Exhibit 10.61


 


ABSOLUTE ASSIGNMENT OF LEASES AND RENTS


 


THIS
ASSIGNMENT made the 17th day of December, 2002, between 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 “Assignor”) and MORGAN
STANLEY DEAN WITTER COMMERCIAL FINANCIAL SERVICES, INC., a Delaware
corporation, having an office at 825 Third Avenue, New York, New York 10022
(the “Assignee”).


 


W  I  T  N
E  S  S  E  T  H:


 


THAT the
Assignor for good and valuable consideration, receipt and sufficiency whereof
is hereby acknowledged, hereby absolutely and unconditionally grants, transfers
and assigns to the Assignee the entire landlord’s right, title and interest in
and to all existing leases, tenancies and occupancy agreements (other than the
Ground Lease, as hereinafter defined) covering or affecting all or any part of
that certain lot or piece or parcel of land and building(s), more particularly
described in Exhibit A annexed hereto and made a part hereof (the said
premises, together with the buildings and improvements now or hereafter erected
thereon, being hereinafter collectively referred to as the “Premises”).  This assignment is absolute in nature and not an assignment for additional
security only.  The term “Ground Lease” shall mean the current ground
lease pursuant to which the Assignor presently occupies space at the Premises.


 


TOGETHER WITH
all leases, tenancies and occupancy agreements hereafter made (all present and
future leases, tenancies and occupancy agreements (other than the Ground Lease)
are hereinafter collectively referred to as the “Leases”); this assignment of present and future Leases being
effective without any further or supplemental assignment of any nature
whatsoever;


 


TOGETHER WITH
all modifications, extensions and guaranties of all Leases;


 


TOGETHER WITH
all rents, income and profits arising from the Leases and renewals thereof and
together with all rents, income and profits for the use and occupation of the
Premises.


 


THIS
Assignment is made in connection with a Term Loan Agreement of even date
herewith among the Assignor, the Assignee, Dallas S&W, L.P. and The Smith
& Wollensky Restaurant Group, Inc. (the “Loan
Agreement”).  Pursuant to the
Loan Agreement, the Assignee has made a loan to the Assignor on the date hereof
(the “Loan”).  The Loan made simultaneously herewith is
evidenced by a certain Promissory Note and secured by, among other things, a
certain Leasehold Deed of Trust encumbering the Premises (the “Deed of Trust”), both of even date
herewith, including all modifications, extensions, increases, renewals and
guaranties thereof now 


 


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or hereafter made (the Loan
Agreement, the Deed of Trust, said Note and the other documents and instruments
executed and delivered in connection therewith are hereinafter collectively
referred to as the “Loan Documents”).  All sums payable pursuant to the Loan
Documents and all other sums with interest thereon becoming due and payable to
the Assignee under the provisions of this Assignment or of the Loan Documents
or of any other instrument related thereto are hereinafter collectively
referred to as the “Debt”).


 


THE ASSIGNOR
WARRANTS AND REPRESENTS to the Assignee, in order to induce the Assignee to
enter into the Loan Agreement and to accept this Assignment and knowing that
the Assignee will rely hereon, that: (i) the Assignor is the sole owner of
the entire landlord’s interest in the Leases, (ii) the Leases are valid
and enforceable and in full force and effect and have not been altered,
modified or amended in any manner whatsoever except as herein set forth,
(iii) no rent reserved in the Leases has been assigned, pledged or in any
manner transferred or hypothecated, except pursuant to this Assignment, and
(iv) no rent for any period subsequent to the date of this Assignment has
been collected in advance of the time when the same became due under the terms
of the Leases.


 


THE ASSIGNOR
COVENANTS WITH THE ASSIGNEE to observe and perform all the obligations imposed
upon the landlord under the Leases and not to do or permit to be done anything
to impair the interests granted to the Assignee hereunder; to promptly send to
the Assignee copies of all notices of default which the Assignor shall send or
receive under the Leases; to enforce the performance or observance of the
provisions thereof by the tenants thereunder; not to collect any of the rents,
income and profits arising from the Leases and/or the Premises (the “Rents”) except as hereinbelow set forth;
not to subordinate the Leases to any deed of trust (other than the Deed of
Trust and any other deed of trust made for the benefit of the Assignee) or
other encumbrance or permit, consent, or agree to such subordination without
the prior written consent of the Assignee; not to alter, modify or change the
terms of the Leases nor give any consent to exercise any option required or
permitted by such terms without the prior written consent of the Assignee, nor
cancel or terminate the Leases or accept a surrender thereof, nor convey or
transfer, nor suffer or permit a conveyance or transfer of, the Premises, or of
any interest therein, so as to effect directly or indirectly, approximately or
remotely, a merger of the estates and rights of, or a termination or diminution
of the obligations of the tenant thereunder; not to alter, modify or change the
terms of any guaranty of the Leases nor cancel or terminate such guaranty,
without the prior written consent of the Assignee; not to consent to any
assignment of, or further subletting under, the Leases, without the prior
written consent of the Assignee; except as expressly provided in Paragraph 7 of
the Deed of Trust, not make, or suffer to be made, any Lease of all or any
portion of the Premises, nor otherwise let all or any portion of the Premises,
without the prior written consent of the Assignee; at the Assignee’s request,
to execute any documentation confirming the assignment and transfer to the
Assignee of any and all subsequent Leases upon all or any part of the Premises,
and to execute and deliver at the request of the Assignee all other further
assurances, confirmations and assignments in the Premises as the Assignee
shall, from time to time, reasonably require in connection herewith.


 


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THIS
ASSIGNMENT IS MADE ON THE FOLLOWING TERMS, COVENANTS AND CONDITIONS:


 


1.             So long as there shall exist no
default under any of the Loan Documents (an “Event
of Default”), nor any default by the Assignor in the performance of
any obligation contained herein and/or in the Leases on the part of the
Assignor to be performed or to cause to be performed, the Assignee waives the
right to enter the Premises for the purpose of collecting the Rents and to let
the Premises or any part thereof, and the Assignor may continue to collect the
Rents at the time of, but not more than one (1) month prior to, the date
provided for the payment thereof, and to retain, use and enjoy the same and to
let the Premises or any part thereof, all subject to the provisions hereof and
of the Loan Documents.


 


2.             Upon, or at any time after, the
occurrence of any Event of Default, or of any default with respect to any
obligation contained herein and/or in the Leases on the part of the Assignor to
be performed or to cause to be performed, the Assignee, without in any way
waiving such default or Event of Default or releasing the Assignor from any
obligation hereunder, at its option, without notice and without regard to the
adequacy of the indebtedness secured by the Deed of Trust, and irrespective of
whether the Assignee shall have commenced a foreclosure of the Deed of Trust,
may revoke the right of the Assignor to let all or any portion of the Premises
and collect the Rents and may, either in person or by agent, with or without
bringing any action or proceeding, or by a receiver appointed by a court, take
possession of the Premises and have, hold, manage, lease and operate the same
on such terms and for such period of time as the Assignee may in its sole
discretion deem proper and either with or without taking possession of the
Premises in its own name: (a) make any payment and/or perform any act
which the Assignor has failed to make or perform, in such manner and to such
extent as the Assignee may deem necessary to protect the interests granted to
the Assignee hereunder, or otherwise, including without limitation, the right
to appear in and defend any action or proceeding purporting to affect the
interests granted to the Assignee hereunder, or the rights or powers of the
Assignee; (b) let the Premises or any portion thereof in such manner and
for such Rents as the Assignee shall determine in its sole and absolute
discretion; and/or (c) demand, sue for, or otherwise collect and receive
from all persons (including the Assignor, as provided in the Deed of Trust) all
Rents, including those past due and unpaid, with full power to make from time
to time all alterations, renovations, repairs or replacements thereto or
thereof as may seem proper to the Assignee and to apply the Rents to the
payment of: (i) all expenses of managing the Premises, including, without
limitation, the salaries, fees and wages of a managing agent and such other
employees as the Assignee may deem necessary or desirable, (ii) all taxes,
charges, claims, assessments, water rents, sewer rents, and any other liens,
and premiums for all insurance which the Assignee may deem necessary or
desirable, and the cost of all alterations, renovations, repairs, or
replacements, and all expenses incidental to taking and retaining possession of
the Premises, and (iii) all or any portion of the Debt, together with
(iv) all costs and attorneys’ fees, in such order of priority as to any of
the items mentioned in this clause 2(c), as the Assignee, in its sole
discretion, may 


 


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determine, any statute, law,
custom or use to the contrary notwithstanding. 
The Assignee shall give to the Assignor notice of its revocation,
pursuant to this Paragraph 2, of the right to let and collect the Rents
within a reasonable time thereafter. 
The exercise by the Assignee of any rights or powers under this
Paragraph 2, including, without limitation, the collection of the Rents
and the application thereof as herein provided, shall not be considered a
waiver by the Assignee of any default by the Assignor under any of the Loan
Documents or the Leases or this Assignment, any statute, law, custom or use to
the contrary notwithstanding.


 


3.             The Assignee shall not be liable
for any loss sustained by the Assignor resulting from the Assignee’s failure to
let the Premises after default or from any other act or omission of the
Assignee in managing the Premises after default, unless such loss is caused by
the willful misconduct or bad faith of the Assignee.  Nor shall the Assignee be obligated to perform or discharge, nor
does the Assignee hereby undertake to perform or discharge, any obligation,
duty or liability under the Leases or under or by reason of this Assignment, and
the Assignor shall, and does hereby agree, to indemnify the Assignee for, and
to hold the Assignee harmless from, any and all liability, loss or damage which
may or might be incurred under the Leases or under or by reason of this
Assignment and from any and all claims and demands whatsoever which may be
asserted against the Assignee by reason of any alleged obligations and
undertakings on its part to perform or discharge any of the terms, covenants or
agreements contained in the Leases, unless resulting from the willful
misconduct, gross negligence or bad faith of the Assignee.  Should the Assignee incur any such liability
under the Leases or under or by reason of this Assignment or in defense of any
such claims or demands, the amount thereof, including costs, expenses and
attorneys’ fees shall be secured by the Deed of Trust, and the Assignor shall
reimburse the Assignee therefor within five (5) days after written demand and,
upon the failure of the Assignor so to do within such five (5) day period, the Assignee
may, at its option, declare all sums secured by the Deed of Trust immediately
due and payable.  It is further
understood that this Assignment shall not operate to place responsibility for
the control, care, management or repair of the Premises upon the Assignee, nor
for the carrying out of any of the terms and conditions of the Leases; nor
shall it operate to make the Assignee responsible or liable for any waste
committed on the Premises by the tenants or any other parties, nor for any
dangerous or defective condition of the Premises, nor for any negligence in the
management, upkeep, repair or control of the Premises resulting in loss, injury
or death to any tenant, licensee, employee or stranger, unless resulting from
the willful misconduct, gross negligence or bad faith of the Assignee.


 


4.             Upon payment in full by the
Assignor of the Debt, this Assignment shall become and be void and of no
effect, but the affidavit, certificate, letter or statement of any officer,
agent or attorney of the Assignee showing any part of the Debt to remain unpaid
shall be and constitute presumptive evidence of the validity, effectiveness and
continuing force of this Assignment and any person may, and is hereby
authorized to, rely thereon; provided, however, that the full reconveyance of
the Deed of Trust by the Assignee shall conclusively terminate this
Assignment.  The Assignor hereby
authorizes and directs the tenants named in the Leases or any other tenants or
future tenants or occupants of all or any portion of the Premises, upon receipt
from the 


 


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Assignee of written notice to
the effect that the Assignee is then the beneficiary of the Deed of Trust and
the note(s) secured thereby and that a default exists thereunder or under this
Assignment, to pay over to the Assignee all rents, income and profits arising
or accruing under the Leases or from the Premises and to continue so to do
until otherwise notified by the Assignee.


 


5.             The Assignee may take or release
any security for the payment of the Debt, may release any party primarily or
secondarily liable therefor and may apply any security held by it to the
satisfaction of the Debt without prejudice to any of its rights under this
Assignment.


 


6.             Anything in this Assignment or in
any of the other Loan Documents to the contrary notwithstanding, the Assignor
shall indemnify and hold the Assignee harmless and defend the Assignee at the
Assignor’s sole cost and expense against any loss or liability, cost or expense
(including, without limitation, reasonable attorneys’ fees and disbursements of
the Assignee’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 the transaction contemplated
hereby, the Debt, this Assignment, any other Loan Document or the Leases,
including, but not limited to, all costs of reappraisal of the Leases, whether
required by law, regulation, the Assignee or any governmental or
quasi-governmental authority, (ii) any amendment to, or restructuring of,
the Debt and this Assignment, any of the other Loan Document or the Leases, and
(iii) any and all lawful action that may be taken by the Assignee in
connection with the enforcement of the provisions of this Assignment, the other
Loan Documents or the Leases, whether or not suit is filed in connection with
the same, or in connection with the Assignor, any guarantor of the Debt or any
tenant 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.  The foregoing
indemnity shall not apply to matters resulting from the gross negligence,
willful misconduct or bad faith of the Assignee.  All sums expended by the Assignee shall be payable within five
(5) days after written demand and, until reimbursed by the Assignor pursuant
hereto, shall be deemed additional principal of the Debt and secured by the
Deed of Trust and shall bear interest at the Default Rate, as said term is
defined in the Deed of Trust.  The
obligations of the Assignor under this paragraph shall, notwithstanding any
exculpatory or other provisions of any nature whatsoever set forth in this
Assignment, or any of the other Loan Documents, constitute the personal
recourse undertakings, obligations and liabilities of the Assignor.


 


7.             Nothing herein contained, and no
act done or omitted by the Assignee pursuant to the powers and rights granted
to it hereunder, shall be deemed to be a waiver by the Assignee of its rights
and remedies under the Deed of Trust or the other Loan Documents, and this
Assignment is made and accepted without prejudice to any of the rights and
remedies possessed by the Assignee under the terms thereof.  The rights of the Assignee to collect the
Debt, and to enforce any security therefor held by it, may be exercised by the
Assignee either prior to, simultaneously with, or subsequent to any action
taken by it hereunder.  The Assignor
hereby 


 


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absolutely, unconditionally and
irrevocably waives any and all right to assert any setoff, counterclaim or
crossclaim of any nature whatsoever with respect to the obligations of the
Assignor under this Assignment, the other Loan Documents or otherwise with
respect to the matters covered by the Loan Agreement in any action or
proceeding brought by the Assignee to collect same, or any portion thereof, or
to enforce, foreclose and realize upon the lien and security interest created
by the Deed of Trust or any other Loan Document securing repayment of same, in
whole or in part (provided, however, that the foregoing shall not be deemed a
waiver of the Assignor’s right 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 Assignor’s right to assert any claim which would constitute a defense, setoff,
counterclaim or crossclaim of any nature whatsoever against the Assignee in any
separate action or proceeding).


 


8.             Nothing herein contained shall be
construed as constituting the Assignee a “mortgagee in possession” (or
equivalent) in the absence of the taking of actual possession of the Premises
by the Assignee pursuant to the provisions herein contained.  In the exercise of the powers herein granted
to the Assignee, no liability shall be asserted or enforced against the
Assignee, all such liability being expressly waived and released by the
Assignor.


 


9.             In case of any inconsistency or
conflict between the terms of this Assignment and the terms of the Deed of
Trust, the terms of this Assignment shall in all cases govern and control.


 


10.           The Assignor will, at the cost of the
Assignor, and without expense to the Assignee, do, execute, acknowledge and
deliver all and every such further acts, conveyances, assignments, notices of
assignments, transfers and assurances as the Assignee shall, from time to time,
require for the better assuring, conveying, assigning, transferring and
confirming unto the Assignee the property and rights hereby assigned or
intended now or hereafter so to be, or which the Assignor may be or may
hereafter become bound to convey or assign to the Assignee, or for carrying out
the intention or facilitating the performance of the terms of this Assignment
or for filing, registering or recording this Assignment and, on demand, will
execute and deliver and hereby authorizes the Assignee to execute in the name
of the Assignor to the extent the Assignee may lawfully do so, one or more
financing statements or comparable security instruments, to evidence more
effectively the lien hereof upon the Leases.


 


11.           All notices given pursuant hereto shall
be given (and deemed received) in the manner set forth in the Loan Agreement.


 


12.           This Assignment, together with the
covenants, representations and warranties herein contained, shall inure to the
benefit of the Assignee and any subsequent beneficiary of the Deed of Trust and
shall be binding upon the Assignor, and its successors and assigns and any
subsequent owner of the Premises.


 


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13.           This Assignment may only be modified,
amended or changed by an agreement in writing signed by the Assignor and the
Assignee, and may only be released, discharged or satisfied of record by an
agreement in writing signed by the Assignee. 
No waiver of any term, covenant or provision of this Assignment shall be
effective unless given in writing by the Assignee and if so given by the
Assignee shall only be effective in the specific instance in which given.  Whenever possible, each provision of this
Assignment shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Assignment shall be unenforceable
or prohibited by, or invalid under, applicable law, such provision shall be
ineffective to the extent of such unenforceability, prohibition or invalidity,
without invalidating the remaining provisions of this Assignment.  The Assignor acknowledges that this
Assignment and the other Loan Documents set forth the entire agreement and
understanding of the Assignor and the Assignee with respect to the matters
covered by the Loan Agreement and that no oral or other agreement,
understanding, representation or warranty exists with respect thereto other
than those set forth in this Assignment and the other Loan Documents.


 


14.          The
Assignor hereby irrevocably and unconditionally waives, and the Assignee by its
acceptance of the Deed of Trust and this Assignment irrevocably and
unconditionally waives, any and all rights to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to this
Assignment and any other Loan Documents heretofore, now or hereafter executed
and/or delivered in connection therewith, the Loan or in any way related to
this transaction or otherwise with respect to the Premises or the Leases.


 


15.           The Assignor acknowledges and agrees
that, upon recordation of this Assignment, the Assignee’s interest in the Rents
shall be deemed to be fully perfected, “choate” and enforced as to the Assignor
and all third parties, including without limitation any subsequently appointed
trustee in any case under the Bankruptcy Code (as defined in the Deed of
Trust), without the necessity of (i) commencing a foreclosure action with
respect to the Deed of Trust, (ii) furnishing notice to the Assignor or tenants
under the Leases, (iii) making formal demand for the Rents, (iv) taking
possession of the Premises as mortgagee-in-possession (or equivalent), (v)
obtaining the appointment of a receiver of the rents and profits of the
Premises, (vi) sequestering or impounding the Rents, or (vii) taking any other
affirmative action.


 


16.           The Assignor acknowledges and agrees
that all Rents shall be deemed to be “Cash Collateral” under Section 363
of the Bankruptcy Code in the event that the Assignor files a voluntary
petition in bankruptcy or is made subject to any involuntary bankruptcy
proceeding.  After the filing of such
petition, the Assignor may not use Cash Collateral without the consent of the
Assignee and/or an order of any bankruptcy court pursuant to Section 363(b)(2)
of the Bankruptcy Code.


 


17.           The proceeds of the
Loan secured hereby were disbursed from the state of New York, which state the
parties agree has a substantial relationship to the underlying transaction 


 


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embodied hereby, and in all
respects, including, without limiting the generality of the foregoing, matters
of construction, validity and performance. 
This Assignment and the obligations arising hereunder shall be governed
by, and construed in accordance with, the laws of the state of New York
applicable to contracts made and performed in New York State and any applicable
laws of the United States of America, without regard to conflict of law rules
and principles.  Notwithstanding such
provisions, however, matters respecting title and the creation, perfection,
priority and foreclosure (including the nature of any interest in property that
results therefrom) of the lien encumbering the collateral covered by this
Agreement shall be governed by, and construed and enforced in accordance with,
the internal law of the state of Nevada without giving effect to the
conflicts-of law rules and principals of such state.


 


18.           The lien of this
Assignment is subject and subordinate to the lien of that certain Absolute
Assignment of Leases and Rents dated August 23, 2002 made by the Assignor to
the Assignee and recorded on August 23, 2002 in the Official Records of Clark
County, Nevada as Instrument No. 00055.


 


[Remainder of page left intentionally blank]


 


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IN WITNESS
WHEREOF, this Assignment has been executed by the Assignor 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:

  



 


 


	
  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


 


 


(Description of Premises)


 


 


Follows this page.


 


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Assessor’s Parcel No. 162-21-301-014


 


 


 


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


 


AND


 


MORGAN STANLEY DEAN WITTER


COMMERCIAL FINANCIAL SERVICES, INC.


 












 


ABSOLUTE ASSIGNMENT


OF LEASES AND RENTS


 












 




	
  Dated:

  	
   

  	
  December
       , 2002

  
	
   

  	
   

  	
   

  
	
  Location:

  	
   

  	
  3767 Las
  Vegas Boulevard

  South Las Vegas, Nevada

  
	
   

  
	
   

  
	
  RECORD AND
  RETURN TO:

  
	
   

  
	
  Esanu Katsky Korins & Siger, LLP

  605 Third Avenue

  New York, New York 10158

  Attention:   Stephen
  D. Brodie, Esq.

  






 




 





 


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