EXHIBIT
10.33

    SECOND

    AMENDED
AND RESTATED

    PROMISSORY
NOTE


     

    
      	$1,540,300.04	
              Jericho, New
      York        

            
	 	
              April 1,
      2010       


            


    

    


    FOR VALUE RECEIVED, MIAMI SUBS
CAPITAL PARTNERS I, INC., a Florida corporation with an office at 6300 NW
31st
Avenue, Fort Lauderdale, Florida (the “Maker”), promises to pay
to the order of NATHAN’S
FAMOUS, INC., a Delaware corporation (the “Payee”), the principal amount
of ONE MILLION FIVE HUNDRED FORTY
THOUSAND THREE HUNDRED
AND 04/100 DOLLARS
($1,540,300.04), on or before June 30, 2015 (the “Maturity
Date”), in lawful
money of the United States of America, together with interest on the unpaid
principal amount hereof, from time to time outstanding, from the date hereof
through and including the date that this Note is paid in full, at a rate of
eight and one-half percent (8.5%) per annum.  

    


    The Maker
promises to pay to the Payee the principal amount hereof plus interest in
installments, as follows: one payment of $51,000.00 (FIFTY-ONE THOUSAND AND
00/100 DOLLARS) on the date hereof; twenty-one (21) monthly payments of
$17,000.00 (SEVENTEEN THOUSAND AND 00/100 DOLLARS) each, due on the last day of
each calendar month commencing on April 30, 2010 and ending December 31, 2011;
thirty-six (36) monthly payments of $34,271.28 (THIRTY-FOUR THOUSAND TWO HUNDRED
SEVENTY-ONE AND 28/100 DOLLARS) each, due on the last day of each calendar month
commencing on January 31, 2012 and ending December 31, 2014; and a final payment
of principal in the amount of $250,000 (TWO HUNDRED FIFTY THOUSAND DOLLARS)
(such principal amount being the “Balloon”), to be paid on the Maturity
Date.  Interest hereunder shall be computed on the actual number of
days elapsed over a year comprised of 365 days.  Nothing herein shall
be deemed to require Maker to make payments of interest which exceed the maximum
permitted by law.  In any such event, this Note shall be deemed
automatically amended to require payment of interest at the maximum amount
permitted by law.

    


    All
amounts payable hereunder shall be made in lawful money of the United States of
America at such place as may be designated to the Maker in writing by the Payee
from time to time.  If any payment hereunder becomes due and payable
on a day other than a Business Day (hereafter defined), such payment shall be
extended to the next succeeding Business Day.  “Business Day” shall
mean a day other than a Saturday, Sunday or other day on which commercial banks
in New York State are authorized or required by law to close. Upon the occurrence of
an Event of Default, as that term is defined below, interest payable on this
Note shall be at the rate of twelve percent (12%) per annum or the maximum rate
allowed to be charged by law, whichever is lower.

    


    This Note
may be prepaid at the option of the Maker in whole or in part at any time
without penalty or premium.  All prepayments shall be accompanied by
accrued interest on the principal amount repaid to the date of
repayment.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    This Note
shall be subject to mandatory prepayment in full upon the settlement or the
adjudication of the litigation entitled Ontario Superior Court of
Justice-Commercial Litigation, Court File No.  06-00CL6270, Lawrence
B. Austin, Plaintiff v. Michael Overs, Tesari Holdings, Ltd., & Pizza Pizza,
Ltd., Defendants at which time all amounts payable hereunder shall be due
and payable.

    


    Solely in
the event that at the Maturity Date (i) the Payee has not at any time prior
thereto commenced any legal action to enforce this Note or to enforce, declare
or adjudicate any rights or obligations under this Note, whether through a
lawsuit or foreclosure and (ii) the Maker and its affiliates are not in default
under this Note or under any other financial obligation owed to Payee or its
affiliates, then Payee agrees that the obligation of Maker to pay the Balloon
shall be forgiven at the Maturity Date and, notwithstanding such forgiveness,
the Note will be fully paid and Maker will have no further obligations
hereunder.

    


    Maker
acknowledges and agrees that: (i) nothing contained in the immediately preceding
paragraph shall in any way limit (A) Maker’s obligation to make the payments
described herein on the due date thereof, as set forth in the second paragraph
of this Note or upon any settlement or adjudication of the litigation described
above or (B) Payee’s rights and remedies in the event that any such payment is
not so timely made; and (ii) the payment of the Balloon is a financial
obligation of the Maker hereunder, and its non-forgiveness if the conditions
described in the immediately preceding paragraph are not met shall not be
construed in any manner as a penalty.

    


    Payee may
declare the entire unpaid principal balance of the Note, together with interest
accrued thereon, to be immediately due and payable upon the occurrence of any of
the following events (each an “Event of Default”):  (a) the
failure of Maker to pay the principal of, or interest on, this Note within five
(5) days of the due date thereof; (b) any petition in bankruptcy being filed by
or against the Maker, or any proceedings in bankruptcy, or under any law
relating to the relief of debtors, being commenced for the relief or
readjustment of any indebtedness of the Maker; provided, with respect to any
such petition filed against Maker, such petition shall continue undismissed for
a period of 30 days from the date of entry thereof; (c) the making by the Maker
of an assignment for the benefit of creditors; (d) the appointment of a receiver
of all or substantially all of the property of the Maker; (e) the merger,
consolidation, or sale of all or substantially all of the assets of the Maker to
any third party; (f) any breach of any representation, warranty or covenant of
the Maker contained in the Security Agreement, dated as of June 7, 2007 between
Maker and Payee, which breach, if capable of cure, shall not have been cured
within twenty (20) days following delivery of written notice to Maker; (g) any
breach by Miami Subs Real Estate Corp. of any representation, warranty or
covenant contained in the Business Lease with 6300 NW 31st Avenue
dated May 6, 2008, as the same has been and  may continue to be
amended from time-to-time, (h) any breach by the Maker or Miami Subs Corporation
to pay amounts due under the Amended and Restated Arrearage Agreement dated as
of October 27, 2009 or (i) the guaranty executed by either Lawrence Austin or
Bruce Galloway (each, a “Guarantor”) with respect to Maker’s obligations
hereunder shall cease to be in full force and effect or any Guarantor shall so
assert in writing.

    


    Maker
agrees that whenever an attorney is used to collect or enforce this Note or to
enforce, declare or adjudicate any rights or obligations under this Note whether
by suit or any other means whatsoever, the Maker shall pay all of the legal fees
of the attorneys for the Payee, together with all costs and expenses of such
collection, enforcement or adjudication, which obligation shall constitute part
of the principal obligation hereunder.

    


    
      
        
        

      

      
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    Maker
hereby waives diligence, presentment, protest, demand and notice of every kind
except as otherwise expressly required herein.  This Note may not be
modified orally.

    


    No course
of dealing between the Maker and Payee or any delay on the Payee’s part in
exercising any rights hereunder shall operate as a waiver of any of the rights
and/or remedies of the Payee under this Note or under any and all other
agreements that now or hereafter may in any way evidence, govern and/or secure
any obligations to the Payee.  No term shall be waived, altered,
modified or amended except in writing and no delay by the Payee in exercising
any of its rights hereunder or under any other document shall constitute a
waiver of such right.  No waiver by the Payee of any default or event
of default shall operate as a waiver of any other default and/or
breach.

    


    THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICT OF LAW
PRINCIPLES.  Maker hereby consents to the jurisdiction of the state
courts of and federal courts located in Nassau or New York County in the State
of New York for the enforcement of the obligations evidenced by this Note and
expressly waives any defense based upon venue or forum non
conveniens.

    


    This
Note is an amendment and restatement of, and is being issued in replacement of
and substitution for, the Promissory Note, dated June 7, 2007, in the original
principal amount of $2,400,000 issued by the Maker in favor of Payee (the
“Original Note”) and the Amended and Restated Promissory Note dated October 31,
2008, effective as of August 31, 2008 in the original principal amount of
$1,892,210.54 issued by the Maker in favor of Payee (the “Amended Note”). The
execution and delivery of this Note shall not be construed to have constituted a
repayment of any principal of, or interest on, the Original Note or the Amended
Note.


     

    
      	 	
              MIAMI SUBS CAPITAL PARTNERS I,
      INC.,

              


               /s/ Bernard
      Vogel

               Bernard
      Vogel

            


    

     

    
      
        
        

      

      
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