CONFIDENTIAL


 


 


Exhibit
10.69


 


[Conformed
Copy]


 


DISTRIBUTION
AGREEMENT


 


THIS
AGREEMENT is made
and entered into as of the 25th day of April 2006, by and between TCBY SYSTEMS, LLC, a Delaware limited
liability company (“COMPANY”) and SOUTHWEST
TRADERS, INC., a California Corporation (“DISTRIBUTOR”). DISTRIBUTOR
will commence distribution services under this Agreement on May 21, 2006 (the
“Effective Date”) unless otherwise mutually agreed upon by the parties.


RECITALS


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


B.                                    The
DISTRIBUTOR is engaged in the business of purchasing, selling, distributing and
delivering food service products (including the Products, as defined
below).  In connection therewith, the
DISTRIBUTOR manages, controls, prepares and furnishes reports to its customers
concerning the inventories of products and supplies the DISTRIBUTOR purchases,
manages and controls for sale, distribution and delivery to its customers.


C.                                    COMPANY wishes to
appoint DISTRIBUTOR as the primary distributor of certain approved proprietary
food and related products to the Stores located within the Territory  (as defined below), and DISTRIBUTOR wishes to
accept such appointment, all on the terms and conditions hereinafter set forth.



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AGREEMENT


NOW, THEREFORE, in
consideration of the mutual covenants herein set forth and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


1.                                      Appointment
— Subject to all terms and conditions of this Agreement, COMPANY hereby
appoints DISTRIBUTOR as a distributor of the products within the product
categories listed in Schedule 1 (the
“Products”), to the Stores in the territory serviced by DISTRIBUTOR’s
distribution centers located in Temecula, California (the “Temecula Territory”)
and Sacramento, California (the “Sacramento Territory” and the Temecula
Territory and Sacramento Territory combined the “Territory”) as reflected in
the maps depicted in Schedule 2
and DISTRIBUTOR hereby accepts such appointment. To the extent that conflicts
arise between the maps and the county listing in Schedule 2, the maps shall prevail.  It is the intent of both COMPANY and
DISTRIBUTOR that all communities with a population of 10,000 or greater in the
states of California, Arizona, New Mexico, Nevada, Oregon, Washington and Idaho
(west of and including Twin Falls) be included in the Territory.  Subject to Section 2.02, COMPANY may appoint
DISTRIBUTOR as a distributor of Products to Stores outside of the Territory and
DISTRIBUTOR may agree to such designation.  
DISTRIBUTOR will be entitled to at least 90% of all sales of the
Products to the Stores located in the Territory, calculated on an aggregate
dollar basis.


2.             Distribution of Products


2.01                        Products
— DISTRIBUTOR will maintain in its inventory of Products the following: (i)
Products designated by COMPANY that contain the proprietary trademarks, service
marks, logos or labels of COMPANY or any of its affiliates or that are made
pursuant to specifications provided by COMPANY, its affiliates, or licensors
for limited distribution to Operators (defined below) or other entities
licensed by COMPANY, its affiliates or licensors (“TCBY Branded Products”), and
(ii) other supplies or other national or regional branded Products
designated  or contracted for by COMPANY
to be maintained in inventory by DISTRIBUTOR for distribution to  COMPANY, its affiliates and the
Operators.  (Collectively, Products
described in clauses (i) and (ii) are referred to as “Proprietary Products”).  DISTRIBUTOR will also maintain in its
inventory non-proprietary Products which DISTRIBUTOR stocks in its inventory
for sale to COMPANY, its affiliates and its Operators. DISTRIBUTOR shall not be
required to maintain more than two hundred (200) Proprietary Products in
inventory at any time.  All Coca Cola
Products carried for COMPANY shall be excluded from the calculation of the
number of Proprietary Products.



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2.02                        Approved
Operators — DISTRIBUTOR shall sell and deliver to Franchisees and
Operators of Stores approved by COMPANY and located within the Territory such
quantities of the Products (subject to minimum Product order requirements) as
the Operators may order from time to time during the term of this Agreement.
DISTRIBUTOR shall cease selling TCBY Branded Products to any Operator not later
than three (3) days following receipt of written notice from COMPANY advising
DISTRIBUTOR that such Operator is no longer approved by COMPANY and shall,
within such timeframe, further cease selling, under the terms of any supplier
agreement negotiated by COMPANY, all Proprietary Products to such Operators
referenced in such notice. In addition, DISTRIBUTOR shall have the right to
cease the sale and distribution of Products to any Operator (a) who is in
default of its obligations to DISTRIBUTOR, provided that DISTRIBUTOR has given
COMPANY at least three (3) business days notice of such default before ceasing
deliveries to such Operator, or (b) who has filed a voluntary petition in
bankruptcy or under any other similar insolvency or debtor relief law or who
has had such a petition filed against it, or who has made a general assignment
for the benefit of its creditors. COMPANY shall also have the right to
reinstate delivery to any Operator that COMPANY previously stopped selling by
providing written notice to DISTRIBUTOR and DISTRIBUTOR shall provide such
delivery as soon as mutually agreed between the parties.


A list of the present Operators with Stores located
within the Territory and approved by COMPANY and their respective Store
locations is attached hereto as Schedule 3.  During the term of this Agreement, COMPANY
shall maintain and provide to DISTRIBUTOR a current list of all Operators with
Stores within the Territory who have been approved by COMPANY for distribution
of the Products under this Agreement. DISTRIBUTOR shall have the right to rely
upon such list, as amended or modified by COMPANY in writing from time to time,
in performing its obligations under this Agreement. COMPANY shall notify
DISTRIBUTOR of new Stores within the Territory not less than twenty one (21)
days prior 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
mutually agree in writing, DISTRIBUTOR shall provide distribution services to
Stores located outside the Territory, as designated by COMPANY.


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



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2.03                        Product Orders — All Product orders shall be submitted by
the Operators to DISTRIBUTOR and shall specify the location of the Operator’s
Stores, the type of Product, and the quantity desired.  Operators may place orders electronically
(“Electronic Orders”) or by faxing DISTRIBUTOR’s customer service center in
accordance with the guidelines detailed below. DISTRIBUTOR will also accept
telephone orders on a very limited exception basis for those Operators approved
in writing by the COMPANY.  All shipment
expenses from DISTRIBUTOR’s distribution center to the Operator’s location
shall be at DISTRIBUTOR’s expense unless otherwise noted elsewhere in this
Agreement. Product order guides will be provided by DISTRIBUTOR to the Operators
monthly via DISTRIBUTOR’s website or email if so requested by Operator and, on
a limited exception basis approved in writing by the COMPANY, with a hard copy
mailed to the affected Store, with availability of such order guides to be made
prior to the beginning of the month, but only after review and approval of the
order guide by COMPANY. The order guides will be organized by Product
categories and will include, among other things, the Product 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 system and will be used on
all documents such as order guides, invoices, monthly reports, etc. SKU’s, and,
accordingly, the assigned product code number, must differ for equivalent
Products supplied by different suppliers. Only Products approved for sale to
its Operators by the COMPANY will be listed on this order guide. Electronic
Orders will be placed via telephone modem or internet using DISTRIBUTOR’s
automated order entry system.  All orders
are subject to the standard order cut-off time of 4:00 p.m. Pacific time, two
(2) days prior to their scheduled delivery day, with the exception of Stores
located in the States of Oregon, Washington, and Idaho, which must be submitted
three (3) days prior to their scheduled delivery day.  Operators will be notified prior to the time
of final order cut-off if a product is expected to be out of stock so that an
alternative may be ordered, subject to the provisions of Section 3.02.  Operators will have until 5:00 p.m, one (1)
day before their order shipping day to modify or add-on to their order
(Saturday at 5:00 p.m. for Stores whose deliveries will leave DISTRIBUTOR’s
facility on Monday).  Where reasonably
possible, DISTRIBUTOR will schedule ordering days and delivery days that are
mutually agreed upon by and between DISTRIBUTOR and each Operator and will
provide notice to the affected Operator of at least fourteen (14) days before
routing changes.


Except for deliveries to the states of Washington,
Oregonand Idaho, wherever reasonably possible and unless approved in advance by
the COMPANY, DISTRIBUTOR will include no more than one “skip day” between the
date of order and date of delivery (Sunday is not counted as a skip day). For
example, orders scheduled for delivery on Wednesday will be placed no earlier
than Monday. Orders scheduled for delivery on Monday will be placed on Friday.
In the event 



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DISTRIBUTOR must include more than one “skip day”
between the date of order and date of delivery it will notify COMPANY in
advance and obtain COMPANY’s approval. 
In no event will there ever be more than two “skip days” permitted.
DISTRIBUTOR may schedule deliveries on any day of the week.  On an exception basis, DISTRIBUTOR will
consider shortening the permissible time frames for scheduled deliveries for
those Operators that, given unique and compelling business needs, require the
same.


Operator will be notified of any Product shortages at
the time of order placement or, in the case of an Electronic Order, one (1) day
prior to the loading of the delivery truck.


2.04                       Deliveries.    Delivery vehicles used by DISTRIBUTOR will
not display the marks of COMPANY’S principal competitors to include
Baskins-Robbins, Stone Cold Creamery and any other restaurant concepts whose
primary product offerings are frozen confections.


DISTRIBUTOR agrees that, excluding key drops (deliveries scheduled to
be made during the period running from one (1) hour or more after the retail
closing time of the Store to deliveries one (1) hour or more before the retail
opening time of the Store) an overall average of 90% of all regularly scheduled
deliveries will be made within a three (3) hour window, meaning no earlier than
one and one half (1 1/2) hours before and no later than one and one half (1
1/2) hours after the scheduled delivery time. If a delivery is anticipated to
fall outside of this three (3) hour window, DISTRIBUTOR will immediately notify
the Operator. DISTRIBUTOR will provide an inside delivery to each Operator in
accordance with Company’s temperature store requirements as detailed in Section
4.09, placing refrigerated and frozen Products into their appropriate storage
areas, but will not be responsible for stocking shelves or rotating
inventories.


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


The COMPANY agrees to use its commercially reasonable
efforts to cause Operators to provide keys and security codes for night
deliveries where necessary.  In the event
Operator refuses to provide keys and security codes, Operator will promptly
meet the delivery driver at the scheduled appointment time or at such other
time as Operator has been notified in the event of a late delivery.  If the Operator fails to meet the DISTRIBUTOR
delivery at the appropriate time on more than one occasion, the Operator shall
be responsible for payment of a [CONFIDENTIAL](1)






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



 5
 








fee to DISTRIBUTOR for subsequent occurrences.  In the event of a Product shortage or
delivery problem that occurs during an unattended delivery, the authorized
representative of the Stores will contact the distribution center no later than
the first Notification Deadline following such unattended delivery.  The “Notification Deadline” is 4:00 p.m.
Pacific time each day for the affected Stores.


In the case of Stores located in the States of Alaska
and Hawaii, DISTRIBUTOR agrees to process the orders from the Stores as well as
deliver the Products to the freight forwarder’s location or load the Products
onto the freight forwarder’s truck at DISTRIBUTOR’S distribution center, as the
case may be.  DISTRIBUTOR will invoice
Operator for the Product Cost and its Markup pursuant to Section 4 of this
Agreement.  DISTRIBUTOR’S liability for the
Products ceases upon receipt by the freight forwarder.


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


	
  

  	
   

  	
  Delivery Frequency

  	
   

  
	
  Annual Case Volume

  	
   

  	
  Summer Routing

  	
   

  	
  Winter Routing

  	
   

  
	
  Less than 120 cases

  	
   

  	
  3
  deliveries during a 12 month period

  	
   

  
	
  120-199 cases

  	
   

  	
  4
  deliveries during a 12 month period

  	
   

  
	
  200-349 cases

  	
   

  	
  6
  deliveries during a 12 month period

  	
   

  
	
  350-499 cases

  	
   

  	
  8 deliveries
  during a 12 month period

  	
   

  
	
  500-999 cases

  	
   

  	
  Every
  4 weeks

  	
   

  	
  Every
  4 weeks

  	
   

  
	
  1,000-1,999 cases

  	
   

  	
  Every
  3 weeks

  	
   

  	
  Every
  4 weeks

  	
   

  
	
  2,000-3,499 cases

  	
   

  	
  Every
  week

  	
   

  	
  Every
  2 weeks

  	
   

  
	
  Greater than 3,499 cases

  	
   

  	
  Every week

  	
   

  	
  Every week

  	
   

  



 


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


In the event an emergency delivery is required based upon the
Operator’s needs and not due to a delivery error by DISTRIBUTOR nor during the
time periods specified in Section 2.06, DISTRIBUTOR will accommodate the
Operator’s request with the most efficient available 



 6
 








delivery method. All additional freight expense will be at the
Operator’s expense and will be billed upon DISTRIBUTOR’s receipt of the invoice
from the shipping agent. If DISTRIBUTOR is able to schedule such an emergency
delivery in conjunction with a nearby route, the additional freight expense
will be [CONFIDENTIAL](2).  Where possible, a store may order up to [CONFIDENTIAL](3) cases to be delivered to a nearby store,
on that store’s delivery day (and with that store’s consent) without an
additional charge.  Products delivered to
a nearby store will be billed on a separate invoice.


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


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


2.06                        Special Deliveries During Roll-Out and New
Operator Openings — DISTRIBUTOR
and COMPANY recognize that during the initial roll-out phase of the DISTRIBUTOR
distribution program, many new processes will be in place for each of COMPANY,
the Operators and DISTRIBUTOR, including changes in the way the Operators
order, the distance from the DISTRIBUTOR distribution center to the Operators,
and lead times from order day to delivery day for the Operators. Therefore,
DISTRIBUTOR will process emergency orders for all Operators for the first
thirty (30) days following the commencement of distribution service at no
additional charge, subject to the minimum order requirements and applicable
handling fees, if any, as set forth in Section 5 of this Agreement.  In addition, during the term of this
Agreement, DISTRIBUTOR will process emergency orders for all Operators’ newly
added Stores within the first thirty (30) days following the opening of the new
Stores, subject only to minimum order requirements and applicable handling
fees, if any, as set forth in Section 5 of this Agreement.


2.07                        Return
of Products/Credits — Any Products ordered by Operators which are
returned to DISTRIBUTOR for any reason must be returned no later than the next
regularly scheduled 






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


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



 7
 








                                                delivery
(except that, in the case of Products to be returned as a result of concealed
damage, within the remaining shelf life of such Products) and all claims for
Products to be returned must be made either to the driver upon check-in of the
order, by telephone by 4 p.m. on the day of delivery following receipt of the
Products if an unattended delivery or, in the case of concealed damage, within
twenty-four (24) hours of discovery of concealed damage by the Operator.  All returned items must be in unmarked
original packaging and must be in suitable condition for resale (unless damaged
or mis-marked Product was the reason for the return). Subject to the foregoing,
DISTRIBUTOR shall provide credit to the affected Operator for defective,
shorted or damaged Products within twenty-four (24) hours of the driver’s
return if brought to the driver’s attention or noticed 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 or defective Products (or
receipt of product, if warranted) and will immediately provide documentation on
its website for Operator of such credit if the original order was placed
electronically or via fax or phone if the order was placed in some other
manner.  Notwithstanding the foregoing,
no returns will be permitted for cooler or freezer items, or fresh produce due
to misorder by the Operator.  Products
refused by Operator at time of delivery for reasons other than damage or
remaining shelf life below agreed upon parameters will be subject to a [CONFIDENTIAL](4) restocking charge to be paid by
Operator.  In the event that the shorted,
defective or damaged Product is a Kill Item, then DISTRIBUTOR will remedy the
situation in accordance 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 the Operators, 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 to availability of LTO Products from the supplier within the
twenty-eight (28) day period). Such written notices shall include estimated
usage for the Products to be promoted if such usage is expected to deviate
materially from historical levels or if a new Product. Subject to the above, DISTRIBUTOR
agrees to stock sufficient inventory for any new Proprietary Products to be
used in national LTO promotions and other key items, as reasonably requested by
COMPANY.  Unless retained on the
Operator’s menu at the instruction of the COMPANY or mutually agreed to between
COMPANY and DISTRIBUTOR, all LTO Products must be removed from the DISTRIBUTOR
distribution centers no later than sixty (60) days after the completion of the
LTO and COMPANY shall purchase all remaining inventory of such LTO as provided
in Section 3.02. The sale of LTO Products by DISTRIBUTOR is final and LTO
Products may not be returned to DISTRIBUTOR, unless the return is necessitated
due to a DISTRIBUTOR error or due to Product damage not caused by the Operator.






(4)                   Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 8
 








3.             Suppliers of Products; Inventory
of Products.


3.01                        Suppliers/Contracted
Products — The Proprietary Products to be distributed to the Operators
under the terms and conditions of this Agreement shall be purchased by
DISTRIBUTOR, on its own account, from the suppliers (including COMPANY)
selected by COMPANY, pursuant to terms and conditions as are agreed upon by and
between DISTRIBUTOR and such suppliers (including COMPANY). In the event
COMPANY enters into direct contracts with suppliers, the terms and conditions
of such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTOR
for its business and legal review and, if the business and legal terms of the
proposed contract that apply to DISTRIBUTOR are reasonably acceptable to
DISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteed
supplier price provided under such supplier contract (net of billbacks by
DISTRIBUTOR, if any), plus applicable freight if the supplier price is not a
delivered price, plus [CONFIDENTIAL](5)
if any, attributable to the Product, [CONFIDENTIAL](6),
plus any applicable Sourcing Fees (defined below) shall be the “Cost” of the
Product.  Products governed by such
supplier contracts negotiated by COMPANY are referred to herein as “Contracted
Products.” The freight charges for Contracted Products will be an amount
negotiated with the supplier by COMPANY. 
DISTRIBUTOR agrees that Cost for any Contracted Products will not
include any unloading costs for palletized and slipsheet loads.


3.02                        Inventory
— During the term of this Agreement, DISTRIBUTOR shall maintain an inventory of
the Products in quantities necessary to provide the Operators with an adequate
supply of such Products based upon initial usage projections by COMPANY, future
historical usage of such Products by the Operators, and the fill rate
performance requirements detailed below. DISTRIBUTOR agrees to work with
COMPANY, to attempt to maximize the quantities of Products purchased to
efficiently reduce the cost of Products purchased, and to maximize Product
inventory turns. In addition, DISTRIBUTOR agrees to order Products in the
quantities indicated on the inbound quantity matrix attached hereto as Schedule 5, as amended by COMPANY to
reflect the growth in the number of Stores serviced by DISTRIBUTOR in the
Territory from time to time. To further insure DISTRIBUTOR’s ability to comply
with the performance requirements detailed later in this Section 3.02,
DISTRIBUTOR will also maintain at each distribution center servicing Operators
“safety stock” of not less than [CONFIDENTIAL](7)
days historical usage for all Proprietary Products and will also have an
additional [CONFIDENTIAL](8) days historical 






(5)                   Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


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


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


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



 9
 








                                                usage
of white chocolate mousse, chocolate and vanilla frozen yogurt on the road at
all times. DISTRIBUTOR agrees that all Products delivered to Operators will
have at least one-third of their original shelf-life remaining as of the date
of delivery.


COMPANY categorizes Products into three classes:


Proprietary Products that Operators must have (“Kill
Items”), which Kill Items will not number more than [CONFIDENTIAL](9)
at any time, excluding beverage Products and LTO items. COMPANY will provide a
list of Kill Items and other Proprietary Products to DISTRIBUTOR, which list
will be updated by COMPANY from time-to-time. 
The initial list of Kill Items is attached as Schedule 4.


Other Proprietary
Products that can be substituted in an emergency.


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


DISTRIBUTOR will achieve a 100% fill rate on Kill Items with overnight
emergency delivery, if needed and requested by Operator, an overall aggregate
“fill rate” for all Products of [CONFIDENTIAL](10)
([CONFIDENTIAL](11) for the period prior
to the commencement of deliveries to the Operators out of the Sacramento facility
in accordance with Section 4.12), and at least [CONFIDENTIAL](12)
of all invoices issued by DISTRIBUTOR to the Operators will be completely
accurate at the time of initial issuance ([CONFIDENTIAL](13)  for the period prior to the commencement of
deliveries to the Operators out of the Sacramento facility in accordance with
Section 4.12), with all of the above measured quarterly.  The “fill rate” equals the percentage of
Products or Kill Items, as the case may be, obtained by dividing the total
number of Products or Kill Items shipped by DISTRIBUTOR and received by the
Operators at the time of delivery for the month, by the total number of Product
or Kill Items ordered by the Operators from the DISTRIBUTOR for that same
month.  All fill rate measurements (and
invoice accuracy requirements) will be net of supplier-related issues such as
shortages and delayed deliveries to DISTRIBUTOR, provided DISTRIBUTOR notifies
COMPANY immediately in the event of supplier non-performance. If emergency
delivery is required due to supplier (including COMPANY) error, costs of
emergency delivery shall be at supplier (including COMPANY) 






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


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


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


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


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



 10
 








expense, provided that, if the supplier fails to absorb such expense,
such delivery costs shall be paid by the Operator provided DISTRIBUTOR has
notified COMPANY immediately in the event of such non-performance and Operator
has approved the additional expense in advance.   If the emergency delivery is due to
DISTRIBUTOR error, then DISTRIBUTOR will remedy the situation in as efficient
manner as possible, which may include emergency deliveries and special freight
shipments, at DISTRIBUTOR’S sole expense. If the emergency delivery is due to
Operator error, the Operator shall pay delivery costs for such emergency
delivery.  From the moment of receipt of
the Products for storage by DISTRIBUTOR until the Products have been accepted
by Operator at the Store, DISTRIBUTOR assumes all risk of loss or damage with
respect thereto, shall be directly liable to COMPANY for any such loss or
damage to the Products and the related costs and expenses for replacing the
Products and agrees to obtain and maintain adequate insurance coverage to
insure against such loss or damage.


In the event of substitution of a Proprietary Product, the substituted
Product must have been previously approved by COMPANY in writing and, if the
need for substitution was caused due to DISTRIBUTOR error, the price of the
substituted Product will be determined based on the lower of the Cost (as
hereinafter defined) of the substituted Product or the Cost of the out-of-stock
Product that it replaces.  In addition,
DISTRIBUTOR will reimburse COMPANY to the extent that COMPANY would have
realized a difference between its selling price to DISTRIBUTOR and the amount
that 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 to
DISTRIBUTOR copies of invoices and other documentation reasonably necessary to
verify the amount of the difference claimed by COMPANY.  If substitution is due to supplier (including
COMPANY) error, then COMPANY shall cause supplier to, or if COMPANY is the
supplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable losses
sustained due to such error.


To the extent that DISTRIBUTOR is unable to sell to the Operators
quantities of the Proprietary Products in DISTRIBUTOR’s inventory for any
reason whatsoever, including, but not limited to, Product discontinuation,
slow-moving inventory, unused LTO Products, promotional or seasonal Products or
exceeded shelf life due to sudden decline in Product movement and not due to
DISTRIBUTOR error, COMPANY will purchase, or cause a third party to purchase,
all remaining inventory of such Proprietary Products at DISTRIBUTOR’s cost,
F.O.B. the DISTRIBUTOR distribution centers plus DISTRIBUTOR’s handling and
carrying charges, if properly approved by COMPANY in advance as outlined
below.  In such event, COMPANY will
purchase or cause to be purchased all perishable Proprietary Products within 



 11
 








[CONFIDENTIAL](14) days after
notice from DISTRIBUTOR or by the expiration date of the Proprietary Products,
whichever is earlier, and all nonperishable Proprietary Products within [CONFIDENTIAL](15) days after notice from DISTRIBUTOR.  In addition, if the inventory re-purchase is
necessitated for any reason other than DISTRIBUTOR error, COMPANY shall
reimburse to DISTRIBUTOR all reasonable out-of-pocket costs and expenses (not
to exceed an amount equal to [CONFIDENTIAL](16)
of the Product’s Cost unless DISTRIBUTOR receives COMPANY’S prior written
consent) incurred by DISTRIBUTOR in selling, returning or otherwise disposing
of such Products.  DISTRIBUTOR shall
provide COMPANY with documentation or other proof that any such costs and
expenses were incurred by DISTRIBUTOR. 
In order to allow COMPANY to monitor the supply and usage of the
Proprietary Products, DISTRIBUTOR shall provide to COMPANY a monthly obsolete
and slow-moving inventory report.


3.03                        Aged
Inventory Notification — DISTRIBUTOR will provide a report at the end
of each month detailing the inventory on hand for each Product along with the
remaining shelf life for such Product. 
If DISTRIBUTOR fails to provide this report, COMPANY shall not be
required to comply with the requirements set forth in Section 3.02.


3.04                        Present
DISTRIBUTOR’s Inventory — DISTRIBUTOR agrees to purchase the existing
merchantable and saleable inventory of Proprietary Products from COMPANY’S
present distributor located in Anaheim, California; Stockton, California;
Tacoma, Washington; and Phoenix Arizona and in quantities not to exceed a [CONFIDENTIAL](17) 
supply of such Products, in the aggregate for each location listed
above, provided that DISTRIBUTOR and COMPANY have been given an opportunity by
the present distributor to inspect any such Product prior to purchase pursuant
to this Section 3.04.  Proprietary
Products picked up by DISTRIBUTOR will have at least one-third of their
original shelf life remaining or COMPANY will agree to waive this requirement
pursuant to section 3.02.  COMPANY agrees
to develop a plan to accelerate product movement for any Proprietary Product
picked up by DISTRIBUTOR that represents more than six (6) month’s historical
usage to insure all of this Product is sold or disposed of at the sooner of six
(6) months or its remaining useful shelf life. 
DISTRIBUTOR will pay, via check, 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 of the invoice approved by COMPANY for the
Products.   DISTRIBUTOR shall be
responsible for all freight and unloading 






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


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


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


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



 12
 








                                                costs
associated with transporting such inventory from the existing DISTRIBUTOR’s
locations listed above. DISTRIBUTOR will not be responsible for any handling or
other fees charged by the current distributor in connection with DISTRIBUTOR’s
loading and transferring of such inventory. COMPANY and the current distributor
will be required to provide all reasonable assistance and cooperation to
DISTRIBUTOR in connection with the purchase, loading and transportation of such
inventory from the current distributor to the DISTRIBUTOR distribution center,
including the scheduling of mutually agreeable inventory inspection and pick-up
times.


In the event that the Cost of the Product, as
purchased from the existing distributor, exceeds or is less than the Cost that
DISTRIBUTOR would otherwise utilize in determining the Sell Price for such
Products obtained through suppliers, including COMPANY, DISTRIBUTOR shall
utilize the Cost designated by COMPANY in determining the Sell Price and shall
invoice, pay to COMPANY or charge the Operator, as directed by the COMPANY, in
the amount of the difference.  In the
event COMPANY directs DISTRIBUTOR to invoice the COMPANY, COMPANY shall pay
such invoiced amount, via check, so that it is received by DISTRIBUTOR within [CONFIDENTIAL](18) days of the date of the invoice.  In the case of a rebate to COMPANY, DISTRIBUTOR
shall pay the rebated amount within [CONFIDENTIAL](19)
days of its determination of the amount to be rebated.


4.             Sell Price/Payment
Terms/Financial Reporting


4.01                        Sell
Price — Beginning on the Effective Date and throughout the entire term
of this Agreement, the maximum purchase price at which DISTRIBUTOR shall sell
the Products, (the “Sell Price”), to the Operators shall be determined by
adding the “Cost” (as hereinafter defined) of the Product plus [CONFIDENTIAL](20) per case for all deliveries (collectively,
“Markup”), subject to the other provisions of this Agreement.  For purposes of this Agreement, the “Cost” of
a Product other than a Contracted Product shall be the sum of (a) the cost of
the Product as shown on the invoices to DISTRIBUTOR from the respective
supplier, including COMPANY, plus (b) if the invoiced cost of the Product is
not a delivered price, the applicable freight charges related to shipping the
Product from the supplier to DISTRIBUTOR’S distribution center, plus (c) the
Sourcing Fees, if any, attributable to the Product, less (d) promotional
allowances reflected on supplier invoices to DISTRIBUTOR. Applicable freight,
in those cases where the invoice cost to DISTRIBUTOR for non-proprietary
Products is not a delivered cost, means that DISTRIBUTOR has added a reasonable
freight charge, agreed to in advance and in writing by COMPANY for delivering
such non-proprietary Products from suppliers to DISTRIBUTOR.  






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


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


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



 13
 








                                                Applicable
freight for any non-proprietary Product will not exceed the rate charged by
nationally recognized carriers operating in the same market for the same type
of freight service. Cost for any non-proprietary Product will not be reduced by
discounts for cash or prompt payment available to DISTRIBUTOR, breakage
allowances or by backhaul revenue. Fuel or other transportation surcharges
indicated on the manufacturer’s or supplier’s invoice or on freight invoices
will increase Cost. The Cost of a Contracted Product shall be determined in
accordance with Section 3.01.  In no
event will the Cost of Contracted Products 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 supplier or freight carriers of Contracted Products.  In order to allow verification of the
foregoing commitment, DISTRIBUTOR agrees to provide documentation
substantiating the Cost of items DISTRIBUTOR purchases from suppliers and
freight carriers, if such information is requested by COMPANY, with such
requests limited to once every six (6) months. 
DISTRIBUTOR agrees to limit its collection of such “soft money” to the
manufacturers of non-proprietary Products. 
The Cost of Contracted Products will not be reduced by discounts for
cash or prompt payment available to DISTRIBUTOR, breakage allowances or by
backhaul revenue. Fuel or other transportation surcharges indicated on the
manufacturer’s or supplier’s invoice or on freight invoices will increase Cost.


The invoice format to be used by DISTRIBUTOR will be
approved by COMPANY and will contain separate lines showing subtotals for
various Product categories, the total amount of R & A Charges invoiced to
the Operator for that particular delivery, applicable taxes, the date of the
ACH debit and other summary line items as detailed elsewhere in this Agreement.


Partial case shipments (also known as “splits”) shall
be permitted for the malt, maraschino cherries, chocolate sprinkles, assorted
sprinkles in which individual units of such Products are separately packaged
within each case. Notwithstanding anything else contained in this agreement to
the contrary, the Markup for the following items will be limited to [CONFIDENTIAL](21): malt, maraschino cherries, medium
spoons, taster spoons, straws, water, chocolate sprinkles and assorted
sprinkles.


DISTRIBUTOR and COMPANY agree that the Markup for
DISTRIBUTOR’S services in connection with deliveries to Stores located in
Alaska and Hawaii shall be the same as all other stores located in the
Territory when DISTRIBUTOR delivers product to the freight forwarder’s 






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



 14
 








location and [CONFIDENTIAL](22)
of the Markup in the event the freight forwarder picks up the order at
DISTRIBUTOR’S location.


4.02                        “Cost”
for Contracted Products/ True-Up Methodology — In the case of
Contracted Products, COMPANY agrees to notify DISTRIBUTOR as soon as practical
after a change in Cost has been agreed to with a supplier.  COMPANY shall have the right to adjust the
Markup for individual Products (not including the fuel surcharge or the [CONFIDENTIAL](23) Markup on the items listed in Section
4.01 above) from time to time to an amount that is more or less than the agreed
upon Markup per case. If COMPANY exercises its right to lower DISTRIBUTOR’s
Markup on any Products, it will simultaneously and correspondingly increase the
Markup on other Products so as to provide DISTRIBUTOR continuously with an
average overall Markup of [CONFIDENTIAL](24)
per case, again subject to the other provisions of this Agreement.


Following each calendar quarter, DISTRIBUTOR shall
provide a cumulative report that reflects: (i) the total number of cases of
Products delivered to the Stores under this Agreement during the preceding
quarter (“x”); (ii) the total of the Sell Prices charged for all Products
delivered to the Stores under this Agreement during the preceding quarter,
excluding the effect of any Large Order Credits given Operators during the
quarter (“y”), (iii) the total of the Cost of each Product delivered to the
Stores during such quarter (“z”), and (iv) the “Average Putative Markup” for
Products delivered to the Stores, which shall be calculated as follows:
[(y-z)/x].   If the Average Putative Markup
is less than the Markup required pursuant to Section 4.01 (and as modified
pursuant to the other provisions of this Agreement), with such deficiency being
referred to herein as the “Markup Deficiency”, COMPANY shall remit to
DISTRIBUTOR, an amount equal to the number of cases delivered to the Stores
under this Agreement during the preceding quarter (“x”), multiplied by the
Markup Deficiency.  If the Average
Putative Markup exceeds the Markup required pursuant to Section 4.01 (and as
modified pursuant to the other provisions of this Agreement), with such excess
being referred to as the “Markup Excess”, DISTRIBUTOR shall remit to COMPANY an
amount equal to the number of cases delivered to the Stores under this
Agreement during that quarter (“x”), multiplied by the Markup Excess.  Payments owed by either party under this
Section 4.02 shall be made by such party to the other party, via check, within
ten (10) days of the determination of the amounts owed and, in any case, within
thirty (30) days following the end of the applicable calendar quarter for which
such payments are owed or by making adjustments to the Sell Price as mutually
agreed upon between COMPANY and DISTRIBUTOR.






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


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


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



 15
 








4.03                        Fuel
Cost Adjustments — If the operating costs of DISTRIBUTOR are increased
or decreased as a result of fuel cost increases or decreases, DISTRIBUTOR may
adjust the Markup (as and if otherwise adjusted pursuant to the terms of this
Agreement) to compensate for such fluctuations in fuel costs, on a monthly
basis. The amount of the adjustment computed in accordance with this Section
4.03 shall also be added to or subtracted from, as applicable, the specified
price for Contracted Operator Sell Price Products described in Section
4.11.  The method for determining the
fuel surcharge or adjustment will be made monthly beginning June 1, 2006 and will
be based on the California Weekly Retail On-Highway diesel fuel price which is
compiled by the Energy Information Administration. The Web site to access this
information electronically is as follows:


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

/current/html/diesel.html


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


As fuel prices increase or decrease, the fuel cost adjustments
will move according to changes in the four (4) week average for the California
fuel price bracket, and will take effect on the first day of the calendar month
following the applicable publication date. 
For example, the fuel cost adjustment beginning the first day in July,
if any, will be determined based on the four (4) week average ending
immediately prior to or on June 30th.


[CONFIDENTIAL](25)       [CONFIDENTIAL](26)


If the price per gallon, including taxes, exceeds [CONFIDENTIAL](27), the surcharge will equal [CONFIDENTIAL](28) per case plus an additional [CONFIDENTIAL](29) per case for each [CONFIDENTIAL](30)
increment (or portion thereof) that the price per gallon exceeds [CONFIDENTIAL](31). 
If the price per gallon, including taxes, falls below [CONFIDENTIAL](32), a credit will be issued in the amount of
[CONFIDENTIAL](33) per case 






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


(26)             Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


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


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


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


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


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


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


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



 16
 








plus an additional [CONFIDENTIAL](34)
per case for each [CONFIDENTIAL](35) increment
(or portion thereof) that the price is less than [CONFIDENTIAL](36).  Any such surcharge or credit will be shown as
a separate line item on the Operator’s invoice. 
The fuel surcharge will be [CONFIDENTIAL](37) /case
for all deliveries made between the Effective Date through May 31, 2006.


4.04                        Markup
Adjustments due to Variances from Projections.


The [CONFIDENTIAL](38) Markup during
the first [CONFIDENTIAL](39) months after the
Effective Date (3.63 until the Sacramento expansion is operational pursuant to
section 4.12) is premised upon an average delivery size of [CONFIDENTIAL](40)
cases to the Stores serviced by DISTRIBUTOR.  COMPANY and DISTRIBUTOR agree to review the
service levels provided by DISTRIBUTOR as well as the average delivery sizes [CONFIDENTIAL](41) days after the Effective date.  No adjustments will be made to the Markup at
that time unless the average delivery size experienced during the first [CONFIDENTIAL](42) days is greater than [CONFIDENTIAL](43)
cases, adjusted for seasonality and excluding any additional deliveries made by
DISTRIBUTOR during the initial transition period pursuant to Section 2.06.  In the event such a Markup adjustment is
required, the COMPANY and DISTRIBUTOR agree to use the schedule that follows
later in Section 4.04 as soon as practical after the review and such Markup
will remain in effect for the balance of the first year of the Agreement.


After the first [CONFIDENTIAL](44) months
of service and after each [CONFIDENTIAL](45) month
period thereafter the Markup for the next [CONFIDENTIAL](46) months
will be based on the actual average delivery size for the previous [CONFIDENTIAL](47) months according to the following
schedule:






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


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


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


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


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


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


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


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


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


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


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


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


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


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



 17
 








 


Average Delivery Size for


[CONFIDENTIAL](48)                       [CONFIDENTIAL](49)


The average delivery size will be calculated by summing up all of the
cases delivered to the Stores serviced by DISTRIBUTOR in the Territory for the
previous [CONFIDENTIAL](50) months (with each
partial case or “split” counting as a full case) and dividing the total number
of cases delivered by the total number of deliveries made by DISTRIBUTOR as
modified below.  The number of deliveries
made by DISTRIBUTOR shall not include deliveries made by third parties arranged
by DISTRIBUTOR, nor deliveries to correct errors made by DISTRIBUTOR or
suppliers, nor shall it include deliveries for which DISTRIBUTOR has received
the [CONFIDENTIAL](51) special delivery fee
in accordance with Section 2.05.


In the event the average delivery size for the previous [CONFIDENTIAL](52) months falls outside of the ranges
described above or the weight/cube ratio of the average Proprietary Product
case sold to the Operators increases by more than [CONFIDENTIAL](53)
from 32.16, COMPANY and DISTRIBUTOR will negotiate a new Markup in good
faith.  In the event COMPANY and
DISTRIBUTOR fail to agree on such a Markup adjustment within thirty (30) days
after the commencement of negotiations under this Section 4.04, then both
COMPANY and DISTRIBUTOR will have the right to terminate this Agreement with
180 days written notice to the other party in accordance with Section 6.02
(b)(ii).


Schedule 3 includes several
Stores located within airports subject to rigorous security inspections.  In the event these inspections are modified
in such a way as to cause extensive delays during delivery beyond what is
customary as of the Effective Date of this Agreement and these delays persist
continuously for a period of several months, COMPANY and DISTRIBUTOR agree to meet
in good faith to negotiate a solution that is mutually satisfactory to both
parties.


4.05                        Payment
Terms/Markup Adjustments due to Payment Methodology






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


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


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


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


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


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



 18
 








 


(a)          Standard Payment
Terms.  Except as noted below,
DISTRIBUTOR and COMPANY have agreed that payments to DISTRIBUTOR for Products
delivered to the Operators (including Contract Feeders as defined below) shall
be received by ACH debit entry initiated by DISTRIBUTOR, so that the amount is
credited to DISTRIBUTOR’s account no sooner than [CONFIDENTIAL](54)
days after the date of delivery. 
Operator’s who receive deliveries on Saturday or Sunday will have their
debit entry initiated by DISTRIBUTOR on the Monday [CONFIDENTIAL](55)
and [CONFIDENTIAL](56) days,
respectively, following such delivery.  
DISTRIBUTOR may also accept payment by check if so requested by Operator
and approved by DISTRIBUTOR.  All new
Operators will initially receive credit terms of [CONFIDENTIAL](57)
days, provided that they satisfy DISTRIBUTOR’S credit criteria for
such terms, as such criteria is uniformly applied among all similarly situated
Operators, in light of all relevant facts and circumstances.  Payment terms will be extended only to those
Operators that are creditworthy as shall have been solely determined by
DISTRIBUTOR. DISTRIBUTOR may, in its sole discretion, provide alternate payment
terms to those Operators not meeting DISTRIBUTOR’s standards for
creditworthiness.  DISTRIBUTOR will
provide email or fax notice to each Operator at least [CONFIDENTIAL](58)
days prior to the ACH debit entry actually taking place, advising
Operator of the amount of the ACH debit, along with the invoice number and any
credits posted during the prior [CONFIDENTIAL](59) days.


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


(b)                                 No
Set-Off/Late Fees/Collection Costs. 
No deductions or set offs from payments due to DISTRIBUTOR may be made
by Operators for any reason without the prior written authorization of
DISTRIBUTOR.  Failure of the Operator to
make any payment required 






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


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


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


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


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


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



 19
 








when due shall result in DISTRIBUTOR having the right
to impose more stringent credit or payment terms, such as, without limitation,
cash in advance, cash on delivery, delivery of acceptable letters of credit or
third party 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 due and payable. The COMPANY shall pay, and shall use its
commercially reasonable efforts to cause each Operator to pay, all reasonable
costs of collection, including reasonable attorneys fees incurred or paid by
DISTRIBUTOR, but only to the extent related to their respective accounts.
DISTRIBUTOR will have the right to charge interest at the maximum rate
permitted by law but not exceeding [CONFIDENTIAL](60) percent
per annum on all unpaid amounts due or owing by Operators and/or COMPANY to
DISTRIBUTOR.


(c)                                  COMPANY’S
Liability for Payments. COMPANY agrees that it shall be liable for all
liabilities of COMPANY expressly set forth in this Agreement.  COMPANY will not be liable for the debts or
obligations of Operators unless otherwise agreed to in writing by COMPANY.  Except as otherwise provided in this
Agreement, payments or reimbursements owed by Company to Distributor shall be
paid within fourteen (14) days of Distributor invoice date, or may be offset on
the next invoice owed by Distributor to the Company.


(d)                                 Payments
to COMPANY as Supplier.  COMPANY
invoices the [CONFIDENTIAL](61) component of
its frozen yogurt Products directly to DISTRIBUTOR.  This [CONFIDENTIAL](62)
varies by Product and a schedule of the current [CONFIDENTIAL](63)
for its frozen yogurt Products is attached as Schedule
6A (Temecula Territory) and Schedule 6B (Sacramento Territory).  COMPANY reserves the right to alter [CONFIDENTIAL](64) on its frozen yogurt Products in its
discretion but no more frequently than [CONFIDENTIAL](65).  COMPANY will invoice DISTRIBUTOR for these
products as shipped from the manufacturer and will designate the [CONFIDENTIAL](66) as separate line items for each
Product.  DISTRIBUTOR agrees to pay these
invoices within [CONFIDENTIAL](67) days of
receipt.






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


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


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


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


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


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


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


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



 20
 








 


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


Each month, DISTRIBUTOR will provide a report and
invoice to COMPANY showing the amount of [CONFIDENTIAL](73) billed
to each Store compared with the amount paid on these same Products by
DISTRIBUTOR in accordance with Schedules 7A and
7B and the amount owed to
DISTRIBUTOR by COMPANY, payable within fourteen (14) days by COMPANY.  In the event COMPANY does not pay such
invoice timely, DISTRIBUTOR will be authorized to take a credit for the amount
owed to it by COMPANY on the next invoice payable to COMPANY.


In the event COMPANY decides to establish a new
procedure for new and or established Stores to bill and collect [CONFIDENTIAL](74) such that the [CONFIDENTIAL](75)
are billed and collected from the Stores by DISTRIBUTOR, DISTRIBUTOR
agrees to remit such fees each Friday via ACH credit for all sales made the
previous week.


4.06                        Sourcing Fees.  COMPANY may, from time to time, collect
compensation from the Operators for services that each of them provide to such
Operators, either by increasing the Cost of a Product supplied by either of
them to DISTRIBUTOR for distribution under this Agreement, or through the
assessment of an additional fee (a “Sourcing Fee”) that COMPANY instructs
DISTRIBUTOR to add in the calculation of the Sell Price of Products not
purchased from COMPANY.  Any changes in
the Sourcing Fees shall occur no more frequently than monthly.  COMPANY specifically represents and warrants
that such Sourcing Fees (or increases in the invoiced Cost) have been and will
continue to be disclosed to all Operators, and that the charging and collection
of such Sourcing Fees (or increased Cost) is permitted under its or its
affiliates’ 






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


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


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


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


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


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


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


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



 21
 








                                                agreements
with the Operators and does not violate any applicable laws.  COMPANY shall indemnify, defend and hold
harmless DISTRIBUTOR, its affiliates, and each of their respective officers,
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 an ACH credit entry each Friday with respect to those Products
delivered to the Operators during the preceding week and on which a Sourcing
Fee was assessed.   The COMPANY shall
repay to DISTRIBUTOR any Sourcing Fees paid to the COMPANY by DISTRIBUTOR that
the Operators fail to pay DISTRIBUTOR. This repayment obligation shall only
apply to those Sourcing Fees incurred and unpaid by Operators during the first [CONFIDENTIAL](76) day period from the point in time that
Operator was last current with DISTRIBUTOR. 
For example, if Operator fails to pay DISTRIBUTOR for
invoices/indebtedness incurred and unpaid over a [CONFIDENTIAL](77)
day period ([CONFIDENTIAL](78)deliveries),
DISTRIBUTOR will be liable for paying COMPANY the Sourcing Fees for those
Products purchased for the last [CONFIDENTIAL](79) deliveries.


4.07                        Financial
Information.   DISTRIBUTOR may
request balance sheets, income statements and such further financial
information from each Operator from time to time as will enable DISTRIBUTOR to
accurately assess the Operators’ financial condition. The COMPANY may require
DISTRIBUTOR to supply annual unaudited balance sheets and such further
financial information from time to time as will enable COMPANY to accurately
assess DISTRIBUTOR’S financial condition.


4.08                        Price
Verifications-Audit — COMPANY will be allowed to perform electronic
Purchase Price verifications for purchases made under this Agreement on a
weekly basis and DISTRIBUTOR will supply the necessary files and information to
COMPANY for these audit purposes on a timely basis and in a form acceptable to
COMPANY and DISTRIBUTOR.  As part of this
electronic auditing procedure, COMPANY may also audit the payments made to it
for accuracy as well.  If any such audit
reveals net pricing, delivery surcharge or COMPANY payment errors (overcharges
set off by undercharges) in excess of [CONFIDENTIAL](80) in the aggregate during the audited period (not to exceed a
twelve 






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


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


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


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


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



 22
 








(12) month period) COMPANY shall have the right to
conduct additional audits, at its option and at DISTRIBUTOR’S reasonable
expense, until the aggregate net pricing errors disclosed by an such additional
audits are less than [CONFIDENTIAL](81) for
the applicable audit period.  For any
audit conducted pursuant to this Section 4.08 that discloses that Operators
were either overcharged or undercharged for Products, or that COMPANY was
overpaid or overcharged during the 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 these adjustments will be mutually agreed upon by DISTRIBUTOR and
COMPANY; provided, however, in any event the remittance of any such adjustments
shall be made by either party within [CONFIDENTIAL](82)
days from the final determination of the undercharge or overcharge, as applicable.


4.09                        DISTRIBUTOR
Operator Support —DISTRIBUTOR agrees to provide the following Operator
support to COMPANY.


(a)                                  DISTRIBUTOR
will support the System by participating in the supplier show at its own
expense.  In addition, DISTRIBUTOR will
pay COMPANY an annual support payment equal to [CONFIDENTIAL](83)
payable within [CONFIDENTIAL](84) days
of written request by COMPANY.  COMPANY
may submit such requests only once during each calendar year and a total of [CONFIDENTIAL](85)  such
requests during the term of this Agreement.


(b)                                 DISTRIBUTOR
will support COMPANY in terms of activating product recalls in accordance with
DISTRIBUTOR’S standard product recall policies.


(c)                                  DISTRIBUTOR
will adhere to the following HACCP requirements for monitoring of temperature
controls for perishable products both in the DISTRIBUTOR distribution center
and in DISTRIBUTOR’S transportation equipment.


 


	
  ITEM

  	
   

  	
  FORM

  	
   

  	
  TEMPERATURE

  REQUIREMENTS IN

  DISTRIBUTION

  CENTER

  	
   

  	
  UPPER TEMP.

  RANGE WHILE

  TRANSPORTED TO

  STORES

  	
   

  
	
  Soft Serve
  Frozen Yogurt

  	
   

  	
  Frozen

  	
   

  	
  -10o or lower

  	
   

  	
  0

  	
  o

  
	
  Hand-Dipped
  Frozen Yogurt

  	
   

  	
  Frozen

  	
   

  	
  -10o or lower

  	
   

  	
  0

  	
  o

  
	
  Yogurt Cakes and
  Pies

  	
   

  	
  Frozen

  	
   

  	
  -10o or lower

  	
   

  	
  0

  	
  o

  
	
  Various Toppings

  	
   

  	
  Refrigerated

  	
   

  	
  34o to 36o

  	
   

  	
  38

  	
  o

  
	
  Nuts and Liquid
  Toppings

  	
   

  	
  Frozen

  	
   

  	
  -10 or lower

  	
   

  	
  0

  	
  o

  
	
  Various Toppings

  	
   

  	
  Dry

  	
   

  	
  Above 38

  	
   

  	
  Above 38

  	
   

  







 


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


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


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


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


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



 23
 








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


Weekly invoice register
by store outlining the SKU’s and quantity purchased


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


Weekly report of average
drop sizes for each store


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


Daily out-of-stock report
and stores so affected


Monthly costing detail on
all Products used by the SYSTEM


Such additional reports as may be reasonable requested
by the COMPANY


4.10                  Taxes — Franchisees
and COMPANY shall each be responsible for their applicable sales and use
taxes.  DISTRIBUTOR shall collect
applicable taxes from each responsible party and be responsible for remitting
all taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for paying
those taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defend
COMPANY pursuant to Section 8.01 of this Agreement should Company receive a
claim for the DISTRIBUTOR’s failure to pay taxes.  Neither party will pay a claim which is
allegedly the responsibility of the other without first notifying the other and
giving the other the opportunity to contest the claim.


4.11            Special Pricing
Arrangements — Products that are governed by national billing agency or
other programs for which the price at which the DISTRIBUTOR must sell the
Product to the Operator is prescribed by agreements between COMPANY, or any
other franchisor or group purchasing organization, on the 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 Price
for Contracted Operator Sell Price Products shall be the amount prescribed (or
calculated in accordance with) the above-described programs or agreements and
COMPANY will receive full credit under the true-up calculation 



 24
 








required in Section 4.02 for all funds actually
received or which could have been received from the suppliers of such
Contracted Operator Sell Price Products as if DISTRIBUTOR maximized such funds,
including credit for all payment discounts whether or not actually taken by
DISTRIBUTOR.  Contracted Operator Sell
Price Products include, but are not limited to, soft drink syrup products
including, without limitation, the following Coca Cola Products:  Coke Bag in Box (“BiB”), Diet Coke BiB,
Sprite BiB and Barq’s Root Beer BIB.


4.12                        Initial
Markup during Sacramento Expansion — Notwithstanding Section 4.01 to
the contrary, the Markup beginning on the Effective Date for all Products
except those with a Markup of [CONFIDENTIAL](86),
will be [CONFIDENTIAL](87) 
per case (as modified in accordance with Section 4.03) to
compensate DISTRIBUTOR for the additional costs of servicing the entire
Territory from Temecula while the DISTRIBUTOR’s Sacramento distribution center
is being expanded. This Markup will remain in place until the 1st of
the month after the expansion is completed as evidenced by a certificate of
occupancy from the regulating municipality at which time the Markup will be [CONFIDENTIAL](88)  per
case (as modified in accordance with Section 4.03) until the first anniversary
of the Effective Date.  In no event,
however, will this [CONFIDENTIAL](89)  Markup be in effect beyond August
1, 2006.


5.              Minimum
Deliveries — The Operators will be required to order Products in
minimum quantities of [CONFIDENTIAL](90)  cases of Products per delivery unless due to
DISTRIBUTOR or supplier error.  In
addition, Operator will be required to pay DISTRIBUTOR a [CONFIDENTIAL](91)
handling fee per order for orders of less than [CONFIDENTIAL](92)
cases and [CONFIDENTIAL](93) handling fee per
order for orders of less than [CONFIDENTIAL](94) cases
but equal to or greater than [CONFIDENTIAL](95)  cases unless due to DISTRIBUTOR or supplier
including failure to fulfill the order in its entirety. Products with a Markup
of [CONFIDENTIAL](96) pursuant to section
4.01 will be counted as cases for determining the applicability and amount of
these handling fees.  These handling fees
will be credited to COMPANY for 






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


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


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


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


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


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


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


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


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


(95)             Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


(96)             Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 25
 








                        purposes
of the true-up calculation required in Section 4.02.  However, the [CONFIDENTIAL](97)
special delivery fees in Section 2.05 will not be credited to
COMPANY for purposes of the true-up calculation required in Section 4.02.


6.              Term and
Termination


6.01                        Term
— The initial term of this Agreement shall commence on the Effective Date
and shall continue until exactly three (3) years after the commencement of full
service to all Stores to be serviced in the Territory (“Initial Term”), unless
sooner terminated as provided in Section 6.02. 
This Agreement shall automatically renew for one (1) additional year
upon the completion of the Initial Term unless one party notifies the other in
writing at least one hundred eighty (180) days before the expiration of the
Initial Term of its desire to terminate the relationship.


6.02        Termination


(a)           Either party shall
have the right, upon prior written notice, to immediately terminate this
Agreement if the other party fails to make payment of any amounts due and
payable under this Agreement, and such failure shall have continued for a
period of ten (10) days from and after the date of written notice to the
defaulting party or in the event the other party files a voluntary petition or
consents to the filing of a petition against it in bankruptcy or any similar
insolvency or debtor relief action, or if the other party makes a general
assignment for the benefit of creditors, or in the event a receiver is appointed
or any proceeding is demanded or initiated by, for or against the other party
under any provision of the Federal Bankruptcy Act or any amendment thereof.


(b)           Either party shall
have the right to terminate this Agreement upon 180 days written notice under
any of the following conditions:


(i)            Upon
the occurrence of any material breach or material default by the other party,
which remains uncured after expiration of the applicable Cure Period (as herein
defined), of any of the terms, obligations, covenants, representations and
warranties 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 shall
notify the other of such alleged beach or default and the other party shall
have a period of thirty (30) days to cure the same (the “Cure Period”). If the
defaulting party






(97)             Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 26
 








cures its breach or default within any applicable Cure
Period to the reasonable satisfaction of the non-defaulting party, the notice
shall be void and this Agreement shall continue; otherwise, it shall terminate
in accordance with the notice.


or


(ii)           In
the event the parties fail to agree on a Markup adjustment pursuant to Section
4.04.


6.03                        Effect
of Expiration/Termination — Upon expiration or sooner termination of
this Agreement, for any reason, COMPANY shall promptly purchase or arrange for
the purchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),
F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of the
Proprietary Products and any labeling and packaging materials used in connection
with the Proprietary Products.  COMPANY
will purchase or cause to be purchased perishable Proprietary Products within [CONFIDENTIAL](98) days after the effective date of
termination of this Agreement or by the expiration date of such Proprietary
Product, whichever is earlier, and all nonperishable Proprietary Products
within [CONFIDENTIAL](99) days after the
effective date of termination of this Agreement. In addition, if this agreement
is terminated due to COMPANY’s breach or default, COMPANY shall reimburse to
DISTRIBUTOR all other reasonable out-of-pocket costs and expenses (not to
exceed an amount equal to [CONFIDENTIAL](100)
of the Markup on each Product unless DISTRIBUTOR receives COMPANY’s prior
written consent) incurred by DISTRIBUTOR in selling, returning or otherwise
disposing of such Proprietary Products. DISTRIBUTOR shall provide COMPANY with
documentation or other proof that any such costs and expenses were incurred by
DISTRIBUTOR. Termination of this Agreement shall not relieve either party of
any obligation or liability which accrues prior to the effective date of
termination (including, but not limited to, obligations related to the payment
of COMPANY’s accounts receivable or accounts payable and the purchase of excess
inventories). Notwithstanding the foregoing provisions of this Section 6.03 to
the contrary, if this Agreement is terminated due to DISTRIBUTOR’s breach or
default or expires in accordance with the provisions of Section 6.01, COMPANY
shall have the obligation to purchase, or shall direct the replacing
distributor or other suitable purchaser to purchase, from DISTRIBUTOR only such
inventory of the Proprietary Products which is merchantable and saleable but
COMPANY shall have no obligation to reimburse DISTRIBUTOR for its out-of-pocket
costs and expenses related to selling, returning or otherwise disposing of such
Proprietary Products.






(98)               Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


(99)               Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


(100)         Confidential treatment has been requested for
the redacted portion.  The confidential,
redacted portions have been filed separately with the SEC.



 27
 








 


7.                                      Trademarks and Trade Names — COMPANY
hereby represents and warrants that it is 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’s packaging and labels (the “Trademarks”).
COMPANY hereby grants to DISTRIBUTOR the right to use the Trademarks solely in
connection with the approved sale and distribution of the Proprietary Products
in accordance with the provisions of this Agreement and only for as long as
this Agreement remains in effect. COMPANY also grants to DISTRIBUTOR the right
and license to use the Trademarks in advertising and promotional materials when
the Trademarks are used therein to identify the Proprietary Products, subject
to COMPANY’s prior written approval of form and content. Provided DISTRIBUTOR
is using the Trademarks in accordance with the terms and provisions of this
Agreement, COMPANY shall indemnify, defend and hold DISTRIBUTOR and its
subsidiaries, affiliates, officers, shareholders, directors, employees,
members, managers, agents, successors and assigns harmless from and against any
and all claims, demands, liabilities, causes of action, damages, costs
(including reasonable attorneys’ fees and disbursements) and judgments made or
incurred by or found against any of them resulting from or arising out of any
claim or suit alleging infringement by COMPANY or its affiliates, through any
of the Trademarks or otherwise.


8.             Indemnification


8.01                        Indemnification
by DISTRIBUTOR — DISTRIBUTOR agrees to indemnify, defend and hold
COMPANY, its subsidiaries, affiliates, officers, directors, members, managers,
stockholders, employees, 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 any of them, resulting from or arising out
of:


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


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


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



 28
 








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


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


(c)                                  Claims
by any franchisee of COMPANY and/or Operator that may arise from DISTRIBUTOR
ceasing further sales to such franchisee or other Operator under this Agreement
at the direction of COMPANY.


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


8.03                        Limitation
of Liability; Disclaimer of Warranties — NOTWITHSTANDING SECTIONS 8.01
AND 8.02 TO THE CONTRARY, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, 
TO THE OTHER PARTY OR ITS RESPECTIVE SUBSIDIARIES, AFFILIATES,
FRANCHISEES OR OTHER OPERATORS FOR ANY TYPE OF INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS
OPPORTUNITY) ARISING FROM A PARTY’S PERFORMANCE OR FAILURE TO PERFORM UNDER ANY
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY SUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANY TERM OR PROVISION
OF THIS AGREEMENT.


COMPANY ACKNOWLEDGES AND AGREES THAT DISTRIBUTOR IS
NOT THE MANUFACTURER OR PRODUCER OF THE PRODUCTS SUPPLIED BY DISTRIBUTOR.  IN NO EVENT SHALL DISTRIBUTOR BE LIABLE WITH
RESPECT TO ANY CONDITIONS, DEFECTS, DEFICIENCIES, DANGERS, FAULTS OR FAILURES,
OF ANY KIND, IN OR RELATING TO ANY PRODUCTS SUPPLIED BY DISTRIBUTOR EXCEPT,
SUBJECT TO THE LIMITATIONS STATED IN THIS AGREEMENT, TO THE EXTENT OF
DISTRIBUTOR’S ACTUAL NEGLIGENCE IN ITS HANDLING OF SUCH PRODUCTS.  



 29
 








EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT,
DISTRIBUTOR MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.


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


9.                                      Insurance


9.01                        DISTRIBUTOR’s
Insurance — During the term of this Agreement and for a period of one
(1) year thereafter, DISTRIBUTOR shall purchase and maintain, at its sole cost
and expense, the following insurance coverages:


(a)                                  commercial
general liability insurance and products liability coverage with broad form
vendor endorsement, which specifically insures all liabilities of DISTRIBUTOR
to COMPANY and Operator under this Agreement, to the extent afforded by normal
ISO policy forms and definitions, with all such insurance coverages providing
for combined single limit bodily injury/property damage liability of not less
than [CONFIDENTIAL](101); and


(b)                                 commercial
automobile liability insurance coverage providing for combined single limit
bodily injury/property damage liability of not less than [CONFIDENTIAL](102)).


All such insurance shall be provided by insurance
companies which are licensed and authorized to do business in the United States
of America, shall be occurrence based policies and which insurance companies
are reasonably satisfactory to COMPANY. 
DISTRIBUTOR agrees to deliver to COMPANY, on or prior to the Effective
Date, 






(101)         Confidential treatment has been requested for
the redacted portion.  The confidential,
redacted portions have been filed separately with the SEC.


(102)         Confidential treatment has been requested for
the redacted portion.  The confidential,
redacted portions have been filed separately with the SEC.



 30
 








certificates of insurance evidencing the existence of
all the above insurance coverages and naming COMPANY as an additional insured under
such policies.  The certificates shall
contain an agreement by the insurance carrier to notify COMPANY, in writing, at
least thirty (30) days prior to the date of any cancellation or change in such
insurance coverage.


9.02                        COMPANY’s
Insurance — During the term of this Agreement, and for a period of one
(1) year thereafter, COMPANY shall purchase and maintain, at its sole cost and
expense, commercial general liability insurance and products liability
coverage, and a contractual liability endorsement which specifically insures
all liabilities of COMPANY to DISTRIBUTOR under this Agreement, to the extent
afforded by normal ISO policy forms and definitions, with all such insurance
coverages providing for combined single limit bodily injury/property damage liability
of not less than [CONFIDENTIAL](103). All such
insurance shall be provided by insurance companies which are licensed and
authorized to do business in the United States of America, and which are
reasonably satisfactory to DISTRIBUTOR. COMPANY agrees to deliver to
DISTRIBUTOR, on or prior to the Effective Date, a certificate of insurance
evidencing the existence of all the above insurance coverages and naming
DISTRIBUTOR as an additional insured under such policies. The certificate shall
contain an agreement by the insurance carrier to notify DISTRIBUTOR, in
writing, at least thirty (30) days prior to the date of any change in such
insurance coverage.


10.          Representations and Warranties


10.01                 Representations
and Warranties of DISTRIBUTOR — DISTRIBUTOR hereby represents and
warrants to COMPANY as follows:


(a)                                  DISTRIBUTOR
is a corporation duly organized, validly existing and in good standing under
the laws of the State of California. DISTRIBUTOR has the requisite power to own
properties, to carry on its business as now being conducted by it, and to
execute, deliver and perform this Agreement.


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






(103)         Confidential treatment has been requested for
the redacted portion.  The confidential,
redacted portions have been filed separately with the SEC.



 31
 








(c)                                  The
execution, delivery and performance by DISTRIBUTOR of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
violate, conflict with, result in a breach or termination of, or constitute a
default 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 of incorporation,
as amended to date, of DISTRIBUTOR, (ii) any judgment, order, decree, ruling or
injunction applicable to DISTRIBUTOR, or (iii) any contract or agreement
between DISTRIBUTOR and any third party.


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


10.02      Representations and Warranties of COMPANY — COMPANY
hereby represents and warrants to DISTRIBUTOR as follows:


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


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


(c)                                  The
execution, delivery and performance by COMPANY of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
violate, conflict with, result in a breach or termination of, or constitute a
default 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 of
formation or operating agreement, as amended to date, of COMPANY, (ii) any
judgment, order, decree, ruling or injunction applicable to COMPANY, or (iii)
any contract or agreement between COMPANY and any third party.



 32
 








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


(e)                                  The
details of the purchasing arrangement, including the purchase and resale of
products 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 one
party to the other shall be in writing and delivered by overnight messenger
service, or delivered by telecopy or facsimile transmission, or sent by United
States registered or certified mail, postage prepaid, addressed as follows:


If to DISTRIBUTOR:        Southwest Traders, Inc.


Attention:  Ken
Smith

President

FAX:  (951) 693-1596


 


If to
COMPANY:      TCBY Systems, LLC


2855 E. Cottonwood Parkway, Suite 400

Salt Lake City, UT 84121-7050

Attention: Purchasing Director

FAX:  (801) 736-5941


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


12.                               Force Majeure — Notwithstanding any
term or provision contained in this Agreement to the contrary, it is understood
and agreed that DISTRIBUTOR will not be responsible or liable in any manner
whatsoever for the failure by it to sell and/or deliver the Products or
otherwise perform any obligation under this Agreement or otherwise, and COMPANY
will not be responsible or liable in any manner whatsoever for the failure by
it to purchase and accept, the Products, if such failure is due to fire,
strike, accident, explosion, riot, rebellion, terrorist action or threat,
flood, embargo, war, interruption or delay in transportation, epidemic,
pandemic, shortage of raw materials, acts of God or government (including, but
not limited to, laws, regulations and restrictions of all kinds), or any other
causes or contingencies of any character (other than lack of funds) beyond the
reasonable control of DISTRIBUTOR or COMPANY. 




 33
 








                                                Nothing
expressed or implied in this Section 12 shall excuse the non-performance or
delay in performance of any payment obligation of the COMPANY or DISTRIBUTOR,
any affiliate or any Operator.


13.                               Relationship of Parties — This
Agreement is not intended and shall not be construed to constitute either party
as the joint venturer, partner, agent or legal representative of the
other.  Neither party has any authority,
whether express, implied, or apparent, to assume or create any obligations on
behalf of the other.


14.                               Entire
Agreement; Modifications — This Agreement and the Schedules attached
hereto and made a part hereof, constitute the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersede all prior proposals, negotiations, communications, representations,
written or oral agreements and understandings between the parties with respect
to the subject matter hereof. No modification of any term or provision of this
Agreement shall be enforceable unless embodied in a writing executed by all
parties to this Agreement.


15.                               Severability
— The provisions of this Agreement are severable, and the invalidity or
unenforceability of any term or provision hereof shall not operate to
invalidate or render unenforceable the remaining terms and provisions which are
valid and enforceable.


16.                               Waivers
— The waiver by either party hereto of any of its rights or breaches of the
other party under this Agreement in a particular instance shall not be
construed as a waiver of the same or different rights or breaches in subsequent
instances. All remedies, rights, undertakings and obligations, hereunder shall
be 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 of
the parties may assign this Agreement without the prior written consent of the
other, except that either party shall have the right to assign this Agreement
to a parent, subsidiary or affiliated COMPANY, or may assign this Agreement in
conjunction with the sale or transfer of all or substantially all of its stock
or assets by way of a sale of stock or assets, a merger or other business
reorganization, without the prior consent of the other party; provided,
however, that any such assignment shall not relieve the assigning party from
any liability or obligation under this Agreement that accrues prior to the
assignment and notice thereof to the other party and provided further, that in
the event of a transfer of all or substantially all of the stock or assets of a
party or merger or other business reorganization, the surviving entity or
transferee is at least as financially strong as the assigning or original
party.  The assigning party shall give
notice of such assignment to the other party. The provisions of this Agreement
will be binding upon and will inure to the benefit of the 



 34
 








                                                parties
and their respective successors and assigns. 
DISTRIBUTOR may assign its accounts receivables, and related contract
rights, in connection with its accounts receivable financing and
securitization.


18.                               No
Offer — The submission by DISTRIBUTOR to COMPANY of this Agreement
shall have no binding force or effect, shall not constitute an offer to sell
the Products, nor confer any right or impose any obligation upon either party
until 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 or
any other customer or supplier information, purchasing volumes and history,
pricing, purchasing specifications, and product market results (the
“Confidential Information”), is and shall remain confidential and proprietary
information of the disclosing party, and valuable trade secrets owned solely by
the disclosing party. The recipient party of any Confidential Information shall
not disclose any such Confidential Information to any third person or entity
without the prior written consent of the disclosing party in every instance,
and shall not use any such Confidential Information, nor permit any such
Confidential Information to be used, for any reason other than to fulfill the
terms of this Agreement; provided, however, that either party and its
respective successors and assigns may (i) disclose any Confidential Information
to the extent compelled by law, regulation, rule, subpoena, or other process of
law and (ii) provide invoices, and any information relating to historical
payments or payments due or to become due from franchisees or Operators
hereunder to its auditors and legal counsel, and to present and potential
financing sources and rating agencies 
and their respective auditors and legal counsel). The parties’
obligations under this Section 19 shall not apply to any of the Confidential
Information delivered or made available to them by the other party which the
recipient of the Confidential Information can reasonably establish (a) was
known to the recipient party at the time the Confidential Information was
disclosed or made available to the recipient party; (b) was known to the public
at the time the Confidential Information was disclosed or made available to the
recipient party; (c) becomes known to the public after the date the
Confidential Information was disclosed or made available to the recipient party
through no fault or breach of this Section 19 by the recipient party; (d) is
given to or made available to the recipient party by a third party who has a
lawful right to disclose the Confidential Information to the recipient party;
or, (e) is independently developed by the Recipient party without reference to
the Confidential Information.


20.                               Arbitration
— All actions, disputes, claims or controversy with the exception of seeking an
injunction, now existing or hereafter arising between DISTRIBUTOR and COMPANY,
including, but not limited to any action, dispute, claim or controversy arising
out 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, 



 35
 








                                                Utah,
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association and, to the maximum extent applicable, the Federal Arbitration
Act.  Arbitrations shall be conducted
before one arbitrator mutually agreeable to COMPANY and DISTRIBUTOR.  If the parties cannot agree on an arbitrator
within thirty (30) days after the request for an arbitration, then each
party will select an arbitrator and the two arbitrators will select a third who
shall act as the sole arbitrator of the dispute.  Judgment on any award rendered by an
arbitrator may be entered in any court having jurisdiction.  All fees of the arbitrator and other costs
and expenses of the arbitration shall be paid by DISTRIBUTOR and COMPANY
equally unless otherwise awarded by the arbitrator.  Disputes between DISTRIBUTOR and any Operator
other than COMPANY shall not be subject to arbitration under this section 20.


21.                               Governing Law  — This Agreement shall be
deemed executed in Salt Lake City, Utah and shall be governed by the construed
in accordance with the laws of the State of Utah as applicable therein.


22.                             Miscellaneous
— The section and paragraph headings contained in this Agreement are for
reference only and shall not be considered as substantial parts of this
Agreement. The use of the singular or plural from in this Agreement shall
include the other form and the use of the masculine, 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 taken
together, shall constitute but one agreement binding on all parties hereto,
notwithstanding that all of the parties are not signatory to an original or
same counterpart.  The parties may
execute and deliver this Agreement by facsimile transmission.


[Remainder
of page intentionally blank.  Signature
page and Schedules follow.]



 36
 








IN WITNESS WHEREOF, each
of the parties hereto has caused this Agreement to be executed and delivered by
its duly authorized officers on the day and year first above written.


	
   

  	
  TCBY SYSTEMS,
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Michael Ward

  	
   

  
	
   

  	
  Its:

  	
  Executive Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOUTHWEST
  TRADERS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ken Smith

  	
   

  
	
   

  	
  Its:

  	
  President

  	
   

  



 



 37
 








Schedule 1


Product
Categories


Frozen Yogurts — Soft Serve and Hand Dipped


Hand Dipped Ice Creams (to be replaced with Hand Dipped Yogurts)


Yogurt Cakes and Pies


Confectionary Fruits, Nuts, Toppings and Cones


Miscellaneous Dessert Items


Snacks


Beverages including Fountain Syrup


Packaging & Paper Items


Cleaning Supplies


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



 38
 








Schedule 2


Maps of Territory



 39
 








Schedule 3


Store Listings


Schedule 4


Product Listings


[Confidential
Treatment has been requested for these Schedules.  The confidential redacted portions 

have been filed separately with the SEC]



 40
 








Schedule 5


Temecula Inbound
Quantity Matrix


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have 

been filed separately with the SEC]



 41
 








Schedule 6


[Confidential
Treatment has been requested for this Schedule. 
The confidential redacted portions have 

been filed separately with the SEC]



 42