Exhibit 10.91
GUARANTY OF PAYMENT
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New York, New York
July 21st, 2004
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 0000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 (the "Lender") for a line of credit, which line of credit 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 (the "Line of Credit");
WHEREAS, the Lender is willing to enter into the Loan
Agreement and to make the Advances (as defined in Exhibit A hereto) 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 Advances 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. 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, arising in connection with 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 Line of Credit (said Note, Deed of Trust, Loan Agreement and
other documents and instruments being collectively, the "Loan Documents"),
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 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
either or both of 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 affiliates, 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 or brokerage
account and credits of the undersigned with, and any and all claims of the
undersigned against, the Lender or any such affiliate, correspondent,
participant or agent, 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
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agreement executed by either or both of the undersigned. The Lender, 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 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 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 either or both 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 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
any Advances 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 either or
both 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 either or both 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) either or both 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 the undersigned herein contained shall remain in force and
application notwithstanding any
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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 either or both of the undersigned shall be deemed to be a waiver of the
obligations of either 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 either 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 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.
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 either or both 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 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 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 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, representations or warranties exist with respect to
this Guaranty or
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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 or other organizational 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 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 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 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.
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, applied and enforced in accordance with
the laws of the State of New York without regard to
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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 Line of Credit 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 Advances or
termination of the Commitment (as defined in the Loan Agreement), 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 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
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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 either or both of the undersigned to
the Lender in connection with the Line of Credit.
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: Secretary
XXXXX & WOLLENSKY OF BOSTON LLC
By: The Xxxxx & Wollensky Restaurant
Group, Inc.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
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.
/s/ Xxxxx X. Xxxxx
-----------------------------
Notary Public
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.
/s/ Xxxxx X. Xxxxx
-----------------------------
Notary Public
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EXHIBIT A
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Advances: The term "Advances" as used in this Guaranty shall
have the meaning assigned to such term in the Loan Agreement.
Deed of Trust: The term "Deed of Trust" as used in this
Guaranty shall have the meaning assigned to such term in the Loan Agreement.
Loan Agreement: The term "Loan Agreement" as used in this
Guaranty shall mean that certain Line of Credit Agreement, of even date
herewith, entered into among the Borrower, The Xxxxx & Wollensky Restaurant
Group, Inc., Xxxxx & Wollensky of Boston LLC and the Lender, together with any
and all modifications, supplements, replacement or substitutions therefor as may
exist from time to time.
Loan Documents: The term "Loan Documents" as used in this
Guaranty shall have the meaning assigned to such term in the Loan Agreement.
Note: The term "Note" as used in this Guaranty shall mean the
Promissory Note, of even date herewith, referred to in the Loan Agreement,
together with any and all modifications, supplements, replacements or
substitutions therefor as may exist from time to time.
