SECRETARY'S CERTIFICATE OF VERIMARK HOSPITALITY GROUP INC.
Delivered pursuant to Section 7.06 of the Purchase Agreement dated June 18, 2024
June 25, 2024
In connection with the issuance of $500,000,000 aggregate principal amount of 8.250% Senior Notes due 2031 (the "Notes") by Verimark Hospitality Group Inc., a Delaware corporation (the "Company" or the "Issuer"), pursuant to (i) 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"), and (ii) 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 Initial Purchasers (in such capacity, the "Representative").
I. CERTIFYING OFFICER IDENTIFICATION
I, David K. Moretti, hereby certify that I am the duly elected, qualified, and acting General Counsel and Secretary of Verimark Hospitality Group Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the "Company"). I have served continuously in such capacity since my election to the office of General Counsel and Secretary by the Board of Directors of the Company, and I have not resigned, been removed, or otherwise ceased to hold such office. In my capacity as General Counsel and Secretary, I am the custodian of the corporate records, minute books, and seal (if any) of the Company, and I have access to all organizational documents, resolutions, and other records of the Company relevant to the certifications made herein.
I further certify the following with respect to the Company:
(a) The Company's principal executive offices are located at 2400 Brickell Bay Drive, Suite 3100, Miami, Florida 33129.
(b) The Company is publicly traded on the Nasdaq Stock Market under the ticker symbol "VMRK."
(c) The Company's Employer Identification Number (EIN) is 84-3291057.
(d) The Company is incorporated and registered in the State of Delaware, with its registered office maintained at Cobalt Ridge Technologies, 1209 Orange Street, Wilmington, Delaware 19801, and its registered agent in the State of Delaware is Crowne Albany Corporation at such address.
(e) The Company's registered agent in the State of Florida is Ashgrove Services Inc., 1200 South Pine Island Road, Plantation, Florida 33324.
II. RECITALS
WHEREAS, the Company is issuing $500,000,000 aggregate principal amount of 8.250% Senior Notes due 2031, in a private placement conducted pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended (the "Securities Act"), to eligible purchasers in compliance with the exemptions from registration provided thereunder;
WHEREAS, the Notes are being issued pursuant to the Indenture dated as of June 25, 2024 (the "Indenture"), by and among the Company, the Guarantors party thereto, and Fidelitas Trust Company, N.A., a national banking association organized and existing under the laws of the United States, as Trustee;
WHEREAS, the offering and sale of the Notes is being conducted pursuant to the Purchase Agreement dated June 18, 2024 (the "Purchase Agreement"), by and among the Company, the Guarantors party thereto, and Kensington Barrow & Co., as Representative of the several Initial Purchasers named therein, including Ridgeline Capital Markets LLC and Stonebridge Marvelo Securities Inc. (collectively, the "Initial Purchasers");
WHEREAS, in connection with the issuance and sale of the Notes, the Company, the Guarantors, and the Initial Purchasers are entering into a Registration Rights Agreement dated as of June 25, 2024 (the "Registration Rights Agreement"), pursuant to which the Company and the Guarantors have agreed to use commercially reasonable efforts to file and cause to become effective a registration statement under the Securities Act with respect to an offer to exchange the Notes for registered notes having substantially identical terms;
WHEREAS, the Company, the Representative, and Fidelitas Trust Company, N.A. (in its capacity as Escrow Agent) have entered into an Escrow Agreement dated June 18, 2024 (the "Escrow Agreement"), governing the escrow of the gross proceeds of the offering pending satisfaction of the conditions to release;
WHEREAS, the net proceeds of the offering, in the estimated amount of $483,750,000 (after deduction of the Initial Purchasers' discounts and commissions and estimated offering expenses), will be applied to repay in full the outstanding indebtedness under the Existing Credit Facility (as defined below) and to pay related transaction costs, fees, and expenses; and
WHEREAS, this Secretary's Certificate is being delivered in connection with the closing of the offering of the Notes on June 25, 2024 (the "Closing Date"), in order to satisfy the conditions precedent to the obligations of the Initial Purchasers set forth in Section 7.06 of the Purchase Agreement.
NOW, THEREFORE, I, David K. Moretti, in my capacity as General Counsel and Secretary of the Company, do hereby certify as follows:
III. CERTIFICATIONS
A. Certification Regarding Amended and Restated Certificate of Incorporation
I hereby certify that attached hereto as Exhibit A is a true, correct, and complete copy of the Amended and Restated Certificate of Incorporation of the Company (the "Certificate of Incorporation"), as currently in effect and on file with the Secretary of State of the State of Delaware. The Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware (the "DGCL").
I further certify that the Certificate of Incorporation has not been further amended, modified, supplemented, restated, or otherwise altered in any respect since the date of the last restatement thereof, and that the Certificate of Incorporation remains in full force and effect as of the date hereof without any amendment, modification, or supplement. No action has been taken by the Board of Directors, any committee thereof, or the stockholders of the Company to amend, modify, supplement, restate, or repeal the Certificate of Incorporation or any provision thereof, and no such action is currently pending or contemplated.
I further certify that the Company is duly organized, validly existing, and in good standing under the laws of the State of Delaware, having been duly incorporated on September 12, 2016, and having continuously maintained its corporate existence in good standing since such date.
B. Certification Regarding Amended and Restated Bylaws
I hereby certify that attached hereto as Exhibit B is a true, correct, and complete copy of the Amended and Restated Bylaws of the Company (the "Bylaws"), as currently in effect. The Bylaws have been duly adopted by the Board of Directors of the Company in accordance with the provisions of the DGCL and the Certificate of Incorporation.
I further certify that the Bylaws have not been further amended, modified, supplemented, restated, or otherwise altered in any respect since the date of the last restatement thereof, and that the Bylaws remain in full force and effect as of the date hereof without any amendment, modification, or supplement. No action has been taken by the Board of Directors, any committee thereof, or the stockholders of the Company to amend, modify, supplement, restate, or repeal the Bylaws or any provision thereof, and no such action is currently pending or contemplated.
C. Certification Regarding Board Resolutions
I hereby certify that attached hereto as Exhibit C is a true, correct, and complete copy of the resolutions (the "Resolutions") duly adopted by the Board of Directors of the Company at a meeting of the Board of Directors duly called and held on June 14, 2024.
I further certify that the meeting of the Board of Directors at which the Resolutions were adopted was duly called and convened in accordance with the Certificate of Incorporation, the Bylaws, and applicable provisions of the DGCL, that due and proper notice of such meeting was given to all directors entitled to receive such notice (or that such notice was duly waived by each director not so notified), that a quorum of the Board of Directors was present throughout the entirety of such meeting, and that the Resolutions were duly adopted by the affirmative vote of the requisite number of directors in accordance with the Certificate of Incorporation, the Bylaws, and the DGCL. The meeting was chaired by Eleanor M. Vasquez, Chairman of the Board of Directors.
I further certify that the Resolutions authorize and approve the following actions on behalf of the Company:
(i) the issuance by the Company of $500,000,000 aggregate principal amount of 8.250% Senior Notes due 2031, in a private placement exempt from registration under the Securities Act pursuant to Rule 144A and Regulation S thereunder;
(ii) the execution, delivery, and performance by the Company of the Indenture, by and among the Company, the Guarantors party thereto, and Fidelitas Trust Company, N.A., as Trustee, and the issuance of the Notes thereunder;
(iii) the execution, delivery, and performance by the Company of the Purchase Agreement, by and among the Company, the Guarantors party thereto, and Kensington Barrow & Co., as Representative of the Initial Purchasers;
(iv) the execution, delivery, and performance by the Company of the Registration Rights Agreement, by and among the Company, the Guarantors party thereto, and the Initial Purchasers;
(v) the execution, delivery, and performance by the Company of the Escrow Agreement, by and among the Company, Kensington Barrow & Co. (as Representative), and Fidelitas Trust Company, N.A. (as Escrow Agent);
(vi) the execution, delivery, and performance by the Company of all Guarantor Joinder Agreements executed in connection with the Indenture and the offering of the Notes;
(vii) the execution, delivery, and performance by the Company of the DTC Letter of Representations to The Depository Trust Company;
(viii) the execution, delivery, and performance by the Company of all other documents, instruments, and certificates contemplated by the foregoing agreements, including, without limitation, the Officer's Certificate delivered pursuant to the Indenture, this Secretary's Certificate, the Payoff Letter delivered in connection with the repayment of the Existing Credit Facility, the Lien Release and Termination Request Letter, and the Notice of Termination of Existing Credit Agreement;
(ix) the application of the net proceeds of the offering to repay in full the outstanding indebtedness and all other amounts owing under the Amended and Restated Credit Agreement dated as of March 15, 2021 (as amended, restated, supplemented, or otherwise modified from time to time, the "Existing Credit Facility"), by and among the Company, the lenders party thereto, and Greystone National Bank, N.A., as Administrative Agent (Loan No. GNB-SYN-2021-04417), and to pay all related transaction costs, fees, premiums, expenses, and other amounts due in connection therewith; and
(x) the authorization of any officer of the Company (including, without limitation, the Chief Executive Officer, the Chief Financial Officer, the General Counsel and Secretary, the Chief Operating Officer, and any other duly authorized officer) to execute and deliver any and all documents, instruments, certificates, and agreements, and to take all actions necessary, appropriate, or desirable to consummate the transactions contemplated by the foregoing resolutions.
I further certify that the Resolutions have not been amended, modified, rescinded, revoked, or superseded in any respect, and remain in full force and effect as of the date hereof. No action has been taken by the Board of Directors or any committee thereof to amend, modify, rescind, revoke, or supersede the Resolutions or any provision thereof, and no such action is currently pending or contemplated.
I further certify that no other resolutions have been adopted by the Board of Directors of the Company or any committee thereof that would in any manner conflict with, modify, limit, restrict, or supersede the Resolutions or the authority granted thereunder, or that would impair the ability of any officer of the Company to execute, deliver, and perform any of the Transaction Documents or to consummate the transactions contemplated thereby.
D. Certification Regarding No Amendments to Organizational Documents
I hereby certify that, since the adoption of the Resolutions by the Board of Directors on June 14, 2024, through and including the date hereof (June 25, 2024), neither the Certificate of Incorporation nor the Bylaws of the Company have been amended, modified, supplemented, restated, or otherwise altered in any respect. The Certificate of Incorporation and the Bylaws remain in full force and effect as of the date hereof. The Resolutions remain in full force and effect without amendment, modification, rescission, or revocation of any kind.
IV. INCUMBENCY CERTIFICATE
I further certify that the following persons are the duly elected or appointed, qualified, and acting officers of the Company, holding the offices set forth opposite their respective names below, and that the signatures set forth opposite their respective names are their true and genuine signatures. Each such officer has been duly elected or appointed to such office in accordance with the Certificate of Incorporation and the Bylaws, has duly qualified to serve in such capacity, and is serving as of the date hereof. Each such officer is authorized to execute and deliver, on behalf of the Company, each of the Transaction Documents (as defined below) and any and all documents, instruments, certificates, and agreements required to be executed and delivered by the Company in connection with the transactions contemplated thereby:
As used in this Secretary's Certificate, the term "Transaction Documents" means, collectively, the following agreements, documents, instruments, and certificates:
(a) the Indenture;
(b) the Notes, including (1) the Rule 144A Global Note (CUSIP 923847 AA 5; ISIN US923847AA52) and (2) the Regulation S Global Note (CUSIP U92384 AA 8; ISIN USU92384AA83);
(c) the Purchase Agreement;
(d) the Registration Rights Agreement;
(e) the Escrow Agreement;
(f) the Guarantor Joinder Agreements;
(g) the DTC Letter of Representations;
(h) the Officer's Certificate delivered pursuant to the Indenture and the Purchase Agreement;
(i) this Secretary's Certificate;
(j) the Payoff Letter;
(k) the Lien Release and Termination Request Letter;
(l) the Notice of Termination of Existing Credit Agreement; and
(m) each other agreement, document, instrument, or certificate executed and delivered by the Company in connection with the offering and sale of the Notes and the transactions contemplated by the foregoing.
V. ADDITIONAL CERTIFICATIONS
A. Good Standing
I hereby certify that the Company is in good standing under the laws of the State of Delaware, as evidenced by the Certificate of Good Standing (also known as a Certificate of Status) issued by the Secretary of State of the State of Delaware dated June 20, 2024, a copy of which has been separately delivered to the Representative, the Trustee, and their respective counsel. Such Certificate of Good Standing confirms that the Company is duly organized, validly existing, and in good standing under the laws of the State of Delaware as of the date of such certificate.
I further certify that the Company is duly qualified to transact business and is in good standing as a foreign corporation in the State of Florida and in each other jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (as such term is defined in the Purchase Agreement).
B. No Proceedings
I hereby certify that, to the best of my knowledge and after due inquiry, no proceedings for the dissolution, liquidation, winding up, or termination of the Company, or for the revocation, forfeiture, or annulment of the Certificate of Incorporation of the Company, have been commenced, are pending, or are threatened against the Company. No order, judgment, or decree has been entered by any court or governmental authority directing the dissolution, liquidation, winding up, or termination of the Company or the revocation or annulment of its Certificate of Incorporation. The Company has not adopted any plan of dissolution, liquidation, or winding up, and no action has been taken by the Board of Directors, any committee thereof, or the stockholders of the Company authorizing or contemplating any such dissolution, liquidation, or winding up.
C. Corporate Seal
I hereby certify that the Company does not maintain a formal corporate seal. All transactions, agreements, documents, instruments, and certificates executed on behalf of the Company are validly executed without the impression or affixture of a corporate seal, and no provision of the Certificate of Incorporation, the Bylaws, or the DGCL requires the use of a corporate seal for the valid execution and delivery of the Transaction Documents or any other document executed in connection with the transactions contemplated hereby.
VI. RELIANCE / ADDRESSEES
This Secretary's Certificate is being delivered to, and may be relied upon by, each of the following parties and their respective successors and assigns, in connection with the transactions contemplated by the Purchase Agreement, the Indenture, and the other Transaction Documents:
(a) Kensington Barrow & Co., as Representative of the Initial Purchasers;
(b) Ridgeline Capital Markets LLC, as an Initial Purchaser;
(c) Stonebridge Marvelo Securities Inc., as an Initial Purchaser;
(d) Fidelitas Trust Company, N.A., as Trustee under the Indenture;
(e) Calderwood & Harkness LLP, counsel to the Company and the Guarantors, One Liberty Plaza, 45th Floor, New York, New York 10006;
(f) Whitfield, Crane & Aldrich LLP, counsel to the Initial Purchasers, 51 West 52nd Street, New York, New York 10019; and
(g) the respective successors and assigns of each of the foregoing.
Each of the foregoing parties is entitled to rely on the certifications, representations, and statements contained in this Secretary's Certificate to the same extent as if such certifications, representations, and statements had been made directly to such party. This Secretary's Certificate shall be binding upon the Company and shall inure to the benefit of each addressee identified above and their respective successors and assigns.
VII. EXECUTION
IN WITNESS WHEREOF, I have hereunto set my hand as of June 25, 2024.
VERIMARK HOSPITALITY GROUP INC.
By: ________
Name: David K. Moretti
Title: General Counsel and Secretary
Date: June 25, 2024
VIII. COUNTERSIGNATURE AND CONFIRMATION
I, Patricia R. Henning, Chief Financial Officer of Verimark Hospitality Group Inc., a corporation duly organized and existing under the laws of the State of Delaware, do hereby confirm and certify that David K. Moretti is the duly elected, qualified, and acting General Counsel and Secretary of the Company, that he has served continuously in such capacity and has not resigned, been removed, or otherwise ceased to hold such office, and that the signature of David K. Moretti appearing above is his true and genuine signature. I have personal knowledge of the foregoing facts and make this confirmation in my capacity as Chief Financial Officer of the Company.
VERIMARK HOSPITALITY GROUP INC.
By: ________
Name: Patricia R. Henning
Title: Chief Financial Officer
Date: June 25, 2024
EXHIBIT A
Amended and Restated Certificate of Incorporation of Verimark Hospitality Group Inc.
Attached hereto is a true, correct, and complete copy of the Amended and Restated Certificate of Incorporation of Verimark Hospitality Group Inc., as filed with the Secretary of State of the State of Delaware and currently in effect. The Amended and Restated Certificate of Incorporation has not been further amended, modified, supplemented, restated, or otherwise altered since the date of the last restatement thereof and remains in full force and effect as of the date hereof.
[Full text of Amended and Restated Certificate of Incorporation to be attached in final execution version]
EXHIBIT B
Amended and Restated Bylaws of Verimark Hospitality Group Inc.
Attached hereto is a true, correct, and complete copy of the Amended and Restated Bylaws of Verimark Hospitality Group Inc., as currently in effect. The Amended and Restated Bylaws have not been further amended, modified, supplemented, restated, or otherwise altered since the date of the last restatement thereof and remain in full force and effect as of the date hereof.
[Full text of Amended and Restated Bylaws to be attached in final execution version]
EXHIBIT C
Resolutions of the Board of Directors of Verimark Hospitality Group Inc. Adopted June 14, 2024
Attached hereto is a true, correct, and complete copy of the Resolutions duly adopted by the Board of Directors of Verimark Hospitality Group Inc. at a meeting duly called and held on June 14, 2024. The meeting was chaired by Eleanor M. Vasquez, Chairman of the Board of Directors. A quorum of the Board of Directors was present throughout the entirety of such meeting, and the Resolutions were duly adopted by the affirmative vote of the requisite number of directors in accordance with the Amended and Restated Certificate of Incorporation, the Amended and Restated Bylaws, and the General Corporation Law of the State of Delaware.
The Resolutions authorize, among other things, (i) the issuance of $500,000,000 aggregate principal amount of 8.250% Senior Notes due 2031, (ii) the execution and delivery of all Transaction Documents (as defined in this Secretary's Certificate), (iii) the application of net proceeds of the offering, estimated at $483,750,000, to the repayment of the Existing Credit Facility (Amended and Restated Credit Agreement dated March 15, 2021, with Greystone National Bank, N.A., as Administrative Agent, Loan No. GNB-SYN-2021-04417) and the payment of related transaction costs and expenses, and (iv) the authorization of any officer of the Company to take all actions necessary or desirable to consummate the transactions contemplated thereby.
The Resolutions have not been amended, modified, rescinded, revoked, or superseded in any respect and remain in full force and effect as of the date hereof.
[Full text of Board Resolutions to be attached in final execution version]
| Name | Title | Signature |
| Marcus J. Delano | Chief Executive Officer | ________ |
| Patricia R. Henning | Chief Financial Officer | ________ |
| David K. Moretti | General Counsel and Secretary | ________ |
| Eleanor M. Vasquez | Chairman of the Board | ________ |
| Raymond T. Ochoa | Chief Operating Officer | ________ |