**Exhibit10.72**

**TCBYSYSTEMS, LLC**

**DistributionService Agreement**

**withCheney Brothers, Inc.**

**July 17, 2006**

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**DISTRIBUTIONAGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 17th day of July, 2006, by and between **TCBY SYSTEMS, LLC,** a Delaware limited liabilitycompany (“COMPANY”) and **CHENEY BROTHERS,INC.,**a Florida Corporation (“DISTRIBUTOR”). DISTRIBUTOR willcommence distribution services under this Agreement on August 14, 2006 (the “EffectiveDate”) unless otherwise mutually agreed upon by the parties.

**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 (asdefined below), and DISTRIBUTOR wishes to accept such appointment, all on theterms and conditions hereinafter set forth.

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# **AGREEMENT**

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

**1.****             Appointment**- Subject to all terms and conditions of this Agreement, COMPANY herebyappoints DISTRIBUTOR as a distributor of the products within the productcategories listed in **Schedule 1**(the“Products”), to the Stores in the territory serviced by DISTRIBUTOR’sdistribution centers located in Ocala, Florida and Riveria Beach, Florida (the “Territory”)as reflected in the map depicted in **Schedule2** and DISTRIBUTOR hereby accepts such appointment. Subject toSection 2.02, COMPANY may appoint DISTRIBUTOR as a distributor of Products toStores outside of the Territory and DISTRIBUTOR may agree to such designation.

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

**2.01****        Products -**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 orcontracted for by COMPANY to be maintained in inventory by DISTRIBUTOR fordistribution to COMPANY, its affiliates and the Operators.  (Collectively, Products described in clauses(i) and (ii) are referred to as “Proprietary Products”).  DISTRIBUTOR will also maintain in itsinventory non-proprietary Products which DISTRIBUTOR stocks in its inventoryfor sale to COMPANY, its affiliates and its Operators. DISTRIBUTOR shall not berequired to maintain more than two hundred (200) Proprietary Products ininventory at any time.  All Coca ColaProducts carried for COMPANY shall be excluded from the calculation of thenumber of Proprietary Products.

**2.02****        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 during the term of this Agreement. DISTRIBUTOR shallcease selling TCBY Branded Products to any Operator not later than three (3)days following receipt of written notice from COMPANY advising DISTRIBUTOR thatsuch Operator is no longer approved by COMPANY and shall,

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within such timeframe, further cease selling, under the terms of anysupplier agreement negotiated by COMPANY, all Proprietary Products to suchOperators referenced in such notice. In addition, DISTRIBUTOR shall have theright to cease the sale and distribution of Products to any Operator (a) who isin default of its obligations to DISTRIBUTOR, provided that DISTRIBUTOR hasgiven COMPANY at least three (3) business days notice of such default beforeceasing deliveries to such Operator, or (b) who has filed a voluntary petitionin bankruptcy or under any other similar insolvency or debtor relief law or whohas had such a petition filed against it, or who has made a general assignmentfor the benefit of its creditors. COMPANY shall also have the right toreinstate delivery to any Operator that COMPANY previously stopped selling byproviding written notice to DISTRIBUTOR and DISTRIBUTOR shall provide suchdelivery as soon as mutually agreed between the parties.

A list of the present Operators with Stores located within theTerritory and approved by COMPANY and their respective Store locations isattached 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 this Agreement, asand if amended in the manner permitted under this Agreement, are binding uponand shall govern DISTRIBUTOR and COMPANY’s obligations with respect todistribution services performed by DISTRIBUTOR hereunder and that eachFranchisee that is an owner or operator of a Franchised Store within the Systemshall be bound by the terms of this Agreement, as it may hereafter be amended,upon such Operator’s purchase of Proprietary Products from DISTRIBUTOR.

**2.03**        **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 DISTRIBUTOR’s customer service center in accordance withthe guidelines detailed below. All shipment expenses from DISTRIBUTOR’sdistribution center to the Operator’s location shall be at DISTRIBUTOR’sexpense unless otherwise noted elsewhere in this Agreement. Product order

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guides will be provided by DISTRIBUTOR to the Operators monthly viaDISTRIBUTOR’s website and with a hard copy delivered to each Store, withavailability of such order guides to be made prior to the beginning of themonth, but only after review and approval of the order guide by COMPANY. Theorder guides will be organized by Product categories and will include, amongother things, the Product Sell Price (as defined herein), Product units and newProducts. DISTRIBUTOR will assign one product code number to each stock-keepingunit (“SKU”) of each Product, which will be common throughout its entiredistribution system and will be used on all documents such as order guides,invoices, monthly reports, etc. SKU’s, and, accordingly, the assigned productcode number, must differ for equivalent Products supplied by differentsuppliers. DISTRIBUTOR            will use its best efforts to utilize the existing TCBY product itemnumbers.  Only Products approved for saleto its Operators by the COMPANY will be listed on this order guide. ElectronicOrders will be placed via telephone modem or internet using DISTRIBUTOR’sautomated order entry system.  All ordersare subject to the standard order cut-off time of 4:00 p.m. local time, one (1)day prior to their scheduled delivery day for Stores located in the states ofFlorida and Georgia and 4:00 p.m. local time. In no event will Electronic Orders be required more than two (2) daysprior to the scheduled delivery day. Operators will be notified prior to the time of final order cut-off if aproduct is expected to be out of stock so that an alternative may be ordered,subject to the provisions of Section 3.02. Operators will have until 5:00 p.m. local time, one (1) day before theirorder shipping day to modify or add-on to their order.  Notwithstanding the foregoing, Stores that donot place Electronic Orders and have scheduled delivery days of Monday inFlorida and Georgia, must have their orders placed by 4 p.m. local time, on thepreceding Friday.

DISTRIBUTOR may schedule deliveries any day of the week.Where reasonably possible, DISTRIBUTOR will schedule ordering days and deliverydays that are mutually agreed upon by and between DISTRIBUTOR and each Operatorand will provide notice to the affected Operator at least fourteen (14) daysbefore routing changes. On an exception basis, DISTRIBUTOR will considershortening the permissible time frames for scheduled deliveries for thoseOperators that, given unique and compelling business needs, require thesame.  Operator will be notified of anyProduct shortages at the time of order placement or, in the case of anElectronic Order, one (1) day prior to the loading of the delivery truck.

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

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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 4.07, 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 reasonable efforts to causeOperators to provide keys and security codes for night deliveries wherenecessary.  In the event Operator refusesto provide keys and security codes, Operator will promptly meet the deliverydriver at the scheduled appointment time or at such other time as Operator hasbeen notified in the event of a late delivery. If the Operator fails to meet the DISTRIBUTOR delivery at theappropriate time on more than one occasion, the Operator shall be responsiblefor 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:

#### 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         | ** ** |

 

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

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This schedule is intended to serve as a guideline only and DISTRIBUTORagrees to provide additional regular deliveries as requested by Operator andapproved by COMPANY in writing.  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 additional freight expense will be at theOperator’s expense and will be billed upon DISTRIBUTOR’s receipt of the invoicefrom the shipping agent.  If DISTRIBUTORis able to schedule such an emergency delivery in conjunction with a nearbyroute, 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.

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

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

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

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**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 firstthirty (30) days following the commencement of distribution service at noadditional charge, subject to the minimum order requirements and applicablehandling fees, if any, as set forth in Section 5 of this Agreement.

**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 forthe return). 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.

**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

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

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Products from the supplier within the twenty-eight (28) day period).Such written notices shall include estimated usage for the Products to bepromoted if such usage is expected to deviate materially from historical levelsor 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 COMPANY.  DISTRIBUTOR agreesthat Cost for any Contracted Products will not include any unloading costs forpalletized and slipsheet loads.

**3.02****        Inventory** -During the term of this Agreement, DISTRIBUTOR shall maintain an inventory ofthe Products in quantities necessary to provide the Operators with an adequatesupply of such

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

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

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Products based upon initial usage projections by COMPANY, future historicalusage of such Products by the Operators, and the fill rate performancerequirements detailed below. DISTRIBUTOR agrees to work with COMPANY, toattempt to maximize the quantities of Products purchased to efficiently reducethe cost of Products purchased, and to maximize Product inventory turns. Inaddition, DISTRIBUTOR agrees to order Products in the quantities indicated onthe 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 Ocala and Riveria Beach distributioncenters will be done so without increasing the initial landed Cost of theProduct.  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 also have anadditional **[CONFIDENTIAL](8)** days historicalusage of white chocolate mousse, chocolate and vanilla frozen yogurt on theroad at all times. DISTRIBUTOR agrees that all Products delivered to Operatorswill have at least one-third of their original shelf-life remaining as of thedate 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 will provide alist of Kill Items and other Proprietary Products to DISTRIBUTOR, which listwill be updated by COMPANY from time-to-time. The initial list of Kill Items is attached as **Schedule 4**.

Other ProprietaryProducts that can be substituted in an emergency.

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

DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnightemergency delivery, if requested, an overall aggregate “fill rate” for allProducts of **[CONFIDENTIAL](10)**, and at least

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

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

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

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

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**[CONFIDENTIAL](11)** of allinvoices issued by DISTRIBUTOR to the Operators will be completely accurate atthe time of initial issuance, with all of the above measured quarterly.  The “fill rate” equals the percentage ofProducts or Kill Items, as the case may be, obtained by dividing the totalnumber of Products or Kill Items shipped by DISTRIBUTOR and received by theOperators at the time of delivery for the month, by the total number of Productor Kill Items ordered by the Operators from the DISTRIBUTOR for that samemonth.  All fill rate measurements (andinvoice accuracy requirements) will be net of supplier-related issues such asshortages and delayed deliveries to DISTRIBUTOR, provided DISTRIBUTOR notifiesCOMPANY immediately in the event of supplier non-performance. If emergencydelivery is required due to supplier (including COMPANY) error, costs ofemergency delivery shall be at supplier (including COMPANY) expense, providedthat, if the supplier fails to absorb such expense, such delivery costs shallbe paid by the Operator provided DISTRIBUTOR has notified COMPANY immediatelyin the event of such non-performance and Operator has approved the additionalexpense in advance.   If the emergencydelivery is due to DISTRIBUTOR error, then DISTRIBUTOR will remedy thesituation in as efficient manner as possible, which may include emergencydeliveries and special freight shipments, at DISTRIBUTOR’S sole expense. If theemergency delivery is due to Operator error, the Operator shall pay deliverycosts for such emergency delivery.  Fromthe moment of receipt of the Products for storage by DISTRIBUTOR until theProducts have been accepted by Operator at the Store, DISTRIBUTOR assumes allrisk of loss or damage with respect thereto, shall be directly liable toCOMPANY for any such loss or damage to the Products and the related costs andexpenses for replacing the Products and agrees to obtain and maintain adequateinsurance coverage to insure against such loss or damage.

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

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

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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 presentdistributor located in Orlando, Florida and Atlanta, Georgia in quantities notto exceed a four-weeks’ supply of such Products, in the aggregate, providedthat DISTRIBUTOR and COMPANY have been given an opportunity by the presentdistributor to inspect any such Product prior to purchase pursuant to thisSection 3.04.  DISTRIBUTOR will pay, viacheck, the present

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

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

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

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distributor for Products purchased from it, within **[CONFIDENTIAL](15)**days of the later of DISTRIBUTOR’S receipt of the Products or the receipt ofthe invoice approved by COMPANY for the Products.  DISTRIBUTOR shall be responsible for allfreight and unloading costs associated with transporting such inventory fromthe existing DISTRIBUTOR’s locations listed above.  DISTRIBUTOR will not be responsible for anyhandling or other fees charged by the current distributor in connection withDISTRIBUTOR’s loading and transferring of such inventory.  COMPANY and the current distributor will berequired to provide all reasonable assistance and cooperation to DISTRIBUTOR inconnection with the purchase, loading and transportation of such inventory fromthe current distributor to the DISTRIBUTOR distribution center, including thescheduling of mutually agreeable inventory inspection and pick-up times.

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

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

**4.01****        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)**of Cost per case for all deliveries (collectively, “Markup”), subject to theother provisions 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 invoiced cost of the Product is not a delivered price, theapplicable freight charges related to shipping the Product from the supplier toDISTRIBUTOR’S distribution center, less (c) promotional allowances reflected onsupplier invoices to DISTRIBUTOR. Applicable freight, in

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

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

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

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

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those cases where the invoice cost to DISTRIBUTOR for non-proprietaryProducts is not a delivered cost, means that DISTRIBUTOR has added a reasonablefreight charge, agreed to in advance and in writing by COMPANY for deliveringsuch non-proprietary Products from suppliers to DISTRIBUTOR.  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,DISTRIBUTOR will not negotiate off-invoice manufacturer rebates,labels/promotional allowances or any other “soft money” received from supplieror freight carriers of Contracted Products. In order to allow verification of the foregoing commitment, DISTRIBUTORagrees to provide documentation substantiating the Cost of items DISTRIBUTORpurchases from suppliers and freight carriers. DISTRIBUTOR agrees to limit its collection of such “soft money” to themanufacturers of non-proprietary Products. The Cost of Contracted Products will not be reduced by discounts forcash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increaseCost.  In the case of ContractedProducts, COMPANY agrees to notify DISTRIBUTOR as soon as practical after achange in Cost has been agreed to with a supplier.

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.

DISTRIBUTOR and COMPANY agree that the Markup forDISTRIBUTOR’S services in connection with deliveries to Stores located outsideof the United States shall be the same as all other Stores located in theTerritory when DISTRIBUTOR delivers product to the freight forwarder orredistributor’s location and **[CONFIDENTIAL](19)**of the Markup in the event the freight forwarder or redistributor picks up theorder at the DISTRIBUTOR’S location.

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

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**4.02****        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 4.10. The method for determining the fuel surcharge or adjustment will be madequarterly 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 thirteen (13) 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 thirteen (13) week averageending immediately prior to or on October 30th. 
| Price Per Gallon Including Taxes | ** ** | **Per Case Surcharge/ Credit** | ** ** |
|------------------------------------------------------|------------|-----------------------------------------------|------------|
| **[CONFIDENTIAL](20)**                               |       |                                          |       |

 

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL](21)**,the surcharge will equal **[CONFIDENTIAL](22)**per case plus an additional **[CONFIDENTIAL](23)**per case for each **[CONFIDENTIAL](24)**increment (or portion thereof) that the price per gallon exceeds **[CONFIDENTIAL](25)**. If the price per gallon, including taxes, falls below

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

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

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

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

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

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

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**[CONFIDENTIAL](26)**, a creditwill be issued in the amount of **[CONFIDENTIAL](27)**per case plus an additional **[CONFIDENTIAL](28)**per case for each **[CONFIDENTIAL](29)**increment (or portion thereof) that the price is less than **[CONFIDENTIAL](30)**.  Any such surcharge or credit will be shown asa separate line item on the Operator’s invoice.

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

The **[CONFIDENTIAL](31)** Markup during the first **[CONFIDENTIAL](32)** months after the Effective Date ispremised upon an average annual delivery size of **[CONFIDENTIAL](33)**cases to the Stores serviced by DISTRIBUTOR and the average case Cost of theProducts, including **[CONFIDENTIAL](34)**,is **[CONFIDENTIAL](35)**.  COMPANY and DISTRIBUTOR agree to review theservice levels provided by DISTRIBUTOR as well as the average delivery sizes **[CONFIDENTIAL](36)** days after the Effective Date, takinginto account seasonality of COMPANY’s business and additional deliveries madeby DISTRIBUTOR to support the transition and using the methodology detailedlater in this Section 4.03.   No adjustmentswill be made to the Markup at that time due to a variance in average deliverysize from projections, unless the average delivery size experienced during thefirst **[CONFIDENTIAL](37)** days is greater thanor equal to **[CONFIDENTIAL](38)** cases or lessthan **[CONFIDENTIAL](39)** cases, adjusted forseasonality and excluding deliveries to Cross-docked Stores and any additionaldeliveries made by DISTRIBUTOR during the initial transition period pursuant toSection 2.06.  In the event such a Markupadjustment is required, the COMPANY and DISTRIBUTOR agree to use the schedulethat follows later in Section 4.03 as soon as practical after the review andsuch Markup will remain in effect for the balance of the first year of theAgreement.

In addition toreviewing the average delivery size **[CONFIDENTIAL](40)**days after the Effective Date, COMPANY and DISTRIBUTOR will also review theaverage case Cost of the Products

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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(inclusive of the **[CONFIDENTIAL](41)**, but excluding any impact from the costof inventory purchased pursuant to Section 3.04) for this same timeframe (andeach **[CONFIDENTIAL](42)** months thereafterfrom the Effective Date) and agree to further modify the Markup schedule inthis Section 4.03 as follows.  The actualaverage case Cost experienced during the first **[CONFIDENTIAL](43)**days will be compared to the projected level of **[CONFIDENTIAL](44)**.  If the actual case Cost deviates by **[CONFIDENTIAL](45)** per cent or less from **[CONFIDENTIAL](46)**, then no adjustment will be made to theMarkup at that time except as called for earlier in this Section 4.03 and inSection 4.02.  However, if the actualaverage case Cost does deviate by more than **[CONFIDENTIAL](47)**per cent from **[CONFIDENTIAL](48)** then the Markupwill be adjusted in the opposite direction from the change in average caseCost.  Thus, an increase in average caseCost of **[CONFIDENTIAL](49)** per cent wouldresult in a reduction in the percentage Markup and a decrease in average caseCost would result in an increase in the percentage Markup.  This adjustment to Markup will be **[CONFIDENTIAL](50)** full percentage point for each **[CONFIDENTIAL](51)** per cent change in average case Cost from**[CONFIDENTIAL](52)**.  For example, if the actual average case Costis **[CONFIDENTIAL](53)** (and there is noadjustment called for due to a change in average delivery size), then theMarkup will be increased by **[CONFIDENTIAL](54)**percentage point from **[CONFIDENTIAL](55)**per cent to **[CONFIDENTIAL](56)** per cent.  If the actual average cast Cost is **[CONFIDENTIAL](57)** (and there is no adjustment called fordue to a change in average delivery size), then the Markup will be decreased by**[CONFIDENTIAL](58)** percentage pintsfrom **[CONFIDENTIAL](59)** per cent to **[CONFIDENTIAL](60)** per cent. This Markup adjustment will be put into effect as soon as practicalafter the reduction has been determined and it will remain in effect for thebalance of the first year of the Agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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After the first **[CONFIDENTIAL](61)** months of service and after each **[CONFIDENTIAL](62)** month period thereafter, the Markup forthe Stores for the next **[CONFIDENTIAL](63)**months will be based on the actual average delivery size and average case Costfor the previous **[CONFIDENTIAL](64)** months ascalculated below and according to the following schedule:
| Average Delivery Size for               | ** ** | **Percentage Markup**                   |
|-----------------------------------------|------------|-----------------------------------------|
| Preceding **[CONFIDENTIAL]**(65) Months |       | for Next **[CONFIDENTIAL]**(66)  Months |

 

**[CONFIDENTIAL](67)**

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](68)** 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](69)** special delivery feein accordance with Section 2.05.

In the event theaverage delivery size for the previous **[CONFIDENTIAL](70)**months falls outside of the ranges described above, COMPANY and DISTRIBUTORwill negotiate a new Markup for that DISTRIBUTOR facility in good faith.  In the event COMPANY and DISTRIBUTOR fail toagree on such a Markup adjustment within thirty (30) days after the commencementof negotiations under this Section 4.03, then both COMPANY and DISTRIBUTOR willhave the right to terminate this Agreement with 180 days written notice to theother party in accordance with Section 6.02 (b)(ii).

In addition to theadjustment for a change in average case drops per delivery, after the first **[CONFIDENTIAL](71)** months of service and every **[CONFIDENTIAL](72)** months thereafter, 

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(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.

(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.

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COMPANY and DISTRIBUTORwill also review the average case Cost for the previous **[CONFIDENTIAL](73)**months and will further modify the Markup from that determined by consideringthe average delivery size in accordance with the earlier provisions of thissection, i.e. **[CONFIDENTIAL](74)** full percentagepoint adjustment in Markup for each **[CONFIDENTIAL](75)**per cent change in the average cast Cost from **[CONFIDENTIAL](76)**.

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

(a)          Standard PaymentTerms.  Except as noted below,DISTRIBUTOR and COMPANY have agreed that payments to DISTRIBUTOR for Productsdelivered to the Operators (including Contract Feeders as defined below) shallbe received by ACH debit entry initiated by DISTRIBUTOR, so that the amount iscredited to DISTRIBUTOR’s account  onFriday of each week for deliveries made during the preceding **[CONFIDENTIAL](77)** days. Thus, stores which receivedeliveries on Saturday or Sunday would have their account debited **[CONFIDENTIAL](78)** days, respectively, after receipt oftheir order.  DISTRIBUTOR may also acceptpayment by check if 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](79)** 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](80)** days.

Notwithstanding the foregoing, DISTRIBUTOR agrees toprovide extended credit terms to Operators performing as Contract Feeders (asdefined below) in non-traditional locations provided that they satisfyDISTRIBUTOR’s credit criteria for such terms, as 

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(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.

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

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

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

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

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

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

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such criteria is uniformly applied among all similarlysituated Operators in light of all relevant facts and circumstances. To qualifyfor such credit terms, each location operated by a Contract Feeder in theTerritory must be approved by COMPANY in writing and the Contract Feeder mustcomply with these extended credit terms. “Contract Feeders” are Operators who operate non-traditional foodservice locations in facilities such as airports, sports facilities, travelplazas, 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 of DISTRIBUTOR.  Failure of the Operator to make any paymentrequired when due shall result in DISTRIBUTOR having the right to impose morestringent credit or payment terms, such as, without limitation, cash inadvance, cash on delivery, delivery of acceptable letters of credit or thirdparty guaranties, or additional collateral, or, after three (3) business days’prior notice to COMPANY and the affected Operator, to suspend all deliveries,and declare the entire unpaid balance of the Operator’s account immediately dueand payable. The COMPANY shall pay, and shall use its commercially reasonableefforts to cause each Operator to pay, all reasonable costs of collection,including reasonable attorneys fees incurred or paid by DISTRIBUTOR, but onlyto the extent related to their respective accounts. DISTRIBUTOR will have theright to charge interest at the maximum rate permitted by law but not exceeding**[CONFIDENTIAL](81)** percent per annum onall unpaid amounts due or owing by Operators and/or COMPANY to DISTRIBUTOR.

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

(d)                                 Paymentsto COMPANY as Supplier.  COMPANYpurchases its frozen yogurt Products and resells them to DISTRIBUTOR afteradding the **[CONFIDENTIAL](82)** to the sellprice.  This **[CONFIDENTIAL](83)**varies by Product and a schedule of the current **[CONFIDENTIAL](84)**for its frozen yogurt Products is attached as **Schedule6**.  COMPANY reserves the rightto alter **[CONFIDENTIAL](85)** on its frozen yogurt

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

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

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

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

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

 

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Products in its discretion but no more frequently than **[CONFIDENTIAL](86)**. COMPANY will invoice DISTRIBUTOR for these products as shipped from themanufacturer and will designate the **[CONFIDENTIAL](87)**as separate line items for each Product. DISTRIBUTOR agrees to pay these invoices within **[CONFIDENTIAL](88)**days of receipt.

COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL](89)** on its frozen cake and pie Products foreach Product as shown on **Schedule 7**.  Company reserves the right to alter **[CONFIDENTIAL](90)** on its frozen cake and pie Products inits discretion but no more frequently than **[CONFIDENTIAL](91)**. Distributor shall pay all invoices for **[CONFIDENTIAL](92)** on its frozen cake and pie Products wheninvoiced by the COMPANY within **[CONFIDENTIAL](93)**days of invoice date, which date will be no earlier than the date of receipt ofthe applicable Products by the DISTRIBUTOR.

**[CONFIDENTIAL](94)**

**4.05****                        Financial Information. **DISTRIBUTORmay request balance sheets, income statements and such further **financial** information from eachOperator from time to time as will enable DISTRIBUTOR to accurately assess theOperators’ financial condition.

**4.06****                        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](95)**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 

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

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

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

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

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

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

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

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

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

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

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at DISTRIBUTOR’S reasonable expense, until the aggregate net pricingerrors disclosed by an such additional audits are less than **[CONFIDENTIAL](96)** 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](97)**days from the final determination of the undercharge or overcharge, asapplicable.

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

(a)                                  DISTRIBUTORwill support the System by participating in the supplier show at its ownexpense.  In addition, DISTRIBUTOR willpay COMPANY an annual support payment equal to **[CONFIDENTIAL](98)**payable within **[CONFIDENTIAL](99)** days of writtenrequest by COMPANY.  COMPANY may submitsuch requests only once during each calendar year and a total of **[CONFIDENTIAL](100)** such requests during the term of thisAgreement.

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

(c)                                  DISTRIBUTORwill adhere to the following HACCP requirements for monitoring of temperaturecontrols for perishable products both in the DISTRIBUTOR distribution centerand in DISTRIBUTOR’S transportation equipment.
| ITEM                      | ** ** | **FORM**     | ** ** | **TEMPERATURE  REQUIREMENTS IN  DISTRIBUTION  CENTER** | ** ** | **UPPER TEMP.  RANGE WHILE  TRANSPORTED TO  STORES** |
|---------------------------|------------|--------------|------------|--------------------------------------------------------|------------|------------------------------------------------------|
| Soft Serve Frozen Yogurt  |       | Frozen       |       | -10o or lower                                     |       | 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                                             |

 

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

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

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

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

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

 

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

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

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

Weekly report of Current Stores

Weekly report of average drop sizes for each store

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

Daily out-of-stock report and stores so affected

Monthly costing detail on all Products used by theSYSTEM

Such additional reports as may be reasonable requestedby the COMPANY

**4.08****                        Taxes–**Franchisees and COMPANY shall each be responsible for their applicablesales and use taxes.  DISTRIBUTOR shallcollect applicable taxes from each responsible party and be responsible forremitting all 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.

**4.09****                        SpecialPricing Arrangements -**Products that are governed by national billingagency or other programs for which the price at which the DISTRIBUTOR must sellthe Product 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 

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limited to, soft drinksyrup products including, without limitation, the following Coca ColaProducts:  Coke Bag in Box (“BiB”), DietCoke BiB, Sprite BiB and Barq’s Root Beer BIB.

**4.10  HessMarts**- As long as the agreements remain in place betweenCOMPANY and Hess and Hess and DISTRIBUTOR, Products will be sold to Hess underwhatever pricing arrangement exists between Hess and DISTRIBUTOR.  These deliveries will not be subject to theminimums, surcharges or Markup outlined above, neither will they be included inany compliance testing required of COMPANY for average drop sizes or averagecases costs and the impact of these metrics on the future Markup.  All other requirements of COMPANY withrespect to distributor obligations as outlined in this Agreement will apply tothe Hess Marts as well.  In the event thatthe existing agreements between Hess and DISTRIBUTOR cease, Hess Marts maycontinue to receive Products if subsequently approved by COMPANY and subject toHess Mart’s compliance with the economic terms of this Agreement.

**5.****                                      MinimumDeliveries -**The Operators will be required to order Products inminimum quantities of **[CONFIDENTIAL](101)**cases of Products per delivery unless due to DISTRIBUTOR or suppliererror.  In addition, Operator will berequired to pay DISTRIBUTOR a **[CONFIDENTIAL](102)**handling fee per order for orders of less than **[CONFIDENTIAL](103)**cases and **[CONFIDENTIAL](104)** handling fee perorder for orders of less than **[CONFIDENTIAL](105)**cases but equal to or greater than **[CONFIDENTIAL](106)**cases unless due to DISTRIBUTOR or supplier including failure to fulfill theorder in its entirety.

**6.****                                      Termand Termination**

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

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

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

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

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

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

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

 

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**6.02****                             Termination**

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

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

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

or

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

**6.03****                        Effectof Expiration/Termination -**Upon expiration or sooner termination ofthis Agreement, for any reason, COMPANY shall promptly purchase or arrange forthe purchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of theProprietary Products and any labeling and packaging materials used in connectionwith the Proprietary Products.  COMPANYwill purchase or cause to be purchased perishable Proprietary Products within 

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**[CONFIDENTIAL](107)** days afterthe effective date of termination of this Agreement or by the expiration dateof such Proprietary Product, whichever is earlier, and all nonperishableProprietary Products within **[CONFIDENTIAL](108)**days after the effective date of termination of this Agreement. In addition, ifthis agreement is terminated due to COMPANY’s breach or default, COMPANY shallreimburse to DISTRIBUTOR all other reasonable out-of-pocket costs and expenses(not to exceed an amount equal to **[CONFIDENTIAL](109)**of the Markup on each Product unless DISTRIBUTOR receives COMPANY’s priorwritten consent) incurred by DISTRIBUTOR in selling, returning or otherwisedisposing of such Proprietary Products. DISTRIBUTOR shall provide COMPANY withdocumentation or other proof that any such costs and expenses were incurred byDISTRIBUTOR. Termination of this Agreement shall not relieve either party ofany obligation or liability which accrues prior to the effective date oftermination (including, but not limited to, obligations related to the paymentof COMPANY’s accounts receivable or accounts payable and the purchase of excessinventories). Notwithstanding the foregoing provisions of this Section 6.03 tothe contrary, if this Agreement is terminated due to DISTRIBUTOR’s breach ordefault or expires in accordance with the provisions of Section 6.01, COMPANYshall have the obligation to purchase, or shall direct the replacingdistributor or other suitable purchaser to purchase, from DISTRIBUTOR only suchinventory of the Proprietary Products which is merchantable and saleable butCOMPANY shall have no obligation to reimburse DISTRIBUTOR for its out-of-pocketcosts and expenses related to selling, returning or otherwise disposing of suchProprietary Products.

**7.**                                      **Trademarks and Trade Names -**COMPANYhereby represents and warrants that it is the owner of, or has the right to useunder license or sublicense, all trademarks, logos, trade names, and othermarkings used on the Proprietary Product’s packaging and labels (the “Trademarks”).COMPANY hereby grants to DISTRIBUTOR the right to use the Trademarks solely inconnection with the approved sale and distribution of the Proprietary Productsin accordance with the provisions of this Agreement and only for as long asthis Agreement remains in effect. COMPANY also grants to DISTRIBUTOR the rightand license to use the Trademarks in advertising and promotional materials whenthe Trademarks are used therein to identify the Proprietary Products, subjectto COMPANY’s prior written approval of form and content. Provided DISTRIBUTORis using the Trademarks in accordance with the terms and provisions of this Agreement,COMPANY shall indemnify, defend and hold DISTRIBUTOR and its subsidiaries,affiliates, officers, shareholders, directors, employees, members, managers,agents, successors and assigns harmless from and against any and all claims,demands, liabilities, causes of action, damages, costs (including reasonableattorneys’ fees and disbursements) and judgments made or incurred by or found 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

**8.04****                        ThirdParty Claims -**The indemnities in this Section 8 are contingent upon:(i) the indemnified party promptly notifying the indemnifying party in writingof any action or other proceeding which may give rise to a claim forindemnification hereunder; unless such failure to promptly notify does notmaterially prejudice the claim; (ii) the indemnifying party being allowed tocontrol the defense and settlement of such claim; and (iii) the indemnifiedparty reasonably cooperating with the indemnifying party (at the indemnifyingparty’s expense) in providing information relevant to the defense or settlementof a claim. The indemnified party shall have the right, at its option andexpense, to participate in the defense of any action or proceeding throughcounsel of its own choosing.

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**9.**                                      **Insurance**

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

(a)                                  commercialgeneral liability insurance and products liability coverage with broad formvendor endorsement, which specifically insures all liabilities of DISTRIBUTORto COMPANY and Operator under this Agreement, to the extent afforded by normalISO policy forms and definitions, with all such insurance coverages providingfor combined single limit bodily injury/property damage liability of not lessthan **[CONFIDENTIAL](110)** Dollars; and

(b)                                 commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL](111)**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 coverages and naming COMPANY as an additional insured under suchpolicies.  The certificates shall containan agreement by the insurance carrier to notify COMPANY, in writing, at leastthirty (30) days prior to the date of any cancellation or change in suchinsurance coverage.

**9.02****                        COMPANY’sInsurance -**During the term of this Agreement, and for a period of one(1) year thereafter, COMPANY shall purchase and maintain, at its sole cost andexpense, commercial general liability insurance and products liabilitycoverage, and a contractual liability endorsement which specifically insures allliabilities of COMPANY to DISTRIBUTOR under this Agreement, to the extentafforded by normal ISO policy forms and definitions, with all such insurancecoverages providing for combined single limit bodily injury/property damageliability of not less than **[CONFIDENTIAL](112)**Dollars.  All such insurance shall beprovided by insurance companies which are licensed and authorized to dobusiness in the United States of America, and 

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

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

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

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which are reasonably satisfactory to DISTRIBUTOR. COMPANY agrees todeliver to DISTRIBUTOR, on or prior to the Effective Date, a certificate ofinsurance evidencing the existence of all the above insurance coverages andnaming DISTRIBUTOR as an additional insured under such policies. Thecertificate shall contain an agreement by the insurance carrier to notifyDISTRIBUTOR, in writing, at least thirty (30) days prior to the date of anychange in such insurance coverage.

**10.****                               Representationsand Warranties**

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

(a)                                  DISTRIBUTORis a corporation duly organized, validly existing and in good standing underthe laws of the State of Florida. 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 affecting creditors’ rightsgenerally, and further subject to general equity principles.

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

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

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

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

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

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

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

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

**11.****                               Notices-**Any notice or other communication to be given under this Agreement by oneparty to the other shall be in writing and delivered by overnight messengerservice, or delivered by telecopy or facsimile transmission, or sent by UnitedStates registered or certified mail, postage prepaid, addressed as follows:

 
| If to DISTRIBUTOR: |   | Cheney Brothers, Inc.        |
|--------------------|--------|------------------------------|
|               |   | 1 Cheney Way                 |
|               |   | Riveria Beach, Florida 33404 |

 

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|                |   | Attention:                             | Mark Jayne |
|----------------|--------|----------------------------------------|------------|
|           |   |                                   | President  |
|           |   | FAX: (561) 818-4533                    |
|           |   |                                   |
| 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 otheraddresses as may be communicated in writing by either party to the other asprovided hereunder.  

Notices shall be deemed to have been given when received.

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

**13.**                               **Relationship of Parties -**ThisAgreement is not intended and shall not be construed to constitute either partyas the joint venturer, partner, agent or legal representative of theother.  Neither party has any authority,whether express, implied, or apparent, to assume or create any obligations onbehalf of the other.

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

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

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

**17.****                               Assignment:Successors and Assigns -**Except as hereinafter set forth, neither ofthe parties may assign this Agreement without the prior written consent of theother, except that either party shall have the right to assign this Agreementto a parent, subsidiary or affiliated COMPANY, or may assign this Agreement in conjunctionwith the sale or transfer of all or substantially all of its stock or assets byway of a sale of stock or assets, a merger or other business reorganization,without the prior consent of the other party; provided, however, that any suchassignment shall not relieve the assigning party from any liability orobligation under this Agreement that accrues prior to the assignment and noticethereof to the other party and provided further, that in the event of atransfer of all or substantially all of the stock or assets of a party ormerger or other business reorganization, the surviving entity or transferee isat 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.****                               NoOffer -**The submission by DISTRIBUTOR to COMPANY of this Agreementshall have no binding force or effect, shall not constitute an offer to sellthe Products, nor confer any right or impose any obligation upon either partyuntil executed by both parties.

**19.****                               Confidentiality-**Any proprietary information supplied by either party to the other party(whether set forth in writing, on any data base or in any other medium),including, but not limited to information on customer and supplier identity orany other customer or supplier information, purchasing volumes and history,pricing, purchasing specifications, and product market results (the “ConfidentialInformation”), is and shall remain confidential and proprietary information ofthe disclosing party, and valuable trade secrets owned solely by the disclosingparty. The recipient party of any Confidential Information shall not discloseany such Confidential Information to any third person or entity without theprior written consent 

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of the disclosing party in every instance, and shall not use any suchConfidential Information, nor permit any such Confidential Information to beused, for any reason other than to fulfill the terms of this Agreement;provided, however, that either party and its respective successors and assignsmay (i) disclose any Confidential Information to the extent compelled by law,regulation, rule, subpoena, or other process of law and (ii) provide invoices,and any information relating to historical payments or payments due or tobecome due from franchisees or Operators hereunder to its auditors and legalcounsel, and to present and potential financing sources and ratingagencies  and their respective auditorsand legal counsel). The parties’ obligations under this Section 19 shall notapply to any of the Confidential Information delivered or made available tothem by the other party which the recipient of the Confidential Information canreasonably establish (a) was known to the recipient party at the time theConfidential Information was disclosed or made available to the recipientparty; (b) was known to the public at the time the Confidential Information wasdisclosed or made available to the recipient party; (c) becomes known to thepublic after the date the Confidential Information was disclosed or madeavailable to the recipient party through no fault or breach of this Section 19by the recipient party; (d) is given to or made available to the recipientparty by a third party who has a lawful right to disclose the ConfidentialInformation to the recipient party; or, (e) is independently developed by theRecipient party without reference to the Confidential Information.

**20.****                               Arbitration** -All actions, disputes, claims or controversy with the exception of seeking aninjunction, now existing or hereafter arising between DISTRIBUTOR and COMPANY,including, but not limited to any action, dispute, claim or controversy arisingout of this Agreement or the delivery by DISTRIBUTOR of any Products 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-**The section and paragraph headings contained in this Agreement are forreference only and shall not be considered as substantial parts of thisAgreement. The use of the singular or plural from in this Agreement shallinclude the other form and the use of the masculine, feminine or neuter gendershall include the other gender.

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

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

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**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 |
|                          |
|                          |
| CHENEY BROTHERS, INC.         |
|                          |
|                          |
| By:                           | /s/ Mark Jayne |   |
| Its: President                |
|                               |  |  |  |

 

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