Exhibit 10.93
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
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THIS ASSIGNMENT made as of the 21st day of July, 2004, between 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 "Assignor") and XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL FINANCIAL
SERVICES, INC., a Delaware corporation, having an office at 0000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Assignee").
W I T N E S S E T H:
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THAT the Assignor for good and valuable consideration, receipt and
sufficiency whereof is hereby acknowledged, hereby absolutely and
unconditionally grants, transfers and assigns to the Assignee the entire
landlord's right, title and interest in and to all existing leases, tenancies
and occupancy agreements (other than the Ground Lease, as hereinafter defined)
covering or affecting all or any part of that certain lot or piece or parcel of
land and building(s), more particularly described in Exhibit A annexed hereto
and made a part hereof (the said premises, together with the buildings and
improvements now or hereafter erected thereon, being hereinafter collectively
referred to as the "Premises"). This assignment is absolute in nature and not an
assignment for additional security only. The term "Ground Lease" shall mean the
current ground lease pursuant to which the Assignor presently occupies space at
the Premises, which is the "Subject Lease" under the Deed of Trust (defined
below).
THIS Assignment is made TOGETHER WITH all leases, tenancies and
occupancy agreements hereafter made (all present and future leases, tenancies
and occupancy agreements (other than the Ground Lease) are hereinafter
collectively referred to as the "Leases"); this assignment of present and future
Leases being effective without any further or supplemental assignment of any
nature whatsoever;
TOGETHER WITH all modifications, extensions and guaranties of all
Leases;
TOGETHER WITH all Rents (as hereinafter defined).
THIS Assignment is made in connection with a Line of Credit Agreement,
of even date herewith, among the Assignor, the Assignee, Xxxxx & Wollensky of
Boston LLC and The Xxxxx & Wollensky Restaurant Group, Inc. (the "Loan
Agreement"). Pursuant to the Loan Agreement, the Assignee has committed to make
Advances (as defined in the Loan Agreement) of up to $2,000,000, on a revolving
basis, to the Assignor, subject to and in accordance with the terms of the Loan
Agreement. The obligation of the Assignor to repay the Advances and any other
amounts owed under the Loan Agreement is evidenced by a certain Promissory Note
and secured by, among other things, a certain Leasehold Deed of Trust
encumbering the Premises (the "Deed of Trust"), both of even date herewith (the
Loan Agreement, the Deed of Trust and the said Note (which terms include all
modifications, extensions, increases, renewals and guaranties thereof now or
hereafter made) and the other documents and instruments executed and delivered
in connection therewith, all as modified, extended, renewed and guaranteed, as
applicable, are hereinafter collectively referred to as the "Loan Documents").
All sums payable by the Assignor pursuant to the Loan Documents and all other
sums with interest thereon
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becoming due and payable to the Assignee under the provisions of this Assignment
or the other Loan Documents are hereinafter collectively referred to as the
"Debt").
THE ASSIGNOR WARRANTS AND REPRESENTS to the Assignee, in order to
induce the Assignee to enter into the Loan Agreement and to accept this
Assignment and knowing that the Assignee will rely hereon, that: (i) the
Assignor is the sole owner of the entire landlord's interest in the Leases; (ii)
the Leases are valid and enforceable and in full force and effect and have not
been altered, modified or amended in any manner whatsoever except as herein set
forth; (iii) no rent reserved in the Leases has been assigned, pledged or in any
manner transferred or hypothecated, except pursuant to (w) that certain Absolute
Assignment of Leases and Rents dated August 23, 2002 made by the Assignor to the
Assignee and recorded on August 23, 2002 in the Official Records of Xxxxx
County, Nevada as Instrument No. 00055, (x) that certain Absolute Assignment of
Leases and Rents, dated December 23, 2002, made by the Assignor to the Assignee
and recorded on December 23, 2002 in the Official Records of Xxxxx County,
Nevada as Instrument No. 00766, (y) that certain Absolute Assignment of Leases
and Rents, dated January 30, 2004, made by the Assignor to the Assignee and
recorded on January 30, 2004 in the Official Records of Xxxxx County, Nevada as
Instrument No. 04360, and (z) this Assignment; and (iv) no rent for any period
subsequent to the date of this Assignment has been collected in advance of the
time when the same became due under the terms of the Leases.
THE ASSIGNOR COVENANTS WITH THE ASSIGNEE to observe and perform all
the obligations imposed upon the landlord under the Leases and not to do or
permit to be done anything to impair the interests granted to the Assignee
hereunder; to promptly send to the Assignee copies of all notices of default
which the Assignor shall send or receive under the Leases; to enforce the
performance or observance of the provisions thereof by the tenants thereunder;
not to collect any of the rents, income and profits arising from the Leases
and/or the Premises (the "Rents") except as herein below set forth; not to
subordinate any of the Leases to any deed of trust (other than the Deed of Trust
and any other deed of trust made for the benefit of the Assignee) or other
encumbrance or permit, consent, or agree to such subordination without the prior
written consent of the Assignee; not to alter, modify or change the terms of any
of the Leases nor give any consent to exercise any option required or permitted
by such terms without the prior written consent of the Assignee, nor cancel or
terminate any of the Leases or accept a surrender thereof, nor convey or
transfer, nor suffer or permit a conveyance or transfer of, the Premises, or of
any interest therein, so as to effect directly or indirectly, approximately or
remotely, a merger of the estates and rights of, or a termination or diminution
of the obligations of the tenant thereunder; not to alter, modify or change the
terms of any guaranty of any of the Leases nor cancel or terminate such
guaranty, without the prior written consent of the Assignee; not to consent to
any assignment of, or further subletting under, any of the Leases, without the
prior written consent of the Assignee; except as expressly provided in Paragraph
7 of the Deed of Trust, not make, or suffer to be made, any Lease of all or any
portion of the Premises, nor otherwise let all or any portion of the Premises,
without the prior written consent of the Assignee; at the Assignee's request, to
execute any documentation confirming the assignment and transfer to the Assignee
of any and all subsequent Leases upon all or any part of the Premises, and to
execute and deliver at the request of the Assignee all other further assurances,
confirmations and assignments in the Premises as the Assignee shall, from time
to time, reasonably require in connection herewith.
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THIS ASSIGNMENT IS MADE ON THE FOLLOWING TERMS, COVENANTS AND
CONDITIONS:
1. So long as there shall exist no default under any of the Loan
Documents (an "Event of Default"), nor any default by the Assignor in the
performance of any obligation contained herein and/or in any of the Leases on
the part of the Assignor to be performed or to cause to be performed, the
Assignee waives the right to enter the Premises for the purpose of collecting
the Rents and to let the Premises or any part thereof, and the Assignor may
continue to collect the Rents at the time of, but not more than one (1) month
prior to, the date provided for the payment thereof, and to retain, use and
enjoy the same and to let the Premises or any part thereof, all subject to the
provisions hereof and of the Loan Documents.
2. Upon, or at any time after, the occurrence of any Event of Default,
or of any default with respect to any obligation contained herein and/or in any
of the Leases on the part of the Assignor to be performed or to cause to be
performed, the Assignee, without in any way waiving such default or Event of
Default or releasing the Assignor from any obligation hereunder, at its option,
without notice and without regard to the adequacy of the indebtedness secured by
the Deed of Trust, and irrespective of whether the Assignee shall have commenced
a foreclosure of the Deed of Trust, may revoke the right of the Assignor to let
all or any portion of the Premises and collect the Rents and may, either in
person or by agent, with or without bringing any action or proceeding, or by a
receiver appointed by a court, take possession of the Premises and have, hold,
manage, lease and operate the same on such terms and for such period of time as
the Assignee may in its sole discretion deem proper and either with or without
taking possession of the Premises in its own name: (a) make any payment and/or
perform any act which the Assignor has failed to make or perform, in such manner
and to such extent as the Assignee may deem necessary to protect the interests
granted to the Assignee hereunder, or otherwise, including without limitation,
the right to appear in and defend any action or proceeding purporting to affect
the interests granted to the Assignee hereunder, or the rights or powers of the
Assignee; (b) let the Premises or any portion thereof in such manner and for
such Rents as the Assignee shall determine in its sole and absolute discretion;
and/or (c) demand, xxx for, or otherwise collect and receive from all persons
and entities (including the Assignor, as provided in the Deed of Trust) all
Rents, including those past due and unpaid, with full power to make from time to
time all alterations, renovations, repairs or replacements thereto or thereof as
may seem proper to the Assignee and to apply the Rents to the payment of: (i)
all expenses of managing the Premises, including, without limitation, the
salaries, fees and wages of a managing agent and such other employees as the
Assignee may deem necessary or desirable, (ii) all taxes, charges, claims,
assessments, water rents, sewer rents, and any other liens, and premiums for all
insurance which the Assignee may deem necessary or desirable, and the cost of
all alterations, renovations, repairs, or replacements, and all expenses
incidental to taking and retaining possession of the Premises, and (iii) all or
any portion of the Debt, together with (iv) all costs and attorneys' fees, in
such order of priority as to any of the items mentioned in this clause 2(c), as
the Assignee, in its sole discretion, may determine, any statute, law, custom or
use to the contrary notwithstanding. The Assignee shall give to the Assignor
notice of its revocation, pursuant to this Paragraph 2, of the right to let and
collect the Rents within a reasonable time thereafter (except that no such
notice shall be necessary if revocation results from a "Event of Default" under
the Loan Agreement with respect to which acceleration of debt thereunder is
automatic). The exercise by the Assignee of any rights or powers under this
Paragraph 2,
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including, without limitation, the collection of the Rents and the application
thereof as herein provided, shall not be considered a waiver by the Assignee of
any default by the Assignor under any of the Loan Documents or the Leases or
this Assignment, any statute, law, custom or use to the contrary
notwithstanding.
3. The Assignee shall not be liable for any loss sustained by the
Assignor resulting from the Assignee's failure to let the Premises after default
or from any other act or omission of the Assignee in managing the Premises after
default, unless such loss is caused by the gross negligence, willful misconduct
or bad faith of the Assignee. Nor shall the Assignee be obligated to perform or
discharge, nor does the Assignee hereby undertake to perform or discharge, any
obligation, duty or liability under the Leases or under or by reason of this
Assignment, and the Assignor shall, and does hereby agree, to indemnify the
Assignee for, and to hold the Assignee harmless from, any and all liability,
loss or damage which may or might be incurred under any of the Leases or under
or by reason of this Assignment and from any and all claims and demands
whatsoever which may be asserted against the Assignee by reason of any alleged
obligations and undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in any of the Leases, unless resulting
from the willful misconduct, gross negligence or bad faith of the Assignee.
Should the Assignee incur any such liability under any of the Leases or under or
by reason of this Assignment or in defense of any such claims or demands, the
amount thereof, including costs, expenses and attorneys' fees shall be secured
by the Deed of Trust, and the Assignor shall reimburse the Assignee therefor
within five (5) days after written demand and, upon the failure of the Assignor
so to do within such five (5) day period, the Assignee may, at its option,
declare all sums secured by the Deed of Trust immediately due and payable. It is
further understood that this Assignment shall not operate to place
responsibility for the control, care, management or repair of the Premises upon
the Assignee, nor for the carrying out of any of the terms and conditions of any
of the Leases; nor shall it operate to make the Assignee responsible or liable
for any waste committed on the Premises by the tenants or any other parties, nor
for any dangerous or defective condition of the Premises, nor for any negligence
in the management, upkeep, repair or control of the Premises resulting in loss,
injury or death to any tenant, licensee, employee or stranger, unless resulting
from the willful misconduct, gross negligence or bad faith of the Assignee.
4. Upon payment in full by the Assignor of the Debt, this Assignment
shall become and be void and of no effect, but the affidavit, certificate,
letter or statement of any officer, agent or attorney of the Assignee showing
any part of the Debt to remain unpaid shall be and constitute presumptive
evidence of the validity, effectiveness and continuing force of this Assignment
and any person may, and is hereby authorized to, rely thereon; provided,
however, that the full reconveyance of the Deed of Trust by the Assignee shall
conclusively terminate this Assignment. The Assignor hereby authorizes and
directs the tenants named in the Leases or any other tenants or future tenants
or occupants of all or any portion of the Premises, upon receipt from the
Assignee of written notice to the effect that the Assignee is then the
beneficiary of the Deed of Trust and the indebtedness secured thereby and that a
default exists thereunder or under this Assignment, to pay over to the Assignee
(or as the Assignee may direct) all rents, income and profits arising or
accruing under the Leases or from the Premises and to continue so to do until
otherwise notified by the Assignee.
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5. The Assignee may take or release any security for the payment of
the Debt, may release any party primarily or secondarily liable therefor and may
apply any security held by it to the satisfaction of the Debt without prejudice
to any of its rights under this Assignment.
6. Anything in this Assignment or in any of the other Loan Documents
to the contrary notwithstanding, the Assignor shall indemnify and hold the
Assignee harmless and defend the Assignee at the Assignor's sole cost and
expense against any loss or liability, cost or expense (including, without
limitation, reasonable attorneys' fees and disbursements of the Assignee's
counsel, whether in-house staff, retained firms or otherwise), and all claims,
actions, procedures and suits arising out of or in connection with (i) any
ongoing matters arising out of the transaction contemplated hereby, the Debt,
this Assignment, any other Loan Document or the Leases, including, but not
limited to, all costs of reappraisal of the Leases, whether required by law,
regulation, the Assignee or any governmental or quasi-governmental authority,
(ii) any amendment to, or restructuring of, the Debt and this Assignment, any of
the other Loan Documents or the Leases, and (iii) any and all lawful action that
may be taken by the Assignee in connection with the enforcement of the
provisions of this Assignment, the other Loan Documents or the Leases, whether
or not suit is filed in connection with the same, or in connection with the
Assignor, any guarantor of the Debt or any tenant 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. The foregoing
indemnity shall not apply to matters resulting from the gross negligence,
willful misconduct or bad faith of the Assignee. All sums expended by the
Assignee shall be payable within five (5) days after written demand and, until
reimbursed by the Assignor pursuant hereto, shall be deemed additional principal
of the Debt and secured by this Assignment, and shall bear interest at the
Default Rate (as defined in the Deed of Trust). The obligations of the Assignor
under this paragraph shall, notwithstanding any exculpatory or other provisions
of any nature whatsoever set forth in this Assignment, or any of the other Loan
Documents, constitute the personal recourse undertakings, obligations and
liabilities of the Assignor.
7. Nothing herein contained, and no act done or omitted by the
Assignee pursuant to the powers and rights granted to it hereunder, shall be
deemed to be a waiver by the Assignee of its rights and remedies under the Deed
of Trust or any of the other Loan Documents, and this Assignment is made and
accepted without prejudice to any of the rights and remedies possessed by the
Assignee under the terms thereof. The rights of the Assignee to collect the
Debt, and to enforce any security therefor held by it, may be exercised by the
Assignee either prior to, simultaneously with, or subsequent to any action taken
by it hereunder. The Assignor hereby absolutely, unconditionally and irrevocably
waives any and all right to assert any setoff, counterclaim or crossclaim of any
nature whatsoever with respect to the obligations of the Assignor under this
Assignment, the other Loan Documents or otherwise with respect to the matters
covered by the Loan Agreement in any action or proceeding brought by the
Assignee to collect same, or any portion thereof, or to enforce, foreclose and
realize upon the lien and security interest created by the Deed of Trust or any
other Loan Document securing repayment of same, in whole or in part (provided,
however, that the foregoing shall not be deemed a waiver of the Assignor's right
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 Assignor's right to assert any claim
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which would constitute a defense, setoff, counterclaim or crossclaim of any
nature whatsoever against the Assignee in any separate action or proceeding).
8. Nothing herein contained shall be construed as constituting the
Assignee a "mortgagee in possession" (or equivalent) in the absence of the
taking of actual possession of the Premises by the Assignee pursuant to the
provisions herein contained. In the exercise of the powers herein granted to the
Assignee, no liability shall be asserted or enforced against the Assignee, all
such liability being expressly waived and released by the Assignor.
9. In case of any inconsistency or conflict between the terms of this
Assignment and the terms of the Deed of Trust, the terms of this Assignment
shall in all cases govern and control.
10. The Assignor will, at the cost of the Assignor, and without
expense to the Assignee, do, execute, acknowledge and deliver all and every such
further acts, conveyances, assignments, notices of assignments, transfers and
assurances as the Assignee shall, from time to time, require for the better
assuring, conveying, assigning, transferring and confirming unto the Assignee
the property and rights hereby assigned or intended now or hereafter so to be,
or which the Assignor may be or may hereafter become bound to convey or assign
to the Assignee, or for carrying out the intention or facilitating the
performance of the terms of this Assignment or for filing, registering or
recording this Assignment and, on demand, will execute and deliver and hereby
authorizes the Assignee to execute in the name of the Assignor to the extent the
Assignee may lawfully do so, one or more financing statements or comparable
security instruments, to evidence more effectively the lien hereof upon the
Leases.
11. All notices given pursuant hereto shall be given (and deemed
received) in the manner set forth in the Loan Agreement.
12. This Assignment, together with the covenants, representations and
warranties herein contained, shall inure to the benefit of the Assignee and any
subsequent beneficiary of the Deed of Trust and shall be binding upon the
Assignor, and its successors and assigns and any subsequent owner of the
Premises.
13. This Assignment may only be modified, amended or changed by an
agreement in writing signed by the Assignor and the Assignee, and may only be
released, discharged or satisfied of record by an agreement in writing signed by
the Assignee. No waiver of any term, covenant or provision of this Assignment
shall be effective unless given in writing by the Assignee and if so given by
the Assignee shall only be effective in the specific instance in which given.
Whenever possible, each provision of this Assignment shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of this Assignment shall be unenforceable or prohibited by, or invalid
under, applicable law, such provision shall be ineffective to the extent of such
unenforceability, prohibition or invalidity, without invalidating the remaining
provisions of this Assignment. The Assignor acknowledges that this Assignment
and the other Loan Documents set forth the entire agreement and understanding of
the Assignor and the Assignee with respect to the matters covered by the Loan
Agreement and that no oral or other agreement, understanding, representation or
warranty exists with respect thereto other than those set forth in this
Assignment and the other Loan Documents.
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14. The Assignor hereby irrevocably and unconditionally waives, and
the Assignee by its acceptance of the Deed of Trust and this Assignment
irrevocably and unconditionally waives, any and all rights to trial by jury in
any action, suit or counterclaim arising in connection with, out of or otherwise
relating to this Assignment and any other Loan Documents heretofore, now or
hereafter executed and/or delivered in connection therewith, the Advances or in
any way related to this transaction or otherwise with respect to the Premises or
the Leases.
15. The Assignor acknowledges and agrees that, upon recordation of
this Assignment, the Assignee's interest in the Rents shall be deemed to be
fully perfected, "xxxxxx" and enforced as to the Assignor and all third parties,
including without limitation any subsequently appointed trustee in any case
under the Bankruptcy Code (as defined in the Deed of Trust), without the
necessity of (i) commencing a foreclosure action with respect to the Deed of
Trust, (ii) furnishing notice to the Assignor or tenants under the Leases, (iii)
making formal demand for the Rents, (iv) taking possession of the Premises as
mortgagee-in-possession (or equivalent), (v) obtaining the appointment of a
receiver of the rents and profits of the Premises, (vi) sequestering or
impounding the Rents, or (vii) taking any other affirmative action.
16. The Assignor acknowledges and agrees that all Rents shall be
deemed to be "Cash Collateral" under Section 363 of the Bankruptcy Code in the
event that the Assignor files a voluntary petition in bankruptcy or is made
subject to any involuntary bankruptcy proceeding. After the filing of such
petition, the Assignor may not use Cash Collateral without the consent of the
Assignee and/or an order of any bankruptcy court pursuant to Section 363(b)(2)
of the Bankruptcy Code.
17. It is expected that all Advances, if any, made pursuant to the
Loan Agreement will be disbursed from the State of New York, which state the
parties agree has a substantial relationship to the underlying transaction
embodied hereby, and in all respects, including, without limiting the generality
of the foregoing, matters of construction, validity and performance. This
Assignment and the obligations arising hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and performed in New York State and any applicable laws of the
United States of America, without regard to conflict of law rules and
principles. Notwithstanding such provisions, however, matters respecting title
and the creation, perfection, priority and foreclosure or exercise of any power
of sale or similar remedy (including, without limitation, all matters concerning
the nature of any interest in property that results therefrom) of the lien
encumbering the collateral covered by this Assignment shall be governed by, and
construed and enforced in accordance with, the internal law of the State of
Nevada without giving effect to the conflicts of law rules and principle of such
state.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, this Assignment has been executed by the Assignor
the day and year first above written.
S&W OF LAS VEGAS, L.L.C.
By: The Xxxxx & Wollensky Restaurant
Group, Inc., Sole Member
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 20th day of July in the year 2004 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.
__________________________________
Notary Public
EXHIBIT A
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(Legal Description of Premises)
All that real property situated in the County of Xxxxx, State of Nevada, bounded
and described as follows:
The South 120 feet of the West Half (W 1/2) of the Northwest Quarter (NW 1/4) of
the Southwest Quarter (SW 1/4);
AND
The North 10 feet of the West One-Half (W 1/2) of the Southwest Quarter (SW 1/4)
of the Southwest Quarter (SW 1/4) of Section 21, Township 21 South, Range 61
East, M.D.B. & M.
EXCEPTING THEREFROM all State and County roads and highways.
Assessor's Parcel No. 162-21-301-014
S&W OF LAS VEGAS, L.L.C.
AND
XXXXXX XXXXXXX XXXX XXXXXX
COMMERCIAL FINANCIAL SERVICES, INC.
__________________________________________
ABSOLUTE ASSIGNMENT
OF LEASES AND RENTS
___________________________________________
Dated: As of July ___, 2004
Location: 0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxx, Xxxxxx
RECORD AND RETURN TO:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
