Exhibit 10.68
EXTENSION TO DISTRIBUTION
AGREEMENT
This Extension to Distribution
Agreement (the “ Extension Agreement ”) is made
and entered into effective as of this 2 nd day of
February, 2006, by and between the parties to that certain Food and
Packaging Distribution Agreement dated November 14, 2002 (the
“ Distribution Agreement ”) between Blue Line
Distributing, a division of Little Caesar Enterprises, Inc.
(“ BLD ”) and TCBY Systems, LLC (“
TCBY ”). BLD and TCBY are sometimes collectively
referred to in this Extension Agreement as the
“parties.” Capitalized terms used but not
otherwise defined herein shall have the same meaning given to them
in the Distribution Agreement.
A.
On August 5, 2005, TCBY
received a notice from BLD (the “ Termination Notice
”), exercising BLD’s option to terminate the
Distribution Agreement, effective 180 days from the date of such
notice (the “ Termination Effective Date
”).
B.
The parties thereafter entered into
negotiations about the possibility of amending the Distribution
Agreement and/or extending the Termination Effective Date, and the
parties now wish to enter into this Extension Agreement to document
their understanding.
NOW, THEREFORE, in consideration of
the covenants set forth herein, the parties agree as
follows:
1.
Extension of Termination
Effective Date; Rescission of Price Increase
. Subject to each of the
covenants and conditions set forth herein, BLD will continue to
perform under the Distribution Agreement, notwithstanding the
Termination Notice, until the earlier to occur of (a) 30 days
following the date when TCBY notifies BLD in writing that it has
obtained a new distributor, and (b) 30 days following the
date, if any, when BLD notifies TCBY in writing that BLD reasonably
determines that TCBY is no longer making best efforts and progress
to obtain a new distributor (the “ Final Termination
Date ”). The period from the date of this Extension
Agreement to the Final Termination Date is referred to herein as
the “ Extension Period ”. During the Extension
Period, the Distribution Agreement will remain in full force and
effect as modified by this Extension Agreement. BLD hereby rescinds
its notice of price increase dated September 23,
2005.
2.
TCBY Payments to BLD;
Guarantees .
(a)
TCBY Account Balance
. Upon full execution of this
Extension Agreement, TCBY shall pay to BLD the amount of $98,983,
in full payment of BLD’s bad debt balance.
(b)
Monthly Payment – Price
Increase . BLD
shall receive a monthly amount of $100,000 (the “ Monthly
Payment ”), payable as set forth below. For purposes of
this provision, the effective date of this Agreement
1
