EXHIBIT 10.38


AMENDMENT NUMBER THREE 

TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


This AMENDMENT NUMBER THREE TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”)
is entered into as of July 27, 2007, by the lenders identified on the
signature pages hereof (the “Lenders”), WELLS FARGO FOOTHILL,
INC., a California corporation (“Agent”; and together with
the Lenders, the “Lender Group”), 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 and the Lender Group 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, Borrower has requested that the Lender
Group consent to the amendment of the Loan Agreement as set forth herein; and


WHEREAS, subject to the terms and conditions set
forth herein, the Lender Group is willing to make the amendments requested by
Borrower.


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 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) the amounts
corresponding to the items set forth on Schedule A-1(a),













(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, and


(d) to the extent deducted
in the calculation of EBITDA, 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, not to exceed $3,000,000;


and
by subtracting from EBITDA for the indicated period the amounts corresponding
to the items set forth on Schedule A-1(c), with any modifications to categories
on such schedules requiring the prior review of and approval by Agent; provided
however, that notwithstanding the foregoing,


(a) Adjusted EBITDA for the
13 Fiscal Month period ending March 18, 2004 shall be deemed to be $41,438,000,
and


(b) Adjusted EBITDA for each
of the 13 Fiscal Months ending March 18, 2004 shall be deemed to be the amounts
set forth for such periods on Schedule A-1(b).”


““Growth
Capital Expenditures” means the sum of (a) Capital Expenditures in
connection with new restaurant purchases (including in connection with
franchise buybacks and purchases of competitor restaurants), plus (b) the amount paid in connection
with the consummation of Permitted Non-Equity Acquisitions, plus (c) in an amount not to exceed $300,000 for any
Restaurant, the amount of expenses paid for revenue enhancing remodel/refresh
projects.”


(b)           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 $24,000,000.”


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


“(ii)         Fixed
Charge Coverage Ratio.  A Fixed Charge Coverage Ratio, measured on a
fiscal quarter-end basis, of at least the required amount 



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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 quarters ending July 12, 2007

  
	
  0.95:1.0

  	
   

  	
  For the four
  fiscal quarters ending November 1, 2007

  
	
  1.00:1.0

  	
   

  	
  For the four
  fiscal quarters ending January 24, 2008

  
	
  1.00:1.0

  	
   

  	
  For the four
  fiscal quarters ending April 17, 2008

  
	
  1.00:1.0

  	
   

  	
  For the four
  fiscal quarters ending July 10, 2008

  
	
  1.00:1.0

  	
   

  	
  For the four
  fiscal quarters ending October 30, 2008

  
	
  1.00:1.0

  	
   

  	
  For each of the
  four fiscal quarters ended thereafter”

  






 


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 $50,000, which shall be distributed ratably among the Lenders in
accordance with their respective Pro Rata Shares (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 accrue interest at the rate applicable to Advances under the Loan
Agreement in accordance with Section 2.6 of the Loan Agreement).



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(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).


(e)           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.


(f)            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.     Release.  Each Borrower hereby waives,
releases, remises and forever discharges 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 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, each Borrower hereby
represents that it has received the advice of legal counsel with regard to the
releases contained herein, and having been so advised, each Borrower
specifically waives 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, each Borrower also waives 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.


5.     Representations and Warranties. 
Borrower represents and warrants to the Lender Group 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 



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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;


(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).


6.     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.


7.     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.



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8.     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 Lender Group.


(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.


(c)           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.


(d)           This
Amendment is a Loan Document.


9.     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]



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


	
  

  	
  VI ACQUISITION CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony J. Carroll

  
	
   

  	
  Name:

  	
  Anthony J. Carroll

  
	
   

  	
  Title:

  	
  Chief Financial Officer and Chief Administrative
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VICORP RESTAURANTS, INC.,

  
	
   

  	
  a Colorado corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael R. Kinnen

  
	
   

  	
  Name:

  	
  Michael R. Kinnen

  
	
   

  	
  Title:

  	
  Vice President / Treasurer

  



 



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  WELLS FARGO FOOTHILL, INC.,

  
	
   

  	
  A California corporation, as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin S. Fong

  
	
   

  	
  Name:

  	
  Kevin S. Fong

  
	
   

  	
  Title:

  	
  Vice President

  



 



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  GE CAPITAL FRANCHISE FINANCE CORPORATION,

  
	
   

  	
  a Delaware corporation, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sheila K. Samples

  
	
   

  	
  Title:

  	
  Vice President

  



 



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  Agreed to for purposes of Section 4:

  	
   

  
	
   

  	
   

  	
   

  
	
  VI ACQUISITION CORP.,

  	
   

  
	
  a Delaware corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Anthony J. Carroll

  	
   

  
	
  Name:

  	
  Anthony J. Carroll

  	
   

  
	
  Title:

  	
  Chief Financial Officer and Chief Administrative
  Officer

  	
   

  



 



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Exhibit A


REAFFIRMATION AND CONSENT


Dated as of July 27, 2007


Reference hereby is made to
that certain Amendment Number Three 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 obligations owing by it to the Lender Group 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 Lender Group 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:

  	
  /s/ Anthony J. Carroll

  
	
   

  	
  Name:

  	
  Anthony J. Carroll

  
	
   

  	
  Title:

  	
  Chief Financial Officer and Chief Administrative
  Officer