**Exhibit10.36**

# **AMENDEDAND RESTATED PROMISSORY NOTE**

| $3,661,293.00 |   | As of September 25,  2006 |
|---------------|--------|---------------------------|
|          |   | Boston, Massachusetts     |

 

**WHEREAS**, pursuant to thatcertain Stock Purchase Agreement by and among Vinny T’s Acquisition Corporation(the “Maker”), Bertucci’s Corporation (the “Parent”), BUCA, Inc.(the “Holder”) and BUCA Restaurants 3, Inc. (the “Company”) datedas of September 25, 2006, as the same may be amended from time to time (the “StockPurchase Agreement”), on September 25, 2006, the Maker issued a PromissoryNote to the Holder in the face principal amount of $3,800,000.00 (the “OriginalPromissory Note”);

**WHEREAS**, in January 2007 andpursuant to the procedures set forth in Section 2.1 of the Stock PurchaseAgreement, the Maker and the Holder have agreed that the Original PromissoryNote should be amended and restated to reflect that: (1) the original principalamount of the Original Promissory Note should be reduced by $138,707 so thatthe total principal amount as of September 25, 2006 was $3,661,293 (the “NewPrincipal Amount”); and (2) all interest accrued under the OriginalPromissory Note and accruing under this Amended and Restated Promissory Noteshould be calculated as of September 25, 2006 based on the New PrincipalAmount; and

**WHEREAS**, pursuant to Section 3and 6(b) of the Original Promissory Note and Section 2.2 of the Stock PurchaseAgreement, the Maker and the Holder are agreeing to amend and restate theOriginal Promissory Note as set forth herein.

**NOW THEREFORE, FOR VALUE RECEIVED**,the Maker hereby unconditionally promises to pay to the Holder the principalamount of THREE MILLION SIX HUNDRED SIXTY ONE THOUSAND TWO HUNDRED NINETY THREEDOLLARS ($3,661,293.00) (the “Principal Amount”), together with accruedand unpaid interest thereon (as provided below).  This Amended and Restated Promissory Note isbeing issued pursuant to the Stock Purchase Agreement.  All capitalized terms used herein and not otherwisedefined shall have the meanings ascribed to them in the Stock PurchaseAgreement.

**1.             InterestRate. **ThePrincipal Amount outstanding under this Amended and Restated Promissory Noteshall accrue interest on each day, from September 25, 2006 until all suchPrincipal Amount shall have been paid in full, at a rate equal to nine percent(9%) per annum; provided, however, that upon an Event of Default (asdefined below) interest shall accrue at a rate equal to twelve percent (12%)per annum from the date of the occurrence of the Event of Default until theEvent of Default is cured (if it is capable of being cured).  Interest shall be calculated on the basis ofa 365-day year for the actual number of days elapsed.  Interest shall be paid in accordance withSection 2 below.  For purposes ofclarification, the Maker and the Holder understand and agree that: (a) interestshall only accrue on the Principal Amount of $3,661,293.00 beginning onSeptember 25, 2006 and not on the principal amount reflected in the OriginalPromissory Note of $3,800,000.00; and (b) interest shall have never accrued onthe $138,707 by which the principal amount reflected in the Original PromissoryNote is being reduced by this Amended and Restated Promissory Note.

Inno event shall the amount of interest due or payable under this Amended andRestated Promissory Note exceed the maximum rate of interest allowed byapplicable law and, in the event any such payment is inadvertently paid by theMaker or inadvertently received by the Holder, then such excess sum shall becredited as a payment of the Principal Amount. It is the express intent of the parties hereto that the Maker not payand the Holder not receive, directly or indirectly, in any manner whatsoever,interest in excess of that which may be lawfully paid by the Maker underapplicable law.

**2.         Payment and Maturity Date.**All accrued, but unpaid, interest under this Amended and Restated PromissoryNote then-outstanding shall be due and payable on September 25, 2007 and July15, 2008.  The

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outstandingPrincipal Amount and all accrued, but unpaid, interest shall be due and payableon the earlier of (the “Maturity Date”): (a) July 15, 2008; (b) theoccurrence of an Event of Default; (c) the consummation of a Change of Control(as defined below); (d) the consummation of an IPO (as defined below); or (e)the same time as the 10 3⁄4% Senior Notes due 2008 issued by Parent are redeemed,repurchased, refinanced or otherwise paid (with regard to principal owedthereunder).  As used herein, the term:(i) “Change of Control” means (x) a consolidation or merger of Parentinto or with any other entity or entities (except one in which the holders ofcapital stock of Parent immediately prior to such consolidation or merger holdat least 50% by voting power of the capital stock of the surviving or resultingentity immediately after such consolidation or merger), (y) the sale of all orsubstantially all of the assets of Parent, or (z) the sale, exchange ortransfer by the stockholders of Parent, in a single transaction or series ofrelated transactions, of capital stock representing more than 50% of the votingpower of the capital stock of Parent; and (ii) “IPO” means the firstunderwritten public offering of Common Stock of Parent for the account ofParent registered under the Securities Act of 1933, as amended.  Once repaid, amounts borrowed hereunder maynot be reborrowed.  All amounts due underthis Amended and Restated Promissory Note may be prepaid, whether byacceleration or otherwise, in whole or in part, without premium or penalty, atany time.  The Maker shall make allpayments in respect of this Amended and Restated Promissory Note by wiretransfer of United States funds in accordance with directions the Holder mayprovide from time to time in writing.

**3.           IntentionallyOmitted.**

**4.           Guaranty.            **All amounts dueand obligations of the Maker under this Amended and Restated Promissory Notehave been guaranteed by the Parent pursuant to that certain Guaranty executedand delivered by the Parent to the Holder dated as of September 25, 2006, asthe same may be amended and/or restated from time to time (the “Guaranty”).

**5.           Eventsof Default; Remedies**.

(a)  Events of Default.  Each of the following events shall constitutean “Event of Default” under this Amended and Restated Promissory Note:

(i)                                 failureof the Maker to comply in any way with the terms, covenants or conditionscontained in this Amended and Restated Promissory Note, and such non-complianceis not cured by the Maker within 30 days after receiving written notice fromthe Holder demanding compliance;

(ii)                              anymaterial representation or warranty made by the Maker or the Parent in: (A)this Amended and Restated Promissory Note, the Stock Purchase Agreement or theGuaranty shall prove to have been untrue or incorrect or misleading in anymaterial respect when made; or (B) any other agreement, document, or instrumentexecuted and delivered in connection therewith or in any certificate or reportfurnished in connection therewith shall prove to have been untrue or incorrectin any material respect when made, and the effect of such breach is not curedwithin 30 days after the Maker receives written notice from the Holder of suchbreach;

### (iii)                           the Maker or the Parent shall: (A)voluntarily dissolve, liquidate or terminate operations or apply for or consentto the appointment of, or the taking of possession by, a receiver, custodian,trustee or liquidator of the Maker or the Parent of all or of a substantialpart of the Maker’s or the Parent’s assets; (B) admit in writing its inability,or be generally unable, to pay its debts as the debts become due; (C) make ageneral assignment for the benefit of its creditors; (D) commence a voluntarycase under the federal Bankruptcy Code (as now or hereafter in effect); (E)file a petition seeking to take advantage of any other law relating to bankruptcy,insolvency, reorganization, winding-up, or composition or adjustment of debts;or (F) take any corporate action for the purpose of effecting any of theforegoing;

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### (iv)                            an involuntary petition or complaint shall befiled against the Maker or the Parent seeking bankruptcy relief orreorganization or the appointment of a receiver, custodian, trustee, intervenoror liquidator of the Maker or the Parent of all or substantially all of itsassets, and such petition or complaint shall not have been dismissed withinninety (90) days of the filing thereof; or an order, order for relief, judgmentor decree shall be entered by any court of competent jurisdiction or othercompetent authority approving or ordering any of the foregoing actions; or

(v)**                              **theParent terminates or attempts to terminate the Guaranty or makes any writtenstatement repudiating or contesting the validity of the Guaranty.

(b)  Remedies.     Upon the occurrence of an Event of Default,at the option of the Holder, and without demand or notice of any kind (exceptas otherwise provided in this Amended and Restated Promissory Note), the Holdermay: (i) declare this Amended and Restated Promissory Note immediately due andpayable without presentment, demand, protest or any other action or obligationof the Holder, whereupon all of the outstanding Principal Amount and allaccrued interest and all other obligations due hereunder shall becomeimmediately due and payable (provided that, upon the occurrences of an Event ofDefault specified in Section 5(a)(iii) or (iv), all of the outstandingPrincipal Amount and all accrued interest and all other obligations duehereunder shall automatically become due and payable without presentment,demand, protest or other action or obligation of the Holder); and (ii) exerciseany and all rights and remedies available to it at law, in equity or otherwise.

(c)  Costs of Collection.   If the Holder incurs any costs, expensesand/or attorneys’ fees to enforce this Amended and Restated Promissory Noteagainst the Maker and the Holder is successful in enforcing this Amended andRestated Promissory Note against the Maker, the Maker shall pay all reasonablecosts, expenses and attorneys’ fees incurred by the Holder in the enforcementof this Amended and Restated Promissory Note.

**6.           Miscellaneous.**

(a)  Waivers.

(i)  Trial by Jury.  THE MAKER AND THE HOLDER EACH ACKNOWLEDGETHAT ANY DISPUTE OR CONTROVERSY BETWEEN THE MAKER AND THE HOLDER WOULD BE BASEDON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT.  ACCORDINGLY, THE MAKER AND THE HOLDER HEREBYWAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT MAY BE COMMENCED BY ORAGAINST THE MAKER OR THE HOLDER ARISING OUT OF THIS AMENDED AND RESTATEDPROMISSORY NOTE.

(ii)  Jurisdiction and Venue.  THE MAKER AND THE HOLDER HEREBY AGREE THATANY FEDERAL COURT IN THE STATE OF MINNESOTA OR ANY STATE COURT LOCATED INHENNEPIN COUNTY IN THE STATE OF MINNESOTA SHALL HAVE JURISDICTION TO HEAR ANDDETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE MAKER AND THE HOLDER PERTAININGDIRECTLY OR INDIRECTLY TO THIS AMENDED AND RESTATED PROMISSORY NOTE.  THE MAKER AND THE HOLDER EXPRESSLY SUBMIT ANDCONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCEDIN SUCH COURTS.  FURTHER, THE MAKER ANDTHE HOLDER HEREBY WAIVE THE RIGHT TO ASSERT THE DEFENSE OF FORUM NON CONVENIENSAND THE RIGHT TO CHALLENGE THE VENUE OF ANY COURT PROCEEDING.

THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICEOF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF.

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## (iii)Standard Waivers.  Except as otherwiseexpressly provided herein, demand, presentment, notice, notice of demand,notice for payment, protest and notice of dishonor are hereby waived by theMaker.  The Holder shall not be deemed towaive any of its rights hereunder unless such waiver be in writing and signedby the Holder.  Any failure on the partof the Holder at any time to require the performance by the Maker of any of theterms or provisions hereof, even if known, shall in no way affect the right thereafterto enforce the same, nor shall any failure of the Holder to insist on strictcompliance with the terms and conditions hereof be taken or held to be a waiverof any succeeding breach or of the right of the Holder to insist on the strictcompliance with the terms and conditions hereof.

(b)   Amendments.  The Maker and the Holder understand that thisAmended and Restated Promissory Note amends and restates the OriginalPromissory Note in its entirety and that no further modification or waiver ofany provision of this Amended and Restated Promissory Note or consent todeparture therefrom shall be effective unless in writing and signed by theMaker and the Holder.

(c)           Binding Agreement; Assignment.  The terms and conditions of this Amended andRestated Promissory Note shall inure to the benefit of and be binding upon therespective successors and permitted assigns of the parties.  This Amended and Restated Promissory Note maynot be assigned by any party hereto without the prior written consent of theother party hereto; provided, however, that the Holder may,without the consent of the Maker: (i) assign this Amended and RestatedPromissory Note to any one of its Affiliates; or (ii) collaterally assign thisAmended and Restated Promissory Note to Wells Fargo Foothill, Inc. (“WFF”) inconnection with that certain Credit Agreement dated as of November 15, 2004, byand among BUCA, Inc., each of its subsidiaries that are signatories thereto,the Lenders that are signatories thereto, and WFF, as the Arranger and theAdministrative Agent, as amended (the “WFF Credit Agreement”), or to anyfinancial institution which refinances the credit facility evidenced by the WFFCredit Agreement (and assign the Amended and Restated Promissory Note to anysuch lenders or financial institutions or to any third party in connection withthe enforcement of remedies in respect of any such collateral assignment).

(d)           Governing Law. This Amendedand Restated Promissory Note shall be governed by, and construed in accordancewith, the laws of the State of Minnesota, without regard to the conflicts oflaw principles thereof.

(e)           Titles and Subtitles.  The titles and subtitles used in this Amendedand Restated Promissory Note are used for convenience only and are not to beconsidered in construing or interpreting this Amended and Restated PromissoryNote.

(f)            Notices.  Any notice to be given hereunder shall be inwriting and shall be sent to the Holder or the Maker, as the case may be, asprovided in Section 11.13 of the Stock Purchase Agreement.

(g)           Severability.  It is the desire and intent of the partiesthat the provisions of this Amended and Restated Promissory Note be enforced tothe fullest extent permissible under applicable law and public policy.  Accordingly, in the event that any provisionof this Amended and Restated Promissory Note is held to be invalid, prohibitedor unenforceable for any reason, such provision shall be ineffective, withoutinvalidating the remaining provisions of this Amended and Restated PromissoryNote.  Notwithstanding the foregoing, ifsuch provision could be more narrowly drawn so as not to be invalid, prohibitedor unenforceable, it shall be so narrowly drawn, without invalidating theremaining provisions of this Amended and Restated Promissory Note.

# (h)           Entire Agreement and Conflicts.  This Amended and Restated Promissory Note,the Stock Purchase Agreement and the Guaranty contain the entire agreementbetween the parties hereto with respect to the subject matter hereof andsupersede all prior agreements and understandings, oral or written, with respectto such matters.  In the event of anyconflict between the provisions of this Amended and Restated Promissory Note,the Stock Purchase Agreement and the Guaranty, the provisions of this Amendedand Restated Promissory Note shall govern**.**

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IN WITNESS WHEREOF, the undersigned have executed this Amended andRestated Promissory Note as of the date last written below.

 

MAKER:

VINNY T’SACQUISITION CORPORATION

 
| By:                   | /s/ David G. Lloyd                              |   |
|-----------------------|-------------------------------------------------|--------|
|                  | David G. Lloyd                                  |   |
|                  | President                                       |   |
|                  |                                            |   |
| Dated: March 29, 2007 |                                            |
|                  |                                            |
|                  |                                            |
| HOLDER:               |                                            |
|                  |                                            |
| BUCA, INC.            |                                            |
|                  |                                            |
| By:                   | /s/ Wallace B. Doolin                           |   |
|                  | Wallace B. Doolin                               |   |
|                  | Chairman, President and Chief Executive Officer |
|                  |                                            |
| Dated: March 29, 2007 |                                            |

 

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