LENDER ACCESSION AGREEMENTS — EXECUTED
$700,000,000 Senior Secured Term Loan B Credit Facility
among
VERIMARK HOSPITALITY GROUP INC.
a Delaware corporation
as Borrower,
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION
as Administrative Agent and Collateral Agent,
and
THE LENDERS PARTY THERETO
Reference: Credit Agreement dated as of July 21, 2022
CUSIP: 92347LAB8
Crescent Harbor Loan Number: CHB-LF-2022-07814
This compilation contains the executed Lender Accession Agreements for each syndicate lender that has acceded to the 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 and Collateral Agent, and the Lenders party thereto. Each agreement is effective as of the date set forth therein.
Prepared by:
Calderwood & Harkness LLP One Liberty Plaza, 52nd Floor New York, New York 10006
Engagement No. 1016-00009
LENDER ACCESSION AGREEMENT NO. 1
Ridgeline Capital Partners, LP
$125,000,000 Term Loan B Commitment
LENDER ACCESSION AGREEMENT
Dated as of July 21, 2022
Reference is hereby made to the Credit Agreement dated as of July 21, 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Verimark Hospitality Group Inc., a Delaware corporation (the "Borrower"), the Guarantors party thereto from time to time, Crescent Harbor Bank, National Association, in its capacity as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent") and in its capacity as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent"), and the several banks and other financial institutions and lenders from time to time party thereto (the "Lenders").
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement. All references to Sections, Articles, Exhibits, and Schedules herein shall refer to such provisions of the Credit Agreement unless the context expressly requires otherwise.
WHEREAS, the Credit Agreement provides that additional lenders may become parties to the Credit Agreement by executing and delivering a Lender Accession Agreement substantially in the form contemplated by Section 2.19 of the Credit Agreement;
WHEREAS, the undersigned (the "Acceding Lender") desires to become a Lender under the Credit Agreement and to assume the obligations and receive the rights of a Lender thereunder;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Accession
Ridgeline Capital Partners, LP, a limited partnership duly organized and validly existing under the laws of the State of Delaware (the "Acceding Lender"), hereby irrevocably and unconditionally agrees to become a party to the Credit Agreement as a "Lender" thereunder, with all the rights and obligations of a Lender as set forth therein and in the other Loan Documents, effective as of the date hereof (the "Accession Date").
The Acceding Lender confirms that it has received a true, correct, and complete copy of the Credit Agreement (including all schedules, exhibits, and annexes thereto), together with copies of all other Loan Documents entered into in connection therewith, including without limitation the Guarantee Agreement dated as of July 21, 2022, the Pledge and Security Agreement dated as of July 21, 2022, the Amended and Restated Intercreditor Agreement dated as of July 21, 2022, and such other documents and information as the Acceding Lender has deemed appropriate to make its own credit analysis and decision to enter into this Lender Accession Agreement. The Acceding Lender acknowledges and agrees that it has independently and without reliance upon the Administrative Agent, any Arranger, any co-syndication agent, any co-documentation agent, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower and the Guarantors and its own decision to enter into this Lender Accession Agreement, and that it will continue to make its own independent credit decisions in taking or not taking action under or in connection with the Credit Agreement and the other Loan Documents.
Section 2. Commitment
The Acceding Lender hereby commits to provide a Term Loan B Commitment in the aggregate principal amount of $125,000,000 (One Hundred Twenty-Five Million Dollars and 00/100), representing a pro rata share of approximately 17.857% of the aggregate $700,000,000 Senior Secured Term Loan B Credit Facility. Such commitment constitutes a Term Loan B Commitment under Article II of the Credit Agreement and shall be subject in all respects to the terms, conditions, and provisions set forth therein, including, without limitation, the conditions precedent to the initial funding of the Term Loans set forth in Section 4.01 of the Credit Agreement.
The Acceding Lender agrees to fund its Term Loan B Commitment on the Closing Date in accordance with the procedures set forth in Article II of the Credit Agreement, by wire transfer of immediately available funds to the account designated by the Administrative Agent, in such amounts and at such times as specified by the Administrative Agent in accordance with the terms of the Credit Agreement.
Section 3. Representations and Warranties of the Acceding Lender
The Acceding Lender hereby represents and warrants to the Administrative Agent, the Collateral Agent, and each other Lender as follows:
(a) Organization and Good Standing. The Acceding Lender is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Acceding Lender has full partnership power and authority to own its properties and to conduct its business as currently conducted.
(b) Power and Authority. The Acceding Lender has full power and authority to execute, deliver, and perform this Lender Accession Agreement and to perform its obligations hereunder and under the Credit Agreement and the other Loan Documents to which it will be a party by virtue of this accession. The execution, delivery, and performance of this Lender Accession Agreement have been duly authorized by all necessary partnership action on the part of the Acceding Lender, including all necessary action of its general partner.
(c) Due Authorization; Enforceability. This Lender Accession Agreement has been duly executed and delivered by the Acceding Lender and constitutes the legal, valid, and binding obligation of the Acceding Lender, enforceable against the Acceding Lender in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally and by general equitable principles (whether enforcement is sought in a proceeding in equity or at law).
(d) No Conflict. The execution, delivery, and performance by the Acceding Lender of this Lender Accession Agreement do not and will not (i) violate or conflict with any provision of the Acceding Lender's certificate of limited partnership, partnership agreement, or other organizational documents, (ii) violate any applicable law, rule, regulation, order, judgment, or decree of any Governmental Authority, or (iii) result in a breach of or default under any material agreement or instrument to which the Acceding Lender is a party or by which it or its assets may be bound.
(e) Eligible Assignee. The Acceding Lender is an "Eligible Assignee" as defined in Section 1.01 of the Credit Agreement. The Acceding Lender is not a Disqualified Lender (as defined in the Credit Agreement).
(f) Sophisticated Institutional Lender. The Acceding Lender is a sophisticated institutional lender that is experienced in evaluating and making, purchasing, or investing in loans and other extensions of credit of the type contemplated by the Credit Agreement. The Acceding Lender has adequate means of obtaining from the Borrower on an ongoing basis information relating to the Borrower, the Guarantors, and their respective subsidiaries and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Lender Accession Agreement and the Credit Agreement and the other Loan Documents.
(g) Non-Reliance. The Acceding Lender has independently and without reliance upon the Administrative Agent, any Arranger, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial condition, and creditworthiness of the Borrower and the Guarantors, and its own decision to enter into this Lender Accession Agreement. The Acceding Lender will continue to make its own independent appraisal of the creditworthiness of the Borrower and the Guarantors so long as any Obligations remain outstanding.
Section 4. Agreement to be Bound
The Acceding Lender hereby agrees, effective as of the Accession Date, to be bound by all of the terms, conditions, covenants, agreements, representations, and obligations applicable to a "Lender" under the Credit Agreement and each of the other Loan Documents, as fully and completely as if the Acceding Lender were an original signatory to the Credit Agreement. Without limiting the generality of the foregoing, the Acceding Lender agrees to be bound by the terms and conditions of the following agreements and instruments, each dated as of July 21, 2022 (as each may be amended, restated, supplemented, or otherwise modified from time to time):
(a) the Guarantee Agreement among the Guarantors and the Collateral Agent;
(b) the Pledge and Security Agreement among the Borrower, the Guarantors, and the Collateral Agent;
(c) the Amended and Restated Intercreditor Agreement among the Administrative Agent, the Collateral Agent, and the other parties thereto; and
(d) each other Loan Document to which the Lenders are a party or by which the Lenders are bound.
The Acceding Lender agrees to fund its Term Loan B Commitment in accordance with Article II of the Credit Agreement and to perform all other obligations required to be performed by a Lender under the Credit Agreement and the other Loan Documents.
Section 5. Notices
All notices, demands, requests, consents, approvals, and other communications required or permitted to be given or made under the Credit Agreement or any other Loan Document to the Acceding Lender shall be sent to the following address (or such other address as the Acceding Lender may hereafter specify in writing to the Administrative Agent and the Borrower):
Ridgeline Capital Partners, LP 399 Park Avenue, 27th Floor New York, New York 10022
Attention: Jerome Alston, Portfolio Manager
Telephone: (212) 555-7140
Email: jalston@ridgelinecapital.com
With a copy to:
Ridgeline Capital Partners, LP 399 Park Avenue, 27th Floor New York, New York 10022
Attention: Operations / Loan Administration
Telephone: (212) 555-7155
Email: loanops@ridgelinecapital.com
Section 6. Tax Forms
The Acceding Lender shall deliver to the Administrative Agent, on or prior to the Accession Date, and from time to time thereafter as reasonably requested by the Administrative Agent or the Borrower, such properly completed and duly executed documentation prescribed by applicable law, or as reasonably requested by the Administrative Agent or the Borrower, as will permit payments to be made to the Acceding Lender under the Credit Agreement and the other Loan Documents without deduction or withholding, or at a reduced rate of deduction or withholding, including, as applicable, (i) a duly completed and executed IRS Form W-9 certifying that the Acceding Lender is exempt from U.S. federal backup withholding tax, or (ii) to the extent the Acceding Lender is not a "United States person" within the meaning of Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the "Code"), such duly completed and executed IRS Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, or W-8IMY, as applicable, together with any required supporting documentation, in each case as required under Section 2.15 of the Credit Agreement.
Section 7. Governing Law; Jurisdiction; Jury Waiver
(a) Governing Law. THIS LENDER ACCESSION AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE, OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) BASED UPON, ARISING OUT OF, OR RELATING TO THIS LENDER ACCESSION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(b) Submission to Jurisdiction. The Acceding Lender hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in the Borough of Manhattan, County of New York, and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Lender Accession Agreement, and the Acceding Lender hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York state court or, to the fullest extent permitted by applicable law, in such United States federal court. The Acceding Lender agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LENDER ACCESSION AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH OF THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LENDER ACCESSION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 7(c).
Section 8. Counterparts
This Lender Accession Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Lender Accession Agreement by facsimile transmission or by electronic mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Lender Accession Agreement to be duly executed and delivered as of the date first above written.
RIDGELINE CAPITAL PARTNERS, LP
By: Ridgeline Capital GP LLC, its general partner
By: ________
Name: Jerome Alston
Title: Portfolio Manager
Date: July 21, 2022
ACKNOWLEDGED AND ACCEPTED:
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, as Administrative Agent
By: ________
Name: Theodore R. Marchetti
Title: Managing Director
Date: July 21, 2022
CONSENTED TO:
VERIMARK HOSPITALITY GROUP INC., as Borrower
By: ________
Name: Renata Haines
Title: Chief Financial Officer
Date: July 21, 2022
LENDER ACCESSION AGREEMENT NO. 2
Beacon Atlantic Credit Fund III
$100,000,000 Term Loan B Commitment
LENDER ACCESSION AGREEMENT
Dated as of July 21, 2022
Reference is hereby made to the Credit Agreement dated as of July 21, 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Verimark Hospitality Group Inc., a Delaware corporation (the "Borrower"), the Guarantors party thereto from time to time, Crescent Harbor Bank, National Association, in its capacity as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent") and in its capacity as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent"), and the several banks and other financial institutions and lenders from time to time party thereto (the "Lenders").
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement. All references to Sections, Articles, Exhibits, and Schedules herein shall refer to such provisions of the Credit Agreement unless the context expressly requires otherwise.
WHEREAS, the Credit Agreement provides that additional lenders may become parties to the Credit Agreement by executing and delivering a Lender Accession Agreement substantially in the form contemplated by Section 2.19 of the Credit Agreement;
WHEREAS, the undersigned (the "Acceding Lender") desires to become a Lender under the Credit Agreement and to assume the obligations and receive the rights of a Lender thereunder;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Accession
Beacon Atlantic Credit Fund III, a limited partnership duly organized and validly existing under the laws of the Cayman Islands (the "Acceding Lender"), hereby irrevocably and unconditionally agrees to become a party to the Credit Agreement as a "Lender" thereunder, with all the rights and obligations of a Lender as set forth therein and in the other Loan Documents, effective as of the date hereof (the "Accession Date").
The Acceding Lender confirms that it has received a true, correct, and complete copy of the Credit Agreement (including all schedules, exhibits, and annexes thereto), together with copies of all other Loan Documents entered into in connection therewith, including without limitation the Guarantee Agreement dated as of July 21, 2022, the Pledge and Security Agreement dated as of July 21, 2022, the Amended and Restated Intercreditor Agreement dated as of July 21, 2022, and such other documents and information as the Acceding Lender has deemed appropriate to make its own credit analysis and decision to enter into this Lender Accession Agreement. The Acceding Lender acknowledges and agrees that it has independently and without reliance upon the Administrative Agent, any Arranger, any co-syndication agent, any co-documentation agent, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower and the Guarantors and its own decision to enter into this Lender Accession Agreement, and that it will continue to make its own independent credit decisions in taking or not taking action under or in connection with the Credit Agreement and the other Loan Documents.
Section 2. Commitment
The Acceding Lender hereby commits to provide a Term Loan B Commitment in the aggregate principal amount of $100,000,000 (One Hundred Million Dollars and 00/100), representing a pro rata share of approximately 14.286% of the aggregate $700,000,000 Senior Secured Term Loan B Credit Facility. Such commitment constitutes a Term Loan B Commitment under Article II of the Credit Agreement and shall be subject in all respects to the terms, conditions, and provisions set forth therein, including, without limitation, the conditions precedent to the initial funding of the Term Loans set forth in Section 4.01 of the Credit Agreement.
The Acceding Lender agrees to fund its Term Loan B Commitment on the Closing Date in accordance with the procedures set forth in Article II of the Credit Agreement, by wire transfer of immediately available funds to the account designated by the Administrative Agent, in such amounts and at such times as specified by the Administrative Agent in accordance with the terms of the Credit Agreement.
Section 3. Representations and Warranties of the Acceding Lender
The Acceding Lender hereby represents and warrants to the Administrative Agent, the Collateral Agent, and each other Lender as follows:
(a) Organization and Good Standing. The Acceding Lender is a limited partnership (exempted limited partnership) duly organized, validly existing, and in good standing under the laws of the Cayman Islands. The Acceding Lender has full partnership power and authority to own its properties and to conduct its business as currently conducted.
(b) Power and Authority. The Acceding Lender has full power and authority to execute, deliver, and perform this Lender Accession Agreement and to perform its obligations hereunder and under the Credit Agreement and the other Loan Documents to which it will be a party by virtue of this accession. The execution, delivery, and performance of this Lender Accession Agreement have been duly authorized by all necessary partnership action on the part of the Acceding Lender, including all necessary action of its general partner and investment manager.
(c) Due Authorization; Enforceability. This Lender Accession Agreement has been duly executed and delivered by the Acceding Lender and constitutes the legal, valid, and binding obligation of the Acceding Lender, enforceable against the Acceding Lender in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally and by general equitable principles (whether enforcement is sought in a proceeding in equity or at law).
(d) No Conflict. The execution, delivery, and performance by the Acceding Lender of this Lender Accession Agreement do not and will not (i) violate or conflict with any provision of the Acceding Lender's exempted limited partnership agreement, constitutional documents, or other organizational documents, (ii) violate any applicable law, rule, regulation, order, judgment, or decree of any Governmental Authority, or (iii) result in a breach of or default under any material agreement or instrument to which the Acceding Lender is a party or by which it or its assets may be bound.
(e) Eligible Assignee. The Acceding Lender is an "Eligible Assignee" as defined in Section 1.01 of the Credit Agreement. The Acceding Lender is not a Disqualified Lender (as defined in the Credit Agreement).
(f) Sophisticated Institutional Lender. The Acceding Lender is a sophisticated institutional lender and credit fund that is experienced in evaluating and making, purchasing, or investing in loans and other extensions of credit of the type contemplated by the Credit Agreement. The Acceding Lender has adequate means of obtaining from the Borrower on an ongoing basis information relating to the Borrower, the Guarantors, and their respective subsidiaries and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Lender Accession Agreement and the Credit Agreement and the other Loan Documents.
(g) Non-Reliance. The Acceding Lender has independently and without reliance upon the Administrative Agent, any Arranger, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial condition, and creditworthiness of the Borrower and the Guarantors, and its own decision to enter into this Lender Accession Agreement. The Acceding Lender will continue to make its own independent appraisal of the creditworthiness of the Borrower and the Guarantors so long as any Obligations remain outstanding.
Section 4. Agreement to be Bound
The Acceding Lender hereby agrees, effective as of the Accession Date, to be bound by all of the terms, conditions, covenants, agreements, representations, and obligations applicable to a "Lender" under the Credit Agreement and each of the other Loan Documents, as fully and completely as if the Acceding Lender were an original signatory to the Credit Agreement. Without limiting the generality of the foregoing, the Acceding Lender agrees to be bound by the terms and conditions of the following agreements and instruments, each dated as of July 21, 2022 (as each may be amended, restated, supplemented, or otherwise modified from time to time):
(a) the Guarantee Agreement among the Guarantors and the Collateral Agent;
(b) the Pledge and Security Agreement among the Borrower, the Guarantors, and the Collateral Agent;
(c) the Amended and Restated Intercreditor Agreement among the Administrative Agent, the Collateral Agent, and the other parties thereto; and
(d) each other Loan Document to which the Lenders are a party or by which the Lenders are bound.
The Acceding Lender agrees to fund its Term Loan B Commitment in accordance with Article II of the Credit Agreement and to perform all other obligations required to be performed by a Lender under the Credit Agreement and the other Loan Documents.
Section 5. Notices
All notices, demands, requests, consents, approvals, and other communications required or permitted to be given or made under the Credit Agreement or any other Loan Document to the Acceding Lender shall be sent to the following address (or such other address as the Acceding Lender may hereafter specify in writing to the Administrative Agent and the Borrower):
Beacon Atlantic Credit Fund III c/o Beacon Atlantic Capital Management LLP 28 Grosvenor Square, 4th Floor London W1K 4QR United Kingdom
Attention: Lina Marchenko, Senior Analyst
Telephone: +44 (0)20 7555 3200
Email: lmarchenko@beaconatlantic.com
With a copy to:
Beacon Atlantic Capital Management LLP 1251 Avenue of the Americas, 38th Floor New York, New York 10020
Attention: Loan Operations
Telephone: (212) 555-4820
Email: loanops@beaconatlantic.com
Section 6. Tax Forms
The Acceding Lender shall deliver to the Administrative Agent, on or prior to the Accession Date, and from time to time thereafter as reasonably requested by the Administrative Agent or the Borrower, such properly completed and duly executed documentation prescribed by applicable law, or as reasonably requested by the Administrative Agent or the Borrower, as will permit payments to be made to the Acceding Lender under the Credit Agreement and the other Loan Documents without deduction or withholding, or at a reduced rate of deduction or withholding. Given the Acceding Lender's organization under the laws of the Cayman Islands, the Acceding Lender shall deliver, as applicable, a duly completed and executed IRS Form W-8BEN-E (or any successor form), together with any required supporting documentation, claiming the benefits of any applicable income tax treaty between the United States and the Cayman Islands, or certifying that the Acceding Lender is not subject to U.S. federal withholding tax under Section 881 of the Code, in each case as required under Section 2.15 of the Credit Agreement.
Section 7. Governing Law; Jurisdiction; Jury Waiver
(a) Governing Law. THIS LENDER ACCESSION AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE, OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) BASED UPON, ARISING OUT OF, OR RELATING TO THIS LENDER ACCESSION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
(b) Submission to Jurisdiction. The Acceding Lender hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York, sitting in the Borough of Manhattan, County of New York, and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Lender Accession Agreement, and the Acceding Lender hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York state court or, to the fullest extent permitted by applicable law, in such United States federal court. The Acceding Lender agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LENDER ACCESSION AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER THEORY). EACH OF THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LENDER ACCESSION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 7(c).
Section 8. Counterparts
This Lender Accession Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Lender Accession Agreement by facsimile transmission or by electronic mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Lender Accession Agreement to be duly executed and delivered as of the date first above written.
BEACON ATLANTIC CREDIT FUND III
By: Beacon Atlantic Capital Management LLP, its investment manager
By: ________
Name: Lina Marchenko
Title: Senior Analyst, Authorized Signatory
Date: July 21, 2022
ACKNOWLEDGED AND ACCEPTED:
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, as Administrative Agent
By: ________
Name: Theodore R. Marchetti
Title: Managing Director
Date: July 21, 2022
CONSENTED TO:
VERIMARK HOSPITALITY GROUP INC., as Borrower
By: ________
Name: Renata Haines
Title: Chief Financial Officer
Date: July 21, 2022
LENDER ACCESSION AGREEMENT NO. 3
Tidewater Institutional Investors, Inc.
$75,000,000 Term Loan B Commitment
LENDER ACCESSION AGREEMENT
Dated as of July 21, 2022
Reference is hereby made to the Credit Agreement dated as of July 21, 2022 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Verimark Hospitality Group Inc., a Delaware corporation (the "Borrower"), the Guarantors party thereto from time to time, Crescent Harbor Bank, National Association, in its capacity as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the "Administrative Agent") and in its capacity as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns in such capacity, the "Collateral Agent"), and the several banks and other financial institutions and lenders from time to time party thereto (the "Lenders").
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement. All references to Sections, Articles, Exhibits, and Schedules herein shall refer to such provisions of the Credit Agreement unless the context expressly requires otherwise.
WHEREAS, the Credit Agreement provides that additional lenders may become parties to the Credit Agreement by executing and delivering a Lender Accession Agreement substantially in the form contemplated by Section 2.19 of the Credit Agreement;
WHEREAS, the undersigned (the "Acceding Lender") desires to become a Lender under the Credit Agreement and to assume the obligations and receive the rights of a Lender thereunder;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Accession
Tidewater Institutional Investors, Inc., a corporation duly organized and validly existing under the laws of the State of Connecticut (the "Acceding Lender"), hereby irrevocably and unconditionally agrees to become a party to the Credit Agreement as a "Lender" thereunder, with all the rights and obligations of a Lender as set forth therein and in the other Loan Documents, effective as of the date hereof (the "Accession Date").
The Acceding Lender confirms that it has received a true, correct, and complete copy of the Credit Agreement (including all schedules, exhibits, and annexes thereto), together with copies of all other Loan Documents entered into in connection therewith, including without limitation the Guarantee Agreement dated as of July 21, 2022, the Pledge and Security Agreement dated as of July 21, 2022, the Amended and Restated Intercreditor Agreement dated as of July 21, 2022, and such other documents and information as the Acceding Lender has deemed appropriate to make its own credit analysis and decision to enter into this Lender Accession Agreement. The Acceding Lender acknowledges and agrees that it has independently and without reliance upon the Administrative Agent, any Arranger, any co-syndication agent, any co-documentation agent, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower and the Guarantors and its own decision to enter into this Lender Accession Agreement, and that it will continue to make its own independent credit decisions in taking or not taking action under or in connection with the Credit Agreement and the other Loan Documents.
Section 2. Commitment
The Acceding Lender hereby commits to provide a Term Loan B Commitment in the aggregate principal amount of $75,000,000 (Seventy-Five Million Dollars and 00/100), representing a pro rata share of approximately 10.714% of the aggregate $700,000,000 Senior Secured Term Loan B Credit Facility. Such commitment constitutes a Term Loan B Commitment under Article II of the Credit Agreement and shall be subject in all respects to the terms, conditions, and provisions set forth therein, including, without limitation, the conditions precedent to the initial funding of the Term Loans set forth in Section 4.01 of the Credit Agreement.
The Acceding Lender agrees to fund its Term Loan B Commitment on the Closing Date in accordance with the procedures set forth in Article II of the Credit Agreement, by wire transfer of immediately available funds to the account designated by the Administrative Agent, in such amounts and at such times as specified by the Administrative Agent in accordance with the terms of the Credit Agreement.
Section 3. Representations and Warranties of the Acceding Lender
The Acceding Lender hereby represents and warrants to the Administrative Agent, the Collateral Agent, and each other Lender as follows:
(a) Organization and Good Standing. The Acceding Lender is a corporation duly organized, validly existing, and in good standing under the laws of the State of Connecticut. The Acceding Lender has full corporate power and authority to own its properties and to conduct its business as currently conducted. The Acceding Lender operates as the institutional investment arm of its parent insurance company and is engaged in the business of making and acquiring loans and other investments in the ordinary course of its business.
(b) Power and Authority. The Acceding Lender has full corporate power and authority to execute, deliver, and perform this Lender Accession Agreement and to perform its obligations hereunder and under the Credit Agreement and the other Loan Documents to which it will be a party by virtue of this accession. The execution, delivery, and performance of this Lender Accession Agreement have been duly authorized by all necessary corporate action on the part of the Acceding Lender, including any required approval by its board of directors or investment committee.
(c) Due Authorization; Enforceability. This Lender Accession Agreement has been duly executed and delivered by the Acceding Lender and constitutes the legal, valid, and binding obligation of the Acceding Lender, enforceable against the Acceding Lender in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally and by general equitable principles (whether enforcement is sought in a proceeding in equity or at law).
(d) No Conflict. The execution, delivery, and performance by the Acceding Lender of this Lender Accession Agreement do not and will not (i) violate or conflict with any provision of the Acceding Lender's certificate of incorporation, bylaws, or other organizational documents, (ii) violate any applicable law, rule, regulation, order, judgment, or decree of any Governmental Authority, or (iii) result in a breach of or default under any material agreement or instrument to which the Acceding Lender is a party or by which it or its assets may be bound.
(e) Eligible Assignee. The Acceding Lender is an "Eligible Assignee" as defined in Section 1.01 of the Credit Agreement. The Acceding Lender is not a Disqualified Lender (as defined in the Credit Agreement).
(f) Sophisticated Institutional Lender. The Acceding Lender is a sophisticated institutional investor and insurance company investment affiliate that is experienced in evaluating and making, purchasing, or investing in loans and other extensions of credit of the type contemplated by the Credit Agreement. The Acceding Lender has adequate means of obtaining from the Borrower on an ongoing basis information relating to the Borrower, the Guarantors, and their respective subsidiaries and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Lender Accession Agreement and the Credit Agreement and the other Loan Documents.
(g) Non-Reliance. The Acceding Lender has independently and without reliance upon the Administrative Agent, any Arranger, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial condition, and creditworthiness of the Borrower and the Guarantors, and its own decision to enter into this Lender Accession Agreement. The Acceding Lender will continue to make its own independent appraisal of the creditworthiness of the Borrower and the Guarantors so long as any Obligations remain outstanding.
Section 4. Agreement to be Bound
The Acceding Lender hereby agrees, effective as of the Accession Date, to be bound by all of the terms, conditions, covenants, agreements, representations, and obligations applicable to a "Lender" under the Credit Agreement and each of the other Loan Documents, as fully and completely as if the Acceding Lender were an original signatory to the Credit Agreement. Without limiting the generality of the foregoing, the Acceding Lender agrees to be bound by the terms and conditions of the following agreements and instruments, each dated as of July 21, 2022 (as each may be amended, restated, supplemented, or otherwise modified from time to time):
(a) the Guarantee Agreement among the Guarantors and the Collateral Agent;
(b) the Pledge and Security Agreement among the Borrower, the Guarantors, and the Collateral Agent;
(c) the Amended and Restated Intercreditor Agreement among the Administrative Agent, the Collateral Agent, and the other parties thereto; and
(d) each other Loan Document to which the Lenders are a party or by which the Lenders are bound.
The Acceding Lender agrees to fund its Term Loan B Commitment in accordance with Article II of the Credit Agreement and to perform all other obligations required to be performed by a Lender under the Credit Agreement and the other Loan Documents.
Section 5. Notices
All notices, demands, requests, consents, approvals, and other communications required or permitted to be given or made under the Credit Agreement or any other Loan Document to the Acceding Lender shall be sent to the following address (or such other address as the Acceding Lender may hereafter specify in writing to the Administrative Agent and the Borrower):
Tidewater Institutional Investors, Inc. 300 Atlantic Street, Suite 400 Stamford, Connecticut 06901
Attention: Douglas Nettles, Head of Private Credit
Telephone: (203) 555-9100
Email: dnettles@tidewaterinvestors.com
With a copy to:
Tidewater Institutional Investors, Inc. 300 Atlantic Street, Suite 400 Stamford, Connecticut 06901
Attention: Loan Administration