ITEM 1.03 Bankruptcy or Receivership
On
The Company filed motions with the
The Company is continuing to operate in accordance with the terms of the
Restructuring Structuring Agreement, dated as of
ITEM 2.04 Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
Chapter 11 Accelerations
The commencement of the Chapter 11 Cases constituted an event of default or termination event, and caused the automatic and immediate acceleration of all debt outstanding under or in respect of a number of instruments and agreements (the "Debt Instruments") relating to direct financial obligations of the Debtors or certain of the Debtors' subsidiaries (the "Accelerated Direct Financial Obligations"). The material Accelerated Debt Financial Obligations include:
• Indenture (as amended and supplemented, the "Indenture"), dated as ofNovember 26, 2013 , among theOperating Partnership , as issuer, the REIT, as limited guarantor andDelaware Trust Company (as successor toU.S. Bank National Association ) as trustee (the "Trustee"), as amended, modified or supplemented by that certain First Supplemental Indenture, dated as ofNovember 26, 2013 by and among the Issuer, the REIT and the Trustee, the Second Supplemental Indenture, dated as ofDecember 13, 2016 , by and among the Issuer, the REIT and the Trustee and the Third Supplemental Indenture dated as ofJanuary 30, 2019 , by and among the Issuer, the REIT, the Trustee and certain subsidiary guarantors (the "Subsidiary Guarantors") pursuant to which an aggregate of$1,375 million of theOperating Partnership's Notes are outstanding. • Credit Agreement, dated as ofJanuary 30, 2019 , by and among the Company,Wells Fargo Bank, National Association , as administrative agent (the "Agent') for the lenders (the "Lenders") party thereto (as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time, the "Credit Agreement'), pursuant to which the Company has$439 million outstanding under the term loan thereunder and$676 million outstanding under the revolver thereunder. • Certain property level debt of the subsidiaries of Debtor equaling an aggregate outstanding principal amount of approximately$800 million to$850 million .
The Debt Instruments provide that, as a result of the Chapter 11 Cases, the principal and interest due thereunder shall be immediately due and payable without notice from the lenders thereunder. Any efforts to enforce such payment obligations due under the Debt Instruments are subject to the applicable provisions of the Bankruptcy Code.
Credit Agreement Alleged Default
As previously disclosed, on each of
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Notes, prior to the expiration of the applicable grace periods. In addition, the
On
ITEM 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Effective
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Payment Terms: Payable to each NEO effective as of
so long as the Restructuring Support Agreement ("RSA") entered onAugust 18, 2020 is in effect. Clawback: Bonus payment to be returned to the Company if the executive voluntarily resigns or is terminated for Cause (as defined in the Retention Bonus Agreement) on or beforeSeptember 27, 2021 .
All other terms of the KERP remain in effect as described in the
The preceding summary description of changes to the terms of the KERP under Retention Bonus Agreements applicable to the Company's NEOs is not complete, and is qualified in its entirety by reference to the Forms of Amended and Restated Retention Bonus Agreements which are filed as Exhibits 10.1 and 10.2 hereto.
ITEM 7.01 Regulation FD Disclosure
Cleansing Material
Beginning on
Pursuant to the NDAs, the Company agreed to publicly disclose certain information (the "Cleansing Material") upon the occurrence of certain events set forth in the NDAs. The Cleansing Material was prepared solely to facilitate a discussion with the parties to the NDAs and was not prepared with a view toward public disclosure and should not be relied upon to make an investment decision with respect to the Company. The Cleansing Material should not be regarded as an indication that the Company or any third party consider the Cleansing Material to be a reliable prediction of future events, and the Cleansing Material should not be relied upon as such. Neither the Company nor any third party has made or makes any representation to any person regarding the accuracy of any Cleansing Material or undertakes any obligation to publicly update the Cleansing Material to reflect circumstances existing after the date when the Cleansing Material was prepared or conveyed or to reflect the occurrence of future events, even in the event that any or all of the assumptions underlying the Cleansing Material are shown to be in error. In the event any transaction occurs in the future, the terms of any such transaction may be materially different than the terms set forth in the Confidential Information. However, no assurance can be given that any such transaction will occur at all.
Concurrently with such discussions with the Consenting Noteholders, the Company
was also engaged in confidential discussions and negotiations with the Agent to
try to reach a mutual agreement between the Company, the
The foregoing description of the Cleansing Material does not purport to be complete and is qualified in its entirety by reference to the complete presentation of the Presentation, the Wells Proposal and the Bond Proposal attached as Exhibits 99.1, 99.2 and 99.3 hereto.
Press Release
Attached as Exhibit 99.4 to this Current Report on Form 8-K, is a copy of the
Company's press release, dated
The information disclosed in this Item 7.01 is being furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of any general incorporation language in such a filing.
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ITEM 8.01. Other Events
The Company cautions that trading in the Company's securities during the pendency of the anticipated Chapter 11 proceedings is highly speculative and poses substantial risks. Trading prices for the Company's securities may bear little or no relationship to the actual recovery, if any, by holders of the Company's securities in the Chapter 11 Cases.
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. All statements, other than statements of historical facts, included in this
filing that address activities, events or developments that the Company expects,
believes, targets or anticipates will or may occur in the future are
forward-looking statements. The Company's actual results may differ materially
from those anticipated in these forward-looking statements as a result of
certain risks and other factors, which could include the following: risks and
uncertainties relating to the Chapter 11 Cases, including but not limited to,
the Company's ability to obtain
ITEM 9.01 Financial Statements and Exhibits
(d) Exhibits Exhibit Number Description 10.1 Form of Amended and Restated Retention Bonus Agreement for the Chairman of the Board . 10.2 Form of Amended and Restated Retention Bonus Agreement for the Company's NEOs Other Than the Chairman of the Board . 99.1 Presentation provided toAd Hoc Group ,October 2020 . 99.2 Term Sheet, dated as ofSeptember 3, 2020 . 99.3 Term Sheet, dated as ofOctober 27, 2020 . 99.4 Press Release datedNovember 2, 2020 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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