Exhibit 10.62


 


JOINT AND SEVERAL


HAZARDOUS MATERIAL


GUARANTY AND INDEMNIFICATION AGREEMENT


 


New York, New York


December 17th, 2002


 


WHEREAS,
MORGAN STANLEY DEAN WITTER COMMERCIAL FINANCIAL SERVICES, INC., a Delaware
corporation, having an office at 825 Third Avenue, New York, New York 10022
(the “Lender”) has agreed to make
one or more loans (collectively, the “Loan”)
to S&W OF LAS VEGAS, L.L.C., a Delaware limited liability company, having
an office at c/o The Smith & Wollensky Restaurant Group, Inc., 1114 First
Avenue, New York, New York 10021 (the “Borrower”),
which Loan will be (a) evidenced by the Note, (b) secured by, among other
things, the Deed of Trust and (c) advanced pursuant to the Loan Agreement, all
as defined in Exhibit A attached hereto; and


 


WHEREAS, the
Lender is willing to enter into the Loan Agreement and to make the Loan only if
the undersigned executes and delivers this Guaranty and Indemnification
Agreement.


 


NOW,
THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and legal sufficiency of which are hereby acknowledged, and in
order to induce the Lender to enter into the Loan Agreement and to make the
Loan, the undersigned hereby acknowledges, agrees and confirms that all of the
above recitals are true, correct and complete and hereby covenants and agrees
with the Lender as follows:


 


1.             For the purposes of this Guaranty
and Indemnification Agreement the following terms shall have the following
meanings:


 


(a)           the term “Hazardous Material” shall mean any material or substance that,
whether by its nature or use, is now or hereafter defined as hazardous waste,
hazardous substance, pollutant or contaminant under any Environmental
Requirement, or which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and which is now or
hereafter regulated under any Environmental Requirement, or which is or
contains petroleum, gasoline, diesel fuel or another petroleum hydrocarbon
product;


 


(b)           the term “Environmental Requirements” shall collectively mean all
present and future laws, statutes, ordinances, rules, regulations, orders,
codes, licenses, permits, decrees, judgments, directives or the equivalent of
or by any Governmental Authority and relating to or addressing the protection
of the environment or human health;


 


(c)           the term “Governmental Authority” shall mean the Federal government, or
any state or other political subdivision thereof, or any agency, court or body
of the Federal 


 


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government, any state or other
political subdivision thereof, exercising executive, legislative, judicial,
regulatory or administrative functions;


 


(d)           the term “Trust Property” shall have the meaning given to such term in
the Deed of Trust, and shall include, for purposes of this Guaranty and
Indemnification Agreement, the land comprising the Premises (as defined in the
Deed of Trust); and


 


(e)           the term “Debt” shall mean all principal, interest, additional interest
(including specifically all interest accruing from and after the commencement
of any case, proceeding or action under any existing or future laws relating to
bankruptcy, insolvency or similar matters with respect to the Borrower) and
other sums of any nature whatsoever which may or shall become due and payable
pursuant to the provisions of the Note, the Deed of Trust, the Loan Agreement,
or any other document or instrument now or hereafter executed and/or delivered
in connection therewith or otherwise with respect to the Loan (said Note, Deed
of Trust, Loan Agreement and other documents and instruments, collectively, the
“Loan Documents”) [all of the
above unaffected by modification thereof in any bankruptcy or insolvency
proceeding], and even though the Lender may not have an allowed claim for the
same against the Borrower as a result of any bankruptcy or insolvency
proceeding.


 


2.             The undersigned hereby represents
and warrants to the Lender that to the best of the undersigned’s knowledge:


 


(a)           no Hazardous Material is currently
located at, on, in, under or about the Trust Property in violation of any
Environmental Requirements, except as specifically set forth in the Phase
I Environmental Site Assessment dated November 20, 2002 prepared by National
Assessment Corporation;


 


(b)           no releasing, emitting, discharging,
leaching, dumping or disposing of any Hazardous Material from the Trust
Property onto or into any other property or from any other property onto or
into the Trust Property has occurred or is occurring in violation of any
Environmental Requirement;


 


(c)           no notice of violation, lien,
complaint, suit, order or other notice with respect to the Trust Property is
presently outstanding under any Environmental Requirement; and


 


(d)           the Trust Property and the operation
thereof are in full compliance with all Environmental Requirements.


 


3.             The undersigned absolutely and
unconditionally guarantees to the Lender that the Borrower will fully comply
with all of the terms, covenants and provisions of paragraph 9 of the Deed of
Trust.  If the Borrower does not fully
comply with all of the terms, covenants and provisions of paragraph 9 of the
Deed of Trust, the undersigned shall reimburse the Lender upon


 


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demand for all sums and costs
and expenses incurred by the Lender to the extent not otherwise reimbursed to
the Lender by the Borrower pursuant to said paragraph in the Deed of Trust
and/or in connection with the Lender performing the Borrower’s obligations as
set forth in paragraph 9 of the Deed of Trust (including specifically all such
sums and interest thereon accruing from and after the commencement of any case,
proceeding or action under any existing or future laws relating to bankruptcy,
insolvency or similar matters with respect to the Borrower), it being
understood and agreed that, the undersigned’s obligations hereunder shall be
unaffected by modification of any of the Borrower’s obligations in any
bankruptcy or insolvency proceeding, nor by the fact that the Lender may not
have an allowed claim for the same against the Borrower as a result of any
bankruptcy or insolvency proceeding.


 


4.             The undersigned will defend,
indemnify, and hold harmless the Lender its employees, agents, officers, and
directors, from and against any and all claims, demands, penalties, causes of
action, fines, liabilities, settlements, damages, costs, or expenses of
whatever kind or nature, known or unknown, foreseen or unforeseen, contingent
or otherwise (including, without limitation, counsel and consultant fees and
expenses, investigation and laboratory fees and expenses, court costs, and
litigation expenses) arising out of, or in any way related to:


 


(a)           any breach by the Borrower of any of
the provisions of paragraph 9 of the Deed of Trust;


 


(b)           the presence, disposal, spillage,
discharge, emission, leakage, release, or threatened release of any Hazardous
Material which is at, in, on, under, about, from or affecting the Trust
Property, including, without limitation, any damage or injury resulting from
any such Hazardous Material to or affecting the Trust Property or the soil,
water, air, vegetation, buildings, personal property, persons or animals
located on the Trust Property or on any other property or otherwise;


 


(c)           any personal injury (including
wrongful death) or property damage (real or personal) arising out of or related
to any such Hazardous Material;


 


(d)           any lawsuit brought or threatened,
settlement reached, or order or directive of or by any Governmental Authority
relating to such Hazardous Material; or


 


(e)           any violation of any Environmental
Requirement.


 


5.             The undersigned hereby indemnifies
and shall hold harmless and defend the Lender at the undersigned’s sole cost
and expense against any loss or liability, cost or expense (including, but not
limited to, reasonable attorneys’ fees and disbursements of the Lender’s
counsel, whether in-house staff, retained firms or otherwise), and all claims,
actions, procedures


 


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and suits arising out of or in
connection with:


 


(a)           any ongoing matters arising out of
this Guaranty and Indemnification Agreement and any document or instrument now
or hereafter executed and/or delivered in connection herewith (the “Indemnity Documents”);


 


(b)           any amendment to, or restructuring of
the obligations of the undersigned hereunder; and


 


(c)           any and all lawful action that may be
taken by the Lender in connection with the enforcement of the provisions of
this Guaranty and Indemnification Agreement or any of the other Indemnity
Documents and the obligations of the undersigned thereunder, whether or not
suit is filed in connection with the same, or in connection with the Borrower,
either of the undersigned and/or any partner, joint venturer or shareholder
thereof becoming a party to a voluntary or involuntary federal or state
bankruptcy, insolvency or similar proceeding.


 


All sums expended by the Lender
shall be payable within five (5) days after written demand and, until
reimbursed by the undersigned pursuant hereto, shall bear interest at the
default interest rate set forth in the Note.


 


6.             In addition to any right available
to the Lender under applicable law or any other agreement, the undersigned
hereby gives to the Lender a continuing lien on, security interest in and right
of set-off against all moneys, securities and other property of the undersigned
and the proceeds thereof, now on deposit or now or hereafter delivered,
remaining with or in transit in any manner to the Lender, its correspondents,
participants or its agents from or for the undersigned (other than separate
accounts maintained exclusively for payroll or taxes), whether for safekeeping,
custody, pledge, transmission, collection or otherwise or coming into
possession of the Lender in any way, and also, any balance of any deposit
account and credits of the undersigned with, and any and all claims of the
undersigned against, the Lender at any time existing, as collateral security
for all of the obligations of the undersigned under this Guaranty and Indemnification
Agreement, including fees, contracted with or acquired by the Lender, whether
joint, several, absolute, contingent, secured, matured or unmatured (for the
purposes of this paragraph 6 and paragraphs 8, 10 and 18 below,
collectively, the “Liabilities”),
hereby authorizing the Lender at any time or times, without prior notice, to
apply such balances, credits or claims, or any part thereof, to such
Liabilities in such amounts as it may select, whether contingent, unmatured or
otherwise and whether any collateral security therefore is deemed adequate or
not.  The collateral security described
herein shall be in addition to any collateral security described in any
separate agreement executed by either or both of the undersigned.  The Lender, n addition to any right
available to it under applicable law or any other agreement, shall have the
right, at its option, to immediately set off against any Liabilities all monies
owed by the Lender in any capacity to either or both of the undersigned,
whether or not due, and the Lender shall, at its option, be deemed to have
exercised such right to set off and to have made a charge 


 


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against any such money
immediately upon the occurrence of any events of default set forth below, even
though such charge is made or entered on the books of the Lender subsequent to
those events.


 


7.             The obligations and liabilities of
the undersigned under this Guaranty and Indemnification Agreement shall survive
and continue in full force and effect and shall not be terminated, discharged
or released, in whole or in part, irrespective of whether the Debt has been
paid in full and irrespective of any foreclosure of the Deed of Trust, sale of
the Trust Property pursuant to the provisions of the Deed of Trust or
acceptance by the Lender, its nominee or wholly owned subsidiary of a deed or
assignment in lieu of foreclosure or sale and irrespective of any other fact or
circumstance of any nature whatsoever.


 


8.             The undersigned hereby expressly
agrees that this Guaranty and Indemnification Agreement is independent of, and
in addition to, all collateral granted, pledged or assigned under the Loan
Documents, and the undersigned hereby consents that from time to time, before
or after any default by the Borrower, with or without further notice to or
assent from either of the undersigned:


 


(a)           any security at any time held by or
available to the Lender for any obligation of the Borrower, or any security at
any time held by or available to the Lender for any obligation of any other
person or party primarily, secondarily or otherwise liable for all or any
portion of the Debt, any other Liabilities and/or any other obligations of the
Borrower or any other person or party, other than the Lender, under any of the
Loan Documents (“Other Obligations”),
including any guarantor of the Debt, the Liabilities and/or of any of such
Other Obligations, may be accelerated, settled, exchanged, surrendered or
released and the Lender may fail to set off and may release, in whole or in
part, any balance of any deposit account or credit on its books in favor of the
Borrower, or any such other person or party;


 


(b)           any obligation of the Borrower, or of
any such other person or party, may be changed, altered, renewed, extended,
continued, accelerated, surrendered, compromised, settled, waived or released
in whole or in part, or any default with respect thereto waived; and


 


(c)           the Lender may extend further credit
in any manner whatsoever to the Borrower, and generally deal with the Borrower
or any of the abovementioned security, deposit account, credit on its books or
other person or party as the Lender may see fit;


 


and the undersigned shall
remain bound under this Guaranty and Indemnification Agreement, without any
loss of rights by the Lender and without affecting the liability of the
undersigned, notwithstanding any such exchange, surrender, release, change,
alteration, renewal, extension, continuance, compromise, waiver, inaction,
extension of further credit or other dealing. 
In addition, all moneys available to the Lender for application in
payment or reduction of the Debt, the Liabilities and/or any Other Obligations
may be applied by the Lender in such manner and in 


 


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such amounts and at such time
or times and in such order, priority and proportions as the Lender may see fit.


 


9.             The undersigned hereby waives:


 


(a)           notice of acceptance of this Guaranty
and Indemnification Agreement;


 


(b)           protest and notice of dishonor or
default to either or both of the undersigned or to any other person or party
with respect to any obligations hereby guaranteed;


 


(c)           all other notices to which either or
both of the undersigned might otherwise be entitled; and


 


(d)           any demand under this Guaranty and
Indemnification Agreement.


 


10.           If any of the following events should
occur:


 


(a)           either or both of the undersigned
defaults under any of the Loan Documents and its continuance beyond any
applicable notice and/or grace period therein contained; or


 


(b)           either or both of the undersigned
violates any provision of this Guaranty and Indemnification Agreement or any
other guaranty or other agreement executed by them with respect to the Loan or
this Guaranty and Indemnification Agreement;


 


then, and in such event, the
Lender may declare the Liabilities to be, and the same shall become,
immediately due and payable and/or may exercise either or both 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 either or both of the undersigned shall be deemed to be
a waiver of the obligation of either or both of the undersigned or of the right
of the Lender to take further action without notice or demand as provided in
this Guaranty and Indemnification Agreement. 
No course of dealing between either of the undersigned and the Lender
shall change, modify or discharge, in whole or in part, this Guaranty and
Indemnification Agreement or any obligations of the undersigned hereunder.


 


15.           This Guaranty and Indemnification
Agreement may only be modified, amended, changed or terminated by an agreement
in writing signed by the Lender and the undersigned.  No waiver of any term, covenant or provision of this Guaranty and
Indemnification Agreement shall 


 


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be effective unless given in
writing by the Lender and if so given by the Lender shall only be effective in
the specific instance in which given. 
The execution and delivery hereafter to the Lender by either or both of
the undersigned of a new instrument of guaranty or any reaffirmation of
guaranty, of whatever nature, shall not terminate, supersede or cancel this
instrument, unless expressly so provided therein, and all rights and remedies
of the Lender hereunder or under any instrument of guaranty hereafter executed
and delivered to the Lender by either or both of the undersigned shall be
cumulative and may be exercised singly or concurrently.


 


16.           The undersigned acknowledges that
this Guaranty and Indemnification Agreement and the undersigned’s obligations
under this Guaranty and Indemnification Agreement are and shall at all times
continue to be absolute, irrevocable and unconditional in all respects, and
shall at all times be valid and enforceable irrespective of any other
agreements or circumstances of any nature whatsoever which might otherwise
constitute a defense to this Guaranty and Indemnification Agreement and the
obligations of either or both of the undersigned under this Guaranty and
Indemnification Agreement or the obligations of any other person or party
(including, without limitation, the Borrower) relating to this Guaranty and
Indemnification Agreement or the obligations of either or both of the
undersigned hereunder or otherwise with respect to the Debt, including, but not
limited to, a foreclosure of the Deed of Trust or the realization upon any
other collateral given, pledged or assigned as security for all or any portion
of the Debt, or the filing of a petition under Title 11 of the United
States Code with regard to the Borrower or either or both of the undersigned,
or the commencement of an action or proceeding for the benefit of the creditors
of the Borrower or the undersigned, or the obtaining by the Lender of title to,
respectively, the Trust Property or to any collateral given, pledged or
assigned as security for the Debt by reason of the foreclosure or enforcement
of the Deed of Trust or any other pledge or security agreement, the acceptance
of a deed or assignment in lieu of foreclosure or sale, or otherwise.  This Guaranty and Indemnification Agreement
sets forth the entire agreement and understanding of the Lender and the
undersigned with respect to the matters covered by this Guaranty and Indemnification
Agreement, and the undersigned acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this
Guaranty and Indemnification Agreement or with respect to the obligations of
the undersigned under this Guaranty and Indemnification Agreement, except those
specifically set forth in this Guaranty and Indemnification Agreement.


 


17.           This Guaranty and Indemnification
Agreement has been validly authorized, executed and delivered by the
undersigned.  The undersigned represents
and warrants to the Lender that it has the corporate or other organizational
power to do so and to perform its obligations under this Guaranty and
Indemnification Agreement.  The
undersigned represents and warrants to the Lender that this Guaranty and
Indemnification Agreement constitutes the legally binding obligation of the
undersigned fully enforceable against the undersigned in


 


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accordance with the terms
hereof.  The undersigned further
represents and warrants to the Lender that:


 


(a)           neither the execution and delivery of
this Guaranty and Indemnification Agreement nor the consummation of the
transactions contemplated hereby nor compliance with the terms and provisions
hereof will violate any applicable provision of law or any applicable
regulation or other manifestation of governmental action; and


 


(b)           all necessary approvals, consents,
licenses, registrations and validations of any governmental regulatory body,
including, without limitation, approvals required to permit the undersigned to
execute and carry out the provisions of this Guaranty and Indemnification
Agreement, for the validity of the obligations of the undersigned hereunder and
for the making of any payment or remittance of any funds required to be made by
the undersigned under this Guaranty and Indemnification Agreement, have been
obtained and are in full force and effect.


 


18.           Notwithstanding any payments made by
either or both of the undersigned pursuant to the provisions of this Guaranty
and Indemnification Agreement, the undersigned irrevocably waives all rights to
enforce or collect upon any rights which it now has or may acquire against the
Borrower either by way of subrogation, indemnity, reimbursement or contribution
for any amount paid under this Guaranty and Indemnification Agreement or by way
of any other obligations whatsoever of the Borrower to either or both of the
undersigned, nor shall either or both of the undersigned file, assert or
receive payment on any claim, whether now existing or hereafter arising,
against the Borrower in the event of the commencement of a case by or against
the Borrower under Title 11 of the United States Code.  In the event either a petition is filed
under said Title 11 of the United States Code with regard to the Borrower
or an action or proceeding is commenced for the benefit of the creditors of the
Borrower, this Guaranty and Indemnification Agreement shall at all times
thereafter remain effective in regard to any payments or other transfers of
assets to the Lender received from or on behalf of the Borrower prior to notice
of termination of this Guaranty and Indemnification Agreement and which are or
may be held voidable on the grounds of preference or fraud, whether or not the
Debt has been paid in full.  Any payment
on account of or reacknowledgment of the Debt by the Borrower, or any other
party liable therefor, or action taken, or payment or reacknowledgment made, of
any of the obligations of the Borrower to take and complete the actions
specified in paragraph 9 of the Deed of Trust shall serve to start anew the
statutory period of limitations applicable to the Borrower with respect to said
paragraph 9 and the undersigned hereunder. 
The provisions of this paragraph 18 shall survive the term of this
Guaranty and the payment in full of the Debt and all other Liabilities.


 


19.           Any notice, request or demand given
or made under this Guaranty and Indemnification Agreement shall be in writing
and shall be given in the manner and to the notice parties set forth in the
Loan Agreement.


 


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20.           This Guaranty and Indemnification
Agreement is, and shall be deemed to be, a contract entered into under and
pursuant to the laws of the State of New York and shall be in all respects
governed, construed, applied and enforced in accordance with the laws of the
State of New York without regard to principles of conflicts of laws.  The undersigned acknowledges and agrees that
this Guaranty and Indemnification Agreement is, and is intended to be, an
instrument for the payment of money only, as such phrase is used in §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 §3213.


 


21.           The undersigned agrees to submit to
personal jurisdiction in the State of New York in any action or proceeding
arising out of this Guaranty and Indemnification Agreement.  In furtherance of such agreement, the undersigned
hereby agrees and consents that without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the undersigned in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in New York and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the undersigned by registered or certified mail to, or by
personal service at, the last known address of the undersigned, whether such
address be within or without the jurisdiction of any such court.  The undersigned hereby further agrees that
the venue of any litigation arising in connection with the Debt or in respect
of any of the obligations of the undersigned under this Guaranty and Indemnification
Agreement, shall, to the extent permitted by law, be in New York County.  Nothing in this paragraph shall limit the
right of the Lender to bring an action or proceeding arising out of this
Guaranty and Indemnification Agreement in any other jurisdiction.


 


22.           The undersigned absolutely,
unconditionally and irrevocably waives any and all right to assert or interpose
any defense, setoff, counterclaim or crossclaim of any nature whatsoever with
respect to this Guaranty and Indemnification Agreement or the obligations of
the undersigned under this Guaranty and Indemnification Agreement, or the
obligations of any other person or party (including, without limitation, the
Borrower) relating to this Guaranty and Indemnification Agreement, or the
obligations of the undersigned hereunder or otherwise with respect to the Loan
in any action or proceeding brought by the Lender to collect the Debt, or any
portion thereof, or to enforce the obligations of the undersigned under this
Guaranty and Indemnification Agreement (provided, however, that the foregoing
shall not be deemed a waiver of the right of the undersigned to assert any
compulsory counterclaim maintained in a court of the United States, or of the
State of New York if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of the right of the
undersigned to assert any claim which would constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against the Lender in any
separate action or proceeding).  The
undersigned hereby undertakes and agrees that this Guaranty shall remain in
full force and effect for all of the obligations and liabilities of the
undersigned hereunder, notwithstanding the maturity of the Loan, whether by acceleration,
scheduled maturity or otherwise.


 


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23.           No exculpatory provisions which may
be contained in any Loan Document shall in any event or under any circumstances
be deemed or construed to modify, qualify, or affect in any manner whatsoever
the obligations and liabilities of the undersigned under this Guaranty and
Indemnification Agreement.


 


24.           The
obligations and liabilities of the undersigned under this Guaranty and
Indemnification Agreement are in addition to the obligations and liabilities of
the undersigned under the Other Guaranties (as hereinafter defined).  The discharge of either or both of the
undersigned’s obligations and liabilities under any one or more of the Other
Guaranties by the undersigned or by reason of operation of law or otherwise
shall in no event or under any circumstance constitute or be deemed to
constitute a discharge, in whole or in part, of the undersigned’s obligations
and liabilities under this Guaranty and Indemnification Agreement.  Conversely, the discharge of either or both
of the undersigned’s obligations and liabilities under this Guaranty and
Indemnification Agreement by the undersigned or by reason of operation of law
or otherwise shall in no event or under any circumstance constitute or be
deemed to constitute a discharge, in whole or in part, of the undersigned’s
obligations and liabilities under any of the Other Guaranties.  The term “Other
Guaranties” as used herein shall mean any other guaranty of payment,
guaranty of performance, completion guaranty, indemnification agreement or
other guaranty or instrument creating any obligation or undertaking of any
nature whatsoever (other than this Guaranty and Indemnification Agreement) now
or hereafter executed and delivered by either or both of the undersigned to the
Lender in connection with the Loan.


 


25.           This Guaranty and Indemnification
Agreement may be executed in one or more counterparts by some or all of the
parties hereto, each of which counterparts shall be an original and all of
which together shall constitute a single agreement of guaranty.  The failure of any party listed below to
execute this Guaranty and Indemnification Agreement, or any counterpart hereof,
or the ineffectiveness for any reason of any such execution, shall not relieve
the other signatories from their obligations hereunder.


 


26.          The
undersigned hereby irrevocably and unconditionally waives, and the Lender by
its acceptance of this Guaranty and Indemnification Agreement irrevocably and
unconditionally waives, any and all right to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to
this Guaranty and Indemnification Agreement.


 


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IN WITNESS WHEREOF,
the undersigned 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:

  	
  /s/ Alan M.
  Mandel

  	
   

  
	
   

  	
   

  	
  Name: Alan
  M. Mandel

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
  THE SMITH
  & WOLLENSKY

  RESTAURANT GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan M.
  Mandel

  	
   

  
	
   

  	
   

  	
  Name: Alan
  M. Mandel

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer

  



 


12

















 


	
  STATE OF NEW
  YORK

  	
  )

  
	
   

  	
  ss.:

  
	
  COUNTY OF
  NEW YORK

  	
  )

  



 


On the 17th
day of December in the year 2002 before me, the undersigned, a Notary Public in
and for said State, personally appeared Alan M. Mandel, 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.


 


	
   

  	
  Angela L.
  Strobe

  	
   

  
	
   

  	
  Notary
  Public

  



 


 


	
  STATE OF NEW
  YORK

  	
  )

  
	
   

  	
  ss.:

  
	
  COUNTY OF
  NEW YORK

  	
  )

  



 


                                On the 17th day of December in the year 2002
before me, the undersigned, a Notary Public in and for said State, personally
appeared Alan M. Mandel, 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.


 


	
   

  	
  Angela L.
  Strobe

  	
   

  
	
   

  	
  Notary
  Public

  



 


13

















 


EXHIBIT A


 


Note: 
The term “Note” as used in
this Guaranty and Indemnification Agreement shall mean a certain Promissory
Note of even date herewith in the principal sum of $1,900,000.00 to be given by
the Borrower to the Lender, together with any and all modifications,
supplements, extensions, replacements or substitutions therefor as may exist
from time to time.


 


Deed of Trust: The term “Deed of Trust” as used in this Guaranty and
Indemnification Agreement shall mean a certain Leasehold Deed of Trust of even
date herewith to be given by the Borrower to the trustee thereunder for the
benefit of the Lender, constituting a lien on the leasehold estate of the
Borrower in certain premises located in Clark County, Nevada, as more
particularly described therein, and intended to be duly recorded in said
County, together with any and all modifications, supplements, extensions,
replacement or substitutions therefor as may exist from time to time.


 


Loan Agreement:  The term “Loan Agreement”
as used in this Guaranty and Indemnification Agreement shall mean a certain
Term Loan Agreement of even date herewith to be entered into among the
Borrower, The Smith & Wollensky Restaurant Group, Inc., Dallas S&W,
L.P. and the Lender, together with any and all modifications, supplements,
replacement or substitutions therefor as may exist from time to time.


 


14