Exhibit 10.39


 


AMENDMENT NUMBER FOUR 

TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


 


This AMENDMENT NUMBER FOUR TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”)
is entered into as of October 26, 2007, by the lenders identified on the
signature pages hereof (the “Lenders”), WELLS FARGO FOOTHILL, INC. (“WFF”),
a California corporation (in such capacity, “Agent”), as the arranger
and administrative agent for the Lenders, VI
ACQUISITION CORP., a Delaware corporation (“Parent”), and VICORP RESTAURANTS, INC., a Colorado
corporation (“Borrower”), with reference to the following:


 


WHEREAS, Parent, Borrower, Agent and the Lenders are
parties to that certain Amended and Restated Loan and Security Agreement, dated
as of April 14, 2004 (as amended, restated, supplemented, or otherwise modified
from time to time, the “Loan Agreement”);


 


WHEREAS, prior to execution of this Amendment, WFF
has acquired from GE Capital Franchise Finance Corporation (“GE”), the
outstanding Obligations owing to GE;


 


WHEREAS, concurrently herewith, WFF is assigning to
Ableco Finance LLC (“Ableco”) a portion of (a) the outstanding Advances
in the principal amount of $7,162,161.34, (b) the Risk Participation Liability with respect to outstanding
Letters of Credit in the principal amount of $2,786,055.60, (c) the Revolver
Commitment in the amount of $14,000,000 and (d) the outstanding Term Loan in
the principal amount of $6,000,000; and


 


WHEREAS, in
connection with the foregoing, Borrower, WFF and Ableco have agreed to amend the Loan Agreement to make
certain modifications, subject to the terms and conditions set forth herein;


 


NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:


 


1.             Defined Terms. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Loan Agreement, as amended hereby.


 


2.             Amendments to Loan Agreement.


 


(a)           Section 1.1 of the
Loan Agreement is hereby amended by inserting the following defined terms in
their appropriate alphabetical order:


 


““Ableco” means
Ableco Finance LLC, a Delaware limited liability company.”


 


““Fourth Amendment”
means that certain Amendment Number Four to Amended and Restated Loan and
Security Agreement, dated as of October 26, 2007, by and among Parent,
Borrower, Agent, and the Lenders.”


 


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““Fourth Amendment
Effective Date” means the date that all of the conditions set forth in Section
3 of the Fourth Amendment shall be satisfied (or waived by Agent in its
sole discretion).”


 


““Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.”


 


““New Lending Office”
has the meaning set forth in Section 16.11(d).”


 


““Other Taxes” has
the meaning set forth in Section 16.11(b).”


 


““Participant Register”
has the meaning set forth in Section 14.1(k).”


 


““Rating Agencies”
has the meaning set forth in Section 2.15.”


 


““Register” has the
meaning set forth in Section 14.1(i).”


 


““Registered Loan”
has the meaning set forth in Section 14.1(i).”


 


““Registered Note”
has the meaning set forth in Section 14.1(j).”


 


““Related Fund” means
a fund, money market account, investment account or other account managed by a
Lender or an Affiliate of such Lender or its investment manager.”


 


““Related Party Register”
has the meaning set forth in Section 14.1(i).


 


““Remodel Capital Expenditures” means the
Capital Expenditures in connection with revenue enhancing remodeling/refresh
projects in an amount not to exceed $350,000 for any Restaurant.


 


““Remodel Reserve” means a reserve in an amount
equal to the amount of Net Cash Proceeds received by Borrower or its
Subsidiaries in connection with the disposition permitted by clause (k)(i) of
the definition of Permitted Dispositions; provided  that, so long
as no Event of Default has occurred and is continuing, the amount of the
Remodel Reserve shall be reduced (but not below zero), automatically, without
duplication, on a dollar by dollar basis in connection with a Borrowing request
pursuant to Section 2.3(a) that is accompanied by a certificate from the
Borrower stating that Borrower is using the proceeds of such Borrowing to make
Remodel Capital Expenditures or for other general corporate purposes of the
Borrower, by the amount of such Borrowing; provided  further  that,
(x) the amount of such Borrowing shall not exceed the amount of such Net Cash
Proceeds actually received and (y) in the event that any portion of the
proceeds of such Borrowing are not promptly used by Borrower to make Remodel
Capital Expenditures or for other general corporate purposes of the Borrower,
the Remodel Reserve shall be increased by the amount of such Borrowing that has
not been so applied.”


 


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““S&P”
means Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc. and any successor thereto.


 


““Securitization” has
the meaning set forth in Section 2.15.”


 


““Securitization
Liabilities” has the meaning set forth in Section 2.15.”


 


““Securitization Parties”
has the meaning set forth in Section 2.15.”


 


““Tax Party” has the
meaning set forth in Section 5.26.”


 


(b)           Section 1.1 of the
Loan Agreement is hereby amended by amending and restating the following
definitions in their entirety as follows:


 


““Adjusted EBITDA”
means, as of any date of determination, the EBITDA of Parent and its
Subsidiaries adjusted by adding back to EBITDA for the indicated period:


 


(a)(i) Management Fees paid
in such period (to the extent not added back in a prior period), all as
determined in accordance with GAAP, (ii) cash severance payments and charges
incurred in connection with redemption or repurchase of options or shares of
former employees, (iii) transaction costs incurred and paid in such period (to
the extent expensed) for acquisitions permitted hereunder, and (iv) non-cash
charges related to (1) asset impairment, including impairment of intangible
assets, (2) compensation and other expense in connection with the granting,
vesting or exercise of stock options or warrants, (3) the difference between rental
expenses that have been expensed for such period and rental expenses that have
been paid in cash for such period, (4) disposal of assets and (5) other
non-cash charges subject to Required Lenders’ approval,


 


(b) the amount of fees accrued
or paid to Hilco Real Estate LLC for lease terminations and restructurings, to
the extent deducted in the calculation of EBITDA,


 


(c) the amount of
termination or restructuring fees accrued or paid to landlords for lease
terminations or restructurings to the extent deducted in the calculation of
EBITDA, in an aggregate amount not to exceed $3,000,000 for such period,


 


(d) to the extent deducted
in the calculation of EBITDA and not covered by insurance, all settlement fees
and costs, attorneys and other professional fees and costs, and any other costs
in connection with litigation against the Borrower by Michelle Coleman, Barbara
Hodges, and Janice Faso, in an aggregate amount not to exceed $3,000,000 during
the period from the Closing Date through and including the Maturity Date, and


 


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(e) pro forma cash rent
savings on any final and documented lease restructurings;


 


and by subtracting from
EBITDA for the indicated period any cash rental payments associated with leases
that are currently treated as Deeming Financing Liabilities that either were
treated as operating leases prior to the Restatement or would be treated as
operating leases in the absence of the Restatement.


 


 ““Borrowing Base” means, as of any date
of determination, the result of:


 


(a) the result of


 


(y) 2.25 times Parent’s Adjusted EBITDA for the
most recently completed 13 Fiscal Month period ending as of the date of
determination, minus


 


(z) the outstanding
principal balance of the Term Loan, less


 


(b)           the sum of the aggregate amount of reserves, if any, established by
Agent under Section 2.1(b).”


 


(c)           Section 1.1 of the
Loan Agreement is hereby amended by deleting in its entirety the definition of “Applicable
Prepayment Premium” and replacing it with the following:


 


““Applicable Prepayment Premium” means, as of
any date of determination, an amount equal to (a) during the period from and
after the third anniversary of the Closing Date up to (but not including) the
date that is the fourth anniversary of the Closing Date, 3% times the Maximum
Revolver Amount, (b) during the period from and including the date that is the fourth
anniversary of the Closing Date up to (but not including) the date that is the fifth
anniversary of the Closing Date, 2% times the Maximum Revolver Amount, (c)
during the period from and including the date that is the fifth anniversary of
the Closing Date up to the Maturity Date, 1% times the Maximum Revolver Amount.”


 


(d)           Section 1.1 of the
Loan Agreement is hereby amended by deleting in their entirety the definitions
of “Base Rate Margin”, “Letter of Credit Fee”, “LIBOR Rate Margin”, “Originating
Lender” and “Participant” and replacing each with the following in their
appropriate alphabetical order:


 


““Base Rate Margin”
means 1.90 percentage points.”


 


““Letter of Credit Fee” means 3.90 percentage
points.”


 


““LIBOR Rate Margin” means 3.90 percentage
points.”


 


““Originating
Lender” has the meaning set
forth in Section 14.1(f).”


 


““Participant” has
the meaning set forth in Section 14.1(f).”


 


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(e)           Section 1.1 of the Loan Agreement is hereby
amended by deleting clause (c) of the definition of “Growth Capital
Expenditures” and inserting in lieu thereof:


 


“(c)         in
an amount not to exceed $350,000 for any Restaurant, the amount of Remodel
Capital Expenditures.”


 


(f)            Section
1.1  of the Loan Agreement is hereby amended by deleting
clause (h) of the definition of “Lender Group Expenses” and inserting
in lieu thereof:


 


“(h) Agent’s and each Lender’s reasonable costs and
expenses (including attorneys fees) incurred in advising, structuring,
drafting, reviewing, administering, syndicating, or amending the Loan
Documents, and”.


 


(g)           Section 1.1 of the
Loan Agreement is hereby amended by making the following modifications to the
definition of “Permitted Disposition”:


 


(1)
inserting at the beginning of each of clause (f), (g) and (h), the phrase “subject
to the last sentence of this definition, “; and


 


(2) adding the following new sentence at the end of such
definition:


 


“Notwithstanding clauses
(f), (g) and (h) above, a sale or other disposition of a Restaurant shall
not be deemed a Permitted Disposition to the extent that, after giving effect
to such sale or other disposition, the aggregate number of Restaurants sold or
otherwise disposed of in any fiscal year exceeds 10.0% of the aggregate number
of Restaurants owned or leased and operated by Borrower or one of its
Subsidiaries at the beginning of such fiscal year.”


 


(h)           Section 1.1 of the
Loan Agreement is hereby amended by deleting the definition of “Permitted
Distribution” in its entirety.


 


(i)            Section 1.1 of the
Loan Agreement is hereby amended by deleting in its entirety the definition of “Permitted
Unprofitable Restaurant Dispositions” and replacing it with the following:


 


““Permitted Unprofitable Restaurant Dispositions”
means the sale or other dispositions of (a) an unlimited number of Unprofitable
Restaurants so long as the sale or other disposition occurs contemporaneously
with the expiration of the lease related to such Restaurant in any consecutive
12 month period, and (b) not more than 30 Unprofitable Restaurants in the
aggregate (if the sale or other disposition occurs any time prior to the
expiration of the lease related to such Restaurant) during the period beginning
on October 26, 2007 and ending on the Maturity Date; provided that, with
respect to this clause (b), after giving effect to any restructuring
charges associated with the sale or other disposition of a Restaurant, the
Borrower has Excess Availability of not less than $3,000,000.”


 


(j)            Section 1.1 of the
Loan Agreement is hereby amended by deleting in its entirety the definition of “Required
Lenders” and replacing it with the following:


 


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““Required Lenders” means, at any time, Lenders
whose aggregate Pro Rata Shares (calculated under clause (d) of the
definition of Pro Rata Shares) equal or exceed 50.1%; provided, that,
(a) so long as WFF or its Affiliates or Related Funds collectively hold not
less than 44% of the sum of (i) the Revolver Commitment (or if the Revolver
Commitment has been terminated or reduced to zero, the then extant Revolver
Usage) plus (ii) the outstanding principal amount of the Term Loan, “Required
Lenders” shall include WFF and (b) so long as Ableco or its Affiliates or
Related Funds collectively hold not less than 35% of the sum of (i) the
Revolver Commitment (or if the Revolver Commitment has been terminated or
reduced to zero, the then extant Revolver Usage) plus (ii) the outstanding
principal amount of the Term Loan, “Required Lenders” shall include Ableco.”


 


(k)           Sections 2.1(a) and (b) of the
Loan Agreement are hereby deleted in their entirety and the following is
substituted in lieu thereof:


 


“(a)         Subject
to the terms and conditions of this Agreement, and during the term of this
Agreement, each Lender with a Revolver Commitment agrees (severally, not
jointly or jointly and severally) to make advances (“Advances”) to Borrower in
an amount at any one time outstanding not to exceed such Lender’s Pro Rata
Share of an amount equal to the lesser of (i) the Maximum Revolver Amount less
the sum of (y) Letter of Credit Usage plus (z) an amount equal to the amount of
reserves established pursuant to Section 2.1(b), or (ii) the Borrowing
Base less the Letter of Credit Usage.


 


(b)           Anything
to the contrary in this Section 2.1 notwithstanding, (i) Agent shall establish
the Remodel Reserve to the extent set forth in the definition thereof and (ii)
Agent shall have the right to establish other reserves in such amounts, and
with respect to such matters, as Agent in its Permitted Discretion shall deem
necessary or appropriate, including against the Borrowing Base, including,
without limitation, (A) reserves with respect to sums that Borrower is required
to pay (such as taxes, assessments, insurance premiums, or, in the case of leased
assets, rents or other amounts payable under such leases) and has failed to pay
under any Section of this Agreement or any other Loan Document, (B) reserves
with respect to amounts owing by Borrower or its Subsidiaries to any Person to
the extent secured by a Lien on, or trust over, any of the Collateral (other
than any Permitted Lien), which Lien or trust, in the Permitted Discretion of
Agent likely would have a priority superior to the Agent’s Liens (such as Liens
or trusts in favor of landlords, warehousemen, carriers, mechanics,
materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes
where given priority under applicable law) in and to such item of the
Collateral, and (C) Bank Product Reserves; provided, however, that Agent
agrees not to establish a reserve with respect to Bank Products of the type
specified in clauses (e) and (f) of the definition of Bank Product.”


 


(l)            Section 2.4(b)(i) of the
Loan Agreement is hereby amended by replacing clauses (M) and (N) appearing
therein with the following:


 


“(M)       thirteenth, if an
Event of Default has occurred and is continuing, to pay any other Obligations (other
than any Bank Product Obligations) until paid in full;


 


(N)          fourteenth, if an
Event of Default has occurred and is continuing, to pay any other Obligations
(including the provision of amounts to Agent, to be held by Agent,


 


6

















 


for the benefit of the Bank Product Providers, as cash
collateral in an amount up to the amount determined by Agent in its Permitted
Discretion as the amount necessary to secure Borrower’s and its Subsidiaries’
obligations in respect of Bank Products) until paid in full; and


 


(O)          fifteenth, to
Borrower (to be wired to the Designated Account) or such other Person entitled
thereto under applicable law.”


 


(m)          Section 2.4(c)(i) of the
Loan Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:


 


“(i)          Immediately upon any voluntary or
involuntary sale or disposition by Parent or any of its Subsidiaries of
property or assets (other than sales or dispositions which qualify as Permitted
Dispositions under clauses (a), (b), (c), (d), (e), (f), (g), (h), (k)(i) (to
the extent provided in the last sentence of this Section 2.4(c)(i)), (l),
(m), (n) and (p) of the definition of Permitted Dispositions), Borrower shall
prepay the outstanding Obligations in accordance with clause (d) below in
an amount equal to (A) in the case of a Permitted Disposition of owned real
property, 100% of the Net Cash Proceeds received by such Person in connection
with such sales or dispositions and (B) in the case of a Permitted Disposition
of any other property or assets, 100% of the Net Cash Proceeds received by such
Person in connection with such sales or dispositions to the extent that the
aggregate amount of Net Cash Proceeds received by Parent and its Subsidiaries
(and not paid to Agent as a prepayment of the Obligations) for all such sales
or dispositions of such other property and assets shall exceed $250,000 in any
fiscal year. Nothing contained in this subclause (i) shall permit Parent
or any of its Subsidiaries to sell or otherwise dispose of any property or
assets other than in accordance with Section 7.4. In the case of a
Permitted Disposition under clause (k)(i) of the definition of such term, (i)
100% of the Net Cash Proceeds shall be applied to repay the outstanding
principal amount of Advances (but without a permanent reduction in the Maximum
Revolver Amount), (ii) the Remodel Reserve shall be created in accordance with
the definition of such term and (iii) thereafter, the Remodel Reserve may be
reduced from time to time in accordance with the first proviso to the
definition of such term (but subject to the second proviso to the definition of
such term). “


 


(n)           Section 2.4(c)(iii) of the
Loan Agreement is deleted in its entirety and the following is substituted in
lieu thereof:


 


“(iii)        Immediately upon the issuance or
incurrence by Parent or any of its Subsidiaries of any Indebtedness (other than
Indebtedness referred to in clauses (a) through (l), inclusive, of
Section 7.1), or the sale or issuance by Parent or any of its Subsidiaries
of any shares of its Stock (other than (A) the amount of equity contributed to
Parent and then to Borrower by Parent to the extent used to complete a
Permitted Equity Acquisition, or (B) the sale or issuance by Parent of shares
of its Stock to its employees or directors having a value, at the time of
issuance, of less than $500,000), Borrower shall prepay the outstanding
principal of the Obligations in accordance with clause (d) in an amount
equal to 100% of the Net Cash Proceeds received by Parent or its Subsidiaries
in connection with such sale, issuance, or incurrence. The provisions of this subsection (iii)
shall not be deemed to be implied consent to any such sale, issuance, or
incurrence otherwise prohibited by the terms and conditions of this Agreement.”


 


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(o)           Section 2.6 of the
Loan Agreement is hereby amended by amending and restating subsection (c)
thereof in its entirety as follows:


 


“(c)         Default Rate. Upon the occurrence and during the
continuation of an Event of Default (and at the election of Agent or the
Required Lenders),


 


(i)            all Obligations
(except for undrawn Letters of Credit and except for Bank Product Obligations)
that have been charged to the Loan Account pursuant to the terms hereof shall
bear interest on the Daily Balance thereof at a per annum rate equal to 3
percentage points above the per annum rate otherwise applicable hereunder, and


 


(ii)           the Letter of Credit
Fee provided for above shall be increased to 3 percentage points above the per
annum rate otherwise applicable hereunder.”


 


(p)           Article 2 of the
Loan Agreement is hereby amended by adding at the end thereof the following as
new Section 2.15:


 


“2.15       Securitization. Parent and Borrower hereby
acknowledge that each Lender and each of its Affiliates and Related Funds may
sell or securitize the Obligations (a “Securitization”) through the
pledge of the Obligations as collateral security for loans to such Lender or
its Affiliates or Related Funds or through the sale of the Obligations or the
issuance of direct or indirect interests in the Obligations, which loans to such
Lender or its Affiliates or Related Funds or direct or indirect interests will
be rated by Moody’s, S&P or one or more other rating agencies (the “Rating
Agencies”). Parent and Borrower agree to cooperate with such Lenders and
their Affiliates and Related Funds to effect the Securitization including,
without limitation, by (a) executing such additional documents, as reasonably
requested by such Lenders in connection with the Securitization, provided that
(i) any such additional documentation does not impose additional costs on
Borrower (other than costs of a de minimis nature), and (ii) any such
additional documentation does not adversely affect the rights, or increase the
obligations (other than increases of a de minimis nature), of Borrower under
the Loan Documents or change or affect in a manner adverse to Borrower the
financial terms of the Term Loan or any Advance, (b) providing such information
as may be reasonably requested by such Lenders in connection with the rating of
the Obligations or the Securitization, and (c) providing in connection with any
rating of the Obligations or the Securitization a certificate (i) agreeing to
indemnify such Lenders and any of their Affiliates and Related Funds, any of
the Rating Agencies, or any party providing credit support or otherwise
participating in the Securitization (collectively, the “Securitization
Parties”) for any losses, claims, damages or liabilities (the “Securitization
Liabilities”) to which such Lenders or any of their Affiliates or Related
Funds, or such Securitization Parties, may become subject insofar as the
Securitization Liabilities arise out of or are based upon a breach of the
representation and warranty contained in Section 5.19, and (ii) agreeing to
reimburse such Lenders and their Affiliates and Related Funds for any
reasonable legal or other expenses reasonably incurred by such Persons in
connection with defending the Securitization Liabilities.”


 


(q)           Section 3.4 of the
Loan Agreement is hereby amended by deleting the date “April 14, 2009”
appearing therein and inserting in lieu thereof the date “April 14, 2010”.


 


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(r)            Section 3.6 of the
Loan Agreement is hereby amended by deleting the last sentence thereof in its
entirety and substituting the following therefore:


 


“The foregoing to the
contrary notwithstanding, in the event that Borrower repays the Obligations in
full and terminates this Agreement pursuant to the first sentence of this Section
3.6 and if (a) such repayment occurs with the proceeds of a refinancing
provided by Wells Fargo or WFF or (b) such repayment occurs after the third
anniversary of the Closing Date and occurs with the proceeds of (i) Parent’s or
Borrower’s consummation of an underwritten public equity offering, or (ii) the
sale (by merger or otherwise) of all or substantially all of the Stock of
Borrower or all or substantially all of Borrower’s and its Subsidiaries’ assets
(other than in connection with a bankruptcy proceeding), in one or a series of
related transactions, then the Applicable Prepayment Premium shall be zero ($0).”


 


(s)           Article 5 of the
Loan Agreement is hereby amended by adding at the end thereof the following as
new Section 5.26 as follows:


 


“5.26       Taxes. Parent,
Borrower, and each Person which has tax liabilities for which Parent and
Borrower are liable (each, a “Tax Party”) have filed, or caused to be
filed, and will continue to file in a timely manner all federal, state and
other material tax returns and reports required to be filed, and have paid, and
will continue to pay, all federal, state and other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable. All information in such
tax returns, reports and declarations is complete and accurate in all material
respects. Each Tax Party has paid or caused to be paid all taxes due and
payable or claimed due and payable in any assessment received by it, and has
collected, deposited and remitted in accordance with all applicable laws, all
sales, use and similar taxes applicable to the conduct of its business, except,
in each case, to the extent that the validity of such assessment or tax is the
subject of a Permitted Protest. There are no Liens on any properties or assets
of Borrower imposed or arising as a result of the delinquent payment or the
nonpayment of any tax, assessment, fee or other governmental charge.”


 


(t)            Section 7.1(i) of the Loan Agreement is hereby
amended by deleting the amount “$1,000,000” appearing therein and replacing it
with the amount “$1,500,000”.


 


(u)           Section 7.10 of the Loan Agreement is hereby
amended by deleting clause (a) of such Section and inserting in lieu thereof
the following:


 


“(a)         [Intentionally
Omitted].”


 


(v)           Section 7.18 of the
Loan Agreement is hereby amended by amending and restating subsection (a)(i)
thereof in its entirety as follows:


 


“(i)          Minimum Adjusted EBITDA.
Adjusted EBITDA, measured on each fiscal quarter-end basis, for the then most
recently completed thirteen Fiscal Month period, of at least $20,000,000.”


 


(w)          Section 7.18 of the
Loan Agreement is hereby amended by amending and restating subsection (a)(ii)
thereof in its entirety as follows:


 


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“(ii)         Fixed Charge Coverage Ratio.
A Fixed Charge Coverage
Ratio, measured on a fiscal quarter-end basis, of at least the required amount
set forth in the following table for the applicable period set forth opposite
thereto:


 


	
  Applicable
  Ratio

  	
   

  	
  Applicable
  Period

  
	
  1.05:1.0

  	
   

  	
  For the four fiscal quarter period ending July 12, 2007

  
	
  0.70:1.0

  	
   

  	
  For the four fiscal quarter period ending November 1, 2007 and for
  each of the four fiscal quarter periods ending thereafter”

  



 


(x)            Section 7.18(b) is hereby
amended by inserting the following new clause (ii), to read as follows:


 


“(ii)         Aggregate
Capital Expenditures. Aggregate Capital Expenditures (including
Remodel Capital Expenditures subject to the limitations specified in the
definition thereof) in any fiscal year in excess of $11,500,000; provided,
however, that Borrower is permitted to make additional Capital
Expenditures (including Remodel Capital Expenditures subject to the limitations
specified in the definition thereof) with the Net Cash Proceeds received by
Borrower or its Subsidiaries in connection with the disposition permitted by
clause (k)(i) of the definition of Permitted Dispositions during the period from
and after the Fourth Amendment Effective Date through the Maturity Date in an aggregate
amount not to exceed the result of (i) the amount of Net Cash Proceeds received
by Borrower or its Subsidiaries from the disposition permitted by clause (k)(i)
of the definition of Permitted Dispositions less (ii) the amount of such Net
Cash Proceeds that are used for general corporate purposes (other than Capital
Expenditures) of the Borrower.


 


(y)           Section 14.1 of the
Loan Agreement is hereby deleted in its entirety and the following is inserted
in lieu thereof:


 


“14.1       Assignments
and Participations.


 


(a)           Any Lender may assign
and delegate to one or more assignees (each an “Assignee”) that are Eligible
Transferees all, or any part of all, of the Obligations, the Commitments and
the other rights and obligations of such Lender hereunder and under the other
Loan Documents, in a minimum amount of $5,000,000 (provided that, (i) Agent may
waive such minimum amount in its sole discretion during the existence of an
Event of Default and (ii) such minimum amount shall not apply to (A) an
assignment to a member of an affiliated group of Lenders so long as the
aggregate amount of the assignment being made to such affiliated group of
Lenders meets or exceeds such minimum and (B) an assignment and delegation by
any Lender to a Lender, an Affiliate of a Lender, or to any Related Fund); provided,
however, that, except as otherwise provided in Section 14.1(c), Borrower
and Agent may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (x)


 


10

















 


written notice (pursuant to an Assignment and Acceptance) of such
assignment, together with payment instructions, addresses, and related
information with respect to the Assignee, have been given to Agent by such
Lender and the Assignee, (y) such Lender and its Assignee have delivered to
Agent an Assignment and Acceptance, and (z) the assigning Lender or Assignee
has paid to Agent for Agent’s separate account a processing fee in the amount
of $5,000 (provided that, (I) Agent may waive the payment of such fee in its
sole discretion and (II) such fee shall not be payable in connection with an
assignment and delegation by any Lender to a Lender, an Affiliate of a Lender,
or to any Related Fund). Anything contained herein to the contrary
notwithstanding, such minimum assignment amount shall not apply, the payment of
any fees shall not be required and the Assignee need not be an Eligible
Transferee if such assignment is in connection with any merger, consolidation,
sale, transfer, or other disposition of all or any substantial portion of the
business or loan portfolio of the assigning Lender.


 


(b)           Except as otherwise
provided in Section 14.1(c), from and after the date that Agent notifies the
assigning Lender that it has received an executed Assignment and Acceptance and
after recording thereof in the Register and, if applicable, payment of the
required processing fee and records such Assignment and Acceptance in the
Register, (i) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, shall have the rights and obligations of a
Lender under the Loan Documents, and (ii) the assigning Lender shall, to the
extent that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (except with respect to Section 11.3 hereof) and be released from
any future obligations under this Agreement (and in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement and the other Loan Documents, such
Lender shall cease to be a party hereto and thereto), and such assignment shall
effect a novation among Borrower, the assigning Lender, and the Assignee;
provided, however, that nothing contained herein shall release any assigning
Lender from such assigning Lender’s obligations that survive the termination of
this Agreement, including such assigning Lender’s obligations under Article
16 and Section 17.7 of this Agreement.


 


(c)           Notwithstanding
anything contained in this Section 14.1 to the contrary: (i) a Lender may
assign any or all of its rights hereunder to an Affiliate of such Lender or a
Related Fund without paying any fees required under Section 14.1(a) and (ii) a
Lender may assign any or all of its rights hereunder to an Affiliate of such
Lender or a Related Fund without (A) providing any notice thereof required
under Section 14.1(a) or (B) delivering an executed Assignment and Acceptance
to Agent as required under Section 14.1(a); provided, however, (x) Borrower and
Agent may continue to deal solely and directly with the assigning Lender until
an Assignment and Acceptance has been delivered to Agent, (y) the failure of
such assigning Lender to deliver an Assignment and Acceptance to Agent shall
not affect the legality, validity or binding effect of such assignment and (z)
an Assignment and Acceptance between an assigning Lender and its Affiliate or
Related Fund shall be effective as of the date specified in such Assignment and
Acceptance and recorded on the Related Party Register.


 


(d)           By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder and
the Assignee thereunder confirm to and agree with each other and the other
parties hereto as follows:  (1) other
than as provided in such Assignment and Acceptance,


 


11

















 


such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other Loan Document furnished pursuant hereto, (2) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of Borrower or the performance or observance by
Borrower of any of its obligations under this Agreement or any other Loan
Document furnished pursuant hereto, (3) such Assignee confirms that it has
received a copy of this Agreement, together with such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance, (4) such Assignee will,
independently and without reliance upon Agent, such assigning Lender or any
other Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement, (5) such Assignee appoints and authorizes Agent to
take such actions and to exercise such powers under this Agreement as are
delegated to Agent, by the terms hereof, together with such powers as are
reasonably incidental thereto, and (6) such Assignee agrees that it will
perform all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.


 


(e)           Immediately upon Agent’s
receipt of the processing fee payment (if required) and the fully executed
Assignment and Acceptance and the recordation of the Assignment and Acceptance
in the Register (or, pursuant to Section 14.1(c), in the case of an assignment
from a Lender to one or more of its Affiliates or Related Funds as to which the
assigning Lender has not delivered an Assignment and Acceptance to Agent, upon
such assigning Lender’s receipt of a fully executed Assignment and Acceptance
and recordation on the Related Party Register), this Agreement, subject to
Sections 14.1(c) and 14.1(i), shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment
allocated to each Assignee shall reduce such Commitments of the assigning
Lender pro tanto.


 


(f)            Any Lender may at any
time sell to one or more commercial banks, financial institutions, or other
Persons (a “Participant”) participating interests in all or any portion
of its Obligations, its Commitment, and the other rights and interests of that
Lender (the “Originating Lender”) hereunder and under the other Loan
Documents; provided, however, that (i) the Originating Lender shall remain a “Lender”
for all purposes of this Agreement and the other Loan Documents and the
Participant receiving the participating interest in the Obligations, the
Commitments, and the other rights and interests of the Originating Lender
hereunder shall not constitute a “Lender” hereunder or under the other Loan
Documents and the Originating Lender’s obligations under this Agreement shall
remain unchanged, (ii) the Originating Lender shall remain solely responsible
for the performance of such obligations, (iii) Borrower, Agent, and the Lenders
shall continue to deal solely and directly with the Originating Lender in
connection with the Originating Lender’s rights and obligations under this
Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant
any participating interest under which the Participant has the right to approve
any amendment to, or any consent or waiver with respect to, this Agreement or
any other Loan Document, except to the extent such amendment to, or consent or
waiver with respect to this Agreement or of any other Loan Document would (A)
extend the final maturity date of the Obligations hereunder in which such
Participant is


 


12

















 


participating, (B) reduce the interest rate applicable to the
Obligations hereunder in which such Participant is participating, (C) release
all or substantially all of the Collateral or guaranties (except to the extent
expressly provided herein or in any of the Loan Documents) supporting the Obligations
hereunder in which such Participant is participating, (D) postpone the payment
of, or reduce the amount of, the interest or fees payable to such Participant
through such Lender, or (E) change the amount or due dates of scheduled
principal repayments or prepayments or premiums, and (v) all amounts payable by
Borrower hereunder shall be determined as if such Lender had not sold such
participation, except that, if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement. The rights of any Participant only shall be derivative through the
Originating Lender with whom such Participant participates and no Participant
shall have any rights under this Agreement or the other Loan Documents or any
direct rights as to the other Lenders, Agent, Borrower, the Collections of
Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the
Obligations. Anything contained herein to the contrary notwithstanding,
Borrower agrees that each Participant shall be entitled to the benefits of Section
2.14 and Sections 16.11(a) and (c) with respect to its participation
in any portion of the Commitments and the Loans as if it was a Lender. No Participant
shall have the right to participate directly in the making of decisions by the
Lenders among themselves. The provisions of this Section 14.1(f) are
solely for the benefit of the Lender Group and neither Borrower nor any
Guarantor shall have any rights as third party beneficiaries of any such
provisions.


 


(g)           In connection with any
such assignment or participation or proposed assignment or participation, a
Lender may, subject to the provisions of Section 17.7,  disclose all documents and information which
it now or hereafter may have relating to Borrower and its Subsidiaries and
their respective businesses.


 


(h)           Any other provision in
this Agreement notwithstanding, any Lender may at any time create a security
interest in, or pledge, all or any portion of its rights under and interest in
this Agreement in favor of any Federal Reserve Bank in accordance with
Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §
203.24 or any other Person, in each case without the consent of any party
hereto, and such Person may enforce such pledge or security interest in any
manner permitted under applicable law; provided, that, no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee (or any
transferee thereof) for such Lender as a party hereto unless such pledgee or
secured party (or transferee) becomes a Lender hereunder in accordance with the
terms hereof.


 


(i)            The Agent shall,
acting solely for this purpose as a non-fiduciary agent of Borrower, maintain,
or cause to be maintained, a register (the “Register”) on which it shall
enter the names and addresses of the Lenders and the Commitments of, and the
principal amount of each Obligation hereunder owing to, each Lender from time
to time (and stated interest thereon) (the “Registered Loans”). Subject
to the last sentence of this Section 14.1(i), the entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and Borrower,
Agent and Lenders may treat each Person whose name is recorded in the Register
as a Lender 


 


13

















 


hereunder for all purposes of this Agreement. In the case of an
assignment to an Affiliate or a Related Fund pursuant to Section 14.1(c) as to
which an Assignment and Acceptance is not delivered to Agent, the assigning
Lender shall, acting solely for this purpose as a non-fiduciary agent of
Borrower, maintain a register (the “Related Party Register”) comparable
to the Register on behalf of Borrower. The Register and the Related Party
Register shall be available for inspection by Borrower and the Agent at any
reasonable time and from time to time upon reasonable notice.


 


(j)            Each Registered Loan
may not be evidenced by promissory notes other than Registered Notes (as
defined below). Upon the registration of each Obligation on the Register or the
Related Party Register, each Borrower agrees, at the request of any Lender
shown on the Register as the registered owner of such Registered Loan, to
execute and deliver to such Lender a promissory note, in conformity with the
terms of this Agreement, in registered form to evidence such Registered Loan,
in form and substance reasonably satisfactory to such Lender, and registered as
provided in Section 14.1(i) (a “Registered Note”), payable to
such Lender or registered assigns and otherwise duly completed. Unless in
connection with an assignment or sale in accordance with this Section
14.1(j), once recorded on the Register or the Related Party Register, each Obligation
may not be removed from the Register or the Related Party Register so long as
it or they remain outstanding, and a Registered Note may not be exchanged for a
promissory note that is not a Registered Note. A Registered Loan (and the
Registered Note, if any, evidencing the same) may be assigned or sold in whole
or in part only by registration of such assignment or sale on the Register or
the Related Party Register (and each Registered Note shall expressly so provide).
Any assignment or sale of all or part of such Registered Loan (and the
Registered Note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register or the Related Party
Register, together with the surrender of the Registered Note, if any,
evidencing the same duly endorsed by (or accompanied by a written instrument of
assignment or sale duly executed by) the holder of such Registered Note,
whereupon, at the request of the designated assignee(s) or transferee(s), one
or more new Registered Notes in the same aggregate principal amount shall be
issued to the designated assignee(s) or transferee(s). Prior to the
registration of assignment or sale of any Registered Loan (and the Registered
Note, if any, evidencing the same) on the Register, Borrower and Agent shall
treat the Person in whose name such Registered Loan (and the Registered Note,
if any, evidencing the same) is registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes, notwithstanding
notice to the contrary.


 


(k)           In the event that a
Lender sells participations in any Registered Loan, such Lender, on behalf of
Borrower, shall maintain a register on which it enters the name and address of
all Participants in the Registered Loans held by it and the principal amount
(with stated interest thereon) of the portion of the Registered Loans that are
subject of the participation (the “Participant Register”). A Registered
Loan (and the Registered Note, if any, evidencing the same) may be participated
in whole or in part only by registration of such participation on the
Participant Register (and each Registered Note shall expressly so provide). Any
participation of such Registered Loan (and the Registered Note, if any,
evidencing the same) may be effected only by the registration of such
participation on the Participant Register. The Participant Register shall be
available for inspection by Borrower and the Agent at any reasonable time and
from time to time upon reasonable notice.


 


14

















 


(l)            Anything to the contrary contained
herein notwithstanding, at all times during the term hereof, WFF agrees to (i)
have and retain, collectively together with its Affiliates and Related Funds, a
Revolver Commitment of no less than 44% of all of the Revolver Commitments, and
(ii) have, collectively together with its Affiliates and Related Funds, no less
than a 44% interest in the Term Loan Amount; provided, however,
that the foregoing shall not be applicable (A) at any time that a Default or
Event of Default has occurred and is continuing, or (B) to any assignment that
is in connection with any merger, consolidation, sale, transfer, or other
disposition of all or any substantial portion of the business or loan portfolio
of WFF. This clause (l) is for the sole benefit of WFF and Borrower and there
are no other Persons that are intended to be benefited by this clause.”


 


(z)            Section 15.1 of the
Loan Agreement is hereby amended by replacing the reference to “Section 14.1(h)”
in the second proviso to such section with a reference to “Section 14.1(l)”.


 


(aa)         Section 16.9 of the
Loan Agreement is hereby amended by amending and restating such section in its
entirety as follows:


 


“16.9       Successor Agent. Agent may resign as
Agent upon 45 days prior written notice to the Lenders (unless such notice is
waived by the Required Lenders). If Agent resigns under this Agreement, the
Required Lenders shall be entitled, with (so long as no Event of Default has
occurred and is continuing) the consent of Borrower (such consent not to be
unreasonably withheld, delayed, or conditioned), appoint a successor Agent for
the Lenders. If, at the time that Agent’s resignation is effective, it is
acting as the Issuing Lender or the Swing Lender, such resignation shall also
operate to effectuate its resignation as the Issuing Lender or the Swing
Lender, as applicable, and it shall automatically be relieved of any further
obligation to issue Letters of Credit or make Swing Loans. If no successor
Agent is appointed prior to the effective date of the resignation of Agent,
Agent may appoint, after consulting with the Lenders, a successor Agent. If
Agent has materially breached or failed to perform any material provision of this
Agreement or of applicable law, the Required Lenders may agree in writing to
remove and replace Agent with a successor Agent from among the Lenders. In any
such event, upon the acceptance of its appointment as successor Agent
hereunder, such successor Agent shall succeed to all the rights, powers, and
duties of the retiring Agent and the term “Agent” shall mean such successor
Agent and the retiring Agent’s appointment, powers, and duties as Agent shall
be terminated. After any retiring Agent’s resignation hereunder as Agent, the
provisions of this Section 16 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement. If
no successor Agent has accepted appointment as Agent by the date which is 45
days following a retiring Agent’s notice of resignation, the retiring Agent’s
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of Agent hereunder until such time, if any, as the
Lenders appoint a successor Agent as provided for above.”


 


(bb)         Section 16.11 of the
Loan Agreement is hereby deleted in its entirety and the following is inserted
in lieu thereof:


 


“16.11 Withholding Taxes.


 


15

















 


(a)            All payments
made by Borrower hereunder or under any note or other Loan Document will be
made without setoff, counterclaim, or other defense. In addition, all such
payments will be made free and clear of, and without deduction or withholding
for, any present or future Taxes, and in the event any deduction or withholding
of Taxes is required, Borrower shall comply with the penultimate sentence of
this Section 16.11(a). “Taxes” shall mean, any taxes, levies, imposts, duties,
fees, assessments or other charges of whatever nature now or hereafter imposed
by any jurisdiction or by any political subdivision or taxing authority thereof
or therein with respect to such payments (but excluding any tax imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein measured by or based on the net income or net profits of any Lender)
and all interest, penalties or similar liabilities with respect thereto. If any
Taxes are so levied or imposed, Borrower agrees to pay the full amount of such
Taxes and such additional amounts as may be necessary so that every payment of
all amounts due under this Agreement, any note, or Loan Document, including any
amount paid pursuant to this Section 16.11(a) after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided for
herein. Borrower will furnish to Agent as promptly as possible after the date
the payment of any Tax is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by Borrower.


 


(b)           In addition, the
Borrower agrees to pay to the relevant Governmental Authority in accordance
with applicable law any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise from any payment
made hereunder or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document (“Other Taxes”).
The Borrower shall deliver to the Agent and each Lender an official receipt
(or, if an official receipt is not available, such other evidence of payment as
shall be satisfactory to the Agent or such Lender) in respect of any Other
Taxes payable hereunder promptly after payment of such Other Taxes.


 


(c)           The Borrower hereby
agrees to indemnify and to hold each Agent and each Lender harmless from and
against all Taxes and Other Taxes (including, without limitation, Taxes and
Other Taxes imposed on any amounts payable under this Section 16.11(c)) paid by such Person, whether
or not such Taxes or Other Taxes were correctly or legally asserted. Such
indemnification shall be paid within 10 days from the date on which the Agent
or any Lender makes written demand therefore specifying in reasonable detail
the nature and amount of such Taxes or Other Taxes.


 


(d)           The Borrower shall not
be required to indemnify any Lender, or pay any additional amounts to any
Lender, in respect of U.S. withholding tax pursuant to this Section 16.11 to the extent that (i) the
obligation to withhold amounts with respect to U.S. withholding tax existed on
the date such Lender became a party to this Agreement or, with respect to
payments to a newly designated lending office (a “New Lending Office”),
the date such Lender designated such New Lending Office with respect to a Loan;
provided, however, that this clause (i) shall not apply to the
extent the indemnity payment or additional amounts any transferee, or Lender
(or transferee) through a New Lending Office, would be entitled to receive
(without regard to this clause (i)) do not exceed the indemnity payment or
additional amounts that the person making the transfer, or Lender (or
transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such transfer or


 


16

















 


designation, or (ii) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender to comply with paragraph (e) below.


 


(e)            (i) If a Lender is entitled to an exemption
from United States withholding tax, such Lender shall deliver to Agent (or, in
the case of an assignee of a Lender which is (x) an Affiliate or Related Fund
of such Lender, and (y) for which an Assignment and Acceptance is not delivered
to the Agent pursuant to Section 14.1(c), to the assigning Lender only):


 


(A)          if such Lender is entitled to an exemption
from, or a reduction of, withholding tax under a United States tax treaty, one
properly completed and executed copy of IRS Form W-8BEN before receiving its
first payment under this Agreement and at any other time reasonably requested
in writing by Agent or the assigning Lender, as applicable;


 


(B)           if such Lender claims that interest paid
under this Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Lender,
one properly completed and executed copy of IRS Form W-8ECI before receiving
its first payment under this Agreement and at any other time reasonably
requested in writing by Agent or the assigning Lender, as applicable; or


 


(C)           such other form or forms, including IRS Form
W-9, as may be required under the IRC or other laws of the United States as a
condition to exemption from, or reduction of, United States withholding or
backup withholding tax before receiving its first payment under this Agreement
and at any other time reasonably requested in writing by Agent or the assigning
Lender, as applicable.


 


(ii)           If a Lender claims an exemption from United
States withholding tax pursuant to the portfolio interest exception, such
Lender represents that such Lender is not (x) a “bank” as described in Section
881(c)(3)(A) of the IRC, (y) a 10% shareholder of any Borrower within the
meaning of Section 871(h)(3)(B) of the IRC, or (z) a controlled foreign corporation
related to any Borrower within the meaning of Section 864(d)(4) of the IRC and
such Lender shall deliver to Agent (or, in the case of an assignment to an
Affiliate or Related Fund that is made pursuant to Section 14.1(c), to the
assigning Lender only) one properly completed copy of IRS Form W-8BEN, before
receiving its first payment under this Agreement and at any other time
reasonably requested in writing by Agent or the assigning Lender, as
applicable.


 


Notwithstanding the
foregoing, such Lender may provide a form W-8IMY with appropriate forms
attached thereto in place of any of the delivery requirements set forth in this
Section 16.11(e), as applicable. Each Lender agrees promptly to notify Agent or
the assigning Lender, as applicable, of any change in circumstances which would
modify or render invalid any claimed exemption or reduction. Notwithstanding
any other provision of this Section 16.11, no Lender shall be required to
deliver any form that such Lender is not legally able to deliver.


 


(f)             If any Lender is
entitled to a reduction in the applicable withholding tax, Agent or the
assigning Lender, as applicable, may withhold from any interest payment to such
Lender an amount equivalent to the applicable withholding tax after taking into
account such


 


17

















 


reduction. If the forms or other documentation
required by subsection (e) (as applicable) of this Section 16.11 are
not delivered in accordance therewith, then Agent or the assigning Lender, as
applicable, may withhold from any interest payment to such Lender not providing
such forms or other documentation an amount equivalent to the applicable
withholding tax.


 


(g)            If the IRS or any
other Governmental Authority of the United States or other jurisdiction asserts
a claim that Agent did not properly withhold tax from amounts paid to or for
the account of any Lender due to a failure on the part of any Lender (because
the appropriate form was not delivered, was not properly executed, or because
such Lender failed to notify the proper Person of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax
ineffective) such Lender shall indemnify and hold Agent or the assigning
Lender, as applicable, harmless for all amounts paid, directly or indirectly,
by Agent or the assigning Lender, as applicable, as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on
the amounts payable to Agent or the assigning Lender, as applicable, under this
Section 16.11, together with all costs and expenses (including attorneys
fees and expenses). The obligation of the Lenders under this subsection shall
survive the payment of all Obligations and the resignation or replacement of
Agent.”


 


(cc)         Schedule C-1 of the
Loan Agreement is hereby amended by deleting such Schedule in its entirety and
by inserting Schedule C-1 attached hereto in lieu thereof.


 


(dd)         Schedule A-1(a),(b) and (c) of the Loan Agreement are hereby
deleted in their entirety.


 


3.             Conditions Precedent to
Amendment. The satisfaction of each of the following shall
constitute conditions precedent to the effectiveness of this Amendment and each
and every provision hereof:


 


(a)           Agent shall have received
this Amendment, duly executed by the parties hereto, and the same shall be in
full force and effect.


 


(b)           Agent shall have received a
reaffirmation and consent substantially in the form attached hereto as Exhibit
A, duly executed and delivered by each Guarantor.


 


(c)           Agent shall have received an
amendment fee from Borrower in the amount of $250,000, which amendment fee
shall be for the account of the Lenders in accordance with the terms of an
agreement by and among Agent and the Lenders (it being understood
that, by execution and delivery of this Amendment, Borrower authorizes the
Agent to charge the Borrower’s Loan Account for such fee and such amount shall
thereafter constitute an Advance and shall accrue interest at the rate
applicable to Advances under the Loan Agreement in accordance with Section
2.6 of the Loan Agreement).


 


(d)           The representations and
warranties herein and in the Loan Agreement and the other Loan Documents shall
be true and correct in all material respects on and as of the date hereof, as
though made on such date (except to the extent that such representations and
warranties relate solely to an earlier date).


 


18

















 


(e)           Borrower shall have paid all
legal fees and related costs and expenses incurred by Agent and Lenders on or
before the date hereof.


 


(f)            After giving effect to the
amendments set forth herein, no Default or Event of Default shall have occurred
and be continuing on the date hereof, nor shall result from the consummation of
the transactions contemplated herein.


 


(g)           No injunction, writ,
restraining order, or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated herein shall have
been issued and remain in force and effect by any Governmental Authority
against Borrower, any Guarantor, Agent or any Lender.


 


4.             Permitted Unprofitable
Restaurant Dispositions; Lien Release; Assignments.


 


(a)           Borrower represents and warrants to
the Lenders that:


 


(i)            each of the Restaurants identified
on Exhibit 1 hereto is an Unprofitable Restaurant; and


 


(ii)           the
termination of the lease related to such Restaurant and/or the closure of such
Restaurant constitutes a Permitted Unprofitable Restaurant Disposition as well
as a Permitted Disposition under Section 7.4 of the Loan Agreement.


 


(b)           Upon the satisfaction of the
conditions set forth in Section 3 hereof, in connection with the
Permitted Disposition described in Section 4(a) hereof, as permitted
under Section 7.4 of the Loan Agreement, the Agent hereby authorizes the
Borrower to file the UCC-3 termination statement attached hereto as Exhibit
2.


 


(c)           Borrower and each Guarantor
acknowledge and consent to the assignments referred to in the second and third
recitals to this Amendment (but the foregoing shall not imply any right of the
Borrower or any Guarantor to receive notice of or to consent to such
assignments or any further assignments, with any such rights to be governed
solely by Section 14.1 to the Loan Agreement).


 


5.             Consent.                Upon the satisfaction of the
conditions set forth in Section 3 hereof, and anything to the
contrary contained in the Loan Agreement notwithstanding (including in Section
7.4 of the Loan Agreement), the Agent and the Lenders hereby consent to the
sale of Borrower’s Real Property located at 210 North Blake Rd., Hopkins, MN; provided,
that Borrower shall receive not less than $500,000 in Net Cash Proceeds in
connection with such sale. The Borrower, the Agent and the Lenders hereby agree
that, anything to the contrary contained in the Loan Agreement notwithstanding
(including in Section 2.4(c)(i) of the Loan Agreement), (i) 50% of the Net
Cash Proceeds received by the Borrower in connection with the sale of Borrower’s
Real Property located at 210 North Blake Rd., Hopkins, MN shall be applied to
repay the outstanding principal amount of Advances (but without a
permanent reduction in the Maximum Revolver Amount) and (ii) 50% of the Net Cash
Proceeds received by Borrower in connection with the sale of Borrower’s Real
Property located at 210 North Blake Rd., Hopkins, MN shall be applied to repay
the outstanding principal amount of the Term Loan.


 


19

















 


6.             Release. Borrower
and Guarantor each hereby waive, release, remise and forever discharge each
member of the Lender Group, each of their respective Affiliates, and each of
their respective officers, directors, employees, and agents (collectively, the “Releasees”),
from any and all claims, demands, obligations, liabilities, causes of action,
damages, losses, costs and expenses of any kind or character, known or unknown,
past or present, liquidated or unliquidated, suspected or unsuspected, which
Borrower or such Guarantor ever had, now has or might hereafter have against
any such Releasee which relates, directly or indirectly, to the Loan Agreement
or any other Loan Document, or to any acts or omissions of any such Releasee
with respect to the Loan Agreement or any other Loan Document, or to the
lender-borrower relationship evidenced by the Loan Documents. As to each and
every claim released hereunder, Borrower and Guarantor each hereby represent
that it has received the advice of legal counsel with regard to the releases
contained herein, and having been so advised, Borrower and Guarantor each specifically
waive the benefit of the provisions of Section 1542 of the Civil Code of
California which provides as follows:


 


“A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER,
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”


 


As to each and every claim released hereunder, Borrower and
Guarantor each also waive the benefit of each other similar provision of applicable
federal or state law, if any, pertaining to general releases after having been
advised by its legal counsel with respect thereto.


 


7.             Representations and
Warranties. Borrower represents and warrants to the Agent and
the Lenders that:


 


(a)           It has the requisite power
and authority to execute and deliver this Amendment and to perform its
obligations hereunder and under each Loan Document to which it is a party. The
execution, delivery, and performance by it of this Amendment and the
performance by it of each Loan Document to which it is a party (i) have been
duly approved by all necessary action and no other proceedings are necessary to
consummate such transactions; and (ii) are not in contravention of (A) any law,
rule, or regulation, or any order, judgment, decree, writ, injunction, or award
of any arbitrator, court or Governmental Authority binding on it, (B) the terms
of its Governing Documents, or (C) any provision of any material contract or
undertaking to which it is a party or by which any of its properties may be
bound or affected;


 


(b)           This Amendment has been duly
executed and delivered by Borrower. This Amendment and each Loan Document to
which it is a party is its legal, valid and binding obligation, enforceable
against it in accordance with its terms, and is in full force and effect;


 


(c)           No injunction, writ,
restraining order, or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated herein has been
issued and remains in force by any Governmental Authority against Borrower, any
Guarantor, Agent or any Lender;


 


20

















 


(d)           After giving effect to the
amendments set forth herein, no Default or Event of Default has occurred and is
continuing on the date hereof or as of the date on which the conditions
precedent set forth in Section 3 of this Amendment shall have been
satisfied;


 


(e)           The representations and
warranties herein and in the Loan Agreement and the other Loan Documents are
true and correct in all material respects on and as of the date hereof, as
though made on such date (except to the extent that such representations and
warranties relate solely to an earlier date).


 


8.             Choice of Law. The
validity of this Amendment, its construction, interpretation and enforcement,
the rights of the parties hereunder, shall be determined under, governed by,
and construed in accordance with the laws of the State of New York, without
reference to the conflict of laws provisions thereof other than those that
would give effect to the choice of New York law.


 


9.             Counterpart Execution. This
Amendment may be executed in any number of counterparts, all of which when
taken together shall constitute one and the same instrument, and any of the
parties hereto may execute this Amendment by signing any such counterpart. Delivery
of an executed counterpart of this Amendment by telefacsimile or electronic
mail shall be equally as effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile or electronic mail also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.


 


10.           Effect on Loan Documents.


 


(a)           The Loan Agreement, as
amended hereby, and each of the other Loan Documents shall be and remain in
full force and effect in accordance with their respective terms and hereby are
ratified and confirmed in all respects. The execution, delivery, and
performance of this Amendment shall not operate, except as expressly set forth
herein, as a modification or waiver of any right, power, or remedy of Agent or
any Lender under the Loan Agreement or any other Loan Document. The waivers,
consents, and modifications herein are limited to the specifics hereof, shall
not apply with respect to any facts or occurrences other than those on which
the same are based, shall not excuse future non-compliance with the Loan
Documents, shall not operate as a consent to any further or other matter under
the Loan Documents and shall not be construed as an indication that any future
waiver of covenants or any other provision of the Loan Agreement will be agreed
to, it being understood that the granting or denying of any waiver which may
hereafter be requested by Borrower remains in the sole and absolute discretion
of the Agent and the Lenders.


 


(b)           Upon and after the
effectiveness of this Amendment, each reference in the Loan Agreement to “this
Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring
to the Loan Agreement, and each reference in the other Loan Documents to “the
Loan Agreement”, “thereunder”, “therein”, “thereof” or words of like import
referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as modified and amended hereby.


 


21

















 


(c)           Unless the context of this
Amendment clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, the terms “includes”
and “including” are not limiting, and the term “or” has, except where otherwise
indicated, the inclusive meaning represented by the phrase “and/or.”


 


(d)           To the extent that any terms
and conditions in any of the Loan Documents shall contradict or be in conflict
with any terms or conditions of the Loan Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Loan Agreement as
modified or amended hereby.


 


(e)           This Amendment is a Loan
Document.


 


11.                           Costs and
Expenses. Borrower agrees to pay the out-of-pocket costs and
expenses of WFF and Ableco, including reasonable attorney fees and charges,
incurred in connection with this Amendment and the other transactions referred
to in the recitals hereto.


 


12.           Ratification. The
Borrower hereby restates, ratifies and reaffirms each and every term and
condition set forth in the Loan Agreement, as amended hereby, and the Loan
Documents, as contemplated to be amended in connection herewith, effective as
of the date hereof and hereby acknowledges, agrees, and confirms that it has
granted Agent, for the benefit of the Lenders, a perfected security interest in
the Collateral in order to secure all of its present and future Obligations.


 


13.           Entire Agreement. This Amendment embodies the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof
and supersedes any and all prior or contemporaneous agreements or
understandings with respect to the subject matter hereof, whether express or
implied, oral or written.


 


[signature
pages follow]


 


22

















 


IN WITNESS WHEREOF, the
parties have entered into this Amendment as of the date first above written.


 


 


	
   

  	
  VI ACQUISITION CORP.,

  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VICORP RESTAURANTS, INC.,

  a Colorado corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO
AMENDMENT NUMBER FOUR

TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]


 

















 


	
   

  	
   

  	
  WELLS FARGO FOOTHILL, INC.,
 a California corporation, as Agent
  and Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ABLECO FINANCE LLC,
 a Delaware limited liability company,
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO AMENDMENT NUMBER FOUR

TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]


 

















 


Exhibit A


 


REAFFIRMATION AND CONSENT


 


Dated as of October 26, 2007


 


Reference hereby is made to
that certain Amendment Number Four to Amended and Restated Loan and Security
Agreement, dated as of the date hereof (the “Amendment”), among the
lenders signatory thereto (the “Lenders”), Wells Fargo Foothill, Inc., a
California corporation, as administrative agent for the Lenders (“Agent”),
VI Acquisition Corp., a Delaware corporation (“Parent”), and VICORP
Restaurants, Inc., a Colorado corporation (“Borrower”). Capitalized
terms used herein shall have the meanings ascribed to them in that certain
Amended and Restated Loan and Security Agreement, dated as of April 14, 2004
(as amended, restated, supplemented, or otherwise modified from time to time,
the “Loan Agreement”), among Parent, Borrower, Agent, and the Lenders. Each
of the undersigned hereby (a) represents and warrants that the execution and
delivery of this Reaffirmation and Consent are within its powers, have been
duly authorized by all necessary action, and are not in contravention of any
law, rule, or regulation applicable to him or it, or any order, judgment,
decree, writ, injunction, or award of any arbitrator, court, or Governmental
Authority, or of the terms of its Governing Documents, as applicable, or of any
contract or undertaking to which it is a party or by which any of its
properties may be bound or affected, (b) consents to the amendment of the Loan
Agreement set forth in the Amendment and any waivers granted therein; (c)
acknowledges and reaffirms all of its obligations under any Loan Document to
which it is a party; (d) agrees that each Loan Document to which it is a party
is and shall remain in full force and effect, and (e) ratifies and confirms its
consent to any previous amendments of the Loan Agreement and any previous waivers
granted with respect to the Loan Agreement. Although each of the undersigned
have been informed of the matters set forth herein and have acknowledged and
agreed to same, each of the undersigned understands that the Lenders shall have
no obligation to inform the undersigned of such matters in the future or to
seek the undersigned’s acknowledgement or agreement to future amendments,
waivers, or modifications, and nothing herein shall create such a duty. EACH OF
THE UNDERSIGNED ACKNOWLEDGES THAT IT HAS EITHER OBTAINED THE ADVICE OF COUNSEL
OR HAS HAD THE OPPORTUNITY TO OBTAIN SUCH ADVICE IN CONNECTION WITH THE TERMS
AND PROVISIONS OF THIS REAFFIRMATION AND CONSENT.


 

















 


IN WITNESS WHEREOF, the undersigned have executed
this Reaffirmation and Consent as of the date first set forth above.


 


 


	
   

  	
  VI ACQUISITION CORP.,
 a Delaware corporation  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO
REAFFIRMATION AND CONSENT TO AMENDMENT NUMBER FOUR


TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT]


 

















 


Schedule
C-1


 


COMMITMENTS


 


	
  Lender

  	
   

  	
  Revolver

  Commitment

  	
   

  	
  Term Loan

  Commitment

  	
   

  	
  Total Commitment

  	
   

  
	
  Wells
  Fargo Foothill, Inc.

  	
   

  	
  $

  	
  21,000,000

  	
   

  	
  $

  	
  9,000,000

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ableco
  Finance LLC

  	
   

  	
  $

  	
  14,000,000

  	
   

  	
  $

  	
  6,000,000

  	
   

  	
  $

  	
  20,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All
  Lenders

  	
   

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  50,000,000

  	
   

  



 

















 


Exhibit 1


 


	
  PROPERTY
  #

  	
   

  	
  VICORP
  UNIT

  	
   

  	
  ADDRESS

  	
   

  	
  TYPE

  
	
  OLB4

  	
   

  	
  220174

  	
   

  	
  210 North Blake Rd.
  Hopkins, MN

  	
   

  	
  Bakers Square Fee

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  L150

  	
   

  	
  220192

  	
   

  	
  790 W. Higgins Rd.
  Hoffman Estates, IL

  	
   

  	
  Bakers Square Lease

  



 
















Exhibit 2


 


	
  

  	
   

  



 


UCC FINANCING STATEMENT AMENDMENT


FOLLOW INSTRUCTIONS (front
and back) CAREFULLY


	
  A.  NAME &
  PHONE OF CONTACT AT FILER [optional]

   

   

  	
   

  	
   

  	
   

  	
   

  
	
  B.  SEND
  ACKNOWLEDGMENT TO:  (Name and Address)

   

  Paul,
  Hastings, Janofsky & Walker LLP

  515 South Flower Street

  25th Floor

  Los Angeles,
  CA 90071

  Attn:  John Francis Hilson, Esq.

   

   

  	
   

  	
   

  
	
  THE
  ABOVE SPACE IS FOR FILING OFFICE USE ONLY

  
	
  1a. INITIAL FINANCING STATEMENT FILE #

       4386439

  	
  1b.

  o

  	
  This FINANCING
  STATEMENT AMENDMENT is to be filed [for record] (or recorded) in the REAL
  ESTATE RECORDS.

  
	
  2. x  

  	
  TERMINATION: Effectiveness of the Financing Statement
  identified above is terminated with respect to security interest(s) of the
  Secured Party authorizing this Termination Statement.

  
	
  3. o  

  	
  CONTINUATION: 
  Effectiveness of the Financing Statement identified above with respect
  to security interest(s) of the Secured Party authorizing this Continuation
  Statement is continued for the additional period provided by applicable law.

  
	
  4. o  

  	
  ASSIGNMENT (full or partial):  Give name of assignee in item 7a or 7b and
  address of assignee in item 7c; and also give name of assignor in item 9.

  
	
  5.  AMENDMENT (PARTY INFORMATION):  This Amendment affects o Debtor or  o Secured Party of record.  Check only one of these two boxes.

        Also check one of the following three boxes and
  provide appropriate information in items 6 and/or 7.

  
	
        o

  	
  CHANGE name and/or address:  Give current record name in item 6a or 6b;
  also give new name (if name change) in item 7a or 7b and/or new address (if
  address change) in item 7c.

  	
   o

  	
  DELETE name: 
  Give record name to be deleted in item 6a or 6b.

  	
    o

  	
  ADD name: 
  Complete item 7a or 7b, and also item 7c; also complete items 7d-7g
  (if applicable).

  
	
  6.   CURRENT
  RECORD INFORMATION:

  
	
  OR

  	
  
  6a.  ORGANIZATION’S NAME

                               

  

  
	
  6b.  INDIVIDUAL’S
  LAST NAME

                               

  	
  FIRST NAME

       

  	
  MIDDLE NAME

       

  	
  SUFFIX

       

  
	
  7. CHANGED (NEW) OR ADDED INFORMATION:

  
	
  OR

  	
  7a. 
  ORGANIZATION’S NAME

                               

  
	
  7b.  INDIVIDUAL’S
  LAST NAME

                               

  	
  FIRST NAME

       

  	
  MIDDLE NAME

       

  	
  SUFFIX

       

  
	
  7c. MAILING ADDRESS

       

  	
  CITY

       

  	
  STATE

       

  	
  POSTAL CODE

       

  	
  COUNTRY

       

  
	
  7d. TAX I.D #: 
  SSN OR EIN

   

             

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  7e. TYPE OF ORGANIZATION

   

             

  	
  7f. 
  JURISDICTION OF ORGANIZATION

   

                

  	
  7g. ORGANIZATIONAL I.D.#, if any

   

                                                                      o  None

  
	
  8.   AMENDMENT
  (COLLATERAL CHANGE):  check only one
  box.

        Describe
  collateral  o  deleted
  or  o  added,   or 
  give entire  o 
  restated collateral description, or 
  describe collateral o assigned.

   

  
	
   

  	
       

  
	
  9. NAME of SECURED PARTY OF RECORD AUTHORIZING THIS
  AMENDMENT (name of assignor, if this is an Assignment).  If this is an Amendment authorized by a
  Debtor which adds collateral or adds the authorizing Debtor, or if this is a
  Termination authorized by a Debtor, check here o and enter name of DEBTOR authorizing this Amendment.

  
	
  OR

  	
  9a. 
  ORGANIZATION’S NAME

           Wells Fargo Foothill, Inc.

  
	
  9b.  INDIVIDUAL’S
  LAST NAME

                

  	
  FIRST NAME

       

  	
  MIDDLE NAME

       

  	
  SUFFIX

       

  
	
  10. OPTIONAL FILER REFERENCE DATA

       57293652              Presented for filing to the Illinois
  Secretary of State               Vicorp Restaurants, Inc.

  
																							



 


NATIONAL UCC FINANCING STATEMENT AMENDMENT (FORM UCC3)
(REV.7/29/98)


 

















 


 


	
   

  	
   

  



 


	
  UCC FINANCING STATEMENT AMENDMENT  ADDENDUM

  FOLLOW INSTRUCTIONS
  (front and back) CAREFULLY

   

  	
   

  	
   

  
	
  11. INITIAL FINANCING STATEMENT FILE # (same as item
  1a on Amendment form)

            

  	
   

  
	
  12. 

  	
  NAME of PARTY AUTHORIZING THIS AMENDMENT (same as
  item 9 on Amendment form)

  	
   

  	
   

  
	
  OR

  	
  12a ORGANIZATION’S NAME

            

  	
   

  
	
  12b INDIVIDUAL’S LAST NAME

             

  	
  FIRST NAME

       

  	
  MIDDLE NAME, SUFFIX

   

  	
   

  	
   

  
	
  13. Use this space for additional information

  	
   

  	
  THE ABOVE SPACE IS FOR
  FILING OFFICE USE ONLY

  
	
       

  
							



 


NATIONAL UCC FINANCING STATEMENT AMENDMENT ADDENDUM
(FORM UCCEAd)  (REV.7/29/98)