BOARD/MANAGER RESOLUTIONS OF GUARANTOR SUBSIDIARIES
IN CONNECTION WITH THE ISSUANCE OF
$500,000,000 AGGREGATE PRINCIPAL AMOUNT OF
8.250% SENIOR NOTES DUE 2031
BY VERIMARK HOSPITALITY GROUP INC.
Closing Deliverable
June 14, 2024
This compilation consists of five (5) separate resolution instruments adopted by the respective governing bodies of each Guarantor subsidiary of Verimark Hospitality Group Inc. in connection with the offering of 8.250% Senior Notes due 2031. Each instrument constitutes an independent corporate or limited liability company action and is compiled herein solely for administrative convenience as a single closing deliverable. Prepared by Calderwood & Harkness LLP, counsel to the Issuer.
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I.
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
OF
VHG PROPERTIES INC.
A Delaware Corporation
Adopted as of June 14, 2024
The undersigned, being all of the members of the Board of Directors (the "Board") of VHG Properties Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Subsidiary"), acting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware (the "DGCL"), which permits any action required or permitted to be taken at any meeting of the Board of Directors to be taken without a meeting if all members of the Board consent thereto in writing, hereby adopt the following recitals and resolutions by unanimous written consent, effective as of the date first set forth above, in lieu of a special meeting of the Board of Directors duly called and held for such purposes:
RECITALS
WHEREAS, the Subsidiary is a wholly owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation ("VHG" or the "Company"), the common stock of which is listed and traded on the Nasdaq Global Select Market under the ticker symbol "VMRK";
WHEREAS, VHG proposes to issue Five Hundred Million Dollars ($500,000,000) in aggregate principal amount of its 8.250% Senior Notes due 2031 (the "Notes") in a private placement transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 144A and Regulation S promulgated thereunder;
WHEREAS, the Notes will be issued pursuant to and governed by an Indenture (the "Indenture") to be dated as of the closing date of the offering, by and among VHG, as issuer, the guarantors party thereto from time to time (collectively, the "Guarantors"), and Fidelitas Trust Company, N.A., a national banking association organized under the laws of the United States, as trustee (the "Trustee");
WHEREAS, in connection with the issuance of the Notes and as a condition to the consummation of the offering, the Subsidiary is required to fully, unconditionally, and irrevocably guarantee all of VHG's obligations under the Notes and the Indenture (such guarantee, the "Guarantee"), on a senior unsecured basis, jointly and severally with each of the other Guarantors;
WHEREAS, in order to evidence the Guarantee and to become a party to the Indenture, the Subsidiary will execute and deliver a Guarantor Joinder Agreement (the "Joinder Agreement") in favor of the Trustee, pursuant to which the Subsidiary will become a Guarantor under the Indenture and the Registration Rights Agreement (as defined below);
WHEREAS, the Notes will be offered and sold by VHG to Kensington Barrow & Co., Ridgeline Capital Markets LLC, and Stonebridge Marvelo Securities Inc. (collectively, the "Initial Purchasers"), pursuant to a Purchase Agreement to be dated as of June 18, 2024 (the "Purchase Agreement"), by and among VHG, the Guarantors, and Kensington Barrow & Co., acting as representative of the Initial Purchasers (the "Representative");
WHEREAS, in connection with the offering, VHG, the Guarantors, and the Initial Purchasers will enter into a Registration Rights Agreement (the "Registration Rights Agreement") pursuant to which VHG and the Guarantors will agree to use commercially reasonable efforts to consummate an exchange offer or, under certain circumstances, file a shelf registration statement with the Securities and Exchange Commission with respect to the Notes and the Guarantees;
WHEREAS, the net proceeds of the offering of the Notes are expected to be approximately Four Hundred Eighty-Three Million Seven Hundred Fifty Thousand Dollars ($483,750,000), after deducting the Initial Purchasers' discount and estimated offering expenses, and such net proceeds will be used primarily to repay approximately Four Hundred Sixty-Seven Million Three Hundred Forty-Two Thousand Eight Hundred Nineteen Dollars and Sixteen Cents ($467,342,819.16) in outstanding principal, together with accrued and unpaid interest and applicable prepayment premium, under VHG's Amended and Restated Credit Agreement, dated as of March 15, 2021, by and among VHG, the subsidiary guarantors party thereto, Greystone National Bank, N.A., as administrative agent, and the lenders party thereto (as amended, restated, supplemented, or otherwise modified from time to time, the "Existing Credit Facility"), with the balance of such net proceeds to be applied to transaction fees, costs, and expenses and for general corporate purposes;
WHEREAS, the Board has reviewed and considered the terms and conditions of the Notes, the Indenture, the Guarantee, the Joinder Agreement, the Purchase Agreement, the Registration Rights Agreement, and all related transaction documents, certificates, and instruments, and has had the opportunity to consult with counsel to VHG and the Subsidiary regarding the foregoing; and
WHEREAS, after due consideration of all relevant factors, the Board has determined that the execution and delivery by the Subsidiary of the Guarantee and the Transaction Documents (as defined below), and the performance by the Subsidiary of its obligations thereunder, are in the best interest of the Subsidiary and will provide direct and indirect benefits to the Subsidiary, including, without limitation, through the refinancing and repayment of the Existing Credit Facility, the enhancement of the Subsidiary's and VHG's capital structure, and the improved financial flexibility of VHG and its subsidiaries as a consolidated enterprise;
DEFINITIONS
For purposes of these resolutions, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Indenture. In addition, the following terms shall have the following meanings:
"Indenture" shall mean the Indenture to be dated as of the closing date, among VHG, the Guarantors, and Fidelitas Trust Company, N.A., as Trustee, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Joinder Agreement" shall mean the Guarantor Joinder Agreement to be executed and delivered by the Subsidiary, substantially in the form reviewed by the Board, pursuant to which the Subsidiary will become a Guarantor under the Indenture and the Registration Rights Agreement.
"Purchase Agreement" shall mean the Purchase Agreement to be dated as of June 18, 2024, among VHG, the Guarantors, and Kensington Barrow & Co., as Representative of the Initial Purchasers (including Ridgeline Capital Markets LLC and Stonebridge Marvelo Securities Inc.).
"Registration Rights Agreement" shall mean the Registration Rights Agreement to be entered into among VHG, the Guarantors, and the Initial Purchasers in connection with the offering of the Notes.
"Transaction Documents" shall mean, collectively, the Indenture, the Joinder Agreement, the Registration Rights Agreement, the Purchase Agreement, and all other certificates, instruments, agreements, notices, and documents executed or delivered in connection with or related to the foregoing, as each may be amended, restated, supplemented, or otherwise modified from time to time.
RESOLUTIONS
NOW, THEREFORE, BE IT:
RESOLVED, that the Subsidiary is hereby authorized, empowered, and directed to guarantee, fully, unconditionally, and irrevocably, the payment and performance of all obligations of VHG under the Notes and the Indenture, on a senior unsecured basis, jointly and severally with each of the other Guarantors, in accordance with Article 10 of the Indenture and the terms and conditions set forth therein, and the Guarantee so provided shall be a continuing guarantee and shall remain in full force and effect until discharged in accordance with the terms of the Indenture;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Guarantor Joinder Agreement, substantially in the form reviewed and considered by the Board (with such changes, additions, or deletions as may be approved by the officers of the Subsidiary executing the same), pursuant to which the Subsidiary shall become a Guarantor under the Indenture and the Registration Rights Agreement, and the execution and delivery of the Joinder Agreement by any authorized officer of the Subsidiary shall be conclusive evidence of the Board's approval thereof;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Indenture, the Registration Rights Agreement, the Joinder Agreement, the Purchase Agreement (to the extent required), and any and all other certificates, instruments, agreements, notices, and documents as may be necessary, appropriate, or advisable in connection with the Guarantee and the transactions contemplated by the Transaction Documents, including, without limitation, officer's certificates, incumbency certificates, and written instructions to the Trustee;
RESOLVED FURTHER, that each of the following officers of the Subsidiary: the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, and any Assistant Treasurer, and any other officer duly elected or appointed by the Board from time to time (each, an "Authorized Officer"), acting singly or together with any one or more other Authorized Officers, is hereby authorized, empowered, and directed to execute and deliver, in the name and on behalf of the Subsidiary, under its corporate seal (if applicable) or otherwise, each of the Transaction Documents and any amendments, restatements, supplements, waivers, consents, or other modifications thereto, with such changes, additions, or deletions from the forms thereof as reviewed by the Board as such Authorized Officer or Authorized Officers may approve, such approval to be conclusively evidenced by such Authorized Officer's or Authorized Officers' execution and delivery thereof;
RESOLVED FURTHER, that the Board hereby approves the terms of the Guarantee, including the obligations to be assumed by the Subsidiary under the Indenture and with respect to the Notes, which Notes shall bear interest at a rate of 8.250% per annum, payable semi-annually in arrears on January 1 and July 1 of each year, commencing January 1, 2025, and shall mature on July 1, 2031, subject to the following optional redemption provisions:
(a) on or after July 1, 2027, at a redemption price equal to 104.125% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(b) on or after July 1, 2028, at a redemption price equal to 102.063% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(c) on or after July 1, 2029, at a redemption price equal to 100.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(d) prior to July 1, 2027, VHG may, at its option, redeem up to 40% of the aggregate principal amount of the Notes originally issued with the net cash proceeds of one or more Equity Offerings (as defined in the Indenture) at a redemption price equal to 108.250% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date (the "Equity Clawback"); and
(e) upon the occurrence of a Change of Control (as defined in the Indenture), each holder of the Notes shall have the right to require VHG to repurchase such holder's Notes at a purchase price equal to 101.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the date of repurchase (the "Change of Control Put");
RESOLVED FURTHER, that all actions heretofore taken by any of the officers, agents, employees, and representatives of the Subsidiary, in the name and on behalf of the Subsidiary, in connection with the negotiation, preparation, execution, and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby, are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Subsidiary;
RESOLVED FURTHER, that each Authorized Officer of the Subsidiary is hereby authorized, empowered, and directed to take any and all such further actions, to execute and deliver any and all such further agreements, certificates, instruments, notices, and other documents, and to pay or cause to be paid all such fees, costs, and expenses, in the name and on behalf of the Subsidiary, as such Authorized Officer may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, the taking of any such action and the execution and delivery of any such documents to be conclusive evidence of the Board's authorization and approval thereof.
IN WITNESS WHEREOF, the undersigned, being all of the members of the Board of Directors of VHG Properties Inc., have executed this Unanimous Written Consent as of June 14, 2024, effective as of the date first set forth above. This Unanimous Written Consent may be executed in one or more 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 to this Consent by facsimile or electronic transmission (including in .pdf format) shall be effective as delivery of a manually executed counterpart.
VHG PROPERTIES INC. BOARD OF DIRECTORS
By: ________
Name: David K. Moretti
Title: Director
By: ________
Name: Sandra L. Choi
Title: Director
By: ________
Name: Richard A. Brennan
Title: Director
Date: June 14, 2024
II.
UNANIMOUS WRITTEN CONSENT
OF THE MANAGING MEMBER(S)
OF
VERIMARK RESORT HOLDINGS LLC
A Delaware Limited Liability Company
Adopted as of June 14, 2024
The undersigned, being all of the managing member(s) (the "Managing Members") of Verimark Resort Holdings LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the "Subsidiary"), acting pursuant to the Amended and Restated Limited Liability Company Agreement of the Subsidiary, dated as of September 8, 2019 (as amended, supplemented, or otherwise modified from time to time, the "LLC Agreement"), and Section 18-404 of the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.) (the "DLLCA"), which permits any action required or permitted to be taken at a meeting of the members or managers to be taken without a meeting if a consent in writing setting forth the action so taken is signed by the members or managers having not less than the minimum number of votes that would be necessary to authorize such action at a meeting, hereby adopt the following recitals and resolutions by unanimous written consent, effective as of the date first set forth above:
RECITALS
WHEREAS, the Subsidiary is a wholly owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation ("VHG" or the "Company"), the common stock of which is listed and traded on the Nasdaq Global Select Market under the ticker symbol "VMRK," and the Subsidiary holds VHG's resort property portfolio, consisting of interests in thirteen (13) resort properties located in eight (8) states;
WHEREAS, VHG proposes to issue Five Hundred Million Dollars ($500,000,000) in aggregate principal amount of its 8.250% Senior Notes due 2031 (the "Notes") in a private placement transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 144A and Regulation S promulgated thereunder;
WHEREAS, the Notes will be issued pursuant to and governed by an Indenture (the "Indenture") to be dated as of the closing date of the offering, by and among VHG, as issuer, the guarantors party thereto from time to time (collectively, the "Guarantors"), and Fidelitas Trust Company, N.A., a national banking association organized under the laws of the United States, as trustee (the "Trustee");
WHEREAS, in connection with the issuance of the Notes and as a condition to the consummation of the offering, the Subsidiary is required to fully, unconditionally, and irrevocably guarantee all of VHG's obligations under the Notes and the Indenture (such guarantee, the "Guarantee"), on a senior unsecured basis, jointly and severally with each of the other Guarantors;
WHEREAS, in order to evidence the Guarantee and to become a party to the Indenture, the Subsidiary will execute and deliver a Guarantor Joinder Agreement (the "Joinder Agreement") in favor of the Trustee, pursuant to which the Subsidiary will become a Guarantor under the Indenture and the Registration Rights Agreement (as defined below);
WHEREAS, the Notes will be offered and sold by VHG to the Initial Purchasers pursuant to a Purchase Agreement to be dated as of June 18, 2024 (the "Purchase Agreement"), by and among VHG, the Guarantors, and Kensington Barrow & Co., acting as representative of the Initial Purchasers (the "Representative"), with the Initial Purchasers consisting of Kensington Barrow & Co., Ridgeline Capital Markets LLC, and Stonebridge Marvelo Securities Inc.;
WHEREAS, in connection with the offering, VHG, the Guarantors, and the Initial Purchasers will enter into a Registration Rights Agreement (the "Registration Rights Agreement") pursuant to which VHG and the Guarantors will agree to use commercially reasonable efforts to consummate an exchange offer or, under certain circumstances, file a shelf registration statement with the Securities and Exchange Commission with respect to the Notes and the Guarantees;
WHEREAS, the net proceeds of the offering of the Notes are expected to be approximately Four Hundred Eighty-Three Million Seven Hundred Fifty Thousand Dollars ($483,750,000), after deducting the Initial Purchasers' discount and estimated offering expenses, and such net proceeds will be used primarily to repay approximately Four Hundred Sixty-Seven Million Three Hundred Forty-Two Thousand Eight Hundred Nineteen Dollars and Sixteen Cents ($467,342,819.16) in outstanding principal (as of April 1, 2024), together with accrued and unpaid interest and applicable prepayment premium, under VHG's Amended and Restated Credit Agreement, dated as of March 15, 2021, by and among VHG, the subsidiary guarantors party thereto, Greystone National Bank, N.A., as administrative agent, and the lenders party thereto (as amended, restated, supplemented, or otherwise modified from time to time, the "Existing Credit Facility"), with the balance of such net proceeds to be applied to transaction fees, costs, and expenses and for general corporate purposes;
WHEREAS, the Managing Members have reviewed and considered the terms and conditions of the Notes, the Indenture, the Guarantee, the Joinder Agreement, the Purchase Agreement, the Registration Rights Agreement, and all related transaction documents, certificates, and instruments, and have had the opportunity to consult with counsel to VHG and the Subsidiary regarding the foregoing; and
WHEREAS, after due consideration of all relevant factors, the Managing Members have determined that the execution and delivery by the Subsidiary of the Guarantee and the Transaction Documents (as defined below), and the performance by the Subsidiary of its obligations thereunder, are in the best interest of the Subsidiary and will provide direct and indirect benefits to the Subsidiary, including, without limitation, through the refinancing and repayment of the Existing Credit Facility (under which the Subsidiary is a subsidiary guarantor), the reduction of the Subsidiary's and VHG's aggregate debt service costs, and the improved financial flexibility of VHG and its subsidiaries as a consolidated enterprise;
DEFINITIONS
For purposes of these resolutions, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Indenture. The Indenture, the Joinder Agreement, the Registration Rights Agreement, the Purchase Agreement, and all other certificates, instruments, agreements, notices, and documents executed or delivered in connection with or related to the foregoing, as each may be amended, restated, supplemented, or otherwise modified from time to time, are referred to collectively herein as the "Transaction Documents."
RESOLUTIONS
NOW, THEREFORE, BE IT:
RESOLVED, that the Subsidiary is hereby authorized, empowered, and directed to guarantee, fully, unconditionally, and irrevocably, the payment and performance of all obligations of VHG under the Notes and the Indenture, on a senior unsecured basis, jointly and severally with each of the other Guarantors, in accordance with Article 10 of the Indenture and the terms and conditions set forth therein, and the Guarantee so provided shall be a continuing guarantee and shall remain in full force and effect until discharged in accordance with the terms of the Indenture;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Guarantor Joinder Agreement, substantially in the form reviewed and considered by the Managing Members (with such changes, additions, or deletions as may be approved by the authorized persons of the Subsidiary executing the same), pursuant to which the Subsidiary shall become a Guarantor under the Indenture and the Registration Rights Agreement, and the execution and delivery of the Joinder Agreement by any Authorized Person (as defined below) of the Subsidiary shall be conclusive evidence of the Managing Members' approval thereof;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Indenture, the Registration Rights Agreement, the Joinder Agreement, the Purchase Agreement (to the extent required), and any and all other certificates, instruments, agreements, notices, and documents as may be necessary, appropriate, or advisable in connection with the Guarantee and the transactions contemplated by the Transaction Documents, including, without limitation, officer's certificates, incumbency certificates, and written instructions to the Trustee;
RESOLVED FURTHER, that each of the following authorized persons of the Subsidiary: any manager, any officer (including the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, and any Assistant Treasurer), and any other individual designated by the Managing Members from time to time (each, an "Authorized Person"), acting singly or together with any one or more other Authorized Persons, is hereby authorized, empowered, and directed to execute and deliver, in the name and on behalf of the Subsidiary, each of the Transaction Documents and any amendments, restatements, supplements, waivers, consents, or other modifications thereto, with such changes, additions, or deletions from the forms thereof as reviewed by the Managing Members as such Authorized Person or Authorized Persons may approve, such approval to be conclusively evidenced by such Authorized Person's or Authorized Persons' execution and delivery thereof;
RESOLVED FURTHER, that the Managing Members hereby approve the terms of the Guarantee, including the obligations to be assumed by the Subsidiary under the Indenture and with respect to the Notes, which Notes shall bear interest at a rate of 8.250% per annum, payable semi-annually in arrears on January 1 and July 1 of each year, commencing January 1, 2025, and shall mature on July 1, 2031, subject to the following optional redemption provisions:
(a) on or after July 1, 2027, at a redemption price equal to 104.125% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(b) on or after July 1, 2028, at a redemption price equal to 102.063% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(c) on or after July 1, 2029, at a redemption price equal to 100.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(d) prior to July 1, 2027, VHG may, at its option, redeem up to 40% of the aggregate principal amount of the Notes originally issued with the net cash proceeds of one or more Equity Offerings (as defined in the Indenture) at a redemption price equal to 108.250% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date (the "Equity Clawback"); and
(e) upon the occurrence of a Change of Control (as defined in the Indenture), each holder of the Notes shall have the right to require VHG to repurchase such holder's Notes at a purchase price equal to 101.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the date of repurchase (the "Change of Control Put");
RESOLVED FURTHER, that all actions heretofore taken by any of the managers, officers, agents, employees, and representatives of the Subsidiary, in the name and on behalf of the Subsidiary, in connection with the negotiation, preparation, execution, and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby, are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Subsidiary;
RESOLVED FURTHER, that each Authorized Person of the Subsidiary is hereby authorized, empowered, and directed to take any and all such further actions, to execute and deliver any and all such further agreements, certificates, instruments, notices, and other documents, and to pay or cause to be paid all such fees, costs, and expenses, in the name and on behalf of the Subsidiary, as such Authorized Person may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, the taking of any such action and the execution and delivery of any such documents to be conclusive evidence of the Managing Members' authorization and approval thereof.
IN WITNESS WHEREOF, the undersigned, being all of the managing member(s) of Verimark Resort Holdings LLC, have executed this Unanimous Written Consent as of June 14, 2024, effective as of the date first set forth above. This Unanimous Written Consent may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
VERIMARK RESORT HOLDINGS LLC MANAGING MEMBER(S)
VERIMARK HOSPITALITY GROUP INC., as Sole Managing Member
By: ________
Name: David K. Moretti
Title: Executive Vice President, General Counsel and Secretary
Date: June 14, 2024
III.
UNANIMOUS WRITTEN CONSENT
OF THE MANAGING MEMBER(S)
OF
BAYSHORE HOTEL MANAGEMENT LLC
A Florida Limited Liability Company
Adopted as of June 14, 2024
The undersigned, being all of the managing member(s) (the "Managing Members") of Bayshore Hotel Management LLC, a limited liability company duly organized and existing under the laws of the State of Florida (the "Subsidiary"), acting pursuant to the Amended and Restated Limited Liability Company Agreement of the Subsidiary, dated as of February 22, 2020 (as amended, supplemented, or otherwise modified from time to time, the "LLC Agreement"), and Section 605.04074 of the Florida Revised Limited Liability Company Act (Fla. Stat. § 605.0101 et seq.) (the "FRLLCA"), which permits any action required or permitted to be taken at a meeting of the members or managers to be taken without a meeting if a consent in writing setting forth the action so taken is signed by members or managers having not less than the minimum number of votes that would be necessary to authorize such action at a meeting, hereby adopt the following recitals and resolutions by unanimous written consent, effective as of the date first set forth above:
RECITALS
WHEREAS, the Subsidiary is a wholly owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation ("VHG" or the "Company"), the common stock of which is listed and traded on the Nasdaq Global Select Market under the ticker symbol "VMRK," and the Subsidiary serves as VHG's hotel management and operations subsidiary, providing management, operational, and advisory services to hotel properties owned or leased by VHG and its affiliates;
WHEREAS, VHG proposes to issue Five Hundred Million Dollars ($500,000,000) in aggregate principal amount of its 8.250% Senior Notes due 2031 (the "Notes") in a private placement transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 144A and Regulation S promulgated thereunder;
WHEREAS, the Notes will be issued pursuant to and governed by an Indenture (the "Indenture") to be dated as of the closing date of the offering, by and among VHG, as issuer, the guarantors party thereto from time to time (collectively, the "Guarantors"), and Fidelitas Trust Company, N.A., a national banking association organized under the laws of the United States, as trustee (the "Trustee");
WHEREAS, in connection with the issuance of the Notes and as a condition to the consummation of the offering, the Subsidiary is required to fully, unconditionally, and irrevocably guarantee all of VHG's obligations under the Notes and the Indenture (such guarantee, the "Guarantee"), on a senior unsecured basis, jointly and severally with each of the other Guarantors;
WHEREAS, in order to evidence the Guarantee and to become a party to the Indenture, the Subsidiary will execute and deliver a Guarantor Joinder Agreement (the "Joinder Agreement") in favor of the Trustee, pursuant to which the Subsidiary will become a Guarantor under the Indenture and the Registration Rights Agreement (as defined below);
WHEREAS, the Notes will be offered and sold by VHG to Kensington Barrow & Co., Ridgeline Capital Markets LLC, and Stonebridge Marvelo Securities Inc. (collectively, the "Initial Purchasers"), pursuant to a Purchase Agreement to be dated as of June 18, 2024 (the "Purchase Agreement"), by and among VHG, the Guarantors, and Kensington Barrow & Co., acting as representative of the Initial Purchasers (the "Representative");
WHEREAS, in connection with the offering, VHG, the Guarantors, and the Initial Purchasers will enter into a Registration Rights Agreement (the "Registration Rights Agreement") pursuant to which VHG and the Guarantors will agree to use commercially reasonable efforts to consummate an exchange offer or, under certain circumstances, file a shelf registration statement with the Securities and Exchange Commission with respect to the Notes and the Guarantees;
WHEREAS, the net proceeds of the offering of the Notes are expected to be approximately Four Hundred Eighty-Three Million Seven Hundred Fifty Thousand Dollars ($483,750,000), after deducting the Initial Purchasers' discount and estimated offering expenses, and such net proceeds will be used primarily to repay approximately Four Hundred Sixty-Seven Million Three Hundred Forty-Two Thousand Eight Hundred Nineteen Dollars and Sixteen Cents ($467,342,819.16) in outstanding principal, together with accrued and unpaid interest and applicable prepayment premium, under VHG's Amended and Restated Credit Agreement, dated as of March 15, 2021, by and among VHG, the subsidiary guarantors party thereto, Greystone National Bank, N.A., as administrative agent, and the lenders party thereto (as amended, restated, supplemented, or otherwise modified from time to time, the "Existing Credit Facility"), with the balance of such net proceeds to be applied to transaction fees, costs, and expenses and for general corporate purposes;
WHEREAS, the Managing Members have reviewed and considered the terms and conditions of the Notes, the Indenture, the Guarantee, the Joinder Agreement, the Purchase Agreement, the Registration Rights Agreement, and all related transaction documents, certificates, and instruments, and have had the opportunity to consult with counsel to VHG and the Subsidiary regarding the foregoing; and
WHEREAS, after due consideration of all relevant factors, the Managing Members have determined that the execution and delivery by the Subsidiary of the Guarantee and the Transaction Documents (as defined below), and the performance by the Subsidiary of its obligations thereunder, are in the best interest of the Subsidiary and will provide direct and indirect benefits to the Subsidiary, including, without limitation, through the refinancing and repayment of the Existing Credit Facility, the reduction of consolidated debt service obligations, the preservation and enhancement of the Subsidiary's management fee income stream from properties owned by VHG and its affiliates, and the improved financial flexibility of VHG and its subsidiaries as a consolidated enterprise;
DEFINITIONS
For purposes of these resolutions, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Indenture. The Indenture, the Joinder Agreement, the Registration Rights Agreement, the Purchase Agreement, and all other certificates, instruments, agreements, notices, and documents executed or delivered in connection with or related to the foregoing, as each may be amended, restated, supplemented, or otherwise modified from time to time, are referred to collectively herein as the "Transaction Documents."
RESOLUTIONS
NOW, THEREFORE, BE IT:
RESOLVED, that the Subsidiary is hereby authorized, empowered, and directed to guarantee, fully, unconditionally, and irrevocably, the payment and performance of all obligations of VHG under the Notes and the Indenture, on a senior unsecured basis, jointly and severally with each of the other Guarantors, in accordance with Article 10 of the Indenture and the terms and conditions set forth therein, and the Guarantee so provided shall be a continuing guarantee and shall remain in full force and effect until discharged in accordance with the terms of the Indenture;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Guarantor Joinder Agreement, substantially in the form reviewed and considered by the Managing Members (with such changes, additions, or deletions as may be approved by the authorized persons of the Subsidiary executing the same), pursuant to which the Subsidiary shall become a Guarantor under the Indenture and the Registration Rights Agreement, and the execution and delivery of the Joinder Agreement by any Authorized Person (as defined below) of the Subsidiary shall be conclusive evidence of the Managing Members' approval thereof;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Indenture, the Registration Rights Agreement, the Joinder Agreement, the Purchase Agreement (to the extent required), and any and all other certificates, instruments, agreements, notices, and documents as may be necessary, appropriate, or advisable in connection with the Guarantee and the transactions contemplated by the Transaction Documents, including, without limitation, officer's certificates, incumbency certificates, and written instructions to the Trustee;
RESOLVED FURTHER, that each of the following authorized persons of the Subsidiary: any manager, any officer (including the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, and any Assistant Treasurer), and any other individual designated by the Managing Members from time to time (each, an "Authorized Person"), acting singly or together with any one or more other Authorized Persons, is hereby authorized, empowered, and directed to execute and deliver, in the name and on behalf of the Subsidiary, each of the Transaction Documents and any amendments, restatements, supplements, waivers, consents, or other modifications thereto, with such changes, additions, or deletions from the forms thereof as reviewed by the Managing Members as such Authorized Person or Authorized Persons may approve, such approval to be conclusively evidenced by such Authorized Person's or Authorized Persons' execution and delivery thereof;
RESOLVED FURTHER, that the Managing Members hereby approve the terms of the Guarantee, including the obligations to be assumed by the Subsidiary under the Indenture and with respect to the Notes, which Notes shall bear interest at a rate of 8.250% per annum, payable semi-annually in arrears on January 1 and July 1 of each year, commencing January 1, 2025, and shall mature on July 1, 2031, subject to the following optional redemption provisions:
(a) on or after July 1, 2027, at a redemption price equal to 104.125% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(b) on or after July 1, 2028, at a redemption price equal to 102.063% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(c) on or after July 1, 2029, at a redemption price equal to 100.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(d) prior to July 1, 2027, VHG may, at its option, redeem up to 40% of the aggregate principal amount of the Notes originally issued with the net cash proceeds of one or more Equity Offerings (as defined in the Indenture) at a redemption price equal to 108.250% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date (the "Equity Clawback"); and
(e) upon the occurrence of a Change of Control (as defined in the Indenture), each holder of the Notes shall have the right to require VHG to repurchase such holder's Notes at a purchase price equal to 101.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the date of repurchase (the "Change of Control Put");
RESOLVED FURTHER, that all actions heretofore taken by any of the managers, officers, agents, employees, and representatives of the Subsidiary, in the name and on behalf of the Subsidiary, in connection with the negotiation, preparation, execution, and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby, are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Subsidiary;
RESOLVED FURTHER, that each Authorized Person of the Subsidiary is hereby authorized, empowered, and directed to take any and all such further actions, to execute and deliver any and all such further agreements, certificates, instruments, notices, and other documents, and to pay or cause to be paid all such fees, costs, and expenses, in the name and on behalf of the Subsidiary, as such Authorized Person may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, the taking of any such action and the execution and delivery of any such documents to be conclusive evidence of the Managing Members' authorization and approval thereof.
IN WITNESS WHEREOF, the undersigned, being all of the managing member(s) of Bayshore Hotel Management LLC, have executed this Unanimous Written Consent as of June 14, 2024, effective as of the date first set forth above. This Unanimous Written Consent may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
BAYSHORE HOTEL MANAGEMENT LLC MANAGING MEMBER(S)
VERIMARK HOSPITALITY GROUP INC., as Sole Managing Member
By: ________
Name: David K. Moretti
Title: Executive Vice President, General Counsel and Secretary
Date: June 14, 2024
IV.
UNANIMOUS WRITTEN CONSENT
OF THE MANAGING MEMBER(S)
OF
VERIMARK CAPITAL HOLDINGS LLC
A Delaware Limited Liability Company
Adopted as of June 14, 2024
The undersigned, being all of the managing member(s) (the "Managing Members") of Verimark Capital Holdings LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the "Subsidiary"), acting pursuant to the Limited Liability Company Agreement of the Subsidiary, dated as of November 3, 2018 (as amended, supplemented, or otherwise modified from time to time, the "LLC Agreement"), and Section 18-404 of the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.) (the "DLLCA"), which permits any action required or permitted to be taken at a meeting of the members or managers to be taken without a meeting if a consent in writing setting forth the action so taken is signed by the members or managers having not less than the minimum number of votes that would be necessary to authorize such action at a meeting, hereby adopt the following recitals and resolutions by unanimous written consent, effective as of the date first set forth above:
RECITALS
WHEREAS, the Subsidiary is a wholly owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation ("VHG" or the "Company"), the common stock of which is listed and traded on the Nasdaq Global Select Market under the ticker symbol "VMRK," and the Subsidiary serves as an intermediate holding company within the VHG corporate structure, holding equity interests in certain of VHG's operating subsidiaries;
WHEREAS, VHG proposes to issue Five Hundred Million Dollars ($500,000,000) in aggregate principal amount of its 8.250% Senior Notes due 2031 (the "Notes") in a private placement transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 144A and Regulation S promulgated thereunder;
WHEREAS, the Notes will be issued pursuant to and governed by an Indenture (the "Indenture") to be dated as of the closing date of the offering, by and among VHG, as issuer, the guarantors party thereto from time to time (collectively, the "Guarantors"), and Fidelitas Trust Company, N.A., a national banking association organized under the laws of the United States, as trustee (the "Trustee");
WHEREAS, in connection with the issuance of the Notes and as a condition to the consummation of the offering, the Subsidiary is required to fully, unconditionally, and irrevocably guarantee all of VHG's obligations under the Notes and the Indenture (such guarantee, the "Guarantee"), on a senior unsecured basis, jointly and severally with each of the other Guarantors;
WHEREAS, in order to evidence the Guarantee and to become a party to the Indenture, the Subsidiary will execute and deliver a Guarantor Joinder Agreement (the "Joinder Agreement") in favor of the Trustee, pursuant to which the Subsidiary will become a Guarantor under the Indenture and the Registration Rights Agreement (as defined below);
WHEREAS, the Notes will be offered and sold by VHG to Kensington Barrow & Co., Ridgeline Capital Markets LLC, and Stonebridge Marvelo Securities Inc. (collectively, the "Initial Purchasers"), pursuant to a Purchase Agreement to be dated as of June 18, 2024 (the "Purchase Agreement"), by and among VHG, the Guarantors, and Kensington Barrow & Co., acting as representative of the Initial Purchasers (the "Representative");
WHEREAS, in connection with the offering, VHG, the Guarantors, and the Initial Purchasers will enter into a Registration Rights Agreement (the "Registration Rights Agreement") pursuant to which VHG and the Guarantors will agree to use commercially reasonable efforts to consummate an exchange offer or, under certain circumstances, file a shelf registration statement with the Securities and Exchange Commission with respect to the Notes and the Guarantees;
WHEREAS, the net proceeds of the offering of the Notes are expected to be approximately Four Hundred Eighty-Three Million Seven Hundred Fifty Thousand Dollars ($483,750,000), after deducting the Initial Purchasers' discount and estimated offering expenses, and such net proceeds will be used primarily to repay approximately Four Hundred Sixty-Seven Million Three Hundred Forty-Two Thousand Eight Hundred Nineteen Dollars and Sixteen Cents ($467,342,819.16) in outstanding principal, together with accrued and unpaid interest and applicable prepayment premium, under VHG's Amended and Restated Credit Agreement, dated as of March 15, 2021, by and among VHG, the subsidiary guarantors party thereto, Greystone National Bank, N.A., as administrative agent, and the lenders party thereto (as amended, restated, supplemented, or otherwise modified from time to time, the "Existing Credit Facility"), with the balance of such net proceeds to be applied to transaction fees, costs, and expenses and for general corporate purposes;
WHEREAS, the Managing Members have reviewed and considered the terms and conditions of the Notes, the Indenture, the Guarantee, the Joinder Agreement, the Purchase Agreement, the Registration Rights Agreement, and all related transaction documents, certificates, and instruments, and have had the opportunity to consult with counsel to VHG and the Subsidiary regarding the foregoing; and
WHEREAS, after due consideration of all relevant factors, the Managing Members have determined that the execution and delivery by the Subsidiary of the Guarantee and the Transaction Documents (as defined below), and the performance by the Subsidiary of its obligations thereunder, are in the best interest of the Subsidiary and will provide direct and indirect benefits to the Subsidiary, including, without limitation, through the refinancing and repayment of the Existing Credit Facility, the preservation and enhancement of the value of the equity interests held by the Subsidiary in VHG's operating subsidiaries, and the improved financial flexibility of VHG and its subsidiaries as a consolidated enterprise;
DEFINITIONS
For purposes of these resolutions, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Indenture. The Indenture, the Joinder Agreement, the Registration Rights Agreement, the Purchase Agreement, and all other certificates, instruments, agreements, notices, and documents executed or delivered in connection with or related to the foregoing, as each may be amended, restated, supplemented, or otherwise modified from time to time, are referred to collectively herein as the "Transaction Documents."
RESOLUTIONS
NOW, THEREFORE, BE IT:
RESOLVED, that the Subsidiary is hereby authorized, empowered, and directed to guarantee, fully, unconditionally, and irrevocably, the payment and performance of all obligations of VHG under the Notes and the Indenture, on a senior unsecured basis, jointly and severally with each of the other Guarantors, in accordance with Article 10 of the Indenture and the terms and conditions set forth therein, and the Guarantee so provided shall be a continuing guarantee and shall remain in full force and effect until discharged in accordance with the terms of the Indenture;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Guarantor Joinder Agreement, substantially in the form reviewed and considered by the Managing Members (with such changes, additions, or deletions as may be approved by the authorized persons of the Subsidiary executing the same), pursuant to which the Subsidiary shall become a Guarantor under the Indenture and the Registration Rights Agreement, and the execution and delivery of the Joinder Agreement by any Authorized Person (as defined below) of the Subsidiary shall be conclusive evidence of the Managing Members' approval thereof;
RESOLVED FURTHER, that the Subsidiary is hereby authorized, empowered, and directed to execute and deliver the Indenture, the Registration Rights Agreement, the Joinder Agreement, the Purchase Agreement (to the extent required), and any and all other certificates, instruments, agreements, notices, and documents as may be necessary, appropriate, or advisable in connection with the Guarantee and the transactions contemplated by the Transaction Documents, including, without limitation, officer's certificates, incumbency certificates, and written instructions to the Trustee;
RESOLVED FURTHER, that each of the following authorized persons of the Subsidiary: any manager, any officer (including the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, and any Assistant Treasurer), and any other individual designated by the Managing Members from time to time (each, an "Authorized Person"), acting singly or together with any one or more other Authorized Persons, is hereby authorized, empowered, and directed to execute and deliver, in the name and on behalf of the Subsidiary, each of the Transaction Documents and any amendments, restatements, supplements, waivers, consents, or other modifications thereto, with such changes, additions, or deletions from the forms thereof as reviewed by the Managing Members as such Authorized Person or Authorized Persons may approve, such approval to be conclusively evidenced by such Authorized Person's or Authorized Persons' execution and delivery thereof;
RESOLVED FURTHER, that the Managing Members hereby approve the terms of the Guarantee, including the obligations to be assumed by the Subsidiary under the Indenture and with respect to the Notes, which Notes shall bear interest at a rate of 8.250% per annum, payable semi-annually in arrears on January 1 and July 1 of each year, commencing January 1, 2025, and shall mature on July 1, 2031, subject to the following optional redemption provisions:
(a) on or after July 1, 2027, at a redemption price equal to 104.125% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(b) on or after July 1, 2028, at a redemption price equal to 102.063% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(c) on or after July 1, 2029, at a redemption price equal to 100.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date;
(d) prior to July 1, 2027, VHG may, at its option, redeem up to 40% of the aggregate principal amount of the Notes originally issued with the net cash proceeds of one or more Equity Offerings (as defined in the Indenture) at a redemption price equal to 108.250% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the redemption date (the "Equity Clawback"); and
(e) upon the occurrence of a Change of Control (as defined in the Indenture), each holder of the Notes shall have the right to require VHG to repurchase such holder's Notes at a purchase price equal to 101.000% of the principal amount thereof, plus accrued and unpaid interest to, but excluding, the date of repurchase (the "Change of Control Put");
RESOLVED FURTHER, that all actions heretofore taken by any of the managers, officers, agents, employees, and representatives of the Subsidiary, in the name and on behalf of the Subsidiary, in connection with the negotiation, preparation, execution, and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby, are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Subsidiary;
RESOLVED FURTHER, that each Authorized Person of the Subsidiary is hereby authorized, empowered, and directed to take any and all such further actions, to execute and deliver any and all such further agreements, certificates, instruments, notices, and other documents, and to pay or cause to be paid all such fees, costs, and expenses, in the name and on behalf of the Subsidiary, as such Authorized Person may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, the taking of any such action and the execution and delivery of any such documents to be conclusive evidence of the Managing Members' authorization and approval thereof.
IN WITNESS WHEREOF, the undersigned, being all of the managing member(s) of Verimark Capital Holdings LLC, have executed this Unanimous Written Consent as of June 14, 2024, effective as of the date first set forth above. This Unanimous Written Consent may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
VERIMARK CAPITAL HOLDINGS LLC MANAGING MEMBER(S)
VERIMARK HOSPITALITY GROUP INC., as Sole Managing Member
By: ________
Name: David K. Moretti
Title: Executive Vice President, General Counsel and Secretary
Date: June 14, 2024
V.
UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
OF
PINNACLE LODGING ENTERPRISES INC.
A Delaware Corporation
Adopted as of June 14, 2024
The undersigned, being all of the members of the Board of Directors (the "Board") of Pinnacle Lodging Enterprises Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Subsidiary"), acting pursuant to Section 141(f) of the General Corporation Law of the State of Delaware (the "DGCL"), which permits any action required or permitted to be taken at any meeting of the Board of Directors to be taken without a meeting if all members of the Board consent thereto in writing, hereby adopt the following recitals and resolutions by unanimous written consent, effective as of the date first set forth above, in lieu of a special meeting of the Board of Directors duly called and held for such purposes:
RECITALS
WHEREAS, the Subsidiary is a wholly owned subsidiary of Verimark Hospitality Group Inc., a Delaware corporation ("VHG" or the "Company"), the common stock of which is listed and traded on the Nasdaq Global Select Market under the ticker symbol "VMRK," and the Subsidiary was acquired by VHG in connection with VHG's acquisition of the Pinnacle Lodging brand portfolio and operates as an acquired hotel brand subsidiary within the VHG family of companies;
WHEREAS, VHG proposes to issue Five Hundred Million Dollars ($500,000,000) in aggregate principal amount of its 8.250% Senior Notes due 2031 (the "Notes") in a private placement transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to Rule 144A and Regulation S promulgated thereunder;
WHEREAS, the Notes will be issued pursuant to and governed by an Indenture (the "Indenture") to be dated as of the closing date of the offering, by and among VHG, as issuer, the guarantors party thereto from time to time (collectively, the "Guarantors"), and Fidelitas Trust Company, N.A., a national banking association organized under the laws of the United States, as trustee (the "Trustee");
WHEREAS, in connection with the issuance of the Notes and as a condition to the consummation of the offering, the Subsidiary is required to fully, unconditionally, and irrevocably guarantee all of VHG's obligations under the Notes and the Indenture (such guarantee, the "Guarantee"), on a senior unsecured basis, jointly and severally with each of the other Guarantors;