1021-00001 · Verimark Hospitality Group · Mortgage & Real Property

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PREPARED BY AND AFTER RECORDING RETURN TO:

Calderwood & Harkness LLP One Liberty Plaza, 52nd Floor New York, NY 10006

Attention: Sophie Tremblay, Esq.

MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT

Dated as of July 21, 2022

VERIMARK RESORT PROPERTIES LLC, a Delaware limited liability company,

as Mortgagor,

CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, a national banking association,

as Collateral Agent for the Secured Parties,

as Mortgagee

Mortgaged Properties Located in the State of New York

RECORDING INFORMATION

PROPERTY TAX REFERENCES

THIS INSTRUMENT SECURES A PRINCIPAL INDEBTEDNESS OF $700,000,000.00

(Seven Hundred Million and No/100 Dollars)

New York State Mortgage Recording Tax Notation: The mortgage recording tax due upon the recording of this instrument has been or will be paid in accordance with Section 253 of the New York Tax Law, as applicable. This Mortgage is not supplemental to any existing mortgage and is not entitled to any exemption or reduction in mortgage recording tax.

CUSIP Number: 92347LAB8

NOTICE: Neither Calderwood & Harkness LLP nor any other counsel is responsible for the accuracy or adequacy of the CUSIP number provided herein. The CUSIP number is included solely for the convenience of the holders of the Term Loans and other participants in the Credit Agreement. No representation is made as to the correctness of such CUSIP number as printed herein, and reliance may only be placed on other identification numbers appearing on this instrument.

MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT

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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT

THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT (as it may be amended, restated, supplemented, or otherwise modified from time to time, this "Mortgage") is made as of July 21, 2022, by VERIMARK RESORT PROPERTIES LLC, a Delaware limited liability company, having its principal office at 8200 West Palmetto Park Road, Suite 1500, Boca Raton, FL 33433 (the "Mortgagor" or "Grantor"), to and in favor of CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States, having its principal office at 600 Lexington Avenue, 34th Floor, New York, NY 10022, in its capacity as Collateral Agent for the benefit of the Secured Parties under the Credit Agreement referenced below (in such capacity, together with its successors and assigns in such capacity, the "Mortgagee" or "Collateral Agent").

RECITALS

WHEREAS, Mortgagor is a limited liability company duly organized and validly existing under the laws of the State of Delaware, and is duly qualified to transact business in the State of New York; and

WHEREAS, Mortgagor is a wholly-owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation (the "Borrower" or "VHG"), which is publicly traded on the New York Stock Exchange under the ticker symbol "VMRK" (Employer Identification Number: 82-3741956; Delaware Secretary of State File Number: 7291843); and

WHEREAS, the Borrower, the Guarantors party thereto (including Mortgagor), Crescent Harbor Bank, National Association, as Administrative Agent, as Collateral Agent, and as a Lender, and the several lenders from time to time party thereto (collectively, the "Lenders"), have entered into that certain Credit Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Lenders have agreed to extend credit to the Borrower in the form of a $700,000,000 Senior Secured Term Loan B facility (the "Term Loan B" or "TLB"), bearing interest at a rate per annum equal to Adjusted Term SOFR plus 375 basis points, with a SOFR floor of 0.50%, and maturing on July 21, 2029 (the "Maturity Date"); and

WHEREAS, in connection with the Credit Agreement, Mortgagor is a Guarantor under that certain Guarantee Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Guarantee Agreement"), among the Borrower, the Guarantors party thereto, and the Collateral Agent, pursuant to which Mortgagor has unconditionally guaranteed all of the Obligations of the Borrower under the Credit Agreement; and

WHEREAS, in connection with the Credit Agreement, Mortgagor is a Grantor under that certain Pledge and Security Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Pledge and Security Agreement"), among the Borrower, the Grantors party thereto, and the Collateral Agent, pursuant to which Mortgagor has granted a security interest in substantially all of its personal property to secure the Obligations; and

WHEREAS, the Collateral Agent, on behalf of the Secured Parties under the Credit Agreement, and the administrative agent under that certain revolving credit facility in the aggregate principal amount of $400,000,000 (the "RCF") have entered into that certain Amended and Restated Intercreditor Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Intercreditor Agreement"), pursuant to which the Term Loan B and the RCF share first-lien collateral on a pari passu basis, with Crescent Harbor Bank, National Association serving as agent for both facilities; and

WHEREAS, Mortgagor is the owner in fee simple of six (6) hotel properties located in the State of New York (collectively, the "New York Properties"), as more particularly described in Exhibit A attached hereto and made a part hereof; and

WHEREAS, the execution and delivery of this Mortgage by Mortgagor is required pursuant to the terms and conditions of the Credit Agreement, the Pledge and Security Agreement, and that certain Post-Closing Letter Agreement dated as of July 21, 2022 (the "Post-Closing Letter Agreement"), among the Borrower, the Guarantors party thereto, and the Collateral Agent; and

WHEREAS, Mortgagor desires to execute and deliver this Mortgage to secure the full and timely payment and performance of all of the Obligations (as defined in the Credit Agreement) owing by the Borrower and the Guarantors (including Mortgagor) to the Secured Parties;

NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and in order to secure the Obligations, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor hereby agrees as follows:

ARTICLE I — DEFINITIONS

Section 1.01. Incorporation by Reference. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement, the Guarantee Agreement, the Pledge and Security Agreement, and the Intercreditor Agreement, as applicable. In the event of any conflict between a definition in this Mortgage and a definition in the Credit Agreement, the definition in the Credit Agreement shall control, except with respect to matters of New York real property law, in which case the definition set forth in this Mortgage shall control.

Section 1.02. Mortgage-Specific Definitions. As used in this Mortgage, the following terms shall have the following meanings:

"Collateral Agent" means Crescent Harbor Bank, National Association, in its capacity as Collateral Agent under the Credit Agreement, and any successor Collateral Agent appointed in accordance with the terms of the Credit Agreement.

"Credit Agreement" means that certain Credit Agreement dated as of July 21, 2022, among Verimark Hospitality Group Inc., as Borrower, the Guarantors party thereto, Crescent Harbor Bank, National Association, as Administrative Agent, as Collateral Agent, and as a Lender, and the Lenders from time to time party thereto, as such agreement may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.

"Guarantee Agreement" means that certain Guarantee Agreement dated as of July 21, 2022, among the Borrower, the Guarantors party thereto, and the Collateral Agent, as such agreement may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.

"Improvements" means all buildings, structures, fixtures, and improvements of every kind and description now or hereafter erected, constructed, placed, or located upon the Land, including without limitation all hotel buildings, parking structures, garages, conference and convention centers, restaurants, bars, lounges, swimming pools, spas, fitness centers, retail spaces, and all related hospitality, recreational, and commercial facilities.

"Leases" means all leases, subleases, licenses, concessions, management agreements, franchise agreements, hotel guest agreements, and all other occupancy, use, or operating agreements of whatever kind or nature, now in effect or hereafter entered into, which affect, relate to, or are applicable to all or any portion of the Mortgaged Property or the Improvements thereon, together with all guaranties of the obligations of the tenants, subtenants, licensees, or other occupants thereunder, and all amendments, modifications, extensions, renewals, and replacements thereof.

"Mortgage" means this Mortgage, Assignment of Leases and Rents, and Security Agreement, as it may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.

"Mortgaged Property" means, collectively, all of the property, rights, interests, and estates described in the Granting Clauses set forth in Article II hereof, including without limitation the Land, the Improvements, the Fixtures, the Leases, the Rents, the Personal Property, the Proceeds and Products, and all After-Acquired Property, in each case as more particularly described in Article II.

"Obligations" has the meaning ascribed to such term in the Credit Agreement, and includes, without limitation, (a) all principal, interest (including interest accruing after the commencement of any bankruptcy, insolvency, or similar proceeding, whether or not a claim for such interest is allowed in such proceeding), fees, costs, expenses, indemnification obligations, and other amounts payable by the Borrower or any Guarantor under or in connection with the Credit Agreement, the Guarantee Agreement, this Mortgage, and the other Loan Documents, (b) the secured indebtedness in the aggregate principal amount of $700,000,000.00 (subject to quarterly amortization at the rate of 1.00% per annum, in quarterly installments of $1,750,000.00 each), and (c) all other obligations and liabilities of the Borrower and the Guarantors to the Secured Parties arising under or in connection with the Loan Documents.

"Permitted Liens" has the meaning ascribed to such term in the Credit Agreement, and includes those specific permitted encumbrances set forth in Exhibit B attached hereto with respect to the Mortgaged Property.

"Rents" means all rents, revenues, income, profits, royalties, issues, room charges, food and beverage revenue, conference and banquet revenue, parking revenue, spa and amenity revenue, management fees, franchise fees, and all other hotel operating revenues and receipts of every kind and nature, now due or hereafter becoming due, arising from or in connection with the ownership, use, management, operation, leasing, or occupancy of all or any portion of the Mortgaged Property.

"Secured Parties" means, collectively, the Administrative Agent, the Collateral Agent, and the Lenders under the Credit Agreement, together with the administrative agent and the lenders under the RCF, in each case as their interests may appear and as governed by the Intercreditor Agreement.

"Syndicate Lenders" means the following lenders party to the Credit Agreement as of the date hereof, together with their respective commitment amounts:

(a) Crescent Harbor Bank, National Association — $50,000,000;

(b) Ridgeline Capital Partners, LP — $125,000,000;

(d) Tidewater Institutional Investors, Inc. — $75,000,000;

(e) Ironbridge Loan Management LLC — $100,000,000;

(f) Northway Savings Bank — $75,000,000;

(g) Copperleaf Asset Management, LP — $100,000,000; and

(h) Harborview Mutual Life Insurance Company — $75,000,000.

"Title Insurer" means Continental Fidelity Title Company, having offices at 1221 Brickell Avenue, Suite 900, Miami, FL 33131, and any successor title insurance company engaged by the Collateral Agent in connection with the Mortgaged Property.

Section 1.03. Rules of Construction. The rules of construction set forth in Section 1.03 of the Credit Agreement are hereby incorporated by reference as if set forth in full herein. References to "Sections," "Articles," and "Exhibits" are to the sections, articles, and exhibits of this Mortgage unless otherwise specified. The words "herein," "hereof," "hereunder," and words of similar import refer to this Mortgage as a whole and not to any particular provision hereof. The word "including" means "including without limitation."

ARTICLE II — GRANTING CLAUSES

Section 2.01. Grant of Mortgage Lien. For the purposes and upon the terms and conditions set forth in this Mortgage, and to secure the full and punctual payment and performance of all Obligations, Mortgagor hereby irrevocably and unconditionally grants, mortgages, warrants, bargains, sells, assigns, conveys, pledges, hypothecates, sets over, and confirms unto the Mortgagee (in its capacity as Collateral Agent for the benefit of the Secured Parties), and grants to the Mortgagee a continuing first-priority mortgage lien and security interest in, the following property, rights, interests, and estates (collectively, the "Mortgaged Property"):

Section 2.02. The Land. All of Mortgagor's right, title, and interest in and to those certain parcels of real property located in the State of New York, together comprising the fee simple estate in the following six (6) hotel properties, as more particularly described by metes and bounds or other legal descriptions in Exhibit A attached hereto and incorporated herein by this reference (collectively, the "Land"):

(a) Property 1 — Verimark Grand Central Hotel. That certain parcel of land located at 109 East 42nd Street, New York, New York 10017, situate in the Borough of Manhattan, County of New York, State of New York, designated for tax purposes as Section 5, Block 01287, Lot 0044 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;

(b) Property 2 — Verimark SoHo Hotel & Residences. That certain parcel of land located at 281 Lafayette Street, New York, New York 10012, situate in the Borough of Manhattan, County of New York, State of New York, designated for tax purposes as Section 2, Block 00495, Lot 0019 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;

(c) Property 3 — Verimark Times Square Hotel. That certain parcel of land located at 715 Seventh Avenue, New York, New York 10036, situate in the Borough of Manhattan, County of New York, State of New York, designated for tax purposes as Section 4, Block 01016, Lot 0062 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;

(d) Property 4 — Verimark Brooklyn Heights Hotel. That certain parcel of land located at 55 Pierrepont Street, Brooklyn, New York 11201, situate in the Borough of Brooklyn, County of Kings, State of New York, designated for tax purposes as Section 1, Block 00258, Lot 0031 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;

(e) Property 5 — Verimark Saratoga Springs Resort. That certain parcel of land located at 42 Lake Avenue, Saratoga Springs, New York 12866, situate in the Town of Saratoga Springs, County of Saratoga, State of New York, designated for tax purposes as Section 12, Block 03, Lot 14.1 on the Tax Map of the County of Saratoga, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto; and

(f) Property 6 — Verimark Montauk Beach Resort. That certain parcel of land located at 290 Old Montauk Highway, Montauk, New York 11954, situate in the Town of East Hampton, County of Suffolk, State of New York, designated for tax purposes as Section 18, Block 02, Lot 007.002 on the Tax Map of the County of Suffolk, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto.

Together with all of Mortgagor's right, title, and interest, if any, in and to all streets, roads, avenues, alleys, and passages, whether open or closed, in front of, behind, or at the sides of the Land, and all strips and gores of land adjacent to or used in connection with the Land, and all right, title, and interest of Mortgagor in and to any award made or to be made in lieu thereof, and in and to any unpaid award for damage to the Land by reason of a change of grade of any street.

Section 2.03. Improvements and Fixtures. All buildings, structures, improvements, and fixtures of every kind and character now or hereafter erected, constructed, placed, installed, or located upon the Land, or any part thereof, including without limitation:

(a) all hotel buildings, guest room towers, lobby areas, and common areas;

(b) all parking structures, garages, surface parking lots, and related vehicular access improvements;

(d) all restaurants, bars, lounges, kitchens, and food preparation areas;

(e) all swimming pools, spas, fitness centers, recreational facilities, and outdoor amenity areas;

(f) all retail stores, gift shops, and commercial spaces;

(g) all building systems, including heating, ventilation, and air conditioning systems, plumbing systems, electrical systems and wiring, elevators, escalators, fire detection and suppression systems, security systems, surveillance cameras and equipment, telecommunications systems, life safety systems, lighting, and backup generators;

(h) all landscape improvements, fencing, retaining walls, sidewalks, driveways, curbing, irrigation systems, and signage; and

(i) all furniture, fixtures, and equipment (collectively, "FF&E") permanently affixed to or incorporated into the Land or Improvements to the extent that such items constitute fixtures under the laws of the State of New York, including without limitation guest room furnishings, lobby furnishings, restaurant and kitchen equipment, laundry equipment, housekeeping equipment, front desk and back-of-house systems, point-of-sale systems, and hotel management technology systems.

Section 2.04. Leases and Rents. All of Mortgagor's right, title, and interest in, to, and under all Leases now existing or hereafter entered into with respect to all or any part of the Mortgaged Property, including without limitation:

(a) all hotel guest agreements, reservations, and booking contracts;

(b) all commercial leases, retail leases, and office leases;

(d) all conference, convention, and banquet space licenses and rental agreements;

(e) all ground leases (if any) and all amendments, renewals, and extensions thereof;

(f) all hotel management agreements, operating agreements, and franchise agreements;

(g) all parking leases, licenses, and operating agreements;

(h) all spa, fitness, and recreational facility leases and concession agreements; and

(i) all guaranties of the obligations of any tenant, subtenant, licensee, concessionaire, or other occupant under any of the foregoing.

Together with all Rents now due or hereafter becoming due under or by virtue of any of the Leases or otherwise arising from the use, occupancy, management, or operation of the Mortgaged Property, including without limitation all room revenue, food and beverage revenue, conference and banquet revenue, parking revenue, spa and amenity revenue, cancellation fees, late charges, and all other income, receipts, and revenues of every kind and nature derived from the Mortgaged Property.

Section 2.05. Personal Property Related to Real Property. All personal property of every kind and nature owned by Mortgagor and now or hereafter located on, attached to, or used in connection with the operation of the Mortgaged Property, to the extent such personal property is not covered by the Pledge and Security Agreement, including without limitation:

(a) all accounts, contract rights, and general intangibles arising from the ownership, use, management, or operation of the Mortgaged Property;

(b) all inventory, supplies, and consumable goods located on or used in connection with the Mortgaged Property;

(c) all equipment and personal property used in the operation of the hotel properties, to the extent not constituting fixtures;

(d) all permits, licenses, approvals, certificates of occupancy, liquor licenses, and other governmental authorizations and entitlements relating to the construction, use, operation, or occupancy of the Mortgaged Property;

(e) all franchise agreements, brand licenses, and similar agreements relating to the operation of the hotel properties under any brand name or trade name;

(f) all plans, specifications, drawings, surveys, engineering reports, environmental reports, and other documents relating to the Mortgaged Property;

(g) all deposits held by utility companies or governmental agencies in connection with the Mortgaged Property;

(h) all goodwill relating to the ownership, use, management, or operation of the Mortgaged Property; and

(i) all books, records, files, and documents (whether in physical or electronic form) relating to the Mortgaged Property.

Section 2.06. Proceeds and Products. All proceeds, products, offspring, rents, and profits of and from any and all of the foregoing property, including without limitation:

(a) all proceeds of any insurance policies covering any of the foregoing property, including property insurance proceeds, business interruption insurance proceeds, and liability insurance proceeds;

(b) all awards, compensation, settlements, and other payments made or owing as a result of any condemnation, eminent domain, or similar proceeding (whether actual, pending, or threatened) affecting all or any portion of the Mortgaged Property;

(d) all conversion proceeds and all other amounts received or receivable with respect to the foregoing property.

Section 2.07. After-Acquired Property. All property of any of the types described in Sections 2.02 through 2.06 hereof that is hereafter acquired by Mortgagor and that is located on, attached to, or used in connection with the Mortgaged Property, or that arises from the ownership, use, management, or operation thereof, shall automatically become subject to the lien and security interest of this Mortgage without the execution or filing of any further instrument or document.

TO HAVE AND TO HOLD the Mortgaged Property, together with all rights, privileges, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, unto the Mortgagee, its successors and assigns, forever, for the uses and purposes set forth herein; PROVIDED, HOWEVER, that if all Obligations secured hereby shall be paid and performed in full and all commitments under the Credit Agreement shall have been terminated, then this Mortgage and the estate, lien, and security interest created hereby shall become null and void and shall be discharged of record, all at the cost and expense of Mortgagor.

ARTICLE III — OBLIGATIONS SECURED

Section 3.01. Secured Obligations. This Mortgage and the lien, security interest, and assignment of leases and rents created hereby secure the full and punctual payment and performance of the following (collectively, the "Secured Obligations"):

(a) all Obligations of the Borrower and the Guarantors (including Mortgagor) under the Credit Agreement, including without limitation:

(i) the principal amount of the $700,000,000.00 Term Loan B, together with all accrued and unpaid interest thereon, calculated at a rate per annum equal to Adjusted Term SOFR (as defined in the Credit Agreement) plus 375 basis points (3.75%), with a SOFR floor of 0.50%. In the event that an Event of Default has occurred and is continuing, interest shall accrue at the default rate equal to the otherwise applicable rate plus 200 basis points (2.00%);

(ii) all fees payable under the Credit Agreement, including the annual administrative agent fee of $150,000.00, commitment fees, letter of credit fees, and all other fees and charges as set forth in the Credit Agreement and the Fee Letter;

(iii) all reimbursement obligations, indemnification obligations, and expense reimbursement obligations payable by the Borrower or any Guarantor under the Credit Agreement and the other Loan Documents; and

(iv) all other amounts now or hereafter owing by the Borrower or any Guarantor to any Secured Party under or in connection with the Credit Agreement and the other Loan Documents;

(b) all Obligations of Mortgagor under the Guarantee Agreement dated as of July 21, 2022;

(d) all costs and expenses (including reasonable attorneys' fees and disbursements) incurred by the Collateral Agent or any Secured Party in connection with the enforcement of this Mortgage, the collection of the Secured Obligations, or the exercise of any right or remedy hereunder or under any other Loan Document; and

(e) all extensions, renewals, refinancings, modifications, amendments, supplements, and replacements of any of the foregoing.

Section 3.02. Pari Passu Status; Intercreditor Agreement. This Mortgage secures the Obligations on a first-priority basis, pari passu in right of security with the liens and security interests securing the $400,000,000.00 senior secured revolving credit facility extended pursuant to that certain Revolving Credit Agreement (the "RCF Agreement"), as governed by the Amended and Restated Intercreditor Agreement dated as of July 21, 2022. The rights and remedies of the Mortgagee under this Mortgage are expressly subject to the terms and conditions of the Intercreditor Agreement, including without limitation the provisions governing the sharing of collateral proceeds, the exercise of remedies, and the release of liens. In the event of any inconsistency between the provisions of this Mortgage and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control as between the Secured Parties.

Section 3.03. Maximum Secured Amount (New York RPL § 253 Compliance). In accordance with Section 253 of the New York Real Property Law and for purposes of calculating the New York State mortgage recording tax, the maximum principal amount of indebtedness or obligations secured by this Mortgage at the time of its execution or that may be secured at any time hereafter shall not exceed $700,000,000.00 in aggregate principal amount, plus all interest, fees, late charges, prepayment premiums (if any), costs, expenses, and other amounts payable under the Loan Documents, including without limitation all protective advances, costs of enforcement, and indemnification obligations. The foregoing statement of maximum amount is made solely for the purpose of compliance with the New York Real Property Law and the computation of mortgage recording tax and shall not limit, diminish, or otherwise affect the obligations secured by this Mortgage as described in Section 3.01 hereof.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF MORTGAGOR

Mortgagor hereby represents and warrants to the Mortgagee and the Secured Parties as of the date hereof as follows:

Section 4.01. Organization and Good Standing. Mortgagor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Mortgagor is duly qualified and authorized to transact business and is in good standing in the State of New York and in each other jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect (as defined in the Credit Agreement). Mortgagor has all requisite limited liability company power and authority to own, lease, and operate the Mortgaged Property and to conduct its business as currently conducted.

Section 4.02. Authority. Mortgagor has full limited liability company power and authority to execute, deliver, and perform its obligations under this Mortgage and to grant the mortgage lien, security interest, and assignment of leases and rents contemplated hereby. The execution, delivery, and performance by Mortgagor of this Mortgage, and the granting of the lien and security interest herein, have been duly authorized by all necessary limited liability company action on the part of Mortgagor, including without limitation the resolutions of the Board of Directors of Verimark Hospitality Group Inc. (as sole member of Mortgagor) adopted on May 12, 2022, and the resolutions of the authorized officers of Mortgagor adopted on or about the same date, copies of which have been delivered to the Collateral Agent. No other consent, approval, authorization, or action by, or notice to or filing with, any governmental authority or any other person is required in connection with the execution, delivery, or performance of this Mortgage by Mortgagor, except for the recording of this Mortgage with the county clerks' offices in the applicable counties of the State of New York.

Section 4.03. Title to Mortgaged Property. Mortgagor holds good, valid, and marketable fee simple title to each of the six (6) New York hotel properties constituting the Land, free and clear of all liens, claims, encumbrances, and defects of title other than Permitted Liens (as described in Exhibit B attached hereto). The Mortgaged Property is not subject to any option to purchase, right of first refusal, or similar right in favor of any third party (other than as set forth in the Credit Agreement as Permitted Liens). The aggregate appraised value of the six (6) New York Properties forms a portion of the approximately $2,180,000,000.00 total appraised value of the forty-two (42) hotel properties owned by Mortgagor and mortgaged or to be mortgaged in favor of the Collateral Agent for the benefit of the Secured Parties. Mortgagor has not received written notice of any pending or threatened proceedings in eminent domain or condemnation affecting any of the Mortgaged Property.

Section 4.04. No Conflicts. The execution, delivery, and performance by Mortgagor of this Mortgage, and the consummation of the transactions contemplated hereby, do not and will not (a) violate, contravene, or conflict with the Certificate of Formation or the Limited Liability Company Agreement of Mortgagor, (b) violate, contravene, or conflict with any law, statute, ordinance, rule, regulation, order, writ, judgment, injunction, or decree applicable to Mortgagor or the Mortgaged Property, (c) violate, contravene, or conflict with, or result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under, any material contract, agreement, indenture, or instrument to which Mortgagor is a party or by which Mortgagor or any of the Mortgaged Property is bound, or (d) result in the creation or imposition of any lien, claim, or encumbrance on the Mortgaged Property other than the lien created by this Mortgage and the other Permitted Liens.

Section 4.05. Enforceability. This Mortgage has been duly executed and delivered by Mortgagor and constitutes the legal, valid, and binding obligation of Mortgagor, enforceable against Mortgagor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, fraudulent conveyance, or similar laws affecting the enforcement of creditors' rights generally, and (b) general principles of equity (whether considered in a proceeding at law or in equity), including concepts of materiality, reasonableness, good faith, and fair dealing.

Section 4.06. No Prior Liens. Except for Permitted Liens, there are no existing mortgages, deeds of trust, security interests, liens, encumbrances, or other claims or charges on the Mortgaged Property. Without limiting the generality of the foregoing, all existing liens and encumbrances in favor of Greystone Federal Credit Corp. (or its successors or assigns), in its capacity as administrative agent under the prior $625,000,000.00 Senior Secured Term Loan B (CUSIP 92347LAA0), have been or, simultaneously with the recording of this Mortgage, will be fully released, satisfied, and terminated of record in connection with the payoff and discharge of the outstanding principal, accrued interest, fees, and other amounts under such prior facility on July 21, 2022. The aggregate payoff amount for the prior facility was approximately $627,916,667.00, which amount was paid in full on the date hereof from the proceeds of the Term Loan B. Mortgagor shall deliver to the Collateral Agent evidence of such payoff and discharge, including satisfaction and release instruments in recordable form, within the time period specified in the Post-Closing Letter Agreement.

Section 4.07. Taxes. All real property taxes, assessments, water charges, sewer rents, and governmental charges of every kind and nature with respect to the Mortgaged Property that are currently due and payable have been paid in full. Mortgagor has not received any notice of any special assessment or proposed increase in real property taxes with respect to any of the Mortgaged Property that has not been disclosed to the Collateral Agent. There are no proceedings pending or, to the knowledge of Mortgagor, threatened to challenge the assessed valuation of any of the Mortgaged Property for real property tax purposes, except as previously disclosed to the Collateral Agent in writing.

Section 4.08. Compliance with Laws. The Mortgaged Property, and the current use, operation, and occupancy thereof, comply in all material respects with all applicable zoning laws, building codes, fire and life safety codes, environmental laws, the Americans with Disabilities Act, and all other applicable federal, state, and local laws, statutes, ordinances, rules, regulations, codes, and requirements. All material permits, licenses, certificates of occupancy, and other governmental approvals necessary for the lawful use, operation, and occupancy of each of the six (6) New York hotel properties have been obtained and are in full force and effect. No notices of violation or noncompliance with respect to any of the foregoing have been issued by any governmental authority, except as previously disclosed to the Collateral Agent in writing.

Section 4.09. Insurance. Mortgagor maintains, or causes to be maintained, insurance coverage with respect to the Mortgaged Property in the amounts, with the carriers, and of the types required by the Credit Agreement, including without limitation property insurance, commercial general liability insurance, business interruption insurance, and flood insurance (where applicable). All such insurance policies name Crescent Harbor Bank, National Association (in its capacity as Collateral Agent for the Secured Parties) as additional insured, mortgagee, and loss payee, as applicable, pursuant to a standard mortgagee clause or lender's loss payable endorsement. All premiums currently due on such insurance policies have been paid, and no notice of cancellation, nonrenewal, or material change has been received with respect to any such policies.

Section 4.10. Flood Zone. Based upon the review of the Federal Emergency Management Agency ("FEMA") Flood Insurance Rate Maps applicable to each of the six (6) New York hotel properties, (a) the Verimark Montauk Beach Resort (Property 6), located at 290 Old Montauk Highway, Montauk, New York 11954, is partially situated within a Special Flood Hazard Area ("SFHA") as designated by FEMA (Zone AE), and Mortgagor maintains flood insurance coverage with respect to such property in compliance with the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, and all rules and regulations promulgated thereunder (collectively, the "Flood Insurance Laws"), and (b) the remaining five (5) New York hotel properties are, to the best of Mortgagor's knowledge, situated outside of any SFHA (Zone X or Zone C) and are not required to be covered by flood insurance under the Flood Insurance Laws, although Mortgagor maintains supplemental flood coverage with respect to such properties as required by the Credit Agreement.

Section 4.11. Environmental Matters. To the best of Mortgagor's knowledge, (a) no hazardous materials, pollutants, contaminants, toxic substances, petroleum products, or other regulated substances (collectively, "Hazardous Materials") exist on, under, or about any of the Mortgaged Property in violation of any applicable environmental law, (b) the Mortgaged Property is in material compliance with all applicable environmental laws, regulations, and permits, (c) there are no pending or, to the knowledge of Mortgagor, threatened environmental claims, actions, suits, proceedings, or investigations with respect to any of the Mortgaged Property, and (d) Mortgagor has not received any written notice from any governmental authority or other person alleging any violation of or liability under any environmental law with respect to the Mortgaged Property.

ARTICLE V — COVENANTS OF MORTGAGOR

Mortgagor hereby covenants and agrees with the Mortgagee and the Secured Parties as follows:

Section 5.01. Payment of Obligations. Mortgagor shall (and shall cause the Borrower to) pay, or cause to be paid, all Obligations in full as and when the same shall become due and payable under the terms of the Credit Agreement and the other Loan Documents, whether at maturity, by acceleration, or otherwise, including without limitation: (a) quarterly amortization payments of $1,750,000.00 on the last business day of each March, June, September, and December (commencing September 30, 2022), (b) all interest payments on the dates specified in the Credit Agreement, (c) any mandatory prepayments required under the Credit Agreement (including mandatory prepayments from excess cash flow, asset sale proceeds, and casualty/condemnation proceeds), and (d) the remaining principal balance, together with all accrued and unpaid interest, fees, and other amounts, on the Maturity Date of July 21, 2029 (estimated balloon payment of approximately $651,000,000.00, subject to adjustment for optional and mandatory prepayments made prior to such date).

Section 5.02. Maintenance of Mortgaged Property. Mortgagor shall maintain and preserve the Mortgaged Property, and each of the six (6) New York hotel properties, in good repair, working order, and operating condition, ordinary wear and tear excepted, and shall not commit or permit any waste, impairment, or deterioration of the Mortgaged Property or any part thereof. Mortgagor shall operate each hotel property in a manner consistent with first-class hospitality industry standards and practices and shall maintain each property in a condition suitable for its continued use as a full-service hotel and resort property. Mortgagor shall promptly make or cause to be made all necessary repairs, renewals, replacements, and improvements to the Mortgaged Property as may be necessary or desirable to maintain the same in good condition and working order, and shall not abandon any of the Mortgaged Property.

Section 5.03. Insurance. Mortgagor shall maintain at all times during the term of this Mortgage, at Mortgagor's sole cost and expense, the following insurance coverage with respect to the Mortgaged Property:

(a) Property Insurance. "All-risk" or "special form" property insurance covering the Improvements, FF&E, and other insurable personal property located on the Mortgaged Property, in an amount not less than the full replacement cost thereof (without deduction for depreciation), with such deductibles as are reasonably acceptable to the Collateral Agent;

(b) Commercial General Liability Insurance. Commercial general liability insurance covering bodily injury, personal injury, and property damage liability arising from the ownership, use, management, operation, and maintenance of the Mortgaged Property, with combined single limits of not less than $25,000,000.00 per occurrence and $50,000,000.00 in the aggregate, including coverage for liquor liability, products liability, and completed operations;

(c) Business Interruption Insurance. Business interruption insurance, including loss of rents and extra expense coverage, in an amount sufficient to cover not less than twelve (12) months of projected operating income from the Mortgaged Property;

(d) Flood Insurance. Flood insurance in an amount required by the Flood Insurance Laws for the Verimark Montauk Beach Resort (Property 6) and any other property located in a SFHA, and such additional flood coverage for other properties as required by the Credit Agreement;

(e) Workers' Compensation Insurance. Workers' compensation insurance and employer's liability insurance as required by applicable law; and

(f) Additional Coverage. Such other insurance coverage as the Collateral Agent may reasonably require from time to time, including umbrella or excess liability insurance, boiler and machinery insurance, and terrorism insurance.

All insurance policies maintained pursuant to this Section 5.03 shall (i) be issued by insurance companies having a claims-paying ability rating of "A-" or better by A.M. Best Company, Inc. (or an equivalent rating by another nationally recognized rating agency), (ii) name the Collateral Agent (on behalf of the Secured Parties) as additional insured, mortgagee, and loss payee, as applicable, pursuant to a standard New York mortgagee clause or lender's loss payable endorsement in form reasonably satisfactory to the Collateral Agent, (iii) provide for not less than thirty (30) days' prior written notice to the Collateral Agent of any cancellation, nonrenewal, or material change in coverage, and (iv) be in amounts and contain such terms and conditions as are required by the Credit Agreement. Mortgagor shall deliver to the Collateral Agent evidence of such insurance coverage (including copies of insurance policies, certificates of insurance, and endorsements naming the Collateral Agent) on or before the date hereof and annually thereafter, not later than fifteen (15) days prior to the expiration date of any such policy.

Section 5.04. Payment of Taxes and Assessments. Mortgagor shall pay or cause to be paid, before any interest or penalty attaches thereto, all real property taxes, assessments (including special assessments), water charges, sewer rents, and all other governmental charges and impositions of every kind and nature now or hereafter levied, assessed, or imposed upon or against the Mortgaged Property or any part thereof. Mortgagor shall deliver to the Collateral Agent, upon written request, receipts or other evidence of the payment of such taxes and charges. Notwithstanding the foregoing, Mortgagor shall not be required to pay any tax, assessment, or charge so long as Mortgagor is contesting the validity or amount thereof in good faith by appropriate proceedings diligently pursued, adequate reserves have been established in accordance with GAAP, and the nonpayment of such tax, assessment, or charge does not, in the reasonable judgment of the Collateral Agent, create a material risk that the Mortgaged Property or any interest therein will be sold, forfeited, or lost.

Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent may, at its option, require Mortgagor to deposit with the Collateral Agent, on a monthly basis, an amount equal to one-twelfth (1/12) of the estimated annual real property taxes, assessments, insurance premiums, and other charges related to the Mortgaged Property (the "Escrow Payments"). Such Escrow Payments shall be held by the Collateral Agent in a non-interest-bearing account and shall be applied by the Collateral Agent to the payment of such taxes, assessments, insurance premiums, and charges as and when the same become due and payable.

Section 5.05. Compliance with Laws. Mortgagor shall comply, and shall cause the Mortgaged Property to comply, in all material respects with all applicable laws, statutes, ordinances, rules, regulations, codes, and requirements of every kind and nature, including without limitation (a) all zoning laws and land use regulations, (b) all building codes and construction standards, (c) all environmental laws and regulations, including the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA"), and their state and local counterparts, (d) the Americans with Disabilities Act ("ADA") and all accessibility requirements, (e) all fire and life safety codes, (f) all occupational safety and health regulations, (g) all liquor license regulations and requirements, and (h) all other permits, licenses, certificates, authorizations, and approvals required for the lawful ownership, use, occupancy, management, and operation of the Mortgaged Property as full-service hotel and resort properties. Mortgagor shall not initiate, join in, or consent to any change in any zoning law, private restrictive covenant, or other public or private restriction affecting the Mortgaged Property that would materially and adversely affect the value or use of the Mortgaged Property without the prior written consent of the Collateral Agent.

Section 5.06. Leases. Mortgagor shall not, without the prior written consent of the Collateral Agent (such consent not to be unreasonably withheld, conditioned, or delayed), enter into, materially modify, materially amend, or terminate any material Lease affecting the Mortgaged Property, except as expressly permitted under the Credit Agreement. For purposes of this Section 5.06, a "material Lease" means any Lease that (a) covers more than 5,000 square feet of rentable space, (b) generates annual rental income in excess of $250,000.00, (c) has an initial term (including renewal options) of more than ten (10) years, or (d) is with an affiliate of Mortgagor. Notwithstanding the foregoing, Mortgagor may enter into, modify, and terminate hotel guest agreements, short-term event space bookings, and similar transient occupancy agreements in the ordinary course of hotel operations without the consent of the Collateral Agent. Mortgagor shall enforce the material obligations of each tenant under each Lease and shall not waive any material default by any tenant thereunder.

Section 5.07. No Transfer or Further Encumbrance. Mortgagor shall not sell, convey, assign, transfer, lease (except as permitted under Section 5.06), encumber, pledge, mortgage, hypothecate, or otherwise dispose of (collectively, "Transfer") the Mortgaged Property or any interest therein, whether voluntarily, involuntarily, or by operation of law, except as expressly permitted under the Credit Agreement, including without limitation (a) dispositions of worn-out, obsolete, or surplus personal property in the ordinary course of business, (b) Permitted Liens, and (c) dispositions permitted under the asset sale provisions of the Credit Agreement. Any Transfer in violation of this Section 5.07 shall be void and of no force or effect, and the Collateral Agent shall have no obligation to recognize any purported transferee.

Section 5.08. Environmental Covenants. Mortgagor covenants and agrees as follows with respect to environmental matters:

(a) Mortgagor shall comply, and shall cause the Mortgaged Property to comply, in all material respects with all applicable environmental laws, regulations, and permits;

(b) Mortgagor shall not cause, permit, or suffer the release, emission, discharge, disposal, or storage of any Hazardous Materials on, under, in, or about the Mortgaged Property, except for the use, storage, and disposal of Hazardous Materials in the ordinary course of hotel operations (including cleaning supplies, pool chemicals, pest control products, and similar materials) in compliance with all applicable environmental laws;

(c) Mortgagor shall promptly notify the Collateral Agent in writing of (i) any release or threatened release of Hazardous Materials on, under, or about the Mortgaged Property that is required to be reported to any governmental authority under applicable environmental law, (ii) any receipt by Mortgagor of any notice, demand, claim, or order from any governmental authority or third party relating to any actual or alleged violation of any environmental law with respect to the Mortgaged Property, and (iii) the commencement or threatened commencement of any investigation, remediation, or corrective action with respect to any Hazardous Materials on, under, or about the Mortgaged Property; and

(d) If any release of Hazardous Materials occurs on, under, or about the Mortgaged Property, Mortgagor shall, at its sole cost and expense, promptly take all actions necessary or required by applicable environmental law to investigate, remediate, and clean up such release, in each case to the satisfaction of the applicable governmental authority and in compliance with all applicable environmental laws.

Section 5.09. Financial Covenants Cross-Reference. Without limiting the obligations of the Borrower under the Credit Agreement, Mortgagor acknowledges that the Credit Agreement contains a springing financial maintenance covenant requiring the Borrower to maintain a maximum Total Net Leverage Ratio of not greater than 4.50 to 1.00, tested on the last day of each fiscal quarter on a trailing four-quarter basis, but only when the aggregate revolving credit exposure under the RCF exceeds 35% of the total revolving commitments thereunder as of such test date. Mortgagor further acknowledges that as of the closing date of the Credit Agreement, the Borrower is in pro forma compliance with such financial covenant at a Total Net Leverage Ratio of approximately 2.52 to 1.00, well within the 4.50 to 1.00 maximum permitted. Mortgagor shall not take any action, or fail to take any action, that would cause the Borrower to fail to comply with such financial covenant or any other term or condition of the Credit Agreement.

Section 5.10. Condemnation. Mortgagor shall promptly notify the Collateral Agent in writing of any actual, pending, or threatened condemnation or eminent domain proceeding or taking (whether permanent or temporary) affecting all or any portion of the Mortgaged Property. The Collateral Agent shall have the right, but not the obligation, to participate in any such proceeding and to approve any settlement thereof. All condemnation awards and compensation received by Mortgagor or payable to Mortgagor with respect to the Mortgaged Property shall be applied in accordance with the terms of the Credit Agreement, including, to the extent required, as a mandatory prepayment of the Obligations.

Section 5.11. Estoppel Certificates. Mortgagor shall, within fifteen (15) business days following the reasonable written request of the Collateral Agent, execute and deliver to the Collateral Agent (or cause to be executed and delivered) an estoppel certificate in form and substance reasonably satisfactory to the Collateral Agent, certifying (a) the aggregate outstanding principal amount of the Obligations, (b) the date through which interest has been paid, (c) whether any Event of Default or event that, with the giving of notice or the lapse of time, or both, would constitute an Event of Default, has occurred and is continuing, and (d) such other matters relating to the Mortgaged Property or this Mortgage as the Collateral Agent may reasonably request.

Section 5.12. Alterations. Mortgagor may make alterations, improvements, additions, and renovations to the Mortgaged Property consistent with first-class hotel operations and in compliance with all applicable laws, provided that (a) no structural alteration, demolition, or other modification that would materially reduce the fair market value of the Mortgaged Property shall be made without the prior written consent of the Collateral Agent (such consent not to be unreasonably withheld, conditioned, or delayed), (b) all alterations shall be performed in a good and workmanlike manner, in compliance with all applicable permits and approvals, and shall be completed in a timely manner, and (c) Mortgagor shall not permit any mechanic's lien, materialman's lien, or similar lien to be filed against the Mortgaged Property in connection with any such alteration, except for liens that are bonded or discharged within thirty (30) days of filing.

ARTICLE VI — ASSIGNMENT OF LEASES AND RENTS

Section 6.01. Present Assignment. Mortgagor hereby absolutely, unconditionally, and irrevocably assigns, transfers, conveys, and sets over to the Collateral Agent, for the benefit of the Secured Parties, as additional and collateral security for the payment and performance of the Obligations, all of Mortgagor's right, title, and interest in, to, and under all Leases and all Rents, whether now existing or hereafter arising, together with all security deposits, advance rentals, and other payments held by or payable to Mortgagor under or in connection with such Leases. This assignment is an absolute assignment and not merely the granting of a security interest; provided, however, that so long as no Event of Default has occurred and is continuing, Mortgagor shall have a revocable license from the Collateral Agent to collect, receive, use, and enjoy the Rents in the ordinary course of Mortgagor's business, subject to the terms and conditions of this Mortgage and the Credit Agreement.

Section 6.02. Revocation of License. Upon the occurrence and during the continuance of any Event of Default, the license granted to Mortgagor in Section 6.01 to collect and receive the Rents shall automatically, and without further notice or action, terminate and be revoked. Upon such revocation, the Collateral Agent shall be entitled (but shall not be obligated) to exercise any or all of the following rights and remedies:

(a) to enter upon and take possession of the Mortgaged Property or any part thereof;

(b) to collect, receive, and apply all Rents, whether past due or accruing thereafter;

(c) to demand, sue for, collect, and receive all Rents from any and all tenants, subtenants, licensees, concessionaires, and other occupants of the Mortgaged Property;

(d) to enforce all of the terms and conditions of the Leases and to exercise all rights and remedies of the landlord thereunder;

(e) to apply to any court of competent jurisdiction for the appointment of a receiver to collect the Rents and manage the Mortgaged Property; and

(f) to exercise any other rights and remedies available to the Collateral Agent under this Mortgage, the Credit Agreement, or applicable law.

The exercise of any such right or remedy by the Collateral Agent shall not constitute a cure or waiver of any Event of Default, nor shall it constitute an assumption of any obligations of Mortgagor under any Lease. Each tenant or other obligor under a Lease, upon receipt of written notice from the Collateral Agent that an Event of Default has occurred and that the Rents are to be paid directly to the Collateral Agent, shall be authorized to pay such Rents directly to the Collateral Agent without any obligation to inquire into the existence or nature of such Event of Default or the authority of the Collateral Agent.

Section 6.03. Application of Rents. All Rents collected by the Collateral Agent pursuant to this Article VI shall be applied to the Obligations in the order and manner specified in the Credit Agreement and the Intercreditor Agreement. After deducting therefrom all costs and expenses of collection and management (including reasonable attorneys' fees, receiver's fees, and property management costs), the net proceeds shall be applied: first, to the payment of all costs and expenses incurred by the Collateral Agent in enforcing this Mortgage and the other Loan Documents; second, to the payment of the Obligations in the order of priority specified in the Credit Agreement and the Intercreditor Agreement; and third, any surplus shall be paid to Mortgagor or as otherwise required by applicable law.

Section 6.04. New York Real Property Law Compliance. This assignment of Leases and Rents is made and intended to be an absolute assignment, consistent with and in compliance with Article 9 of the New York Real Property Law ("RPL") and the applicable provisions of the New York Real Property Actions and Proceedings Law ("RPAPL"). To the extent that any court of competent jurisdiction determines that this assignment constitutes a security interest rather than an absolute assignment, the provisions of this Article VI shall be construed to create a first-priority security interest in the Leases and Rents in favor of the Collateral Agent. Mortgagor acknowledges that the Collateral Agent is entitled to all of the rights and remedies of an assignee of rents and leases under Article 9 of the RPL, the RPAPL, and all other applicable provisions of New York law.

ARTICLE VII — EVENTS OF DEFAULT

Section 7.01. Events of Default Under the Credit Agreement. The occurrence of any "Event of Default" as defined in the Credit Agreement shall constitute an Event of Default under this Mortgage. Without limiting the foregoing, the following shall constitute Events of Default under this Mortgage upon their occurrence (or, where applicable, upon the expiration of any notice and cure periods set forth in the Credit Agreement):

(a) Payment Default. Failure by the Borrower or any Guarantor (including Mortgagor) to pay any principal, interest, fee, or other amount payable under the Credit Agreement or any other Loan Document when and as the same shall become due and payable, whether at the stated maturity thereof, at a date fixed for prepayment, by acceleration, or otherwise;

(b) Representation and Warranty Default. Any representation or warranty made or deemed made by the Borrower or any Guarantor in or in connection with the Credit Agreement, any other Loan Document, or any certificate, report, or other document furnished in connection therewith shall prove to have been incorrect in any material respect (or, in the case of representations and warranties qualified by materiality or Material Adverse Effect, in any respect) as of the date when made or deemed made;

(c) Covenant Default. Failure by the Borrower or any Guarantor to observe or perform any covenant, condition, or agreement contained

PREPARED BY AND AFTER RECORDING RETURN TO:
Calderwood & Harkness LLP One Liberty Plaza, 52nd Floor New York, NY 10006
Attention: Sophie Tremblay, Esq.
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
Dated as of July 21, 2022
by
VERIMARK RESORT PROPERTIES LLC, a Delaware limited liability company,
as Mortgagor,
to
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, a national banking association,
as Collateral Agent for the Secured Parties,
as Mortgagee
Mortgaged Properties Located in the State of New York
RECORDING INFORMATION
PROPERTY TAX REFERENCES
THIS INSTRUMENT SECURES A PRINCIPAL INDEBTEDNESS OF $700,000,000.00
(Seven Hundred Million and No/100 Dollars)
New York State Mortgage Recording Tax Notation: The mortgage recording tax due upon the recording of this instrument has been or will be paid in accordance with Section 253 of the New York Tax Law, as applicable. This Mortgage is not supplemental to any existing mortgage and is not entitled to any exemption or reduction in mortgage recording tax.
CUSIP Number: 92347LAB8
NOTICE: Neither Calderwood & Harkness LLP nor any other counsel is responsible for the accuracy or adequacy of the CUSIP number provided herein. The CUSIP number is included solely for the convenience of the holders of the Term Loans and other participants in the Credit Agreement. No representation is made as to the correctness of such CUSIP number as printed herein, and reliance may only be placed on other identification numbers appearing on this instrument.
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT (as it may be amended, restated, supplemented, or otherwise modified from time to time, this "Mortgage") is made as of July 21, 2022, by VERIMARK RESORT PROPERTIES LLC, a Delaware limited liability company, having its principal office at 8200 West Palmetto Park Road, Suite 1500, Boca Raton, FL 33433 (the "Mortgagor" or "Grantor"), to and in favor of CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States, having its principal office at 600 Lexington Avenue, 34th Floor, New York, NY 10022, in its capacity as Collateral Agent for the benefit of the Secured Parties under the Credit Agreement referenced below (in such capacity, together with its successors and assigns in such capacity, the "Mortgagee" or "Collateral Agent").
RECITALS
WHEREAS, Mortgagor is a limited liability company duly organized and validly existing under the laws of the State of Delaware, and is duly qualified to transact business in the State of New York; and
WHEREAS, Mortgagor is a wholly-owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation (the "Borrower" or "VHG"), which is publicly traded on the New York Stock Exchange under the ticker symbol "VMRK" (Employer Identification Number: 82-3741956; Delaware Secretary of State File Number: 7291843); and
WHEREAS, the Borrower, the Guarantors party thereto (including Mortgagor), Crescent Harbor Bank, National Association, as Administrative Agent, as Collateral Agent, and as a Lender, and the several lenders from time to time party thereto (collectively, the "Lenders"), have entered into that certain Credit Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Lenders have agreed to extend credit to the Borrower in the form of a $700,000,000 Senior Secured Term Loan B facility (the "Term Loan B" or "TLB"), bearing interest at a rate per annum equal to Adjusted Term SOFR plus 375 basis points, with a SOFR floor of 0.50%, and maturing on July 21, 2029 (the "Maturity Date"); and
WHEREAS, in connection with the Credit Agreement, Mortgagor is a Guarantor under that certain Guarantee Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Guarantee Agreement"), among the Borrower, the Guarantors party thereto, and the Collateral Agent, pursuant to which Mortgagor has unconditionally guaranteed all of the Obligations of the Borrower under the Credit Agreement; and
WHEREAS, in connection with the Credit Agreement, Mortgagor is a Grantor under that certain Pledge and Security Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Pledge and Security Agreement"), among the Borrower, the Grantors party thereto, and the Collateral Agent, pursuant to which Mortgagor has granted a security interest in substantially all of its personal property to secure the Obligations; and
WHEREAS, the Collateral Agent, on behalf of the Secured Parties under the Credit Agreement, and the administrative agent under that certain revolving credit facility in the aggregate principal amount of $400,000,000 (the "RCF") have entered into that certain Amended and Restated Intercreditor Agreement dated as of July 21, 2022 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Intercreditor Agreement"), pursuant to which the Term Loan B and the RCF share first-lien collateral on a pari passu basis, with Crescent Harbor Bank, National Association serving as agent for both facilities; and
WHEREAS, Mortgagor is the owner in fee simple of six (6) hotel properties located in the State of New York (collectively, the "New York Properties"), as more particularly described in Exhibit A attached hereto and made a part hereof; and
WHEREAS, the execution and delivery of this Mortgage by Mortgagor is required pursuant to the terms and conditions of the Credit Agreement, the Pledge and Security Agreement, and that certain Post-Closing Letter Agreement dated as of July 21, 2022 (the "Post-Closing Letter Agreement"), among the Borrower, the Guarantors party thereto, and the Collateral Agent; and
WHEREAS, Mortgagor desires to execute and deliver this Mortgage to secure the full and timely payment and performance of all of the Obligations (as defined in the Credit Agreement) owing by the Borrower and the Guarantors (including Mortgagor) to the Secured Parties;
NOW, THEREFORE, in consideration of the premises and the agreements contained herein, and in order to secure the Obligations, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Mortgagor hereby agrees as follows:
ARTICLE I — DEFINITIONS
Section 1.01. Incorporation by Reference. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement, the Guarantee Agreement, the Pledge and Security Agreement, and the Intercreditor Agreement, as applicable. In the event of any conflict between a definition in this Mortgage and a definition in the Credit Agreement, the definition in the Credit Agreement shall control, except with respect to matters of New York real property law, in which case the definition set forth in this Mortgage shall control.
Section 1.02. Mortgage-Specific Definitions. As used in this Mortgage, the following terms shall have the following meanings:
"Collateral Agent" means Crescent Harbor Bank, National Association, in its capacity as Collateral Agent under the Credit Agreement, and any successor Collateral Agent appointed in accordance with the terms of the Credit Agreement.
"Credit Agreement" means that certain Credit Agreement dated as of July 21, 2022, among Verimark Hospitality Group Inc., as Borrower, the Guarantors party thereto, Crescent Harbor Bank, National Association, as Administrative Agent, as Collateral Agent, and as a Lender, and the Lenders from time to time party thereto, as such agreement may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Guarantee Agreement" means that certain Guarantee Agreement dated as of July 21, 2022, among the Borrower, the Guarantors party thereto, and the Collateral Agent, as such agreement may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Improvements" means all buildings, structures, fixtures, and improvements of every kind and description now or hereafter erected, constructed, placed, or located upon the Land, including without limitation all hotel buildings, parking structures, garages, conference and convention centers, restaurants, bars, lounges, swimming pools, spas, fitness centers, retail spaces, and all related hospitality, recreational, and commercial facilities.
"Leases" means all leases, subleases, licenses, concessions, management agreements, franchise agreements, hotel guest agreements, and all other occupancy, use, or operating agreements of whatever kind or nature, now in effect or hereafter entered into, which affect, relate to, or are applicable to all or any portion of the Mortgaged Property or the Improvements thereon, together with all guaranties of the obligations of the tenants, subtenants, licensees, or other occupants thereunder, and all amendments, modifications, extensions, renewals, and replacements thereof.
"Mortgage" means this Mortgage, Assignment of Leases and Rents, and Security Agreement, as it may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time.
"Mortgaged Property" means, collectively, all of the property, rights, interests, and estates described in the Granting Clauses set forth in Article II hereof, including without limitation the Land, the Improvements, the Fixtures, the Leases, the Rents, the Personal Property, the Proceeds and Products, and all After-Acquired Property, in each case as more particularly described in Article II.
"Obligations" has the meaning ascribed to such term in the Credit Agreement, and includes, without limitation, (a) all principal, interest (including interest accruing after the commencement of any bankruptcy, insolvency, or similar proceeding, whether or not a claim for such interest is allowed in such proceeding), fees, costs, expenses, indemnification obligations, and other amounts payable by the Borrower or any Guarantor under or in connection with the Credit Agreement, the Guarantee Agreement, this Mortgage, and the other Loan Documents, (b) the secured indebtedness in the aggregate principal amount of $700,000,000.00 (subject to quarterly amortization at the rate of 1.00% per annum, in quarterly installments of $1,750,000.00 each), and (c) all other obligations and liabilities of the Borrower and the Guarantors to the Secured Parties arising under or in connection with the Loan Documents.
"Permitted Liens" has the meaning ascribed to such term in the Credit Agreement, and includes those specific permitted encumbrances set forth in Exhibit B attached hereto with respect to the Mortgaged Property.
"Rents" means all rents, revenues, income, profits, royalties, issues, room charges, food and beverage revenue, conference and banquet revenue, parking revenue, spa and amenity revenue, management fees, franchise fees, and all other hotel operating revenues and receipts of every kind and nature, now due or hereafter becoming due, arising from or in connection with the ownership, use, management, operation, leasing, or occupancy of all or any portion of the Mortgaged Property.
"Secured Parties" means, collectively, the Administrative Agent, the Collateral Agent, and the Lenders under the Credit Agreement, together with the administrative agent and the lenders under the RCF, in each case as their interests may appear and as governed by the Intercreditor Agreement.
"Syndicate Lenders" means the following lenders party to the Credit Agreement as of the date hereof, together with their respective commitment amounts:
(a) Crescent Harbor Bank, National Association — $50,000,000;
(b) Ridgeline Capital Partners, LP — $125,000,000;
(c) Beacon Atlantic Credit Fund III — $100,000,000;
(d) Tidewater Institutional Investors, Inc. — $75,000,000;
(e) Ironbridge Loan Management LLC — $100,000,000;
(f) Northway Savings Bank — $75,000,000;
(g) Copperleaf Asset Management, LP — $100,000,000; and
(h) Harborview Mutual Life Insurance Company — $75,000,000.
"Title Insurer" means Continental Fidelity Title Company, having offices at 1221 Brickell Avenue, Suite 900, Miami, FL 33131, and any successor title insurance company engaged by the Collateral Agent in connection with the Mortgaged Property.
Section 1.03. Rules of Construction. The rules of construction set forth in Section 1.03 of the Credit Agreement are hereby incorporated by reference as if set forth in full herein. References to "Sections," "Articles," and "Exhibits" are to the sections, articles, and exhibits of this Mortgage unless otherwise specified. The words "herein," "hereof," "hereunder," and words of similar import refer to this Mortgage as a whole and not to any particular provision hereof. The word "including" means "including without limitation."
ARTICLE II — GRANTING CLAUSES
Section 2.01. Grant of Mortgage Lien. For the purposes and upon the terms and conditions set forth in this Mortgage, and to secure the full and punctual payment and performance of all Obligations, Mortgagor hereby irrevocably and unconditionally grants, mortgages, warrants, bargains, sells, assigns, conveys, pledges, hypothecates, sets over, and confirms unto the Mortgagee (in its capacity as Collateral Agent for the benefit of the Secured Parties), and grants to the Mortgagee a continuing first-priority mortgage lien and security interest in, the following property, rights, interests, and estates (collectively, the "Mortgaged Property"):
Section 2.02. The Land. All of Mortgagor's right, title, and interest in and to those certain parcels of real property located in the State of New York, together comprising the fee simple estate in the following six (6) hotel properties, as more particularly described by metes and bounds or other legal descriptions in Exhibit A attached hereto and incorporated herein by this reference (collectively, the "Land"):
(a) Property 1 — Verimark Grand Central Hotel. That certain parcel of land located at 109 East 42nd Street, New York, New York 10017, situate in the Borough of Manhattan, County of New York, State of New York, designated for tax purposes as Section 5, Block 01287, Lot 0044 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;
(b) Property 2 — Verimark SoHo Hotel & Residences. That certain parcel of land located at 281 Lafayette Street, New York, New York 10012, situate in the Borough of Manhattan, County of New York, State of New York, designated for tax purposes as Section 2, Block 00495, Lot 0019 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;
(c) Property 3 — Verimark Times Square Hotel. That certain parcel of land located at 715 Seventh Avenue, New York, New York 10036, situate in the Borough of Manhattan, County of New York, State of New York, designated for tax purposes as Section 4, Block 01016, Lot 0062 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;
(d) Property 4 — Verimark Brooklyn Heights Hotel. That certain parcel of land located at 55 Pierrepont Street, Brooklyn, New York 11201, situate in the Borough of Brooklyn, County of Kings, State of New York, designated for tax purposes as Section 1, Block 00258, Lot 0031 on the Tax Map of the City of New York, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto;
(e) Property 5 — Verimark Saratoga Springs Resort. That certain parcel of land located at 42 Lake Avenue, Saratoga Springs, New York 12866, situate in the Town of Saratoga Springs, County of Saratoga, State of New York, designated for tax purposes as Section 12, Block 03, Lot 14.1 on the Tax Map of the County of Saratoga, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto; and
(f) Property 6 — Verimark Montauk Beach Resort. That certain parcel of land located at 290 Old Montauk Highway, Montauk, New York 11954, situate in the Town of East Hampton, County of Suffolk, State of New York, designated for tax purposes as Section 18, Block 02, Lot 007.002 on the Tax Map of the County of Suffolk, together with all right, title, and interest of Mortgagor in and to all streets, alleys, strips, gores, rights-of-way, easements, and appurtenances pertaining thereto.
Together with all of Mortgagor's right, title, and interest, if any, in and to all streets, roads, avenues, alleys, and passages, whether open or closed, in front of, behind, or at the sides of the Land, and all strips and gores of land adjacent to or used in connection with the Land, and all right, title, and interest of Mortgagor in and to any award made or to be made in lieu thereof, and in and to any unpaid award for damage to the Land by reason of a change of grade of any street.
Section 2.03. Improvements and Fixtures. All buildings, structures, improvements, and fixtures of every kind and character now or hereafter erected, constructed, placed, installed, or located upon the Land, or any part thereof, including without limitation:
(a) all hotel buildings, guest room towers, lobby areas, and common areas;
(b) all parking structures, garages, surface parking lots, and related vehicular access improvements;
(c) all conference centers, meeting rooms, ballrooms, convention halls, and event spaces;
(d) all restaurants, bars, lounges, kitchens, and food preparation areas;
(e) all swimming pools, spas, fitness centers, recreational facilities, and outdoor amenity areas;
(f) all retail stores, gift shops, and commercial spaces;
(g) all building systems, including heating, ventilation, and air conditioning systems, plumbing systems, electrical systems and wiring, elevators, escalators, fire detection and suppression systems, security systems, surveillance cameras and equipment, telecommunications systems, life safety systems, lighting, and backup generators;
(h) all landscape improvements, fencing, retaining walls, sidewalks, driveways, curbing, irrigation systems, and signage; and
(i) all furniture, fixtures, and equipment (collectively, "FF&E") permanently affixed to or incorporated into the Land or Improvements to the extent that such items constitute fixtures under the laws of the State of New York, including without limitation guest room furnishings, lobby furnishings, restaurant and kitchen equipment, laundry equipment, housekeeping equipment, front desk and back-of-house systems, point-of-sale systems, and hotel management technology systems.
Section 2.04. Leases and Rents. All of Mortgagor's right, title, and interest in, to, and under all Leases now existing or hereafter entered into with respect to all or any part of the Mortgaged Property, including without limitation:
(a) all hotel guest agreements, reservations, and booking contracts;
(b) all commercial leases, retail leases, and office leases;
(c) all restaurant, bar, and food service concession agreements;
(d) all conference, convention, and banquet space licenses and rental agreements;
(e) all ground leases (if any) and all amendments, renewals, and extensions thereof;
(f) all hotel management agreements, operating agreements, and franchise agreements;
(g) all parking leases, licenses, and operating agreements;
(h) all spa, fitness, and recreational facility leases and concession agreements; and
(i) all guaranties of the obligations of any tenant, subtenant, licensee, concessionaire, or other occupant under any of the foregoing.
Together with all Rents now due or hereafter becoming due under or by virtue of any of the Leases or otherwise arising from the use, occupancy, management, or operation of the Mortgaged Property, including without limitation all room revenue, food and beverage revenue, conference and banquet revenue, parking revenue, spa and amenity revenue, cancellation fees, late charges, and all other income, receipts, and revenues of every kind and nature derived from the Mortgaged Property.
Section 2.05. Personal Property Related to Real Property. All personal property of every kind and nature owned by Mortgagor and now or hereafter located on, attached to, or used in connection with the operation of the Mortgaged Property, to the extent such personal property is not covered by the Pledge and Security Agreement, including without limitation:
(a) all accounts, contract rights, and general intangibles arising from the ownership, use, management, or operation of the Mortgaged Property;
(b) all inventory, supplies, and consumable goods located on or used in connection with the Mortgaged Property;
(c) all equipment and personal property used in the operation of the hotel properties, to the extent not constituting fixtures;
(d) all permits, licenses, approvals, certificates of occupancy, liquor licenses, and other governmental authorizations and entitlements relating to the construction, use, operation, or occupancy of the Mortgaged Property;
(e) all franchise agreements, brand licenses, and similar agreements relating to the operation of the hotel properties under any brand name or trade name;
(f) all plans, specifications, drawings, surveys, engineering reports, environmental reports, and other documents relating to the Mortgaged Property;
(g) all deposits held by utility companies or governmental agencies in connection with the Mortgaged Property;
(h) all goodwill relating to the ownership, use, management, or operation of the Mortgaged Property; and
(i) all books, records, files, and documents (whether in physical or electronic form) relating to the Mortgaged Property.
Section 2.06. Proceeds and Products. All proceeds, products, offspring, rents, and profits of and from any and all of the foregoing property, including without limitation:
(a) all proceeds of any insurance policies covering any of the foregoing property, including property insurance proceeds, business interruption insurance proceeds, and liability insurance proceeds;
(b) all awards, compensation, settlements, and other payments made or owing as a result of any condemnation, eminent domain, or similar proceeding (whether actual, pending, or threatened) affecting all or any portion of the Mortgaged Property;
(c) all proceeds of any sale, lease, exchange, or other disposition of all or any portion of the foregoing property; and
(d) all conversion proceeds and all other amounts received or receivable with respect to the foregoing property.
Section 2.07. After-Acquired Property. All property of any of the types described in Sections 2.02 through 2.06 hereof that is hereafter acquired by Mortgagor and that is located on, attached to, or used in connection with the Mortgaged Property, or that arises from the ownership, use, management, or operation thereof, shall automatically become subject to the lien and security interest of this Mortgage without the execution or filing of any further instrument or document.
TO HAVE AND TO HOLD the Mortgaged Property, together with all rights, privileges, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, unto the Mortgagee, its successors and assigns, forever, for the uses and purposes set forth herein; PROVIDED, HOWEVER, that if all Obligations secured hereby shall be paid and performed in full and all commitments under the Credit Agreement shall have been terminated, then this Mortgage and the estate, lien, and security interest created hereby shall become null and void and shall be discharged of record, all at the cost and expense of Mortgagor.
ARTICLE III — OBLIGATIONS SECURED
Section 3.01. Secured Obligations. This Mortgage and the lien, security interest, and assignment of leases and rents created hereby secure the full and punctual payment and performance of the following (collectively, the "Secured Obligations"):
(a) all Obligations of the Borrower and the Guarantors (including Mortgagor) under the Credit Agreement, including without limitation:
(i) the principal amount of the $700,000,000.00 Term Loan B, together with all accrued and unpaid interest thereon, calculated at a rate per annum equal to Adjusted Term SOFR (as defined in the Credit Agreement) plus 375 basis points (3.75%), with a SOFR floor of 0.50%. In the event that an Event of Default has occurred and is continuing, interest shall accrue at the default rate equal to the otherwise applicable rate plus 200 basis points (2.00%);
(ii) all fees payable under the Credit Agreement, including the annual administrative agent fee of $150,000.00, commitment fees, letter of credit fees, and all other fees and charges as set forth in the Credit Agreement and the Fee Letter;
(iii) all reimbursement obligations, indemnification obligations, and expense reimbursement obligations payable by the Borrower or any Guarantor under the Credit Agreement and the other Loan Documents; and
(iv) all other amounts now or hereafter owing by the Borrower or any Guarantor to any Secured Party under or in connection with the Credit Agreement and the other Loan Documents;
(b) all Obligations of Mortgagor under the Guarantee Agreement dated as of July 21, 2022;
(c) all Obligations of Mortgagor under the Pledge and Security Agreement dated as of July 21, 2022;
(d) all costs and expenses (including reasonable attorneys' fees and disbursements) incurred by the Collateral Agent or any Secured Party in connection with the enforcement of this Mortgage, the collection of the Secured Obligations, or the exercise of any right or remedy hereunder or under any other Loan Document; and
(e) all extensions, renewals, refinancings, modifications, amendments, supplements, and replacements of any of the foregoing.
Section 3.02. Pari Passu Status; Intercreditor Agreement. This Mortgage secures the Obligations on a first-priority basis, pari passu in right of security with the liens and security interests securing the $400,000,000.00 senior secured revolving credit facility extended pursuant to that certain Revolving Credit Agreement (the "RCF Agreement"), as governed by the Amended and Restated Intercreditor Agreement dated as of July 21, 2022. The rights and remedies of the Mortgagee under this Mortgage are expressly subject to the terms and conditions of the Intercreditor Agreement, including without limitation the provisions governing the sharing of collateral proceeds, the exercise of remedies, and the release of liens. In the event of any inconsistency between the provisions of this Mortgage and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control as between the Secured Parties.
Section 3.03. Maximum Secured Amount (New York RPL § 253 Compliance). In accordance with Section 253 of the New York Real Property Law and for purposes of calculating the New York State mortgage recording tax, the maximum principal amount of indebtedness or obligations secured by this Mortgage at the time of its execution or that may be secured at any time hereafter shall not exceed $700,000,000.00 in aggregate principal amount, plus all interest, fees, late charges, prepayment premiums (if any), costs, expenses, and other amounts payable under the Loan Documents, including without limitation all protective advances, costs of enforcement, and indemnification obligations. The foregoing statement of maximum amount is made solely for the purpose of compliance with the New York Real Property Law and the computation of mortgage recording tax and shall not limit, diminish, or otherwise affect the obligations secured by this Mortgage as described in Section 3.01 hereof.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF MORTGAGOR
Mortgagor hereby represents and warrants to the Mortgagee and the Secured Parties as of the date hereof as follows:
Section 4.01. Organization and Good Standing. Mortgagor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Mortgagor is duly qualified and authorized to transact business and is in good standing in the State of New York and in each other jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect (as defined in the Credit Agreement). Mortgagor has all requisite limited liability company power and authority to own, lease, and operate the Mortgaged Property and to conduct its business as currently conducted.
Section 4.02. Authority. Mortgagor has full limited liability company power and authority to execute, deliver, and perform its obligations under this Mortgage and to grant the mortgage lien, security interest, and assignment of leases and rents contemplated hereby. The execution, delivery, and performance by Mortgagor of this Mortgage, and the granting of the lien and security interest herein, have been duly authorized by all necessary limited liability company action on the part of Mortgagor, including without limitation the resolutions of the Board of Directors of Verimark Hospitality Group Inc. (as sole member of Mortgagor) adopted on May 12, 2022, and the resolutions of the authorized officers of Mortgagor adopted on or about the same date, copies of which have been delivered to the Collateral Agent. No other consent, approval, authorization, or action by, or notice to or filing with, any governmental authority or any other person is required in connection with the execution, delivery, or performance of this Mortgage by Mortgagor, except for the recording of this Mortgage with the county clerks' offices in the applicable counties of the State of New York.
Section 4.03. Title to Mortgaged Property. Mortgagor holds good, valid, and marketable fee simple title to each of the six (6) New York hotel properties constituting the Land, free and clear of all liens, claims, encumbrances, and defects of title other than Permitted Liens (as described in Exhibit B attached hereto). The Mortgaged Property is not subject to any option to purchase, right of first refusal, or similar right in favor of any third party (other than as set forth in the Credit Agreement as Permitted Liens). The aggregate appraised value of the six (6) New York Properties forms a portion of the approximately $2,180,000,000.00 total appraised value of the forty-two (42) hotel properties owned by Mortgagor and mortgaged or to be mortgaged in favor of the Collateral Agent for the benefit of the Secured Parties. Mortgagor has not received written notice of any pending or threatened proceedings in eminent domain or condemnation affecting any of the Mortgaged Property.
Section 4.04. No Conflicts. The execution, delivery, and performance by Mortgagor of this Mortgage, and the consummation of the transactions contemplated hereby, do not and will not (a) violate, contravene, or conflict with the Certificate of Formation or the Limited Liability Company Agreement of Mortgagor, (b) violate, contravene, or conflict with any law, statute, ordinance, rule, regulation, order, writ, judgment, injunction, or decree applicable to Mortgagor or the Mortgaged Property, (c) violate, contravene, or conflict with, or result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under, any material contract, agreement, indenture, or instrument to which Mortgagor is a party or by which Mortgagor or any of the Mortgaged Property is bound, or (d) result in the creation or imposition of any lien, claim, or encumbrance on the Mortgaged Property other than the lien created by this Mortgage and the other Permitted Liens.
Section 4.05. Enforceability. This Mortgage has been duly executed and delivered by Mortgagor and constitutes the legal, valid, and binding obligation of Mortgagor, enforceable against Mortgagor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, fraudulent conveyance, or similar laws affecting the enforcement of creditors' rights generally, and (b) general principles of equity (whether considered in a proceeding at law or in equity), including concepts of materiality, reasonableness, good faith, and fair dealing.
Section 4.06. No Prior Liens. Except for Permitted Liens, there are no existing mortgages, deeds of trust, security interests, liens, encumbrances, or other claims or charges on the Mortgaged Property. Without limiting the generality of the foregoing, all existing liens and encumbrances in favor of Greystone Federal Credit Corp. (or its successors or assigns), in its capacity as administrative agent under the prior $625,000,000.00 Senior Secured Term Loan B (CUSIP 92347LAA0), have been or, simultaneously with the recording of this Mortgage, will be fully released, satisfied, and terminated of record in connection with the payoff and discharge of the outstanding principal, accrued interest, fees, and other amounts under such prior facility on July 21, 2022. The aggregate payoff amount for the prior facility was approximately $627,916,667.00, which amount was paid in full on the date hereof from the proceeds of the Term Loan B. Mortgagor shall deliver to the Collateral Agent evidence of such payoff and discharge, including satisfaction and release instruments in recordable form, within the time period specified in the Post-Closing Letter Agreement.
Section 4.07. Taxes. All real property taxes, assessments, water charges, sewer rents, and governmental charges of every kind and nature with respect to the Mortgaged Property that are currently due and payable have been paid in full. Mortgagor has not received any notice of any special assessment or proposed increase in real property taxes with respect to any of the Mortgaged Property that has not been disclosed to the Collateral Agent. There are no proceedings pending or, to the knowledge of Mortgagor, threatened to challenge the assessed valuation of any of the Mortgaged Property for real property tax purposes, except as previously disclosed to the Collateral Agent in writing.
Section 4.08. Compliance with Laws. The Mortgaged Property, and the current use, operation, and occupancy thereof, comply in all material respects with all applicable zoning laws, building codes, fire and life safety codes, environmental laws, the Americans with Disabilities Act, and all other applicable federal, state, and local laws, statutes, ordinances, rules, regulations, codes, and requirements. All material permits, licenses, certificates of occupancy, and other governmental approvals necessary for the lawful use, operation, and occupancy of each of the six (6) New York hotel properties have been obtained and are in full force and effect. No notices of violation or noncompliance with respect to any of the foregoing have been issued by any governmental authority, except as previously disclosed to the Collateral Agent in writing.
Section 4.09. Insurance. Mortgagor maintains, or causes to be maintained, insurance coverage with respect to the Mortgaged Property in the amounts, with the carriers, and of the types required by the Credit Agreement, including without limitation property insurance, commercial general liability insurance, business interruption insurance, and flood insurance (where applicable). All such insurance policies name Crescent Harbor Bank, National Association (in its capacity as Collateral Agent for the Secured Parties) as additional insured, mortgagee, and loss payee, as applicable, pursuant to a standard mortgagee clause or lender's loss payable endorsement. All premiums currently due on such insurance policies have been paid, and no notice of cancellation, nonrenewal, or material change has been received with respect to any such policies.
Section 4.10. Flood Zone. Based upon the review of the Federal Emergency Management Agency ("FEMA") Flood Insurance Rate Maps applicable to each of the six (6) New York hotel properties, (a) the Verimark Montauk Beach Resort (Property 6), located at 290 Old Montauk Highway, Montauk, New York 11954, is partially situated within a Special Flood Hazard Area ("SFHA") as designated by FEMA (Zone AE), and Mortgagor maintains flood insurance coverage with respect to such property in compliance with the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, and all rules and regulations promulgated thereunder (collectively, the "Flood Insurance Laws"), and (b) the remaining five (5) New York hotel properties are, to the best of Mortgagor's knowledge, situated outside of any SFHA (Zone X or Zone C) and are not required to be covered by flood insurance under the Flood Insurance Laws, although Mortgagor maintains supplemental flood coverage with respect to such properties as required by the Credit Agreement.
Section 4.11. Environmental Matters. To the best of Mortgagor's knowledge, (a) no hazardous materials, pollutants, contaminants, toxic substances, petroleum products, or other regulated substances (collectively, "Hazardous Materials") exist on, under, or about any of the Mortgaged Property in violation of any applicable environmental law, (b) the Mortgaged Property is in material compliance with all applicable environmental laws, regulations, and permits, (c) there are no pending or, to the knowledge of Mortgagor, threatened environmental claims, actions, suits, proceedings, or investigations with respect to any of the Mortgaged Property, and (d) Mortgagor has not received any written notice from any governmental authority or other person alleging any violation of or liability under any environmental law with respect to the Mortgaged Property.
ARTICLE V — COVENANTS OF MORTGAGOR
Mortgagor hereby covenants and agrees with the Mortgagee and the Secured Parties as follows:
Section 5.01. Payment of Obligations. Mortgagor shall (and shall cause the Borrower to) pay, or cause to be paid, all Obligations in full as and when the same shall become due and payable under the terms of the Credit Agreement and the other Loan Documents, whether at maturity, by acceleration, or otherwise, including without limitation: (a) quarterly amortization payments of $1,750,000.00 on the last business day of each March, June, September, and December (commencing September 30, 2022), (b) all interest payments on the dates specified in the Credit Agreement, (c) any mandatory prepayments required under the Credit Agreement (including mandatory prepayments from excess cash flow, asset sale proceeds, and casualty/condemnation proceeds), and (d) the remaining principal balance, together with all accrued and unpaid interest, fees, and other amounts, on the Maturity Date of July 21, 2029 (estimated balloon payment of approximately $651,000,000.00, subject to adjustment for optional and mandatory prepayments made prior to such date).
Section 5.02. Maintenance of Mortgaged Property. Mortgagor shall maintain and preserve the Mortgaged Property, and each of the six (6) New York hotel properties, in good repair, working order, and operating condition, ordinary wear and tear excepted, and shall not commit or permit any waste, impairment, or deterioration of the Mortgaged Property or any part thereof. Mortgagor shall operate each hotel property in a manner consistent with first-class hospitality industry standards and practices and shall maintain each property in a condition suitable for its continued use as a full-service hotel and resort property. Mortgagor shall promptly make or cause to be made all necessary repairs, renewals, replacements, and improvements to the Mortgaged Property as may be necessary or desirable to maintain the same in good condition and working order, and shall not abandon any of the Mortgaged Property.
Section 5.03. Insurance. Mortgagor shall maintain at all times during the term of this Mortgage, at Mortgagor's sole cost and expense, the following insurance coverage with respect to the Mortgaged Property:
(a) Property Insurance. "All-risk" or "special form" property insurance covering the Improvements, FF&E, and other insurable personal property located on the Mortgaged Property, in an amount not less than the full replacement cost thereof (without deduction for depreciation), with such deductibles as are reasonably acceptable to the Collateral Agent;
(b) Commercial General Liability Insurance. Commercial general liability insurance covering bodily injury, personal injury, and property damage liability arising from the ownership, use, management, operation, and maintenance of the Mortgaged Property, with combined single limits of not less than $25,000,000.00 per occurrence and $50,000,000.00 in the aggregate, including coverage for liquor liability, products liability, and completed operations;
(c) Business Interruption Insurance. Business interruption insurance, including loss of rents and extra expense coverage, in an amount sufficient to cover not less than twelve (12) months of projected operating income from the Mortgaged Property;
(d) Flood Insurance. Flood insurance in an amount required by the Flood Insurance Laws for the Verimark Montauk Beach Resort (Property 6) and any other property located in a SFHA, and such additional flood coverage for other properties as required by the Credit Agreement;
(e) Workers' Compensation Insurance. Workers' compensation insurance and employer's liability insurance as required by applicable law; and
(f) Additional Coverage. Such other insurance coverage as the Collateral Agent may reasonably require from time to time, including umbrella or excess liability insurance, boiler and machinery insurance, and terrorism insurance.
All insurance policies maintained pursuant to this Section 5.03 shall (i) be issued by insurance companies having a claims-paying ability rating of "A-" or better by A.M. Best Company, Inc. (or an equivalent rating by another nationally recognized rating agency), (ii) name the Collateral Agent (on behalf of the Secured Parties) as additional insured, mortgagee, and loss payee, as applicable, pursuant to a standard New York mortgagee clause or lender's loss payable endorsement in form reasonably satisfactory to the Collateral Agent, (iii) provide for not less than thirty (30) days' prior written notice to the Collateral Agent of any cancellation, nonrenewal, or material change in coverage, and (iv) be in amounts and contain such terms and conditions as are required by the Credit Agreement. Mortgagor shall deliver to the Collateral Agent evidence of such insurance coverage (including copies of insurance policies, certificates of insurance, and endorsements naming the Collateral Agent) on or before the date hereof and annually thereafter, not later than fifteen (15) days prior to the expiration date of any such policy.
Section 5.04. Payment of Taxes and Assessments. Mortgagor shall pay or cause to be paid, before any interest or penalty attaches thereto, all real property taxes, assessments (including special assessments), water charges, sewer rents, and all other governmental charges and impositions of every kind and nature now or hereafter levied, assessed, or imposed upon or against the Mortgaged Property or any part thereof. Mortgagor shall deliver to the Collateral Agent, upon written request, receipts or other evidence of the payment of such taxes and charges. Notwithstanding the foregoing, Mortgagor shall not be required to pay any tax, assessment, or charge so long as Mortgagor is contesting the validity or amount thereof in good faith by appropriate proceedings diligently pursued, adequate reserves have been established in accordance with GAAP, and the nonpayment of such tax, assessment, or charge does not, in the reasonable judgment of the Collateral Agent, create a material risk that the Mortgaged Property or any interest therein will be sold, forfeited, or lost.
Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent may, at its option, require Mortgagor to deposit with the Collateral Agent, on a monthly basis, an amount equal to one-twelfth (1/12) of the estimated annual real property taxes, assessments, insurance premiums, and other charges related to the Mortgaged Property (the "Escrow Payments"). Such Escrow Payments shall be held by the Collateral Agent in a non-interest-bearing account and shall be applied by the Collateral Agent to the payment of such taxes, assessments, insurance premiums, and charges as and when the same become due and payable.
Section 5.05. Compliance with Laws. Mortgagor shall comply, and shall cause the Mortgaged Property to comply, in all material respects with all applicable laws, statutes, ordinances, rules, regulations, codes, and requirements of every kind and nature, including without limitation (a) all zoning laws and land use regulations, (b) all building codes and construction standards, (c) all environmental laws and regulations, including the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA"), and their state and local counterparts, (d) the Americans with Disabilities Act ("ADA") and all accessibility requirements, (e) all fire and life safety codes, (f) all occupational safety and health regulations, (g) all liquor license regulations and requirements, and (h) all other permits, licenses, certificates, authorizations, and approvals required for the lawful ownership, use, occupancy, management, and operation of the Mortgaged Property as full-service hotel and resort properties. Mortgagor shall not initiate, join in, or consent to any change in any zoning law, private restrictive covenant, or other public or private restriction affecting the Mortgaged Property that would materially and adversely affect the value or use of the Mortgaged Property without the prior written consent of the Collateral Agent.
Section 5.06. Leases. Mortgagor shall not, without the prior written consent of the Collateral Agent (such consent not to be unreasonably withheld, conditioned, or delayed), enter into, materially modify, materially amend, or terminate any material Lease affecting the Mortgaged Property, except as expressly permitted under the Credit Agreement. For purposes of this Section 5.06, a "material Lease" means any Lease that (a) covers more than 5,000 square feet of rentable space, (b) generates annual rental income in excess of $250,000.00, (c) has an initial term (including renewal options) of more than ten (10) years, or (d) is with an affiliate of Mortgagor. Notwithstanding the foregoing, Mortgagor may enter into, modify, and terminate hotel guest agreements, short-term event space bookings, and similar transient occupancy agreements in the ordinary course of hotel operations without the consent of the Collateral Agent. Mortgagor shall enforce the material obligations of each tenant under each Lease and shall not waive any material default by any tenant thereunder.
Section 5.07. No Transfer or Further Encumbrance. Mortgagor shall not sell, convey, assign, transfer, lease (except as permitted under Section 5.06), encumber, pledge, mortgage, hypothecate, or otherwise dispose of (collectively, "Transfer") the Mortgaged Property or any interest therein, whether voluntarily, involuntarily, or by operation of law, except as expressly permitted under the Credit Agreement, including without limitation (a) dispositions of worn-out, obsolete, or surplus personal property in the ordinary course of business, (b) Permitted Liens, and (c) dispositions permitted under the asset sale provisions of the Credit Agreement. Any Transfer in violation of this Section 5.07 shall be void and of no force or effect, and the Collateral Agent shall have no obligation to recognize any purported transferee.
Section 5.08. Environmental Covenants. Mortgagor covenants and agrees as follows with respect to environmental matters:
(a) Mortgagor shall comply, and shall cause the Mortgaged Property to comply, in all material respects with all applicable environmental laws, regulations, and permits;
(b) Mortgagor shall not cause, permit, or suffer the release, emission, discharge, disposal, or storage of any Hazardous Materials on, under, in, or about the Mortgaged Property, except for the use, storage, and disposal of Hazardous Materials in the ordinary course of hotel operations (including cleaning supplies, pool chemicals, pest control products, and similar materials) in compliance with all applicable environmental laws;
(c) Mortgagor shall promptly notify the Collateral Agent in writing of (i) any release or threatened release of Hazardous Materials on, under, or about the Mortgaged Property that is required to be reported to any governmental authority under applicable environmental law, (ii) any receipt by Mortgagor of any notice, demand, claim, or order from any governmental authority or third party relating to any actual or alleged violation of any environmental law with respect to the Mortgaged Property, and (iii) the commencement or threatened commencement of any investigation, remediation, or corrective action with respect to any Hazardous Materials on, under, or about the Mortgaged Property; and
(d) If any release of Hazardous Materials occurs on, under, or about the Mortgaged Property, Mortgagor shall, at its sole cost and expense, promptly take all actions necessary or required by applicable environmental law to investigate, remediate, and clean up such release, in each case to the satisfaction of the applicable governmental authority and in compliance with all applicable environmental laws.
Section 5.09. Financial Covenants Cross-Reference. Without limiting the obligations of the Borrower under the Credit Agreement, Mortgagor acknowledges that the Credit Agreement contains a springing financial maintenance covenant requiring the Borrower to maintain a maximum Total Net Leverage Ratio of not greater than 4.50 to 1.00, tested on the last day of each fiscal quarter on a trailing four-quarter basis, but only when the aggregate revolving credit exposure under the RCF exceeds 35% of the total revolving commitments thereunder as of such test date. Mortgagor further acknowledges that as of the closing date of the Credit Agreement, the Borrower is in pro forma compliance with such financial covenant at a Total Net Leverage Ratio of approximately 2.52 to 1.00, well within the 4.50 to 1.00 maximum permitted. Mortgagor shall not take any action, or fail to take any action, that would cause the Borrower to fail to comply with such financial covenant or any other term or condition of the Credit Agreement.
Section 5.10. Condemnation. Mortgagor shall promptly notify the Collateral Agent in writing of any actual, pending, or threatened condemnation or eminent domain proceeding or taking (whether permanent or temporary) affecting all or any portion of the Mortgaged Property. The Collateral Agent shall have the right, but not the obligation, to participate in any such proceeding and to approve any settlement thereof. All condemnation awards and compensation received by Mortgagor or payable to Mortgagor with respect to the Mortgaged Property shall be applied in accordance with the terms of the Credit Agreement, including, to the extent required, as a mandatory prepayment of the Obligations.
Section 5.11. Estoppel Certificates. Mortgagor shall, within fifteen (15) business days following the reasonable written request of the Collateral Agent, execute and deliver to the Collateral Agent (or cause to be executed and delivered) an estoppel certificate in form and substance reasonably satisfactory to the Collateral Agent, certifying (a) the aggregate outstanding principal amount of the Obligations, (b) the date through which interest has been paid, (c) whether any Event of Default or event that, with the giving of notice or the lapse of time, or both, would constitute an Event of Default, has occurred and is continuing, and (d) such other matters relating to the Mortgaged Property or this Mortgage as the Collateral Agent may reasonably request.
Section 5.12. Alterations. Mortgagor may make alterations, improvements, additions, and renovations to the Mortgaged Property consistent with first-class hotel operations and in compliance with all applicable laws, provided that (a) no structural alteration, demolition, or other modification that would materially reduce the fair market value of the Mortgaged Property shall be made without the prior written consent of the Collateral Agent (such consent not to be unreasonably withheld, conditioned, or delayed), (b) all alterations shall be performed in a good and workmanlike manner, in compliance with all applicable permits and approvals, and shall be completed in a timely manner, and (c) Mortgagor shall not permit any mechanic's lien, materialman's lien, or similar lien to be filed against the Mortgaged Property in connection with any such alteration, except for liens that are bonded or discharged within thirty (30) days of filing.
ARTICLE VI — ASSIGNMENT OF LEASES AND RENTS
Section 6.01. Present Assignment. Mortgagor hereby absolutely, unconditionally, and irrevocably assigns, transfers, conveys, and sets over to the Collateral Agent, for the benefit of the Secured Parties, as additional and collateral security for the payment and performance of the Obligations, all of Mortgagor's right, title, and interest in, to, and under all Leases and all Rents, whether now existing or hereafter arising, together with all security deposits, advance rentals, and other payments held by or payable to Mortgagor under or in connection with such Leases. This assignment is an absolute assignment and not merely the granting of a security interest; provided, however, that so long as no Event of Default has occurred and is continuing, Mortgagor shall have a revocable license from the Collateral Agent to collect, receive, use, and enjoy the Rents in the ordinary course of Mortgagor's business, subject to the terms and conditions of this Mortgage and the Credit Agreement.
Section 6.02. Revocation of License. Upon the occurrence and during the continuance of any Event of Default, the license granted to Mortgagor in Section 6.01 to collect and receive the Rents shall automatically, and without further notice or action, terminate and be revoked. Upon such revocation, the Collateral Agent shall be entitled (but shall not be obligated) to exercise any or all of the following rights and remedies:
(a) to enter upon and take possession of the Mortgaged Property or any part thereof;
(b) to collect, receive, and apply all Rents, whether past due or accruing thereafter;
(c) to demand, sue for, collect, and receive all Rents from any and all tenants, subtenants, licensees, concessionaires, and other occupants of the Mortgaged Property;
(d) to enforce all of the terms and conditions of the Leases and to exercise all rights and remedies of the landlord thereunder;
(e) to apply to any court of competent jurisdiction for the appointment of a receiver to collect the Rents and manage the Mortgaged Property; and
(f) to exercise any other rights and remedies available to the Collateral Agent under this Mortgage, the Credit Agreement, or applicable law.
The exercise of any such right or remedy by the Collateral Agent shall not constitute a cure or waiver of any Event of Default, nor shall it constitute an assumption of any obligations of Mortgagor under any Lease. Each tenant or other obligor under a Lease, upon receipt of written notice from the Collateral Agent that an Event of Default has occurred and that the Rents are to be paid directly to the Collateral Agent, shall be authorized to pay such Rents directly to the Collateral Agent without any obligation to inquire into the existence or nature of such Event of Default or the authority of the Collateral Agent.
Section 6.03. Application of Rents. All Rents collected by the Collateral Agent pursuant to this Article VI shall be applied to the Obligations in the order and manner specified in the Credit Agreement and the Intercreditor Agreement. After deducting therefrom all costs and expenses of collection and management (including reasonable attorneys' fees, receiver's fees, and property management costs), the net proceeds shall be applied: first, to the payment of all costs and expenses incurred by the Collateral Agent in enforcing this Mortgage and the other Loan Documents; second, to the payment of the Obligations in the order of priority specified in the Credit Agreement and the Intercreditor Agreement; and third, any surplus shall be paid to Mortgagor or as otherwise required by applicable law.
Section 6.04. New York Real Property Law Compliance. This assignment of Leases and Rents is made and intended to be an absolute assignment, consistent with and in compliance with Article 9 of the New York Real Property Law ("RPL") and the applicable provisions of the New York Real Property Actions and Proceedings Law ("RPAPL"). To the extent that any court of competent jurisdiction determines that this assignment constitutes a security interest rather than an absolute assignment, the provisions of this Article VI shall be construed to create a first-priority security interest in the Leases and Rents in favor of the Collateral Agent. Mortgagor acknowledges that the Collateral Agent is entitled to all of the rights and remedies of an assignee of rents and leases under Article 9 of the RPL, the RPAPL, and all other applicable provisions of New York law.
ARTICLE VII — EVENTS OF DEFAULT
Section 7.01. Events of Default Under the Credit Agreement. The occurrence of any "Event of Default" as defined in the Credit Agreement shall constitute an Event of Default under this Mortgage. Without limiting the foregoing, the following shall constitute Events of Default under this Mortgage upon their occurrence (or, where applicable, upon the expiration of any notice and cure periods set forth in the Credit Agreement):
(a) Payment Default. Failure by the Borrower or any Guarantor (including Mortgagor) to pay any principal, interest, fee, or other amount payable under the Credit Agreement or any other Loan Document when and as the same shall become due and payable, whether at the stated maturity thereof, at a date fixed for prepayment, by acceleration, or otherwise;
(b) Representation and Warranty Default. Any representation or warranty made or deemed made by the Borrower or any Guarantor in or in connection with the Credit Agreement, any other Loan Document, or any certificate, report, or other document furnished in connection therewith shall prove to have been incorrect in any material respect (or, in the case of representations and warranties qualified by materiality or Material Adverse Effect, in any respect) as of the date when made or deemed made;
(c) Covenant Default. Failure by the Borrower or any Guarantor to observe or perform any covenant, condition, or agreement contained

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