Commitments and Contingencies | 12 Months Ended |
Dec. 31, 2013 |
Commitments And Contingencies Disclosure [Abstract] | ' |
Commitments and Contingencies | ' |
8. Commitments and Contingencies |
Hotel Development Related Commitments |
In order to obtain long term management, franchise and license contracts, the Company has committed to contribute capital in various forms on hotel development projects. These include equity investments, key money, debt financing and cash flow guarantees to hotel owners. The cash flow guarantees generally have a stated maximum amount of funding and a defined term. The terms of the cash flow guarantees to hotel owners generally require the Company to fund if the hotels do not attain specified levels of operating profit. Oftentimes, cash flow guarantees to hotel owners may be recoverable as loans repayable to the Company out of future hotel cash flows and/or proceeds from the sale of hotels. |
The following table details, as of December 31, 2013 and 2012, the Company’s key money, equity investment and debt financing commitments for hotels under development as well as potential funding obligations under cash flow guarantees at operating hotels and hotels under development at the maximum amount under the applicable contracts, but excluding contracts where the maximum amount cannot be determined (in thousands): |
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| | As of | | | As of | | | | | | | | | | | | | |
December 31, | December 31, | | | | | | | | | | | | |
2013 (1) | 2012 (1) | | | | | | | | | | | | |
Key money, equity investment and debt financing commitments (2) | | $ | 32,499 | | | $ | 32,040 | | | | | | | | | | | | | |
Cash flow guarantees | | | 13,000 | | | | 25,600 | | | | | | | | | | | | | |
Cash flow guarantees in dispute (3) | | | 8,000 | | | | 8,000 | | | | | | | | | | | | | |
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Total maximum future funding commitments | | $ | 53,499 | | | $ | 65,640 | | | | | | | | | | | | | |
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Amounts due within one year (4) | | $ | 25,499 | | | $ | — | | | | | | | | | | | | | |
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-1 | The currency translation is based on an exchange rate of the applicable local currency to U.S. dollar using the exchange rate as of the end of the applicable reporting period. | | | | | | | | | | | | | | | | | | | |
-2 | As of December 31, 2013 and 2012, these commitments consist of key money commitments. The Company had no equity or debt financing commitments at December 31, 2013 and 2012. | | | | | | | | | | | | | | | | | | | |
-3 | Reflects an $8.0 million performance cash flow guarantee related to Delano Marrakech, which the Company believes it is not obligated to fund due to owner’s defaults under the management agreement terms. The Company has terminated its management agreement effective November 12, 2013, discussed further below. The owner of the hotel is disputing the circumstances surrounding termination. Both parties are seeking arbitration of outstanding claims, which is expected to occur in early 2015. | | | | | | | | | | | | | | | | | | | |
-4 | Amount represents £9.4 million (or approximately $15.5 million as of December 31, 2013) in key money for Mondrian London, which is expected to open in the summer of 2014, and funding of $10.0 million in key money for Mondrian at Baha Mar which is secured by a related letter of credit originally issued under the Delano Credit Facility and subsequently cash collateralized in February 2014 with proceeds from the Hudson/Delano 2014 Mortgage Loan. | | | | | | | | | | | | | | | | | | | |
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In September 2012, the Company opened Delano Marrakech, a 71 room hotel in Marrakech, Morocco. The management agreement included certain cash flow guarantees by the Company which stipulate certain minimum levels of operating performance and could result in potential future funding obligations related to Delano Marrakech, which are in dispute and disclosed in the hotel commitments and guarantees table above. In June 2013, the Company served the owner of Delano Marrakech with a notice of default for, among other things, failure to pay fees and reimbursable expenses and to operate the hotel in accordance with the standards under the management agreement. In September 2013, the Company served notice of termination of its management agreement for Delano Marrakech following the failure by the owner of Delano Marrakech to remedy numerous breaches of the agreement. As a result, the Company discontinued all affiliation with the hotel, including removal of the Delano name, and terminated management of the property, effective November 12, 2013. Pursuant to the management agreement, in the event of an owner default, the Company has no further obligations under the performance-based cash flow guarantee. The owner of the hotel is disputing the circumstances surrounding termination. Both parties are seeking arbitration of outstanding claims, including the Company’s claims for unpaid fees and reimbursements. Arbitration is expected to occur in early 2015. As a result of these events, in 2013, the Company recognized non-cash impairment charges related to the Company’s key money contribution recorded in other assets and receivables due from and related to Delano Marrakech totaling $4.5 million, which was recorded as an impairment loss on receivables and other assets from managed hotel. |
In July 2013, the Company entered into a hotel management agreement for an approximately 211-room Delano-branded hotel to be located in Cartagena, Colombia. Upon completion and opening of the hotel, which is expected to have some condominium hotel units for sale, the Company will operate the hotel pursuant to a 20-year management agreement, with one 10-year extension option. The hotel is scheduled to open in 2016. Through certain cash flow guarantees which stipulate certain minimum levels of operating performance, the Company may have potential future funding obligations related to Delano Cartagena, once opened. The maximum amount of such future funding obligations under the applicable contract is approximately $5.0 million, which is included in the table above. |
In January 2014, the Company signed a franchise agreement for a Morgans Original branded hotel in Istanbul, Turkey. The hotel, which is currently under development, is being converted from office and retail space, is expected to have 78 rooms and open in late 2014. The Company has a $0.7 million key money obligation that will be funded upon the hotel opening. |
As the Company pursues its growth strategy, it may continue to invest in new management, franchise and license agreements through key money and equity investments. To fund any such future investments, the Company may from time to time pursue additional potential financing opportunities it has available. |
The Company has signed management, license or franchise agreements for various hotels which are in the development stage. As of December 31, 2013, these include the following: |
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| | Expected Room | | | Anticipated | | | Initial | | | | | | | | | |
Count | Opening | Term | | | | | | | | |
Hotels Currently Under Construction or Renovation: | | | | | | | | | | | | | | | | | | | | |
Mondrian London | | | 360 | | | | 2014 | | | | 25 years | | | | | | | | | |
Delano Las Vegas (1) | | | 1,114 | | | | 2014 | | | | 10 years | (1) | | | | | | | | |
Morgans Original, Istanbul (1) | | | 78 | | | | 2014 | | | | 15 years | (2) | | | | | | | | |
Mondrian Doha | | | 270 | | | | 2014 | | | | 30 years | | | | | | | | | |
Mondrian at Baha Mar | | | 310 | | | | 2015 | | | | 20 years | | | | | | | | | |
Delano Moscow | | | 160 | | | | 2015 | | | | 20 years | | | | | | | | | |
Other Signed Agreements: | | | | | | | | | | | | | | | | | | | | |
Mondrian Istanbul | | | 105 | | | | | | | | 20 years | | | | | | | | | |
Delano Aegean Sea | | | 150 | | | | | | | | 20 years | | | | | | | | | |
Delano Cartagena | | | 211 | | | | | | | | 20 years | | | | | | | | | |
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-1 | Hotel is subject to a license or franchise agreement. | | | | | | | | | | | | | | | | | | | |
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Financing has not been obtained for the hotel projects listed under “Other Signed Agreements” above, and there can be no assurances that any or all of the Company’s development stage projects will be developed as planned. If adequate project financing is not obtained, these projects may need to be limited in scope, deferred or cancelled altogether, and to the extent the Company has previously funded key money, an equity investment or debt financing on a cancelled project, the Company may be unable to recover the amounts funded. |
For example, due to the Company’s joint venture partner’s failure to achieve certain agreed milestones in the development of the hotel, in early 2014, the Company exercised a put option under its Mondrian Istanbul joint venture agreement that requires the Company’s joint venture partner to buy back its equity interests in the Mondrian Istanbul joint venture. The Company’s rights under that joint venture agreement are secured by, among other things, a mortgage on the property. In February 2014, the Company issued a notice of default to its joint venture partner, as they failed to buy back the Company’s equity interests by the contractual deadline, and further notified its joint venture partner that the Company plans to begin foreclosure proceedings as a result of the event of default. The Company does not currently anticipate that these proceeding will have an impact on our management agreement should the hotel development continue. |
Other Guarantees to Hotel Owners |
As discussed above, the Company has provided certain cash flow guarantees to hotel owners in order to secure management contracts. |
The Company’s hotel management agreements for Royalton and Morgans contain cash flow guarantee performance tests that stipulate certain minimum levels of operating performance. These performance test provisions give the Company the option to fund a shortfall in operating performance limited to the Company’s earned base fees. If the Company chooses not to fund the shortfall, the hotel owner has the option to terminate the management agreement. As of December 31, 2013, approximately $1.0 million was accrued as a reduction to management fees related to these performance test provisions. The Company’s maximum potential amount of future fundings related to the Royalton and Morgans performance guarantee cannot be determined as of December 31, 2013, but under the hotel management agreements is limited to the Company’s base fees earned. |
Operating Joint Venture Hotels Commitments and Guarantees |
The following details obligations the Company has or may have related to its operating joint venture hotels as of December 31, 2013. |
Mondrian South Beach Mortgage and Mezzanine Agreements. Morgans Group and affiliates of its joint venture partner have agreed to provide standard nonrecourse carve-out guaranties and provide certain limited indemnifications for the Mondrian South Beach mortgage and mezzanine loans. In the event of a default, the lenders’ recourse is generally limited to the mortgaged property or related equity interests, subject to standard nonrecourse carve-out guaranties for “bad boy” type acts. Morgans Group and affiliates of its joint venture partner also agreed to guarantee the joint venture’s obligation to reimburse certain expenses incurred by the lenders and indemnify the lenders in the event such lenders incur liability in connection with certain third-party actions. Morgans Group and affiliates of its joint venture partner have also guaranteed the joint venture’s liability for the unpaid principal amount of any seller financing note provided for condominium sales if such financing or related mortgage lien is found unenforceable, provided they shall not have any liability if the seller financed unit becomes subject to the lien of the lender’s mortgage or title to the seller financed unit is otherwise transferred to the lender or if such seller financing note is repurchased by Morgans Group and/or affiliates of its joint venture at the full amount of unpaid principal balance of such seller financing note. In addition, although construction is complete and Mondrian South Beach opened on December 1, 2008, Morgans Group and affiliates of its joint venture partner may have continuing obligations under construction completion guaranties until all outstanding payables due to construction vendors are paid. As of December 31, 2013, there are remaining payables outstanding to vendors of approximately $0.4 million. Pursuant to a letter agreement with the lenders for the Mondrian South Beach loan, the joint venture agreed that these payables, many of which are currently contested or under dispute, will not be paid from operating funds but only from tax abatements and settlements of certain lawsuits. In the event funds from tax abatements and settlements of lawsuits are insufficient to repay these amounts in a timely manner, the Company and its joint venture partner are required to fund the shortfall amounts. |
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The Company and affiliates of its joint venture partner also have each agreed to purchase approximately $14 million of condominium units under certain conditions, including an event of default. In the event of a default under the lender’s mortgage or mezzanine loan, the joint venture partners are each obligated to purchase selected condominium units, at agreed-upon sales prices, having aggregate sales prices equal to 1/2 of the lesser of $28.0 million, which is the face amount outstanding on the lender’s mezzanine loan, or the then outstanding principal balance of the lender’s mezzanine loan. The joint venture is not currently in an event of default under the mortgage or mezzanine loan. As of December 31, 2013, there has been no triggering event that would require the Company to recognize a liability related to the construction completion or the condominium purchase guarantees. |
Mondrian SoHo. Certain affiliates of the Company’s joint venture partner have agreed to provide a standard nonrecourse carve-out guaranty for “bad boy” type acts and a completion guaranty to the lenders for the Mondrian SoHo loan, for which Morgans Group has agreed to indemnify the joint venture partner and its affiliates up to 20% of such entities’ guaranty obligations, provided that each party is fully responsible for any losses incurred as a result of its own gross negligence or willful misconduct. As of December 31, 2013, there has been no triggering event that would require the Company to recognize a liability related to this indemnity. |
Ames. On April 26, 2013, the joint venture closed on a new loan agreement with the mortgage lenders that provides for a reduction of the mortgage debt and an extension of maturity in return for a cash paydown. The Company did not contribute to the cash paydown and instead entered into an agreement with its joint venture partner pursuant to which, among other things, (1) the Company assigned its equity interests in the joint venture to its joint venture partner, (2) the Company agreed to give its joint venture partner the right to terminate its management agreement upon 60 days prior notice in return for an aggregate payment of $1.8 million, and (3) a creditworthy affiliate of the Company’s joint venture partner has assumed all or a portion of the Company’s potential liability with respect to historic tax credit guaranties, with the Company’s liability for any tax credit guaranties capped, in any event, at $3.0 million in the aggregate. The potential liability for historic tax credit guaranties relates to approximately $16.9 million of federal and state historic rehabilitation tax credits that Ames qualified for at the time of its development. As of December 31, 2013, there has been no triggering event that would require the Company to accrue any potential liability related to the historic tax credit guarantee. In May 2013, the hotel owner exercised its right to terminate the Company’s management agreement effective July 17, 2013, and on July 17, 2013, the management agreement was terminated. The Company received and recorded income of $0.9 million of the $1.8 million payment during the second quarter of 2013. The Company received the remaining $0.9 million in July 2013, which was recorded in management fee-related parties and other income on the consolidated statements of comprehensive loss during the year ended December 31, 2013. |
Guaranteed Loans and Commitments |
The Company has made payment guarantees to lenders and lessors of its owned and leased hotels, namely related to the Hudson 2012 Mortgage Loan, the Clift lease payments and the Delano Credit Facility, as discussed further in note 7. In connection with the closing of the Hudson/Delano 2014 Mortgage Loan, described more fully above, the Delano Credit Facility was terminated after repayment of the outstanding debt thereunder. |
Additionally, the Company is obligated to make future minimum lease payments for noncancelable leases, which the Company accounts for as operating leases. These operating leases include amounts related to the portion of the Hudson capital lease which are allocable to land, lease payments to hotel owners related to certain of our Owned F&B Operations, lease payments related to the Company’s three restaurants at Mandalay Bay, and our corporate office lease. Future minimum lease payments related to these operating leases in effect as of December 31, 2013 are as follows (in thousands): |
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| | Land | | | Other | | | | | | | | | | | | | |
(See note 7) | | | | | | | | | | | | |
2014 | | $ | 266 | | | $ | 4,407 | | | | | | | | | | | | | |
2015 | | | 266 | | | | 4,435 | | | | | | | | | | | | | |
2016 | | | 266 | | | | 4,465 | | | | | | | | | | | | | |
2017 | | | 266 | | | | 4,496 | | | | | | | | | | | | | |
2018 | | | 266 | | | | 4,343 | | | | | | | | | | | | | |
Thereafter | | | 20,769 | | | | 3,765 | | | | | | | | | | | | | |
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Total | | $ | 22,099 | | | $ | 25,911 | | | | | | | | | | | | | |
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Future minimum lease payments do not include amounts for renewal periods or amounts that may need to be paid to landlords for real estate taxes, electricity and operating costs. |
Management Fee on Restaurants |
Prior to June 20, 2011, the Company owned a 50% interest in a series of restaurant joint ventures with affiliates of CGM for the purpose of establishing, owning, operating and/or managing restaurants, bars and other food and beverage operations at certain of the Company’s hotels. CGM, or an affiliated entity, managed the operations of the restaurant venture and earns a management fee typically equal to 3% of the gross revenues generated by the operation. |
As a result of the CGM Transaction, the Company purchased from affiliates of CGM the 50% interest CGM owned in the restaurant joint venture. Affiliates of CGM have agreed to continue to manage the food and beverage operations at certain properties for a transitional period pursuant to short-term cancellable management agreements while the Company reassess its food and beverage concepts and strategies. |
Multi-employer Retirement Plan |
As of December 31, 2013, approximately 27.6% of the Company’s employees are subject to collective bargaining agreements. The Company is a participant, through these collective bargaining agreements, in multi-employer defined contribution retirement plans in New York and multi-employer defined benefit retirement plans in California covering union employees. The Company is a participant, through collective bargaining agreements, in multi-employer defined benefit retirement plans in Las Vegas, Nevada related to certain TLG employees, and these expenses are reimbursed by various MGM affiliates in connection with the Company’s applicable management agreements. |
The Company’s participation in these plans is outlined in the table below (in thousands): |
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Pension Fund | | EIN/ Pension Plan | | | Pension Protection | | Contributions | |
Number | Act |
| Zone Status, as of |
| January 1, |
| | | 2013 | | 2012 | | 2013 | | | 2012 | | | 2011 | |
New York Hotel Trades Council and Hotel Association of New York City, Inc. Pension Fund | | | 13-1764242/001 | | | Yellow | | Yellow | | $ | 1,446 | | | $ | 1,309 | | | $ | 1,743 | |
Other | | | | | | | | | | | 793 | | | | 600 | | | | 561 | |
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Total Contributions | | | | | | | | | | $ | 2,239 | | | $ | 1,909 | | | $ | 2,304 | |
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Eligible employees at the Company’s owned and managed hotels in New York City participate in the New York Hotel Trades Council and Hotel Association of New York City, Inc. Pension Fund. The Company contributions are based on a percentage of all union employee wages as dictated by the collective bargaining agreement that expires on June 30, 2019. The Company’s contributions did not exceed 5% of the total contributions to the pension fund in 2013, 2012, or 2011. The pension fund has implemented a funding improvement plan and the Company has not paid a surcharge. |
Under the Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendments Act of 1980, an employer is liable upon withdrawal from or termination of a multiemployer plan for its proportionate share of the plan’s unfunded vested benefits liability. Based on information provided by the administrators of the majority of these multiemployer plans, the Company does not believe there is any significant amount of unfunded vested liability under these plans. |
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Other Litigation |
The Company is involved in various lawsuits and administrative actions in the normal course of business, as well as other litigations as noted below. |
Litigations Regarding Mondrian SoHo |
On January 16, 2013, German American Capital Corporation, the lender for the mortgage loans on Mondrian SoHo (“GACC” or the “lender”), filed a complaint in the Supreme Court of the State of New York, County of New York against Sochin Downtown Realty, LLC, the joint venture that owns Mondrian SoHo (“Sochin JV”), Morgans Management, the manager for the hotel, Morgans Group, Happy Bar LLC and MGMT LLC, seeking foreclosure including, among other things, the sale of the mortgaged property free and clear of the management agreement, entered into on June 27, 2007, as amended on July 30, 2010, between Sochin JV and Morgans Management. According to the complaint, Sochin JV defaulted by failing to repay the approximately $217 million outstanding on the loans when they became due on November 15, 2012. Cape Advisors Inc. indirectly owns 80% of the equity interest in Sochin JV and Morgans Group indirectly owns the remaining 20% equity interest. |
On March 11, 2013 the Company moved to dismiss the lender’s complaint on the grounds that, among other things, the Company’s management agreement is not terminable upon a foreclosure. On April 2, 2013, the lender opposed the Company’s motion to dismiss and cross-moved for summary judgment. On August 12, 2013, the court heard oral argument on both motions, as well as a third motion brought by the Company to strike an affirmation submitted by lender’s attorney. On January 27, 2014, the court granted Morgans Management’s motion to dismiss on the ground that a management contract does not constitute an interest subject to foreclosure, and denied lender’s motion for summary judgment as moot. On February 27, 2014, the court held a status conference where a schedule was set for further proceedings including a further summary judgment motion to be filed by the lender within 30 days as to the remaining defendants. |
On February 25, 2013, Sochin JV filed a complaint in the Delaware Chancery Court against Morgans Hotel Group Management LLC and Morgans Group, seeking, among other things, a declaration that plaintiff terminated the management agreement for the hotel, injunctive relief, and an award of damages in an amount to be determined, but alleged to exceed $10 million, plus interest. In addition, the Company, through its equity affiliate, filed a separate action against the owner and its parent in the Delaware Chancery Court for, among other things, breaching fiduciary duties and their joint venture agreement for failing to obtain consent prior to the termination. That action was subsequently consolidated with the termination action. On September 17, 2013, the Delaware Chancery Court heard oral argument on various motions to dismiss and for partial summary judgment in the consolidated actions, following which the court entered orders, on September 20, 2013, ruling that Sochin JV properly terminated the hotel management agreement on agency grounds, that Morgans must vacate the hotel forthwith or on whatever other timetable the hotel owner chooses, and that two claims by the Company’s equity affiliate are dismissed but not its breach of fiduciary duty claim. On September 30, 2013, the Company filed a motion for reconsideration and to stay execution of the judgment pending appeal. . That motion is still pending, and no final order has as yet been issued. By joint stipulation of the parties, granted on February 21, 2014, Sochin JV will file its opposition to the motion for reconsideration and to stay by March 24, 2014, following which the court will issue its ruling. The parties have also stipulated to move, answer or otherwise respond to the operative complaints, by March 24, 2014. Should the Company not prevail on its motion for reconsideration and to stay, the Company intends to vigorously pursue its rights on appeal, but no assurance can be provided that the Company will prevail or otherwise retain management of the hotel. |
On April 30, 2013, the Company filed a lawsuit against the majority member of Sochin JV’s parent and its affiliate in New York Supreme Court for damages based on the attempted wrongful termination of the management agreement, defamation, and breach of fiduciary and other obligations under the parties’ joint venture agreement. On August 23, 2013, the owner moved to dismiss that complaint. As of January 13, 2014, that motion has been fully briefed, and oral argument has been set for April 10, 2014. It is not possible to predict with reasonable certainty the outcome of this action, nor the amount of damages the Company is likely to recover should it ultimately prevail on one or more of its claims. |
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Litigation Regarding TLG Promissory Notes |
On August 5, 2013, Messrs. Andrew Sasson and Andy Masi filed a lawsuit in the Supreme Court of the State of New York against TLG Acquisition LLC and Morgans Group LLC relating to the $18 million TLG Promissory Notes. See note 1 and note 7 regarding the background of the TLG Promissory Notes. The complaint alleges, among other things, a breach of contract and an event of default under the TLG Promissory Notes as a result of the Company’s failure to repay the TLG Promissory Notes following an alleged “Change of Control” that purportedly occurred upon the election of the Company’s current Board of Directors on June 14, 2013. The complaint sought payment of Mr. Sasson’s $16 million TLG Promissory Note and Mr. Masi’s $2 million TLG Promissory Note, plus interest compounded to principal, as well as default interest, and reasonable costs and expenses incurred in the lawsuit. On September 26, 2013, the Company filed a motion to dismiss the complaint. On February 6, 2014, the Court granted the Company’s motion to dismiss. |
Litigation Regarding 2013 Deleveraging Transaction, Proxy Litigation Between Mr. Burkle and OTK, and Litigation Regarding Yucaipa Board Observer Rights |
On February 28, 2014, the Company entered into a binding Memorandum of Understanding (“MOU”) which contemplates the partial settlement and dismissal with prejudice of the action entitled OTK Associates, LLC v. Friedman, et al., C.A. No. 8447-VCL (Del. Ch.) (the “Delaware Action”) and the complete settlement and dismissal with prejudice of the actions entitled Yucaipa American Alliance Fund II L.P., et al. v. Morgans Hotel Group Co., et al., Index No. 652294/2013 (NY Sup.) (the “Securities Action”); Burkle v. OTK Associates, LLC, et al., Case No. 13-CIV-4557 (S.D.N.Y.) (the “Proxy Action”); and Yucaipa American Alliance Fund II L.P., et al. v. Morgans Hotel Group, Index No. 653455/2013 (NY Sup.) (the “Observer Action”) (the foregoing four actions are collectively referred to as the “Actions”). An overview of the Actions and terms of the MOU follows. |
The Delaware Action |
On April 1, 2013, director Jason Kalisman filed in the Delaware Chancery Court the “Delaware Action,” a purported derivative action on the Company’s behalf against former directors Robert Friedman, Thomas L. Harrison, Michael D. Malone, Jeffrey Gault and Andrew Sasson (collectively, the “Former Director Defendants”), Michael J. Gross, a former director and chief executive officer, and Ronald W. Burkle, another former director, and the following companies with which he is affiliated: Yucaipa American Alliance Fund II, L.P., Yucaipa American Alliance (Parallel) Fund II, L.P., Yucaipa Aggregator Holdings, LLC and The Yucaipa Companies LLC (collectively, the “Yucaipa Defendants”). The action arose from a proposed deleveraging transaction between the Company and the Yucaipa Defendants (the “2013 Deleveraging Transaction”), which a majority of the Board of Directors voted to approve on March 30, 2013. On April 4, 2013, OTK, a stockholder of the Company, filed a motion to intervene as a plaintiff in the Delaware Action. |
On May 14, 2013, the court issued a preliminary injunction (a) prohibiting the Company from taking any steps to consummate the 2013 Deleveraging Transaction until the earlier of a trial or the taking of certain action by the Board of Directors and one of its committees; and (b) requiring the Company to hold its 2013 Annual Meeting on the date originally scheduled, using the originally scheduled record date. The court further determined that all claims asserted by plaintiffs, including those resolved on a preliminary basis by the court in its May 14, 2013 Order, were subject to final resolution following trial. |
On July 9, 2013, the court granted plaintiff OTK’s motion to file a Second Amended and Supplemental Complaint (the “Second Amended Complaint”). The Second Amended Complaint excludes Mr. Kalisman as a plaintiff but continues to assert claims, both directly and derivatively on the Company’s behalf, against all persons and entities previously named as defendants in the Amended Complaint, except that no claims are now made against the Company. |
On July 17, 2013, counsel for Mr. Kalisman and OTK filed in the Delaware Action a motion for the award of approximately $2.7 million in attorneys’ fees and expenses related to their prosecution of the Delaware Action through the date of the motion. On October 31, 2013, the court, after directing that notice of the application be given to the Company’s stockholders and having not received any objections, issued an order granting the award. The Company’s directors and officers liability insurance paid this award in late 2013. |
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On August 22, 2013, the Company filed its answer to the Second Amended Complaint. The defendants in the action chose either to answer the Second Amended Complaint or moved to dismiss or stay the action. On January 21, 2014, the court granted an unopposed motion to dismiss without prejudice all claims asserted against Mr. Gross in the Delaware Action. On February 5, 2014, the court issued an opinion denying, in most part, all the defendants’ motions to dismiss or stay the Delaware Action. |
The Securities Action |
On June 27, 2013, Yucaipa American Alliance Fund II, L.P., Yucaipa American Alliance (Parallel) Fund II, L.P., Yucaipa Aggregator Holdings, LLC and Vintage Deco Hospitality LLC (collectively the “Yucaipa Securities Action Plaintiffs”) filed a complaint against the Company and Morgans Group in the Supreme Court of the State of New York alleging, among other things, that the Company and Morgans Group had refused to use commercially reasonable best efforts to close the various putative agreements comprising the 2013 Deleveraging Transaction, and that there has “effectively” been a withdrawal or adverse modification of the approval of the 2013 Deleveraging Transaction by the Board of Directors. Alternatively, the Yucaipa Securities Action Plaintiffs contend that the Company and Morgans Group breached certain representations and warranties under the putative contracts comprising the 2013 Deleveraging Transaction. The Yucaipa Securities Action Plaintiffs have asserted various claims and seek, among other things, an award of damages equal to a termination fee of $9 million, as well as payment of out-of-pocket costs, indemnification in excess of $1 million, pre-judgment interest and attorney’s fees. |
On July 22, 2013, the Company and Morgans Group filed a motion in the Securities Action to stay (or alternatively to dismiss) that action pending the disposition of the Delaware Action. On January 29, 2014, the court in the Securities Action denied on a “without prejudice” basis, that motion. On February 26, 2014, the Company and Morgans Group served an answer to the complaint in the Securities Action. |
The Proxy Action |
On July 1, 2013, Mr. Burkle filed a complaint in the U.S. District Court for the Southern District of New York against OTK and the seven current members of the Board of Directors. The complaint purports to assert a claim against all defendants arising under Section 14(a) of the Securities Exchange Act of 1934, as amended, for allegedly using false and materially misleading proxy solicitation materials during the 2013 annual election of directors. The complaint seeks, among other things, an injunction requiring defendants to cause the Company to hold a new election of the Board of Directors. On August 30, 2013, Mr. Burkle filed a motion for preliminary injunction requesting that defendants be ordered to call a stockholders’ meeting and to schedule a new board of directors election. On that same date, defendants filed a motion to dismiss Mr. Burkle’s complaint. On November 13, 2013, the court issued a decision denying Mr. Burkle’s preliminary injunction motion and on February 25, 2014, the court converted the dismissal motion to one for summary judgment and gave the parties 30 days to submit any additional relevant material. The Company is not a party to the Proxy Action. |
The Observer Action |
On October 4, 2013, Yucaipa American Alliance Fund II, L.P. and Yucaipa American Alliance (Parallel) Fund II L.P. filed a complaint against the Company in the Supreme Court of the State of New York. The plaintiffs assert in the complaint, among other things, that the Company has breached the terms of a Securities Purchase Agreement, dated as of October 15, 2009, that the Company entered with the plaintiffs by not providing plaintiffs with the “observer” rights to the Board of Directors meetings that plaintiffs contend they are entitled to under the Securities Purchase Agreement. In addition to attorneys’ fees and other unspecified relief, the complaint seeks preliminary and permanent injunctions ordering the Company to “honor fully” plaintiffs’ alleged observer rights by, among other things, refraining from holding informal board meetings, from failing to provide notice, and from improperly delegating board duties to a committee of the Board of Directors. On January 27, 2014, the Company filed an answer, denying material allegations of the complaint, and the Company served demands for discovery. |
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The MOU |
The MOU is subject to execution of a Stipulation of Settlement acceptable to the Company (the “Settlement Stipulation”), which must be submitted to the Delaware Court of Chancery in the Delaware Action for review and approval and will not become effective, under the terms of the MOU, until such approval is given and is no longer subject to further court review (the “Effective Date”). |
The MOU provides, among other things, for the following: |
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| • | | The Company will pay to the Yucaipa Securities Action Plaintiffs in the Securities Action an amount equal to $3 million less the aggregate amount of any reasonable and necessary attorneys’ fees and expenses incurred by Mr. Burkle in his defense of the Delaware Action that are paid to him by the Company’s insurers prior to the Effective Date (the “Securities Action Payment”). | | | | | | | | | | | | | | | | | |
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| • | | Mr. Burkle will pay to the Company the amount of all insurance proceeds he recovers from the Company’s insurers after the Effective Date for the reasonable and necessary attorneys’ fees and expenses that he incurred in defense of the Delaware Action and assign to the Company any claims he may have against the Company’s insurers relating to any such reasonable and necessary attorneys’ fees and expenses that the Company’s insurers may fail to pay Mr. Burkle. | | | | | | | | | | | | | | | | | |
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| • | | To the extent not paid by the Company’s insurers, the Company will pay the amount of any reasonable and necessary attorneys’ fees and expenses incurred by Messrs. Friedman, Gault and Sasson (collectively, the “Settling Former Directors”) in defending the Delaware Action, subject to the Settling Former Directors’ assignment to the Company of any claims they have against the Company’s insurers relating to any such unpaid amounts. | | | | | | | | | | | | | | | | | |
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| • | | The Settling Former Directors will pay to the Company a portion of the Securities Action Payment (based on a formula whose elements cannot presently be quantified) unless the Company’s insurers pay such amounts to the Company or the Settling Former Directors assign to the Company any claims they have against the Company’s insurers relating to any such amounts that the Company’s insurers fail to pay. | | | | | | | | | | | | | | | | | |
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| • | | Counsel for OTK and current director Jason T. Kalisman will apply to the Delaware Court of Chancery for an award of payment from the Company of the reasonable and necessary fees and expenses they incurred in connection with the Delaware Action, excluding those fees and expenses encompassed in the court’s October 31, 2013 order in the Delaware Action. Any such award may be subject to recovery by the Company from its insurers. | | | | | | | | | | | | | | | | | |
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| • | | Plaintiffs and defendants in each of the Actions, apart from former director defendants Messrs. Harrison and Malone who chose not to participate in the MOU and against whom the Delaware Action continues (collectively, the “Non-Settling Former Directors”), will exchange customary releases which release the parties and certain of their affiliates from claims arising from the subject matters of each of the Actions. | | | | | | | | | | | | | | | | | |
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| • | | Each of the Actions will be dismissed with prejudice and on the merits with each party bearing its own costs, except as to the Non-Settling Former Directors against whom the Delaware Action continues or as specified in the MOU. | | | | | | | | | | | | | | | | | |
The Company cannot currently predict the amount of any funds it might be required to pay under the MOU; whether the Company’s insurers will pay some or all of the amounts that the Company would otherwise be obligated to pay under the MOU; whether the Company would be successful in asserting against its insurers any claims that will or may be assigned to the Company under the terms of the MOU or that the Company might assert on its own behalf, or what the amount of any such recovery might be. Furthermore, the Company cannot predict whether the Delaware Court of Chancery will approve the Settlement Stipulation or whether the court’s decision will be challenged on appeal and, if so challenged, affirmed. Notwithstanding the foregoing, the Company does not expect that the net amount of all payments the Company might ultimately be required to make, after recovery of all insurance proceeds, under the terms of the MOU and the Stipulation of Settlement, if approved, will be material to financial position of the Company, and as of December 31, 2013, the Company believes its accruals are adequate to cover its contingencies. |
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The foregoing description of the MOU does not purport to be complete and is qualified in its entirety by reference to the MOU, which is filed as Exhibit 10.40 hereto and is incorporated into this report by reference. |
Environmental |
As a holder of real estate, the Company is subject to various environmental laws of federal and local governments. Compliance by the Company with existing laws has not had an adverse effect on the Company and management does not believe that it will have a material adverse impact in the future. However, the Company cannot predict the impact of new or changed laws or regulations. |