Exhibit 10.58
DEED OF TRUST
THIS DEED OF TRUST (this "Deed of Trust") made the nineteenth day of December,
2002, by DALLAS S&W, L.P., a Texas limited partnership, having an address at c/o
The Smith & Wollensky Restaurant Group, Inc. (the "Grantor"), 1114 First Avenue,
New York, New York 10021 to CHRISTOPHER MAYROSE ("Trustee"), for the benefit of
MORGAN STANLEY DEAN WITTER COMMERCIAL FINANCIAL SERVICES, INC., a Delaware
corporation, having an address at 825 Third Avenue, New York, New York 10022
(the "Beneficiary").
W I T N E S S E T H:
WHEREAS, the Grantor is the owner of the premises described in Exhibit A
attached hereto (the "Premises");
WHEREAS, subject to the terms of a certain Term Loan Agreement of even date
herewith among the Beneficiary, S&W Las Vegas, L.L.C. (the "Borrower"), The
Smith & Wollensky Restaurant Group, Inc. ("S&W Restaurant Group") and the
Grantor (such agreement and any and all amendments, modifications, extensions,
renewals or replacements thereto, is referred to herein as the "Loan Agreement";
all capitalized terms used herein which are not defined herein shall have the
meanings given to them in the Loan Agreement), the Beneficiary has agreed to
make a certain loan (the "Loan") to the Borrower, which Loan is evidenced by a
Promissory Note of even date herewith in the principal amount of One Million
Nine Hundred Thousand and 00/100 ($1,900,000.00) Dollars (as the same may be
amended or restated from time to time, the "Note");
WHEREAS, the Grantor has guarantied the Borrower's obligations under the Note,
the Loan Agreement and the other Loan Documents (as defined herein) pursuant to
a certain Joint and Several Guaranty of Payment of even date herewith (the
"Guaranty") made by the Grantor and S&W Restaurant Group (collectively, the
"Guarantors") to the Beneficiary;
NOW THEREFORE, IN CONSIDERATION OF THE USES AND TRUSTS (the "Trust") ESTABLISHED
AND CONTINUED BY THIS DEED OF TRUST AND IN CONSIDERATION OF TEN DOLLARS ($10)
AND OTHER VALUABLE CONSIDERATION PAID BEFORE DELIVERY OF THIS DEED OF TRUST BY
EACH OF THE TRUSTEE AND THE BENEFICIARY TO THE GRANTOR, WHO HEREBY ACKNOWLEDGES
ITS RECEIPT AND THAT IT IS REASONABLY EQUIVALENT VALUE FOR THIS DEED OF TRUST
AND ALL OTHER SECURITY AND RIGHTS GIVEN BY THE GRANTOR, AND TO SECURE PAYMENT OF
PRINCIPAL AND LAWFUL INTEREST AND PERFORMANCE OF THE FOLLOWING OBLIGATIONS
(collectively, the "Obligations"):
(i)
Prompt payment and performance of all
obligations of the Grantor under, with respect to and arising in connection with
the Loan Agreement, the Guaranty, this Deed of Trust and the other Loan
Documents to which the Grantor is a party, including without limitation, all
obligations to the Beneficiary for fees, costs and expenses, including
attorneys' fees, as provided herein or therein;
(ii)
Payment of all sums advanced by the
Beneficiary or the Trustee to protect the Trust Property (as defined herein),
with interest thereon at the Default Rate (as defined herein);
(iii)
All renewals, extensions, amendments,
restatements and changes of, or substitutions or replacements for, all or any
part