EXHIBIT A-2

EXHIBIT A-2
FORM OF REGULATION S GLOBAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF THE ISSUER THAT IT WILL NOT OFFER, SELL, PLEDGE, OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND FURTHER SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHTS PRIOR TO ANY SUCH OFFER, SALE, OR TRANSFER PURSUANT TO CLAUSES (C), (D), OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION, AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS NOTE IS A REGULATION S GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO. AS NOMINEE FOR THE DEPOSITORY TRUST COMPANY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNTIL THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
VERIMARK HOSPITALITY GROUP INC.
8.250% Senior Note due 2031
PROMISE TO PAY
Verimark Hospitality Group Inc., a Delaware corporation (the "Issuer"), for value received, hereby promises to pay to Cede & Co. or registered assigns the principal sum of $[__] (or such greater or lesser amount as may be shown on the Schedule of Increases and Decreases in Global Note attached hereto) on July 1, 2031, and to pay interest thereon at the rate of 8.250% per annum, computed on the basis of a 360-day year comprised of twelve 30-day months.
Interest on this Note shall accrue from June 25, 2024, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, whichever is later, until the principal hereof is paid or duly made available for payment. Interest on this Note shall be payable semi-annually in arrears on January 1 and July 1 of each year, commencing on January 1, 2025, to the Person in whose name this Note is registered at the close of business on the Record Date for the applicable Interest Payment Date, which shall be the December 15 or June 15 (whether or not a Business Day) immediately preceding such Interest Payment Date.
If any Interest Payment Date, the Maturity Date, or any Redemption Date falls on a day that is not a Business Day, the required payment of principal, premium (if any), or interest shall be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such scheduled date to the date of such payment on the next succeeding Business Day.
METHOD OF PAYMENT
The Issuer shall pay the principal of, premium (if any), and interest on this Note in United States dollars in immediately available funds. All payments of principal, premium (if any), and interest on this Note shall be made through the facilities of The Depository Trust Company ("DTC") in accordance with DTC's applicable procedures, as in effect from time to time. Payments shall be made to the registered Holders as of the close of business on the applicable Record Date, being December 15 or June 15, as applicable, immediately preceding the relevant Interest Payment Date. The Issuer shall make all payments in respect of this Note in the manner and subject to the conditions set forth in the Indenture, including, without limitation, the provisions of Sections 2.04, 2.14, and 2.15 thereof governing the mechanics and procedures for payments on Global Notes held through DTC.
PAYING AGENT, REGISTRAR, AND TRANSFER AGENT
The Issuer initially appoints Fidelitas Trust Company, N.A., located at 100 Wall Street, Suite 1500, New York, New York 10005, as Paying Agent, Registrar, and Transfer Agent with respect to the Notes. The Issuer may change the Paying Agent, Registrar, or Transfer Agent without prior notice to the Holders, subject to and in accordance with the terms and conditions of the Indenture. The Issuer or any of its Subsidiaries may act as Paying Agent, Registrar, or Transfer Agent, subject to the limitations set forth in the Indenture.
INDENTURE; DEFINED TERMS
This Note is one of a duly authorized issue of 8.250% Senior Notes due 2031 (collectively, the "Notes") of the Issuer, limited in initial aggregate principal amount to $500,000,000, except as otherwise provided in the Indenture (as defined below), issued under and governed by an Indenture dated as of June 25, 2024 (as supplemented, amended, restated, or otherwise modified from time to time in accordance with its terms, the "Indenture"), among Verimark Hospitality Group Inc. (the "Issuer"), the Guarantors from time to time party thereto, and Fidelitas Trust Company, N.A. (the "Trustee").
The terms of the Notes include those set forth in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb) (to the extent applicable) (the "Trust Indenture Act"). The Notes are subject to all the terms and provisions of the Indenture, and Holders are referred to the Indenture and the Trust Indenture Act for a statement thereof. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
All capitalized terms used in this Note that are not otherwise defined herein shall have the respective meanings assigned to them in the Indenture. The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Verimark Hospitality Group Inc., Attention: General Counsel, 8400 International Drive, Suite 1200, Orlando, Florida 32819.
GUARANTEES
This Note is entitled to the benefits of the Subsidiary Guarantees set forth in Article 10 of the Indenture. The obligations of the Issuer under this Note and the Indenture are guaranteed, jointly and severally, on a senior unsecured basis, by each of the following Guarantors:
(a) Verimark Resort Holdings LLC, a Delaware limited liability company;
(b) VHG Properties Inc., a Delaware corporation;
(c) Bayshore Hotel Management LLC, a Florida limited liability company;
(d) Verimark Capital Holdings LLC, a Delaware limited liability company; and
(e) Pinnacle Lodging Enterprises Inc., a Delaware corporation.
Each Guarantee is the senior unsecured obligation of the applicable Guarantor, and each such Guarantee is subject to the limitations and conditions described in Article 10 of the Indenture, including, without limitation, customary fraudulent conveyance savings language and limitations necessary to ensure that each Guarantee does not constitute a fraudulent conveyance or fraudulent transfer under applicable law. The notation of each Guarantee is set forth on the reverse of this Note.
RANKING
The Notes constitute senior unsecured obligations of the Issuer. The Notes rank equally in right of payment with all existing and future senior Indebtedness of the Issuer, including, without limitation, borrowings under the Issuer's senior secured credit facility (without giving effect to collateral). The Notes rank senior in right of payment to all existing and future Subordinated Indebtedness of the Issuer.
The Notes are effectively subordinated to all existing and future secured Indebtedness of the Issuer to the extent of the value of the assets securing such Indebtedness. In addition, the Notes are structurally subordinated to all existing and future Indebtedness and other obligations (including trade payables) of any Subsidiary of the Issuer that is not a Guarantor.
Each Guarantee ranks equally in right of payment with all existing and future senior Indebtedness of the applicable Guarantor, ranks senior in right of payment to all existing and future Subordinated Indebtedness of the applicable Guarantor, and is effectively subordinated to all existing and future secured Indebtedness of the applicable Guarantor to the extent of the value of the assets securing such Indebtedness.
OPTIONAL REDEMPTION
The Notes are subject to redemption at the election of the Issuer, in whole or in part, at any time and from time to time, as set forth below.
Redemption on or after July 1, 2027. On or after July 1, 2027, the Issuer may redeem the Notes, in whole or in part, at the following redemption prices (expressed as a percentage of principal amount), plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on July 1 of each of the following years:
Make-Whole Redemption Prior to July 1, 2027. At any time prior to July 1, 2027, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus the Applicable Premium (as defined in the Indenture), plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date.
The procedures and other terms and conditions applicable to any redemption of the Notes, including, without limitation, the requirements for selection of Notes for redemption, notice of redemption (which shall be not less than 10 nor more than 60 days prior to the Redemption Date), and the effect of a redemption, are set forth in Section 3.07 of the Indenture.
EQUITY CLAWBACK
At any time, or from time to time, prior to July 1, 2027, the Issuer may, at its option, redeem up to 40% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) (i.e., up to $200,000,000 of the original $500,000,000 aggregate principal amount) at a redemption price equal to 108.250% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date, with the net cash proceeds of one or more qualifying Equity Offerings (as defined in the Indenture); provided that:
(a) at least 60% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) remains outstanding immediately after the occurrence of any such redemption (excluding Notes held by the Issuer and its Subsidiaries); and
(b) such redemption occurs within 180 days after the closing of the related Equity Offering.
The procedures and terms applicable to any such equity clawback redemption are set forth in Section 3.08 of the Indenture.
CHANGE OF CONTROL
Upon the occurrence of a Change of Control (as defined in the Indenture), each Holder of Notes shall have the right to require the Issuer to repurchase all or any part ($2,000 or an integral multiple of $1,000 in excess thereof) of such Holder's Notes at a purchase price in cash equal to 101.000% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the Change of Control Payment Date (as defined in the Indenture). The procedures, definitions, and conditions applicable to any such Change of Control Offer are set forth in Section 4.14 of the Indenture, to which provision each Holder is referred for a complete description of its rights upon the occurrence of a Change of Control.
COVENANTS
The Indenture contains covenants that, among other things and subject to certain exceptions and qualifications set forth therein, limit the ability of the Issuer and the Restricted Subsidiaries to:
(a) incur additional Indebtedness (subject to a Fixed Charge Coverage Ratio incurrence test of not less than 2.00 to 1.00 and a general permitted Indebtedness basket of $75,000,000);
(b) make Restricted Payments (subject to a builder basket of $50,000,000 plus 50% of cumulative Consolidated Net Income earned from July 1, 2024 through the end of the most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, subject to reduction for Consolidated Net Losses as set forth in the Indenture);
(c) create or incur Liens (subject to a permitted Liens basket of $50,000,000);
(d) sell or otherwise dispose of assets (subject to a 365-day reinvestment period for Asset Sale proceeds, with remaining Net Proceeds applied to an offer to repurchase Notes at 100% of the principal amount thereof);
(e) enter into certain transactions with Affiliates;
(f) designate Restricted Subsidiaries as Unrestricted Subsidiaries;
(g) pay dividends or make other distributions on, or redeem or repurchase, Capital Stock;
(h) enter into agreements that restrict the ability of Restricted Subsidiaries to pay dividends or make other transfers to the Issuer; and
(i) merge, consolidate, or sell all or substantially all of the Issuer's assets.
These covenants are incurrence-based and not maintenance-based. The complete text of each covenant, together with all applicable definitions, exceptions, permitted baskets, and qualifications, is set forth in Article 4 of the Indenture.
EVENTS OF DEFAULT
If an Event of Default (as defined in the Indenture) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then-outstanding Notes may declare all Notes to be due and payable immediately in the manner and with the effect set forth in the Indenture. Events of Default include, without limitation:
(a) failure to pay interest on any Note when due and payable, and continuance of such default for a period of 30 days;
(b) failure to pay the principal of, or premium (if any) on, any Note when due and payable, whether at maturity, upon redemption, upon required repurchase, upon declaration of acceleration, or otherwise;
(c) failure by the Issuer or any Guarantor to comply with the provisions described in Article 4 of the Indenture (subject to the cure periods specified therein, which shall not be less than 30 days following notice from the Trustee or Holders of at least 25% in aggregate principal amount of the then-outstanding Notes);
(d) default under any mortgage, indenture, or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any Restricted Subsidiary (or the payment of which is guaranteed by the Issuer or any Restricted Subsidiary), whether such Indebtedness or guarantee now exists or is created after the Issue Date, if that default results in the acceleration of such Indebtedness prior to its express maturity or constitutes a failure to pay such Indebtedness at its stated maturity, in each case where the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness that is in default, aggregates $25,000,000 or more;
(e) the entry of a final judgment or judgments for the payment of money against the Issuer or any Restricted Subsidiary in an aggregate amount in excess of $25,000,000 (net of amounts covered by insurance or indemnity), which judgments are not paid, discharged, or stayed for a period of 60 consecutive days;
(f) certain events of bankruptcy, insolvency, or reorganization involving the Issuer or any Significant Subsidiary (as defined in the Indenture); and
(g) any Guarantee ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or any Guarantor denies or disaffirms its obligations under its Guarantee.
The full text of the Events of Default and the rights and remedies of the Trustee and the Holders upon the occurrence and continuance of an Event of Default are set forth in Article 6 of the Indenture, to which provision the Holders are referred for a complete description of such rights and remedies.
DEFEASANCE
The Issuer may, at its election, cause itself and the Guarantors to be discharged from their respective obligations with respect to the Notes and the Guarantees ("legal defeasance") or to be released from its obligations under certain covenants set forth in the Indenture ("covenant defeasance"), in each case upon satisfaction of the conditions set forth in Article 8 of the Indenture. Such conditions include, among other things, the irrevocable deposit with the Trustee (or other qualifying trustee) of cash in United States dollars, U.S. Government Obligations (as defined in the Indenture), or a combination thereof, in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, including principal, premium (if any), and interest, to the date of maturity or redemption, as the case may be, together with the delivery of an Officers' Certificate and an Opinion of Counsel meeting the requirements set forth in the Indenture.
AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the written consent of the Holders of not less than a majority in aggregate principal amount of the then-outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). Without the consent of any Holder, the Issuer, the Guarantors, and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect, or inconsistency, add Guarantors, secure the Notes, comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the legal rights of any Holder.
No amendment or waiver may, without the consent of each Holder affected thereby: (a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement, or waiver; (b) reduce the principal of or change the fixed maturity of any Note; (c) reduce the rate of or change the time for payment of interest on any Note; (d) waive a Default or Event of Default in the payment of the principal of, premium (if any), or interest on the Notes; (e) make any Note payable in money other than that stated in the Notes; (f) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium (if any) on, the Notes; or (g) release any Guarantor from any of its obligations under its Guarantee or the Indenture, except in accordance with the terms of the Indenture.
The complete terms and conditions governing amendments, supplements, and waivers are set forth in Article 9 of the Indenture.
TRANSFER AND EXCHANGE; BOOK-ENTRY PROVISIONS
This Regulation S Global Note is registered in the name of Cede & Co. as nominee for DTC. Beneficial interests in this Global Note are shown on, and transfers thereof shall be effected only through, records maintained by DTC and its direct and indirect participants (including Stonefield Industries and Harborview Industries, as applicable). Except as set forth in the Indenture, the registered Holder of this Global Note may be treated as the absolute owner hereof for all purposes, and neither the Issuer, the Trustee, any Paying Agent, nor any Registrar shall be affected by notice to the contrary.
Restrictions on Transfer During Distribution Compliance Period. During the distribution compliance period (which is the period of 40 days after the later of the commencement of the offering of the Notes and the closing date (i.e., June 25, 2024)), beneficial interests in this Regulation S Global Note may only be transferred (a) to persons outside the United States in offshore transactions in compliance with Rule 903 or Rule 904 of Regulation S under the Securities Act, or (b) to qualified institutional buyers (as defined in Rule 144A under the Securities Act) in reliance on Rule 144A, and in such case by transfer of such beneficial interest to the 144A Global Note, in each case in accordance with the applicable certification and other requirements set forth in the Indenture.
Transfers After Expiration of Distribution Compliance Period. After the expiration of the distribution compliance period, beneficial interests in this Regulation S Global Note may be transferred to the 144A Global Note upon delivery of the certifications and in accordance with the procedures set forth in Section 2.06 of the Indenture. Any such transfer shall be effected through an increase in the principal amount of the 144A Global Note and a corresponding decrease in the principal amount of this Regulation S Global Note, as recorded on the Schedule of Increases and Decreases in Global Note attached hereto.
Issuance of Definitive Notes. Beneficial owners of interests in this Global Note shall not be entitled to receive physical delivery of certificated Notes in definitive form ("Definitive Notes") unless: (a) DTC notifies the Issuer that it is unwilling or unable to continue as depositary for this Global Note or has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and no successor depositary is appointed within 90 days after the Issuer receives such notice or becomes aware of such ineligibility; (b) the Issuer, in its sole discretion, determines that this Global Note shall be exchangeable for Definitive Notes; or (c) there shall have occurred and be continuing an Event of Default with respect to the Notes. In any such case, the Issuer shall notify the Trustee in writing that the Global Notes shall be exchanged in whole for Definitive Notes, and Definitive Notes shall be prepared, authenticated, and delivered in accordance with the terms of the Indenture.
REGISTRATION RIGHTS
The Holders of this Note are entitled to the benefits of the Registration Rights Agreement dated as of June 25, 2024 (the "Registration Rights Agreement"), among the Issuer, the Guarantors, and the Initial Purchasers named therein.
Pursuant to the Registration Rights Agreement, the Issuer has agreed to (a) file a registration statement (the "Exchange Offer Registration Statement") with the Securities and Exchange Commission (the "SEC") with respect to a registered offer to exchange the Notes for a new issue of substantially identical notes registered under the Securities Act (the "Exchange Notes") within 180 days after June 25, 2024 (i.e., on or before January 4, 2025), and (b) use its commercially reasonable efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act within 365 days after June 25, 2024 (i.e., on or before July 8, 2025), and to consummate the Exchange Offer within 30 Business Days after such effective date.
In certain circumstances, the Issuer has agreed to file a shelf registration statement in lieu of or in addition to the Exchange Offer Registration Statement, as more fully described in the Registration Rights Agreement.
If the Issuer fails to satisfy its obligations under the Registration Rights Agreement within the time periods specified therein (a "Registration Default"), additional interest shall accrue on this Note at a rate of 0.25% per annum for the first 90-day period immediately following the occurrence of such Registration Default, increasing by an additional 0.25% per annum with respect to each subsequent 90-day period during which such Registration Default continues, up to a maximum additional interest rate of 1.00% per annum, until such Registration Default is cured. Upon cure of all Registration Defaults, the accrual of additional interest shall cease and the interest rate shall revert to the original rate of 8.250% per annum.
DENOMINATIONS
The Notes are issuable only in fully registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or other governmental charge payable in connection therewith.
AUTHENTICATION
This Note shall not be valid or become obligatory for any purpose until the Certificate of Authentication hereon has been signed by the Trustee or an authenticating agent appointed by the Trustee by manual or facsimile signature, and such signature shall be conclusive evidence, and the only evidence, that this Note has been duly authenticated and delivered hereunder.
GOVERNING LAW
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT OR UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, THE INDENTURE, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
TRUSTEE DEALINGS WITH THE ISSUER
The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, any Guarantor, or any Affiliate of the Issuer or any Guarantor with the same rights the Trustee would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee is also subject to the provisions of Sections 7.10 and 7.11 of the Indenture.
NO RECOURSE AGAINST OTHERS
No past, present, or future director, officer, employee, incorporator, member, partner, manager, stockholder, or agent of the Issuer or any Guarantor, as such, shall have any liability for any obligation of the Issuer or any Guarantor under this Note, the Indenture, or the Guarantees, or for any claim based on, in respect of, or by reason of, any such obligation or the creation thereof. Each Holder of Notes, by accepting a Note, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by a duly authorized officer.
VERIMARK HOSPITALITY GROUP INC.
By: ________
Name: ________
Title: ________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
FIDELITAS TRUST COMPANY, N.A., as Trustee
By: ________
Name: ________
Title: Authorized Signatory
Date of Authentication: ____, 2024
[REVERSE OF NOTE]
SUBSIDIARY GUARANTEE
Each of the undersigned Guarantors (each, a "Guarantor" and collectively, the "Guarantors") hereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, the full and prompt payment when due (whether at maturity, by acceleration, by redemption, by required repurchase, or otherwise) of the principal of, premium (if any), and interest on the Notes and all other obligations of the Issuer under the Indenture and the Notes (including, without limitation, fees, expenses, costs of collection, indemnification, and all other amounts due or owing thereunder), whether now existing or hereafter arising, in accordance with the terms thereof and of Article 10 of the Indenture (each such obligation being hereinafter referred to as a "Guaranteed Obligation" and all such obligations being hereinafter collectively referred to as the "Guaranteed Obligations").
Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from such Guarantor, and that such Guarantor shall remain bound under this Guarantee notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from, and protest to the Issuer of any of the Guaranteed Obligations, and also waives notice of acceptance of its Guarantee and notice of protest for nonpayment.
This Guarantee shall not be valid or become obligatory for any purpose with respect to a Note until such Note has been authenticated by the Trustee.
Each Guarantee is subject to release upon the terms and conditions set forth in Section 10.04 of the Indenture, including, without limitation, upon the release or discharge of such Guarantor's guarantee of borrowings under the Issuer's Credit Agreement (as defined in the Indenture), upon the designation of the applicable Guarantor as an Unrestricted Subsidiary in accordance with the terms of the Indenture, upon the sale or other disposition of all of the Capital Stock of such Guarantor (or all or substantially all the assets of such Guarantor) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Restricted Subsidiary, or upon legal defeasance or covenant defeasance as described in Article 8 of the Indenture, or upon satisfaction and discharge of the Indenture as described in Article 11 of the Indenture.
Each Guarantee is subject to the limitations described in Article 10 of the Indenture, including customary fraudulent conveyance savings language providing that each Guarantor's liability under its Guarantee shall be limited to the maximum amount that can be guaranteed by such Guarantor without rendering such Guarantee voidable under applicable law relating to fraudulent conveyance, fraudulent transfer, or similar laws.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this Guarantee to be signed manually or by facsimile by a duly authorized officer or representative.
VERIMARK RESORT HOLDINGS LLC
By: ________
Name: ________
Title: ________
VHG PROPERTIES INC.
By: ________
Name: ________
Title: ________
BAYSHORE HOTEL MANAGEMENT LLC
By: ________
Name: ________
Title: ________
VERIMARK CAPITAL HOLDINGS LLC
By: ________
Name: ________
Title: ________
PINNACLE LODGING ENTERPRISES INC.
By: ________
Name: ________
Title: ________
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[__]. The following increases and decreases in the principal amount of this Global Note have been made:
Note: Increases in the principal amount of this Regulation S Global Note reflect transfers of beneficial interests from the 144A Global Note (CUSIP: 92384M AA 5) to this Regulation S Global Note in accordance with the transfer provisions set forth in the Indenture. Decreases in the principal amount of this Regulation S Global Note reflect transfers of beneficial interests from this Regulation S Global Note to the 144A Global Note in accordance with such transfer provisions. Each such increase or decrease shall be recorded by the Trustee or its agent in accordance with Section 2.06 of the Indenture.
CUSIP No.: | U92384 AA 8
ISIN: | USU92384AA83
Certificate No.: | [__]-R
Original Principal Amount: | $[__]
Issue Date: | June 25, 2024
Maturity Date: | July 1, 2031
Interest Rate: | 8.250% per annum
Interest Payment Dates: | January 1 and July 1 of each year, commencing January 1, 2025
Record Dates: | December 15 and June 15 immediately preceding each Interest Payment Date
Registered Holder: | Cede & Co. (as nominee for The Depository Trust Company)
Year | Redemption Price
2027 | 104.125%
2028 | 102.063%
2029 and thereafter | 100.000%
Date of Exchange | Amount of Increase in Principal Amount | Amount of Decrease in Principal Amount | Principal Amount Following Increase or Decrease | Signature of Authorized Signatory of Trustee
June 25, 2024 (Issue Date) | — | — | $[__] | ______