Exhibit 10.36
AMENDED AND RESTATED PROMISSORY
NOTE
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$3,661,293.00
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As of September 25, 2006
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Boston, Massachusetts
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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,