1021-00002 · Verimark Hospitality Group · Closing

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OFFICER'S CERTIFICATE

VERIMARK HOSPITALITY GROUP INC.

Delivered Pursuant to Section 7.05 of the Purchase Agreement dated June 18, 2024

among

Verimark Hospitality Group Inc., as the Company,

The Guarantors Party Thereto,

and

Kensington Barrow & Co., as Representative of the Initial Purchasers Named Therein

In Connection With the Offering of $500,000,000 Aggregate Principal Amount of 8.250% Senior Notes Due 2031

Dated: June 25, 2024

OFFICER'S CERTIFICATE OF VERIMARK HOSPITALITY GROUP INC.

The undersigned, Patricia R. Henning, in her capacity as Chief Financial Officer of Verimark Hospitality Group Inc., a Delaware corporation (the "Company"), and David K. Moretti, in his capacity as General Counsel and Secretary of the Company, hereby certify, on behalf of the Company and not in their individual capacities, pursuant to Section 7.05 of the Purchase Agreement dated June 18, 2024 (the "Purchase Agreement"), among the Company, the Guarantors party thereto, and Kensington Barrow & Co., as Representative of the several Initial Purchasers named in Schedule I thereto (collectively, the "Initial Purchasers"), in connection with the offering by the Company of $500,000,000 aggregate principal amount of 8.250% Senior Notes due 2031 (the "Notes"), as follows:

All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement or, where applicable, in the Indenture dated as of June 25, 2024 (the "Indenture"), among the Company, the Guarantors party thereto, and Fidelitas Trust Company, N.A., as Trustee (the "Trustee"). This Officer's Certificate is being delivered in connection with the closing of the offering and sale of the Notes on June 25, 2024 (the "Closing Date"), and constitutes a condition precedent to the obligations of the Initial Purchasers to consummate the purchase of the Notes on the Closing Date as set forth in Article VII of the Purchase Agreement.

Each of the undersigned has reviewed the Purchase Agreement, the Indenture, the Registration Rights Agreement, and this Officer's Certificate, and has made due inquiry of appropriate officers, directors, and employees of the Company and its subsidiaries as necessary to provide the certifications contained herein. The undersigned have also reviewed such corporate records, documents, certificates, and other materials as they have deemed necessary or appropriate as a basis for the certifications set forth below.

Section 1. Representations and Warranties.

Each of the representations and warranties of the Company and the Guarantors contained in the Purchase Agreement, including without limitation those set forth in Section 1 thereof, is true and correct in all material respects as of the date of the Purchase Agreement (June 18, 2024) and as of the Closing Date (June 25, 2024), with the same force and effect as though expressly made on and as of the Closing Date. To the extent that any such representations and warranties are by their terms made as of a specific date or relate to a specific period, such representations and warranties are true and correct in all material respects as of such specific date or with respect to such specific period, as the case may be.

Without limiting the generality of the foregoing, the certifications set forth in this Section 1 are made with respect to the representations and warranties of each of the following Guarantors party to the Purchase Agreement: (a) Verimark Resort Holdings LLC, a Delaware limited liability company; (b) VHG Properties Inc., a Florida corporation; (c) Bayshore Hotel Management LLC, a Delaware limited liability company; (d) Verimark Capital Holdings LLC, a Delaware limited liability company; and (e) Pinnacle Lodging Enterprises Inc., a Delaware corporation (each, a "Guarantor" and collectively, the "Guarantors").

The undersigned are not aware of any fact, circumstance, event, or condition that would render any representation or warranty of the Company or any Guarantor contained in the Purchase Agreement untrue, inaccurate, or misleading in any material respect as of the Closing Date.

Section 2. No Material Adverse Effect.

Since the date of the Final Offering Memorandum dated June 18, 2024 (as supplemented or amended through the Closing Date, the "Offering Memorandum"), there has been no change, event, occurrence, development, or condition that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on:

(a) the business, financial condition, properties, assets, liabilities (contingent or otherwise), operations, or results of operations of the Company and its subsidiaries, taken as a whole;

(b) the ability of the Company or any Guarantor to perform its respective obligations under the Purchase Agreement, the Indenture, the Notes, the Guarantees (as defined in the Indenture), or the Registration Rights Agreement dated as of June 25, 2024, among the Company, the Guarantors, and the Initial Purchasers (the "Registration Rights Agreement"); or

(c) the validity or enforceability of the Notes, the Indenture, the Guarantees, the Purchase Agreement, or the Registration Rights Agreement (collectively, the "Transaction Documents").

The undersigned confirm that since the date of the Offering Memorandum, the Company and its subsidiaries have conducted their respective businesses in the ordinary course consistent with past practice, and no event or development has occurred that would be required to be described in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, that has not been so described or otherwise disclosed to the Initial Purchasers in writing.

Section 3. Compliance with Covenants and Agreements.

The Company and each Guarantor have complied in all material respects with all covenants, agreements, obligations, and conditions contained in the Purchase Agreement that are required to be performed, satisfied, or complied with by the Company or any Guarantor at or before the Closing Date. Without limiting the generality of the foregoing, the Company and the Guarantors have timely performed all obligations required of them under the Purchase Agreement with respect to the preparation and delivery of documents, the execution of agreements, and the satisfaction of conditions precedent to the obligations of the Initial Purchasers.

The undersigned are not aware of any breach or violation by the Company or any Guarantor of any covenant, agreement, or condition contained in the Purchase Agreement, whether or not such breach or violation would constitute a default thereunder or under any of the other Transaction Documents.

Section 4. Conditions to Closing Satisfied.

All conditions set forth in Article VII (Conditions to the Initial Purchasers' Obligations) of the Purchase Agreement have been satisfied or, where applicable, waived in writing by the Representative on behalf of the Initial Purchasers, as of the Closing Date, June 25, 2024. Without limiting the generality of the foregoing, the undersigned specifically certify that each of the following conditions has been satisfied:

(a) Execution and Delivery of the Indenture. The Indenture has been duly executed and delivered by the Company, each of the Guarantors, and Fidelitas Trust Company, N.A., as Trustee, in form and substance satisfactory to the Representative and its counsel, and counterparts thereof have been delivered to the Representative and to the Trustee.

(b) Execution, Authentication, and Delivery of the Notes. The Notes, in aggregate principal amount of $500,000,000, have been duly executed by the Company, duly authenticated by the Trustee in accordance with the terms of the Indenture, and delivered to or upon the order of the Initial Purchasers against payment of the purchase price therefor in immediately available funds.

(c) Execution and Delivery of the Registration Rights Agreement. The Registration Rights Agreement dated as of June 25, 2024, has been duly executed and delivered by the Company, each of the Guarantors, and the Initial Purchasers, and counterparts thereof have been delivered to the Representative.

(d) Execution and Delivery of the Guarantor Joinder Agreements. Each of the Guarantors has duly executed and delivered a Guarantor Joinder Agreement in the form attached as Exhibit A to the Indenture, pursuant to which each Guarantor has unconditionally guaranteed all of the obligations of the Company under the Indenture and the Notes.

(e) Legal Opinion of Issuer's Counsel. Calderwood & Harkness LLP, counsel to the Company and the Guarantors, has delivered to the Representative its legal opinion, dated as of the Closing Date, in form and substance satisfactory to the Representative and its counsel, addressing the matters specified in Section 7.05(e) of the Purchase Agreement.

(f) Tax Opinion. Calderwood & Harkness LLP has delivered to the Representative its tax opinion, dated as of the Closing Date, in form and substance satisfactory to the Representative and its counsel, addressing the United States federal income tax matters specified in Section 7.05(f) of the Purchase Agreement.

(g) 10b-5 Negative Assurance Letter. Calderwood & Harkness LLP has delivered to the Representative a negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to the Offering Memorandum, consistent with the requirements of Rule 10b-5 under the Securities Exchange Act of 1934, as amended.

(h) Comfort Letter. Palladian & Howe LLP, the Company's independent registered public accounting firm, has delivered to the Representative its comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, with respect to certain financial statements, financial information, and other data included or incorporated in the Offering Memorandum, in accordance with Statement on Auditing Standards No. 72 (or any successor statement) of the American Institute of Certified Public Accountants.

(i) Good Standing Certificates. Certificates of good standing (or equivalent certificates) have been obtained and delivered for each of the following entities from the respective jurisdictions indicated: (i) the Company, from the Secretary of State of the State of Delaware and the Florida Department of State, Division of Corporations; (ii) Verimark Resort Holdings LLC, from the Secretary of State of the State of Delaware; (iii) VHG Properties Inc., from the Florida Department of State, Division of Corporations; (iv) Bayshore Hotel Management LLC, from the Secretary of State of the State of Delaware and the Florida Department of State, Division of Corporations; (v) Verimark Capital Holdings LLC, from the Secretary of State of the State of Delaware; and (vi) Pinnacle Lodging Enterprises Inc., from the Secretary of State of the State of Delaware. Each such certificate is dated no earlier than five (5) business days prior to the Closing Date.

(j) Secretary's Certificate. The Secretary's Certificate of the Company, dated as of the Closing Date, has been delivered to the Representative, attaching thereto true and complete copies of: (i) the Restated Certificate of Incorporation of the Company, as amended to date, as certified by the Secretary of State of the State of Delaware; (ii) the Amended and Restated Bylaws of the Company, as in effect on the Closing Date; (iii) resolutions duly adopted by the Board of Directors of the Company authorizing the execution, delivery, and performance of the Transaction Documents and the issuance of the Notes, certified by the Secretary as being in full force and effect and not having been amended, modified, or rescinded; and (iv) a certificate of incumbency identifying the name, title, and specimen signature of each officer of the Company authorized to execute the Transaction Documents and any certificates or other documents to be delivered in connection therewith.

(k) No Injunctions or Restraining Orders. No order, injunction, decree, judgment, or ruling of any court, governmental authority, or regulatory body has been issued, and no proceeding, investigation, or action has been initiated, pending, or threatened, that prevents, prohibits, restrains, or otherwise seeks to restrain the consummation of any of the transactions contemplated by the Purchase Agreement, the Indenture, or the other Transaction Documents.

Section 5. No Stop Order or Proceedings.

No stop order or similar order has been issued by the Securities and Exchange Commission (the "SEC") or any state securities commission or other regulatory authority, and no proceedings for such purpose have been initiated, pending, or, to the knowledge of the Company, threatened, with respect to the offering, sale, or issuance of the Notes. The undersigned acknowledge that the offering of the Notes has been conducted in reliance upon the exemptions from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), provided by Section 4(a)(2) thereof and Rule 144A and Regulation S promulgated thereunder, and the Company has complied in all material respects with the conditions and requirements of such exemptions in connection with the offering of the Notes.

No notice has been received by the Company from the SEC or any state securities authority indicating that any investigation, inquiry, or proceeding has been commenced or is contemplated with respect to the Offering Memorandum or the offering and sale of the Notes. The Company has not been advised by any governmental or regulatory authority that the exemptions from registration relied upon by the Company in connection with the offering of the Notes are or may be unavailable.

Section 6. Offering Memorandum Accuracy.

The Final Offering Memorandum dated June 18, 2024 (including all documents incorporated or deemed incorporated therein by reference and all supplements and amendments thereto through the Closing Date), as of its date and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All statistical, market, and industry data included in the Offering Memorandum are based on or derived from sources that the Company believes to be reliable and accurate in all material respects, and the Company has no reason to believe that such data are not accurate or were not obtained on a reasonable basis.

The undersigned further certify that the information furnished by or on behalf of the Company and the Guarantors for inclusion in the Offering Memorandum was, as of the date of the Offering Memorandum and as of the Closing Date, true, correct, and complete in all material respects, and no event has occurred since the date of the Offering Memorandum that would require any amendment or supplement to the Offering Memorandum in order to ensure that the statements therein, in the light of the circumstances under which they were made, are not misleading as of the Closing Date.

Section 7. Use of Proceeds Confirmation.

The net proceeds of the offering of the Notes, in the amount of $483,750,000 (representing the aggregate principal amount of $500,000,000 less the Initial Purchasers' discount of $16,250,000), will be applied substantially as described in the Offering Memorandum under the heading "Use of Proceeds." Specifically, the Company intends to apply the net proceeds of the offering as follows:

For purposes of this Section 7, the "Existing Credit Facility" refers to the credit facility established pursuant to the Amended and Restated Credit Agreement dated as of March 15, 2021 (as amended, restated, supplemented, or otherwise modified from time to time), among the Company, as borrower, the lenders party thereto from time to time, and Greystone National Bank, N.A., as Administrative Agent (Loan No. GNB-SYN-2021-04417) (the "Existing Credit Agreement"). The Company has delivered or caused to be delivered to the Administrative Agent under the Existing Credit Agreement irrevocable notice of prepayment with respect to the amounts set forth above, and upon receipt of the net proceeds from the offering of the Notes, will cause the applicable amounts to be remitted to the Administrative Agent on the Closing Date for the account of the lenders under the Existing Credit Agreement in satisfaction of the Company's obligations thereunder.

The amount of accrued and unpaid interest set forth above represents the Company's good faith estimate of interest accrued through the Closing Date, and the Company will make any necessary true-up payment promptly following the determination of the final amount of accrued interest.

Section 8. No Default.

No Default or Event of Default (each as defined in the Indenture) has occurred and is continuing as of the Closing Date, and no Default or Event of Default will result from the issuance of the Notes, the execution and delivery of the Indenture, the execution and delivery of the Guarantees, or the consummation of any of the other transactions contemplated by the Purchase Agreement or the other Transaction Documents.

In addition, no default or event of default (howsoever defined) has occurred and is continuing under any other agreement, instrument, or arrangement to which the Company or any of its subsidiaries is a party or by which any of their respective properties or assets may be bound, which default or event of default would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the ability of the Company or any Guarantor to perform its obligations under the Transaction Documents.

Section 9. Investment Company Act.

Neither the Company nor any of its subsidiaries is, or after giving effect to the offering of the Notes and the application of the net proceeds therefrom as described in Section 7 of this Certificate and in the Offering Memorandum will be, required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), and the rules and regulations of the SEC promulgated thereunder. The Company and each of its subsidiaries are engaged primarily in a business other than that of investing, reinvesting, owning, holding, or trading in securities, and neither the Company nor any of its subsidiaries is, or holds itself out as being, primarily engaged, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities.

Section 10. Additional Certifications.

Each of the undersigned hereby certifies, in her or his capacity as a duly authorized officer of the Company, as follows:

(a) Each of the undersigned is a duly elected or appointed officer of the Company holding the title set forth opposite such person's name on the signature page hereof, and each such person has been duly authorized by the Board of Directors of the Company to execute and deliver this Officer's Certificate on behalf of the Company.

(b) This Officer's Certificate is being executed and delivered on behalf of the Company and not in any personal capacity, and the undersigned shall have no personal liability whatsoever hereunder or in connection with the certifications, representations, and statements set forth herein. The certifications contained in this Officer's Certificate are made by the undersigned solely in their respective capacities as officers of the Company, and no recourse shall be had against the undersigned in their individual capacities for any claims arising under or in connection with this Officer's Certificate.

(c) Each of the undersigned has reviewed the Purchase Agreement, the Indenture, the Registration Rights Agreement, the Offering Memorandum, and this Officer's Certificate and has made such due and diligent inquiry of appropriate officers, directors, and employees of the Company and its subsidiaries, and has reviewed such corporate records, documents, certificates, and other materials, as such person has deemed necessary and appropriate in order to provide the certifications contained herein. The undersigned have relied upon information furnished by appropriate officers and employees of the Company and its subsidiaries, and upon the reports and opinions of counsel and independent auditors, in making the certifications set forth in this Officer's Certificate.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

IN WITNESS WHEREOF, the undersigned have executed this Officer's Certificate as of June 25, 2024.

VERIMARK HOSPITALITY GROUP INC.

By: ________

Name: Patricia R. Henning

Title: Chief Financial Officer

Date: June 25, 2024

VERIMARK HOSPITALITY GROUP INC.

By: ________

Name: David K. Moretti

Title: General Counsel and Secretary

Date: June 25, 2024

Issuer Information

Verimark Hospitality Group Inc. State of Incorporation: Delaware Principal Executive Offices: 2400 Brickell Bay Drive, Suite 3100, Miami, FL 33129 Employer Identification Number (EIN): 84-3291057 Nasdaq Global Select Market Ticker Symbol: VMRK

Use of Proceeds	Amount
Repayment of outstanding principal under the Existing Credit Facility	$467,342,819.16
Payment of accrued and unpaid interest on the Existing Credit Facility (estimated through June 25, 2024)	$4,207,180.84
Prepayment premium on the Existing Credit Facility	$2,336,714.10
Transaction fees and expenses (including legal, accounting, trustee, and rating agency fees)	$6,863,285.90
General corporate purposes	$3,000,000.00
Total	$483,750,000.00

OFFICER'S CERTIFICATE
OF
VERIMARK HOSPITALITY GROUP INC.
Delivered Pursuant to Section 7.05 of the Purchase Agreement dated June 18, 2024
among
Verimark Hospitality Group Inc., as the Company,
The Guarantors Party Thereto,
and
Kensington Barrow & Co., as Representative of the Initial Purchasers Named Therein
In Connection With the Offering of $500,000,000 Aggregate Principal Amount of 8.250% Senior Notes Due 2031
Dated: June 25, 2024
OFFICER'S CERTIFICATE OF VERIMARK HOSPITALITY GROUP INC.
The undersigned, Patricia R. Henning, in her capacity as Chief Financial Officer of Verimark Hospitality Group Inc., a Delaware corporation (the "Company"), and David K. Moretti, in his capacity as General Counsel and Secretary of the Company, hereby certify, on behalf of the Company and not in their individual capacities, pursuant to Section 7.05 of the Purchase Agreement dated June 18, 2024 (the "Purchase Agreement"), among the Company, the Guarantors party thereto, and Kensington Barrow & Co., as Representative of the several Initial Purchasers named in Schedule I thereto (collectively, the "Initial Purchasers"), in connection with the offering by the Company of $500,000,000 aggregate principal amount of 8.250% Senior Notes due 2031 (the "Notes"), as follows:
All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement or, where applicable, in the Indenture dated as of June 25, 2024 (the "Indenture"), among the Company, the Guarantors party thereto, and Fidelitas Trust Company, N.A., as Trustee (the "Trustee"). This Officer's Certificate is being delivered in connection with the closing of the offering and sale of the Notes on June 25, 2024 (the "Closing Date"), and constitutes a condition precedent to the obligations of the Initial Purchasers to consummate the purchase of the Notes on the Closing Date as set forth in Article VII of the Purchase Agreement.
Each of the undersigned has reviewed the Purchase Agreement, the Indenture, the Registration Rights Agreement, and this Officer's Certificate, and has made due inquiry of appropriate officers, directors, and employees of the Company and its subsidiaries as necessary to provide the certifications contained herein. The undersigned have also reviewed such corporate records, documents, certificates, and other materials as they have deemed necessary or appropriate as a basis for the certifications set forth below.
Section 1. Representations and Warranties.
Each of the representations and warranties of the Company and the Guarantors contained in the Purchase Agreement, including without limitation those set forth in Section 1 thereof, is true and correct in all material respects as of the date of the Purchase Agreement (June 18, 2024) and as of the Closing Date (June 25, 2024), with the same force and effect as though expressly made on and as of the Closing Date. To the extent that any such representations and warranties are by their terms made as of a specific date or relate to a specific period, such representations and warranties are true and correct in all material respects as of such specific date or with respect to such specific period, as the case may be.
Without limiting the generality of the foregoing, the certifications set forth in this Section 1 are made with respect to the representations and warranties of each of the following Guarantors party to the Purchase Agreement: (a) Verimark Resort Holdings LLC, a Delaware limited liability company; (b) VHG Properties Inc., a Florida corporation; (c) Bayshore Hotel Management LLC, a Delaware limited liability company; (d) Verimark Capital Holdings LLC, a Delaware limited liability company; and (e) Pinnacle Lodging Enterprises Inc., a Delaware corporation (each, a "Guarantor" and collectively, the "Guarantors").
The undersigned are not aware of any fact, circumstance, event, or condition that would render any representation or warranty of the Company or any Guarantor contained in the Purchase Agreement untrue, inaccurate, or misleading in any material respect as of the Closing Date.
Section 2. No Material Adverse Effect.
Since the date of the Final Offering Memorandum dated June 18, 2024 (as supplemented or amended through the Closing Date, the "Offering Memorandum"), there has been no change, event, occurrence, development, or condition that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on:
(a) the business, financial condition, properties, assets, liabilities (contingent or otherwise), operations, or results of operations of the Company and its subsidiaries, taken as a whole;
(b) the ability of the Company or any Guarantor to perform its respective obligations under the Purchase Agreement, the Indenture, the Notes, the Guarantees (as defined in the Indenture), or the Registration Rights Agreement dated as of June 25, 2024, among the Company, the Guarantors, and the Initial Purchasers (the "Registration Rights Agreement"); or
(c) the validity or enforceability of the Notes, the Indenture, the Guarantees, the Purchase Agreement, or the Registration Rights Agreement (collectively, the "Transaction Documents").
The undersigned confirm that since the date of the Offering Memorandum, the Company and its subsidiaries have conducted their respective businesses in the ordinary course consistent with past practice, and no event or development has occurred that would be required to be described in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, that has not been so described or otherwise disclosed to the Initial Purchasers in writing.
Section 3. Compliance with Covenants and Agreements.
The Company and each Guarantor have complied in all material respects with all covenants, agreements, obligations, and conditions contained in the Purchase Agreement that are required to be performed, satisfied, or complied with by the Company or any Guarantor at or before the Closing Date. Without limiting the generality of the foregoing, the Company and the Guarantors have timely performed all obligations required of them under the Purchase Agreement with respect to the preparation and delivery of documents, the execution of agreements, and the satisfaction of conditions precedent to the obligations of the Initial Purchasers.
The undersigned are not aware of any breach or violation by the Company or any Guarantor of any covenant, agreement, or condition contained in the Purchase Agreement, whether or not such breach or violation would constitute a default thereunder or under any of the other Transaction Documents.
Section 4. Conditions to Closing Satisfied.
All conditions set forth in Article VII (Conditions to the Initial Purchasers' Obligations) of the Purchase Agreement have been satisfied or, where applicable, waived in writing by the Representative on behalf of the Initial Purchasers, as of the Closing Date, June 25, 2024. Without limiting the generality of the foregoing, the undersigned specifically certify that each of the following conditions has been satisfied:
(a) Execution and Delivery of the Indenture. The Indenture has been duly executed and delivered by the Company, each of the Guarantors, and Fidelitas Trust Company, N.A., as Trustee, in form and substance satisfactory to the Representative and its counsel, and counterparts thereof have been delivered to the Representative and to the Trustee.
(b) Execution, Authentication, and Delivery of the Notes. The Notes, in aggregate principal amount of $500,000,000, have been duly executed by the Company, duly authenticated by the Trustee in accordance with the terms of the Indenture, and delivered to or upon the order of the Initial Purchasers against payment of the purchase price therefor in immediately available funds.
(c) Execution and Delivery of the Registration Rights Agreement. The Registration Rights Agreement dated as of June 25, 2024, has been duly executed and delivered by the Company, each of the Guarantors, and the Initial Purchasers, and counterparts thereof have been delivered to the Representative.
(d) Execution and Delivery of the Guarantor Joinder Agreements. Each of the Guarantors has duly executed and delivered a Guarantor Joinder Agreement in the form attached as Exhibit A to the Indenture, pursuant to which each Guarantor has unconditionally guaranteed all of the obligations of the Company under the Indenture and the Notes.
(e) Legal Opinion of Issuer's Counsel. Calderwood & Harkness LLP, counsel to the Company and the Guarantors, has delivered to the Representative its legal opinion, dated as of the Closing Date, in form and substance satisfactory to the Representative and its counsel, addressing the matters specified in Section 7.05(e) of the Purchase Agreement.
(f) Tax Opinion. Calderwood & Harkness LLP has delivered to the Representative its tax opinion, dated as of the Closing Date, in form and substance satisfactory to the Representative and its counsel, addressing the United States federal income tax matters specified in Section 7.05(f) of the Purchase Agreement.
(g) 10b-5 Negative Assurance Letter. Calderwood & Harkness LLP has delivered to the Representative a negative assurance letter, dated as of the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to the Offering Memorandum, consistent with the requirements of Rule 10b-5 under the Securities Exchange Act of 1934, as amended.
(h) Comfort Letter. Palladian & Howe LLP, the Company's independent registered public accounting firm, has delivered to the Representative its comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Representative, with respect to certain financial statements, financial information, and other data included or incorporated in the Offering Memorandum, in accordance with Statement on Auditing Standards No. 72 (or any successor statement) of the American Institute of Certified Public Accountants.
(i) Good Standing Certificates. Certificates of good standing (or equivalent certificates) have been obtained and delivered for each of the following entities from the respective jurisdictions indicated: (i) the Company, from the Secretary of State of the State of Delaware and the Florida Department of State, Division of Corporations; (ii) Verimark Resort Holdings LLC, from the Secretary of State of the State of Delaware; (iii) VHG Properties Inc., from the Florida Department of State, Division of Corporations; (iv) Bayshore Hotel Management LLC, from the Secretary of State of the State of Delaware and the Florida Department of State, Division of Corporations; (v) Verimark Capital Holdings LLC, from the Secretary of State of the State of Delaware; and (vi) Pinnacle Lodging Enterprises Inc., from the Secretary of State of the State of Delaware. Each such certificate is dated no earlier than five (5) business days prior to the Closing Date.
(j) Secretary's Certificate. The Secretary's Certificate of the Company, dated as of the Closing Date, has been delivered to the Representative, attaching thereto true and complete copies of: (i) the Restated Certificate of Incorporation of the Company, as amended to date, as certified by the Secretary of State of the State of Delaware; (ii) the Amended and Restated Bylaws of the Company, as in effect on the Closing Date; (iii) resolutions duly adopted by the Board of Directors of the Company authorizing the execution, delivery, and performance of the Transaction Documents and the issuance of the Notes, certified by the Secretary as being in full force and effect and not having been amended, modified, or rescinded; and (iv) a certificate of incumbency identifying the name, title, and specimen signature of each officer of the Company authorized to execute the Transaction Documents and any certificates or other documents to be delivered in connection therewith.
(k) No Injunctions or Restraining Orders. No order, injunction, decree, judgment, or ruling of any court, governmental authority, or regulatory body has been issued, and no proceeding, investigation, or action has been initiated, pending, or threatened, that prevents, prohibits, restrains, or otherwise seeks to restrain the consummation of any of the transactions contemplated by the Purchase Agreement, the Indenture, or the other Transaction Documents.
Section 5. No Stop Order or Proceedings.
No stop order or similar order has been issued by the Securities and Exchange Commission (the "SEC") or any state securities commission or other regulatory authority, and no proceedings for such purpose have been initiated, pending, or, to the knowledge of the Company, threatened, with respect to the offering, sale, or issuance of the Notes. The undersigned acknowledge that the offering of the Notes has been conducted in reliance upon the exemptions from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), provided by Section 4(a)(2) thereof and Rule 144A and Regulation S promulgated thereunder, and the Company has complied in all material respects with the conditions and requirements of such exemptions in connection with the offering of the Notes.
No notice has been received by the Company from the SEC or any state securities authority indicating that any investigation, inquiry, or proceeding has been commenced or is contemplated with respect to the Offering Memorandum or the offering and sale of the Notes. The Company has not been advised by any governmental or regulatory authority that the exemptions from registration relied upon by the Company in connection with the offering of the Notes are or may be unavailable.
Section 6. Offering Memorandum Accuracy.
The Final Offering Memorandum dated June 18, 2024 (including all documents incorporated or deemed incorporated therein by reference and all supplements and amendments thereto through the Closing Date), as of its date and as of the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All statistical, market, and industry data included in the Offering Memorandum are based on or derived from sources that the Company believes to be reliable and accurate in all material respects, and the Company has no reason to believe that such data are not accurate or were not obtained on a reasonable basis.
The undersigned further certify that the information furnished by or on behalf of the Company and the Guarantors for inclusion in the Offering Memorandum was, as of the date of the Offering Memorandum and as of the Closing Date, true, correct, and complete in all material respects, and no event has occurred since the date of the Offering Memorandum that would require any amendment or supplement to the Offering Memorandum in order to ensure that the statements therein, in the light of the circumstances under which they were made, are not misleading as of the Closing Date.
Section 7. Use of Proceeds Confirmation.
The net proceeds of the offering of the Notes, in the amount of $483,750,000 (representing the aggregate principal amount of $500,000,000 less the Initial Purchasers' discount of $16,250,000), will be applied substantially as described in the Offering Memorandum under the heading "Use of Proceeds." Specifically, the Company intends to apply the net proceeds of the offering as follows:
For purposes of this Section 7, the "Existing Credit Facility" refers to the credit facility established pursuant to the Amended and Restated Credit Agreement dated as of March 15, 2021 (as amended, restated, supplemented, or otherwise modified from time to time), among the Company, as borrower, the lenders party thereto from time to time, and Greystone National Bank, N.A., as Administrative Agent (Loan No. GNB-SYN-2021-04417) (the "Existing Credit Agreement"). The Company has delivered or caused to be delivered to the Administrative Agent under the Existing Credit Agreement irrevocable notice of prepayment with respect to the amounts set forth above, and upon receipt of the net proceeds from the offering of the Notes, will cause the applicable amounts to be remitted to the Administrative Agent on the Closing Date for the account of the lenders under the Existing Credit Agreement in satisfaction of the Company's obligations thereunder.
The amount of accrued and unpaid interest set forth above represents the Company's good faith estimate of interest accrued through the Closing Date, and the Company will make any necessary true-up payment promptly following the determination of the final amount of accrued interest.
Section 8. No Default.
No Default or Event of Default (each as defined in the Indenture) has occurred and is continuing as of the Closing Date, and no Default or Event of Default will result from the issuance of the Notes, the execution and delivery of the Indenture, the execution and delivery of the Guarantees, or the consummation of any of the other transactions contemplated by the Purchase Agreement or the other Transaction Documents.
In addition, no default or event of default (howsoever defined) has occurred and is continuing under any other agreement, instrument, or arrangement to which the Company or any of its subsidiaries is a party or by which any of their respective properties or assets may be bound, which default or event of default would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the ability of the Company or any Guarantor to perform its obligations under the Transaction Documents.
Section 9. Investment Company Act.
Neither the Company nor any of its subsidiaries is, or after giving effect to the offering of the Notes and the application of the net proceeds therefrom as described in Section 7 of this Certificate and in the Offering Memorandum will be, required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), and the rules and regulations of the SEC promulgated thereunder. The Company and each of its subsidiaries are engaged primarily in a business other than that of investing, reinvesting, owning, holding, or trading in securities, and neither the Company nor any of its subsidiaries is, or holds itself out as being, primarily engaged, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities.
Section 10. Additional Certifications.
Each of the undersigned hereby certifies, in her or his capacity as a duly authorized officer of the Company, as follows:
(a) Each of the undersigned is a duly elected or appointed officer of the Company holding the title set forth opposite such person's name on the signature page hereof, and each such person has been duly authorized by the Board of Directors of the Company to execute and deliver this Officer's Certificate on behalf of the Company.
(b) This Officer's Certificate is being executed and delivered on behalf of the Company and not in any personal capacity, and the undersigned shall have no personal liability whatsoever hereunder or in connection with the certifications, representations, and statements set forth herein. The certifications contained in this Officer's Certificate are made by the undersigned solely in their respective capacities as officers of the Company, and no recourse shall be had against the undersigned in their individual capacities for any claims arising under or in connection with this Officer's Certificate.
(c) Each of the undersigned has reviewed the Purchase Agreement, the Indenture, the Registration Rights Agreement, the Offering Memorandum, and this Officer's Certificate and has made such due and diligent inquiry of appropriate officers, directors, and employees of the Company and its subsidiaries, and has reviewed such corporate records, documents, certificates, and other materials, as such person has deemed necessary and appropriate in order to provide the certifications contained herein. The undersigned have relied upon information furnished by appropriate officers and employees of the Company and its subsidiaries, and upon the reports and opinions of counsel and independent auditors, in making the certifications set forth in this Officer's Certificate.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this Officer's Certificate as of June 25, 2024.
VERIMARK HOSPITALITY GROUP INC.
By: ________
Name: Patricia R. Henning
Title: Chief Financial Officer
Date: June 25, 2024
VERIMARK HOSPITALITY GROUP INC.
By: ________
Name: David K. Moretti
Title: General Counsel and Secretary
Date: June 25, 2024
Issuer Information
Verimark Hospitality Group Inc. State of Incorporation: Delaware Principal Executive Offices: 2400 Brickell Bay Drive, Suite 3100, Miami, FL 33129 Employer Identification Number (EIN): 84-3291057 Nasdaq Global Select Market Ticker Symbol: VMRK
Use of Proceeds | Amount
Repayment of outstanding principal under the Existing Credit Facility | $467,342,819.16
Payment of accrued and unpaid interest on the Existing Credit Facility (estimated through June 25, 2024) | $4,207,180.84
Prepayment premium on the Existing Credit Facility | $2,336,714.10
Transaction fees and expenses (including legal, accounting, trustee, and rating agency fees) | $6,863,285.90
General corporate purposes | $3,000,000.00
Total | $483,750,000.00

OFFICER'S CERTIFICATE

VERIMARK HOSPITALITY GROUP INC.

OFFICER'S CERTIFICATE OF VERIMARK HOSPITALITY GROUP INC.

VERIMARK HOSPITALITY GROUP INC.

VERIMARK HOSPITALITY GROUP INC.

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