subject to all terms and conditions of this Agreement, COMPANY herebyappoints DISTRIBUTOR as a distributor of the products within the productcategories listed in **Schedule 1**(the“Products”), to the Stores in the territory serviced by DISTRIBUTOR’sdistribution centers located in Jackson, Mississippi and Clanton, Alabama (the “Territory”)as reflected in the map depicted in **Schedule2** and DISTRIBUTOR hereby accepts such appointment. This Territoryincludes the entire states of Alabama, Mississippi and Louisiana as well as thecities of Jonesboro, Arkansas, Hopkinsville and Bowling Green, Kentucky, and the portion of the Stateof Tennessee west of Interstate 65, but excluding the metropolitan area ofNashville and the cities of Clarksville, Franklin and Brentwood.  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.****             Distribution ofProducts**

**2.01****        Products -**DISTRIBUTORwill maintain in its inventory of Products the following: (i) Productsdesignated by COMPANY that contain the proprietary trademarks, service marks,logos or labels of COMPANY or any of its affiliates or that are made pursuantto specifications provided by COMPANY, its affiliates, or licensors for limiteddistribution to Operators (defined below) or other entities licensed byCOMPANY, its affiliates or licensors (“TCBY Branded Products”), and (ii) othersupplies or other national or regional branded Products designated  or contracted for by COMPANY to be maintainedin inventory by DISTRIBUTOR for distribution to COMPANY, its affiliates and the Operators.  (Collectively, Products described in clauses(i) and (ii) are referred to as “Proprietary Products”).  DISTRIBUTOR will also maintain in 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****        Approved Operators-**DISTRIBUTOR shall sell and deliver to Franchisees and Operators of Storesapproved by COMPANY and located within the Territory such quantities of theProducts (subject to minimum Product order requirements) as the Operators mayorder from time to time

3

----

during the term of this Agreement. DISTRIBUTOR shall cease selling TCBYBranded Products to any Operator not later than three (3) days following receiptof written notice from COMPANY advising DISTRIBUTOR that such Operator is nolonger approved by COMPANY and shall, within such timeframe, further ceaseselling, under the terms of any supplier agreement negotiated by COMPANY, allProprietary Products to such Operators referenced in such notice. In addition,DISTRIBUTOR shall have the right to cease the sale and distribution of Productsto any Operator (a) who is in default of its obligations to DISTRIBUTOR,provided that DISTRIBUTOR has given COMPANY at least three (3) business daysnotice of such default before ceasing deliveries to such Operator, or (b) whohas filed a voluntary petition in bankruptcy or under any other similarinsolvency or debtor relief law or who has had such a petition filed againstit, or who has made a general assignment for the benefit of its creditors.COMPANY shall also have the right to reinstate delivery to any Operator thatCOMPANY previously stopped selling by providing written notice to DISTRIBUTORand DISTRIBUTOR shall provide such delivery as soon as mutually agreed betweenthe parties.

A list of the present Operators with Stores locatedwithin the Territory and approved by COMPANY and their respective Storelocations is attached hereto as **Schedule 3**.  During the term of this Agreement, COMPANYshall maintain and provide to DISTRIBUTOR a current list of all Operators withStores within the Territory who have been approved by COMPANY for distributionof the Products under this Agreement. DISTRIBUTOR shall have the right to relyupon such list, as amended or modified by COMPANY in writing from time to time,in performing its obligations under this Agreement. COMPANY shall notifyDISTRIBUTOR of new Stores within the Territory not less than fourteen (14) daysprior to the desired date of first shipment of Products to any such new Stores.In addition, provided and to the extent that COMPANY and DISTRIBUTOR mutuallyagree in writing, DISTRIBUTOR shall provide distribution services to Storeslocated outside the Territory, as designated by COMPANY.

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

**2.03**        **ProductOrders -**All Product orders shall be submitted by the Operatorsto DISTRIBUTOR and shall specify the location of the Operator’s Stores, thetype of Product, and the quantity desired. Operators may place orders electronically (“Electronic Orders”) or bytelephoning or faxing

4

----

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), Productunits and new Products. DISTRIBUTOR will assign one product code number to eachstock-keeping unit (“SKU”) of each Product, which will be common throughout itsentire distribution system and will be used on all documents such as orderguides, invoices, monthly reports, etc. SKU’s, and, accordingly, the assignedproduct code number, must differ for equivalent Products supplied by differentsuppliers. DISTRIBUTOR              will utilize the existing TCBY product item numbers.  Only Products approved for sale to itsOperators by the COMPANY will be listed on this order guide. Electronic Orderswill be placed via internet using DISTRIBUTOR’s web-site.  All Electronic Orders are subject to thestandard order cut-off time of 4:00 p.m. local time, two (2) days prior totheir scheduled delivery day for Stores located in the states of Alabama,Mississippi and Louisiana and 4:00 p.m. local time, three (3) days prior totheir scheduled delivery day for stores located in the states of Tennessee andKentucky.  Orders not placedelectronically may be subject to earlier cut-off times than those establishedabove as mutually agreed upon between COMPANY and DISTRIBUTOR.  Operators will be notified prior to the timeof final order cut-off if a product is expected to be out of stock so that analternative may be ordered, subject to the provisions of Section 3.02.  Operators will have until 12:00 p.m. localtime, one (1) day before their order shipping day to modify or add-on to theirorder.  Notwithstanding the foregoing,Stores that have a scheduled delivery day of Monday, must have their ordersplaced by 12:00 p.m. local time, on the preceding Friday and will have until12:00 p.m. on Sunday to modify or add-on to their order.

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

5

----

**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), an overall average of 90% of all regularlyscheduled deliveries will be made within a two (2) hour window, meaning noearlier than one (1) hour before and no later than one (1) hour after thescheduled delivery time. If a delivery is anticipated to fall outside of thistwo (2) hour window, DISTRIBUTOR will immediately notify the Operator.DISTRIBUTOR will provide an inside delivery to each Operator in accordance withCompany’s temperature store requirements as detailed in Section 4.09, placingrefrigerated and frozen Products into their appropriate storage areas, but willnot be responsible for stocking shelves or rotating inventories.

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

The COMPANY agrees to use its commercially reasonableefforts to cause Operators to provide keys and security codes for nightdeliveries where necessary.  In the eventOperator refuses to provide keys and security codes, Operator will promptlymeet the delivery driver at the scheduled appointment time or at such othertime as Operator has been notified in the event of a late delivery.  If the Operator fails to meet the DISTRIBUTORdelivery at the appropriate time on more than one occasion, the Operator 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.

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

----

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

6

----

#### ** **

|                                  | ** ** | **Delivery Frequency**            | ** ** |
|----------------------------------|------------|----------------------------------------|------------|
| **Annual Case Volume** | ** ** | **Summer Routing**                | ** ** | **Winter Routing** | ** ** |
| Less than 200  cases             |       | 4  deliveries during a 12 month period |       |
| 200-349 cases                    |       | 6  deliveries during a 12 month period |       |
| 350-499 cases                    |       | 8  deliveries during a 12 month period |       |
| 500-999 cases                    |       | Every  4 weeks                         |       | Every  4 weeks |   |
| 1,000-1,999  cases               |       | Every  3 weeks                         |       | Every  4 weeks |   |
| 2,000-3,499  cases               |       | Every  week                            |       | Every  2 weeks |   |
| Greater than 3,499  cases        |       | Every week                             |       | Every week |   |

 

This schedule is intended to serve as a guideline only and DISTRIBUTORagrees to provide additional regular deliveries as requested by Operator andapproved by COMPANY in writing.  COMPANYwill provide DISTRIBUTOR with the initial delivery frequency for each Store in **Schedule 3**. COMPANY and DISTRIBUTOR will mutually agree on the exact date forrouting changes from summer to winter and winter to summer but each period willbe approximately six (6) months with summer routing from April throughSeptember 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 emergency delivery is necessary due toDISTRIBUTOR error, DISTRIBUTOR will arrange a special delivery with anyadditional freight to be paid by DISTRIBUTOR.

----

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

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

7

----

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 New Operator Openings -**DISTRIBUTOR and COMPANYrecognize 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 first thirty(30) days following the commencement of distribution service at no additionalcharge, subject to the minimum order requirements and applicable handling fees,if any, as set forth in Section 5 of this Agreement.

**2.07****        Return of Products/Credits** –Any Products ordered byOperators which are returned to DISTRIBUTOR for any reason must be returned nolater than the next regularly scheduled delivery (except that, in the case ofProducts to be returned as a result of concealed damage, within the remainingshelf life of such Products) and all claims for Products to be returned must bemade either to the driver upon check-in of the order, by telephone by 4 p.m. onthe day of delivery following receipt of the Products if an unattended deliveryor, in the case of concealed damage, within twenty-four (24) hours of discoveryof concealed damage by the Operator.  Allreturned items must be in unmarked original packaging and must be in suitablecondition for resale (unless damaged or mis-marked Product was the reason for thereturn). Subject to the foregoing, DISTRIBUTOR shall provide credit to theaffected Operator for defective, shorted or damaged Products within twenty-four(24) hours of the driver’s return if brought to the driver’s attention ornoticed by the driver during delivery or, in any event, within forty-eight (48)hours of DISTRIBUTOR’s receipt of the Operator’s claim of damaged, shorted ordefective Products (or receipt of product, if warranted) and will immediatelyprovide documentation on its website for Operator of such credit if theoriginal order was placed electronically or via fax or phone if the order wasplaced in some other manner. Notwithstanding the foregoing, no returns will be permitted for cooleror freezer items, or fresh produce due to misorder by the Operator.  Products refused by Operator at time ofdelivery for reasons other than damage or remaining shelf life below agreedupon 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 Section3.02 if so requested by the Operator.

----

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

8

----

**2.08****        Limited Time Offers (“LTO’s”)-**In order to allow DISTRIBUTOR to maintain service levels to theOperators, COMPANY will provide DISTRIBUTOR with at least twenty-eight (28)days prior written notice of any and all LTO’s to be run by COMPANY (subject toavailability of LTO Products from the supplier within the twenty-eight (28) dayperiod). Such written notices shall include estimated usage for the Products tobe promoted if such usage is expected to deviate materially from historicallevels or if a new Product. Subject to the above, DISTRIBUTOR agrees to stocksufficient inventory for any new Proprietary Products to be used in nationalLTO promotions and other key items, as reasonably requested by COMPANY.  Unless retained on the Operator’s menu at theinstruction of the COMPANY or mutually agreed to between COMPANY andDISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTOR distributioncenters no later than sixty (60) days after the completion of the LTO andCOMPANY shall purchase all remaining inventory of such LTO as provided inSection 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTO Productsmay not be returned to DISTRIBUTOR, unless the return is necessitated due to aDISTRIBUTOR error or due to Product damage not caused by the Operator.

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

**3.01****        Suppliers/ContractedProducts -**The Proprietary Products to be distributed to the Operatorsunder the terms and conditions of this Agreement shall be purchased byDISTRIBUTOR, on its own account, from the suppliers (including COMPANY)selected by COMPANY, pursuant to terms and conditions as are agreed upon by andbetween DISTRIBUTOR and such suppliers (including COMPANY). In the eventCOMPANY enters into direct contracts with suppliers, the terms and conditionsof such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTORfor its business and legal review and, if the business and legal terms of theproposed contract that apply to DISTRIBUTOR are reasonably acceptable toDISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteedsupplier price provided under such supplier contract (net of billbacks byDISTRIBUTOR, if any), plus applicable freight if the supplier price is not adelivered price, plus **[CONFIDENTIAL](5)**,if any, attributable to the Product shall be the “Cost” of the Product.  **[CONFIDENTIAL](6)**.  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

----

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

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

9

----

COMPANY.  DISTRIBUTOR agrees thatCost 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 totime.  DISTRIBUTOR further agrees thatany Products transported between its Jackson, Mississippi and Clanton, Alabama distributioncenters will be done without increasing the Cost of the Product to theOperator.  To further insure DISTRIBUTOR’sability to comply with the performance requirements detailed later in thisSection 3.02, DISTRIBUTOR will also maintain at each distribution centerservicing Operators, “safety stock” of not less than **[CONFIDENTIAL](7)**days historical usage for all Proprietary Products and will alsohave 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:

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 to DISTRIBUTOR, which list will be updated byCOMPANY from time-to-time.  The initiallist 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.

----

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

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

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

10

----

DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnightemergency delivery, if requested, an overall aggregate “fill rate” for allProducts of **[CONFIDENTIAL](10)**, and at least **[CONFIDENTIAL](11)** of all invoices issued by DISTRIBUTOR tothe Operators will be completely accurate at the time of initial issuance, withall of the above measured quarterly.  The“fill rate” equals the percentage of Products or Kill Items, as the case maybe, obtained by dividing the total number of Products or Kill Items shipped byDISTRIBUTOR and received by the Operators at the time of delivery for themonth, by the total number of Product or Kill Items ordered by the Operatorsfrom the DISTRIBUTOR for that same month. All fill rate measurements (and invoice accuracy requirements) will benet of supplier-related issues such as shortages and delayed deliveries toDISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event ofsupplier non-performance. If emergency delivery is required due to supplier(including COMPANY) error, costs of emergency delivery shall be at supplier(including COMPANY) expense, provided that, if the supplier fails to absorbsuch expense, such delivery costs shall be paid by the Operator providedDISTRIBUTOR has notified COMPANY immediately in the event of suchnon-performance and Operator has approved the additional expense inadvance.   If the emergency delivery isdue to DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in asefficient manner as possible, which may include emergency deliveries andspecial freight shipments, at DISTRIBUTOR’S sole expense. If the emergencydelivery is due to Operator error, the Operator shall pay delivery costs forsuch emergency delivery.  From the momentof receipt of the Products for storage by DISTRIBUTOR until the Products havebeen accepted by Operator at the Store, DISTRIBUTOR assumes all risk of loss ordamage with respect thereto, shall be directly liable to COMPANY for any suchloss or damage to the Products and the related costs and expenses for replacingthe Products and agrees to obtain and maintain adequate insurance coverage toinsure against such loss or damage.

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

----

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

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

11

----

amount of the difference claimed by COMPANY.  If substitution is due to supplier (includingCOMPANY) error, then COMPANY shall cause supplier to, or if COMPANY is thesupplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable lossessustained due to such error.

To the extent that DISTRIBUTOR is unable to sell to the Operatorsquantities of the Proprietary Products in DISTRIBUTOR’s inventory for anyreason whatsoever, including, but not limited to, Product discontinuation,slow-moving inventory, unused LTO Products, promotional or seasonal Products orexceeded shelf life due to sudden decline in Product movement and not due toDISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase,all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost,F.O.B. the DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling andcarrying charges, if properly approved by COMPANY in advance as outlinedbelow.  In such event, COMPANY willpurchase or cause to be purchased all perishable Proprietary Products within **[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)**days after notice from DISTRIBUTOR.  Inaddition, if the inventory re-purchase is necessitated for any reason otherthan DISTRIBUTOR error, COMPANY shall reimburse to DISTRIBUTOR all reasonableout-of-pocket costs and expenses (not to exceed an amount equal to **[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 withdocumentation or other proof that any such costs and expenses were incurred byDISTRIBUTOR.  In order to allow COMPANYto monitor the supply and usage of the Proprietary Products, DISTRIBUTOR shallprovide to COMPANY a monthly obsolete and slow-moving inventory report.

**3.03****        Aged InventoryNotification-**DISTRIBUTOR will immediately notify COMPANY in writing inthe event that any quantities of its Proprietary Products are within forty-five(45) days of expiration of product life. If DISTRIBUTOR fails to do so, COMPANY shall not be required to complywith the requirements set forth in Section 3.02.

**3.04****        Present DISTRIBUTOR’sInventory** - DISTRIBUTOR agrees to purchase the existing merchantableand saleable inventory of Proprietary Products from COMPANY’S present 

----

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

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

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

12

----

distributor located in Atlanta, Georgia in quantities not to exceed a **[CONFIDENTIAL](15)** supply of such Products, in theaggregate, provided that DISTRIBUTOR and COMPANY have been given an opportunityby the present distributor to inspect any such Product prior to purchasepursuant to this Section 3.04. DISTRIBUTOR will pay, via check, the present distributor for Productspurchased from it, within ten (10) days of the later of DISTRIBUTOR’S receiptof the Products or the receipt of the invoice approved by COMPANY for theProducts.  DISTRIBUTOR shall beresponsible for all freight and unloading costs associated with transportingsuch inventory from the existing DISTRIBUTOR’s locations listed above. DISTRIBUTORwill not be responsible for any handling or other fees charged by the currentdistributor in connection with DISTRIBUTOR’s loading and transferring of suchinventory. COMPANY and the current distributor will be required to provide allreasonable assistance and cooperation to DISTRIBUTOR in connection with thepurchase, loading and transportation of such inventory from the currentdistributor to the DISTRIBUTOR distribution center, including the scheduling ofmutually agreeable inventory inspection and pick-up times.

In the event that the Cost of the Product, as purchased from theexisting distributor, exceeds or is less than the Cost that DISTRIBUTOR wouldotherwise utilize in determining the Sell Price for such Products obtainedthrough suppliers, including COMPANY, DISTRIBUTOR shall utilize the Costdesignated by COMPANY in determining the Sell Price and shall invoice, pay toCOMPANY or charge the Operator, as directed by the COMPANY, in the amount ofthe difference.  In the event COMPANYdirects DISTRIBUTOR to invoice the COMPANY, COMPANY shall pay such invoicedamount within **[CONFIDENTIAL](16)** of the date ofthe invoice.  In the case of a rebate toCOMPANY, DISTRIBUTOR shall pay the rebated amount within **[CONFIDENTIAL](17)**of its determination of the amount to be rebated.

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

**4.01****        Sell Price -**Beginningon the Effective Date and throughout the entire term of this Agreement, themaximum purchase price at which DISTRIBUTOR shall sell the Products, (the “SellPrice”), to the Operators shall be determined by adding the “Cost” (ashereinafter defined) of the Product plus **[CONFIDENTIAL](18)**per case for all deliveries (collectively, “Markup”), subject to the otherprovisions of this Agreement.  Forpurposes of this Agreement, the “Cost” of a Product other than a ContractedProduct shall be the sum of (a) the cost of the Product as shown on theinvoices to DISTRIBUTOR from the respective supplier, including COMPANY, plus(b) if the

----

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

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

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

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

13

----

invoiced cost of the Product is not a delivered price, the applicablefreight charges related to shipping the Product from the supplier toDISTRIBUTOR’S distribution center and, if applicable, the inter-branch freightcost detailed in Section 3.02, plus (c) the Sourcing Fees (as later defined inSection 4.06), if any, attributable to the Product, less (d) promotionalallowances reflected on supplier invoices to DISTRIBUTOR. Applicable freight, inthose cases where the invoice cost to DISTRIBUTOR for non-proprietary Productsis not a delivered cost, means that DISTRIBUTOR has added a reasonable freightcharge, agreed to in advance and in writing by COMPANY for delivering suchnon-proprietary Products from suppliers to DISTRIBUTOR.  Applicable freight for any non-proprietaryProduct will not exceed the rate charged by nationally recognized carriersoperating in the same market for the same type of freight service. Cost for anynon-proprietary Product will not be reduced by discounts for cash or promptpayment available to DISTRIBUTOR, breakage allowances or by backhaul revenue.Fuel or other transportation surcharges indicated on the manufacturer’s orsupplier’s invoice or on freight invoices will increase Cost. The Cost of aContracted Product shall be determined in accordance with Section 3.01.  In no event will the Cost of ContractedProducts include amounts to be rebated to DISTRIBUTOR and therefore, DISTRIBUTORwill not negotiate off-invoice manufacturer rebates, labels/promotionalallowances or any other “soft money” received from supplier or freight carriersof Contracted Products.  In order toallow verification of the foregoing commitment, DISTRIBUTOR agrees to providedocumentation substantiating the Cost of items DISTRIBUTOR purchases fromsuppliers and freight carriers. DISTRIBUTOR agrees to limit its collection of such “soft money” to themanufacturers of non-proprietary Products. The Cost of Contracted Products will not be reduced by discounts forcash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increase Cost.

The invoice format to be used by DISTRIBUTOR will beapproved by COMPANY and will contain separate lines showing subtotals forvarious Product categories, applicable taxes, the date of the ACH debit andother 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.  Notwithstandinganything else contained in this agreement to the contrary, the Markup for thefollowing items will be limited to **[CONFIDENTIAL](19)**:maraschino cherries, medium spoons, taster spoons, straws, water, chocolatesprinkles and assorted sprinkles.

----

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

14

----

In addition, DISTRIBUTOR agrees to reduce the Markupto each Operator any time they place an order greater than **[CONFIDENTIAL](20)**cases at the rate of **[CONFIDENTIAL](21)**/case for each case ordered.  This largeorder credit shall be shown as a separate line item on the invoice.

**4.02****                “Cost” for Contracted Products/True-UpMethodology**- In the case of Contracted products, COMPANY agreesto notify DISTRIBUTOR as soon as practical after a change in Cost has beenagreed to with a supplier.  COMPANY shallhave the right to adjust the Markup for individual Products (not including thefuel surcharge or the **[CONFIDENTIAL](22)**Markup on the items listed in Section 4.01 above) from time to time to anamount that is more or less than the agreed upon Markup per case.  If COMPANY exercises its right to lowerDISTRIBUTOR’s Markup on any Products, it will simultaneously andcorrespondingly increase the Markup on other Products so as to provideDISTRIBUTOR continuously with an average overall Markup of **[CONFIDENTIAL](23)**per case, as adjusted from time to time pursuant to this Agreement.

Following each calendar quarter, DISTRIBUTOR shall provide a cumulativereport that reflects:  (i) the totalnumber of cases of Products delivered to the Stores under this Agreement duringthe preceding quarter (“x”); (ii) the total of the Sell Prices charged for allProducts delivered to the 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 such deficiencybeing referred to herein as the “Markup Deficiency”, COMPANY shall remit toDISTRIBUTOR, an amount equal to the number of cases delivered to the Storesunder this Agreement during the preceding quarter (“x”), multiplied by theMarkup Deficiency.  If the AveragePutative Markup exceeds the Markup required pursuant to Section 4.01 (and asmodified pursuant to the other provisions of this Agreement), with such excessbeing referred to as the “Markup Excess”, DISTRIBUTOR shall remit to COMPANY anamount equal to the number of cases delivered to the Stores under thisAgreement during that quarter (“x”), multiplied by the Markup Excess.  Payments owed by either party under thisSection 4.02 shall be made by such party to the other party, via check, withinten (10) days of the determination of the amounts owed and, in any case, withinthirty (30) days following the end of the applicable calendar quarter for whichsuch payments are owed

----

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

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

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

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

15

----

or by making adjustments to the Sell Price as mutually agreed uponbetween COMPANY and DISTRIBUTOR.

**4.03****        Fuel Cost Adjustments**- If the operating costs of DISTRIBUTOR are increased or decreased as a resultof fuel cost increases or decreases, DISTRIBUTOR may adjust the Markup (as andif otherwise adjusted pursuant to the terms of this Agreement) to compensatefor such fluctuations in fuel costs, on a monthly basis. The amount of theadjustment computed in accordance with this Section 4.02 shall also be added toor subtracted from, as applicable, the specified price for Contracted OperatorSell Price Products described in Section 4.11. The method for determining the fuel surcharge or adjustment will be mademonthly beginning November 1, 2006 and will be based on the Gulf Coast WeeklyRetail On-Highway diesel fuel price which is compiled by the Energy InformationAdministration. The Web site to access this information electronically is asfollows:

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

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

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

| Price Per Gallon Including Taxes | ** ** | **Per Case Surcharge/ Credit** | ** ** |
|------------------------------------------------------|------------|-----------------------------------------------|------------|
| **[CONFIDENTIAL](24)**                               |       |                                          |       |

 

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL](25)**,the surcharge will equal **[CONFIDENTIAL](26)**per case plus an additional **[CONFIDENTIAL](27)**per case for each **[CONFIDENTIAL](28)**increment (or portion thereof) that the price per gallon exceeds 

----

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

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

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

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

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

16

----

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

**4.04****        Markup Adjustments dueto Variances from Projections.**

The **[CONFIDENTIAL](35)** Markup during the first**[CONFIDENTIAL](36)** months after the Effective Date ispremised upon an average annual delivery size of **[CONFIDENTIAL](37)**cases to the Stores serviced by DISTRIBUTOR and an average case Cost of theProducts, including **[CONFIDENTIAL](38)**,of **[CONFIDENTIAL](39)**.

After the first **[CONFIDENTIAL](40)** months of service and after each **[CONFIDENTIAL](41)** month period thereafter, the Markup forthe Stores for the next **[CONFIDENTIAL](42)**  months will be based on the actual averagedelivery size and average case Cost for the previous **[CONFIDENTIAL](43)**months as calculated below and according to the following schedule:

| Average Delivery Size for                | ** ** | **Markup**                              | ** ** |
|------------------------------------------|------------|-----------------------------------------|------------|
| **Preceding  [CONFIDENTIAL](44) Months** | ** ** | **for  Next [CONFIDENTIAL](45) Months** | ** ** |
| ** **                               | ** ** | ** **                              | ** ** |
| **[CONFIDENTIAL](46)**                   | ** ** | ** **                              | ** ** |

 

----

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17

----

The averagedelivery size will be calculated by summing up all of the cases delivered tothe Stores serviced by DISTRIBUTOR in the Territory for the previous **[CONFIDENTIAL](47)** months (with each partial case or “split”counting as a full case) and dividing the total number of cases delivered bythe total number of deliveries made by DISTRIBUTOR as modified below.  The number of deliveries made by DISTRIBUTORshall not include deliveries to correct errors made by DISTRIBUTOR orsuppliers, nor shall it include deliveries for which DISTRIBUTOR has receivedthe **[CONFIDENTIAL](48)** special delivery feein accordance with Section 2.05.

In the event theaverage delivery size for the previous **[CONFIDENTIAL](49)**months falls outside of the ranges described above, COMPANY and DISTRIBUTORwill negotiate a new Markup adjustment in good faith.  In the event COMPANY and DISTRIBUTOR fail toagree on such a Markup adjustment within thirty (30) days after thecommencement of negotiations under this Section 4.04, then both COMPANY andDISTRIBUTOR will have the right to terminate this Agreement with onehundred-eighty (180) days written notice to the other party in accordance withSection 6.02 (b)(ii).

In addition to theadjustment for a change in average case drops per delivery as described above,after the first **[CONFIDENTIAL](50)** months ofservice and every **[CONFIDENTIAL](51)**months thereafter, COMPANY and DISTRIBUTOR will also review the average caseCost for the previous **[CONFIDENTIAL](52)**months and will further modify the Markup from that determined by consideringthe average delivery size in accordance with the earlier provisions of thissection, as follows:

| **Average Case Cost for**                | ** ** | ** **             | ** ** |
|------------------------------------------|------------|------------------------|------------|
| **Preceding  [CONFIDENTIAL](53) Months** | ** ** | Modification to Markup | ** ** |
| ** **                               | ** ** |                   | ** ** |
| **[CONFIDENTIAL](54)**                   | ** ** |                   | ** ** |

 

In the event theaverage case cost for the previous **[CONFIDENTIAL](55)**months falls outside of the ranges described above, COMPANY and DISTRIBUTORwill negotiate a new Markup adjustment in good faith.  In the event COMPANY and DISTRIBUTOR fail toagree on such a

----

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

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

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

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

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

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

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

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

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

18

----

Markup adjustmentwithin thirty (30) days after the commencement of negotiations under thisSection 4.04, then both COMPANY and DISTRIBUTOR will have the right toterminate this Agreement with one hundred-eighty (180) days written notice tothe other party in accordance with Section 6.02 (b)(ii).

**4.05****        Payment Terms/MarkupAdjustments due to Payment Methodology**

(a)   Standard Payment Terms.  Except as noted below, DISTRIBUTOR andCOMPANY have agreed that payments to DISTRIBUTOR for Products delivered to theOperators (including Contract Feeders as defined below) shall be received byACH debit entry initiated by DISTRIBUTOR, so that the amount is credited toDISTRIBUTOR’s account on Friday of each week for deliveries made during thepreceding **[CONFIDENTIAL](56)**. Thus, stores whichreceive deliveries on Saturday or Sunday, would have their account debited **[CONFIDENTIAL](57)** and **[CONFIDENTIAL](58)**days, respectively, after receipt of their order.  DISTRIBUTOR may also accept payment by checkif so requested by Operator and approved by DISTRIBUTOR.  All new Operators will initially receivecredit terms as outlined above, provided that they satisfy DISTRIBUTOR’S creditcriteria for such terms, as such criteria is uniformly applied among allsimilarly situated Operators, in light of all relevant facts andcircumstances.  Payment terms will beextended only to those Operators that are creditworthy as shall have beensolely determined by DISTRIBUTOR. DISTRIBUTOR may, in its sole discretion,provide alternate payment terms to those Operators not meeting DISTRIBUTOR’sstandards for creditworthiness. DISTRIBUTOR will provide email or fax notice to each Operator at least **[CONFIDENTIAL](59)** days prior to the ACH debit entryactually taking place, advising Operator of the amount of the ACH debit, alongwith the invoice number and any credits posted during the prior **[CONFIDENTIAL](60)** days.

Notwithstanding the foregoing, DISTRIBUTOR agrees to provide extendedcredit terms to Operators performing as Contract Feeders (as defined below) innon-traditional locations provided that they satisfy DISTRIBUTOR’s creditcriteria for such terms, as such criteria is uniformly applied among allsimilarly situated Operators in light of all relevant facts and circumstances.To qualify for such credit terms, each location operated by a Contract Feederin the Territory must be approved by COMPANY in writing and the

----

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

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

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

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

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

19

----

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.

(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](61)**percent 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.   COMPANY will invoiceDISTRIBUTOR directly for **[CONFIDENTIAL](62)**for its frozen yogurt Products as shipped from the manufacturer and willdesignate the **[CONFIDENTIAL](63)** as separateline items for each Product. This **[CONFIDENTIAL](64)**varies by Product and a schedule of the current **[CONFIDENTIAL](65)**for its frozen yogurt Products is attached as **Schedule6**.  COMPANY reserves the rightto alter **[CONFIDENTIAL](66)** on its frozen yogurt

----

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

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

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

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

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

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

20

----

Products in its discretion but no more frequently thanquarterly.  DISTRIBUTOR agrees to payCOMPANY for these invoices within **[CONFIDENTIAL](67)**days of receipt.

COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL](68)**on its frozen cake and pie Products for each Product as shown on **Schedule 7**. Company reserves the right to alter **[CONFIDENTIAL](69)**on its frozen cake and pie Products in its discretion but no more frequentlythan **[CONFIDENTIAL](70)**.  Distributor shall pay all invoices for **[CONFIDENTIAL](71)** on its frozen cake and pie Products wheninvoiced by the COMPANY within **[CONFIDENTIAL](72)**days of invoice date, which date will be no earlier than the date of receipt ofthe applicable Products by the DISTRIBUTOR.

**[CONFIDENTIAL](73)**

**4.06****   Sourcing Fees.**  COMPANY may, from time to time, collectcompensation from the Operators for services that it provides to suchOperators, either by increasing the Cost of a product supplied by COMPANY, toDISTRIBUTOR for distribution under this Agreement, or through the assessment ofan additional fee (a “Sourcing Fee”) that COMPANY instructs DISTRIBUTOR to addin the calculation of the Sell Price of Products not purchased fromCOMPANY.  Any changes in the SourcingFees shall occur no more frequently than **[CONFIDENTIAL](74)**.  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) I 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 (including reasonable attorney’s fees and disbursements)arising from a breach of this representation and warranty.

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

----

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

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

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

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

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

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

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

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

21

----

**4.07****        Financial Information. **DISTRIBUTOR may request balance sheets,income statements and such further financial information from each Operatorfrom time to time as will enable DISTRIBUTOR to accurately assess the Operators’financial condition.   The COMPANY mayrequire DISTRIBUTOR to supply annual audited balance sheets and incomestatements and such further financial information from time to time as willenable COMPANY to accurately assess 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](75)**in the aggregate during the audited period (not to exceed a twelve (12) monthperiod) COMPANY shall have the right to conduct additional audits, at itsoption and at DISTRIBUTOR’S reasonable expense, until the aggregate net pricingerrors disclosed by an such additional audits are less than **[CONFIDENTIAL](76)** for the applicable audit period.  For any audit conducted pursuant to thisSection 4.08 that discloses that Operators were either overcharged orundercharged for Products, or that COMPANY was overpaid or overcharged duringthe 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](77)**days from the final determination of the undercharge or overcharge, asapplicable.

**4.09****        DISTRIBUTOR OperatorSupport -**DISTRIBUTOR agrees to provide the following Operator supportto COMPANY.

(a)           DISTRIBUTOR willsupport the System by participating in the supplier show at its ownexpense.  In addition, DISTRIBUTOR willpay COMPANY an annual support payment equal to 

----

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

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

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

 

22

----

**[CONFIDENTIAL](78)** payablewithin **[CONFIDENTIAL](79)** days of writtenrequest by COMPANY.  COMPANY may submitsuch requests only once during each calendar year and a total of **[CONFIDENTIAL](80)** such requests during the term of thisAgreement.

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

(c)           DISTRIBUTOR will adhereto the following HACCP requirements for monitoring of temperature controls forperishable products both in the DISTRIBUTOR distribution center and inDISTRIBUTOR’S transportation equipment.
| ITEM                      | ** ** | **FORM**     | ** ** | **TEMPERATURE  REQUIREMENTS IN  DISTRIBUTION  CENTER** | ** ** | **UPPER TEMP.  RANGE WHILE  TRANSPORTED TO  STORES** |
|---------------------------|------------|--------------|------------|--------------------------------------------------------|------------|------------------------------------------------------|
| Soft Serve Frozen Yogurt  |       | Frozen       |       | -10o or lower                                     |       | 0o                                              |
| Hand-Dipped Frozen Yogurt |       | Frozen       |       | -10o or lower                                     |       | 0o                                              |
| Yogurt Cakes and Pies     |       | Frozen       |       | -10o or lower                                     |       | 0o                                              |
| Various Toppings          |       | Refrigerated |       | 34o to 36o                                   |       | 38o                                             |
| Nuts and Liquid Toppings  |       | Frozen       |       | 0 or lower                                             |       | 0o                                              |
| Various Toppings          |       | Dry          |       | Above 38                                               |       | Above 38                                             |

 

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

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

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

Weekly report of Current Stores

Weekly report of average drop sizes for each store

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

Daily out-of-stock report and stores so affected

----

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

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

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

 

23

----

Monthly costing detail on all Products used by theSYSTEM

Such additional reports as may be reasonable requestedby the COMPANY

**4.10****      Taxes –**Franchiseesand COMPANY shall each be responsible for their applicable sales and usetaxes.  DISTRIBUTOR shall collectapplicable taxes from each responsible party and be responsible for remittingall taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for payingthose taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defendCOMPANY pursuant to Section 8.01 of this Agreement should Company receive aclaim for the 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.  Contracted Operator Sell Price Productsinclude, but are not limited to, soft drink syrup products including, withoutlimitation, the following Coca Cola Products: Coke Bag in Box (“BiB”), Diet Coke BiB, Sprite BiB and Barq’s Root BeerBIB.

**5.****     Minimum Deliveries -**TheOperators will be required to order Products in minimum quantities of **[CONFIDENTIAL](81)** cases of Products per delivery unless dueto DISTRIBUTOR or supplier error.  Inaddition, Operator will be required to pay DISTRIBUTOR a **[CONFIDENTIAL](82)**handling fee per order for orders of less than **[CONFIDENTIAL](83)**cases unless due to DISTRIBUTOR or supplier, including failure to fulfill theorder in its entirety.

**6.****     Term and Termination**

**6.01****        Term -**Theinitial term of this Agreement shall commence on the Effective Date and shallcontinue until exactly three (3) years after the commencement of full serviceto all Stores to be serviced in the Territory (“Initial Term”), unless soonerterminated 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 

----

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

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

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

24

----

notifies the other in writing at least one hundredeighty (180) days before the expiration of the Initial Term of its desire toterminate the relationship.

**6.02**        **Termination**

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

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

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

or

(ii)           Inthe event the parties fail to agree on a Markup adjustment pursuant to Section4.03.

**6.03****        Effect ofExpiration/Termination -**Upon expiration or sooner termination of thisAgreement, for any reason, COMPANY shall promptly purchase or arrange for thepurchase from 

25

----

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](84)** days after the effectivedate of termination of this Agreement or by the expiration date of suchProprietary Product, whichever is earlier, and all nonperishable ProprietaryProducts within **[CONFIDENTIAL](85)** days after theeffective date of termination of this Agreement. In addition, if this agreementis terminated due to COMPANY’s breach or default, COMPANY shall reimburse toDISTRIBUTOR all other reasonable out-of-pocket costs and expenses (not toexceed an amount equal to **[CONFIDENTIAL](86)**of the Markup on each Product unless DISTRIBUTOR receives COMPANY’s priorwritten consent) incurred by DISTRIBUTOR in selling, returning or otherwisedisposing of such Proprietary Products. DISTRIBUTOR shall provide COMPANY withdocumentation or other proof that any such costs and expenses were incurred byDISTRIBUTOR.  Termination of thisAgreement shall not relieve either party of any obligation or liability whichaccrues prior to the effective date of termination (including, but not limited to,obligations related to the payment of COMPANY’s accounts receivable or accountspayable and the purchase of excess inventories). Notwithstanding the foregoingprovisions of this Section 6.03 to the contrary, if this Agreement isterminated due to DISTRIBUTOR’s breach or default or expires in accordance withthe provisions of Section 6.01, COMPANY shall have the obligation to purchase,or shall direct the replacing distributor or other suitable purchaser topurchase, from DISTRIBUTOR only such inventory of the Proprietary Productswhich is merchantable and saleable but COMPANY shall have no obligation toreimburse DISTRIBUTOR for its out-of-pocket costs and expenses related toselling, returning or otherwise disposing of such Proprietary Products.

**7.**             **Trademarksand Trade Names -**COMPANY hereby represents and warrants that itis the owner of, or has the right to use under license or sublicense, alltrademarks, logos, trade names, and other markings used on the ProprietaryProduct’s packaging and labels (the “Trademarks”). COMPANY hereby grants toDISTRIBUTOR the right to use the Trademarks solely in connection with theapproved sale and distribution of the Proprietary Products in accordance withthe provisions of this Agreement and only for as long as this Agreement remainsin effect. COMPANY also grants to DISTRIBUTOR the right and license to use theTrademarks in advertising and promotional materials when the Trademarks areused therein to identify the Proprietary Products, subject to COMPANY’s priorwritten approval of form and content. Provided DISTRIBUTOR is using theTrademarks in accordance with the terms and provisions of this Agreement,COMPANY shall indemnify, defend and hold DISTRIBUTOR and its subsidiaries, 

----

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

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

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

 

26

----

affiliates, officers, shareholders, directors, employees, members,managers, agents, successors and assigns harmless from and against any and allclaims, demands, liabilities, causes of action, damages, costs (includingreasonable attorneys’ fees and disbursements) and judgments made or incurred byor found against any of them resulting from or arising out of any claim or suitalleging infringement by COMPANY or its affiliates, through any of theTrademarks or otherwise.

**8.****             Indemnification**

**8.01****        Indemnification byDISTRIBUTOR -**DISTRIBUTOR agrees to indemnify, defend and hold COMPANY,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****        Indemnification byCOMPANY –**COMPANY agrees to indemnify, defend and hold DISTRIBUTOR, itsubsidiaries, affiliates, officers, directors, members, managers, stockholders,employees, agents, successors and assigns harmless from and against any and allclaims, demands, liabilities, causes of action, damages, costs (includingreasonable attorney’s fees and disbursements) and judgments made or incurred byor found against any of them resulting from or arising out of:

(a)           Any breach or defaultby 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

27

----

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

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

**8.03****        Limitation ofLiability; Disclaimer of Warranties -** NOTWITHSTANDING SECTIONS 8.01 AND8.02 TO THE CONTRARY, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE IN CONTRACT,TORT, STRICT LIABILITY OR OTHERWISE,  TOTHE OTHER PARTY OR ITS RESPECTIVE SUBSIDIARIES, AFFILIATES, FRANCHISEES OROTHER OPERATORS FOR ANY TYPE OF INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES(SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS OPPORTUNITY) ARISINGFROM A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER ANY OF THE TERMS ANDPROVISIONS OF THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANYSUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANY TERM OR PROVISION OF THISAGREEMENT.

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 OF DISTRIBUTOR’SACTUAL 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****        Third Party Claims-**The indemnities in this Section 8 are contingent upon: (i) theindemnified party promptly notifying the indemnifying party in writing of anyaction or other proceeding which may give rise to a claim for indemnificationhereunder; unless such failure to promptly notify does not materially prejudicethe claim; (ii) the indemnifying party being allowed to control the defense andsettlement of such claim; and (iii) the indemnified party reasonably 

28

----

cooperating with the indemnifying party (at theindemnifying party’s expense) in providing information relevant to the defenseor settlement of a claim. The indemnified party shall have the right, at itsoption and expense, to participate in the defense of any action or proceeding throughcounsel of its own choosing.

**9.**             **Insurance**

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

(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 normal ISOpolicy forms and definitions, with all such insurance coverage providing forcombined single limit bodily injury/property damage liability of not less than **[CONFIDENTIAL](87)** Dollars; and

(b)           commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL](88)**Dollars.

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 coverage 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’s Insurance-**During the term of this Agreement, and for a period of one (1) yearthereafter, COMPANY shall purchase and maintain, at its sole cost and expense,commercial general liability insurance and products liability coverage, and acontractual liability endorsement which specifically insures all liabilities ofCOMPANY to DISTRIBUTOR under this Agreement, 

----

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

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

 

29

----

to the extent afforded by normal ISO policy forms and definitions, withall such insurance coverage providing for combined single limit bodilyinjury/property damage liability of not less than **[CONFIDENTIAL](89)**Dollars. All such insurance shall be provided by insurance companies which arelicensed and authorized to do business in the United States of America, andwhich are reasonably satisfactory to DISTRIBUTOR. COMPANY agrees to deliver toDISTRIBUTOR, on or prior to the Effective Date, a certificate of insuranceevidencing the existence of all the above insurance coverage and namingDISTRIBUTOR as an additional insured under such policies. The certificate shallcontain an agreement by the insurance carrier to notify DISTRIBUTOR, inwriting, at least thirty (30) days prior to the date of any change in suchinsurance coverage.

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

**10.01****      Representations andWarranties of DISTRIBUTOR -**DISTRIBUTOR hereby represents and warrantsto COMPANY as follows:

(a)           DISTRIBUTOR is acorporation duly organized, validly existing and in good standing under thelaws of the State of Mississippi. 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.

----

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

 

30

----

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

**10.02****      Representations andWarranties of COMPANY –**COMPANY hereby represents and warrants toDISTRIBUTOR as follows:

(a)           COMPANY is a limitedliability COMPANY duly organized, validly existing in good standing under thelaws of the State of Delaware. COMPANY has the corporate 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 COMPANY and DISTRIBUTOR, the validand binding obligation of COMPANY enforceable against it in accordance with itsterms, except as may be limited by applicable bankruptcy, reorganization,insolvency, moratorium or other similar laws affecting creditors’ rightsgenerally, and further subject to general equity principles.

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

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

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

**11.****          Notices -**Anynotice or other communication to be given under this Agreement by one party tothe other shall be in writing and delivered by overnight messenger service, ordelivered by telecopy or facsimile transmission, or sent by United Statesregistered or certified mail, postage prepaid, addressed as follows:

31

----

 
| If to DISTRIBUTOR: |   | The Merchants Company                 |
|--------------------|--------|---------------------------------------|
|               |   | P O Box 1351                          |
|               |   | Hattiesburg, MS 39403-1351            |
|               |   | Attention:                            | Andy Mercier, President |
|               |   |                                  | Jarrod Gray, Controller |
|               |   | FAX: (601) 582-5333                   |
|               |   |                                  |
| 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.**          **ForceMajeure -**Notwithstanding any term or provision contained inthis Agreement to the contrary, it is understood and agreed that DISTRIBUTORwill not be responsible or liable in any manner whatsoever for the failure byit to sell and/or deliver the Products or otherwise perform any obligationunder this Agreement or otherwise, and COMPANY will not be responsible orliable in any manner whatsoever for the failure by it to purchase and accept,the Products, if such failure is due to fire, strike, accident, explosion,riot, rebellion, terrorist action or threat, flood, embargo, war, interruptionor delay in transportation, epidemic, pandemic, shortage of raw materials, actsof God or government (including, but not limited to, laws, regulations andrestrictions of all kinds), or any other causes or contingencies of anycharacter (other than lack of funds) beyond the reasonable control ofDISTRIBUTOR or COMPANY.  Nothingexpressed or implied in this Section 12 shall excuse the non-performance ordelay in performance of any payment obligation of the COMPANY or DISTRIBUTOR,any affiliate or any Operator.

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

**14.****          Entire Agreement;Modifications -**This Agreement and the Schedules attached hereto andmade a part hereof, constitute the entire agreement and understanding of theparties with respect to the subject matter 

32

----

hereof, and supersede all prior proposals, negotiations,communications, representations, written or oral agreements and understandingsbetween the parties with respect to the subject matter hereof. No modificationof any term or provision of this Agreement shall be enforceable unless embodiedin a writing executed by all parties 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 to invalidateor render unenforceable the remaining terms and provisions which are valid andenforceable.

**16.****          Waivers -**Thewaiver by either party hereto of any of its rights or breaches of the otherparty under this Agreement in a particular instance shall not be construed as awaiver of the same or different rights or breaches in subsequent instances. Allremedies, rights, undertakings and obligations, hereunder shall be cumulativeand none shall operate as a limitation of any other remedy, right, undertakingor 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 original party.  The assigning party shall give notice of suchassignment to the other party. The provisions of this Agreement will be bindingupon and will inure to the benefit of the parties and their respectivesuccessors and assigns.  DISTRIBUTOR mayassign its accounts receivables, and related contract rights, in connectionwith its accounts receivable financing and securitization.

**18.****          No Offer -**Thesubmission by DISTRIBUTOR to COMPANY of this Agreement shall have no bindingforce or effect, shall not constitute an offer to sell the Products, nor conferany right or impose any obligation upon either party until executed by bothparties.

**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 

33

----

history, pricing, purchasing specifications, and product market results(the “Confidential Information”), is and shall remain confidential andproprietary information of the disclosing party, and valuable trade secretsowned solely by the disclosing party. The recipient party of any ConfidentialInformation shall not disclose any such Confidential Information to any thirdperson or entity without the prior written consent of the disclosing party inevery instance, and shall not use any such Confidential Information, nor permitany such Confidential Information to be used, for any reason other than tofulfill the terms of this Agreement; provided, however, that either party andits respective successors and assigns may (i) disclose any ConfidentialInformation to the extent compelled by law, regulation, rule, subpoena, or otherprocess of law and (ii) provide invoices, and any information relating tohistorical payments or payments due or to become due from franchisees orOperators hereunder to its auditors and legal counsel, and to present andpotential financing sources and rating agencies and their respective auditors and legal counsel). The parties’obligations under this Section 19 shall not apply to any of the ConfidentialInformation delivered or made available to them by the other party which therecipient of the Confidential Information can reasonably establish (a) wasknown to the recipient party at the time the Confidential Information wasdisclosed or made available to the recipient party; (b) was known to the publicat the time the Confidential Information was disclosed or made available to therecipient party; (c) becomes known to the public after the date theConfidential Information was disclosed or made available to the recipient partythrough no fault or breach of this Section 19 by the recipient party; (d) is givento or made available to the recipient party by a third party who has a lawfulright to disclose the Confidential Information to the recipient party; or, (e)is independently developed by the Recipient party without reference to theConfidential Information.

34

----

**20.****          Arbitration** - All actions,disputes, claims or controversy with the exception of seeking an injunction,now existing or hereafter arising between DISTRIBUTOR and COMPANY, including,but not limited to any action, dispute, claim or controversy arising out ofthis Agreement or the delivery by DISTRIBUTOR of any Products to COMPANY  (a “Dispute”) shall be resolved by bindingarbitration in Salt Lake City, Utah, in accordance with the CommercialArbitration Rules of the American Arbitration Association and, to the maximumextent applicable, the Federal Arbitration Act. Arbitrations shall be conducted before one arbitrator mutually agreeableto COMPANY and DISTRIBUTOR.  If theparties cannot agree on an arbitrator within thirty (30) days after therequest for an arbitration, then each party will select an arbitrator and thetwo arbitrators will select a third who shall act as the sole arbitrator of thedispute.  Judgment on any award renderedby an arbitrator 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 -**Thesection and paragraph headings contained in this Agreement are for referenceonly and shall not be considered as substantial parts of this Agreement. Theuse of the singular or plural from in this Agreement shall include the otherform and the use of the masculine, feminine or neuter gender shall include theother gender.

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

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

35

----

**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 |
|                           |
|                           |
| THE MERCHANTS  COMPANY         |
|                           |
|                           |
| By:                            | /s/ Andy Mercier |   |
| Its: President                 |
|                                |  |  |  |

 

36

----