**Exhibit10.79**

**CONFIDENTIAL**

**TCBY SYSTEMS, LLC**

**Distribution Service Agreement**

**withLincoln Poultry and Egg Company**

**January 15, 2007**

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**DISTRIBUTION AGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 15th day of January, 2007, by and between **TCBY SYSTEMS, LLC,** a Delaware limitedliability company (“COMPANY”) and **LINCOLNPOULTRY AND EGG COMPANY,**a Nebraska Corporation (“DISTRIBUTOR”).DISTRIBUTOR will commence distribution services under this Agreement on March26, 2007 (the “Effective Date”) unless otherwise mutually agreed upon by theparties.

**RECITALS**

**A**.            The COMPANY is engagedin the worldwide business of franchising or licensing retail TCBY Stores andother related concepts (“Franchised Stores”). COMPANY also has severalCOMPANY-owned stores that it supports directly (“Company Stores”). TheFranchised Stores 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 isresponsible for activities at its Company Stores. Company Stores and FranchisedStores are jointly referred to herein as “Stores”, the Franchisees andindividuals 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 to assist Stores to meet its purchasing needsand has the right to designate distributors 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 connectiontherewith, the DISTRIBUTOR manages, controls, prepares and furnishes reports toits customers concerning the inventories of products and supplies theDISTRIBUTOR purchases, manages and controls for sale, distribution and deliveryto its customers.

C.            COMPANY wishes toappoint DISTRIBUTOR as a distributor of certain approved proprietary food andrelated products to the Stores located within the Territory (as defined below),and DISTRIBUTOR wishes to accept such appointment, all on the terms andconditions 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 Lincoln, Nebraska (the “Territory”) as reflectedin the map depicted in **Schedule 2**and DISTRIBUTOR hereby accepts such appointment. This Territory includes theentire state of Iowa; the portions of the states of North Dakota, South Dakotaand Nebraska east of US Highway 83 but including the cities of Minot andBismarck, North Dakota, Pierre, South Dakota and North Platte, Nebraska; theportion of the state of Minnesota south of US Highway 12 but including thegreater metropolitan areas of Minneapolis and St. Paul Minnesota and the cityof Quincy, Illinois. Subject to Section 2.02, COMPANY may appoint DISTRIBUTORas a distributor of Products to Stores outside of the Territory and DISTRIBUTORmay 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 its inventory non-proprietary Products whichDISTRIBUTOR stocks in its inventory for sale to COMPANY, its affiliates and itsOperators. DISTRIBUTOR shall not be required to maintain more than two hundred(200) Proprietary Products in inventory at any time. All Coca Cola Productscarried for COMPANY shall be excluded from the calculation of the number ofProprietary 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

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(subject to minimum Product order requirements) as theOperators may order from time to time during the term of this Agreement.DISTRIBUTOR shall cease selling TCBY Branded Products to any Operator not laterthan three (3) days following receipt of written notice from COMPANY advisingDISTRIBUTOR that such Operator is no longer approved by COMPANY and shall,within such timeframe, further cease selling, under the terms of any supplieragreement negotiated by COMPANY, all Proprietary Products to such Operatorsreferenced in such notice. In addition, DISTRIBUTOR shall have the right tocease the sale and distribution of Products to any Operator (a) who is in defaultof its obligations to DISTRIBUTOR, provided that DISTRIBUTOR has given COMPANYat least three (3) business days notice of such default before ceasingdeliveries to such Operator, or (b) who has filed a voluntary petition inbankruptcy or under any other similar insolvency or debtor relief law or whohas had such a petition filed against it, or who has made a general assignmentfor the benefit of its creditors. COMPANY shall also have the right toreinstate delivery to any Operator that COMPANY previously stopped selling byproviding written notice to DISTRIBUTOR and DISTRIBUTOR shall provide suchdelivery as soon as mutually agreed between the parties.

A list of the present Operators with Stores locatedwithin the Territory and approved by COMPANY and their respective Storelocations is attached hereto as **Schedule 3**.During the term of this Agreement, COMPANY shall maintain and provide toDISTRIBUTOR a current list of all Operators with Stores within the Territorywho have been approved by COMPANY for distribution of the Products under thisAgreement. DISTRIBUTOR shall have the right to rely upon such list, as amendedor modified by COMPANY in writing from time to time, in performing itsobligations under this Agreement. COMPANY shall notify DISTRIBUTOR of newStores within the Territory not less than fourteen (14) days prior to thedesired date of first shipment of Products to any such new Stores. In addition,provided and to the extent that COMPANY and DISTRIBUTOR mutually agree inwriting, DISTRIBUTOR shall provide distribution services to Stores locatedoutside 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**        **Product Orders -**All Product ordersshall be submitted by the Operators to DISTRIBUTOR and shall specify thelocation of the Operator’s Stores, the type of Product, and the quantitydesired.

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Operators may place orders electronically (“ElectronicOrders”) or by telephoning or faxing DISTRIBUTOR’s customer service center inaccordance with the guidelines detailed below. All shipment expenses from DISTRIBUTOR’sdistribution center to the Operator’s location shall be at DISTRIBUTOR’sexpense unless otherwise noted elsewhere in this Agreement. Product orderguides will be provided by DISTRIBUTOR to the Operators monthly via DISTRIBUTOR’swebsite and with a hard copy delivered to each Store, with availability of suchorder guides to be made prior to the beginning of the month, but only afterreview and approval of the order guide by COMPANY. The order guides will beorganized 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. DISTRIBUTOR willutilize the existing TCBY product item numbers. Only Products approved for saleto its Operators by the COMPANY will be listed on this order guide. ElectronicOrders will be placed via internet using DISTRIBUTOR’s web-site. All ElectronicOrders are subject to the standard order cut-off time of 4:00 p.m. local time,two (2) days prior to their scheduled delivery day. Operators will have until5:00 p.m. local time, two (2) days before their order shipping day to modify oradd-on to their order. Orders not placed electronically may be subject toearlier cut-off times than those established above as mutually agreed uponbetween COMPANY and DISTRIBUTOR. Operators will be notified prior to 10:00 a.m.the day after their order cut-off if a product is expected to be out of stockso that an alternative may be ordered, subject to the provisions of Section3.02. Notwithstanding the foregoing, Stores that have a scheduled delivery dayof Monday, must have their orders placed by 12:00 p.m. local time, on thepreceding Saturday and Stores that have a scheduled delivery day of Tuesdaymust have their orders placed by 12:00 p.m. local time, on the precedingSunday.

DISTRIBUTOR may scheduledeliveries at any time and day of the week. However, where reasonably possible,DISTRIBUTOR will schedule ordering days and delivery days that are mutuallyagreed upon by and between DISTRIBUTOR and each Operator and will providenotice to the affected Operator at least fourteen (14) days before routingchanges. On an exception basis, DISTRIBUTOR will consider shortening thepermissible time frames for scheduled deliveries for those Operators that,given unique and compelling business needs, require the same.

**2.04****        Deliveries.** Deliveryvehicles used by DISTRIBUTOR will only display the marks of DISTRIBUTOR, exceptfor locations that cannot accommodate delivery by DISTRIBUTOR’S

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existing tractor trailers or in the instances whererecovery deliveries are made by outside services or DISTRIBUTOR has the needfor temporary short term rental equipment.

DISTRIBUTOR agrees that, excluding key drops(deliveries scheduled to be made during the period running from one (1) hour ormore after the retail closing time of the Store to deliveries one (1) hour ormore before the retail opening time of the Store), an overall average of 90% ofall regularly scheduled deliveries will be made within a two (2) hour window,meaning no earlier than one (1) hour before and no later than one (1) hourafter the scheduled delivery time. If a delivery is anticipated to fall outsideof this two (2) hour window, DISTRIBUTOR will immediately notify the Operator.DISTRIBUTOR will provide an inside delivery to each Operator in accordance withCompany’s temperature store requirements as detailed in Section 4.09, placingrefrigerated and frozen Products into their appropriate storage areas, but willnot be responsible for stocking shelves or rotating inventories.

All invoices for deliveries made during Store’sbusiness hours will be signed for by the Store’s store manager or otherrepresentative prior to DISTRIBUTOR’s driver leaving the Store (provided thatthe driver is not unreasonably delayed). Copies of invoices for deliveries madeafter the Store’s regular business hours will be left at the Store.

The COMPANY agrees to useits commercially reasonable efforts to cause Operators to provide keys andsecurity codes for night deliveries where necessary. In the event Operatorrefuses to provide keys and security codes, Operator will promptly meet thedelivery driver at the scheduled appointment time or at such other time asOperator has been notified in the event of a late delivery. If the Operatorfails to meet the DISTRIBUTOR delivery at the appropriate time on more than oneoccasion, the Operator shall be responsible for payment of a penalty fee of **[CONFIDENTIAL]**(1) to DISTRIBUTOR for subsequent occurrences. In the event of aProduct shortage or delivery problem that occurs during an unattended delivery,the authorized representative of the Stores will contact the distributioncenter no later than the first Notification Deadline following such unattendeddelivery. The “Notification Deadline” is 4:00 p.m. local time each day for theaffected Stores.

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

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(1)      Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portions havebeen filed separately with the SEC.

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####  

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

 

This schedule is intended to serve as a guideline onlyand DISTRIBUTOR agrees to provide additional regular deliveries as requested byOperator and approved by COMPANY in writing. COMPANY will provide DISTRIBUTORwith the initial delivery frequency for each Store in **Schedule 3**. COMPANY and DISTRIBUTOR willmutually agree on the exact date for routing changes from summer to winter andwinter to summer but each period will be approximately six (6) months withsummer routing from April through September and winter routing from Octoberthrough March.

In the event an emergency delivery is required basedupon the Operator’s needs and not due to a delivery error by DISTRIBUTOR norduring the time periods specified in Section 2.06, DISTRIBUTOR will accommodatethe Operator’s request with the most efficient available delivery method. Alladditional freight expense will be at the Operator’s expense and will be billedupon DISTRIBUTOR’s receipt of the invoice from the shipping agent. IfDISTRIBUTOR is able to schedule such an emergency delivery in conjunction witha nearby route, the additional freight expense will be **[CONFIDENTIAL]**(2). Where possible, a store may order up to **[CONFIDENTIAL]**(3) cases to be delivered to a nearby store, on that store’sdelivery day (and with that store’s consent) without an additional charge. Productsdelivered to a nearby store will be billed on a separate invoice.

Should the need arise for an emergency or specialdelivery due to supplier error, DISTRIBUTOR and COMPANY will work with thesupplier to remedy the shortage at the supplier’s expense. If supplier fails topay the additional freight expense, COMPANY will be required to do so providedDISTRIBUTOR notifies COMPANY immediately of supplier non-performance. If anemergency delivery is necessary due to DISTRIBUTOR error, DISTRIBUTOR willarrange a special delivery with any additional freight to be paid byDISTRIBUTOR.

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

(3)      Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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DISTRIBUTOR will arrangeits routes to insure that its delivery trucks will be in all markets (SMSA’s ofat least 250,000 population) within each Territory at least twice a week whereat least twenty-five (25) Stores serviced by DISTRIBUTOR under this Agreementare located.

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

**2.07****        Return of Products/Credits** – Any Products ordered byOperators which are returned to DISTRIBUTOR for any reason must be returned nolater than the next regularly scheduled delivery (except that, in the case ofProducts to be returned as a result of concealed damage, within the remainingshelf life of such Products) and all claims for Products to be returned must bemade either to the driver upon check-in of the order, by telephone by 4 p.m. onthe day of delivery following receipt of the Products if an unattended deliveryor, in the case of concealed damage, within twenty-four (24) hours of discoveryof concealed damage by the Operator. All returned items must be in unmarkedoriginal packaging and must be in suitable condition for resale (unless damagedor mis-marked Product was the reason for the return). Subject to the foregoing,DISTRIBUTOR shall provide credit to the affected Operator for defective,shorted or damaged Products within twenty-four (24) hours of the driver’sreturn if brought to the driver’s attention or noticed by the driver duringdelivery or, in any event, within forty-eight (48) hours of DISTRIBUTOR’sreceipt of the Operator’s claim of damaged, shorted or defective Products (orreceipt of product, if warranted) and will immediately provide documentation tothe Operator of such credit via fax or email as requested by the Operator. Notwithstandingthe foregoing, no returns will be permitted for cooler or freezer items, orfresh produce due to misorder by the Operator. Products refused by Operator attime of delivery for reasons other than damage or remaining shelf life belowagreed upon parameters will be subject to a **[CONFIDENTIAL]**(4) restocking charge to be paid byOperator. In the event that the shorted, defective or damaged Product is a KillItem, then DISTRIBUTOR will remedy the situation in accordance with Section3.02 if so requested by the Operator.

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(4)      Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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**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. Unlessretained on the Operator’s menu at the instruction of the COMPANY or mutuallyagreed to between COMPANY and DISTRIBUTOR, all LTO Products must be removedfrom the DISTRIBUTOR distribution centers no later than sixty (60) days afterthe completion of the LTO and COMPANY shall purchase all remaining inventory ofsuch LTO as provided in Section 3.02. The sale of LTO Products by DISTRIBUTORis final and LTO Products may not be returned to DISTRIBUTOR, unless the returnis necessitated due to a DISTRIBUTOR error or due to Product damage not causedby the Operator.

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

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

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(5)      Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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**3.02****        Inventory** -During the term of this Agreement, DISTRIBUTOR shall maintain an inventory ofthe Products in quantities necessary to provide the Operators with an adequatesupply of such Products based upon initial usage projections by COMPANY, futurehistorical usage of such Products by the Operators, and the fill rateperformance requirements detailed below. DISTRIBUTOR agrees to work withCOMPANY, to attempt to maximize the quantities of Products purchased toefficiently reduce the cost of Products purchased, and to maximize Productinventory turns. In addition, DISTRIBUTOR agrees to order Products in thequantities indicated on the inbound quantity matrix attached hereto as **Schedule 5,**as amended by COMPANY toreflect the growth in the number of Stores serviced by DISTRIBUTOR in theTerritory from time to time. To further insure DISTRIBUTOR’s ability to complywith the performance requirements detailed later in this Section 3.02,DISTRIBUTOR will also maintain “safety stock” of not less than **[CONFIDENTIAL]**(6) days historical usage for all Proprietary Products and willalso have an additional **[CONFIDENTIAL]**(7) days historical usage of whitechocolate mousse, chocolate and vanilla frozen yogurt on the road at all times.DISTRIBUTOR agrees that all Products delivered to Operators will have at leastone-third of their original shelf-life remaining as of the date of delivery.

COMPANY categorizes Products into three classes:

Proprietary Products thatOperators must have (“Kill Items”), which Kill Items will not number more than **[CONFIDENTIAL]**(8) at any time, excluding beverage Products and LTO items.COMPANY will provide a list of Kill Items to DISTRIBUTOR, which list will beupdated by COMPANY from time-to-time. The initial list of Kill Items isattached as **Schedule 4**.

Other ProprietaryProducts that can be substituted in an emergency.

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

DISTRIBUTOR will achieve a 100% fill rate on KillItems with overnight emergency delivery, if requested, an overall aggregate “fillrate” for all Products of **[CONFIDENTIAL]**(9), and at least **[CONFIDENTIAL]**(10) of all invoices issued by DISTRIBUTOR to the Operators willbe

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

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

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

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

(10)    Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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completely accurate at the time of initial issuance,with all of the above measured quarterly. The “fill rate” equals the percentageof Products or Kill Items, as the case may be, obtained by dividing the totalnumber of Products or Kill Items shipped by DISTRIBUTOR and received by theOperators at the time of delivery for the month, by the total number of Productor Kill Items ordered by the Operators from the DISTRIBUTOR for that samemonth. All fill rate measurements (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 in advance. Ifthe emergency delivery is due to DISTRIBUTOR error, then DISTRIBUTOR willremedy the situation in as efficient manner as possible, which may includeemergency deliveries and special freight shipments, at DISTRIBUTOR’S soleexpense. If the emergency delivery is due to Operator error, the Operator shallpay delivery costs for such emergency delivery. From the moment of receipt ofthe Products for storage by DISTRIBUTOR until the Products have been acceptedby Operator at the Store, DISTRIBUTOR assumes all risk of loss or damage withrespect thereto, shall be directly liable to COMPANY for any such loss ordamage to the Products and the related costs and expenses for replacing theProducts and agrees to obtain and maintain adequate insurance coverage toinsure against such loss or damage.

In the event of substitution of a Proprietary Product,the substituted Product must have been previously approved by COMPANY inwriting and, if the need for substitution was caused due to DISTRIBUTOR error,the price of the substituted Product will be determined based on the lower of theCost (as hereinafter defined) of the substituted Product or the Cost of theout-of-stock Product that it replaces. In addition, DISTRIBUTOR will reimburseCOMPANY to the extent that COMPANY would have realized a difference between itsselling price to DISTRIBUTOR and the amount that COMPANY would have paid forthe Proprietary Product from its supplier, unless the substitution is due toCOMPANY’s error. Upon request, COMPANY shall provide to DISTRIBUTOR copies ofinvoices and other documentation reasonably necessary to verify the amount ofthe difference claimed by COMPANY. If substitution is due to supplier(including COMPANY) error, then COMPANY shall cause supplier to, or if COMPANYis the supplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable lossessustained due to such error.

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To the extent that DISTRIBUTOR is unable to sell tothe Operators quantities of the Proprietary Products in DISTRIBUTOR’s inventoryfor any reason whatsoever, including, but not limited to, Productdiscontinuation, slow-moving inventory, unused LTO Products, promotional orseasonal Products or exceeded shelf life due to sudden decline in Productmovement and not due to DISTRIBUTOR error, COMPANY will purchase, or cause athird party to purchase, all remaining inventory of such Proprietary Productsat DISTRIBUTOR’s cost, F.O.B. the DISTRIBUTOR distribution centers plusDISTRIBUTOR’s handling and carrying charges, if properly approved by COMPANY inadvance as outlined below. In such event, COMPANY will purchase or cause to bepurchased all perishable Proprietary Products within **[CONFIDENTIAL]**(11)days after notice from DISTRIBUTOR or by the expiration date of the ProprietaryProducts, whichever is earlier, and all nonperishable Proprietary Productswithin **[CONFIDENTIAL]**(12) days after notice fromDISTRIBUTOR. In addition, if the inventory re-purchase is necessitated for anyreason other than DISTRIBUTOR error, COMPANY shall reimburse to DISTRIBUTOR allreasonable out-of-pocket costs and expenses (not to exceed an amount equal to**[CONFIDENTIAL]**(13) of the Product’s Cost unless DISTRIBUTOR receives COMPANY’Sprior written consent) incurred by DISTRIBUTOR in selling, returning orotherwise 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 COMPANY to monitor the supply and usage of theProprietary Products, DISTRIBUTOR shall provide to COMPANY a monthly obsoleteand slow-moving inventory report.

**3.03****        Aged InventoryNotification-**DISTRIBUTOR will immediately notify COMPANY in writing inthe event that any quantities of its Proprietary Products are within **[CONFIDENTIAL]**(14) days of expiration of product life. If DISTRIBUTOR fails todo so, COMPANY shall not be required to comply with the requirements set forthin 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 Alsip, Illinois in quantities not to exceed a **[CONFIDENTIAL]**(15) days’ supply of such Products, in the aggregate, providedthat DISTRIBUTOR and COMPANY have been given an opportunity by the presentdistributor to inspect any such Product prior to purchase pursuant to thisSection 3.04. DISTRIBUTOR will pay, via check, the present distributor for

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

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

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

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

(15)    Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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Products purchased from it, within ten (10) days ofthe later of DISTRIBUTOR’S receipt of the Products or the receipt of theinvoice approved by COMPANY for the Products. DISTRIBUTOR shall be responsiblefor all freight and unloading costs associated with transporting such inventoryfrom the existing DISTRIBUTOR’s locations listed above. DISTRIBUTOR will not beresponsible for any handling or other fees charged by the current distributorin connection with DISTRIBUTOR’s loading and transferring of such inventory.COMPANY and the current distributor will be required to provide all reasonableassistance and cooperation to DISTRIBUTOR in connection with the purchase,loading and transportation of such inventory from the current distributor tothe DISTRIBUTOR distribution center, including the scheduling of mutuallyagreeable inventory inspection and pick-up times.

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

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

**4.01****        Sell Price -**Beginningon the Effective Date and throughout the entire term of this Agreement, themaximum purchase price at which DISTRIBUTOR shall sell the Products, (the “SellPrice”), to the Operators shall be determined by adding the “Cost” (as hereinafterdefined) of the Product plus **[CONFIDENTIAL]**(18) per case for all deliveries(collectively, “Markup”), subject to the other provisions of this Agreement. Forpurposes of this Agreement, the “Cost” of a Product other than a ContractedProduct shall be the sum of (a) the cost of the Product as shown on theinvoices to DISTRIBUTOR from the respective supplier, including COMPANY, plus(b) if the invoiced cost of the Product is not a delivered price, theapplicable freight charges related to shipping the Product from the supplier toDISTRIBUTOR’S distribution center and, if applicable, the inter-branch freightcost detailed in Section 3.02, plus (c) the Sourcing Fees (as later defined inSection 4.06), if any, attributable to the Product, less (d) promotional allowancesreflected on supplier invoices to DISTRIBUTOR. Applicable freight, in thosecases where the

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

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

(18)    Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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invoice cost to DISTRIBUTOR for non-proprietaryProducts is not a delivered cost, means that DISTRIBUTOR has added a reasonablefreight charge, agreed to in advance and in writing by COMPANY for deliveringsuch non-proprietary Products from suppliers to DISTRIBUTOR. Applicable freightfor any non-proprietary Product will not exceed the rate charged by nationallyrecognized carriers operating in the same market for the same type of freightservice. Cost for any non-proprietary Product will not be reduced by discountsfor cash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increase Cost.The Cost of a Contracted Product shall be determined in accordance with Section3.01. In no event will the Cost of Contracted Products include amounts to berebated to DISTRIBUTOR and therefore, DISTRIBUTOR will not negotiateoff-invoice manufacturer rebates, labels/promotional allowances or any other “softmoney” received from supplier or freight carriers of Contracted Products. Inorder to allow verification of the foregoing commitment, DISTRIBUTOR agrees toprovide documentation substantiating the Cost of items DISTRIBUTOR purchasesfrom suppliers and freight carriers. DISTRIBUTOR agrees to limit its collectionof such “soft money” to the manufacturers of non-proprietary Products. The Costof Contracted Products will not be reduced by discounts for cash or promptpayment available to DISTRIBUTOR, breakage allowances or by backhaul revenue.Fuel or other transportation surcharges indicated on the manufacturer’s orsupplier’s invoice or on freight invoices will increase Cost.

The invoice format to beused by DISTRIBUTOR will be approved by COMPANY and will contain separate linesshowing subtotals for various Product categories, applicable taxes, the date ofthe ACH debit and other summary line items as detailed elsewhere in thisAgreement.

Partial case shipments(also known as “splits”) shall be permitted for the malt, maraschino cherries,chocolate sprinkles, assorted sprinkles in which individual units of suchProducts are separately packaged within each case. Notwithstanding anythingelse contained in this agreement to the contrary, the Markup for the followingitems will be limited to **[CONFIDENTIAL]**(19): maraschino cherries, mediumspoons, straws, chocolate sprinkles and assorted sprinkles. The Markup fortaster spoons and water will be limited to **[CONFIDENTIAL]**(20)

Notwithstanding anythingelse contained herein to the contrary and for the entire term of thisAgreement, COMPANY and DISTRIBUTOR agree that the Markup will be reduced byseven

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

(20)    Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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($.07) cents per case forall Products except for those listed in the preceding paragraph, in the eventthat DISTRIBUTOR ceases providing distribution services to the Stores locatedin Huron and Pierre, South Dakota or in the event that DISTRIBUTOR deliversProducts for these two Stores to a third party distributor located in theTerritory. In the event that DISTRIBUTOR does deliver these Products to a thirdparty distributor, then the Markup will be the same as for all other Storeswith the exception that the delivery surcharges called for in Section 5 of thisAgreement will not apply.

**4.02****                “Cost” for Contracted Products/True-UpMethodology**- In the case of Contracted products, COMPANY agreesto notify DISTRIBUTOR as soon as practical after a change in Cost has beenagreed to with a supplier. COMPANY shall have the right to adjust the Markupfor individual Products (not including the fuel surcharge or the lower Markupon the items listed in Section 4.01 above) from time to time to an amount thatis more or less than the agreed upon Markup per case. If COMPANY exercises itsright to lower DISTRIBUTOR’s Markup on any Products, it will simultaneously andcorrespondingly increase the Markup on other Products so as to provideDISTRIBUTOR continuously with an average overall Markup of **[CONFIDENTIAL]**(21) per case, as adjusted from time to time pursuant to thisAgreement.

Following each calendarquarter, DISTRIBUTOR shall provide a cumulative report that reflects: (i) thetotal number of cases of Products delivered to the Stores under this Agreementduring the preceding quarter (“x”); (ii) the total of the Sell Prices chargedfor all Products delivered to the Stores under this Agreement during thepreceding quarter (“y”), (iii) the total of the Cost of each Product deliveredto the Stores during such quarter (“z”), and (iv) the “Average Putative Markup”for Products delivered to the Stores, which shall be calculated as follows:[(y-z)/x]. If the Average Putative Markup is less than the Markup requiredpursuant to Section 4.01 (and as modified pursuant to the other provisions ofthis Agreement), with such deficiency being referred to herein as the “MarkupDeficiency”, COMPANY shall remit to DISTRIBUTOR, an amount equal to the numberof cases delivered to the Stores under this Agreement during the precedingquarter (“x”), multiplied by the Markup Deficiency. If the Average PutativeMarkup exceeds the Markup required pursuant to Section 4.01 (and as modifiedpursuant to the other provisions of this Agreement), with such excess beingreferred to as the “Markup Excess”, DISTRIBUTOR shall remit to COMPANY anamount equal to the number of cases delivered to the Stores under thisAgreement during that quarter (“x”), multiplied by the Markup Excess. Paymentsowed by either party under this Section 4.02 shall be made by such party to theother party, via check, within ten (10) days of the determination of theamounts owed and, in any case, within thirty (30) days following the end of theapplicable calendar quarter for which such

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(21)    Confidential treatment hasbeen requested for the redacted portion. The confidential, redacted portionshave been filed separately with the SEC.

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payments are owed or by making adjustments to the Sell Price asmutually agreed upon between COMPANY and DISTRIBUTOR.

**4.03****        Fuel Cost Adjustments**- If the operating costs of DISTRIBUTOR are increased or decreased as a resultof fuel cost increases or decreases, DISTRIBUTOR may adjust the Markup (as andif otherwise adjusted pursuant to the terms of this Agreement) to compensatefor such fluctuations in fuel costs, on a monthly basis. The amount of theadjustment computed in accordance with this Section 4.02 shall also be added toor subtracted from, as applicable, the specified price for Contracted OperatorSell Price Products described in Section 4.11. The method for determining the fuel surcharge or adjustment will be mademonthly beginning March 1, 2007 and will be based on the Midwest Weekly RetailOn-Highway diesel fuel price which is compiled by the Energy InformationAdministration. The Web site to access this information electronically is asfollows:

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

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

As fuel prices increase or decrease, the fuel cost adjustments willmove according to changes in the prior four (4) week average for the Midwestfuel price bracket, and will take effect on the first day of the calendar monthfollowing the applicable publication date. For example, the fuel cost adjustment beginning the first day in March,if any, will be determined based on the four (4) week average endingimmediately prior to or on February 28th.
| Price Per Gallon Including  Taxes | ** ** | **Per Case Surcharge/Credit** |
|-----------------------------------|------------|-------------------------------|
| ** **                        |       |                          |
| **[CONFIDENTIAL]**(22)            |       |                          |

 

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL]**(23), the surcharge will equal

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

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**[CONFIDENTIAL]**(24) per case plus an additional **[CONFIDENTIAL]**(25) per case for each **[CONFIDENTIAL]**(26) increment (or portionthereof) that the price per gallon exceeds **[CONFIDENTIAL]**(27).If the price per gallon, including taxes, falls below **[CONFIDENTIAL]**(28), a credit will be issuedin the amount of **[CONFIDENTIAL]**(29) percase plus an additional **[CONFIDENTIAL]**(30)per case for each ten cent increment (or portion thereof) that the priceis less than **[CONFIDENTIAL]**(31). Any such surcharge or creditwill be shown as a separate line item on the Operator’s invoice.

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

The **[CONFIDENTIAL]**(32) Markup during the first **[CONFIDENTIAL]**(33) months after the Effective Dateis premised upon an average annual delivery size of **[CONFIDENTIAL]**(34)cases to the Stores serviced by DISTRIBUTOR.

After the first **[CONFIDENTIAL]**(35) months of service and after each **[CONFIDENTIAL]**(36)month period thereafter, the Markup for the Stores for the next **[CONFIDENTIAL]**(37) months will be based on the actual average delivery size forthe previous **[CONFIDENTIAL]**(38) months as calculated below andaccording to the following schedule:

**[CONFIDENTIAL]**(39)

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]**(40) months (with each partial case or “split” counting as a fullcase) and dividing the total number of

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

(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 been filed separately with theSEC.

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

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

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

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

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

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

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

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

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

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

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

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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]**(41) special delivery fee inaccordance with Section 2.05.

In the event theaverage delivery size for the previous **[CONFIDENTIAL]**(42) months falls outside of theranges described above, COMPANY and DISTRIBUTOR will negotiate a new Markupadjustment in good faith.  In the eventCOMPANY and DISTRIBUTOR fail to agree on such a Markup adjustment within **[CONFIDENTIAL]**(43) days after the commencement of negotiations under thisSection 4.04, then both COMPANY and DISTRIBUTOR will have the right toterminate this Agreement with one hundred-eighty (180) days written notice tothe other party in accordance with Section 6.02 (b)(ii).

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

(a)   Standard Payment Terms.  Except as noted below, DISTRIBUTOR andCOMPANY have agreed that payments to DISTRIBUTOR for Products delivered to theOperators (including Contract Feeders as defined below) shall be received byACH debit entry initiated by DISTRIBUTOR, so that the amount is credited toDISTRIBUTOR’s account on Friday of each week for deliveries made during thepreceding **[CONFIDENTIAL]**(44) days. Thus, stores which receivedeliveries on Saturday or Sunday, would have their account debited **[CONFIDENTIAL]**(45) and **[CONFIDENTIAL]**(46) days, respectively, after receiptof their order.  DISTRIBUTOR may alsoaccept payment by check if so requested by Operator and approved byDISTRIBUTOR.  All new Operators willinitially receive credit terms as outlined above, provided that they satisfyDISTRIBUTOR’S credit criteria for such terms, as such criteria is uniformlyapplied among all similarly situated Operators, in light of all relevant factsand circumstances.  Payment terms will beextended only to those Operators that are creditworthy as shall have beensolely determined by DISTRIBUTOR. DISTRIBUTOR may, in its sole discretion,provide alternate payment terms to those Operators not meeting DISTRIBUTOR’sstandards for creditworthiness. DISTRIBUTOR will provide email or fax notice to each Operator at

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

(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.

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least **[CONFIDENTIAL]**(47) days prior to the ACH debit entryactually taking place, advising Operator of the amount of the ACH debit, alongwith the invoice number and any credits posted during the prior **[CONFIDENTIAL]**(48) days.

Notwithstanding the foregoing, DISTRIBUTOR agrees to provide extendedcredit terms to Operators performing as Contract Feeders (as defined below) innon-traditional locations provided that they satisfy DISTRIBUTOR’s creditcriteria for such terms, as such criteria is uniformly applied among all similarlysituated Operators in light of all relevant facts and circumstances. To qualifyfor such credit terms, each location operated by a Contract Feeder in theTerritory must be approved by COMPANY in writing and the Contract Feeder mustcomply with these extended credit terms. “Contract Feeders” are Operators who operate non-traditional foodservice locations in facilities such as airports, sports facilities, travelplazas, universities, tech centers, etc.

(b)           NoSet-Off/Late Fees/Collection Costs. No deductions or set offs from payments due to DISTRIBUTOR may be madeby Operators for any reason without the prior written authorization ofDISTRIBUTOR.  Failure of the Operator tomake any payment required when due shall result in DISTRIBUTOR having the rightto impose more stringent credit or payment terms, such as, without limitation,cash in advance, cash on delivery, delivery of acceptable letters of credit orthird party guaranties, or additional collateral, or, after three (3) businessdays’ prior notice to COMPANY and the affected Operator, to suspend alldeliveries, and declare the entire unpaid balance of the Operator’s accountimmediately due and payable. The COMPANY shall pay, and shall use itscommercially reasonable efforts to cause each Operator to pay, all reasonablecosts of collection, including reasonable attorneys fees incurred or paid byDISTRIBUTOR, but only to the extent related to their respective accounts.DISTRIBUTOR will have the right to charge interest at the maximum rate permittedby law but not exceeding **[CONFIDENTIAL]**(49) percent per annum on all unpaidamounts due or owing by Operators and/or COMPANY to DISTRIBUTOR.

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

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(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.

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(d)           Paymentsto COMPANY.   COMPANY will invoiceDISTRIBUTOR directly for **[CONFIDENTIAL]**(50) for its frozen yogurt Products asshipped from the manufacturer and will designate the **[CONFIDENTIAL]**(51)as separate line items for each Product. **[CONFIDENTIAL]**(52) COMPANY reserves the right toalter **[CONFIDENTIAL]**(53) on its frozen yogurt Products inits discretion but no more frequently than quarterly.    DISTRIBUTOR agrees to pay COMPANY for theseinvoices within **[CONFIDENTIAL]**(54) days of receipt.

COMPANY will also invoice DISTRIBUTOR for **[CONFIDENTIAL]**(55)on its frozen cake and pie Products for each Product as shown on **[CONFIDENTIAL]**(56).  Company reserves theright to alter **[CONFIDENTIAL]**(57) on its frozen cake and pieProducts in its discretion but no more frequently than quarterly.  Distributor shall pay all invoices for **[CONFIDENTIAL]**(58) on its frozen cake and pie Products when invoiced by theCOMPANY within **[CONFIDENTIAL]**(59) days of invoice date, which datewill be no earlier than the date of receipt of the applicable Products by theDISTRIBUTOR.

In the event COMPANY decides to establish a new procedure for new andor established Stores to bill and collect **[CONFIDENTIAL]**(60), such that the **[CONFIDENTIAL]**(61) is billed and collected from the Stores by DISTRIBUTOR,DISTRIBUTOR agrees to remit such fees each Friday via ACH credit for all salesmade the previous week.

**4.06        Sourcing Fees.**  COMPANY may, from time to time, collectcompensation from the Operators for services that it provides to suchOperators, either by increasing the Cost of a product supplied by COMPANY, toDISTRIBUTOR for distribution under this Agreement, or through the assessment ofan additional fee (a “Sourcing Fee”) that COMPANY instructs DISTRIBUTOR to addin the calculation of the Sell Price of Products not purchased fromCOMPANY.  Any changes in the SourcingFees shall occur no more frequently than monthly.  COMPANY specifically represents and warrantsthat such Sourcing Fees (or increases in the invoiced Cost) have been and willcontinue to

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(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.

(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.

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be disclosed to all Operators, and that the chargingand collection of such Sourcing Fees (or increased Cost) I permitted under its orits affiliates’ agreements with the Operators and does not violate anyapplicable laws.  COMPANY shallindemnify, defend and hold harmless DISTRIBUTOR, its affiliates and each oftheir respective officers, agents, directors, shareholders or employees for anyclaims, loss, liability or expense (including reasonable attorney’s fees anddisbursements) arising from a breach of this representation and warranty.

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

**4.07****        Financial Information. **DISTRIBUTOR may request balance sheets,income statements and such further financial information from each Operatorfrom time to time as will enable DISTRIBUTOR to accurately assess the Operators’financial condition.   The COMPANY mayrequire DISTRIBUTOR to supply annual audited balance sheets and incomestatements and such further financial information from time to time as willenable COMPANY to accurately assess DISTRIBUTOR’S financial condition.

**4.08****        PriceVerifications-Audit-**COMPANY will be allowed to perform electronicPurchase Price verifications for purchases made under this Agreement on a weeklybasis 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]**(62) in the aggregate during theaudited period (not to exceed a twelve (12) month period) COMPANY shall havethe right to conduct additional audits, at its option and at DISTRIBUTOR’Sreasonable expense, until the aggregate net pricing errors disclosed by an suchadditional audits are less than **[CONFIDENTIAL]**(63) for the applicable auditperiod.  For any audit conducted pursuantto this Section 4.08 that discloses that Operators were either overcharged orundercharged for Products, or that COMPANY was overpaid or overcharged duringthe audited period, DISTRIBUTOR and COMPANY agree to correct the overcharge,undercharge, overpayment or underpayment, as the case may be.  The form and method for making theseadjustments will be mutually agreed upon by DISTRIBUTOR and COMPANY;

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

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

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provided, however, in any event the remittance of any such adjustmentsshall be made by either party within **[CONFIDENTIAL]**(64) days from the final determinationof the undercharge or overcharge, as applicable.

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

(a)           DISTRIBUTOR willsupport the System by participating in the supplier show at its ownexpense.  In addition, DISTRIBUTOR willpay COMPANY an annual support payment equal to **[CONFIDENTIAL]**(65)payable within **[CONFIDENTIAL]**(66) days of written request byCOMPANY.  COMPANY may submit suchrequests **[CONFIDENTIAL]**(67) during each calendar year and atotal of **[CONFIDENTIAL]**(68) such requests during the term ofthis Agreement.

(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.
|                           | ** ** | ** **   | ** ** | **TEMPERATURE**          | ** ** | **UPPER TEMP.**    | ** ** |
|---------------------------|------------|--------------|------------|--------------------------|------------|-------------------------|------------|
| ** **                | ** ** | ** **   | ** ** | **REQUIREMENTS IN** | ** ** | **RANGE WHILE**    | ** ** |
| ** **                | ** ** | ** **   | ** ** | **DISTRIBUTION**         | ** ** | **TRANSPORTED TO** | ** ** |
| **ITEM**                  | ** ** | **FORM**     | ** ** | **CENTER**               | ** ** | **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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(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 beenfiled separately with the SEC.

(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.

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

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(d)   DISTRIBUTORwill provide COMPANY with periodic EDI file transfers to include the following:
|        | Weekly invoice register by store outlining the  SKU’s and quantity purchased                       |
|--------|---------------------------------------------------------------------------------------------------------|
|   |                                                                                                    |
|   | Weekly inventory levels, age of inventory, sales and  pending 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-time  performance, fill rates and clean invoice percentages |
|   |                                                                                                    |
|   | Daily out-of-stock report and stores so affected                                                        |
|   |                                                                                                    |
|   | Monthly costing detail on all Products used by the  SYSTEM                                              |
|   |                                                                                                    |
|   | Such additional reports as may be reasonable  requested by the COMPANY                                  |

 

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

**4.11****      Special Pricing Arrangements -**Products that are governed by national billing agency orother programs for which the price at which the DISTRIBUTOR must sell theProduct to the Operator is prescribed by agreements between COMPANY, or anyother franchisor or group purchasing organization, on the one hand, and thesupplier or manufacturer of such Products, on the other, are referred to inthis Agreement as “Contracted Operator Sell Price Products”.  Notwithstanding Section 4.01, the Sell Pricefor Contracted Operator Sell Price Products shall be the amount prescribed (orcalculated in accordance with) the above-described programs or agreements.  Contracted Operator Sell Price Productsinclude, but are not limited to, soft drink syrup products including, withoutlimitation, the following Coca Cola Products: Coke Bag in Box (“BiB”), Diet Coke BiB, Sprite BiB and Barq’s Root BeerBIB.

**4.12****        Additional Markup forStores Not Ordering Electronically-**Commencing the first day of themonth at least sixty (60) days after the Effective Date, Operators who desireto continue to place orders by fax or telephone will be charged an additionalfee of **[CONFIDENTIAL]**(69) for each case delivered on thatfax or

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

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phone order in addition to any other charges applicable under thisAgreement.  This additional fee will beincluded in as a separate line item on the invoice.  This additional Markup will not be assessedto Operators in the event that DISTRIBUTOR’S website is not operational or inthe infrequent circumstance where an Operator, who has been in the habit ofordering electronically, may be unable to place an order in this fashion due totechnical difficulties.

**5.****     Minimum Deliveries -**TheOperators will be required to order Products in minimum quantities of **[CONFIDENTIAL]**(70) cases of Products per delivery unless due to DISTRIBUTOR orsupplier error.  In addition, Operatorwill be required to pay DISTRIBUTOR a **[CONFIDENTIAL]**(71) handling fee per order for ordersof less than **[CONFIDENTIAL]**(72) cases but greater than **[CONFIDENTIAL]**(73) cases and a **[CONFIDENTIAL]**(74) handling fee per order for ordersof less than **[CONFIDENTIAL]**(75) cases but greater than or equalto **[CONFIDENTIAL]**(76) cases unless due to DISTRIBUTORor supplier, including failure to fulfill the order in its entirety.

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

**6.01****        Term -**Theinitial term of this Agreement shall commence on the Effective Date and shallcontinue until exactly three (3) years after the commencement of full serviceto all Stores to be serviced in the Territory (“Initial Term”), unless soonerterminated as provided below or in Section 6.02.  This Agreement shall automatically renew forone (1) additional year upon the completion of the Initial Term unless oneparty notifies the other in writing at least one hundred eighty (180) daysbefore the expiration of the Initial Term of its desire to terminate therelationship.

Both COMPANY and DISTRIBUTOR shall have the right,commencing sixty (60) days prior to the first and second anniversary dates ofthe Effective Date of this Agreement, and expiring thirty (30) days prior tothese same first and second anniversary dates of the Effective Date (“Opt OutPeriod”), to terminate this Agreement for any reason, provided that the partyterminating the Agreement notifies the other party in writing within the OptOut Period.  Such termination shall thenbe effective ninety (90) days after the next anniversary date of the EffectiveDate of this Agreement.

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(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.

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**6.02**        **Termination**

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

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

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

or

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

**6.03****        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 in connectionwith the Proprietary Products.  COMPANYwill purchase or cause to be purchased perishable Proprietary Products within 

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**[CONFIDENTIAL]**(77) days after the effective date oftermination of this Agreement or by the expiration date of such Proprietary Product,whichever is earlier, and all nonperishable Proprietary Products within **[CONFIDENTIAL]**(78) days after the effective date of termination of thisAgreement. In addition, if this agreement is terminated due to COMPANY’s breachor default, COMPANY shall reimburse to DISTRIBUTOR all other reasonableout-of-pocket costs and expenses (not to exceed an amount equal to **[CONFIDENTIAL]**(79) of the Markup on each Product unless DISTRIBUTOR receivesCOMPANY’s prior written consent) incurred by DISTRIBUTOR in selling, returningor otherwise disposing of such Proprietary Products. DISTRIBUTOR shall provideCOMPANY with documentation or other proof that any such costs and expenses wereincurred by DISTRIBUTOR. Termination of this Agreement shall not relieve eitherparty of any obligation or liability which accrues prior to the effective dateof termination (including, but not limited to, obligations related to thepayment of COMPANY’s accounts receivable or accounts payable and the purchaseof excess inventories). Notwithstanding the foregoing provisions of thisSection 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 found

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

(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.

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against any of them resulting from or arising out of any claim or suitalleging infringement by COMPANY or its affiliates, through any of theTrademarks or otherwise.

**8.****             Indemnification**

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

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

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

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

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

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

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

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

**8.03****        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, TO THE OTHER PARTY OR ITS RESPECTIVE SUBSIDIARIES,AFFILIATES, FRANCHISEES OR OTHER OPERATORS FOR ANY TYPE OF INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITSOR BUSINESS OPPORTUNITY) ARISING FROM A PARTY’S PERFORMANCE OR FAILURE TOPERFORM UNDER ANY OF THE TERMS AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE,INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANYTERM 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 OFDISTRIBUTOR’S ACTUAL NEGLIGENCE IN ITS HANDLING OF SUCH PRODUCTS.  **EXCEPT AS EXPLICITLYPROVIDED IN THIS AGREEMENT,****DISTRIBUTOR MAKES NOWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OFMERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.**

**8.04****        Third Party Claims-**The indemnities in this Section 8 are contingent upon: (i) the indemnifiedparty promptly notifying the indemnifying party in writing of any action orother proceeding which may give rise to a claim for indemnification hereunder;unless such failure to promptly notify does not materially prejudice the claim;(ii) the indemnifying party being allowed to control the defense and settlementof such claim; and (iii) the indemnified party reasonably cooperating with theindemnifying party (at the indemnifying party’s expense) in providinginformation relevant to the defense or settlement of a claim. The indemnifiedparty shall have the right, at its option and expense, to participate in thedefense of any action or proceeding through counsel of its own choosing.

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**9.**             **Insurance**

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

(a)           commercialgeneral liability insurance and products liability coverage with broad form vendorendorsement, which specifically insures all liabilities of DISTRIBUTOR toCOMPANY and Operator under this Agreement, to the extent afforded by normal ISOpolicy forms and definitions, with all such insurance coverage providing forcombined single limit bodily injury/property damage liability of not less than **[CONFIDENTIAL]**(80); and

(b)           commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL]**(81).

All such insurance shall be provided by insurancecompanies which are licensed and authorized to do business in the United Statesof America, shall be occurrence based policies and which insurance companiesare reasonably satisfactory to COMPANY. DISTRIBUTOR agrees to deliver to COMPANY, on or prior to the EffectiveDate, certificates of insurance evidencing the existence of all the aboveinsurance coverage and naming COMPANY as an additional insured under suchpolicies.  The certificates shall containan agreement by the insurance carrier to notify COMPANY, in writing, at leastthirty (30) days prior to the date of any cancellation or change in suchinsurance coverage.

**9.02****        COMPANY’s Insurance-**During the term of this Agreement, and for a period of one (1) yearthereafter, COMPANY shall purchase and maintain, at its sole cost and expense,commercial general liability insurance and products liability coverage, and acontractual liability endorsement which specifically insures all liabilities ofCOMPANY to DISTRIBUTOR under this Agreement, to the extent afforded by normalISO policy forms and definitions, with all such insurance coverage providingfor combined single limit bodily injury/property damage liability of not lessthan **[CONFIDENTIAL]**(82). All such insurance shall beprovided by insurance companies which are licensed and authorized to dobusiness in the United States of America, and which are 

----

(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.

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

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reasonably satisfactory to DISTRIBUTOR. COMPANY agrees to deliver toDISTRIBUTOR, on or prior to the Effective Date, a certificate of insuranceevidencing the existence of all the above insurance coverage and namingDISTRIBUTOR as an additional insured under such policies. The certificate shallcontain an agreement by the insurance carrier to notify DISTRIBUTOR, inwriting, at least thirty (30) days prior to the date of any change in suchinsurance coverage.

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

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

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

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

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

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

**10.02****     ****Representationsand Warranties of COMPANY** - COMPANY hereby represents and warrantsto DISTRIBUTOR as follows:

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

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

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

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

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

**11.****                               Notices-**Any notice or other communication to be given under this Agreement by oneparty to the other shall be in writing and delivered by overnight messengerservice, or delivered by telecopy or facsimile transmission, or sent by UnitedStates registered or certified mail, postage prepaid, addressed as follows:
| If to DISTRIBUTOR: |   | Lincoln Poultry and Egg Company |
|--------------------|--------|---------------------------------|
|               |   | 2005 M Street                   |
|               |   | Lincoln, Nebraska 68510         |
|               |   | Attention:                      | Kim Brown, President |
|               |   |                            | Neal Lyons, CFO |

 

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|                |   | FAX: (402) 477-1800                   |
|----------------|--------|---------------------------------------|
|           |   |                                  |
|           |   |                                  |
| If to COMPANY: |   | TCBY Systems, LLC                     |
|           |   | 2855 E. Cottonwood Parkway, Suite 400 |
|           |   | Salt Lake City, UT 84121-7050         |
|           |   | Attention: Purchasing Director        |
|           |   | FAX: (801) 736-5941                   |

 

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

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

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

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

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

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

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

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

**19.****                               Confidentiality-**Any proprietary information supplied by either party to the other party(whether set forth in writing, on any data base or in any other medium),including, but not limited to information on customer and supplier identity orany other customer or supplier information, purchasing volumes and history,pricing, purchasing specifications, and product market results (the “ConfidentialInformation”), is and shall remain confidential and proprietary information ofthe disclosing party, and valuable trade secrets owned solely by the disclosingparty. The recipient party of any Confidential Information shall not discloseany such Confidential Information to any third person or entity without theprior written consent of the disclosing party in every instance, and shall notuse any such Confidential Information, nor permit

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any such Confidential Information to be used, for any reason other thanto fulfill the terms of this Agreement; provided, however, that either partyand its respective successors and assigns may (i) disclose any ConfidentialInformation to the extent compelled by law, regulation, rule, subpoena, orother process of law and (ii) provide invoices, and any information relating tohistorical payments or payments due or to become due from franchisees orOperators hereunder to its auditors and legal counsel, and to present andpotential financing sources and rating agencies and their respective auditors and legal counsel). The parties’obligations under this Section 19 shall not apply to any of the ConfidentialInformation delivered or made available to them by the other party which therecipient of the Confidential Information can reasonably establish (a) wasknown to the recipient party at the time the Confidential Information wasdisclosed or made available to the recipient party; (b) was known to the publicat the time the Confidential Information was disclosed or made available to therecipient party; (c) becomes known to the public after the date theConfidential Information was disclosed or made available to the recipient partythrough no fault or breach of this Section 19 by the recipient party; (d) isgiven to or made available to the recipient party by a third party who has alawful right to disclose the Confidential Information to the recipient party;or, (e) is independently developed by the Recipient party without reference tothe Confidential Information.

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

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

**22.****                            Miscellaneous-**The section and paragraph headings contained in this Agreement are forreference only and shall not be considered as substantial parts of thisAgreement. The use of the singular or plural from in

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this Agreement shall include the other form and the use of themasculine, feminine or neuter gender shall include the other gender.

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

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

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**IN WITNESS WHEREOF,**eachof the parties hereto has caused this Agreement to be executed and delivered byits duly authorized officers on the day and year first above written.
|        | TCBY SYSTEMS, LLC                                  |             |
|--------|----------------------------------------------------|------------------|
|   |                                               |             |
|   |                                               |             |
|   | By:                                                | /s/ Michael Ward |   |   |
|   |                                               |             |
|   | Its: Executive Vice President, Chief Legal Officer |             |
|   |                                               |             |
|   |                                               |             |
|   | LINCOLN POULTRY AND EGG COMPANY                    |             |
|   |                                               |             |
|   |                                               |             |
|   | By:                                                | /s/ Neal Lyons   |   |   |
|   |                                               |             |
|   | Its: Chief Financial Officer                       |             |
|        |                                                    |                  |  |  |  |  |

** **

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**SCHEDULE 1**

## **LINCOLN POULTRY DISTRIBUTION AGREEMENT**

# **ProductCategories**

Frozen Yogurts- Soft Serve and Hand Dipped

Hand Dipped Yogurts

Yogurt Cakes and Pies

Confectionary Fruits, Nuts, Toppings and Cones

Miscellaneous Dessert Items

Snacks

Beverages including Fountain Syrup

Packaging & Paper Items

Cleaning Supplies

Miscellaneous Items-as agreed to by and between Company and Distributor

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# **Schedule2**

Distribution Map

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Schedule 3

**[Confidential Treatment has beenrequested for this Schedule.  Theconfidential redacted portions havebeen filed separately with the SEC]**

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**Schedule 4**

**Product Listing**

**[Confidential Treatment has beenrequested for this Schedule.  The confidentialredacted portions havebeen filed separately with the SEC]**

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**Schedule 5**

**Inbound Quantity Matrix**

**[Confidential Treatment has beenrequested for this Schedule.  Theconfidential redacted portionshave been filed separately with the SEC]**

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**Schedule 6**

**[Confidential Treatment has beenrequested for this Schedule.  Theconfidential redacted portionshave been filed separately with the SEC]**

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**Schedule 7**

**[Confidential Treatment has beenrequested for this Schedule.  Theconfidential redacted portionshave been filed separately with the SEC]**

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