Exhibit
10.36


AMENDED
AND RESTATED PROMISSORY NOTE


	
  $3,661,293.00

  	
   

  	
  As of September 25,
  2006

  
	
   

  	
   

  	
  Boston, Massachusetts

  



 


WHEREAS, pursuant to that
certain 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”) dated
as of September 25, 2006, as the same may be amended from time to time (the “Stock
Purchase Agreement”), on September 25, 2006, the Maker issued a Promissory
Note to the Holder in the face principal amount of $3,800,000.00 (the “Original
Promissory Note”);


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


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


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


1.             Interest
Rate.  The
Principal Amount outstanding under this Amended and Restated Promissory Note
shall accrue interest on each day, from September 25, 2006 until all such
Principal 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 (as
defined 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 the
Event of Default is cured (if it is capable of being cured).  Interest shall be calculated on the basis of
a 365-day year for the actual number of days elapsed.  Interest shall be paid in accordance with
Section 2 below.  For purposes of
clarification, the Maker and the Holder understand and agree that: (a) interest
shall only accrue on the Principal Amount of $3,661,293.00 beginning on
September 25, 2006 and not on the principal amount reflected in the Original
Promissory Note of $3,800,000.00; and (b) interest shall have never accrued on
the $138,707 by which the principal amount reflected in the Original Promissory
Note is being reduced by this Amended and Restated Promissory Note.


In
no event shall the amount of interest due or payable under this Amended and
Restated Promissory Note exceed the maximum rate of interest allowed by
applicable law and, in the event any such payment is inadvertently paid by the
Maker or inadvertently received by the Holder, then such excess sum shall be
credited as a payment of the Principal Amount. 
It is the express intent of the parties hereto that the Maker not pay
and the Holder not receive, directly or indirectly, in any manner whatsoever,
interest in excess of that which may be lawfully paid by the Maker under
applicable law.


2.         Payment and Maturity Date.
All accrued, but unpaid, interest under this Amended and Restated Promissory
Note then-outstanding shall be due and payable on September 25, 2007 and July
15, 2008.  The













outstanding
Principal Amount and all accrued, but unpaid, interest shall be due and payable
on the earlier of (the “Maturity Date”): (a) July 15, 2008; (b) the
occurrence 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 owed
thereunder).  As used herein, the term:
(i) “Change of Control” means (x) a consolidation or merger of Parent
into or with any other entity or entities (except one in which the holders of
capital stock of Parent immediately prior to such consolidation or merger hold
at least 50% by voting power of the capital stock of the surviving or resulting
entity immediately after such consolidation or merger), (y) the sale of all or
substantially all of the assets of Parent, or (z) the sale, exchange or
transfer by the stockholders of Parent, in a single transaction or series of
related transactions, of capital stock representing more than 50% of the voting
power of the capital stock of Parent; and (ii) “IPO” means the first
underwritten public offering of Common Stock of Parent for the account of
Parent registered under the Securities Act of 1933, as amended.  Once repaid, amounts borrowed hereunder may
not be reborrowed.  All amounts due under
this Amended and Restated Promissory Note may be prepaid, whether by
acceleration or otherwise, in whole or in part, without premium or penalty, at
any time.  The Maker shall make all
payments in respect of this Amended and Restated Promissory Note by wire
transfer of United States funds in accordance with directions the Holder may
provide from time to time in writing.


3.           Intentionally
Omitted.


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


5.           Events
of Default; Remedies.


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


(i)                                 failure
of the Maker to comply in any way with the terms, covenants or conditions
contained in this Amended and Restated Promissory Note, and such non-compliance
is not cured by the Maker within 30 days after receiving written notice from
the Holder demanding compliance;


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


(iii)                           the Maker or the Parent shall: (A)
voluntarily dissolve, liquidate or terminate operations or apply for or consent
to 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 substantial
part 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 a
general assignment for the benefit of its creditors; (D) commence a voluntary
case 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 the
foregoing;













(iv)                            an involuntary petition or complaint shall be
filed against the Maker or the Parent seeking bankruptcy relief or
reorganization or the appointment of a receiver, custodian, trustee, intervenor
or liquidator of the Maker or the Parent of all or substantially all of its
assets, and such petition or complaint shall not have been dismissed within
ninety (90) days of the filing thereof; or an order, order for relief, judgment
or decree shall be entered by any court of competent jurisdiction or other
competent authority approving or ordering any of the foregoing actions; or


(v)                               the
Parent terminates or attempts to terminate the Guaranty or makes any written
statement 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 (except
as otherwise provided in this Amended and Restated Promissory Note), the Holder
may: (i) declare this Amended and Restated Promissory Note immediately due and
payable without presentment, demand, protest or any other action or obligation
of the Holder, whereupon all of the outstanding Principal Amount and all
accrued interest and all other obligations due hereunder shall become
immediately due and payable (provided that, upon the occurrences of an Event of
Default specified in Section 5(a)(iii) or (iv), all of the outstanding
Principal Amount and all accrued interest and all other obligations due
hereunder shall automatically become due and payable without presentment,
demand, protest or other action or obligation of the Holder); and (ii) exercise
any and all rights and remedies available to it at law, in equity or otherwise.


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


6.           Miscellaneous.


(a)  Waivers.


(i)  Trial by Jury.  THE MAKER AND THE HOLDER EACH ACKNOWLEDGE
THAT ANY DISPUTE OR CONTROVERSY BETWEEN THE MAKER AND THE HOLDER WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT.  ACCORDINGLY, THE MAKER AND THE HOLDER HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT MAY BE COMMENCED BY OR
AGAINST THE MAKER OR THE HOLDER ARISING OUT OF THIS AMENDED AND RESTATED
PROMISSORY NOTE.


(ii)  Jurisdiction and Venue.  THE MAKER AND THE HOLDER HEREBY AGREE THAT
ANY FEDERAL COURT IN THE STATE OF MINNESOTA OR ANY STATE COURT LOCATED IN
HENNEPIN COUNTY IN THE STATE OF MINNESOTA SHALL HAVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE MAKER AND THE HOLDER PERTAINING
DIRECTLY OR INDIRECTLY TO THIS AMENDED AND RESTATED PROMISSORY NOTE.  THE MAKER AND THE HOLDER EXPRESSLY SUBMIT AND
CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED
IN SUCH COURTS.  FURTHER, THE MAKER AND
THE HOLDER HEREBY WAIVE THE RIGHT TO ASSERT THE DEFENSE OF FORUM NON CONVENIENS
AND THE RIGHT TO CHALLENGE THE VENUE OF ANY COURT PROCEEDING.


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













(iii)
Standard Waivers.  Except as otherwise
expressly provided herein, demand, presentment, notice, notice of demand,
notice for payment, protest and notice of dishonor are hereby waived by the
Maker.  The Holder shall not be deemed to
waive any of its rights hereunder unless such waiver be in writing and signed
by the Holder.  Any failure on the part
of the Holder at any time to require the performance by the Maker of any of the
terms or provisions hereof, even if known, shall in no way affect the right thereafter
to enforce the same, nor shall any failure of the Holder to insist on strict
compliance with the terms and conditions hereof be taken or held to be a waiver
of any succeeding breach or of the right of the Holder to insist on the strict
compliance with the terms and conditions hereof.


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


(c)           Binding Agreement; Assignment.  The terms and conditions of this Amended and
Restated Promissory Note shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.  This Amended and Restated Promissory Note may
not be assigned by any party hereto without the prior written consent of the
other party hereto; provided, however, that the Holder may,
without the consent of the Maker: (i) assign this Amended and Restated
Promissory Note to any one of its Affiliates; or (ii) collaterally assign this
Amended and Restated Promissory Note to Wells Fargo Foothill, Inc. (“WFF”) in
connection with that certain Credit Agreement dated as of November 15, 2004, by
and among BUCA, Inc., each of its subsidiaries that are signatories thereto,
the Lenders that are signatories thereto, and WFF, as the Arranger and the
Administrative Agent, as amended (the “WFF Credit Agreement”), or to any
financial institution which refinances the credit facility evidenced by the WFF
Credit Agreement (and assign the Amended and Restated Promissory Note to any
such lenders or financial institutions or to any third party in connection with
the enforcement of remedies in respect of any such collateral assignment).


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


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


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


(g)           Severability.  It is the desire and intent of the parties
that the provisions of this Amended and Restated Promissory Note be enforced to
the fullest extent permissible under applicable law and public policy.  Accordingly, in the event that any provision
of this Amended and Restated Promissory Note is held to be invalid, prohibited
or unenforceable for any reason, such provision shall be ineffective, without
invalidating the remaining provisions of this Amended and Restated Promissory
Note.  Notwithstanding the foregoing, if
such provision could be more narrowly drawn so as not to be invalid, prohibited
or unenforceable, it shall be so narrowly drawn, without invalidating the
remaining 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 agreement
between the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters.  In the event of any
conflict between the provisions of this Amended and Restated Promissory Note,
the Stock Purchase Agreement and the Guaranty, the provisions of this Amended
and Restated Promissory Note shall govern.


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


 


MAKER:


VINNY T’S
ACQUISITION 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