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)