Exhibit 10.63


 


GUARANTY OF PAYMENT


 


New York, New York


December 17th, 2002


 


WHEREAS, 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”),
has applied 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 “Lender”) for one
or more loans (collectively, the “Loan”),
which Loan will be (a) evidenced by the Note, (b) secured by, among other
things, the Las Vegas Deed of Trust and (c) advanced pursuant to the Loan
Agreement, all as defined in Exhibit A attached hereto;


 


WHEREAS, the
obligations of Dallas S&W, L.P. hereunder will be secured by, among other
things, the Dallas Deed of Trust (as defined in Exhibit A); and


 


WHEREAS, the
Lender is willing to enter into the Loan Agreement and to make the Loan to the
Borrower only if the undersigned executes and delivers this Guaranty and
guarantees payment to the Lender of the Debt (as herein defined) in the manner
hereinafter provided.


 


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


 


1.             The undersigned guarantees,
absolutely, irrevocably and unconditionally, to the Lender the payment of the
Debt.  The term “Debt” as used in this Guaranty shall mean
all liabilities of the Borrower to the Lender of whatever nature, whether now
existing or hereafter incurred, whether created directly or acquired by the
Lender, by assignment or otherwise, whether matured or unmatured and whether
absolute or contingent, arising in connection with the Note, the Deeds of Trust
(as defined in Exhibit A), 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, Deeds of Trust, Loan
Agreement and other documents and instruments, collectively, the “Loan Documents”) including, without
limitation,  all principal,
interest, additional interest (including specifically all interest accruing
from and after the commencement of any case, proceeding or action under any
existing or future laws relating to bankruptcy, insolvency or similar matters
with respect to the Borrower) and other sums of any nature whatsoever which may
or shall become due and payable pursuant to the provisions of the Loan
Documents (all of the above unaffected by modification thereof in any
bankruptcy or insolvency proceeding), and even though the Lender may not have
an allowed claim for the same against the Borrower as a result of any
bankruptcy or insolvency proceeding.


 


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2.             The undersigned agrees that the
undersigned shall indemnify and hold the Lender harmless and defend the Lender
at the undersigned’s sole cost and expense against any loss or liability, cost
or expense (including, but not limited to, reasonable attorneys’ fees and
disbursements of the Lender’s counsel, whether in-house staff, retained firms
or otherwise), and all claims, actions, procedures and suits arising out of or
in connection with:


 


(a)           any ongoing matters arising out of the
transaction contemplated hereby, this Guaranty, the Debt, the Deeds of Trust,
the Note, the Loan Agreement or any other Loan Document, including, but
not limited to, all costs of appraisals and reappraisals of the properties
encumbered by the Deeds of Trust or any part thereof;


 


(b)           any amendment to, or restructuring
of, this Guaranty, the Debt and either or both of the Deeds of Trust, the Note,
the Loan Agreement or any of the other Loan Documents; and


 


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


 


All sums expended by the Lender
shall be payable on demand and, until reimbursed by the Borrower or by the
undersigned pursuant hereto, shall bear interest at the default interest rate
as set forth in the Note.


 


3.             The undersigned hereby represents
and warrants that all financial statements of the undersigned heretofore
delivered to the Lender by or on behalf of the undersigned are true and correct
in all material respects and fairly present the financial condition of the
undersigned as of the respective dates thereof, and no material adverse change
has occurred in the financial conditions reflected therein since the respective
dates thereof.


 


4.             In addition to any right available
to the Lender under applicable law or any other agreement, the undersigned
hereby gives to the Lender a continuing lien on, security interest in and right
of set-off against all moneys, securities and other property of the undersigned
and the proceeds thereof, now on deposit or now or hereafter delivered,
remaining with or in transit in any manner to the Lender, its 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 the payment of the Debt and all of the other obligations of the undersigned
under this Guaranty, including fees, contracted with or acquired by the Lender,
whether joint, several, absolute, contingent, secured, matured or unmatured
(for the purposes of 


 


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this paragraph 4 and
paragraphs 6, 8 and 16 below, collectively, the “Liabilities”), hereby authorizing the Lender at any time or
times, without prior notice, to apply such balances, credits or claims, or any
part thereof, to such Liabilities in such amounts as it may select, whether
contingent, unmatured or otherwise and whether any collateral security therefor
is deemed adequate or not.  The
collateral security described herein shall be in addition to any collateral
security described in any separate agreement executed by either or both of the
undersigned.  The Lender, in addition to
any right available to it under applicable law or any other agreement, shall
have the right, at its option, to immediately set off against any Liabilities
all monies owed by the Lender in any capacity to either or both of the
undersigned, whether or not due, and the Lender shall, at its option, be deemed
to have exercised such right to set off and to have made a charge against any
such money immediately upon the occurrence of any events of default set forth
below, even though such charge is made or entered on the books of the Lender
subsequent to those events.


 


5.             All moneys available to the Lender
for application in payment or reduction of the Debt may be applied by the
Lender in such manner and in such amounts and at such time or times and in such
order, priority and proportions as the Lender may see fit to the payment or
reduction of such portion of the Debt as the Lender may elect.


 


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


 


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


 


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


 


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


 


and the undersigned shall
remain bound in all respects under this Guaranty, without any loss of any
rights by the Lender and without affecting the liability of the undersigned,
notwithstanding 


 


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any such exchange, surrender,
release, change, alteration, renewal, extension, continuance, compromise,
waiver, inaction, extension of further credit or other dealing.  In addition, all moneys available to the
Lender for application in payment or reduction of the Debt and/or any Other
Obligations may be applied by the Lender in such manner and in such amounts and
at such time or times and in such order, priority and proportions as the Lender
may see fit.


 


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7.             The undersigned hereby waives:


 


(a)           notice of acceptance of this Guaranty
and of the making of the Loan or any advance thereof by the Lender to the
Borrower;


 


(b)           presentment and demand for payment of
the Debt or any portion thereof;


 


(c)           protest and notice of dishonor or
default to either of the undersigned or to any other person or party with
respect to the Debt or any portion thereof;


 


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


 


(e)           any demand under this Guaranty.


 


8.             If any of the following events
should occur:


 


(a)           default under any of the Loan
Documents and its continuance beyond any applicable notice and/or grace periods
therein contained; or


 


(b)           either of the undersigned violates
any provision of this Guaranty;


 


then, and in such event, the
Lender may declare the Liabilities to be, and the same shall become,
immediately due and payable.


 


9.             This is a guaranty of payment and
not of collection and the undersigned further waives any right to require that
any action be brought against the Borrower or any other person or party or to
require that resort be had to any security or to any balance of any deposit
account or credit on the books of the Lender in favor of the Borrower or any
other person or party.  Any payment on
account of or reacknowledgment of the Debt by the Borrower, or any other party
liable therefor, shall be deemed to be made on behalf of the undersigned and
shall serve to start anew the statutory period of limitations applicable to the
Debt.


 


10.           Each reference herein to the Lender
shall be deemed to include its successors and assigns, in whose favor the
provisions of this Guaranty shall also inure. 
Each reference herein to the undersigned shall be deemed to include the
successors and assigns of the undersigned, all of whom shall be bound by the
provisions of this Guaranty, provided, however, that the undersigned shall in
no event nor under any circumstance have the right, without obtaining the prior
written consent of the Lender, to assign or transfer the undersigned’s
obligations and liabilities under this Guaranty, in whole or in part, to any
other person, party or entity.


 


11.           The term “undersigned” as used herein shall, if this Guaranty is signed
by more than one party, unless otherwise stated herein, mean the “undersigned
and each of them” and each undertaking herein contained shall be their joint
and several undertaking.  If this
Guaranty is 


 


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signed by more than one party,
all singular references to the undersigned shall be deemed to be plural.  If any party hereto shall be a partnership,
the agreements and obligations on the part of the undersigned herein contained
shall remain in force and application notwithstanding any changes in the
individuals composing the partnership and the term “undersigned” shall include
any altered or successive partnerships, but the predecessor partnerships and
their partners shall not thereby be released from any obligations or liability
hereunder.  If any party hereto shall be
a corporation, the agreements and obligations on the part of the undersigned
herein contained shall remain in force and application notwithstanding the
merger, consolidation, reorganization or absorption thereof, and the term
“undersigned” shall include such new entity, but the old entity shall not
thereby be released from any obligations or liabilities hereunder.


 


12.           No delay on the part of the Lender in
exercising any right or remedy under this Guaranty or failure to exercise the
same shall operate as a waiver in whole or in part of any such right or
remedy.  No notice to or demand on
either or both of the undersigned shall be deemed to be a waiver of the
obligations of either 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.  No course of dealing between
either of the undersigned and the Lender shall change, modify or discharge, in
whole or in part, this Guaranty or any obligations of the undersigned
hereunder.


 


13.           This Guaranty may only be modified,
amended, changed or terminated by an agreement in writing signed by the Lender
and the undersigned.  No waiver of any
term, covenant or provision of this Guaranty shall be effective unless given in
writing by the Lender and if so given by the Lender shall only be effective in
the specific instance in which given. 
The execution and delivery hereafter to the Lender by either or both of
the undersigned of a new instrument of guaranty or any reaffirmation of
guaranty, of whatever nature, shall not terminate, supersede or cancel this
instrument, unless expressly so provided therein, and all rights and remedies
of the Lender hereunder or under any instrument of guaranty hereafter executed
and delivered to the Lender by either or both of the undersigned shall be
cumulative and may be exercised singly or concurrently.


 


14.           The undersigned acknowledges that
this Guaranty and the undersigned’s obligations under this Guaranty are and
shall at all times continue to be absolute, irrevocable and unconditional in
all respects, and shall at all times be valid and enforceable irrespective of
any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to this Guaranty and the obligations of either
or both of the undersigned under this Guaranty or the obligations of any other
person or party (including, without limitation, the Borrower) relating to this
Guaranty or the obligations of either or both of the undersigned hereunder or
otherwise with respect to the Debt, including, but not limited to, a
foreclosure of either or both of the Deeds of Trust or the realization upon any
other collateral given, pledged or assigned as security for all or any portion
of the Debt, or the filing of a petition under Title 11 of the United
States Code with regard to the Borrower or either or both of the undersigned,
or the commencement of an action or proceeding for the benefit of the creditors
of the Borrower or the undersigned, or the obtaining by the Lender of title to,
respectively, the premises encumbered by either or both of the Deeds of Trust
or any other collateral given, pledged or assigned as security 


 


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for the Debt by reason of the
foreclosure or enforcement of either or both of the Deeds of Trust or any other
pledge or security agreement, the acceptance of a deed or assignment in lieu of
foreclosure or sale, or otherwise.  This
Guaranty sets forth the entire agreement and understanding of the Lender and
the undersigned with respect to the matters covered by this Guaranty and the
undersigned acknowledges that no oral or other agreements, understandings, representations
or warranties exist with respect to this Guaranty or with respect to the
obligations of the undersigned under this Guaranty, except those specifically
set forth in this Guaranty.


 


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


 


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


 


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


 


16.           Notwithstanding any payments made by
either or both of the undersigned pursuant to the provisions of this Guaranty,
the undersigned irrevocably waives all rights to enforce or collect upon any
rights which it now has or may acquire against the Borrower either by way of
subrogation, indemnity, reimbursement or contribution for any amount paid under
this Guaranty or by way of any other obligations whatsoever of the Borrower to
either or both of the undersigned, nor shall either or both of the undersigned
file, assert or receive payment on any claim, whether now existing or hereafter
arising, against the Borrower in the event of the commencement of a case by or
against the Borrower under Title 11 of the United States Code.  In the event either a petition is filed
under said Title 11 of the United States Code with regard to the Borrower
or the commencement of an action or proceeding for the benefit of the creditors
of the Borrower, this Guaranty shall at all times thereafter remain effective
in regard to any payments or other transfers of assets to the Lender received
from or on behalf of the Borrower prior to notice of termination of this
Guaranty and which are or may be held voidable on the grounds of preference or
fraud, whether or not the Debt has been paid in full.  The provisions of this paragraph 16 shall survive the term
of this Guaranty and the payment in full of the Debt and all other Liabilities.


 


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


 


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


 


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


 


20.           The undersigned absolutely,
unconditionally and irrevocably waives any and all right to assert or interpose
any defense (other than the final and indefeasible payment in full of the
Debt), setoff, counterclaim or crossclaim of any nature whatsoever with respect
to this Guaranty or the obligations of the undersigned under this Guaranty, or
the obligations of any other person or party (including without limitation, the
Borrower) relating to this Guaranty, or the obligations of the undersigned
hereunder or otherwise with respect to the 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 (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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21.           No exculpatory provisions which may
be contained in the Note, the Deeds of Trust or in any other Loan Document
shall in any event or under any circumstances be deemed or construed to modify,
qualify, or affect in any manner whatsoever the obligations and liabilities of
the undersigned under this Guaranty.


 


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


 


23.           This Guaranty may be executed in one
or more counterparts by some or all of the parties hereto, each of which
counterparts shall be an original and all of which together shall constitute a
single agreement of guaranty.


 


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


 


 


[Remainder of page left intentionally blank]


 


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IN WITNESS
WHEREOF, the undersigned has duly executed this Guaranty the day and year first
above set forth.


 


 


	
   

  	
  THE SMITH
  & WOLLENSKY RESTAURANT

  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan M.
  Mandel

  	
   

  
	
   

  	
   

  	
  Name: Alan
  M. Mandel

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer & Secretary

  
	
   

  	
   

  
	
   

  	
  DALLAS
  S&W, L.P.

  
	
   

  	
  By:  S&W of Dallas LLC, general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan M.
  Mandel

  	
   

  
	
   

  	
   

  	
  Name: Alan
  M. Mandel

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer & Secretary

  
	
   

  



 


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  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.


 


	
   

  	
  /s/ 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.


 


 


	
   

  	
  /s/ Angela
  L. Strobe

  	
   

  
	
   

  	
  Notary
  Public

  



 


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EXHIBIT A


 


Note: 
The term “Note” as used in
this Guaranty 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.


 


Deeds of Trust: The term “Deeds of Trust” as used in this Guaranty
shall mean (a) 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 (the “Las Vegas Deed of Trust”) and (b) a certain Deed of Trust of
even date herewith to be given by Dallas S&W, L.P. to the trustee
thereunder for the benefit of the Lender, constituting a lien on the fee estate
of the Borrower in certain premises located in Collin County, Texas, as more
particularly described therein, and intended to be duly recorded in said County
(the “Dallas Deed of Trust”), in
each case 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 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.


 


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