EXHIBIT 10.49
JOINT AND SEVERAL
HAZARDOUS MATERIAL
GUARANTY AND INDEMNIFICATION AGREEMENT
New York, New York
August 23, 2002
WHEREAS, XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL FINANCIAL SERVICES, INC., a
Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "LENDER") has agreed to make one or more loans (collectively, the
"LOAN") to S&W OF LAS VEGAS, L.L.C., a Delaware limited liability company,
having an office at c/o The Xxxxx & Wollensky Restaurant Group, Inc., 0000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "BORROWER"), which Loan will be (a)
evidenced by the Note, (b) secured by, among other things, the Deed of Trust and
(c) advanced pursuant to the Loan Agreement, all as defined in Exhibit A
attached hereto; and
WHEREAS, the Lender is willing to enter into the Loan Agreement and to make
the Loan only if the undersigned executes and delivers this Guaranty and
Indemnification Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce the Lender to enter into the Loan Agreement
and to make the Loan, the undersigned hereby acknowledges, agrees and confirms
that all of the above recitals are true, correct and complete and hereby
covenants and agrees with the Lender as follows:
1. For the purposes of this Guaranty and Indemnification Agreement the
following terms shall have the following meanings:
(a) the term "HAZARDOUS MATERIAL" shall mean any material or
substance that, whether by its nature or use, is now or hereafter defined as
hazardous waste, hazardous substance, pollutant or contaminant under any
Environmental Requirement, or which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and
which is now or hereafter regulated under any Environmental Requirement, or
which is or contains petroleum, gasoline, diesel fuel or another petroleum
hydrocarbon product;
(b) the term "ENVIRONMENTAL REQUIREMENTS" shall collectively mean all
present and future laws, statutes, ordinances, rules, regulations, orders,
codes, licenses, permits, decrees, judgments, directives or the equivalent of or
by any Governmental Authority and relating to or addressing the protection of
the environment or human health;
(c) the term "GOVERNMENTAL AUTHORITY" shall mean the Federal
government, or any state or other political subdivision thereof, or any agency,
court or body of the Federal
government, any state or other political subdivision thereof, exercising
executive, legislative, judicial, regulatory or administrative functions;
(d) the term "TRUST PROPERTY" shall have the meaning given to such
term in the Deed of Trust, and shall include, for purposes of this Guaranty and
Indemnification Agreement, the land comprising the Premises (as defined in the
Deed of Trust); and
(e) the term "DEBT" shall mean all principal, interest, additional
interest (including specifically all interest accruing from and after the
commencement of any case, proceeding or action under any existing or future laws
relating to bankruptcy, insolvency or similar matters with respect to the
Borrower) and other sums of any nature whatsoever which may or shall become due
and payable pursuant to the provisions of the Note, the Deed of Trust, the Loan
Agreement, or any other document or instrument now or hereafter executed and/or
delivered in connection therewith or otherwise with respect to the Loan (said
Note, Deed of Trust, Loan Agreement and other documents and instruments,
collectively, the "LOAN DOCUMENTS") [all of the above unaffected by modification
thereof in any bankruptcy or insolvency proceeding], and even though the Lender
may not have an allowed claim for the same against the Borrower as a result of
any bankruptcy or insolvency proceeding.
2. The undersigned hereby represents and warrants to the Lender that to
the best of the undersigned's knowledge:
(a) no Hazardous Material is currently located at, on, in, under or
about the Trust Property, except as specifically set forth in the Phase I
Environmental Site Assessment dated October 19, 1994 prepared by Terracon
Consultants Western, Inc. in violation of any Environmental Requirements;
(b) no releasing, emitting, discharging, leaching, dumping or
disposing of any Hazardous Material from the Trust Property onto or into any
other property or from any other property onto or into the Trust Property has
occurred or is occurring in violation of any Environmental Requirement;
(c) no notice of violation, lien, complaint, suit, order or other
notice with respect to the Trust Property is presently outstanding under any
Environmental Requirement; and
(d) the Trust Property and the operation thereof are in full
compliance with all Environmental Requirements.
3. The undersigned absolutely and unconditionally guarantees to the
Lender that the Borrower will fully comply with all of the terms, covenants and
provisions of paragraph 9 of the Deed of Trust. If the Borrower does not fully
comply with all of the terms, covenants and provisions of paragraph 9 of the
Deed of Trust, the undersigned shall reimburse the Lender upon
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demand for all sums and costs and expenses incurred by the Lender to the extent
not otherwise reimbursed to the Lender by the Borrower pursuant to said
paragraph in the Deed of Trust and/or in connection with the Lender performing
the Borrower's obligations as set forth in paragraph 9 of the Deed of Trust
(including specifically all such sums and interest thereon accruing from and
after the commencement of any case, proceeding or action under any existing or
future laws relating to bankruptcy, insolvency or similar matters with respect
to the Borrower), it being understood and agreed that, the undersigned's
obligations hereunder shall be unaffected by modification of any of the
Borrower's obligations in any bankruptcy or insolvency proceeding, nor by the
fact that the Lender may not have an allowed claim for the same against the
Borrower as a result of any bankruptcy or insolvency proceeding.
4. The undersigned will defend, indemnify, and hold harmless the Lender
its employees, agents, officers, and directors, from and against any and all
claims, demands, penalties, causes of action, fines, liabilities, settlements,
damages, costs, or expenses of whatever kind or nature, known or unknown,
foreseen or unforeseen, contingent or otherwise (including, without limitation,
counsel and consultant fees and expenses, investigation and laboratory fees and
expenses, court costs, and litigation expenses) arising out of, or in any way
related to:
(a) any breach by the Borrower of any of the provisions of
paragraph 9 of the Deed of Trust;
(b) the presence, disposal, spillage, discharge, emission, leakage,
release, or threatened release of any Hazardous Material which is at, in, on,
under, about, from or affecting the Trust Property, including, without
limitation, any damage or injury resulting from any such Hazardous Material to
or affecting the Trust Property or the soil, water, air, vegetation, buildings,
personal property, persons or animals located on the Trust Property or on any
other property or otherwise;
(c) any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to any such Hazardous Material;
(d) any lawsuit brought or threatened, settlement reached, or order
or directive of or by any Governmental Authority relating to such Hazardous
Material; or
(e) any violation of any Environmental Requirement.
5. The undersigned hereby indemnifies and shall hold harmless and defend
the Lender at the undersigned's sole cost and expense against any loss or
liability, cost or expense (including, but not limited to, reasonable attorneys'
fees and disbursements of the Lender's counsel, whether in-house staff, retained
firms or otherwise), and all claims, actions, procedures
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and suits arising out of or in connection with:
(a) any ongoing matters arising out of this Guaranty and
Indemnification Agreement and any document or instrument now or hereafter
executed and/or delivered in connection herewith (the "INDEMNITY DOCUMENTS");
(b) any amendment to, or restructuring of the obligations of the
undersigned hereunder; and
(c) any and all lawful action that may be taken by the Lender in
connection with the enforcement of the provisions of this Guaranty and
Indemnification Agreement or any of the other Indemnity Documents and the
obligations of the undersigned thereunder, whether or not suit is filed in
connection with the same, or in connection with the Borrower, either of the
undersigned and/or any partner, joint venturer or shareholder thereof becoming a
party to a voluntary or involuntary federal or state bankruptcy, insolvency or
similar proceeding.
All sums expended by the Lender shall be payable within five (5) days after
written demand and, until reimbursed by the undersigned pursuant hereto, shall
bear interest at the default interest rate set forth in the Note.
6. In addition to any right available to the Lender under applicable law
or any other agreement, the undersigned hereby gives to the Lender a continuing
lien on, security interest in and right of set-off against all moneys,
securities and other property of the undersigned and the proceeds thereof, now
on deposit or now or hereafter delivered, remaining with or in transit in any
manner to the Lender, its correspondents, participants or its agents from or for
the undersigned (other than separate accounts maintained exclusively for payroll
or taxes), whether for safekeeping, custody, pledge, transmission, collection or
otherwise or coming into possession of the Lender in any way, and also, any
balance of any deposit account and credits of the undersigned with, and any and
all claims of the undersigned against, the Lender at any time existing, as
collateral security for all of the obligations of the undersigned under this
Guaranty and Indemnification Agreement, including fees, contracted with or
acquired by the Lender, whether joint, several, absolute, contingent, secured,
matured or unmatured (for the purposes of this paragraph 6 and paragraphs 8, 10
and 18 below, collectively, the "LIABILITIES"), hereby authorizing the Lender at
any time or times, without prior notice, to apply such balances, credits or
claims, or any part thereof, to such Liabilities in such amounts as it may
select, whether contingent, unmatured or otherwise and whether any collateral
security therefore is deemed adequate or not. The collateral security described
herein shall be in addition to any collateral security described in any separate
agreement executed by either or both of the undersigned. The Lender, n addition
to any right available to it under applicable law or any other agreement, shall
have the right, at its option, to immediately set off against any Liabilities
all monies owed by the Lender in any capacity to either or both of the
undersigned, whether or not due, and the Lender shall, at its option, be deemed
to have exercised such right to set off and to have made a charge
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against any such money immediately upon the occurrence of any events of default
set forth below, even though such charge is made or entered on the books of the
Lender subsequent to those events.
7. The obligations and liabilities of the undersigned under this Guaranty
and Indemnification Agreement shall survive and continue in full force and
effect and shall not be terminated, discharged or released, in whole or in part,
irrespective of whether the Debt has been paid in full and irrespective of any
foreclosure of the Deed of Trust, sale of the Trust Property pursuant to the
provisions of the Deed of Trust or acceptance by the Lender, its nominee or
wholly owned subsidiary of a deed or assignment in lieu of foreclosure or sale
and irrespective of any other fact or circumstance of any nature whatsoever.
8. The undersigned hereby expressly agrees that this Guaranty and
Indemnification Agreement is independent of, and in addition to, all collateral
granted, pledged or assigned under the Loan Documents, and the undersigned
hereby consents that from time to time, before or after any default by the
Borrower, with or without further notice to or assent from either of the
undersigned:
(a) any security at any time held by or available to the Lender for
any obligation of the Borrower, or any security at any time held by or available
to the Lender for any obligation of any other person or party primarily,
secondarily or otherwise liable for all or any portion of the Debt, any other
Liabilities and/or any other obligations of the Borrower or any other person or
party, other than the Lender, under any of the Loan Documents ("OTHER
OBLIGATIONS"), including any guarantor of the Debt, the Liabilities and/or of
any of such Other Obligations, may be accelerated, settled, exchanged,
surrendered or released and the Lender may fail to set off and may release, in
whole or in part, any balance of any deposit account or credit on its books in
favor of the Borrower, or any such other person or party;
(b) any obligation of the Borrower, or of any such other person or
party, may be changed, altered, renewed, extended, continued, accelerated,
surrendered, compromised, settled, waived or released in whole or in part, or
any default with respect thereto waived; and
(c) the Lender may extend further credit in any manner whatsoever to
the Borrower, and generally deal with the Borrower or any of the abovementioned
security, deposit account, credit on its books or other person or party as the
Lender may see fit;
and the undersigned shall remain bound under this Guaranty and Indemnification
Agreement, without any loss of rights by the Lender and without affecting the
liability of the undersigned, notwithstanding any such exchange, surrender,
release, change, alteration, renewal, extension, continuance, compromise,
waiver, inaction, extension of further credit or other dealing. In addition, all
moneys available to the Lender for application in payment or reduction of the
Debt, the Liabilities and/or any Other Obligations may be applied by the Lender
in such manner and in
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such amounts and at such time or times and in such order, priority and
proportions as the Lender may see fit.
9. The undersigned hereby waives:
(a) notice of acceptance of this Guaranty and Indemnification
Agreement;
(b) protest and notice of dishonor or default to either or both of
the undersigned or to any other person or party with respect to any obligations
hereby guaranteed;
(c) all other notices to which either or both of the undersigned
might otherwise be entitled; and
(d) any demand under this Guaranty and Indemnification Agreement.
10. If any of the following events should occur:
(a) either or both of the undersigned defaults under any of the Loan
Documents and its continuance beyond any applicable notice and/or grace period
therein contained; or
(b) either or both of the undersigned violates any provision of this
Guaranty and Indemnification Agreement or any other guaranty or other agreement
executed by them with respect to the Loan or this Guaranty and Indemnification
Agreement;
then, and in such event, the Lender may declare the Liabilities to be, and the
same shall become, immediately due and payable and/or may exercise any or all of
its remedies as set forth herein or at law or in equity.
11. This is a guaranty of payment and not of collection and the
undersigned further waives any right to require that any action be brought
against the Borrower or any other person or party or to require that resort be
had to any security or to any balance of any deposit account or credit on the
books of the Lender in favor of the Borrower or any other person or party. Any
payment on account of or reacknowledgement of the Debt by the Borrower, or any
other party liable therefor or action taken, payment or reacknowledgement made,
of any of the obligations of the Borrower under paragraph 9 of the Deed of Trust
or otherwise with respect to any Environmental Requirements or to the Lender in
connection therewith, shall be deemed to be taken or made on behalf of the
undersigned and shall serve to start anew the statutory period of limitations
applicable to the obligations of the Borrower and/or the undersigned pursuant to
said paragraph 9 of the Deed of Trust hereunder or otherwise with respect to any
Environmental Requirement or to the Lender in connection therewith or herewith.
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12. Each reference herein to the Lender shall be deemed to include its
successors and assigns, in whose favor the provisions of this Guaranty and
Indemnification Agreement shall also inure. Each reference herein to the
undersigned shall be deemed to include the heirs, executors, administrators,
legal representatives, successors and assigns of the undersigned, all of whom
shall be bound by the provisions of this Guaranty and Indemnification Agreement,
provided, however, that the undersigned shall in no event nor under any
circumstance have the right, without obtaining the prior written consent of the
Lender, to assign or transfer the undersigned's obligations and liabilities
under this Guaranty and Indemnification Agreement, in whole or in part, to any
other person, party or entity.
13. The term "UNDERSIGNED" as used herein shall, if this Guaranty and
Indemnification Agreement is signed by more than one party, unless otherwise
stated herein, mean the "undersigned and each of them" and each undertaking
herein contained shall be their joint and several undertaking. If the Guaranty
is signed by more than one party, all singular references to the undersigned
shall be deemed to be plural. The Lender may proceed against none, one or more
of the undersigned at one time or from time to time as it sees fit in its sole
and absolute discretion. If any party hereto shall be a partnership, the
agreements and obligations on the part of the undersigned herein contained shall
remain in force and application notwithstanding any changes in the individuals
composing the partnership and the term "undersigned" shall include any altered
or successive partnerships but the predecessor partnerships and their partners
shall not thereby be released from any obligations or liability hereunder. If
any party hereto shall be a corporation, the agreements and obligations on the
part of the undersigned herein contained shall remain in force and application
notwithstanding the merger, consolidation, reorganization or absorption thereof,
and the term "undersigned" shall include such new entity, but the old entity
shall not thereby be released from any obligations or liabilities hereunder. The
Borrower is executing this Guaranty and Indemnification Agreement as a further
assurance that its obligations set forth herein will remain in full force and
effect, notwithstanding the assignment or discharge of record of the Deed of
Trust or any other fact or circumstances whatsoever.
14. No delay on the part of the Lender in exercising any right or remedy
under this Guaranty and Indemnification Agreement or failure to exercise the
same shall operate as a waiver in whole or in part of any such right or remedy.
No notice to or demand on either or both of the undersigned shall be deemed to
be a waiver of the obligation of either or both of the undersigned or of the
right of the Lender to take further action without notice or demand as provided
in this Guaranty and Indemnification Agreement. No course of dealing between
either of the undersigned and the Lender shall change, modify or discharge, in
whole or in part, this Guaranty and Indemnification Agreement or any obligations
of the undersigned hereunder.
15. This Guaranty and Indemnification Agreement may only be modified,
amended, changed or terminated by an agreement in writing signed by the Lender
and the undersigned. No waiver of any term, covenant or provision of this
Guaranty and Indemnification Agreement shall
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be effective unless given in writing by the Lender and if so given by the Lender
shall only be effective in the specific instance in which given. The execution
and delivery hereafter to the Lender by either or both of the undersigned of a
new instrument of guaranty or any reaffirmation of guaranty, of whatever nature,
shall not terminate, supersede or cancel this instrument, unless expressly so
provided therein, and all rights and remedies of the Lender hereunder or under
any instrument of guaranty hereafter executed and delivered to the Lender by
either or both of the undersigned shall be cumulative and may be exercised
singly or concurrently.
16. The undersigned acknowledges that this Guaranty and Indemnification
Agreement and the undersigned's obligations under this Guaranty and
Indemnification Agreement are and shall at all times continue to be absolute,
irrevocable and unconditional in all respects, and shall at all times be valid
and enforceable irrespective of any other agreements or circumstances of any
nature whatsoever which might otherwise constitute a defense to this Guaranty
and Indemnification Agreement and the obligations of either or both of the
undersigned under this Guaranty and Indemnification Agreement or the obligations
of any other person or party (including, without limitation, the Borrower)
relating to this Guaranty and Indemnification Agreement or the obligations of
either or both of the undersigned hereunder or otherwise with respect to the
Debt, including, but not limited to, a foreclosure of the Deed of Trust or the
realization upon any other collateral given, pledged or assigned as security for
all or any portion of the Debt, or the filing of a petition under Title 11 of
the United States Code with regard to the Borrower or either or both of the
undersigned, or the commencement of an action or proceeding for the benefit of
the creditors of the Borrower or the undersigned, or the obtaining by the Lender
of title to, respectively, the Trust Property or to any collateral given,
pledged or assigned as security for the Debt by reason of the foreclosure or
enforcement of the Deed of Trust or any other pledge or security agreement, the
acceptance of a deed or assignment in lieu of foreclosure or sale, or otherwise.
This Guaranty and Indemnification Agreement sets forth the entire agreement and
understanding of the Lender and the undersigned with respect to the matters
covered by this Guaranty and Indemnification Agreement, and the undersigned
acknowledges that no oral or other agreements, understandings, representations
or warranties exist with respect to this Guaranty and Indemnification Agreement
or with respect to the obligations of the undersigned under this Guaranty and
Indemnification Agreement, except those specifically set forth in this Guaranty
and Indemnification Agreement.
17. This Guaranty and Indemnification Agreement has been validly
authorized, executed and delivered by the undersigned. The undersigned
represents and warrants to the Lender that it has the corporate or other
organizational power to do so and to perform its obligations under this Guaranty
and Indemnification Agreement. The undersigned represents and warrants to the
Lender that this Guaranty and Indemnification Agreement constitutes the legally
binding obligation of the undersigned fully enforceable against the undersigned
in
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accordance with the terms hereof. The undersigned further represents and
warrants to the Lender that:
(a) neither the execution and delivery of this Guaranty and
Indemnification Agreement nor the consummation of the transactions contemplated
hereby nor compliance with the terms and provisions hereof will violate any
applicable provision of law or any applicable regulation or other manifestation
of governmental action; and
(b) all necessary approvals, consents, licenses, registrations and
validations of any governmental regulatory body, including, without limitation,
approvals required to permit the undersigned to execute and carry out the
provisions of this Guaranty and Indemnification Agreement, for the validity of
the obligations of the undersigned hereunder and for the making of any payment
or remittance of any funds required to be made by the undersigned under this
Guaranty and Indemnification Agreement, have been obtained and are in full force
and effect.
18. Notwithstanding any payments made by either or both of the undersigned
pursuant to the provisions of this Guaranty and Indemnification Agreement, the
undersigned irrevocably waives all rights to enforce or collect upon any rights
which it now has or may acquire against the Borrower either by way of
subrogation, indemnity, reimbursement or contribution for any amount paid under
this Guaranty and Indemnification Agreement or by way of any other obligations
whatsoever of the Borrower to either or both of the undersigned, nor shall
either or both of the undersigned file, assert or receive payment on any claim,
whether now existing or hereafter arising, against the Borrower in the event of
the commencement of a case by or against the Borrower under Title 11 of the
United States Code. In the event either a petition is filed under said Title 11
of the United States Code with regard to the Borrower or an action or proceeding
is commenced for the benefit of the creditors of the Borrower, this Guaranty and
Indemnification Agreement shall at all times thereafter remain effective in
regard to any payments or other transfers of assets to the Lender received from
or on behalf of the Borrower prior to notice of termination of this Guaranty and
Indemnification Agreement and which are or may be held voidable on the grounds
of preference or fraud, whether or not the Debt has been paid in full. Any
payment on account of or reacknowledgment of the Debt by the Borrower, or any
other party liable therefor, or action taken, or payment or reacknowledgment
made, of any of the obligations of the Borrower to take and complete the actions
specified in paragraph 9 of the Deed of Trust shall serve to start anew the
statutory period of limitations applicable to the Borrower with respect to said
paragraph 9 and the undersigned hereunder. The provisions of this paragraph 18
shall survive the term of this Guaranty and the payment in full of the Debt and
all other Liabilities.
19. Any notice, request or demand given or made under this Guaranty and
Indemnification Agreement shall be in writing and shall be given in the manner
and to the notice parties set forth in the Loan Agreement.
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20. This Guaranty and Indemnification Agreement is, and shall be deemed to
be, a contract entered into under and pursuant to the laws of the State of New
York and shall be in all respects governed, construed, applied and enforced in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws. The undersigned acknowledges and agrees that this Guaranty
and Indemnification Agreement is, and is intended to be, an instrument for the
payment of money only, as such phrase is used in Section 3213 of the Civil
Practice Law and Rules of the State of New York, and the undersigned has been
fully advised by its counsel of the Lender's rights and remedies pursuant to
said Section 3213.
21. The undersigned agrees to submit to personal jurisdiction in the State
of New York in any action or proceeding arising out of this Guaranty and
Indemnification Agreement. In furtherance of such agreement, the undersigned
hereby agrees and consents that without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the undersigned in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in New York and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the undersigned by registered or certified mail to, or by
personal service at, the last known address of the undersigned, whether such
address be within or without the jurisdiction of any such court. The undersigned
hereby further agrees that the venue of any litigation arising in connection
with the Debt or in respect of any of the obligations of the undersigned under
this Guaranty and Indemnification Agreement, shall, to the extent permitted by
law, be in New York County. Nothing in this paragraph shall limit the right of
the Lender to bring an action or proceeding arising out of this Guaranty and
Indemnification Agreement in any other jurisdiction.
22. The undersigned absolutely, unconditionally and irrevocably waives any
and all right to assert or interpose any defense, setoff, counterclaim or
crossclaim of any nature whatsoever with respect to this Guaranty and
Indemnification Agreement or the obligations of the undersigned under this
Guaranty and Indemnification Agreement, or the obligations of any other person
or party (including, without limitation, the Borrower) relating to this Guaranty
and Indemnification Agreement, or the obligations of the undersigned hereunder
or otherwise with respect to the Loan in any action or proceeding brought by the
Lender to collect the Debt, or any portion thereof, or to enforce the
obligations of the undersigned under this Guaranty and Indemnification Agreement
(provided, however, that the foregoing shall not be deemed a waiver of the right
of the undersigned to assert any compulsory counterclaim maintained in a court
of the United States, or of the State of New York if such counterclaim is
compelled under local law or rule of procedure, nor shall the foregoing be
deemed a waiver of the right of the undersigned to assert any claim which would
constitute a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against the Lender in any separate action or proceeding). The
undersigned hereby undertakes and agrees that this Guaranty shall remain in full
force and effect for all of the obligations and liabilities of the undersigned
hereunder, notwithstanding the maturity of the Loan, whether by acceleration,
scheduled maturity or otherwise.
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23. No exculpatory provisions which may be contained in any Loan Document
shall in any event or under any circumstances be deemed or construed to modify,
qualify, or affect in any manner whatsoever the obligations and liabilities of
the undersigned under this Guaranty and Indemnification Agreement.
24. The obligations and liabilities of the undersigned under this Guaranty
and Indemnification Agreement are in addition to the obligations and liabilities
of the undersigned under the Other Guaranties (as hereinafter defined). The
discharge of either or both of the undersigned's obligations and liabilities
under any one or more of the Other Guaranties by the undersigned or by reason of
operation of law or otherwise shall in no event or under any circumstance
constitute or be deemed to constitute a discharge, in whole or in part, of the
undersigned's obligations and liabilities under this Guaranty and
Indemnification Agreement. Conversely, the discharge of either or both of the
undersigned's obligations and liabilities under this Guaranty and
Indemnification Agreement by the undersigned or by reason of operation of law or
otherwise shall in no event or under any circumstance constitute or be deemed to
constitute a discharge, in whole or in part, of the undersigned's obligations
and liabilities under any of the Other Guaranties. The term "OTHER GUARANTIES"
as used herein shall mean any other guaranty of payment, guaranty of
performance, completion guaranty, indemnification agreement or other guaranty or
instrument creating any obligation or undertaking of any nature whatsoever
(other than this Guaranty and Indemnification Agreement) now or hereafter
executed and delivered by either or both of the undersigned to the Lender in
connection with the Loan.
25. This Guaranty and Indemnification Agreement may be executed in one or
more counterparts by some or all of the parties hereto, each of which
counterparts shall be an original and all of which together shall constitute a
single agreement of guaranty. The failure of any party listed below to execute
this Guaranty and Indemnification Agreement, or any counterpart hereof, or the
ineffectiveness for any reason of any such execution, shall not relieve the
other signatories from their obligations hereunder.
26. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND THE
LENDER BY ITS ACCEPTANCE OF THIS GUARANTY AND INDEMNIFICATION AGREEMENT
IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE
RELATING TO THIS GUARANTY AND INDEMNIFICATION AGREEMENT.
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IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty and
Indemnification Agreement the day and year first above set forth.
S&W OF LAS VEGAS, L.L.C.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
THE XXXXX & WOLLENSKY
RESTAURANT GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
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XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK )
On the 19th day of August in the year 2002 before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx Xxxxxxxx
------------------------------
Notary Public
[SEAL]
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the __ day of August in the year 2002 before me, the undersigned, a
Notary Public in and for said State, personally appeared ______________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
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Notary Public
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EXHIBIT A
NOTE: The term "NOTE" as used in this Guaranty and Indemnification
Agreement shall mean a certain Promissory Note of even date herewith in the
principal sum of $4,000,000.00 to be given by the Borrower to the Lender,
together with any and all modifications, supplements, extensions, replacements
or substitutions therefor as may exist from time to time.
DEED OF TRUST: The term "DEED OF TRUST" as used in this Guaranty and
Indemnification Agreement shall mean a certain Leasehold Deed of Trust of even
date herewith to be given by the Borrower to the trustee thereunder for the
benefit of the Lender, constituting a first lien on the leasehold estate of the
Borrower in certain premises located in Xxxxx County, Nevada, as more
particularly described therein, and intended to be duly recorded in said County,
together with any and all modifications, supplements, extensions, replacement or
substitutions therefor as may exist from time to time.
LOAN AGREEMENT: The term "LOAN AGREEMENT" as used in this Guaranty and
Indemnification Agreement shall mean a certain Term Loan Agreement of even date
herewith to be entered into among the Borrower, The Xxxxx & Wollensky Restaurant
Group, Inc. and the Lender, together with any and all modifications,
supplements, replacement or substitutions therefor as may exist from time to
time.
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