**Exhibit10.75**

**CONFIDENTIAL**

**TCBYSYSTEMS, LLC**

**DistributionService Agreement**

**withBanta Foods, Inc.**

**November22, 2006**

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**DISTRIBUTIONAGREEMENT**

**THISAGREEMENT**is****madeand entered into as of the 22nd day of November, 2006, by and between **TCBY SYSTEMS, LLC,** a Delaware limitedliability company (“COMPANY”) and **BANTAFOODS, INC.,**a Missouri Corporation (“DISTRIBUTOR”). DISTRIBUTORwill commence distribution services under this Agreement on January 8, 2007(the “Effective Date”) unless otherwise mutually agreed upon by the parties.

**RECITALS**

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

**B.****           **The DISTRIBUTOR isengaged in the business of purchasing, selling, distributing and deliveringfood service products (including the Products, as defined below).  In connection therewith, the DISTRIBUTORmanages, controls, prepares and furnishes reports to its customers concerningthe inventories of products and supplies the DISTRIBUTOR purchases, manages andcontrols for sale, distribution and delivery to its customers.

**C.**            COMPANY wishes to appoint DISTRIBUTOR as adistributor of certain approved proprietary food and related products to theStores located within the Territory (as defined below), and DISTRIBUTOR wishesto accept such appointment, all on the terms and conditions hereinafter setforth.

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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 Springfield, Missouri (the “Territory”) asreflected in the map depicted in **Schedule 2**and DISTRIBUTOR hereby accepts such appointment.

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

**2.01****        Products -**DISTRIBUTORwill maintain in its inventory of Products the following: (i) Productsdesignated by COMPANY that contain the proprietary trademarks, service marks,logos or labels of COMPANY or any of its affiliates or that are made pursuantto specifications provided by COMPANY, its affiliates, or licensors for limiteddistribution to Operators (defined below) or other entities licensed byCOMPANY, its affiliates or licensors (“TCBY Branded Products”), and (ii) othersupplies or other national or regional branded Products designated orcontracted for by COMPANY to be maintained in inventory by DISTRIBUTOR fordistribution to COMPANY, its affiliates and the Operators.  (Collectively, Products described in clauses(i) and (ii) are referred to as “Proprietary Products”).  DISTRIBUTOR will also maintain in itsinventory non-proprietary Products which DISTRIBUTOR stocks in its inventoryfor sale to COMPANY, its affiliates and its Operators. DISTRIBUTOR shall not berequired to maintain more than two hundred (200) Proprietary Products ininventory at any time.  All Coca ColaProducts carried for COMPANY shall be excluded from the calculation of thenumber of Proprietary Products.

**2.02****        Approved Operators-**DISTRIBUTOR shall sell and deliver to Franchisees and Operators of Storesapproved by COMPANY and located within the Territory such quantities of theProducts (subject to minimum Product order requirements) as the Operators mayorder from time to time during the term of this Agreement. DISTRIBUTOR shallcease selling TCBY Branded Products to any Operator not later than three (3)days following receipt of written notice from COMPANY advising DISTRIBUTOR thatsuch Operator is no longer approved by COMPANY and shall, within suchtimeframe, further cease selling, under the terms of any supplier agreementnegotiated by COMPANY, all Proprietary Products to such Operators referenced insuch notice. In addition, DISTRIBUTOR shall have the right to cease the saleand distribution of Products to

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any Operator (a) who is in default of its obligationsto DISTRIBUTOR, provided that DISTRIBUTOR has given COMPANY at least three (3)business days notice of such default before ceasing deliveries to suchOperator, or (b) who has filed a voluntary petition in bankruptcy or under anyother similar insolvency or debtor relief law or who has had such a petitionfiled against it, or who has made a general assignment for the benefit of itscreditors. COMPANY shall also have the right to reinstate delivery to anyOperator that COMPANY previously stopped selling by providing written notice toDISTRIBUTOR and DISTRIBUTOR shall provide such delivery as soon as mutuallyagreed 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, COMPANYshall maintain and provide to DISTRIBUTOR a current list of all Operators withStores within the Territory who have been approved by COMPANY for distributionof the Products under this Agreement. DISTRIBUTOR shall have the right to relyupon such list, as amended or modified by COMPANY in writing from time to time,in performing its obligations under this Agreement. COMPANY shall notifyDISTRIBUTOR of new Stores within the Territory not less than fourteen (14) daysprior to the desired date of first shipment of Products to any such new Stores.In addition, provided and to the extent that COMPANY and DISTRIBUTOR mutuallyagree in writing, DISTRIBUTOR shall provide distribution services to Storeslocated outside the Territory, as designated by COMPANY.

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

**2.03**        **ProductOrders -**All Product orders shall be submitted by the Operatorsto DISTRIBUTOR and shall specify the location of the Operator’s Stores, thetype of Product, and the quantity desired. Operators may place orders electronically (“Electronic Orders”) or bytelephoning or faxing DISTRIBUTOR’s customer service center in accordance withthe guidelines detailed below. Orders placed by fax or telephone will besubject to a higher Markup as detailed in Section 4.12.  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 

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made prior to the beginning of the month, but onlyafter review and approval of the order guide by COMPANY. The order guides willbe organized by Product categories and will include, among other things, theProduct Sell Price (as defined herein), Product units and new Products.DISTRIBUTOR will assign one product code number to each stock-keeping unit (“SKU”)of each Product, which will be common throughout its entire distribution systemand will be used on all documents such as order guides, invoices, monthlyreports, etc. SKU’s, and, accordingly, the assigned product code number, mustdiffer for equivalent Products supplied by different suppliers. DISTRIBUTORwill utilize the existing TCBY product item numbers.  Only Products approved for sale to itsOperators by the COMPANY will be listed on this order guide. Electronic Orderswill be placed via internet using DISTRIBUTOR’s web-site.  All Electronic Orders, including orderadd-ons and modifications, are subject to the standard order cut-off time of11:00 a.m. local time, two (2) days prior to their scheduled delivery day.  Orders not placed electronically may besubject to earlier cut-off times than those established above as mutuallyagreed upon between COMPANY and DISTRIBUTOR. Operators will be notified prior to the time of final order cut-off if aproduct is expected to be out of stock so that an alternative may be ordered,subject to the provisions of Section 3.02. Notwithstanding the foregoing, Stores that have a scheduled delivery dayof Monday, must have their orders placed by 11:00 a.m. local time on thepreceding Friday and Stores that have a scheduled delivery day of Tuesday musthave their orders placed by 11:00 a.m. on the preceding Sunday.

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

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

DISTRIBUTOR agrees that, excluding key drops (deliveries scheduled tobe made during the period running from one (1) hour or more after the retailclosing time of the Store to deliveries 

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one (1) hour or more before the retail opening time of the Store), anoverall average of 90% of all regularly scheduled deliveries will be madewithin a two (2) hour window, meaning no earlier than one (1) hour before andno later than one (1) hour after the scheduled delivery time. If a delivery isanticipated to fall outside of this two (2) hour window, DISTRIBUTOR willimmediately notify the Operator. DISTRIBUTOR will provide an inside delivery toeach Operator in accordance with Company’s temperature store requirements asdetailed in Section 4.09, placing refrigerated and frozen Products into theirappropriate storage areas, but will not be responsible for stocking shelves orrotating inventories.

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

The COMPANY agrees to use its commercially reasonableefforts to cause Operators to provide keys and security codes for nightdeliveries where necessary.  In the eventOperator refuses to provide keys and security codes, Operator will promptlymeet the delivery driver at the scheduled appointment time or at such othertime as Operator has been notified in the event of a late delivery.  If the Operator fails to meet the DISTRIBUTORdelivery at the appropriate time on more than one occasion, the Operator shallbe responsible for payment of a penalty fee of **[CONFIDENTIAL]**(1)to DISTRIBUTOR for subsequent occurrences. In the event of a Product shortage or delivery problem that occursduring an unattended delivery, the authorized representative of the Stores willcontact the distribution center no later than the first Notification Deadlinefollowing such unattended delivery.  The “NotificationDeadline” is 4:00 p.m. local time each day for the affected Stores.

**2.05****        Delivery Frequency/Routing -**DISTRIBUTOR will provide each Operator with a minimumdelivery frequency based on annual case volume as shown below as long as theOperator meets the minimum order requirements set forth in Section 5 hereof:
|                           | ** ** | **Delivery Frequency**                 |
|---------------------------|------------|----------------------------------------|
| **Annual Case  Volume**   | ** ** | **Summer Routing**                     | ** ** | **Winter Routing** |
| ** **                | ** ** | ** **                             | ** ** | ** ** |
| Less than 200  cases      |       | 4 deliveries  during a 12 month period |
| 200-349 cases             |       | 6 deliveries  during a 12 month period |
| 350-499 cases             |       | 8 deliveries  during a 12 month period |
| 500-999 cases             |       | Every 4 weeks                          |   | Every 4 weeks |
| 1,000-1,999  cases        |       | Every 3 weeks                          |   | Every 4 weeks |
| 2,000-3,499  cases        |       | Every week                             |   | Every 2 weeks |
| Greater than  3,499 cases |       | Every week                             |   | Every week |

 

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

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

In the event an emergency delivery is required based upon the Operator’sneeds and not due to a delivery error by DISTRIBUTOR nor during the timeperiods specified in Section 2.06, DISTRIBUTOR will accommodate the Operator’srequest with the most efficient available delivery method. All additionalfreight expense will be at the Operator’s expense and will be billed uponDISTRIBUTOR’s receipt of the invoice from the shipping agent. If DISTRIBUTOR isable to schedule such an emergency delivery in conjunction with a nearby route,the additional freight expense will be **[CONFIDENTIAL]**(2). Where possible, a store may order up to **[CONFIDENTIAL]**(3)cases to be delivered to a nearby store, on that store’s delivery day (and withthat store’s consent) without an additional charge.  Products delivered to a nearby store will bebilled on a separate invoice.

Should the need arise for an emergency or special delivery due tosupplier error, DISTRIBUTOR and COMPANY will work with the supplier to remedythe shortage at the supplier’s expense. If supplier fails to pay the additionalfreight expense, COMPANY will be required to do so provided DISTRIBUTORnotifies COMPANY immediately of supplier non-performance.  If an emergency delivery is necessary due toDISTRIBUTOR error, DISTRIBUTOR will arrange a special delivery with anyadditional freight to be paid by DISTRIBUTOR.

**2.06****        Special Deliveries During Roll-Out -**DISTRIBUTOR and COMPANY recognize that during the initialroll-out phase of the DISTRIBUTOR distribution program, many new processes willbe in place for each of COMPANY, the Operators and DISTRIBUTOR, includingchanges in the way the Operators order, the distance from the DISTRIBUTORdistribution center to the Operators, and lead times from order day to deliveryday for the Operators. Therefore, DISTRIBUTOR will process up to one (1)emergency order for each Operator for the first thirty (30) days following thecommencement of distribution service at no additional charge, subject to 

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

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

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the minimum order requirements and applicable handling fees, if any, asset forth in Section 5 of this Agreement. Such additional deliveries will be made within the confines ofDISTRIBUTOR’s existing route schedule unless products required by Operator area Kill Item, in which case the delivery will be expedited in accordance withSection 3.02.

**2.07****        Return of Products/Credits** –Any Products ordered byOperators which are returned to DISTRIBUTOR for any reason must be returned nolater than the next regularly scheduled delivery (except that, in the case ofProducts to be returned as a result of concealed damage, within the remainingshelf life of such Products) and all claims for Products to be returned must bemade either to the driver upon check-in of the order, by telephone by 4 p.m. onthe day of delivery following receipt of the Products if an unattended deliveryor, in the case of concealed damage, within twenty-four (24) hours of discoveryof concealed damage by the Operator.  Allreturned items must be in unmarked original packaging and must be in suitablecondition for resale (unless damaged or mis-marked Product was the reason forthe return). Subject to the foregoing, DISTRIBUTOR shall provide credit to theaffected Operator for defective, shorted or damaged Products within twenty-four(24) hours of the driver’s return if brought to the driver’s attention ornoticed by the driver during delivery or, in any event, within forty-eight (48)hours of DISTRIBUTOR’s receipt of the Operator’s claim of damaged, shorted ordefective Products (or receipt of product, if warranted) and will immediatelyprovide documentation on its website for Operator of such credit if theoriginal order was placed electronically or via fax or phone if the order wasplaced in some other manner. Notwithstanding the foregoing, no returns will be permitted for cooleror freezer items, or fresh produce due to misorder by the Operator.  Products refused by Operator at time ofdelivery for reasons other than damage or remaining shelf life below agreedupon parameters will be subject to a **[CONFIDENTIAL]**(4) restocking charge to be paid by Operator.  In the event that the shorted, defective ordamaged Product is a Kill Item, then DISTRIBUTOR will remedy the situation inaccordance with Section 3.02 if so requested by the Operator.

**2.08****        Limited Time Offers (“LTO’s”)-**In order to allow DISTRIBUTOR to maintain service levels to theOperators, COMPANY will provide DISTRIBUTOR with at least twenty-eight (28)days prior written notice of any and all LTO’s to be run by COMPANY (subject toavailability of LTO 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 stock sufficientinventory for any new Proprietary Products to be used in national LTO 

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

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promotions and other key items, as reasonably requested byCOMPANY.  Unless retained on the Operator’smenu at the instruction of the COMPANY or mutually agreed to between COMPANYand DISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTORdistribution centers no later than sixty (60) days after the completion of theLTO and COMPANY shall purchase all remaining inventory of such LTO as providedin Section 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTOProducts may not be returned to DISTRIBUTOR, unless the return is necessitateddue to a DISTRIBUTOR error or due to Product damage not caused by the Operator.

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

**3.01****        Suppliers/ContractedProducts -**The Proprietary Products to be distributed to the Operatorsunder the terms and conditions of this Agreement shall be purchased byDISTRIBUTOR, on its own account, from the suppliers (including COMPANY)selected by COMPANY, pursuant to terms and conditions as are agreed upon by andbetween DISTRIBUTOR and such suppliers (including COMPANY). In the eventCOMPANY enters into direct contracts with suppliers, the terms and conditionsof such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTORfor its business and legal review and, if the business and legal terms of theproposed contract that apply to DISTRIBUTOR are reasonably acceptable toDISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteedsupplier price provided under such supplier contract (net of billbacks byDISTRIBUTOR, if any), **[CONFIDENTIAL]**(5) and billed by COMPANY or itssupplier, shall be the “Cost” of the Product. COMPANY agrees that no Royalty and Advertising Charges will be includedin the Cost of any of the Products. Products governed by such supplier contracts negotiated by COMPANY arereferred to herein as “Contracted Products.” The freight charges for ContractedProducts will be an amount negotiated with the supplier by COMPANY.  DISTRIBUTOR agrees that Cost for anyContracted Products will not include any unloading costs for palletized andslipsheet loads.

**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 

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

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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.  DISTRIBUTORfurther agrees that any Products transported between its Jackson, Mississippiand Clanton, Alabama distribution centers will be done without increasing theCost of the Product to the Operator.  Tofurther insure DISTRIBUTOR’s ability to comply with the performancerequirements detailed later in this Section 3.02, DISTRIBUTOR will alsomaintain at each distribution center servicing Operators, “safety stock” of notless than **[CONFIDENTIAL]** (6) dayshistorical usage for all Proprietary Products and will also have an additional **[CONFIDENTIAL]**(7) days historical usage of white chocolate mousse, chocolate andvanilla frozen yogurt on the road at all times. DISTRIBUTOR agrees that allProducts delivered to Operators will have at least one-third of their originalshelf-life remaining as of the date of delivery.

COMPANY categorizes Products into three classes:

Proprietary Products that Operators must have (“KillItems”), which Kill Items will not number more than one hundred (100) at anytime, excluding beverage Products and LTO items. COMPANY will provide a list ofKill Items to DISTRIBUTOR, which list will be updated by COMPANY fromtime-to-time.  The initial list of KillItems is attached as **Schedule 4**.

Other ProprietaryProducts that can be substituted in an emergency.

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

DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnightemergency delivery, if requested, an overall aggregate “fill rate” for allProducts of **[CONFIDENTIAL]**(8), and at least **[CONFIDENTIAL]**(9) of all invoices issued by DISTRIBUTOR to the Operators will becompletely accurate at the time of initial issuance, with all of the abovemeasured quarterly.  The “fill rate”equals the percentage of Products or Kill Items, as the case may be, obtainedby dividing the total number of Products or Kill Items shipped by DISTRIBUTORand received by the Operators at the time of delivery for the month, by thetotal number of Product or Kill Items ordered by the Operators from theDISTRIBUTOR for that same month.  Allfill rate 

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

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

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

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

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measurements (and invoice accuracy requirements) will be net ofsupplier-related issues such as shortages and delayed deliveries toDISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event ofsupplier non-performance. If emergency delivery is required due to supplier(including COMPANY) error, costs of emergency delivery shall be at supplier(including COMPANY) expense, provided that, if the supplier fails to absorbsuch expense, such delivery costs shall be paid by the Operator providedDISTRIBUTOR has notified COMPANY immediately in the event of suchnon-performance and Operator has approved the additional expense inadvance.   If the emergency delivery isdue to DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in asefficient manner as possible, which may include emergency deliveries andspecial freight shipments, at DISTRIBUTOR’S sole expense. If the emergencydelivery is due to Operator error, the Operator shall pay delivery costs forsuch emergency delivery.  From the momentof receipt of the Products for storage by DISTRIBUTOR until the Products have beenaccepted by Operator at the Store, DISTRIBUTOR assumes all risk of loss ordamage with respect thereto, shall be directly liable to COMPANY for any suchloss or damage to the Products and the related costs and expenses for replacingthe Products and agrees to obtain and maintain adequate insurance coverage toinsure against such loss or damage.

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

To the extent that DISTRIBUTOR is unable to sell to the Operatorsquantities of the Proprietary Products in DISTRIBUTOR’s inventory for anyreason whatsoever, including, but not limited to, Product discontinuation,slow-moving inventory, unused LTO Products, promotional or seasonal Products orexceeded shelf life due to sudden decline in Product movement and not due toDISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase,all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost,F.O.B. the 

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DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling andcarrying charges, if properly approved by COMPANY in advance as outlinedbelow.  In such event, COMPANY willpurchase or cause to be purchased all perishable Proprietary Products within **[CONFIDENTIAL]**(10) days after notice from DISTRIBUTOR or by the expiration dateof the Proprietary Products, whichever is earlier, and all nonperishableProprietary Products within **[CONFIDENTIAL]**(11) days after notice fromDISTRIBUTOR.  In addition, if theinventory re-purchase is necessitated for any reason other than DISTRIBUTORerror, COMPANY shall reimburse to DISTRIBUTOR all reasonable out-of-pocketcosts and expenses (not to exceed an amount equal to **[CONFIDENTIAL]**(12)of the Product’s Cost unless DISTRIBUTOR receives COMPANY’S prior writtenconsent) incurred by DISTRIBUTOR in selling, returning or otherwise disposingof such Products.  DISTRIBUTOR shallprovide COMPANY with documentation or other proof that any such costs andexpenses were incurred by DISTRIBUTOR. 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]**(13) days of expiration of product life.  If DISTRIBUTOR fails to do so, COMPANY shallnot be required to comply with the requirements set forth in Section 3.02.

**3.04****        Present DISTRIBUTOR’sInventory** - DISTRIBUTOR agrees to purchase the existing merchantableand saleable inventory of Proprietary Products from COMPANY’S presentdistributor located in Alsip, Illinois in quantities not to exceed a **[CONFIDENTIAL]**(14) 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, viacheck, the present distributor for Products purchased from it, within ten (10)days of the later of DISTRIBUTOR’S receipt of the Products or the receipt ofthe invoice approved by COMPANY for the Products.   DISTRIBUTOR shall be responsible for allfreight and unloading costs associated with transporting such inventory fromthe existing DISTRIBUTOR’s locations listed above. DISTRIBUTOR will not beresponsible for any handling or other fees charged by the current distributorin connection with DISTRIBUTOR’s loading and transferring of such inventory. 

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

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

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

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

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

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COMPANY and the current distributor will be required to provide allreasonable assistance and cooperation to DISTRIBUTOR in connection with thepurchase, loading and transportation of such inventory from the currentdistributor to the DISTRIBUTOR distribution center, including the scheduling ofmutually agreeable inventory inspection and pick-up times.

In the event that the Cost of the Product, as purchased from theexisting distributor, exceeds or is less than the Cost that DISTRIBUTOR wouldotherwise utilize in determining the Sell Price for such Products obtainedthrough suppliers, including COMPANY, DISTRIBUTOR shall utilize the Costdesignated by COMPANY in determining the Sell Price and shall invoice, pay toCOMPANY or charge the Operator, as directed by the COMPANY, in the amount ofthe difference.  In the event COMPANYdirects DISTRIBUTOR to invoice the COMPANY, COMPANY shall pay such invoicedamount within **[CONFIDENTIAL]**(15) days of the date of theinvoice.  In the case of a rebate toCOMPANY, DISTRIBUTOR shall pay the rebated amount within **[CONFIDENTIAL]**(16) days of its determination of the amount to be rebated.

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

**4.01****        Sell Price -**Beginningon the Effective Date and throughout the entire term of this Agreement, themaximum purchase price at which DISTRIBUTOR shall sell the Products, (the “SellPrice”), to the Operators shall be determined by adding the “Cost” (ashereinafter defined) of the Product plus **[CONFIDENTIAL]**(17) per case for all deliveries(collectively, “Markup”), subject to the other provisions of thisAgreement.  For purposes of thisAgreement, the “Cost” of a Product other than a Contracted Product shall be thesum of (a) the cost of the Product as shown on the invoices to DISTRIBUTOR fromthe respective supplier, including COMPANY, plus (b) if the invoiced cost ofthe Product is not a delivered price, the applicable freight charges related toshipping the Product from the supplier to DISTRIBUTOR’S distribution center,plus (c) the Sourcing Fees (as later defined in Section 4.06), if any,attributable to the Product, less (d) promotional allowances reflected onsupplier invoices to DISTRIBUTOR. Applicable freight, in those cases where theinvoice cost to DISTRIBUTOR for non-proprietary Products is not a delivered cost,means that DISTRIBUTOR has added a reasonable freight charge, agreed to inadvance and in writing by COMPANY for delivering such non-proprietary Productsfrom suppliers to DISTRIBUTOR. Applicable freight for any non-proprietary Product will not exceed therate charged by nationally recognized carriers operating in the same market forthe same type of freight service. Cost for any non-proprietary Product will notbe reduced by discounts for cash or prompt payment available to DISTRIBUTOR,breakage allowances or by backhaul revenue. 

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

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

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

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Fuel or other transportation surcharges indicated on the manufacturer’sor supplier’s invoice or on freight invoices will increase Cost. The Cost of aContracted Product shall be determined in accordance with Section 3.01.  In no event will the Cost of ContractedProducts include amounts to be rebated to DISTRIBUTOR and therefore,DISTRIBUTOR will not negotiate off-invoice manufacturer rebates,labels/promotional allowances or any other “soft money” received from supplieror freight carriers of Contracted Products. In order to allow verification of the foregoing commitment, DISTRIBUTORagrees to provide documentation substantiating the Cost of items DISTRIBUTORpurchases from suppliers and freight carriers. DISTRIBUTOR agrees to limit its collection of such “soft money” to themanufacturers of non-proprietary Products. The Cost of Contracted Products will not be reduced by discounts forcash or prompt payment available to DISTRIBUTOR, breakage allowances or bybackhaul revenue. Fuel or other transportation surcharges indicated on themanufacturer’s or supplier’s invoice or on freight invoices will increase Cost.

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

No splits will be permitted for any ContractedProducts except for maraschino cherries and malt.  Each of these split Products will have aMarkup of **[CONFIDENTIAL]**(18) per case, whether sold as a splitor full case.

**4.02****                “Cost” for Contracted Products/True-UpMethodology**- In the case of Contracted Products, COMPANY agreesto notify DISTRIBUTOR as soon as practical after a change in Cost has beenagreed to with a supplier.  COMPANY shallhave the right to adjust the Markup for individual Products (not including thefuel surcharge or the **[CONFIDENTIAL]**(19) Markup on the items listed inSection 4.01 above) from time to time to an amount that is more or less thanthe agreed upon Markup per case.  IfCOMPANY exercises its right to lower DISTRIBUTOR’s Markup on any Products, itwill simultaneously and correspondingly increase the Markup on other Productsso as to provide DISTRIBUTOR continuously with an average overall Markup of **[CONFIDENTIAL]**(20) per case, as adjusted from time to time pursuant to thisAgreement.

Following each calendar quarter, DISTRIBUTOR shall provide a cumulativereport that reflects:  (i) the totalnumber of cases of Products delivered to the Stores under this Agreement duringthe preceding quarter (“x”); (ii) the total of the Sell Prices charged for allProducts delivered to the 

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

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

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

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Stores under this Agreement during the preceding quarter (“y”), (iii)the total of the Cost of each Product delivered to the Stores during suchquarter (“z”), and (iv) the “Average Putative Markup” for Products delivered tothe Stores, which shall be calculated as follows: [(y-z)/x].   If the Average Putative Markup is less thanthe Markup required pursuant to Section 4.01 (and as modified pursuant to theother provisions of this Agreement), with such deficiency being referred toherein as the “Markup Deficiency”, COMPANY shall remit to DISTRIBUTOR, anamount equal to the number of cases delivered to the Stores under thisAgreement during the preceding quarter (“x”), multiplied by the MarkupDeficiency.  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.  Payments owed by either party under thisSection 4.02 shall be made by such party to the other party, via check, withinten (10) days of the determination of the amounts owed and, in any case, withinthirty (30) days following the end of the applicable calendar quarter for whichsuch payments are owed or by making adjustments to the Sell Price as mutuallyagreed upon between COMPANY and DISTRIBUTOR.

**4.03****        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 December 1, 2006 and will be based on the Midwest WeeklyRetail On-Highway diesel fuel price which is compiled by the Energy InformationAdministration. The Web site to access this information electronically is asfollows:

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

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

As fuel prices increase or decrease, the fuel cost adjustments willmove according to changes in the prior four (4) week average for the Midwestfuel price bracket, and will take effect on the

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first day of the calendar month following the applicable publicationdate.  For example, the fuel costadjustment beginning the first day in December, if any, will be determinedbased on the four (4) week average ending immediately prior to or on November 30th.
| Price Per Gallon Including  Taxes | ** ** | **Per Case Surcharge/Credit** |
|-----------------------------------|------------|-------------------------------|
| **[CONFIDENTIAL]**(21)            | ** ** | ** **                    |

 

If the price per gallon, including taxes, exceeds **[CONFIDENTIAL]**(22), the surcharge will equal **[CONFIDENTIAL]**(23) per case plus an additional **[CONFIDENTIAL]**(24) per case for each **[CONFIDENTIAL]**(25) increment (or portion thereof)that the price per gallon exceeds **[CONFIDENTIAL]**(26). If the price per gallon, including taxes, falls below **[CONFIDENTIAL]**(27), a credit will be issued in the amount of **[CONFIDENTIAL]**(28) per case plus an additional **[CONFIDENTIAL]**(29) per case for each **[CONFIDENTIAL]**(30) increment (or portion thereof) that the price is less than **[CONFIDENTIAL]**(31).  Any such surcharge orcredit will be shown as a separate line item on the Operator’s invoice.

**4.04****        Markup Adjustments dueto Material Change in Average Delivery Size & CPI-U**

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.

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

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

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

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

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

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

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

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

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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 preceding **[CONFIDENTIAL]**(38) months.

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]**(39) months and dividing the total number of cases delivered bythe total number of deliveries made by DISTRIBUTOR as modified below.  The number of deliveries made by DISTRIBUTORshall not include deliveries to correct errors made by DISTRIBUTOR orsuppliers, nor shall it include deliveries for which DISTRIBUTOR has receivedthe **[CONFIDENTIAL]**(40) special delivery fee inaccordance with Section 2.05.

In the event theaverage delivery size for the previous **[CONFIDENTIAL]**(41) months is greater than or equalto **[CONFIDENTIAL]**(42) but less than or equal to **[CONFIDENTIAL]**(43) cases, the Markup will remain at **[CONFIDENTIAL]**(44)per case as further adjusted for the change in CPI-U discussed later in thissection. If the average delivery size for the previous **[CONFIDENTIAL]**(45) months falls outside of the range described above, or, if thetotal number of cases sold during any prior **[CONFIDENTIAL]**(46) month period is less than **[CONFIDENTIAL]**(47) or greater than **[CONFIDENTIAL]**(48), the COMPANY and DISTRIBUTOR willnegotiate a new Markup adjustment in good faith.  In the event COMPANY and DISTRIBUTOR fail toagree on such a Markup adjustment within thirty (30) days after thecommencement of negotiations under this Section 4.04, then both COMPANY andDISTRIBUTOR will have the right to terminate this Agreement with ninety (90)days written notice to the other party in accordance with Section 6.02 (b)(ii).

In addition to theMarkup adjustment discussed above, COMPANY and DISTRIBUTOR agree that theMarkup will also be adjusted on January 1st ofeach year based on the percentage change

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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in the UnitedStates Government announced change in the CPI-U, less food and energy costchanges, for the prior **[CONFIDENTIAL]**(49) month period.  This percentage change in the CPI-U will beapplied to the **[CONFIDENTIAL]**(50) Markup to determine the newMarkup for the next **[CONFIDENTIAL]**(51) months the change in Markup willbe rounded to the nearest full cent.  Forexample, if the percentage change in the CPI-U for the first **[CONFIDENTIAL]**(52) months after the Effective Date is **[CONFIDENTIAL]**(53),the Markup commencing January 1, 2008 would be **[CONFIDENTIAL]**(54)/case+ **[CONFIDENTIAL]**(55)= rounded to **[CONFIDENTIAL]**(56) per case.  This sameMarkup adjustment of **[CONFIDENTIAL]**(57) per case will be added to theMarkup for the stores not placing their orders electronically, pursuant toSection 4.12.

**4.05****        Payment Terms/Markup Adjustmentsdue 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]**(58) days. Thus, stores which receivedeliveries on Saturday or Sunday, would have their account debited**[CONFIDENTIAL]**(59) and **[CONFIDENTIAL]**(60) days, respectively, after receiptof their order.  DISTRIBUTOR may alsoaccept payment by check if so requested by Operator and approved byDISTRIBUTOR.  All new Operators will initiallyreceive credit terms as outlined above, provided that they satisfy DISTRIBUTOR’Scredit criteria for such terms, as such criteria is uniformly applied among allsimilarly situated Operators, in light of all relevant facts andcircumstances.  Payment terms will beextended only to those Operators that are creditworthy as shall have beensolely determined by DISTRIBUTOR. DISTRIBUTOR may, in its sole discretion,provide alternate payment terms to those Operators not meeting DISTRIBUTOR’sstandards for creditworthiness. DISTRIBUTOR will provide email or fax notice to each Operator at

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

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

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

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

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

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

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

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

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

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

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

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

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least **[CONFIDENTIAL]**(61) 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]**(62) days.

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

(b)           NoSet-Off/Late Fees/Collection Costs. No deductions or set offs from payments due to DISTRIBUTOR may be madeby Operators for any reason without the prior written authorization of DISTRIBUTOR.  Failure of the Operator to make any paymentrequired when due shall result in DISTRIBUTOR having the right to impose morestringent credit or payment terms, such as, without limitation, cash inadvance, cash on delivery, delivery of acceptable letters of credit or thirdparty guaranties, or additional collateral, or, after three (3) business days’prior notice to COMPANY and the affected Operator, to suspend all deliveries,and declare the entire unpaid balance of the Operator’s account immediately dueand payable. The COMPANY shall pay, and shall use its commercially reasonableefforts to cause each Operator to pay, all reasonable costs of collection,including reasonable attorneys fees incurred or paid by DISTRIBUTOR, but onlyto the extent related to their respective accounts. DISTRIBUTOR will have theright to charge interest at the maximum rate permitted by law but not exceeding**[CONFIDENTIAL]**(63) 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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(61)    Confidential treatment has been requestedfor the redacted portion.  Theconfidential, redacted portions have been filed separately with the SEC.

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

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

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(d)           Paymentsto COMPANY.   In addition to theinvoice for the frozen yogurt Products submitted to DISTRIBUTOR by thesupplier, COMPANY will also invoice DISTRIBUTOR directly for **[CONFIDENTIAL]**(64) for its frozen yogurt Products as shipped from themanufacturer and will designate the **[CONFIDENTIAL]**(65) as separate line items for eachProduct. **[CONFIDENTIAL]**(66) COMPANY reserves the right toalter **[CONFIDENTIAL]**(67) on its frozen yogurt Products inits discretion but no more frequently than quarterly.    DISTRIBUTOR agrees to pay COMPANY for theseinvoices within **[CONFIDENTIAL]**(68) days of receipt.

In addition to the invoice for the frozen cake and pie Productssubmitted to DISTRIBUTOR by the supplier, COMPANY will also invoice DISTRIBUTORfor **[CONFIDENTIAL]**(69) on its frozen cake and pieProducts for each Product as shown on **[CONFIDENTIAL]**(70). Company reserves the right to alter **[CONFIDENTIAL]**(71) on its frozen cake and pieProducts in its discretion but no more frequently than quarterly.  Distributor shall pay all invoices for **[CONFIDENTIAL]**(72) on its frozen cake and pie Products when invoiced by theCOMPANY within **[CONFIDENTIAL]**(73) 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]**(74), such that the **[CONFIDENTIAL]**(75) 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

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

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

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

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

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

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

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

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

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

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

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

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

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calculation of the Sell Price of Products notpurchased from COMPANY.  Any changes inthe Sourcing Fees shall occur no more frequently than monthly.  COMPANY specifically represents and warrantsthat such Sourcing Fees (or increases in the invoiced Cost) have been and willcontinue to be disclosed to all Operators, and that the charging and collectionof such Sourcing Fees (or increased Cost) I permitted under its or itsaffiliates’ agreements with the Operators and does not violate any applicablelaws.  COMPANY shall indemnify, defendand hold harmless DISTRIBUTOR, its affiliates and each of their respectiveofficers, agents, directors, shareholders or employees for any claims, loss,liability or expense (including reasonable attorney’s fees and disbursements)arising from a breach of this representation and warranty.

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

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

**4.08****            PriceVerifications-Audit-**COMPANY will be allowed to perform electronicPurchase Price verifications for purchases made under this Agreement on aweekly basis and DISTRIBUTOR will supply the necessary files and information toCOMPANY for these audit purposes on a timely basis and in a form acceptable toCOMPANY and DISTRIBUTOR.  As part of thiselectronic auditing procedure, COMPANY may also audit the payments made to itfor accuracy as well.  If any such auditreveals net pricing, delivery surcharge or COMPANY payment errors (overchargesset off by undercharges) in excess of $2,000 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 $2,000 for the applicable audit period.  For any audit conducted pursuant to thisSection 4.08 that discloses that Operators were either overcharged orundercharged for Products, or that COMPANY was overpaid or overcharged duringthe audited period, DISTRIBUTOR and COMPANY agree to correct the overcharge,undercharge, overpayment or underpayment, as the case may be.  The form and method for making theseadjustments will be mutually agreed upon by DISTRIBUTOR and COMPANY; provided,

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however, in any event the remittance of any such adjustments shall bemade by either party within forty-five (45) days from the final determinationof the undercharge or overcharge, as applicable.

**4.09****                DISTRIBUTOROperator Support -**DISTRIBUTOR agrees to provide the following Operatorsupport to 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]**(76)payable within **[CONFIDENTIAL]**(77) days of written request byCOMPANY.  COMPANY may submit suchrequests **[CONFIDENTIAL]**(78) during each calendar year and atotal of **[CONFIDENTIAL]**(79) 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.
| ITEM                      | ** ** | **FORM**     | ** ** | **TEMPERATURE  REQUIREMENTS IN  DISTRIBUTION   CENTER** | ** ** | **UPPER TEMP.  RANGE WHILE   TRANSPORTED TO  STORES** |
|---------------------------|------------|--------------|------------|---------------------------------------------------------|------------|------------------------------------------------------------|
| Soft Serve Frozen Yogurt  |       | Frozen       |       | -10o or lower                                      |       | 0o                                                    |
| Hand-Dipped Frozen Yogurt |       | Frozen       |       | -10o or lower                                      |       | 0o                                                    |
| Yogurt Cakes and Pies     |       | Frozen       |       | -10o or lower                                      |       | 0o                                                    |
| Various Toppings          |       | Refrigerated |       | 34o to 36o                                    |       | 38o                                                   |
| Nuts and Liquid Toppings  |       | Frozen       |       | 0 or lower                                              |       | 0o                                                    |
| Various Toppings          |       | Dry          |       | Above 38                                                |       | Above 38                                                   |

 

(d)           DISTRIBUTOR willprovide COMPANY with periodic EDI file transfers to include the following:

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

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

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

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

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Weekly invoice registerby store outlining the SKU’s and quantity purchased

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

Weekly report of CurrentStores

Weekly report of averagedrop sizes for each store

Monthly deliveryperformance report with on-time performance, fill rates and clean invoicepercentages

Daily out-of-stock reportand stores so affected

Monthly costing detail onall Products used by the SYSTEM

Such additional reports as may be reasonable requestedby the COMPANY

**4.10****      Taxes –**Franchiseesand COMPANY shall each be responsible for their applicable sales and usetaxes.  DISTRIBUTOR shall collectapplicable taxes from each responsible party and be responsible for remittingall taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for payingthose taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defendCOMPANY pursuant to Section 8.01 of this Agreement should Company receive aclaim for the DISTRIBUTOR’s failure to pay taxes.  Neither party will pay a claimwhich 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 bynational billing agency or other programs for which the price at which theDISTRIBUTOR must sell the Product to the Operator is prescribed by agreementsbetween COMPANY, or any other franchisor or group purchasing organization, onthe one hand, and the supplier or manufacturer of such Products, on the other,are referred to in this Agreement as “Contracted Operator Sell Price Products”.  Notwithstanding Section 4.01, the Sell Pricefor Contracted Operator Sell Price Products shall be the amount prescribed (orcalculated in accordance with) the above-described programs or agreements.  Contracted Operator Sell Price 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]**(80) for each case delivered on thatfax or phone order in addition to any other charges applicable under thisAgreement.  This additional fee will beincluded in the Markup and, hence, the Sell Price for each of theProducts.  This additional Markup will

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

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not be assessed to Operators in the event that DISTRIBUTOR’S website isnot operational or in the infrequent circumstance where, an Operator who hasbeen in the habit of ordering electronically, may be unable to place an orderin this fashion due to technical difficulties.

**5.****     Minimum Deliveries -**TheOperators will be required to order Products in minimum quantities of **[CONFIDENTIAL]**(81) cases of Products per delivery unless due to DISTRIBUTOR orsupplier error.  In addition, Operatorwill be required to pay DISTRIBUTOR a **[CONFIDENTIAL]**(82) handling fee per order for ordersof less than **[CONFIDENTIAL]**(83) cases but greater than **[CONFIDENTIAL]**(84) cases and a **[CONFIDENTIAL]**(85) handling fee per order for ordersof less than **[CONFIDENTIAL]**(86) cases but greater than or equalto **[CONFIDENTIAL]**(87) 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 in Section 6.02. This Agreement shall automatically renew for one (1) additional yearupon the completion of the Initial Term unless one party notifies the other inwriting at least one hundred eighty (180) days before the expiration of theInitial Term of its desire to terminate the relationship.

**6.02**        **Termination**

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

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

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

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

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

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

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

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

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against the other party under any provision of the Federal BankruptcyAct or any amendment thereof.

(b)           Eitherparty shall have the right to terminate this Agreement upon ninety (90) dayswritten notice under any of the following conditions:

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

or

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

**6.03****        Effect ofExpiration/Termination -**Upon expiration or sooner termination of thisAgreement, for any reason, COMPANY shall promptly purchase or arrange for thepurchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of theProprietary Products and any labeling and packaging materials used inconnection with the Proprietary Products. COMPANY will purchase or cause to be purchased perishable ProprietaryProducts within **[CONFIDENTIAL]**(88) days after the effective date oftermination of this Agreement or by the expiration date of such ProprietaryProduct, whichever is earlier, and all nonperishable Proprietary Productswithin **[CONFIDENTIAL]**(89) days after the effective date oftermination of this Agreement. In addition, if this agreement is terminated dueto COMPANY’s breach or default, COMPANY shall reimburse to DISTRIBUTOR allother reasonable out-of-pocket costs

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

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

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and expenses (not to exceed an amount equal to **[CONFIDENTIAL]**(90) 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, all trademarks,logos, trade names, and other markings used on the Proprietary Product’spackaging and labels (the “Trademarks”). COMPANY hereby grants to DISTRIBUTORthe right to use the Trademarks solely in connection with the approved sale anddistribution of the Proprietary Products in accordance with the provisions ofthis Agreement and only for as long as this Agreement remains in effect.COMPANY also grants to DISTRIBUTOR the right and license to use the Trademarksin advertising and promotional materials when the Trademarks are used thereinto identify the Proprietary Products, subject to COMPANY’s prior writtenapproval of form and content. Provided DISTRIBUTOR is using the Trademarks inaccordance with the terms and provisions of this Agreement, COMPANY shallindemnify, 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 reasonable attorneys’fees and disbursements) and judgments made or incurred by or found against anyof them resulting from or arising out of any claim or suit alleginginfringement by COMPANY or its affiliates, through any of the Trademarks orotherwise.

**8.****             Indemnification**

**8.01****        Indemnification byDISTRIBUTOR -**DISTRIBUTOR agrees to indemnify, defend and hold COMPANY,its subsidiaries, affiliates, officers, directors, members, managers,stockholders, employees, agents, successors and assigns harmless from andagainst any and all claims,

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

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demands, liabilities, causes of action, damages, costs (includingreasonable attorneys’ fees and disbursements) and judgments made or incurred byor found against any of them, resulting from or arising out of:

(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.

(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 of fundscollected by COMPANY from DISTRIBUTOR.

**8.03****        Limitation ofLiability; Disclaimer of Warranties -** NOTWITHSTANDING SECTIONS 8.01 AND8.02 TO THE CONTRARY, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE IN CONTRACT,TORT, STRICT LIABILITY OR OTHERWISE,  TOTHE OTHER PARTY

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OR ITS RESPECTIVE SUBSIDIARIES, AFFILIATES,FRANCHISEES OR OTHER OPERATORS FOR ANY TYPE OF INCIDENTAL, CONSEQUENTIAL ORPUNITIVE DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESSOPPORTUNITY) ARISING FROM A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER ANYOF THE TERMS AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUTLIMITATION, ANY SUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANY TERM OR PROVISIONOF THIS AGREEMENT.

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

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

**9.**             **Insurance**

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

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(a)           commercialgeneral liability insurance and products liability coverage with broad formvendor endorsement, which specifically insures all liabilities of DISTRIBUTORto COMPANY and Operator under this Agreement, to the extent afforded by normalISO policy forms and definitions, with all such insurance coverage providingfor combined single limit bodily injury/property damage liability of not lessthan **[CONFIDENTIAL]**(91) (combined single limits bodilyinjury and property damage) and a **[CONFIDENTIAL]**(92) umbrella policy; and

(b)           commercialautomobile liability insurance coverage providing for combined single limitbodily injury/property damage liability of not less than **[CONFIDENTIAL]**(93) (combined single limits bodily injury and property damage)and a **[CONFIDENTIAL]**(94) umbrella policy.

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]**(95). All such insurance shall beprovided by insurance companies which are licensed and authorized to dobusiness in the United States of America, and which are reasonably satisfactoryto DISTRIBUTOR. COMPANY agrees to deliver to DISTRIBUTOR, on or prior to theEffective Date, a certificate of insurance evidencing the existence of all theabove

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

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

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

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

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

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insurance coverage and naming DISTRIBUTOR as an additional insuredunder such policies. The certificate shall contain an agreement by theinsurance carrier to notify DISTRIBUTOR, in writing, at least thirty (30) daysprior to the date of any change in such insurance 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 Missouri. 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****      Representations andWarranties of COMPANY**–COMPANY hereby represents and warrants toDISTRIBUTOR as follows:

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

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

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

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

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

**11.****                               Notices-**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:        BantaFoods, Inc.

PO Box 8246

Springfield, MO 65801

Attention:  Rick Sweet

FAX:  (417) 865-7223

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If to COMPANY:              TCBYSystems, LLC

2855 E. CottonwoodParkway, Suite 400

Salt Lake City, UT84121-7050

Attention: PurchasingDirector

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 to invalidateor render unenforceable the remaining terms and provisions which are valid andenforceable.

**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, or otherprocess of law and (ii) provide invoices, and any information relating tohistorical payments or payments due or to become due from franchisees orOperators hereunder to its auditors and legal counsel, and to present andpotential financing sources and rating agencies and their respective auditorsand legal counsel). The parties’ obligations under this Section 19 shall notapply to any of the Confidential Information delivered or made available tothem by the other party which the recipient of the Confidential Information canreasonably establish (a) was known to the recipient party at the time theConfidential Information was disclosed or made available to the recipientparty; (b) was known to the public at the time the Confidential Information wasdisclosed or made available to the recipient party; (c) becomes known to thepublic after the date the Confidential Information was disclosed or madeavailable to the recipient party through no fault or breach of this Section 19by the recipient party; (d) is given to or made available to the recipientparty by a third party who has a lawful right to disclose the ConfidentialInformation to the recipient party; or, (e) is independently developed by theRecipient party without reference to the Confidential Information.

**20.****                               Arbitration**- All actions, disputes, claims or controversy with the exception of seeking aninjunction, now existing or hereafter arising between DISTRIBUTOR and COMPANY,including, but not limited to any action, dispute, claim or controversy arisingout of this Agreement or the delivery by DISTRIBUTOR of any Products to COMPANY(a “Dispute”) shall be resolved by binding arbitration in Salt Lake City, Utah,in accordance with the Commercial Arbitration Rules of the American ArbitrationAssociation and, to the maximum extent applicable, the Federal ArbitrationAct.  Arbitrations shall be conductedbefore one arbitrator 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 Springfield, Missouri and shall be governed by the construedin accordance with the laws of the State of Missouri as applicable therein.

**22.****                            Miscellaneous -**Thesection and paragraph headings contained in this Agreement are for referenceonly and shall not be considered as substantial parts of this Agreement. Theuse of the singular or plural from in

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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 orsame counterpart.  The parties mayexecute and deliver this Agreement by facsimile transmission.

 

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

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**INWITNESS WHEREOF,**each of the parties hereto has caused thisAgreement to be executed and delivered by its duly authorized officers on theday and year first above written.
| TCBY SYSTEMS, LLC                       |
|-----------------------------------------|
|                                    |
|                                    |
| By:                                     | /s/ Michael Ward |   |
|                                    |
| Its: Executive  VP, Chief Legal Officer |
|                                    |
|                                    |
| BANTA FOODS,  INC.                      |
|                                    |
|                                    |
| By:                                     | /s/ Joe Manlove |   |
|                                    |
| Its: Major  Account Sales               |
|                                         |  |  |  |

 

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**SCHEDULE1****BANTA FOODS DISTRIBUTIONAGREEMENT**

# **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-asagreed to by and between Company and Distributor

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###### Schedule 2

Map consistingdepiction of Territory

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Schedule 3

[ConfidentialTreatment has been requested for this Schedule. The confidential redacted portions have been filed separately with theSEC]

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Schedule 4

###### Product Listing

[ConfidentialTreatment has been requested for this Schedule. The confidential redacted portions have been filed separately with theSEC]

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###### Schedule 5

###### Jackson, MS Inbound Quantity Matrix

[ConfidentialTreatment has been requested for this Schedule. The confidential redacted portions have been filed separately with theSEC]

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###### Schedule 6

[ConfidentialTreatment has been requested for this Schedule. The confidential redacted portions have been filed separately with theSEC]

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###### Schedule 7

[ConfidentialTreatment has been requested for this Schedule. The confidential redacted portions have been filed separately with theSEC]

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