Exhibit 10.57


 


PROMISSORY NOTE


 


 


	
  $1,900,000.00

  	
   

  	
  New York, New York

  
	
   

  	
   

  	
  December 24, 2002

  



 


FOR VALUE
RECEIVED, 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 “Maker”),
promises to pay to MORGAN STANLEY DEAN WITTER COMMERCIAL FINANCIAL SERVICES,
INC., a Delaware corporation, having an office at 825 Third Avenue, New York,
New York 10022 (the “Payee”), or
order, at said office, or at such place as may be designated from time to time
in writing by the Payee, the principal sum of One Million Nine Hundred Thousand
and No/100 Dollars ($1,900,000.00) in lawful money of the United States of
America in Federal funds or other immediately available New York City funds,
with interest thereon from and including the date of this Note to, but not
including, the date this Note is paid in full calculated in the manner
hereinafter set forth, as follows:


 


(i)            equal monthly
installments of principal in the amount of $15,833.33 each commencing on
January 24, 2003 and on the 24th day of each succeeding calendar month
thereafter to and including the Maturity Date;


 


(ii)           interest on the
Principal Balance calculated in the manner hereinafter set forth commencing on
January 24, 2003, and on the 24th day of each calendar month thereafter to and
including the Maturity Date; and


 


(iii)          the entire
Principal Balance, together with all interest accrued and unpaid thereon
calculated in the manner hereinafter set forth and all other sums due under
this Note, shall be due and payable on the Maturity Date.


 


1.             The following terms as used in this
Note shall have the following meanings:


 


(i)            The term “Business Day” shall mean any day on which
the Payee is open for business in New York City.


 


(ii)           The term “Debt” shall mean all principal, interest,
additional interest and other sums of any nature whatsoever which may or shall
become due to the Payee in accordance with the provisions of this Note, the
Deed of Trust or Other Security Documents.


 


(iii)          The term “Deed of Trust” shall mean a certain
Leasehold Deed of Trust, dated the date hereof in the principal sum of
$1,900,000.00 given by the Maker to the trustee thereunder for the benefit of
the Payee covering the leasehold estate of the Maker


 

















 


in certain
premises located in Clark County, Nevada, as more particularly described
therein, and intended to be duly recorded in said County, as the same has been
or may be amended or restated from time to time.


 


(iv)          The term “Fixed Rate” shall mean 6.36% per
annum.  The Fixed Rate shall be
calculated for the actual number of days elapsed on the basis of a 360-day year
and as otherwise set forth in the Loan Agreement.


 


(v)           The term “Guarantor Deed of Trust” shall mean a
certain Deed of Trust, dated the date hereof in the principal sum of
$1,900,000.00 given by Dallas S&W, L.P. to the trustee thereunder for the
benefit of the Payee covering the fee estate of Dallas S&W, L.P. in certain
premises located in Collin County, Texas, as more particularly described
therein, and intended to be duly recorded in said County, as the same has been
or may be amended or restated from time to time, which Guarantor Deed of Trust
secures the obligations of Dallas S&W, L.P. under the Guaranty of Payment
made by Dallas S&W, L.P. and The Smith & Wollensky Restaurant Group,
Inc. to the Payee to secure the Loan.


 


(vi)          The term “Loan” shall mean the loan in the principal
sum of $1,900,000.00 made by the Payee to the Maker which is evidenced by this
Note and secured by the Deed of Trust and the Other Security Documents.


 


(vii)         The term “Loan Agreement” shall mean the Term Loan
Agreement dated the date hereof between the Maker, the Payee, Dallas S&W,
L.P. and The Smith & Wollensky Restaurant Group, Inc., as the same has been
or may be amended or restated from time to time.


 


(viii)        The term “Maturity Date” shall mean December 24,
2007.


 


(ix)           The term “Other Security Documents” shall mean all
and any of the documents other than this Note or the Deed of Trust, now or
hereafter executed by the Maker or others, and by or in favor of the Payee,
which wholly or partially secure or guarantee payment of this Note, or which
otherwise pertain to the Loan, including, without limitation, the Loan
Agreement and the Guarantor Deed of Trust, as the same have been or may be
amended or restated from time to time.


 


(x)            The term “Participant” shall have the meaning given
to such term in paragraph 6 of this Note.


 


(xi)           The term “Principal Balance” shall mean the
outstanding principal balance of this Note from time to time.


 


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2.             Subject to the provisions of this
Note hereinafter set forth, the entire Principal Balance shall bear interest at
the Fixed Rate.


 


3.             Subject to the following provisions
of this subparagraph, the Maker shall have the right to prepay the Principal
Balance in whole, or in multiples of $1,000.00 (with a minimum of $10,000.00),
upon not less than five (5) Business Days’ prior irrevocable written notice to
the Payee specifying the intended date of prepayment, and the amount to be
prepaid, provided that such prepayment is accompanied by payment of accrued
interest to and including the date of prepayment and other sums then due and
payable pursuant to the provisions of this Note, the Deed of Trust or the Other
Security Documents.  Any prepayments
permitted hereunder shall be applied in reduction of the Principal Balance in
inverse order of maturity.  The Maker
shall pay to the Payee contemporaneously with any such voluntary prepayment a
Yield Maintenance Premium  (as
hereinafter defined).  Any payment of
the then outstanding principal indebtedness by virtue of a sale or after the
Payee shall have declared the principal indebtedness immediately due and
payable, or after the Payee shall have commenced an action or proceeding to
foreclose the Deed of Trust as a result of a default thereunder, shall be
deemed a voluntary prepayment for the purposes of this subparagraph and a Yield
Maintenance Premium calculated pursuant to the provisions of this subparagraph
shall be payable with respect thereto based upon the interest rate specified
herein applicable to the then outstanding principal indebtedness immediately
prior to such default, declaration or commencement.  The portion of the Principal Balance specified in any such
irrevocable notice of prepayment shall, notwithstanding anything to the
contrary contained in this Note, the Deed of Trust or the Other Security
Documents, be absolutely and unconditionally due and payable on the date
specified in such notice.  Amounts
prepaid may not be re-borrowed. 
Notwithstanding anything to the contrary contained in this paragraph,
the Payee shall not be obligated to accept a partial prepayment of the
Principal Balance in accordance with the provisions of this subparagraph if any
default shall have occurred and shall be continuing beyond applicable periods
of notice and grace under this Note, the Deed of Trust or the Other Security
Documents unless the Payee shall otherwise agree to the contrary in its sole
and absolute discretion.


 


“Yield Maintenance Premium” shall mean an
amount equal to the present value as of the Prepayment Date of the Calculated
Payments from the Prepayment Date through the Maturity Date determined by
discounting such payments at the Discount Rate.  The term “Prepayment Date”
shall mean the date on which prepayment is made.  The term “Calculated Payments”
shall mean the monthly payments of interest only which would be due based on
the principal amount being prepaid on the Prepayment Date and assuming an
interest rate per annum equal to the difference (if such difference is greater
than zero) between (y) the applicable interest rate and (z) the Yield
Maintenance Treasury Rate.  The term “Discount Rate” shall mean the rate which,
when compounded monthly, is equivalent to the Yield Maintenance Treasury Rate,
when compounded semi-annually.  The term
“Yield Maintenance Treasury Rate”
shall mean the yield calculated by the Payee by the linear interpolation of the
yields, as reported in the Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading U.S.


 


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Government Securities/Treasury
Constant Maturities for the week ending prior to the Prepayment Date, of U.S.
Treasury Constant Maturities with maturity dates (one longer or one shorter)
most nearly approximating the maturity date. 
In the event Release H.15 is no longer published, the Payee shall select
a comparable publication to determine the Yield Maintenance Treasury Rate.  In no event, however, shall the Payee be
required to reinvest any prepayment proceeds in U.S. Treasury obligations or
otherwise.


 


4.             Anything in this Note, the Deed of
Trust or any of the Other Security Documents to the contrary notwithstanding,
the Maker shall indemnify and hold the Payee harmless and defend the Payee at
the Maker’s sole cost and expense against any loss or liability, cost or
expense (including, without limitation, reasonable attorneys’ fees and
disbursements of the Payee’s counsel, whether in-house staff, retained firms or
otherwise), and all claims, actions, procedures and suits arising out of or in
connection with:


 


(i)            any ongoing matters
arising out of this Note, the Deed of Trust, any of the Other Loan Documents or
the transaction contemplated hereby or thereby, including, but not limited to,
all costs of appraisal or reappraisal of all or any portion of any collateral
for the Debt or of the granting by the Payee, in its sole and absolute
discretion, of any lease non-disturbance agreements,


 


(ii)           any amendment to,
or restructuring of, the Debt, this Note, the Deed of Trust or any of the Other
Loan Documents, and


 


(iii)          any and all lawful
action that may be taken by the Payee in connection with the enforcement of the
provisions of this Note, the Deed of Trust or any of the Other Loan Documents,
whether or not suit is filed in connection with the same, or in connection with
the Maker, any guarantor of all or any portion of the Debt and/or any partner,
joint venturer or shareholder thereof becoming subject of a voluntary or
involuntary federal or state bankruptcy, insolvency or similar proceeding.


 


All sums expended by the Payee
on account of any of the foregoing shall be reimbursable on demand, and until
reimbursed by the Maker pursuant hereto, shall be deemed additional principal
evidenced hereby and shall bear interest at the default interest rate
hereinbelow set forth.  The obligations
of the Maker under this paragraph shall, notwithstanding any exculpatory or
other provisions of any nature whatsoever which may be set forth herein, in the
Deed of Trust or the Other Loan Documents, constitute the personal recourse
undertakings, obligations and liabilities of the Maker and shall be secured by
the Deed of Trust.


 


5.             Intentionally Omitted.


 


6.             The Maker acknowledges that the
Payee may after the date of this Note sell and assign participation interests
in the Loan to such domestic or foreign banks, insurance


 


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companies, pension funds,
trusts or other institutional lenders or other persons, parties or investors
(including, but not limited to, grantor trusts, owner trusts, special purpose
corporations, REMIC’s, real estate investment trusts or other similar or
comparable investment vehicles) as may be selected by the Payee in its sole and
absolute discretion and on terms and conditions satisfactory to the Payee in
its sole and absolute discretion (any such bank, insurance company, pension
fund, trust or other institutional lender or other person, party or investor to
whom a participation interest in the Loan is so sold and assigned is herein
referred to as a “Participant”).
The Payee shall at all times during the term of the Loan act as lead lender and
servicer for Participants in accordance with participation agreements in form
and substance satisfactory in all respects to the Payee and its counsel.  Subject to the applicable terms and
provisions of the participation agreements, the Payee shall retain all rights
with respect to the enforcement, collection and administration of the Loan and
the security therefor and shall service the Loan throughout the term
thereof.  The Maker shall cooperate, and
shall cause each guarantor, indemnitor and other person or party associated or
connected with the Loan or the collateral therefor to cooperate, in all
respects with the Payee in connection with the sale of participation interests
in the Loan in the manner contemplated by this paragraph, and shall, in
connection therewith, execute and deliver such estoppels, certificates,
instruments and documents as may be requested by the Payee.  The Maker grants to the Payee, and shall
cause each guarantor, indemnitor and other person or party associated or connected
with the Loan or the collateral therefor to grant to the Payee, the right to
distribute on a confidential basis financial and other information concerning
the Maker, each such guarantor, indemnitor and other person or party and the
property encumbered by the Deed of Trust and other pertinent information with
respect to the Loan to any party who has purchased a participation interest in
the Loan or who has expressed a serious interest in purchasing a participation
interest in the Loan.  The Maker shall
execute and deliver, and shall cause each guarantor, indemnitor and other
person or party associated or connected with the Loan or the collateral
therefor to execute and deliver, such documents and instruments as may be
necessary to split the Loan into two or more loans evidenced, secured and advanced
by and pursuant to separate sets of notes, deeds of trust and other related
loan documents to the full extent required by the Payee to facilitate the sale
of participation interests in the Loan in the manner contemplated by this
paragraph, it being agreed that (i) any such splitting of the Loan will not
adversely affect or diminish the rights of the Maker as presently set forth in
this Note, the Deed of Trust or the Other Security Documents and will not
increase the respective obligations and liabilities of the Maker or any such
guarantor, indemnitor or other person or party above those presently set forth
in this Note, the Deed of Trust or the Other Security Documents, (ii) the deeds
of trust and other documents securing the Loan as so split will have such
priority of lien as may be specified by the Payee, and (iii) the retained
interest of the Payee in the Loan as so split shall be allocated to or among
one or more of such separate loans in a manner specified by the Payee in its
sole and absolute discretion.  If the
Maker shall default in the performance of its obligation as set forth in this
paragraph, and if such default shall not be remedied by the Maker within ten
(10) days after notice by the Payee, the Payee shall have the right in its
discretion to declare the Debt immediately due and payable.  The Payee also reserves the right at any
time during the term of the Loan in its sole and absolute 


 


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discretion to effect a
so-called securitization of the Loan in such a manner and on such terms and
conditions as the Payee shall deem to be appropriate in its sole and absolute
discretion and with such domestic or foreign banks, insurance companies,
pension funds, trusts or other institutional lenders or other persons, parties
or investors (including, but not limited to, grantor trusts, owner trusts,
special purpose corporations, REMIC’s, real estate investment trusts or other
similar or comparable investment vehicles) as may be selected by the Payee in its
sole and absolute discretion.


 


7.             It is hereby expressly agreed that
the entire Debt shall become immediately due and payable at the option of the
Payee on the happening of any default or event by which, under the terms of
this Note, the Deed of Trust or the Other Security Documents, the Debt may or
shall become due and payable, and that all of the terms, covenants and
provisions contained in the Deed of Trust and the Other Security Documents
which are to be kept and performed by the Maker are hereby made part of this
Note to the same extent and with the same force and effect as if they were
fully set forth herein.


 


8.             If any installment of principal,
interest, additional interest or other sum payable under this Note is not paid
within fifteen (15) days after the date which it is due, the Maker shall pay to
the Payee upon demand an amount equal to 5% of such unpaid installment as a
late payment charge.


 


9.             In addition to any late payment
charge which may be due under this Note, if the Debt is declared immediately
due and payable by the Payee pursuant to the provisions of this Note, the Deed
of Trust or the Other Security Documents, or if the Debt is not paid in full on
the Maturity Date, or if an event of default shall occur and be continuing
under this Note, the Deed of Trust or the Other Security Documents, the Maker
shall pay interest on the Principal Balance from the date of such declaration,
event of default or the Maturity Date (as the case may be), until the date the
Principal Balance is paid in full or until such event of default is cured (as
the case may be) at a rate per annum (calculated for the actual number of days
elapsed on the basis of a 360-day year) equal to 2% plus the interest rate then
applicable under this Note, provided, however, that such interest rate shall in
no event exceed the maximum interest rate which the Maker may by law pay.


 


10.           The Maker hereby waives presentment
and demand for payment, notice of dishonor, protest and notice of protest of
this Note.  If any payment under this Note
is not made when due, the Maker agrees to pay all costs of collection when
incurred, including reasonable attorneys’ fees (which costs shall be added to
the amount due under this Note and shall be receivable therewith).  The Maker agrees to perform and comply with
each of the terms, covenants and provisions contained in this Note, the Deed of
Trust and the Other Security Documents on the part of the Maker to be observed
or performed.  No release of any
security for the payment of this Note or extension of time for payment of this
Note, or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Deed of Trust


 


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or the Other Security Documents
made by agreement between the Payee and any other person or party shall
release, discharge, modify, change or affect the liability of the Maker under
this Note, the Deed of Trust or the Other Security Documents.


 


11.           This Note is subject to the express
condition that at no time shall the Maker be obligated or required to pay
interest on the Principal Balance at a rate which could subject the Payee to
either civil or criminal liability as a result of being in excess of the
maximum rate which the Maker is permitted by law to contract or agree to
pay.  If by the terms of this Note, the
Maker is at any time required or obligated to pay interest on the Principal
Balance at a rate in excess of such maximum rate, the rate of interest under
this Note shall be deemed to be immediately reduced to such maximum rate and
interest payable hereunder shall be computed at such maximum rate and the
portion of all prior interest payments in excess of such maximum rate shall be
applied and shall be deemed to have been payments in reduction of the Principal
Balance.


 


12.           If the Maker consists of more than
one person or party, the obligations and liabilities of each such person or
party hereunder shall be joint and several.


 


13.           This Note is secured by the Deed of
Trust and the Other Security Documents.


 


14.           This Note is and shall be deemed
entered into in the State of New York and shall be governed by and construed in
accordance with the laws of the State of New York and no defense given or
allowed by the laws of any state or country shall be interposed in any action
or proceeding hereon unless such defense is either given or allowed by the laws
of the State of New York.


 


15.           This Note may only be modified,
amended, changed or terminated by an agreement in writing signed by the Payee
and the Maker.  No waiver of any term,
covenant or provision of this Note shall be effective unless given in writing
by the Payee and if so given by the Payee shall only be effective in the
specific instance in which given.


 


16.           The Maker acknowledges that this Note
and the Maker’s obligations under this Note are and shall at all times continue
to be absolute 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 Note
and the obligations of the Maker under this Note or the obligations of any
other person or party relating to this Note or the obligations of the Maker
hereunder or otherwise with respect to the Loan.  This Note sets forth the entire agreement and understanding of
the Payee and the Maker, and the Maker absolutely, unconditionally and
irrevocably waives any and all right to assert any defense, setoff,
counterclaim or crossclaim of any nature whatsoever with respect to this Note
or the obligations of the Maker under this Note or the obligations of any other
person or party relating to this Note or the obligations of the Maker hereunder
or otherwise with respect to the Loan in


 


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any action or proceeding
brought by the Payee to collect the Debt, or any portion thereof, or to
enforce, foreclose and realize upon the liens and security interests created by
the Deed of Trust and the Other Security Documents.  The Maker acknowledges that no oral or other agreements,
understandings, representations or warranties exist with respect to this Note
or with respect to the obligations of the Maker under this Note, except those
specifically set forth in this Note.


 


17.           No delay on the part of the Payee in
exercising any right or remedy under this Note, the Deed of Trust or the Other
Security Documents 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 the Maker shall be deemed to be a waiver of
the obligation of the Maker or of the right of the Payee to take further action
without further notice or demand as provided in this Note, the Deed of Trust
and Other Security Documents.


 


18.           The Maker agrees to submit to
personal jurisdiction in the State of New York in any action or proceeding
arising out of this Note and, in furtherance of such agreement, the Maker
hereby agrees and consents that without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the Maker 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 Maker by registered or certified mail to or by personal
service at the last known address of the Maker, whether such address be within
or without the jurisdiction of any such court.


 


19.           The Maker (and the undersigned
representative of the Maker, if any) represents that the Maker has full power,
authority and legal right to execute and deliver this Note and that the debt
hereunder constitutes a valid and binding obligation of the Maker.


 


20.           Whenever used, the singular number
shall include the plural, the plural the singular, and the words “Payee” and “Maker” shall include their respective successors and assigns,
provided, however, that the Maker shall in no event or under any circumstance
have the right without obtaining the prior written consent of the Payee to
assign or transfer its obligations under this Note, the Deed of Trust or the
Other Security Documents, in whole or in part, to any other person, party or
entity.


 


21.          The
Maker hereby irrevocably and unconditionally waives, and the Payee by its
acceptance of this Note 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 the Loan, this Note, the Deed
of Trust or the Other Security Documents.


 


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IN WITNESS
WHEREOF, the Maker has duly executed this Note the day and year first above
written.


 


	
   

  	
  S&W OF
  LAS VEGAS, L.L.C.

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan M.
  Mandel

  	
   

  
	
   

  	
   

  	
  Name Alan M.
  Mandel

  	
  :

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer

  	
   

  
						



 


 


 


	
  STATE OF NEW YORK

  	
  )

  
	
   

  	
  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  



 


On the 19th 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 individuals, or the
person upon behalf of which the individual acted, executed the instrument.


 


 


	
   

  	
   

  	
   

  	
  /s/ Linda
  Marshall

  	
   

  
	
   

  	
   

  	
   

  	
  Notary Public

  	
   

  
	
   

  	
   

  	
  SEAL.

  	
  No. 41-4744180

  	
   

  
	
   

  	
   

  	
   

  	
  10/31/05

  	
   

  



 


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