EXHIBIT 10.07
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Second Amendment to Agreement and Plan of Merger is made and entered
into as of the 14th of October, 1998, by and among AFC Enterprises, Inc., a
Minnesota corporation (the "Buyer"), AFC Franchise Acquisition Corp., a Delaware
corporation (the "Acquisition Company"), and Cinnabon International, Inc., a
Delaware corporation (the "Company").
RECITALS
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A. On August 13, 1998, the Buyer, the Acquisition Company and the Company
entered into an Agreement and Plan of Merger (as amended by First Amendment
thereto dated September 25, 1998, the "Merger Agreement") setting forth the
terms and conditions of a merger of the Acquisition Company with and into the
Company (capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement).
B. Section 2.1 of the Merger Agreement provides that the Buyer shall make
available the sum of $67,000,000 to be used to repay the Obligations (the "Buyer
Contribution").
C. The parties desire to amend the Agreement to make certain adjustments
to the Buyer Contribution.
AGREEMENT
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In consideration for the mutual covenants and conditions hereinafter set
forth and other good and valuable consideration, the receipt, sufficiency and
adequacy of which are hereby acknowledged, the parties hereto hereby mutually
agree as follows:
1. Section 2.1 of the Merger Agreement is hereby amended by reducing the
amount of the Buyer Contribution from $67,000,000 to $64,000,000.
2. Section 2.14 of the Merger Agreement is hereby amended by adding to the
end thereof a new subsection (c) as follows:
(c) Holdback. Notwithstanding anything herein to the contrary, the sum of
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Five Million Dollars ($5,000,000) (the "Holdback") shall be withheld from the
Buyer Contribution and not applied to the Obligations identified as "Holdback
Obligations" on Schedule 2.8 to the Merger Agreement, as amended. Buyer shall
cause the Subsidiary to use its commercially reasonable best efforts to enter
into agreements with, obtain consents and waivers from, and make payment to The
Taubman Company, acting on behalf of the landlord for each of the locations
described on Exhibit 2.14(c) hereto, in form and substance acceptable to Buyer,
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containing the terms and conditions set forth on
Exhibit 2.14(c) (collectively the "Taubman Agreements"), by 5:00 p.m. Eastern
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Time on October 16, 1998 (the "Taubman Deadline"). In the event the Taubman
Agreements have been properly executed and delivered by all parties thereto by
the Taubman Deadline, then on Monday, October 19, 1998, Buyer shall cause the
Holdback to be distributed to the holders of the Holdback Obligations as set
forth in Schedule 2.8, as amended. In the event the Taubman Agreements have not
been properly executed and delivered by the Taubman Deadline, the Holdback shall
be retained by Buyer and the Buyer Contribution shall thereby be reduced to
Fifty-Nine Million Dollars ($59,000,000).
3. Except as amended hereby, the Merger Agreement is ratified, approved
and confirmed as originally executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
Attest: CINNABON INTERNATIONAL, INC.
By:
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Name:
Title:
Attest: AFC ENTERPRISES, INC.
By:
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Name:
Title:
Attest: AFC FRANCHISE ACQUISITION CORP.
By:
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Name:
Title:
