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Section 1: 8-K (8-K)

8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D)

OF THE SECURITIES EXCHANGE ACT OF 1934

March 15, 2020

Date of report (Date of earliest event reported)

 

 

Condor Hospitality Trust, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Maryland

(State or Other Jurisdiction of Incorporation)

 

1-34087   52-1889548
(Commission File Number)   (IRS Employer Identification No.)
4800 Montgomery Lane, Suite 220
Bethesda, MD
  20814
(Address of Principal Executive Offices)   (Zip Code)

(402) 371-2520

(Registrant’s Telephone Number, Including Area Code)

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of cach class

 

Trading symbol

 

Name of each exchange on which registered

Common stock, par value $0.01 per share   CDOR   NYSE American

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

On March 15, 2020 Condor Hospitality Trust, Inc. (the “Company”), Condor Hospitality Limited Partnership (the “Operating Partnership” and together with the Company, the “Company Parties”), NHT Operating Partnership, LLC (“Parent”), NHT REIT Merger Sub, LLC (“Merger Sub”) and NHT Operating Partnership II, LLC (“Merger OP” and, collectively with Parent and Merger Sub, the “Parent Parties”), entered into Amendment No. 4 (the “Fourth Amendment”) to that certain Agreement and Plan of Merger, dated as of July 19, 2019 (the “Merger Agreement”), by and among the Company Parties and the Parent Parties.

Pursuant to the Fourth Amendment, the parties have agreed as follows:

 

   

to extend the closing of the mergers to Monday, March 23, 2020; and

 

   

the previous “end date” for the Merger Agreement is changed to March 23, 2020.

The foregoing description of the Fourth Amendment is not complete and is qualified in its entirety by reference to the Fourth Amendment, which is attached as Exhibit 2.1 to this report and incorporated herein by reference.

Cautionary Statement Regarding Forward-Looking Statements

This Current Report contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include all statements that are not historical facts, and in some cases, can be identified by the use of forward-looking terminology such as “may,” “will,” “expect,” “intend,” “anticipate,” “estimate,” “believe,” “continue,” “project,” “plan,” the negative version of these words or other similar expressions. Readers are cautioned not to place undue reliance on any such forward-looking statements.

All forward-looking statements speak only as of the date hereof and are based on current expectations and involve a number of assumptions, risks and uncertainties that could cause the actual results to differ materially from such forward-looking statements. They are not guarantees of future performance and involve risks and uncertainties that are difficult to control or predict. The Company may not be able to complete the proposed transaction on the terms described herein or other acceptable terms or at all because of a number of factors, including without limitation, the following: (i) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; (ii) unknown, underestimated or undisclosed commitments or liabilities; (iii) the inability to complete the proposed transaction due to the failure to obtain the approval of the Company’s shareholders for the proposed transaction or the failure to satisfy the other closing conditions to the proposed transaction; (iv) risks related to disruption of management’s attention from the Company’s ongoing business operations due to the proposed transaction; (v) the effect of the announcement of the proposed transaction on the ability of the Company to retain and hire key personnel, maintain relationships with its franchisors, management companies and suppliers, and maintain its operating results and business generally; (vi) the risk that certain approvals or consents will not be received in a timely manner or that the proposed transaction will not be consummated in a timely manner; (vii) adverse changes in U.S. and non-U.S. governmental laws and regulations; and (viii) the risk of litigation, including shareholder litigation in connection with the proposed transaction, and the impact of any adverse legal judgments, fines, penalties, injunctions or settlements.

Actual results may differ materially from those indicated by such forward-looking statements. In addition, the forward-looking statements represent the Company’s views as of the date on which such statements were made. The Company anticipates that subsequent events and developments may cause those views to change. These forward-looking statements should not be relied upon as representing the Company’s views as of any date subsequent to the date hereof. The Company expressly disclaims a duty to provide updates to forward-looking statements, whether as a result of new information, future events or other occurrences.

Additional factors that may affect the Company’s business or financial results are described in the risk factors included in the Company’s filings with the SEC, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2018, and subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K.

 

ITEM 9.01.

        FINANCIAL STATEMENTS AND EXHIBITS.

 

  (d)        

Exhibits.

 

Exhibit
Number

  

Description

2.1    Amendment No. 4 dated as of March 15, 2020 to Agreement and Plan of Merger, dated as of July  19, 2019, by and among NHT Operating Partnership, LLC, NHT REIT Merger Sub, LLC, NHT Operating Partnership II, LLC, Condor Hospitality Trust, Inc. and Condor Hospitality Limited Partnership


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    Condor Hospitality Trust, Inc.
Date: March 15, 2020     By:  

/s/ J. William Blackham

    Name:   J. William Blackham
    Title:   President and Chief Executive Officer
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Section 2: EX-2.1 (EX-2.1)

EX-2.1

Exhibit 2.1

AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF MERGER

This Amendment No. 4 to the Agreement and Plan of Merger (this “Fourth Amendment”), dated March 15, 2020, is made and entered into by and among: NHT Operating Partnership, LLC, a Delaware limited liability company (“ Parent”); NHT REIT Merger Sub, LLC, a Delaware limited liability company (“Merger Sub ”); NHT Operating Partnership II, LLC, a Virginia limited liability company (“Merger OP” and, collectively with Parent and Merger Sub, the “Parent Parties”); Condor Hospitality Trust, Inc., a Maryland corporation (the “Company”); and Condor Hospitality Limited Partnership, a Virginia limited partnership (the “Operating Partnership” and, together with the Company, the “Company Parties”).

RECITALS

WHEREAS, the Parent Parties and the Company Parties on July 19, 2019, entered into that certain Agreement and Plan of Merger, and on September 13, 2019 entered into that certain Amendment No. 1 to Agreement and Plan of Merger and on December 17, 2020 entered into that certain Amendment No. 2 to Agreement and Plan of Merger and on January 30, 2020 entered into that certain Amendment No. 3 to Agreement and Plan of Merger (as amended, the “Merger Agreement”); and

WHEREAS, the Company Parties and the Parent Parties desire to further amend the Merger Agreement and the board of directors of the Company and the manager of Parent have each approved and declared it advisable for the parties to enter into this Fourth Amendment and consummate the transactions contemplated by the Merger Agreement, including the Mergers, as further amended by this Fourth Amendment, upon the terms and subject to the conditions set forth in the Merger Agreement as further amended by this Fourth Amendment.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Fourth Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

ARTICLE I

AMENDMENTS AND OTHER AGREEMENTS

Section 1.1    Closing. Notwithstanding anything to the contrary in the Merger Agreement, the parties agree that the Closing shall occur on March 23, 2020. For the avoidance of doubt, the Company acknowledges and agrees that it cannot exercise its rights under Section 7.1(i) of the Merger Agreement unless the Parent fails to consummate the Mergers on March 23, 2020.

Section 1.2    Termination. Section 7.1(b) of the Merger Agreement, as previously amended, is hereby amended by adding the following phrase at the end thereof:

provided, further, that from and after March 16, 2020, the term End Date is revised to solely mean “March 23, 2020”;


Section 1.3    Certain Business Matters Approval. For the avoidance of doubt, the letter agreement executed by the parties on January 30, 2020 in connection with the that certain Amendment No. 3 to Agreement and Plan of Merger addressing certain business matters with respect to the Mergers and the operations of the Company Parties is extended through March 23, 2020.

ARTICLE II

GENERAL PROVISIONS

Section 2.1     Defined Terms. Except as otherwise set forth in this Fourth Amendment, all capitalized terms used and not defined herein shall have the meanings given to such terms in the Merger Agreement.

Section 2.2     Effect of Amendment. This Fourth Amendment shall be effective as of the date first written above. After giving effect to this Fourth Amendment, unless the context otherwise requires, each reference in the Merger Agreement or any Exhibit or Schedule thereto to “this Agreement”, “the Agreement”, “hereof”, “herein” or words of like import referring to the Merger Agreement shall refer to the Merger Agreement as amended by this Fourth Amendment. Except as amended hereby, the Merger Agreement will continue in full force and effect and shall be otherwise unaffected hereby.

Section 2.3     Counterparts. This Fourth Amendment may be executed and delivered (including by facsimile or .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”)) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

Section 2.4     Captions. The captions used in this Fourth Amendment are for convenience of reference only and do not constitute a part of this Fourth Amendment and will not be deemed to limit, characterize or in any way affect any provision of this Fourth Amendment, and all provisions of this Fourth Amendment will be enforced and construed as if no caption had been used in this Fourth Amendment.

Section 2.5    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law, or public policy, (a) such term or other provision shall be fully separable, (b) this Fourth Amendment shall be construed and enforced as if such invalid, illegal or unenforceable provision had never comprised a part hereof, and (c) all other conditions and provisions of this Fourth Amendment shall nevertheless remain in full force and effect so long as either the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party or such party

 

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waives its rights under this Section 2.5 with respect thereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Fourth Amendment so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Fourth Amendment are fulfilled to the extent possible.

[Signature Page Follows.]

 

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IN WITNESS WHEREOF, the Parties have caused this Fourth Amendment to be executed as of the date first above written.

 

NHT OPERATING PARTNERSHIP, LLC
By:  

NHT OPERATING PARTNERSHIP GP, LLC,

its manager

 

By:  

/s/ Neil Labatte

  Name:  Neil Labatte
  Title:    Sole Member

 

NHT REIT MERGER SUB, LLC
By:  

/s/ Brian Mitts

  Name:   Brian Mitts
  Title:     Chief Financial Officer and Secretary

 

NHT OPERATING PARTNERSHIP II, LLC
By:  

/s/ Brian Mitts

  Name:  Brian Mitts
  Title:    Chief Financial Officer and Secretary

[Amendment No. 4 to Merger Agreement]

 

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CONDOR HOSPITALITY LIMITED PARTNERSHIP
By:  

Condor Hospitality REIT Trust,

its General Partner

 

By:  

/s/ J. William Blackham

  Name: J. William Blackham
  Title: President

 

CONDOR HOSPITALITY TRUST, INC.
By:  

/s/ J. William Blackham

  Name: J. William Blackham
  Title: President and CEO

[Amendment No. 4 to Merger Agreement]

 

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