GUARANTY
Exhibit 10.7
EXECUTION VERSION
THIS GUARANTY dated as of July 28, 2011, (this “Guaranty”) executed and delivered by
each of the undersigned and the other Persons from time to time party hereto pursuant to the
execution and delivery of an Accession Agreement in the form of Annex I hereto (all of the
undersigned, together with such other Persons each a “Guarantor” and collectively, the
“Guarantors”) in favor of (a) DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as
Agent (the “Agent”) for itself, the Issuing Bank and each of the Lenders under that certain
Credit Agreement dated as of July 28, 2011 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among Morgans Group LLC (the
“MG Borrower”), Beach Hotel Associates LLC (the “Florida Borrower”, and together
with the MG Borrower, collectively, the “Borrowers”), Morgans Hotel Group Co., the lenders
party thereto and their assignees under Section 13.5. thereof (the “Lenders”) and the Agent
and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Issuing Bank and the Lenders have
agreed to make available to the Borrowers certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, each of the Borrowers and each of the Guarantors, though separate legal entities, are
mutually dependent on each other in the conduct of their respective businesses as an integrated
operation and have determined it to be in their mutual best interests to obtain financing from the
Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and indirect benefits from
the Agent and the Lenders making such financial accommodations available to the Borrowers under the
Credit Agreement and, accordingly, each Guarantor is willing to guarantee the Borrowers’
obligations to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor’s execution and delivery of this Guaranty is a condition to the Agent
and the Lenders making, and continuing to make, such financial accommodations to the Borrowers.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each Guarantor, each Guarantor agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties as primary obligor and not merely as surety, the due and punctual
payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all
of the following (collectively referred to as the “Guarantied Obligations”): (a) all
indebtedness and obligations owing by each of the Borrowers to any Lender, the Issuing Bank or the
Agent under or in connection with the Credit Agreement and any other Loan Document, including
without limitation, the repayment of all principal of the Loans and the Reimbursement
Obligations, and the payment of all interest, Fees, charges, attorneys’ fees and other amounts
payable to any Lender or the Agent thereunder or in connection therewith; (b) any and all
extensions, renewals, modifications, amendments or substitutions of the foregoing; (c) all
expenses, including, without limitation, reasonable attorneys’ fees and disbursements, that are
incurred by the Lenders, the Issuing Bank and the Agent in the enforcement of any of the foregoing
or any obligation of such Guarantor hereunder; and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for its own account. Accordingly,
none of the Lenders, the Issuing Bank or the Agent shall be obligated or required before enforcing
this Guaranty against any Guarantor: (a) to pursue any right or remedy any of them may have against
either of the Borrowers, any other Guarantor or any other Person or commence any suit or other
proceeding against either of the Borrowers, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of either of the Borrowers,
any other Guarantor or any other Person; or (c) to make demand of either of the Borrowers, any
other Guarantor or any other Person or to enforce or seek to enforce or realize upon any collateral
security held by the Lenders, the Issuing Bank or the Agent which may secure any of the Guarantied
Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents evidencing the
same, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent or the Lenders with respect thereto. The liability of
each Guarantor under this Guaranty shall be primary, absolute, irrevocable and unconditional in
accordance with its terms and shall remain in full force and effect without regard to, and shall
not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including without limitation, the following (whether or not such Guarantor
consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or manner of payment of all or
any portion of the Guarantied Obligations, (iii) any amendment or waiver of, or consent to
the departure from or other indulgence with respect to, the Credit Agreement, any other Loan
Document, or any other document or instrument evidencing or relating to any Guarantied
Obligations, or (iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit Agreement, any of
the other Loan Documents, or any other documents, instruments or agreements relating to the
Guarantied Obligations or any other instrument or agreement referred to therein or
evidencing any Guarantied Obligations or any assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any of the other
Loan Documents, or any other document, instrument or agreement referred to therein or
evidencing any Guarantied Obligations or any assignment or transfer of any of the foregoing;
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(c) any furnishing to the Agent, the Issuing Bank or the Lenders of any security for
the Guarantied Obligations, or any sale, exchange, release or surrender of, or realization
on, any collateral securing any of the Obligations;
(d) any settlement or compromise of any of the Guarantied Obligations, any security
therefor, or any liability of any other party with respect to the Guarantied Obligations, or
any subordination of the payment of the Guarantied Obligations to the payment of any other
liability of either of the Borrowers or any other Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, either of the Borrowers,
any other Loan Party or any other Person, or any action taken with respect to this Guaranty
by any trustee or receiver, or by any court, in any such proceeding;
(f) any act or failure to act by either of the Borrowers, any other Loan Party or any
other Person which may adversely affect such Guarantor’s subrogation rights, if any, against
either of the Borrowers or any other Loan Party to recover payments made under this
Guaranty;
(g) any nonperfection or impairment of any security interest or other Lien on any
collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid by either of the Borrowers, any other Guarantor or any
other Person with respect to the liabilities of either of the Borrowers or any other Loan
Party to the Agent or the Lenders, regardless of what liabilities of either of the Borrowers
remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of either of the
Borrowers or in the exercise thereof;
(j) any defense, set-off, claim or counterclaim (other than indefeasible payment and
performance in full) which may at any time be available to or be asserted by either of the
Borrowers, any other Loan Party or any other Person against the Agent or any Lender;
(k) any change in the corporate existence, structure or ownership of either of the
Borrowers or any other Loan Party;
(l) any statement, representation or warranty made or deemed made by or on behalf of
either of the Borrowers, any Guarantor or any other Loan Party under any Loan Document, or
any amendment hereto or thereto, proves to have been incorrect or misleading in any respect;
or
(m) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, a Guarantor hereunder (other than indefeasible payment and performance in
full).
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Section 4. Action with Respect to Guarantied Obligations. The Lenders, the Issuing
Bank and the Agent may, at any time and from time to time, without the consent of, or notice to,
any Guarantor, and without discharging any Guarantor from its obligations hereunder, take any and
all actions described in Section 3 and may otherwise: (a) amend, modify, alter or
supplement the terms of any of the Guarantied Obligations, including, but not limited to, extending
or shortening the time of payment of any of the Guarantied Obligations or changing the interest
rate that may accrue on any of the Guarantied Obligations; (b) amend, modify, alter or supplement
the Credit Agreement or any other Loan Document; (c) sell, exchange, release or otherwise deal with
all, or any part, of any collateral securing any of the Obligations; (d) release any other Loan
Party or other Person liable in any manner for the payment or collection of the Guarantied
Obligations; (e) exercise, or refrain from exercising, any rights against either of the Borrowers,
any other Guarantor or any other Person; and (f) apply any sum, by whomsoever paid or however
realized, to the Guarantied Obligations in such order as the Lenders shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes to the Agent,
the Issuing Bank and the Lenders all of the representations and warranties made by each of the
Borrowers with respect to or in any way relating to such Guarantor as a Subsidiary or Loan Party
under the Credit Agreement and the other Loan Documents, as if the same were set forth herein in
full.
Section 6. Covenants. Each Guarantor will comply with all covenants which any
Borrower is to cause such Guarantor to comply with as a Subsidiary or Loan Party under the terms of
the Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by Applicable
Law, hereby waives notice of acceptance hereof or any presentment, demand, protest or notice of any
kind, and any other act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent, the Issuing Bank and/or the
Lenders are prevented under Applicable Law or otherwise from demanding or accelerating payment of
any of the Guarantied Obligations by reason of any automatic stay or otherwise, the Agent, the
Issuing Bank and/or the Lenders shall be entitled to receive from each Guarantor, upon demand
therefor, the sums which otherwise would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever made on the
Agent, the Issuing Bank or any Lender for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guarantied Obligations, and the Agent or such Lender repays
all or part of said amount by reason of (a) any judgment, decree or order of any court or
administrative body of competent jurisdiction, or (b) any settlement or compromise of any such
claim effected by the Agent, the Issuing Bank or such Lender with any such claimant (including each
of the Borrowers or a trustee in bankruptcy for either of the Borrowers), then and in such event
each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding on it, notwithstanding any revocation hereof or the cancellation
of the Credit Agreement, any of the other Loan Documents, or any other instrument evidencing any
liability of either of the Borrowers, and such Guarantor shall be and remain liable to the Agent,
the Issuing Bank or such Lender for the amounts so repaid or recovered to the same extent as if
such amount had never originally been paid to the Agent, the Issuing Bank or such Lender.
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Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder
for the account of either of the Borrowers, such Guarantor shall be subrogated to the rights of the
payee against the Borrowers; provided, however, that such Guarantor shall not
enforce any right or receive any payment by way of subrogation or otherwise take any action in
respect of any other claim or cause of action such Guarantor may have against either of the
Borrowers arising by reason of any payment or performance by such Guarantor pursuant to this
Guaranty, unless and until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of or in respect of
such subrogation rights or other claims or causes of action, such Guarantor shall hold such amount
in trust for the benefit of the Agent and the Lenders and shall forthwith pay such amount to the
Agent to be credited and applied, at the Agent’s election, against the Guarantied Obligations,
whether matured or unmatured, in accordance with the terms of the Credit Agreement or to be held by
the Agent as collateral security for any Guarantied Obligations existing.
Section 11. Payments Free and Clear. All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be paid in full,
without set off or counterclaim or any deduction or withholding whatsoever (including any Taxes),
and if any Guarantor is required by Applicable Law or by a Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Agent, the Issuing Bank and the Lenders
such additional amount as will result in the receipt by the Agent, the Issuing Bank and the Lenders
of the full amount payable hereunder had such deduction or withholding not occurred or been
required.
Section 12. Set-off. In addition to any rights now or hereafter granted under any of
the other Loan Documents or Applicable Law and not by way of limitation of any such rights, each
Guarantor hereby authorizes the Agent, the Issuing Bank, each Lender and any of their respective
affiliates, at any time while an Event of Default exists, without any prior notice to such
Guarantor or to any other Person, any such notice being hereby expressly waived, but in the case of
a Lender or an affiliate of a Lender subject to receipt of the prior written consent of the Agent
exercised in its sole discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the
Agent, the Issuing Bank, such Lender, or any affiliate of the Agent, the Issuing Bank or such
Lender, to or for the credit or the account of such Guarantor against and on account of any of the
Guarantied Obligations, although such obligations shall be contingent or unmatured. Each Guarantor
agrees, to the fullest extent permitted by Applicable Law, that any Participant may exercise rights
of setoff or counterclaim and other rights with respect to its participation as fully
as if such Participant were a direct creditor of such Guarantor in the amount of such
participation.
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Section 13. Subordination. Each Guarantor hereby expressly covenants and agrees for
the benefit of the Agent, the Issuing Bank and the Lenders that all obligations and liabilities of
the Borrowers or any other Loan Party to such Guarantor of whatever description, including without
limitation, all intercompany receivables of such Guarantor from the Borrowers or any other Loan
Party (collectively, the “Junior Claims”) shall be subordinate and junior in right of
payment to all Guarantied Obligations. If an Event of Default shall exist, then no Guarantor shall
accept any direct or indirect payment (in cash, property or securities, by setoff or otherwise)
from either of the Borrowers or any other Loan Party on account of or in any manner in respect of
any Junior Claim until all of the Guarantied Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of Morgans Hotel Group Management
LLC (“Management Company”), the Agent, the Issuing Bank and the Lenders that in any
Proceeding, Management Company’s maximum obligation hereunder shall equal, but not exceed, the
maximum amount which would not otherwise cause the obligations of Management Company hereunder (or
any other obligations of Management Company to the Agent, the Issuing Bank and the Lenders) to be
avoidable or unenforceable against Management Company in such Proceeding as a result of Applicable
Law, including without limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the
“Bankruptcy Code”) and (b) any state fraudulent transfer or fraudulent conveyance act or
statute applied in such Proceeding, whether by virtue of Section 544 of the Bankruptcy Code or
otherwise. The Applicable Laws under which the possible avoidance or unenforceability of the
obligations of Management Company hereunder (or any other obligations of Management Company to the
Agent and the Lenders) shall be determined in any such Proceeding are referred to as the
“Avoidance Provisions”. Accordingly, to the extent that the obligations of Management
Company hereunder would otherwise be subject to avoidance under the Avoidance Provisions, the
maximum Guarantied Obligations for which Management Company shall be liable hereunder shall be
reduced to that amount which, as of the time any of the Guarantied Obligations are deemed to have
been incurred under the Avoidance Provisions, would not cause the obligations of Management Company
hereunder (or any other obligations of Management Company to the Agent, the Issuing Bank and the
Lenders), to be subject to avoidance under the Avoidance Provisions. This Section is intended
solely to preserve the rights of the Agent, the Issuing Bank and the Lenders hereunder to the
maximum extent that would not cause the obligations of Management Company hereunder to be subject
to avoidance under the Avoidance Provisions, and neither Management Company nor any other Person
shall have any right or claim under this Section as against the Agent and the Lenders that would
not otherwise be available to such Person under the Avoidance Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the financial condition of each of the Borrowers and the other Loan
Parties, and of all other circumstances bearing upon the risk of nonpayment of any of the
Guarantied Obligations and the nature, scope and extent of the risks that such Guarantor assumes
and incurs hereunder, and agrees that neither the Agent nor the Issuing Bank or any of the
Lenders shall have any duty whatsoever to advise any Guarantor of information regarding such
circumstances or risks.
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Section 16. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTY, EACH OF THE GUARANTORS HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
OF THE GUARANTORS HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER SUCH PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH
RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS,
THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH PARTY. EACH OF THE GUARANTORS FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO SUCH PARTY AT ITS NOTICE ADDRESS SET FORTH IN SECTION 24, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF THE GUARANTORS HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH OF THE PARTIES PARTY HERETO IN ANY OTHER
JURISDICTION.
(b) EACH OF THE GUARANTORS HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF
OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
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(c) EACH OF THE GUARANTORS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 17. Loan Accounts. The Agent, the Issuing Bank and each Lender may maintain
books and accounts setting forth the amounts of principal, interest and other sums paid and payable
with respect to the Guarantied Obligations, and in the case of any dispute relating to any of the
outstanding amount, payment or receipt of any of the Guarantied Obligations or otherwise, the
entries in such books and accounts shall be deemed conclusive evidence of the amounts and other
matters set forth herein, absent manifest error. The failure of the Agent, the Issuing Bank or any
Lender to maintain such books and accounts shall not in any way relieve or discharge any Guarantor
of any of its obligations hereunder.
Section 18. Waiver of Remedies. No delay or failure on the part of the Agent, the
Issuing Bank or any Lender in the exercise of any right or remedy it may have against any Guarantor
hereunder or otherwise shall operate as a waiver thereof, and no single or partial exercise by the
Agent, the Issuing Bank or any Lender of any such right or remedy shall preclude any other or
further exercise thereof or the exercise of any other such right or remedy.
Section 19. Termination. This Guaranty shall remain in full force and effect until
indefeasible payment in full of the Guarantied Obligations and the termination or cancellation of
the Credit Agreement in accordance with its terms.
Section 20. Successors and Assigns. Each reference herein to the Agent, the Issuing
Bank or the Lenders shall be deemed to include such Person’s respective successors and assigns
(including, but not limited to, any holder of the Guarantied Obligations) in whose favor the
provisions of this Guaranty also shall inure, and each reference herein to each Guarantor shall be
deemed to include such Guarantor’s successors and assigns, upon whom this Guaranty also shall be
binding. The Lenders may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Guarantied Obligation, or grant or sell participations in any
Guarantied Obligations, to any Person without the consent of, or notice to, any Guarantor and
without releasing, discharging or modifying any Guarantor’s obligations hereunder. Subject to
Section 13.8. of the Credit Agreement, each Guarantor hereby consents to the delivery by the Agent
or any Lender to any Assignee or Participant (or any prospective Assignee or Participant) of any
financial or other information regarding either of the Borrowers or any Guarantor. No Guarantor
may assign or transfer its rights or obligations hereunder to any Person without the prior written
consent of all Lenders and any such assignment or other transfer to which all of the Lenders have
not so consented shall be null and void.
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Section 21. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE GUARANTORS
HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE
FOR THE FULL
AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS AND LIABILITIES OF
EACH OF THE OTHER GUARANTORS HEREUNDER.
Section 22. Amendments. This Guaranty may not be amended except in writing signed by
the Requisite Lenders (or all of the Lenders if required under the terms of the Credit Agreement),
the Agent and each Guarantor.
Section 23. Payments. All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Agent at the Principal
Office, not later than 2:00 p.m. on the date of demand therefor.
Section 24. Notices. All notices, requests and other communications hereunder shall
be in writing and shall be made by personal delivery, telecopy or certified or registered mail,
return receipt requested, (a) to each Guarantor at its address set forth below its signature
hereto, (b) to the Agent, the Issuing Bank or any Lender at its respective address for notices
provided for in the Section 13.1 of the Credit Agreement, or (c) as to each such party at such
other address as such party shall designate in a written notice to the other parties. Each such
notice, request or other communication shall be effective in the manner set forth in Section 13.1
of the Credit Agreement.
Section 25. Severability. In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 26. Headings. Section headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.
Section 27. Limitation of Liability. Neither the Agent, the Issuing Bank nor any
Lender, nor any affiliate, officer, director, employee, attorney, or agent of the Agent, the
Issuing Bank or any Lender, shall have any liability with respect to, and each Guarantor hereby
waives, releases, and agrees not to xxx any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by a Guarantor in connection with,
arising out of, or in any way related to, this Guaranty or any of the other Loan Documents, or any
of the transactions contemplated by this Guaranty, the Credit Agreement or any of the other Loan
Documents. Each Guarantor hereby waives, releases, and agrees not to xxx the Agent, the Issuing
Bank or any Lender or any of the Agent’s, the Issuing Bank’s or any Lender’s affiliates, officers,
directors, employees, attorneys, or agents for punitive damages in respect of any claim in
connection with, arising out of, or in any way related to, this Guaranty, the Credit Agreement or
any of the other Loan Documents, or any of the transactions contemplated by Credit Agreement or
financed thereby.
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Section 29. Definitions. (a) For the purposes of this Guaranty:
“Proceeding” means any of the following: (i) a voluntary or involuntary case
concerning any Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended; (ii) a
custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy laws) is
appointed for, or takes charge of, all or any substantial part of the property of any
Guarantor; (iii) any other proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or composition for adjustment of debts, whether
now or hereafter in effect, is commenced relating to any Guarantor; (iv) any Guarantor is
adjudicated insolvent or bankrupt; (v) any order of relief or other order approving any such case
or proceeding is entered by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts generally as they become due; (viii) any
Guarantor shall call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; (ix) any Guarantor shall by any act or failure to act indicate its consent
to, approval of or acquiescence in any of the foregoing; or (x) any corporate action shall be taken
by any Guarantor for the purpose of effecting any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the respective meanings given them
in the Credit Agreement.
[Signature on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the
date and year first written above.
| MORGANS HOTEL GROUP CO. | ||||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxxxx | ||||||
| Title: Chief Financial Officer and Secretary | ||||||
| MORGANS HOTEL GROUP MANAGEMENT LLC, a Delaware limited liability company |
||||||
| By: | Morgans Group LLC, its Managing Member | |||||
| By: Morgans Hotel Group Co., | ||||||
| its Managing Member | ||||||
| By: | /s/Xxxxxxx Xxxxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxxxx | ||||||
| Title: Chief Financial Officer and Secretary | ||||||
| Address for Notices: | ||||||
| c/o Morgans Group LLC 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxxx Telecopy Number: (000) 000-0000 Telephone Number: (000) 000-0000 |
||||||
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of , 20
_____, executed and delivered by
, a formed under the laws of the State of (the “New
Guarantor”), in favor of (a) DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as Agent
(the “Agent”) for itself, the Issuing Bank and each of the Lenders under that certain
Credit Agreement dated as of [ ], 2011 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among Morgans Group LLC (the
“MG Borrower”), Beach Hotel Associates LLC (the “Florida Borrower”, and together
with the MG Borrower, collectively, the “Borrowers”), Morgans Hotel Group Co., the lenders
party thereto and their assignees under Section 13.5. thereof (the “Lenders”) and the
Agent, and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have agreed to make
available to the Borrowers certain financial accommodations on the terms and conditions set forth
in the Credit Agreement;
WHEREAS, the Borrowers, the New Guarantor, and the existing Guarantors, though separate legal
entities, are mutually dependent on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual best interests to obtain
financing from the Agent and the Lenders through their collective efforts;
WHEREAS, the New Guarantor acknowledges that it will receive direct and indirect benefits from
the Agent, the Issuing Bank and the Lenders making such financial accommodations available to the
Borrowers under the Credit Agreement and, accordingly, the New Guarantor is willing to guarantee
the Borrowers’ obligations to the Agent and the Lenders on the terms and conditions contained
herein; and
WHEREAS, the New Guarantor’s execution and delivery of this Agreement is a condition to the
Agent, the Issuing Bank and the Lenders continuing to make such financial accommodations to the
Borrowers.
ANNEX I
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the New Guarantor, the New Guarantor agrees as follows:
Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a
“Guarantor” under that certain Guaranty dated as of July [_____], 2011 (as amended,
supplemented, restated or otherwise modified from time to time, the “Guaranty”), made by
each Subsidiary and other Affiliate of the Borrowers party thereto in favor of the Agent, the
Issuing Bank and the Lenders and assumes all obligations of a “Guarantor” thereunder and
agrees to be bound thereby, all as if the New Guarantor had been an original signatory to the
Guaranty. Without limiting the generality of the foregoing, the New Guarantor hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment and
performance when due, whether at stated maturity, by acceleration or otherwise, of all
Guarantied Obligations (as defined in the Guaranty);
(b) makes to the Agent, the Issuing Bank and the Lenders as of the date hereof each of
the representations and warranties contained in Section 5 of the Guaranty and agrees to be
bound by each of the covenants contained in Section 6 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Credit Agreement.
[Signatures on Next Page]
ANNEX I
IN WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement to be duly executed
and delivered under seal by its duly authorized officers as of the date first written above.
| [NEW GUARANTOR] | ||||||
| By: | ||||||
| Title: | ||||||
| Address for Notices: c/o Morgans Group LLC 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxxx Telecopy Number: (000) 000-0000 Telephone Number: (000) 000-0000 |
||||||
Accepted:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Agent
AMERICAS, as Agent
By: |
||||
| Title: |
