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AMENDED AND RESTATED PROMISSORY NOTE

Promissory Note

AMENDED AND RESTATED PROMISSORY NOTE
 | Document Parties: BERTUCCIS CORP |  Vinny T?s Acquisition Corporation You are currently viewing:
This Promissory Note involves

BERTUCCIS CORP | Vinny T?s Acquisition Corporation

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Title: AMENDED AND RESTATED PROMISSORY NOTE
Governing Law: Minnesota     Date: 4/3/2007

AMENDED AND RESTATED PROMISSORY NOTE
, Parties: bertuccis corp ,  vinny t?s acquisition corporation
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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 ¾% 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,


 
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