**Exhibit10.73**

**TCBYSYSTEMS, LLC**

**DistributionService Agreement**

**with PateDawson Company**

**August 1,2006**

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**DISTRIBUTIONAGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 1st day of August, 2006, by and between **TCBY SYSTEMS, LLC,** a Delaware limited liabilitycompany (“COMPANY”) and **PATE DAWSON COMPANY,**aNorth Carolina Corporation (“DISTRIBUTOR”). DISTRIBUTOR will commencedistribution services under this Agreement on September 25, 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 center located in Goldsboro, North Carolina (the “Territory”) asreflected in the map depicted in **Schedule 2**and DISTRIBUTOR hereby accepts such appointment. Subject to Section 2.02,COMPANY may appoint DISTRIBUTOR as a distributor of Products to Stores outsideof 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 immediately cease the sale and distribution of Products to anyOperator (a) who is in default of its obligations to DISTRIBUTOR, , or (b) whohas filed a voluntary petition in bankruptcy or under any other similarinsolvency or debtor relief law or who has had such a petition filed againstit, or who has made a general assignment for the benefit of its creditors.COMPANY shall also have the right to reinstate delivery to any Operator thatCOMPANY previously stopped selling by providing written notice to DISTRIBUTOR andDISTRIBUTOR shall provide such delivery as soon as mutually agreed between theparties.

A list of the present Operators with Stores locatedwithin the Territory and approved by COMPANY and their respective Storelocations is attached hereto as **Schedule 3**.  During the term of this Agreement, COMPANYshall maintain and provide to DISTRIBUTOR a current list of all Operators withStores within the Territory who have been approved by COMPANY for distributionof the Products under this Agreement. DISTRIBUTOR shall have the right to relyupon such list, as amended or modified by COMPANY in writing from time to time,in performing its obligations under this Agreement. COMPANY shall notifyDISTRIBUTOR of new Stores within the Territory not less than twenty-one (21) daysprior to the desired date of first shipment of Products to any such new Stores.In addition, provided and to the extent that COMPANY and DISTRIBUTOR mutuallyagree in writing, DISTRIBUTOR shall provide distribution services to Storeslocated outside the Territory, as designated by COMPANY.

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

**2.03**        **ProductOrders -**All Product orders shall be submitted by the Operatorsto DISTRIBUTOR and shall specify the location of the Operator’s Stores, thetype of Product, and the quantity desired. Operators must place orders electronically (“Electronic Orders”) or ifplaced by telephone or fax to DISTRIBUTOR’s customer service center inaccordance with the guidelines detailed below, such order will be subject to a **[CONFIDENTIAL](1)** surcharge pursuant to the provisions ofthis section 2.01. All shipment expenses from DISTRIBUTOR’s distribution centerto the Operator’s location shall be at DISTRIBUTOR’s expense unless otherwisenoted elsewhere in this 

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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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Agreement. Product order guides will be provided by DISTRIBUTOR to theOperators monthly via DISTRIBUTOR’s website and with a hard copy delivered toeach Store, with availability of such order guides to be made prior to thebeginning of the month, only if requested by the individual location, but onlyafter review and approval of the order guide by COMPANY. The order guides willbe organized by Product categories and will include, among other things, theProduct Sell Price (as defined herein), Product units and new Products.DISTRIBUTOR will assign one product code number to each stock-keeping unit (“SKU”)of each Product, which will be common throughout its entire distribution systemand will be used on all documents such as order guides, invoices, monthlyreports, etc. SKU’s, and, accordingly, the assigned product code number, mustdiffer for equivalent Products supplied by different suppliers. DISTRIBUTORwill 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 by internet using DISTRIBUTOR’s automated order entry system.  All orders are subject to the standard ordercut-off time of 4:00 p.m. two (2) days prior to their scheduled deliveryday.  Notwithstanding the foregoing,Stores scheduled to receive deliveries on a Monday must have their order placedby 10:00 a.m. the preceding Friday. Operator will be notified of any Product shortages at the time of orderplacement or, in the case of an Electronic Order, at order placement.  If an item is out, the Operator may chooseanother at that time. If a shortage occurs after the order is placed, thelocation will be notified prior to the loading of the delivery truck withsufficient time so that an alternative may be ordered, subject to theprovisions of Section 3.02.

Where reasonably possible, DISTRIBUTOR will scheduleordering days and delivery days that are mutually agreed upon by and betweenDISTRIBUTOR and each Operator and will provide notice to the affected Operatorat least fourteen (14) days before routing changes. On an exception basis,DISTRIBUTOR will consider shortening the permissible time frames for scheduleddeliveries for those Operators that, given unique and compelling businessneeds, require the same.

Commencing **[CONFIDENTIAL](2)**days after the Effective Date, DISTRIBUTOR will be permitted to charge an Operatorwho places their order via fax or phone a surcharge of **[CONFIDENTIAL](3)**which will be shown as a separate line item on the invoice.

**2.04****        Deliveries.**    Delivery vehicles used by DISTRIBUTOR willonly display the marks of DISTRIBUTOR, except for locations that cannotaccommodate delivery by DISTRIBUTOR’S 

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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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existing tractor trailers or in the instances where recovery deliveriesare made by outside services or DISTRIBUTOR has the need for temporary shortterm rental equipment.

DISTRIBUTOR agrees that, excluding key drops (deliveries scheduled tobe made during the period running from one (1) hour or more after the retailclosing time of the Store to deliveries one (1) hour or more before the retailopening time of the Store), an overall average of 90% of all regularlyscheduled deliveries will be made within a two (2) hour window, meaning noearlier than one (1) hour before and no later than one (1) hour after thescheduled delivery time. If a delivery is anticipated to fall outside of thistwo (2) hour window, DISTRIBUTOR will immediately notify the Operator.DISTRIBUTOR will provide an inside delivery to each Operator in accordance withCompany’s temperature store requirements as detailed in Section 4.07, placingrefrigerated and frozen Products into their appropriate storage areas, but willnot be responsible for stocking shelves or rotating inventories.  COMPANY acknowledges that Stores scheduled toreceive fewer than twenty (20) deliveries annually pursuant to Section 2.05,may have their delivery date modified from the originally scheduled day of theweek (but still within that same calender week) to permit DISTRIBUTOR tomaximize the efficiency of its routes. In the event this occurs, DISTRIBUTOR will notify the Store immediatelyupon the placement of the affected order with the new delivery date and time.

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. Copies of invoices for deliveries made after the Store’s regularbusiness hours will be left at the Store.

The COMPANY agrees to use its commercially reasonableefforts to cause Operators to provide keys and security codes for nightdeliveries where necessary.  In the eventOperator refuses to provide keys and security codes, Operator will promptlymeet the delivery driver at the scheduled appointment time or at such othertime as Operator has been notified in the event of a late delivery.  If the Operator fails to meet the DISTRIBUTORdelivery at the appropriate time on more than one occasion, the Operator shallbe responsible for payment of a penalty fee of **[CONFIDENTIAL](4)**to DISTRIBUTOR for subsequent occurrences. If DISTRIBUTOR must redeliver the order to the Operator, the Operatorwill also be responsible for any Product that is rendered undeliverable due tothe delay.  In the event of a Productshortage or delivery problem that occurs during an unattended delivery, theauthorized representative of the Stores will contact the distribution center nolater than the first Notification Deadline following such unattendeddelivery.  The “Notification Deadline” is4:00 p.m. local time each day for the affected Stores.

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

 

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

In the event an emergency delivery is required based upon the Operator’sneeds and not due to a delivery error by DISTRIBUTOR nor during the timeperiods specified in Section 2.06, DISTRIBUTOR will accommodate the Operator’srequest with the most efficient available delivery method. All additionalfreight expense will be at the Operator’s expense and will be billed uponDISTRIBUTOR’s receipt of the invoice from the shipping agent. If DISTRIBUTOR isable to schedule such an emergency delivery in conjunction with a nearby route,the additional freight expense will be **[CONFIDENTIAL](5).**  Where possible, a store may order up to **[CONFIDENTIAL](6)** 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 DISTRIBUTOR notifiesCOMPANY immediately of supplier non-performance.  If an 

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

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

**2.06****        Special Deliveries During Roll-Out and New Operator Openings -**DISTRIBUTOR and COMPANYrecognize that during the initial roll-out phase of the DISTRIBUTORdistribution program, many new processes will be in place for each of COMPANY,the Operators and DISTRIBUTOR, including changes in the way the Operatorsorder, the distance from the DISTRIBUTOR distribution center to the Operators,and lead times from order day to delivery day for the Operators. Therefore,DISTRIBUTOR will process emergency orders for all Operators for the firstthirty (30) days following the commencement of distribution service at noadditional charge, subject to the minimum order requirements and applicablehandling fees, if any, as set forth in Section 5 of this Agreement.  In addition, during the term of thisAgreement, DISTRIBUTOR will process emergency orders for all Operators’ newlyadded Stores within the first thirty (30) days following the opening of the newStores, subject only to minimum order requirements and applicable handlingfees, if any, as set forth in Section 5 of this Agreement.

**2.07****        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 

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refused by Operator at time of delivery for reasonsother than damage or remaining shelf life below agreed upon parameters will besubject to a **[CONFIDENTIAL](7)** restockingcharge to be paid by Operator.  In theevent that the shorted, defective or damaged Product is a Kill Item, thenDISTRIBUTOR will remedy the situation in accordance with Section 3.02 if sorequested 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 Products from the supplier within the twenty-eight (28) dayperiod). Such written notices shall include estimated usage for the Products tobe promoted if such usage is expected to deviate materially from historicallevels or if a new Product. Subject to the above, DISTRIBUTOR agrees to stocksufficient inventory for any new Proprietary Products to be used in nationalLTO promotions and other key items, as reasonably requested by COMPANY.  Unless retained on the Operator’s menu at theinstruction of the COMPANY or mutually agreed to between COMPANY andDISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTOR distributioncenters no later than sixty (60) days after the completion of the LTO andCOMPANY shall purchase all remaining inventory of such LTO as provided inSection 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTO Productsmay not be returned to DISTRIBUTOR, unless the return is necessitated due to aDISTRIBUTOR error or due to Product damage not caused by the Operator.

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

**3.01****        Suppliers/ContractedProducts -**The Proprietary Products to be distributed to the Operatorsunder the terms and conditions of this Agreement shall be purchased byDISTRIBUTOR, on its own account, from the suppliers (including COMPANY)selected by COMPANY, pursuant to terms and conditions as are agreed upon by andbetween DISTRIBUTOR and such suppliers (including COMPANY). In the eventCOMPANY enters into direct contracts with suppliers, the terms and conditionsof such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTORfor its business and legal review and, if the business and legal terms of theproposed contract that apply to DISTRIBUTOR are reasonably acceptable toDISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteedsupplier price provided under such supplier contract (net of billbacks byDISTRIBUTOR, if any), plus applicable freight if the 

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

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supplier price is not a delivered price, plus **[CONFIDENTIAL](8)**,if any, attributable to the Product, shall be the “Cost” of the Product. Products governed by such supplier contracts negotiated by COMPANY arereferred to herein as “Contracted Products.” The freight charges for ContractedProducts will be an amount negotiated with the supplier by COMPANY.  DISTRIBUTOR agrees that Cost for anyContracted Products will not include any unloading costs for palletized andslipsheet loads, except in those cases where the Contracted Products are notdelivered on pallets or if the pallet ti-hi is larger than the standard establishedby DISTRIBUTOR and must be broken down for proper storage

**3.02****        Inventory** -During the term of this Agreement, DISTRIBUTOR shall maintain an inventory ofthe Products in quantities necessary to provide the Operators with an adequatesupply of such Products based upon initial usage projections by COMPANY, futurehistorical usage of such Products by the Operators, and the fill rateperformance requirements detailed below. DISTRIBUTOR agrees to work withCOMPANY, to attempt to maximize the quantities of Products purchased toefficiently reduce the cost of Products purchased, and to maximize Productinventory turns. In addition, DISTRIBUTOR agrees to order Products in thequantities indicated on the inbound quantity matrix attached hereto as **Schedule 5,**as amended by COMPANY toreflect the growth in the number of Stores serviced by DISTRIBUTOR in theTerritory from time to time(9). To further insure DISTRIBUTOR’s ability tocomply with the performance requirements detailed later in this Section 3.02,DISTRIBUTOR will also maintain at each distribution center servicing Operators “safetystock” of not less than **[CONFIDENTIAL](10)**days historical usage for all Proprietary Products and will also have anadditional **[CONFIDENTIAL](11)** 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](12)**at any time, excluding beverage Products and LTO items. COMPANY will provide alist of Kill Items and other Proprietary Products 

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

(9)         Provided that any itemson schedule 5 currently from Distributor non-stocking vendors that will requireDistributor to purchase greater than [CONFIDENTIAL] on hand inventory per orderwill be reviewed with Company for alternate items/vendors or will be purchasedthrough DOT or other redistributors utilized by Distributors.

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

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

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

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to DISTRIBUTOR, which list will be updated by COMPANYfrom time-to-time.  The initial list ofKill 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](13)**, and at least **[CONFIDENTIAL](14)** of all invoices issued by DISTRIBUTOR tothe Operators will be completely accurate at the time of initial issuance, withall of the above measured quarterly.  The“fill rate” equals the percentage of Products or Kill Items, as the case maybe, obtained by dividing the total number of Products or Kill Items shipped byDISTRIBUTOR and received by the Operators at the time of delivery for themonth, by the total number of Product or Kill Items ordered by the Operatorsfrom the DISTRIBUTOR for that same month. All fill rate measurements (and invoice accuracy requirements) will benet of supplier-related issues such as shortages and delayed deliveries toDISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event ofsupplier non-performance. If emergency delivery is required due to supplier(including COMPANY) error, costs of emergency delivery shall be at supplier(including COMPANY) expense, provided that, if the supplier fails to absorbsuch expense, such delivery costs shall be paid by the Operator providedDISTRIBUTOR has notified COMPANY immediately in the event of suchnon-performance and Operator has approved the additional expense inadvance.   If the emergency delivery isdue to DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in asefficient manner as possible, which may include emergency deliveries andspecial freight shipments, at DISTRIBUTOR’S sole expense. If the emergencydelivery is due to Operator error, the Operator shall pay delivery costs forsuch emergency delivery.  From the momentof receipt of the Products for storage by DISTRIBUTOR until the Products havebeen accepted by Operator at the Store, DISTRIBUTOR assumes all risk of loss ordamage with respect thereto, shall be directly liable to COMPANY for any suchloss or damage to the Products and the related costs and expenses for replacingthe Products and agrees to obtain and maintain adequate insurance coverage toinsure against such loss or damage.

In the event of substitution of a Proprietary Product, the substitutedProduct must have been previously approved by COMPANY in writing and, if theneed for substitution was caused due to 

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

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

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DISTRIBUTOR error, the price of the substituted Product will bedetermined based on the lower of the Cost (as hereinafter defined) of thesubstituted Product or the Cost of the out-of-stock Product that itreplaces.  In addition, DISTRIBUTOR willreimburse COMPANY to the extent that COMPANY would have realized a differencebetween its selling price to DISTRIBUTOR and the amount that COMPANY would havepaid for the Proprietary Product from its supplier, unless the substitution isdue to COMPANY’s error.  Upon request,COMPANY shall provide to DISTRIBUTOR copies of invoices and other documentationreasonably necessary to verify the amount of the difference claimed byCOMPANY.  If substitution is due tosupplier (including COMPANY) error, then COMPANY shall cause supplier to, or ifCOMPANY is the supplier, COMPANY shall, reimburse DISTRIBUTOR for anyreasonable losses sustained due to such error.

To the extent that DISTRIBUTOR is unable to sell to the Operatorsquantities of the Proprietary Products in DISTRIBUTOR’s inventory for anyreason whatsoever, including, but not limited to, Product discontinuation,slow-moving inventory, unused LTO Products, promotional or seasonal Products orexceeded shelf life due to sudden decline in Product movement and not due toDISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase,all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost,F.O.B. the DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling andcarrying charges, if properly approved by COMPANY in advance as outlinedbelow.  In such event, COMPANY willpurchase or cause to be purchased all perishable Proprietary Products within **[CONFIDENTIAL](15)** days after notice from DISTRIBUTOR or bythe expiration date of the Proprietary Products, whichever is earlier, and allnonperishable Proprietary Products within **[CONFIDENTIAL](16)**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](17)** 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.

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

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

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

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**3.03****        Aged InventoryNotification-**DISTRIBUTOR will immediately notify COMPANY in writing viaemail in the event that any quantities of its Proprietary Products are withinforty-five (45) days of expiration of product life.  If DISTRIBUTOR fails to do so, COMPANY shallnot be required to comply with 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 Greensboro, North Carolina and in quantities not toexceed a **[CONFIDENTIAL](18)** supply of suchProducts, in the aggregate, provided that DISTRIBUTOR and COMPANY have beengiven an opportunity by the present distributor to inspect any such Productprior to purchase pursuant to this Section 3.04.   DISTRIBUTOR will pay, via check, the presentdistributor for Products purchased from it, within ten (10) days of the laterof DISTRIBUTOR’S receipt of the Products or the receipt of the invoice approvedby COMPANY for the Products.  DISTRIBUTORshall be responsible for all freight and unloading costs associated withtransporting such inventory from the existing DISTRIBUTOR’s locations listedabove.  DISTRIBUTOR will not beresponsible for any handling or other fees charged by the current distributorin connection with DISTRIBUTOR’s loading and transferring of suchinventory.  COMPANY and the currentdistributor will be required to provide all reasonable assistance andcooperation to DISTRIBUTOR in connection with the purchase, loading andtransportation of such inventory from the current distributor to theDISTRIBUTOR distribution center, including the scheduling of mutually agreeableinventory 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](19)** days of the date of the invoice.  In the case of a rebate to COMPANY,DISTRIBUTOR shall pay the rebated amount within **[CONFIDENTIAL](20)**days of its determination of the amount to be rebated.

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

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

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

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**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](21)**per case for all deliveries (collectively, “Markup”), subject to the otherprovisions of this Agreement.  Forpurposes of this Agreement, the “Cost” of a Product other than a ContractedProduct shall be the sum of (a) the cost of the Product as shown on theinvoices to DISTRIBUTOR from the respective supplier, including COMPANY, plus(b) if the 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 those cases where theinvoice cost to DISTRIBUTOR for non-proprietary Products is not a deliveredcost, means that DISTRIBUTOR has added a reasonable freight charge, agreed toin advance and in writing by COMPANY for delivering such non-proprietaryProducts from suppliers to DISTRIBUTOR. Applicable freight for any non-proprietary Product will not exceed therate charged by nationally recognized carriers operating in the same market forthe same type of freight service. Cost for any non-proprietary Product will notbe reduced by discounts for cash or prompt payment available to DISTRIBUTOR,breakage allowances or by backhaul revenue. Fuel or other transportation surchargesindicated on the manufacturer’s or supplier’s invoice or on freight invoiceswill increase Cost. The Cost of a Contracted Product shall be determined inaccordance with Section 3.01.  In noevent will the Cost of Contracted Products include amounts to be rebated toDISTRIBUTOR and therefore, DISTRIBUTOR will not negotiate off-invoicemanufacturer rebates, labels/promotional allowances or any other “soft money”received from supplier or freight carriers of Contracted Products.  In order to allow verification of theforegoing commitment, DISTRIBUTOR agrees to provide documentationsubstantiating the Cost of items DISTRIBUTOR purchases from suppliers andfreight carriers.  DISTRIBUTOR agrees tolimit its collection of such “soft money” to the manufacturers ofnon-proprietary Products.  The Cost ofContracted Products will not be reduced by discounts for cash or prompt paymentavailable to DISTRIBUTOR, breakage allowances or by backhaul revenue. Fuel orother transportation surcharges indicated on the manufacturer’s or supplier’sinvoice or on freight invoices will increase Cost.

The invoice format to be used by DISTRIBUTOR will beapproved by COMPANY and will contain separate lines showing subtotals forvarious Product categories, applicable taxes, the date of the ACH debit andother summary line items as detailed elsewhere in this Agreement.

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

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Partial case shipments (also known as “splits”) shallbe permitted for the malt, maraschino cherries, chocolate sprinkles andassorted sprinkles in which individual units of such Products are separatelypackaged within each case. Notwithstanding anything else contained in thisagreement to the contrary, the Markup for the following items will be limitedto **[CONFIDENTIAL](22)**: malt, maraschinocherries, medium spoons, taster spoons, straws, water, chocolate sprinkles andassorted sprinkles.

**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 weekly basis.  The method for determining the fuel surchargeor adjustment will be made weekly beginning the first Tuesday after theEffective and will be based on the U.S. Weekly Retail On-Highway diesel fuelprice which is compiled by the Energy Information Administration. The Web siteto access this information electronically is as follows:

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

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

As fuel prices increase or decrease, the fuel cost adjustments willmove according to changes in the weekly published price for the U.S. fuel pricebracket, and will take effect on the first day following the applicablepublication date (typically on Monday of each week).  For example, the fuel cost adjustmentbeginning Tuesday, September 19, 2006, if any, will be determined based on theweekly price published on Monday, September 18, 2006 as follows:
| Price Per Gallon Including  Taxes | ** ** | **Per Delivery Surcharge** |
|-----------------------------------|------------|----------------------------|
| ** **                        |       |                       |
| **[CONFIDENTIAL](23)**            |       |                       |

 

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

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

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If the price per gallon, including taxes, exceeds **[CONFIDENTIAL](24)**,the surcharge will equal **[CONFIDENTIAL](25)**per delivery plus an additional **[CONFIDENTIAL](26)**per delivery for each **[CONFIDENTIAL](27)**cent increment (or portion thereof) that the price per gallon exceeds **[CONFIDENTIAL](28)**. If the price per gallon, including taxes, falls below **[CONFIDENTIAL](29)**, the surcharge will be reduced in theamount of **[CONFIDENTIAL](30)** per delivery plus anadditional **[CONFIDENTIAL](31)** per deliveryfor each **[CONFIDENTIAL](32)** cent increment (or portionthereof) that the price is less than **[CONFIDENTIAL](33)**.  Any such surcharge will be shown as aseparate line item on the Operator’s invoice.

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

The **[CONFIDENTIAL](34)** Markup during the first **[CONFIDENTIAL](35)** months after the Effective Date ispremised upon an average annual delivery size of **[CONFIDENTIAL](36)**cases to the Stores serviced by DISTRIBUTOR. COMPANY and DISTRIBUTOR agree to review the service levels provided byDISTRIBUTOR as well as the average delivery sizes **[CONFIDENTIAL](37)**days after the Effective Date.  Noadjustments will be made to the Markup at that time due to a variance inaverage delivery size from projections, unless the average delivery sizeexperienced during the first **[CONFIDENTIAL](38)**days is less than **[CONFIDENTIAL](39)**cases, excluding any additional deliveries made by DISTRIBUTOR during theinitial transition period pursuant to Section 2.06.  If the average delivery size has been between**[CONFIDENTIAL](40)** cases during thisperiod, the Markup will be increased to **[CONFIDENTIAL](41)**per case.  If the average delivery sizehas been less than 

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

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

(26)       Confidential treatment hasbeen requested for the redacted portion.  The confidential, redacted portions have beenfiled separately with the SEC.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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**[CONFIDENTIAL](42)**cases, the Markup will be increased to **[CONFIDENTIAL](43)**per case.  In the event such a Markupadjustment is required, the COMPANY and DISTRIBUTOR agree such Markup will beimplemented as soon as practical after the review and will remain in effect forthe balance of the **[CONFIDENTIAL](44)**of the Agreement.

After the first **[CONFIDENTIAL](45)** months of service and after each **[CONFIDENTIAL](46)** month period thereafter the Markup forthe Stores for the next **[CONFIDENTIAL](47)**months will be based on the actual average delivery size for the previous **[CONFIDENTIAL](48)** months as calculated below and accordingto the following schedule:

Average DeliverySize for    

Preceding **[CONFIDENTIAL](49)** Months Markup for Next **[CONFIDENTIAL](50)**Month

  **[CONFIDENTIAL](51)**

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](52)** 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](53)** special delivery feein accordance with Section 2.05.

In the event theaverage delivery size for the previous **[CONFIDENTIAL](54)**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 thecommencement of negotiations under this Section 4.03, then both COMPANY andDISTRIBUTOR will have the 

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

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

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

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

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

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

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

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

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

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

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

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right to terminatethis Agreement with 180 days written notice to the other party in accordancewith Section 6.02 (b)(ii). Notwithstanding the schedule above, in the event the average deliverysize for the previous **[CONFIDENTIAL](55)**months exceeds **[CONFIDENTIAL](56)** cases andDISTRIBUTOR is unwilling to reduce its Markup for the next **[CONFIDENTIAL](57)**months to **[CONFIDENTIAL](58)** per case or less,COMPANY will have the right to terminate this Agreement with 180 days writtennotice to the other party in accordance with Section 6.02 (b)(ii).

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

(a)   Standard Payment Terms.  Except as noted below, DISTRIBUTOR andCOMPANY have agreed that payments to DISTRIBUTOR for Products delivered to theOperators (including Contract Feeders as defined below) shall be received byACH debit entry initiated by DISTRIBUTOR, so that the amount is credited toDISTRIBUTOR’s account no sooner than **[CONFIDENTIAL](59)**days after the date of receipt of the delivery by Operator.  Thus, Stores which receive deliveries onSaturday or Sunday, would have their account debited on the second Monday afterreceipt of their order.  All newOperators will initially receive credit terms of **[CONFIDENTIAL](60)**days, provided that they satisfy DISTRIBUTOR’S credit criteria for such terms,as such criteria is uniformly applied among all similarly situated Operators,in light of all relevant facts and circumstances.  Payment terms will be extended only to thoseOperators that are creditworthy as shall have been solely determined byDISTRIBUTOR. DISTRIBUTOR may, in its sole discretion, provide alternate paymentterms to those Operators not meeting DISTRIBUTOR’s standards forcreditworthiness.  DISTRIBUTOR will provideemail or fax notice to each Operator at least **[CONFIDENTIAL](61)**days prior to the ACH debit entry actually taking place, advising Operator ofthe amount of the ACH debit, along with the invoice number and any creditsposted during the prior **[CONFIDENTIAL](62)**days.

Notwithstanding the foregoing, DISTRIBUTOR agrees to provide extendedcredit terms to Operators performing as Contract Feeders (as defined below) innon-traditional locations provided that they satisfy DISTRIBUTOR’s creditcriteria for such terms, as 

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

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

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

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

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

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

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

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

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such criteria is uniformly applied among all similarly situatedOperators in light of all relevant facts and circumstances. To qualify for suchcredit terms, each location operated by a Contract Feeder in the Territory mustbe approved by COMPANY in writing and the Contract Feeder must comply withthese extended credit terms.  “ContractFeeders” are Operators who operate non-traditional food service locations infacilities such as airports, sports facilities, travel plazas, universities,tech centers, etc.

(b)           NoSet-Off/Late Fees/Collection Costs. No deductions or set offs from payments due to DISTRIBUTOR may be madeby Operators for any reason without the prior written authorization ofDISTRIBUTOR.  Failure of the Operator tomake any payment required when due shall result in DISTRIBUTOR having the rightto impose more stringent credit or payment terms, such as, without limitation,cash in advance, delivery of acceptable letters of credit or third partyguaranties, or additional collateral, or, after **[CONFIDENTIAL](63)**business days’ prior notice to COMPANY and the affected Operator, to suspendall deliveries, and declare the entire unpaid balance of the Operator’s accountimmediately due and payable. The COMPANY shall pay, and shall use itscommercially reasonable efforts to cause each Operator to pay, all reasonablecosts of collection, including reasonable attorneys fees incurred or paid byDISTRIBUTOR, but only to the extent related to their respective accounts.DISTRIBUTOR will have the right to charge interest at the maximum ratepermitted by law but not exceeding **[CONFIDENTIAL](64)**percent per annum on all unpaid amounts due or owing by Operators and/orCOMPANY to DISTRIBUTOR.

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

(d)           Paymentsto COMPANY as Supplier.  COMPANYpurchases its frozen yogurt Products and resells them to DISTRIBUTOR after addingthe **[CONFIDENTIAL](65)** to the sellprice.  This **[CONFIDENTIAL](66)**varies by Product and a schedule of the current **[CONFIDENTIAL](67)**for its frozen yogurt Products is attached as **Schedule6**.  

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

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

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

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

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

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COMPANY reserves the right to alter **[CONFIDENTIAL](68)**on its frozen yogurt Products in its discretion but no more frequently than **[CONFIDENTIAL](69)**. COMPANY will invoice DISTRIBUTOR for these products as shipped from themanufacturer and will designate the **[CONFIDENTIAL](70)**as separate line items for each Product. DISTRIBUTOR agrees to pay these invoices within **[CONFIDENTIAL](71)**days of receipt.

COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL](72)**on its frozen cake and pie Products as shown on **Schedule 7**.  Companyreserves the right to alter **[CONFIDENTIAL](73)**on its frozen cake and pie Products in its discretion but no more frequentlythan **[CONFIDENTIAL](74)**.  Distributor shall pay all invoices for **[CONFIDENTIAL](75)** on its frozen cake and pie Products wheninvoiced by the COMPANY within **[CONFIDENTIAL](76)**days of invoice date, which date will be no earlier than the date of receipt ofthe applicable Products by the DISTRIBUTOR.

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

**4.06****        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](77)**in the aggregate during the audited period (not to exceed a twelve (12) 

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

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

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

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

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

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

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

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

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

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

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month period) COMPANY shall have the right to conduct additionalaudits, at its option and at DISTRIBUTOR’S reasonable expense, until theaggregate net pricing errors disclosed by an such additional audits are lessthan **[CONFIDENTIAL](78)** for the applicableaudit period.  For any audit conductedpursuant to this Section 4.06 that discloses that Operators were eitherovercharged or undercharged for Products, or that COMPANY was overpaid orovercharged during the audited period, DISTRIBUTOR and COMPANY agree to correctthe overcharge, undercharge, overpayment or underpayment, as the case maybe.  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](79)**days from the final determination of the undercharge or overcharge, asapplicable.

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

(a)           DISTRIBUTOR willsupport the System by participating in the supplier show at its ownexpense.  In addition, DISTRIBUTOR willpay COMPANY an annual support payment equal to **[CONFIDENTIAL](80)**payable on **[CONFIDENTIAL](81)** of each year.

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

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

 

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

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

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

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

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

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

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

Weekly report of Current Stores

Weekly report of average drop sizes for each store

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

Daily out-of-stock report and stores so affected

Monthly costing detail on all Products used by theSYSTEM

Such additional reports as may be reasonable requestedby the COMPANY

**4.08****      Taxes –**Franchiseesand COMPANY shall each be responsible for their applicable sales and usetaxes.  DISTRIBUTOR shall collectapplicable taxes from each responsible party and be responsible for remittingall taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for payingthose taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defendCOMPANY pursuant to Section 8.01 of this Agreement should Company receive aclaim for the DISTRIBUTOR’s failure to pay taxes.  Neither party will pay a claim which isallegedly the responsibility of the other without first notifying the other andgiving the other the opportunity to contest the claim.

**4.09SpecialPricing Arrangements -**Products that are governed bynational billing agency or other programs for which the price at which theDISTRIBUTOR must sell the Product to the Operator is prescribed by agreementsbetween COMPANY, or any other franchisor or group purchasing organization, onthe one hand, and the supplier or manufacturer of such Products, on the other,are referred to in this 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 Products include, but are not limited to, softdrink syrup products including, without limitation, the following Coca ColaProducts:  Coke Bag in Box (“BiB”), DietCoke BiB, Sprite BiB and Barq’s Root Beer BIB.

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**5.****     Minimum Deliveries -**TheOperators will be required to order Products in minimum quantities of **[CONFIDENTIAL](82)** cases of Products per delivery unless dueto DISTRIBUTOR or supplier error.  Inaddition, Operator will be required to pay DISTRIBUTOR a **[CONFIDENTIAL](83)**handling fee per order for orders of less than **[CONFIDENTIAL](84)**cases and **[CONFIDENTIAL](85)** handling fee perorder for orders of less than **[CONFIDENTIAL](86)**cases but equal to or greater than **[CONFIDENTIAL](87)**cases unless due to DISTRIBUTOR or supplier including failure to fulfill theorder in its entirety. Products with a Markup of **[CONFIDENTIAL](88)**pursuant to Section 4.01 will be counted as cases for determining theapplicability and amount of these handling fees.

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

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

**6.02**        **Termination**

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

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

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

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

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

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

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

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

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

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

or

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

**6.03****        Effect ofExpiration/Termination -**Upon expiration or sooner termination of thisAgreement, for any reason, COMPANY shall promptly purchase or arrange for thepurchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of theProprietary Products and any labeling and packaging materials used inconnection with the Proprietary Products. COMPANY will purchase or cause to be purchased perishable ProprietaryProducts within **[CONFIDENTIAL](89)** days after theeffective date of termination of this Agreement or by the expiration date ofsuch Proprietary Product, whichever is earlier, and all nonperishableProprietary Products within **[CONFIDENTIAL](90)**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](91)**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 

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

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

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

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either party of any obligation or liability which accrues prior to theeffective date of termination (including, but not limited to, obligationsrelated to the payment of COMPANY’s accounts receivable or accounts payable andthe purchase of excess inventories). Notwithstanding the foregoing provisionsof this Section 6.03 to the contrary, if this Agreement is terminated due toDISTRIBUTOR’s breach or default or expires in accordance with the provisions ofSection 6.01, COMPANY shall have the obligation to purchase, or shall directthe replacing distributor or other suitable purchaser to purchase, fromDISTRIBUTOR only such inventory of the Proprietary Products which ismerchantable and saleable but COMPANY shall have no obligation to reimburseDISTRIBUTOR for its out-of-pocket costs and expenses related to selling,returning or otherwise disposing of such Proprietary Products.

**7.**             **Trademarksand Trade Names -**COMPANY hereby represents and warrants that itis the owner of, or has the right to use under license or sublicense, alltrademarks, logos, trade names, and other markings used on the ProprietaryProduct’s packaging and labels (the “Trademarks”). COMPANY hereby grants toDISTRIBUTOR the right to use the Trademarks solely in connection with theapproved sale and distribution of the Proprietary Products in accordance withthe provisions of this Agreement and only for as long as this Agreement remainsin effect. COMPANY also grants to DISTRIBUTOR the right and license to use theTrademarks in advertising and promotional materials when the Trademarks areused therein to identify the Proprietary Products, subject to COMPANY’s priorwritten approval of form and content. Provided DISTRIBUTOR is using theTrademarks in accordance with the terms and provisions of this Agreement,COMPANY shall indemnify, defend and hold DISTRIBUTOR and its subsidiaries,affiliates, officers, shareholders, directors, employees, members, managers,agents, successors and assigns harmless from and against any and all claims,demands, liabilities, causes of action, damages, costs (including reasonableattorneys’ fees and disbursements) and judgments made or incurred by or foundagainst any of them resulting from or arising out of any claim or suit alleginginfringement by COMPANY or its affiliates, through any of the Trademarks orotherwise.

**8.****             Indemnification**

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

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

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

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

(a)           Any breach or defaultby COMPANY of any term or provision of this Agreement.

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

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

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

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

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ATTRIBUTABLE TO A BREACH OF ANY TERM OR PROVISION OF 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 OF DISTRIBUTOR’SACTUAL NEGLIGENCE IN ITS HANDLING OF SUCH PRODUCTS.  **EXCEPT AS EXPLICITLYPROVIDED IN THIS AGREEMENT,****DISTRIBUTOR MAKES NOWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OFMERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.**

**8.04****        Third Party Claims-**The indemnities in this Section 8 are contingent upon: (i) theindemnified party promptly notifying the indemnifying party in writing of anyaction or other proceeding which may give rise to a claim for indemnificationhereunder; unless such failure to promptly notify does not materially prejudicethe claim; (ii) the indemnifying party being allowed to control the defense andsettlement of such claim; and (iii) the indemnified party reasonablycooperating with the indemnifying party (at the indemnifying party’s expense)in providing information relevant to the defense or settlement of a claim. Theindemnified party shall have the right, at its option and expense, toparticipate in the defense of any action or proceeding through counsel of itsown choosing.

**9.**             **Insurance**

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

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single limit bodily injury/property damage liabilityof not less than **[CONFIDENTIAL](92)** Dollars; and

(b)           commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL](93)**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 such insurancecoverage.

**9.02****        COMPANY’s Insurance-**During the term of this Agreement, and for a period of one (1) yearthereafter, COMPANY shall purchase and maintain, at its sole cost and expense,commercial general liability insurance and products liability coverage, and acontractual liability endorsement which specifically insures all liabilities ofCOMPANY to DISTRIBUTOR under this Agreement, 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](94)** Dollars. All suchinsurance shall be provided by insurance companies which are licensed andauthorized to do business in the United States of America, and which arereasonably satisfactory to DISTRIBUTOR. COMPANY agrees to deliver toDISTRIBUTOR, on or prior to the Effective Date, a certificate of insuranceevidencing the existence of all the above insurance coverages and namingDISTRIBUTOR as an additional insured under such policies. The certificate shallcontain an agreement by the insurance carrier to notify DISTRIBUTOR, inwriting, at least thirty (30) days prior to the date of any change in suchinsurance coverage.

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

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

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

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

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

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(a)           DISTRIBUTOR is acorporation duly organized, validly existing and in good standing under thelaws of the State of North Carolina. DISTRIBUTOR has the requisite power to ownproperties, to carry on its business as now being conducted by it, and toexecute, deliver and perform this Agreement.

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

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

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

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

(a)           COMPANY is a limitedliability COMPANY duly organized, validly existing in good standing under thelaws of the State of Utah. COMPANY has the corporate power to own properties,to carry on its business as now being conducted by it, and to execute, deliverand 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.

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(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) any judgment,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 -**Anynotice or other communication to be given under this Agreement by one party tothe other shall be in writing and delivered by overnight messenger service, ordelivered by telecopy or facsimile transmission, or sent by United Statesregistered or certified mail, postage prepaid, addressed as follows:
|   | If to DISTRIBUTOR: | Pate Dawson Company                    |
|--------|--------------------|----------------------------------------|
|   |               | 402 Commerce Court                     |
|   |               | Goldsboro, North Carolina  27532  |
|   |               | Attention: Mac Sullivan                |
|   |               | President                              |
|   |               | FAX: (919) 778-0604                    |
|   |               |                                   |
|   |               |                                   |
|   | If to COMPANY:     | TCBY Systems, LLC                      |
|   |               | 2855 E.  Cottonwood Parkway, Suite 400 |
|   |               | Salt Lake City,  UT 84121-7050         |
|   |               | Attention:  Purchasing Director        |
|   |               | FAX: (801)  736-5941                   |

 

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

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**12.**          **ForceMajeure -**Notwithstanding any term or provision contained inthis Agreement to the contrary, it is understood and agreed that DISTRIBUTOR willnot be responsible or liable in any manner whatsoever for the failure by it tosell and/or deliver the Products or otherwise perform any obligation under thisAgreement or otherwise, and COMPANY will not be responsible or liable in anymanner whatsoever for the failure by it to purchase and accept, the Products,if such failure is due to fire, strike, accident, explosion, riot, rebellion,terrorist action or threat, flood, embargo, war, interruption or delay intransportation, epidemic, pandemic, shortage of raw materials, acts of God orgovernment (including, but not limited to, laws, regulations and restrictionsof all kinds), or any other causes or contingencies of any character (otherthan lack of funds) beyond the reasonable control of DISTRIBUTOR orCOMPANY.  Nothing expressed or implied inthis Section 12 shall excuse the non-performance or delay in performance of anypayment obligation of the COMPANY or DISTRIBUTOR, any affiliate or anyOperator.

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

**14.****          Entire Agreement;Modifications -**This Agreement and the Schedules attached hereto andmade a part hereof, constitute the entire agreement and understanding of theparties with respect to the subject matter hereof, and supersede all priorproposals, negotiations, communications, representations, written or oralagreements and understandings between the parties with respect to the subjectmatter hereof. No modification of any term or provision of this Agreement shallbe enforceable unless embodied in a writing executed by all parties to thisAgreement.

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

**16.****          Waivers -**Thewaiver by either party hereto of any of its rights or breaches of the otherparty under this Agreement in a particular instance shall not be construed as awaiver of the same or different rights or breaches in subsequent instances. Allremedies, rights, undertakings and obligations, hereunder shall be cumulativeand none shall operate as a limitation of any other remedy, right, undertakingor obligation hereof.

**17.****          Assignment:Successors and Assigns -**Except as hereinafter set forth, neither ofthe parties may assign this Agreement without the prior written consent of theother, except that either party shall have the right 

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to assign this Agreement to a parent, subsidiary or affiliated COMPANY,or may assign this Agreement in conjunction with the sale or transfer of all orsubstantially all of its stock or assets by way of a sale of stock or assets, amerger or other business reorganization, without the prior consent of the otherparty; provided, however, that any such assignment shall not relieve theassigning party from any liability or obligation under this Agreement thataccrues prior to the assignment and notice thereof to the other party andprovided further, that in the event of a transfer of all or substantially allof the stock or assets of a party or merger or other business reorganization,the surviving entity or transferee is at least as financially strong as theassigning or original party.  Theassigning party shall give notice of such assignment to the other party. Theprovisions of this Agreement will be binding upon and will inure to the benefitof the parties and their respective successors and assigns.  DISTRIBUTOR may assign its accountsreceivables, and related contract rights, in connection with its accountsreceivable financing and securitization.

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

**19.****          Confidentiality -**Any proprietary information supplied by either party to the other party(whether set forth in writing, on any data base or in any other medium),including, but not limited to information on customer and supplier identity orany other customer or supplier information, purchasing volumes and history,pricing, purchasing specifications, and product market results (the “ConfidentialInformation”), is and shall remain confidential and proprietary information ofthe disclosing party, and valuable trade secrets owned solely by the disclosingparty. The recipient party of any Confidential Information shall not discloseany such Confidential Information to any third person or entity without theprior written consent of the disclosing party in every instance, and shall notuse any such Confidential Information, nor permit any such ConfidentialInformation to be used, for any reason other than to fulfill the terms of thisAgreement; provided, however, that either party and its respective successorsand assigns may (i) disclose any Confidential Information to the extentcompelled by law, regulation, rule, subpoena, or other process of law and (ii)provide invoices, and any information relating to historical payments orpayments due or to become due from franchisees or Operators hereunder to itsauditors and legal counsel, and to present and potential financing sources andrating agencies and their respective auditors and legal counsel). The parties’obligations under this Section 19 shall not apply to any of the ConfidentialInformation delivered or made available to them by the other party which therecipient of the Confidential Information can reasonably establish (a) wasknown to the recipient party at the time the Confidential Information wasdisclosed or made available to the recipient party; (b) was known to the publicat the time the Confidential Information was disclosed or made available to therecipient party; (c) becomes known to the public after the date theConfidential Information was disclosed or made available to the recipient partythrough no 

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fault or breach of this Section 19 by the recipient party; (d) is givento or made available to the recipient party by a third party who has a lawfulright to disclose the Confidential Information to the recipient party; or, (e)is independently developed by the Recipient party without reference to theConfidential Information.

**20.****          Arbitration** - All actions,disputes, claims or controversy with the exception of seeking an injunction,now existing or hereafter arising between DISTRIBUTOR and COMPANY, including,but not limited to any action, dispute, claim or controversy arising out ofthis Agreement or the delivery by DISTRIBUTOR of any Products to COMPANY (a “Dispute”)shall be resolved by binding arbitration in Salt Lake City, Utah, in accordancewith the Commercial Arbitration Rules of the American Arbitration Associationand, to the maximum extent applicable, the Federal Arbitration Act.  Arbitrations shall be conducted before onearbitrator mutually agreeable to COMPANY and DISTRIBUTOR.  If the parties cannot agree on an arbitratorwithin thirty (30) days after the request for an arbitration, then eachparty will select an arbitrator and the two arbitrators will select a third whoshall act as the sole arbitrator of the dispute.  Judgment on any award rendered by anarbitrator may be entered in any court having jurisdiction.  All fees of the arbitrator and other costsand expenses of the arbitration shall be paid by DISTRIBUTOR and COMPANYequally unless otherwise awarded by the arbitrator.  Disputes between DISTRIBUTOR and any Operatorother than COMPANY shall not be subject to arbitration under this section 20.

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

**22.****         Miscellaneous -**Thesection and paragraph headings contained in this Agreement are for referenceonly and shall not be considered as substantial parts of this Agreement. Theuse of the singular or plural from in this Agreement shall include the otherform and the use of the masculine, feminine or neuter gender shall include theother gender.

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

*[Remainderof page intentionally blank.  Signature pageand Schedules follow.]*

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**IN WITNESS WHEREOF,**eachof the parties hereto has caused this Agreement to be executed and delivered byits duly authorized officers on the day and year first above written.
| TCBY SYSTEMS, LLC              |
|--------------------------------|
|                           |
|                           |
| By:                            | /s/ Michael Ward |   |
| Its: Executive  Vice President |
|                           |
|                           |
| PATE DAWSON  COMPANY           |
|                           |
|                           |
| By:                            | /s/ Malcolm R.  Sullivan, Jr. |   |
| Its: President                 |
|                                |  |  |  |

 

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