EXHIBIT 10.46
GUARANTY OF PAYMENT
New York, New York
August 23, 2002
WHEREAS, 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"), has applied to 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") for one
or more loans (collectively, the "LOAN"), 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 to the Borrower only if the undersigned executes and delivers this
Guaranty and guarantees payment to the Lender of the Debt (as herein defined) in
the manner hereinafter provided.
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 to the Borrower, 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. The undersigned guarantees, absolutely, irrevocably and
unconditionally, to the Lender the payment of the Debt notwithstanding that
advances have been, or may be, made in the face of a default under the Loan
Documents (hereinbelow defined) or otherwise not in compliance with the lending
criteria set forth in the Loan Agreement. The term "Debt" as used in this
Guaranty shall mean all liabilities of the Borrower to the Lender of whatever
nature, whether now existing or hereafter incurred, whether created directly or
acquired by the Lender, by assignment or otherwise, whether matured or unmatured
and whether absolute or contingent, including, without limitation, 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 agrees that the undersigned shall indemnify and hold
the Lender 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 and suits arising out of or in
connection with:
(a) any ongoing matters arising out of the transaction contemplated
hereby, this Guaranty, the Debt, the Deed of Trust, the Note, the Loan Agreement
or any other Loan Document, including, but not limited to, all costs of
appraisals and reappraisals of the property encumbered by the Deed of Trust or
any part thereof;
(b) any amendment to, or restructuring of, this Guaranty, the Debt
and the Deed of Trust, the Note, the Loan Agreement or any of the other Loan
Documents; 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, the Note,
the Deed of Trust, the Loan Agreement or any of the other Loan Documents,
whether or not suit is filed in connection with the same, or in connection with
the undersigned, the Borrower 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 on demand and, until reimbursed
by the Borrower or by the undersigned pursuant hereto, shall bear interest at
the default interest rate as set forth in the Note.
3. The undersigned hereby represents and warrants that all financial
statements of the undersigned heretofore delivered to the Lender by or on behalf
of the undersigned are true and correct in all material respects and fairly
present the financial condition of the undersigned as of the respective dates
thereof, and no material adverse change has occurred in the financial conditions
reflected therein since the respective dates thereof.
4. 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 the payment of the Debt and all of the other obligations
of the undersigned under this Guaranty, including fees, contracted with or
acquired by the Lender, whether joint, several, absolute, contingent, secured,
matured or unmatured (for the purposes of this paragraph 4 and paragraphs 6, 8
and 16 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 therefor 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 any of the undersigned. The Lender,
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in 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 any 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 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.
5. All moneys available to the Lender for application in payment or
reduction of the Debt may be applied by the Lender in such manner and in such
amounts and at such time or times and in such order, priority and proportions as
the Lender may see fit to the payment or reduction of such portion of the Debt
as the Lender may elect.
6. The undersigned hereby expressly agrees that this Guaranty 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 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 and/or 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 of
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 above-mentioned
security, deposit account, credit on its books or other person or party as the
Lender may see fit;
and the undersigned shall remain bound in all respects under this Guaranty,
without any loss of any 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
and/or any Other Obligations may be applied by the Lender in such manner and in
such amounts and at such time or times and in such order, priority and
proportions as the Lender may see fit.
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7. The undersigned hereby waives:
(a) notice of acceptance of this Guaranty and of the making of the
Loan or any advance thereof by the Lender to the Borrower;
(b) presentment and demand for payment of the Debt or any portion
thereof;
(c) protest and notice of dishonor or default to any of the
undersigned or to any other person or party with respect to the Debt or any
portion thereof;
(d) all other notices to which any of the undersigned might
otherwise be entitled; and
(e) any demand under this Guaranty.
8. If any of the following events should occur:
(a) default under any of the Loan Documents and its continuance
beyond any applicable notice and/or grace periods therein contained; or
(b) any of the undersigned violates any provision of this Guaranty;
then, and in such event, the Lender may declare the Liabilities to be, and the
same shall become, immediately due and payable.
9. 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 reacknowledgment of the Debt by the Borrower, or any
other party liable therefor, shall be deemed to be made on behalf of the
undersigned and shall serve to start anew the statutory period of limitations
applicable to the Debt.
10. Each reference herein to the Lender shall be deemed to include its
successors and assigns, in whose favor the provisions of this Guaranty shall
also inure. Each reference herein to the undersigned shall be deemed to include
the successors and assigns of the undersigned, all of whom shall be bound by the
provisions of this Guaranty, 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, in whole or in part, to any
other person, party or entity.
11. The term "UNDERSIGNED" as used herein shall, if this Guaranty 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 this Guaranty is signed by more than one
party, all singular references to the undersigned shall be deemed to be plural.
If any party hereto shall be a partnership, the agreements and obligations on
the part of
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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.
12. No delay on the part of the Lender in exercising any right or remedy
under this Guaranty 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 any of
the undersigned shall be deemed to be a waiver of the obligations of any of the
undersigned or of the right of the Lender to take further action without notice
or demand as provided in this Guaranty. No course of dealing between any of the
undersigned and the Lender shall change, modify or discharge, in whole or in
part, this Guaranty or any obligations of the undersigned hereunder.
13. This Guaranty 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 shall 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 any 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 any of the undersigned shall be
cumulative and may be exercised singly or concurrently.
14. The undersigned acknowledges that this Guaranty and the undersigned's
obligations under this Guaranty 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 the obligations of any of the undersigned under this Guaranty or
the obligations of any other person or party (including, without limitation, the
Borrower) relating to this Guaranty or the obligations of any 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 any 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 premises
encumbered by the Deed of Trust or any other 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
sets forth the entire agreement and understanding of the Lender and the
undersigned with respect to the matters covered by this Guaranty and the
undersigned acknowledges that no oral or other agreements, understandings,
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representations or warranties exist with respect to this Guaranty or with
respect to the obligations of the undersigned under this Guaranty, except those
specifically set forth in this Guaranty.
15. This Guaranty has been validly authorized, executed and delivered by
the undersigned. The undersigned represents and warrants to the Lender that it
has the corporate power to do so and to perform its obligations under this
Guaranty and this Guaranty constitutes the legally binding obligation of the
undersigned fully enforceable against the undersigned in accordance with the
terms hereof. The undersigned further represents and warrants to the Lender
that:
(a) neither the execution and delivery of this Guaranty 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, 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, have been
obtained and are in full force and effect.
16. Notwithstanding any payments made by any of the undersigned pursuant
to the provisions of this Guaranty, 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 or by way of any other
obligations whatsoever of the Borrower to any of the undersigned, nor shall any
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 the commencement of an action
or proceeding for the benefit of the creditors of the Borrower, this Guaranty
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 which are or may be
held voidable on the grounds of preference or fraud, whether or not the Debt has
been paid in full. The provisions of this paragraph 16 shall survive the term of
this Guaranty and the payment in full of the Debt and all other Liabilities and
the termination of any commitment to make any further advances of Loan proceeds
pursuant to the Loan Agreement.
17. Any notice, request or demand given or made under this Guaranty shall
be in writing and shall be given in the manner and to the notice parties set
forth in the Loan Agreement.
18. This Guaranty 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,
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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 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.
19. The undersigned agrees to submit to personal jurisdiction in the State
of New York in any action or proceeding arising out of this Guaranty. 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, 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 the
Guaranty in any other jurisdiction.
20. The undersigned absolutely, unconditionally and irrevocably waives any
and all right to assert or interpose any defense (other than the final and
indefeasible payment in full of the Debt), setoff, counterclaim or crossclaim of
any nature whatsoever with respect to this Guaranty or the obligations of the
undersigned under this Guaranty, or the obligations of any other person or party
(including without limitation, the Borrower) relating to this Guaranty, 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 (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.
21. No exculpatory provisions which may be contained in the Note, the Deed
of Trust or in any other 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.
22. The obligations and liabilities of the undersigned under this Guaranty
are in addition to the obligations and liabilities of the undersigned under the
Other Guaranties (as hereinafter defined). The discharge of any or all of the
undersigned's obligations and liabilities
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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. Conversely, the
discharge of any of the undersigned's obligations and liabilities under this
Guaranty 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)
now or hereafter executed and delivered by any of the undersigned to the Lender
in connection with the Loan.
23. This Guaranty 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.
24. THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND THE
LENDER BY ITS ACCEPTANCE OF THIS GUARANTY 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.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty the day
and year first above set forth.
THE XXXXX & WOLLENSKY RESTAURANT
GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
STATE OF NEW YORK )
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]
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EXHIBIT A
NOTE: The term "NOTE" as used in this Guaranty 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 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 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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