EXHIBIT 10.48
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT made the 23 day of August, 2002, between S&W OF LAS VEGAS,
L.L.C., a Delaware limited liability company, having an office at c/o The Xxxxx
& Wollensky Restaurant Group, Inc., 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "ASSIGNOR") and XXXXXX XXXXXXX XXXX XXXXXX COMMERCIAL FINANCIAL SERVICES,
INC., a Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (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 and The Xxxxx & Wollensky
Restaurant Group, Inc. (the "LOAN AGREEMENT"). Pursuant to the Loan Agreement,
the Assignee has made an initial loan to the Assignor on the date hereof (and
may make an additional loan pursuant thereto) [collectively, 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 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) 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, xxx 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
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or future tenants or occupants of all or any portion of the Premises, upon
receipt from the 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,
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simultaneously with, or subsequent to any action taken by it hereunder. The
Assignor hereby 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, "xxxxxx" 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.
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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 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.
[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/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of August in the year 2002 before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxx X. Xxxxxx,
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/ Xxxxx Xxxxxxxx
--------------------------------
Notary Public
[SEAL]
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EXHIBIT A
All that real property situated in the County of Xxxxx, State of Nevada,
bounded and described as follows:
The South 120 feet of the West Half (W 1/2) of the Northwest Quarter (NW 1/4)
of the Southwest Quarter (SW 1/4);
AND
The North 10 feet of the West One-Half (W 1/2) of the Southwest Quarter
(SW 1/4) of the Southwest Quarter (SW 1/4) of Section 21, Township 21 South,
Range 61 East, M.D.B. & M.
EXCEPTING THEREFROM all State and County roads and highways.
Follows page.
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Xxxxxxxx'x Xxxxxx No. 162-21-301-014
=============================================================================
S&W OF LAS VEGAS, L.L.C.
AND
XXXXXX XXXXXXX XXXX XXXXXX
COMMERCIAL FINANCIAL SERVICES, INC.
----------------------------------------
ABSOLUTE ASSIGNMENT
OF LEASES AND RENTS
-----------------------------------------
Dated: August 23, 2002
Location: 0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxx, Xxxxxx
RECORD AND RETURN TO:
Esanu Katsky Xxxxxx & Siger, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
=============================================================================
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