GUARANTOR JOINDER AGREEMENTS
Executed in connection with the Indenture dated as of June 25, 2024 among
Verimark Hospitality Group Inc., as Issuer,
the Guarantors party thereto,
and
Fidelitas Trust Company, N.A., as Trustee,
governing the
8.250% Senior Notes due 2031
Aggregate Principal Amount: $500,000,000
The following Guarantor Joinder Agreements were executed and delivered on June 25, 2024 (the "Closing Date") by each of the subsidiary guarantors listed below, in connection with the issuance by Verimark Hospitality Group Inc., a Delaware corporation (the "Issuer"), of $500,000,000 in aggregate principal amount of 8.250% Senior Notes due 2031 (the "Notes") pursuant to the Indenture dated as of the Closing Date (the "Indenture") among the Issuer, the Guarantors party thereto, and Fidelitas Trust Company, N.A., a national banking association, as Trustee (the "Trustee").
Each of the following subsidiary guarantors has executed and delivered a separate Guarantor Joinder Agreement, each of which is compiled herein as a single closing deliverable:
1. Verimark Resort Holdings LLC, a limited liability company organized under the laws of the State of Delaware
2. VHG Properties Inc., a corporation organized under the laws of the State of Delaware
3. Bayshore Hotel Management LLC, a limited liability company organized under the laws of the State of Florida
4. Verimark Capital Holdings LLC, a limited liability company organized under the laws of the State of Delaware
5. Pinnacle Lodging Enterprises Inc., a corporation organized under the laws of the State of Delaware
Each Guarantor Joinder Agreement set forth herein is a standalone executed instrument and shall be effective independently of each other joinder agreement contained in this compilation.
Prepared by Calderwood & Harkness LLP, One Liberty Plaza, 45th Floor, New York, NY 10006
JOINDER AGREEMENT NO. 1
GUARANTOR JOINDER AGREEMENT
Dated as of June 25, 2024
This Guarantor Joinder Agreement (this "Joinder Agreement") is executed and delivered as of June 25, 2024 by Verimark Resort Holdings LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware (the "New Guarantor"), in favor of Fidelitas Trust Company, N.A., a national banking association, as trustee (the "Trustee") under the Indenture (as defined below), for the benefit of the Holders (as defined in the Indenture) of the Notes (as defined below).
Reference is made to (i) the Indenture dated as of June 25, 2024 (as the same may be amended, supplemented, or otherwise modified from time to time, the "Indenture") among Verimark Hospitality Group Inc., a corporation organized under the laws of the State of Delaware (the "Issuer"), the Guarantors party thereto from time to time, and the Trustee, governing the Issuer's 8.250% Senior Notes due 2031 (the "Notes"), and (ii) the Registration Rights Agreement dated as of June 25, 2024 (the "Registration Rights Agreement") among the Issuer, the Guarantors party thereto from time to time, and Kensington Barrow & Co., as Representative of the Initial Purchasers (as defined in the Indenture).
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.
RECITALS. WHEREAS, the Issuer has issued $500,000,000 in aggregate principal amount of 8.250% Senior Notes due 2031 pursuant to the Indenture;
WHEREAS, pursuant to Section 4.17 of the Indenture (Covenant to Provide Subsidiary Guarantees) and Article 10 of the Indenture (Subsidiary Guarantees), the New Guarantor is required to execute and deliver this Joinder Agreement to become a Guarantor under the Indenture and to guarantee the Issuer's obligations under the Indenture and the Notes;
WHEREAS, the New Guarantor is a direct Subsidiary of the Issuer and a Restricted Subsidiary for purposes of the Indenture; and
WHEREAS, the New Guarantor desires to become a party to the Indenture and the Registration Rights Agreement as a Guarantor, and to execute and deliver this Joinder Agreement to evidence its Guarantee of the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the New Guarantor hereby agrees as follows:
Section 1. Joinder to Indenture.
The New Guarantor hereby agrees to become a "Guarantor" under the Indenture as if it were an original signatory thereto on the date of execution of the Indenture. By executing this Joinder Agreement, the New Guarantor assumes all of the rights and obligations of a Guarantor under the Indenture, including, without limitation, all obligations arising under Article 10 thereof (Subsidiary Guarantees).
The New Guarantor hereby unconditionally guarantees, on a joint and several basis with each other Guarantor under the Indenture, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes, or the obligations of the Issuer to the Holders or the Trustee thereunder or in respect thereof, the full and punctual payment of principal of, premium, if any, and interest on the Notes when due, whether at the Stated Maturity thereof, by acceleration, by redemption, by offer to purchase, or otherwise, and all other monetary obligations of the Issuer under the Indenture and the Notes (including obligations to the Trustee), whether for payment of fees, costs, indemnification, or otherwise (all such obligations being herein referred to collectively as the "Guaranteed Obligations"), in each case in accordance with the terms set forth in Article 10 of the Indenture. The Guarantee of the New Guarantor constitutes a senior unsecured obligation of the New Guarantor and shall rank equally in right of payment with all existing and future senior unsecured Indebtedness of the New Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the New Guarantor.
The New Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from the New Guarantor, and that the New Guarantor shall remain bound under this Joinder Agreement and Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
Section 2. Joinder to Registration Rights Agreement.
The New Guarantor hereby agrees to become a "Guarantor" under the Registration Rights Agreement as if it were an original signatory thereto on the date of execution of the Registration Rights Agreement. By executing this Joinder Agreement, the New Guarantor assumes all of the obligations of a Guarantor under the Registration Rights Agreement, including, without limitation, all obligations with respect to the filing and effectiveness of the exchange offer registration statement and shelf registration statement contemplated thereby. The New Guarantor acknowledges and agrees that, pursuant to the Registration Rights Agreement, the Issuer and the Guarantors are required to (i) file with the Securities and Exchange Commission (the "SEC") an exchange offer registration statement with respect to the Exchange Notes (as defined in the Registration Rights Agreement) within one hundred eighty (180) days after June 25, 2024 (i.e., on or before January 4, 2025) and (ii) cause such registration statement to become effective within three hundred sixty-five (365) days after June 25, 2024 (i.e., on or before July 8, 2025), in each case subject to the terms and conditions of the Registration Rights Agreement.
Section 3. Representations and Warranties.
The New Guarantor hereby represents and warrants to the Trustee, for the benefit of the Holders, as follows:
(a) Organization and Good Standing. The New Guarantor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Power and Authority. The New Guarantor has all requisite limited liability company power and authority to execute, deliver, and perform its obligations under this Joinder Agreement and the Indenture (including the Guarantee), and to consummate the transactions contemplated hereby and thereby.
(c) Due Authorization. The execution, delivery, and performance of this Joinder Agreement and the Guarantee have been duly authorized by all necessary limited liability company action on the part of the New Guarantor, including pursuant to resolutions of the Board of Managers of the New Guarantor adopted on June 14, 2024. No other limited liability company action or proceeding on the part of the New Guarantor or its members or managers is necessary to authorize the execution, delivery, or performance of this Joinder Agreement or the Guarantee.
(d) Enforceability. This Joinder Agreement has been duly executed and delivered by the New Guarantor and constitutes the legal, valid, and binding obligation of the New Guarantor, enforceable against the New Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith, and fair dealing), regardless of whether considered in a proceeding in equity or at law.
(e) No Conflicts. The execution, delivery, and performance of this Joinder Agreement and the Guarantee by the New Guarantor do not and will not (i) conflict with, or result in a breach or violation of, any provision of the certificate of formation or limited liability company agreement (or equivalent organizational documents) of the New Guarantor, (ii) conflict with, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, result in the creation of any Lien upon any of the properties or assets of the New Guarantor pursuant to, or require any consent or approval under, any material agreement, instrument, or obligation to which the New Guarantor is a party or by which the New Guarantor or any of its properties or assets may be bound, or (iii) violate any applicable law, rule, regulation, judgment, injunction, order, or decree of any Governmental Authority having jurisdiction over the New Guarantor or any of its properties or assets.
Section 4. Limitation on Guarantee (Savings Clause).
The obligations of the New Guarantor under the Guarantee set forth herein and under Article 10 of the Indenture shall be limited to the maximum amount that can be guaranteed by the New Guarantor without rendering the Guarantee, as it relates to the New Guarantor, voidable or unenforceable under applicable law relating to fraudulent conveyance or fraudulent transfer, including, without limitation, Section 548 of Title 11 of the United States Code (the "Bankruptcy Code"), and any applicable provisions of the Uniform Fraudulent Transfer Act, the Uniform Fraudulent Conveyance Act, the Uniform Voidable Transactions Act, or any similar federal or state law, in each case as in effect from time to time, after giving effect to all other contingent and fixed liabilities of the New Guarantor that are relevant under such laws and after giving effect to any collections from, or payments made by or on behalf of, any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee.
Section 5. Notices.
All notices and other communications to the New Guarantor hereunder or under the Indenture shall be in writing and shall be sent to:
Verimark Resort Holdings LLC c/o Verimark Hospitality Group Inc. 2400 Brickell Bay Drive, Suite 3100 Miami, FL 33129
Attention: David K. Moretti, General Counsel
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP One Liberty Plaza, 45th Floor New York, NY 10006
Attention: Theodore Langston
Section 6. Governing Law.
This Joinder Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws thereof that would require the application of the laws of any other jurisdiction.
Section 7. Counterparts.
This Joinder Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Joinder Agreement by facsimile or other electronic transmission (including portable document format (.pdf)) shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.
Section 8. Trustee.
The Trustee shall not be responsible for the validity or sufficiency of this Joinder Agreement or for the recitals contained herein, all of which recitals are made solely by the New Guarantor. All notices and communications to the Trustee hereunder shall be directed to:
Fidelitas Trust Company, N.A. 100 Wall Street, Suite 1500 New York, NY 10005
Attention: Rebecca A. Marsden, Vice President, Corporate Trust Administration
[Signature Page Follows]
IN WITNESS WHEREOF, the New Guarantor has caused this Joinder Agreement to be duly executed and delivered as of the date first written above.
VERIMARK RESORT HOLDINGS LLC
By: ________
Name: Michael R. Canfield
Title: Authorized Manager
Date: June 25, 2024
Acknowledged and accepted:
FIDELITAS TRUST COMPANY, N.A., as Trustee
By: ________
Name: Rebecca A. Marsden
Title: Vice President, Corporate Trust Administration
JOINDER AGREEMENT NO. 2
GUARANTOR JOINDER AGREEMENT
Dated as of June 25, 2024
This Guarantor Joinder Agreement (this "Joinder Agreement") is executed and delivered as of June 25, 2024 by VHG Properties Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the "New Guarantor"), in favor of Fidelitas Trust Company, N.A., a national banking association, as trustee (the "Trustee") under the Indenture (as defined below), for the benefit of the Holders (as defined in the Indenture) of the Notes (as defined below).
Reference is made to (i) the Indenture dated as of June 25, 2024 (as the same may be amended, supplemented, or otherwise modified from time to time, the "Indenture") among Verimark Hospitality Group Inc., a corporation organized under the laws of the State of Delaware (the "Issuer"), the Guarantors party thereto from time to time, and the Trustee, governing the Issuer's 8.250% Senior Notes due 2031 (the "Notes"), and (ii) the Registration Rights Agreement dated as of June 25, 2024 (the "Registration Rights Agreement") among the Issuer, the Guarantors party thereto from time to time, and Kensington Barrow & Co., as Representative of the Initial Purchasers (as defined in the Indenture).
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.
RECITALS. WHEREAS, the Issuer has issued $500,000,000 in aggregate principal amount of 8.250% Senior Notes due 2031 pursuant to the Indenture;
WHEREAS, pursuant to Section 4.17 of the Indenture (Covenant to Provide Subsidiary Guarantees) and Article 10 of the Indenture (Subsidiary Guarantees), the New Guarantor is required to execute and deliver this Joinder Agreement to become a Guarantor under the Indenture and to guarantee the Issuer's obligations under the Indenture and the Notes;
WHEREAS, the New Guarantor is a direct Subsidiary of the Issuer and a Restricted Subsidiary for purposes of the Indenture, and holds fee-simple interests in thirty-two (32) hotel properties operated by affiliates of the Issuer; and
WHEREAS, the New Guarantor desires to become a party to the Indenture and the Registration Rights Agreement as a Guarantor, and to execute and deliver this Joinder Agreement to evidence its Guarantee of the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the New Guarantor hereby agrees as follows:
Section 1. Joinder to Indenture.
The New Guarantor hereby agrees to become a "Guarantor" under the Indenture as if it were an original signatory thereto on the date of execution of the Indenture. By executing this Joinder Agreement, the New Guarantor assumes all of the rights and obligations of a Guarantor under the Indenture, including, without limitation, all obligations arising under Article 10 thereof (Subsidiary Guarantees).
The New Guarantor hereby unconditionally guarantees, on a joint and several basis with each other Guarantor under the Indenture, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes, or the obligations of the Issuer to the Holders or the Trustee thereunder or in respect thereof, the full and punctual payment of principal of, premium, if any, and interest on the Notes when due, whether at the Stated Maturity thereof, by acceleration, by redemption, by offer to purchase, or otherwise, and all other monetary obligations of the Issuer under the Indenture and the Notes (including obligations to the Trustee), whether for payment of fees, costs, indemnification, or otherwise (all such obligations being herein referred to collectively as the "Guaranteed Obligations"), in each case in accordance with the terms set forth in Article 10 of the Indenture. The Guarantee of the New Guarantor constitutes a senior unsecured obligation of the New Guarantor and shall rank equally in right of payment with all existing and future senior unsecured Indebtedness of the New Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the New Guarantor.
The New Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from the New Guarantor, and that the New Guarantor shall remain bound under this Joinder Agreement and Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
Section 2. Joinder to Registration Rights Agreement.
The New Guarantor hereby agrees to become a "Guarantor" under the Registration Rights Agreement as if it were an original signatory thereto on the date of execution of the Registration Rights Agreement. By executing this Joinder Agreement, the New Guarantor assumes all of the obligations of a Guarantor under the Registration Rights Agreement, including, without limitation, all obligations with respect to the filing and effectiveness of the exchange offer registration statement and shelf registration statement contemplated thereby. The New Guarantor acknowledges and agrees that, pursuant to the Registration Rights Agreement, the Issuer and the Guarantors are required to (i) file with the Securities and Exchange Commission (the "SEC") an exchange offer registration statement with respect to the Exchange Notes (as defined in the Registration Rights Agreement) within one hundred eighty (180) days after June 25, 2024 (i.e., on or before January 4, 2025) and (ii) cause such registration statement to become effective within three hundred sixty-five (365) days after June 25, 2024 (i.e., on or before July 8, 2025), in each case subject to the terms and conditions of the Registration Rights Agreement.
Section 3. Representations and Warranties.
The New Guarantor hereby represents and warrants to the Trustee, for the benefit of the Holders, as follows:
(a) Organization and Good Standing. The New Guarantor is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Power and Authority. The New Guarantor has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Joinder Agreement and the Indenture (including the Guarantee), and to consummate the transactions contemplated hereby and thereby.
(c) Due Authorization. The execution, delivery, and performance of this Joinder Agreement and the Guarantee have been duly authorized by all necessary corporate action on the part of the New Guarantor, including pursuant to resolutions of the Board of Directors of the New Guarantor adopted on June 14, 2024. No other corporate action or proceeding on the part of the New Guarantor or its stockholders is necessary to authorize the execution, delivery, or performance of this Joinder Agreement or the Guarantee.
(d) Enforceability. This Joinder Agreement has been duly executed and delivered by the New Guarantor and constitutes the legal, valid, and binding obligation of the New Guarantor, enforceable against the New Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith, and fair dealing), regardless of whether considered in a proceeding in equity or at law.
(e) No Conflicts. The execution, delivery, and performance of this Joinder Agreement and the Guarantee by the New Guarantor do not and will not (i) conflict with, or result in a breach or violation of, any provision of the certificate of incorporation or bylaws (or equivalent organizational documents) of the New Guarantor, (ii) conflict with, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, result in the creation of any Lien upon any of the properties or assets of the New Guarantor pursuant to, or require any consent or approval under, any material agreement, instrument, or obligation to which the New Guarantor is a party or by which the New Guarantor or any of its properties or assets may be bound, or (iii) violate any applicable law, rule, regulation, judgment, injunction, order, or decree of any Governmental Authority having jurisdiction over the New Guarantor or any of its properties or assets.
Section 4. Limitation on Guarantee (Savings Clause).
The obligations of the New Guarantor under the Guarantee set forth herein and under Article 10 of the Indenture shall be limited to the maximum amount that can be guaranteed by the New Guarantor without rendering the Guarantee, as it relates to the New Guarantor, voidable or unenforceable under applicable law relating to fraudulent conveyance or fraudulent transfer, including, without limitation, Section 548 of Title 11 of the United States Code (the "Bankruptcy Code"), and any applicable provisions of the Uniform Fraudulent Transfer Act, the Uniform Fraudulent Conveyance Act, the Uniform Voidable Transactions Act, or any similar federal or state law, in each case as in effect from time to time, after giving effect to all other contingent and fixed liabilities of the New Guarantor that are relevant under such laws and after giving effect to any collections from, or payments made by or on behalf of, any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee.
Section 5. Notices.
All notices and other communications to the New Guarantor hereunder or under the Indenture shall be in writing and shall be sent to:
VHG Properties Inc. c/o Verimark Hospitality Group Inc. 2400 Brickell Bay Drive, Suite 3100 Miami, FL 33129
Attention: David K. Moretti, General Counsel
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP One Liberty Plaza, 45th Floor New York, NY 10006
Attention: Theodore Langston
Section 6. Governing Law.
This Joinder Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws thereof that would require the application of the laws of any other jurisdiction.
Section 7. Counterparts.
This Joinder Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Joinder Agreement by facsimile or other electronic transmission (including portable document format (.pdf)) shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.
Section 8. Trustee.
The Trustee shall not be responsible for the validity or sufficiency of this Joinder Agreement or for the recitals contained herein, all of which recitals are made solely by the New Guarantor. All notices and communications to the Trustee hereunder shall be directed to:
Fidelitas Trust Company, N.A. 100 Wall Street, Suite 1500 New York, NY 10005
Attention: Rebecca A. Marsden, Vice President, Corporate Trust Administration
[Signature Page Follows]
IN WITNESS WHEREOF, the New Guarantor has caused this Joinder Agreement to be duly executed and delivered as of the date first written above.
VHG PROPERTIES INC.
By: ________
Name: Sandra L. Whitfield
Title: President
Date: June 25, 2024
Acknowledged and accepted:
FIDELITAS TRUST COMPANY, N.A., as Trustee
By: ________
Name: Rebecca A. Marsden
Title: Vice President, Corporate Trust Administration
JOINDER AGREEMENT NO. 3
GUARANTOR JOINDER AGREEMENT
Dated as of June 25, 2024
This Guarantor Joinder Agreement (this "Joinder Agreement") is executed and delivered as of June 25, 2024 by Bayshore Hotel Management LLC, a limited liability company duly organized and validly existing under the laws of the State of Florida (the "New Guarantor"), in favor of Fidelitas Trust Company, N.A., a national banking association, as trustee (the "Trustee") under the Indenture (as defined below), for the benefit of the Holders (as defined in the Indenture) of the Notes (as defined below).
Reference is made to (i) the Indenture dated as of June 25, 2024 (as the same may be amended, supplemented, or otherwise modified from time to time, the "Indenture") among Verimark Hospitality Group Inc., a corporation organized under the laws of the State of Delaware (the "Issuer"), the Guarantors party thereto from time to time, and the Trustee, governing the Issuer's 8.250% Senior Notes due 2031 (the "Notes"), and (ii) the Registration Rights Agreement dated as of June 25, 2024 (the "Registration Rights Agreement") among the Issuer, the Guarantors party thereto from time to time, and Kensington Barrow & Co., as Representative of the Initial Purchasers (as defined in the Indenture).
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.
RECITALS. WHEREAS, the Issuer has issued $500,000,000 in aggregate principal amount of 8.250% Senior Notes due 2031 pursuant to the Indenture;
WHEREAS, pursuant to Section 4.17 of the Indenture (Covenant to Provide Subsidiary Guarantees) and Article 10 of the Indenture (Subsidiary Guarantees), the New Guarantor is required to execute and deliver this Joinder Agreement to become a Guarantor under the Indenture and to guarantee the Issuer's obligations under the Indenture and the Notes;
WHEREAS, the New Guarantor is an indirect Subsidiary of the Issuer and a Restricted Subsidiary for purposes of the Indenture, and serves as the hotel management and operations subsidiary of the Issuer; and
WHEREAS, the New Guarantor desires to become a party to the Indenture and the Registration Rights Agreement as a Guarantor, and to execute and deliver this Joinder Agreement to evidence its Guarantee of the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the New Guarantor hereby agrees as follows:
Section 1. Joinder to Indenture.
The New Guarantor hereby agrees to become a "Guarantor" under the Indenture as if it were an original signatory thereto on the date of execution of the Indenture. By executing this Joinder Agreement, the New Guarantor assumes all of the rights and obligations of a Guarantor under the Indenture, including, without limitation, all obligations arising under Article 10 thereof (Subsidiary Guarantees).
The New Guarantor hereby unconditionally guarantees, on a joint and several basis with each other Guarantor under the Indenture, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes, or the obligations of the Issuer to the Holders or the Trustee thereunder or in respect thereof, the full and punctual payment of principal of, premium, if any, and interest on the Notes when due, whether at the Stated Maturity thereof, by acceleration, by redemption, by offer to purchase, or otherwise, and all other monetary obligations of the Issuer under the Indenture and the Notes (including obligations to the Trustee), whether for payment of fees, costs, indemnification, or otherwise (all such obligations being herein referred to collectively as the "Guaranteed Obligations"), in each case in accordance with the terms set forth in Article 10 of the Indenture. The Guarantee of the New Guarantor constitutes a senior unsecured obligation of the New Guarantor and shall rank equally in right of payment with all existing and future senior unsecured Indebtedness of the New Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the New Guarantor.
The New Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from the New Guarantor, and that the New Guarantor shall remain bound under this Joinder Agreement and Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
Section 2. Joinder to Registration Rights Agreement.
The New Guarantor hereby agrees to become a "Guarantor" under the Registration Rights Agreement as if it were an original signatory thereto on the date of execution of the Registration Rights Agreement. By executing this Joinder Agreement, the New Guarantor assumes all of the obligations of a Guarantor under the Registration Rights Agreement, including, without limitation, all obligations with respect to the filing and effectiveness of the exchange offer registration statement and shelf registration statement contemplated thereby. The New Guarantor acknowledges and agrees that, pursuant to the Registration Rights Agreement, the Issuer and the Guarantors are required to (i) file with the Securities and Exchange Commission (the "SEC") an exchange offer registration statement with respect to the Exchange Notes (as defined in the Registration Rights Agreement) within one hundred eighty (180) days after June 25, 2024 (i.e., on or before January 4, 2025) and (ii) cause such registration statement to become effective within three hundred sixty-five (365) days after June 25, 2024 (i.e., on or before July 8, 2025), in each case subject to the terms and conditions of the Registration Rights Agreement.
Section 3. Representations and Warranties.
The New Guarantor hereby represents and warrants to the Trustee, for the benefit of the Holders, as follows:
(a) Organization and Good Standing. The New Guarantor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Florida and has all requisite limited liability company power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Power and Authority. The New Guarantor has all requisite limited liability company power and authority to execute, deliver, and perform its obligations under this Joinder Agreement and the Indenture (including the Guarantee), and to consummate the transactions contemplated hereby and thereby.
(c) Due Authorization. The execution, delivery, and performance of this Joinder Agreement and the Guarantee have been duly authorized by all necessary limited liability company action on the part of the New Guarantor, including pursuant to resolutions of the Manager of the New Guarantor adopted on June 14, 2024. No other limited liability company action or proceeding on the part of the New Guarantor or its members or managers is necessary to authorize the execution, delivery, or performance of this Joinder Agreement or the Guarantee.
(d) Enforceability. This Joinder Agreement has been duly executed and delivered by the New Guarantor and constitutes the legal, valid, and binding obligation of the New Guarantor, enforceable against the New Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith, and fair dealing), regardless of whether considered in a proceeding in equity or at law.
(e) No Conflicts. The execution, delivery, and performance of this Joinder Agreement and the Guarantee by the New Guarantor do not and will not (i) conflict with, or result in a breach or violation of, any provision of the articles of organization or operating agreement (or equivalent organizational documents) of the New Guarantor, (ii) conflict with, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, result in the creation of any Lien upon any of the properties or assets of the New Guarantor pursuant to, or require any consent or approval under, any material agreement, instrument, or obligation to which the New Guarantor is a party or by which the New Guarantor or any of its properties or assets may be bound, or (iii) violate any applicable law, rule, regulation, judgment, injunction, order, or decree of any Governmental Authority having jurisdiction over the New Guarantor or any of its properties or assets.
Section 4. Limitation on Guarantee (Savings Clause).
The obligations of the New Guarantor under the Guarantee set forth herein and under Article 10 of the Indenture shall be limited to the maximum amount that can be guaranteed by the New Guarantor without rendering the Guarantee, as it relates to the New Guarantor, voidable or unenforceable under applicable law relating to fraudulent conveyance or fraudulent transfer, including, without limitation, Section 548 of Title 11 of the United States Code (the "Bankruptcy Code"), and any applicable provisions of the Uniform Fraudulent Transfer Act, the Uniform Fraudulent Conveyance Act, the Uniform Voidable Transactions Act, or any similar federal or state law, in each case as in effect from time to time, after giving effect to all other contingent and fixed liabilities of the New Guarantor that are relevant under such laws and after giving effect to any collections from, or payments made by or on behalf of, any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee.
Section 5. Notices.
All notices and other communications to the New Guarantor hereunder or under the Indenture shall be in writing and shall be sent to:
Bayshore Hotel Management LLC c/o Verimark Hospitality Group Inc. 2400 Brickell Bay Drive, Suite 3100 Miami, FL 33129
Attention: David K. Moretti, General Counsel
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP One Liberty Plaza, 45th Floor New York, NY 10006
Attention: Theodore Langston
Section 6. Governing Law.
This Joinder Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws thereof that would require the application of the laws of any other jurisdiction.
Section 7. Counterparts.
This Joinder Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Joinder Agreement by facsimile or other electronic transmission (including portable document format (.pdf)) shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.
Section 8. Trustee.
The Trustee shall not be responsible for the validity or sufficiency of this Joinder Agreement or for the recitals contained herein, all of which recitals are made solely by the New Guarantor. All notices and communications to the Trustee hereunder shall be directed to:
Fidelitas Trust Company, N.A. 100 Wall Street, Suite 1500 New York, NY 10005
Attention: Rebecca A. Marsden, Vice President, Corporate Trust Administration
[Signature Page Follows]
IN WITNESS WHEREOF, the New Guarantor has caused this Joinder Agreement to be duly executed and delivered as of the date first written above.
BAYSHORE HOTEL MANAGEMENT LLC
By: ________
Name: Carlos J. Navarro
Title: Authorized Manager
Date: June 25, 2024
Acknowledged and accepted:
FIDELITAS TRUST COMPANY, N.A., as Trustee
By: ________
Name: Rebecca A. Marsden
Title: Vice President, Corporate Trust Administration
JOINDER AGREEMENT NO. 4
GUARANTOR JOINDER AGREEMENT
Dated as of June 25, 2024
This Guarantor Joinder Agreement (this "Joinder Agreement") is executed and delivered as of June 25, 2024 by Verimark Capital Holdings LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware (the "New Guarantor"), in favor of Fidelitas Trust Company, N.A., a national banking association, as trustee (the "Trustee") under the Indenture (as defined below), for the benefit of the Holders (as defined in the Indenture) of the Notes (as defined below).
Reference is made to (i) the Indenture dated as of June 25, 2024 (as the same may be amended, supplemented, or otherwise modified from time to time, the "Indenture") among Verimark Hospitality Group Inc., a corporation organized under the laws of the State of Delaware (the "Issuer"), the Guarantors party thereto from time to time, and the Trustee, governing the Issuer's 8.250% Senior Notes due 2031 (the "Notes"), and (ii) the Registration Rights Agreement dated as of June 25, 2024 (the "Registration Rights Agreement") among the Issuer, the Guarantors party thereto from time to time, and Kensington Barrow & Co., as Representative of the Initial Purchasers (as defined in the Indenture).
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.
RECITALS. WHEREAS, the Issuer has issued $500,000,000 in aggregate principal amount of 8.250% Senior Notes due 2031 pursuant to the Indenture;
WHEREAS, pursuant to Section 4.17 of the Indenture (Covenant to Provide Subsidiary Guarantees) and Article 10 of the Indenture (Subsidiary Guarantees), the New Guarantor is required to execute and deliver this Joinder Agreement to become a Guarantor under the Indenture and to guarantee the Issuer's obligations under the Indenture and the Notes;
WHEREAS, the New Guarantor is a direct Subsidiary of the Issuer and a Restricted Subsidiary for purposes of the Indenture, and serves as an intermediate holding company through which certain of the Issuer's operating subsidiaries are held; and
WHEREAS, the New Guarantor desires to become a party to the Indenture and the Registration Rights Agreement as a Guarantor, and to execute and deliver this Joinder Agreement to evidence its Guarantee of the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the New Guarantor hereby agrees as follows:
Section 1. Joinder to Indenture.
The New Guarantor hereby agrees to become a "Guarantor" under the Indenture as if it were an original signatory thereto on the date of execution of the Indenture. By executing this Joinder Agreement, the New Guarantor assumes all of the rights and obligations of a Guarantor under the Indenture, including, without limitation, all obligations arising under Article 10 thereof (Subsidiary Guarantees).
The New Guarantor hereby unconditionally guarantees, on a joint and several basis with each other Guarantor under the Indenture, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes, or the obligations of the Issuer to the Holders or the Trustee thereunder or in respect thereof, the full and punctual payment of principal of, premium, if any, and interest on the Notes when due, whether at the Stated Maturity thereof, by acceleration, by redemption, by offer to purchase, or otherwise, and all other monetary obligations of the Issuer under the Indenture and the Notes (including obligations to the Trustee), whether for payment of fees, costs, indemnification, or otherwise (all such obligations being herein referred to collectively as the "Guaranteed Obligations"), in each case in accordance with the terms set forth in Article 10 of the Indenture. The Guarantee of the New Guarantor constitutes a senior unsecured obligation of the New Guarantor and shall rank equally in right of payment with all existing and future senior unsecured Indebtedness of the New Guarantor and senior in right of payment to all existing and future subordinated Indebtedness of the New Guarantor.
The New Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from the New Guarantor, and that the New Guarantor shall remain bound under this Joinder Agreement and Article 10 of the Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
Section 2. Joinder to Registration Rights Agreement.
The New Guarantor hereby agrees to become a "Guarantor" under the Registration Rights Agreement as if it were an original signatory thereto on the date of execution of the Registration Rights Agreement. By executing this Joinder Agreement, the New Guarantor assumes all of the obligations of a Guarantor under the Registration Rights Agreement, including, without limitation, all obligations with respect to the filing and effectiveness of the exchange offer registration statement and shelf registration statement contemplated thereby. The New Guarantor acknowledges and agrees that, pursuant to the Registration Rights Agreement, the Issuer and the Guarantors are required to (i) file with the Securities and Exchange Commission (the "SEC") an exchange offer registration statement with respect to the Exchange Notes (as defined in the Registration Rights Agreement) within one hundred eighty (180) days after June 25, 2024 (i.e., on or before January 4, 2025) and (ii) cause such registration statement to become effective within three hundred sixty-five (365) days after June 25, 2024 (i.e., on or before July 8, 2025), in each case subject to the terms and conditions of the Registration Rights Agreement.
Section 3. Representations and Warranties.
The New Guarantor hereby represents and warrants to the Trustee, for the benefit of the Holders, as follows:
(a) Organization and Good Standing. The New Guarantor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Power and Authority. The New Guarantor has all requisite limited liability company power and authority to execute, deliver, and perform its obligations under this Joinder Agreement and the Indenture (including the Guarantee), and to consummate the transactions contemplated hereby and thereby.
(c) Due Authorization. The execution, delivery, and performance of this Joinder Agreement and the Guarantee have been duly authorized by all necessary limited liability company action on the part of the New Guarantor, including pursuant to resolutions of the Board of Managers of the New Guarantor adopted on June 14, 2024. No other limited liability company action or proceeding on the part of the New Guarantor or its members or managers is necessary to authorize the execution, delivery, or performance of this Joinder Agreement or the Guarantee.
(d) Enforceability. This Joinder Agreement has been duly executed and delivered by the New Guarantor and constitutes the legal, valid, and binding obligation of the New Guarantor, enforceable against the New Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally from time to time in effect and to general principles of equity (including concepts of materiality, reasonableness, good faith, and fair dealing), regardless of whether considered in a proceeding in equity or at law.