Exhibit 10.94
JOINT AND SEVERAL
HAZARDOUS MATERIAL
GUARANTY AND INDEMNIFICATION AGREEMENT
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New York, New York
July 21st, 2004
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ COMMERCIAL FINANCIAL SERVICES,
INC., a Delaware corporation, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Lender") has agreed to make one or more advances
under a line of credit to S&W OF LAS VEGAS, L.L.C., a Delaware limited liability
company, having an office at c/o The ▇▇▇▇▇ & Wollensky Restaurant Group, Inc.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Borrower"), 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"); and
WHEREAS, the Lender is willing to enter into the Loan Agreement and to
make available the Line of Credit to the Borrower only if the undersigned
executes and delivers this Joint and Several Hazardous Material Guaranty and
Indemnification Agreement (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 Advances (as defined in Exhibit A hereto) thereunder, 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 Line of
Credit (said Note, Deed of Trust, Loan Agreement and other documents and
instruments being, 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) except as set forth in the Phase I Environmental Site
Assessment dated October 19, 1994 prepared by Terracon Consultants Western, Inc.
(heretofore reviewed by the Lender or its consultant), no Hazardous Material is
currently located at, on, in, under or about the Trust Property 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
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Deed of Trust (titled, "Environmental Provisions"). 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 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
any 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 any of the undersigned thereunder, whether or not suit is filed
in connection with the same, or in connection with the Borrower, any 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 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 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 any or all
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 any or all of the undersigned, whether or not due, and the Lender
shall, at its option, be deemed to
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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.
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 any 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 any or all of
the undersigned or to any other person or party with respect to any obligations
hereby guaranteed;
(c) all other notices to which any or all 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) any or all 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) any or all 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 Line of Credit 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,
or 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 any or all of the undersigned shall be deemed
to be a waiver of the obligation of any or all 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 any
or all 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 any or all 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
or all 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 any or all 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
any or all 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 or all 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 any or all 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 any or all of the undersigned, nor
shall any or all 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 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
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 Advances or
termination of the Commitment (as defined in the Loan Agreement), 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 any or all 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 any or all 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 any or all of the undersigned to the Lender in
connection with the Line of Credit.
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 have duly executed this Guaranty
and Indemnification Agreement the day and year first above set forth.
S&W OF LAS VEGAS, L.L.C.
By: The ▇▇▇▇▇ & Wollensky Restaurant
Group, Inc., Sole Member
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
THE ▇▇▇▇▇ & WOLLENSKY
RESTAURANT GROUP, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇ & WOLLENSKY OF BOSTON LLC
By: The ▇▇▇▇▇ & Wollensky Restaurant
Group, Inc., Sole Member
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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 ▇▇▇▇ ▇.
▇▇▇▇▇▇, 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
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 ▇▇▇▇ ▇.
▇▇▇▇▇▇, 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
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 ▇▇▇▇ ▇.
▇▇▇▇▇▇, 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Notary Public
-14-
EXHIBIT A
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Advances: The term "Advances" as used in this Guaranty and
Indemnification Agreement 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 and
Indemnification Agreement shall have the meaning assigned to such term in the
Loan Agreement.
Loan Agreement: The term "Loan Agreement" as used in this Guaranty and
Indemnification Agreement shall mean that certain Line of Credit Agreement, of
even date herewith, entered into among the Borrower, The ▇▇▇▇▇ & Wollensky
Restaurant Group, Inc., ▇▇▇▇▇ & 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.
Note: The term "Note" as used in this Guaranty and Indemnification
Agreement 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.