Exhibit 10.34
AMENDMENT NUMBER TWO
TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER TWO TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is entered into as of February 16, 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 the amounts corresponding
to the items set forth on Schedule A-1(a), and by subtracting from EBITDA the
amounts corresponding to the items set forth on Schedule A-1(c), any
modifications to categories on such schedules requiring the prior review of and
approval by Agent; provided however (a) the Adjusted EBITDA for the 13 Fiscal
Month period ending March 18, 2004 shall be $41,438,000, (b) the Adjusted EBITDA
for each of the 13 Fiscal Months
ending March 18, 2004 shall be the amounts set forth on Schedule A-1(b), and (c)
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, may
be added back to EBITDA to the extent deducted in the calculation of EBITDA."
""Borrowing Base" means, as of any date of determination, the result of:
(a) the result of
(y) [1.8] 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)."
""Fixed Charge Coverage Ratio" means, with respect to Parent and its
Subsidiaries