REPURCHASE AGREEMENT
THIS REPURCHASE AGREEMENT, dated as of May 14, 2003 (this
"Agreement"), is made by and between Emeritus Corporation, a Washington
corporation (the "Purchaser"), as purchaser, and Merit Partners, LLC, a New
York limited liability company (the "Seller"), as seller.
RECITALS
WHEREAS, Purchaser and Seller entered into a Preferred Stock Purchase
Agreement, dated as of October 24, 1997, whereby the Purchaser issued to the
Seller 25,000 shares (the "Preferred Shares") of its 9% Cumulative Convertible
Exchangeable Redeemable Preferred Stock, par value $0.0001 per share, and the
Seller purchased the Preferred Shares for a purchase price of $25,000,000.00;
and
WHEREAS, the Purchaser wishes to be repurchase all of the Preferred
Shares and the Seller wishes to sell the Preferred Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, the parties agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following terms shall have the
following meanings for the purposes of this Agreement:
"Accrued Dividends" means all of the accrued but unpaid dividends on
the Preferred Shares at Closing.
"Affiliate" means, with respect to any specified Person, (1) any
other Person which, directly or indirectly, owns or controls, is under common
ownership or control with, or is owned or controlled by, such specified
Person, (2) any other Person which is a director, officer or partner or is,
directly or indirectly, the beneficial owner of 50 percent or more of any
class of securities of the specified Person or a Person described in clause
(1) of this paragraph, (3) and any relative or spouse of the specified Person
or any of the Persons contemplated in this definition.
"Business Day" means any day of the year other than (i) any Saturday
or Sunday or (ii) any other day on which commercial banks located in New York
City are generally closed for business.
"Control" or "control" means the possession, directly or indirectly,
alone or with others, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise; and "controlling" and "controlled"
have meanings correlative thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Financial Advisor Opinion" means an opinion from an independent
financial advisor confirming that the transaction provided for herein meets
the legal standards imposed by Section 23B.06.400 of the Washington Business
Corporation Act.
"Governmental Entity" means a court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency.
"Law" means any law, statute, ordinance, rule, regulation, order,
writ, judgment, injunction or decree of any Governmental Entity.
"Lien" means any mortgage, lien, charge, restriction, pledge,
security interest, option, lease or sublease, claim, proxy, right of any third
party, or encumbrance, including, but not limited to, any liens granted by
Seller on the Preferred Shares in favor of the Seller's Lender.
"Person" means any individual, corporation, proprietorship, firm,
partnership, limited liability company, limited partnership, trust,
association or other entity, including a government or government department,
agency or instrumentality.
"Seller's Lender" means Bank of America or any affiliate thereof.
"Termination Date" means June 30, 2003.
Section 1.2 Other Interpretive Provisions. Except as
otherwise specified herein, all references herein (i) to any Person shall be
deemed to include such Person's successors and assigns and (ii) to any
applicable law defined or referred to herein shall be deemed references to
such applicable law or any successor applicable law as the same may have been
or may be amended or supplemented from time to time.
(a) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article",
"Section" and "Exhibit" shall refer to Articles and Sections of, and Exhibits
to, this Agreement unless otherwise specified.
(b) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(c) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in
which such item or items are "included", such item or items are in such
category, and shall not be construed as indicating that the items in the
category in which such item or items are "included" are limited to such items
or to items similar to such items.
(d) Captions to Articles, Sections and subsections of, and Exhibits
to, this Agreement are included for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose or in any way
affect the meaning or construction of any provision of this Agreement.
ARTICLE II
AGREEMENT TO REPURCHASE
Section 2.1 Repurchase. Subject to the terms and conditions
of this Agreement, including, but not limited to, the satisfaction or waiver
of the conditions to Closing set forth in Section 2.4, the Seller hereby
agrees to sell, and the Purchaser hereby agrees to repurchase, the Preferred
Shares owned by the Seller on or prior to the Termination Date (the closing of
such repurchase, the "Closing" and the date on which the Closing actually
occurs, the "Closing Date"), provided that written notice is given by the
Purchaser to the Seller fixing the Closing Date not less than three (3)
Business Days prior to the proposed Closing Date. The repurchase price for the
Preferred Shares shall be equal to Twenty Million Dollars ($20,000,000) in
cash (the "Consideration"), which amount less the amount of the Deposit paid
pursuant to Section 2.2 shall be paid at the Closing pursuant to Section
2.4(a). For all purposes of this Agreement, the purchase and sale of the
Preferred Shares for the Consideration shall include all Accrued Dividends
with respect thereto and the completion of the purchase and sale of the
Preferred Shares shall extinguish all obligations of Purchaser to pay any
Accrued Dividends to Seller.
Section 2.2 Deposit. As consideration and inducement for the
Seller to agree to sell to the Purchaser the Preferred Shares as contemplated
in this Agreement, the Purchaser agrees to pay to the Seller a deposit in the
amount of Five Hundred Thousand Dollars ($500,000) (the "Deposit"). The
parties agree that, the Deposit shall be handled in the following manner:
(a) In the event the Closing shall fail to occur for any
reason other than (i) Seller's breach of this Agreement which is not cured
within five (5) days after Seller's receipt of written notice from Purchaser
setting forth in reasonable detail the nature of such breach or (ii) the
failure of any of the conditions to closing set forth in Section 2.4(b)(i),
(ii), (iv) or (vi) to be satisfied or waived by Purchaser, the Deposit shall
be forfeited by Purchaser to the Seller, shall be retained by Seller as its
sole and exclusive remedy for the failure of the Closing to have occurred
and/or for any breaches of this Agreement by the Purchaser and, at the
discretion of the Purchaser set forth in writing to Seller at any time after
the date of such forfeiture, the amount so forfeited by Purchaser and retained
by Seller shall be applied to any amounts of Accrued Dividends then
outstanding;
(b) In the event the Closing shall fail to occur as a result
of (i) Seller's breach of this Agreement which is not cured within five (5)
days after Seller's receipt of written notice from Purchaser setting forth in
reasonable detail the nature of such breach or (ii) the failure of any of the
conditions to closing set forth in Section 2.4(b)(i), (ii), (iv) or (vi) to be
satisfied or waived by Purchaser, the Deposit shall be returned by Seller to
Purchaser within two (2) Business Days after Seller's receipt of a written
demand therefor from Purchaser; and
(c) In the event of the Closing of the transaction provided
for herein, the Deposit shall be applied against the Consideration due at
Closing.
Section 2.3 Closing. Unless otherwise agreed by the Seller
and the Purchaser and subject to the satisfaction or waiver of the conditions
to closing set forth in Section 2.4, the Closing will take place at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m., local time, on the Closing Date.
Section 2.4 Conditions to Closing. The Closing shall be
subject to the following:
(a) The obligations of the Seller to closing the transaction
provided for in this Agreement shall be subject to the following conditions,
any one or all which may be waived by the Seller:
(i) the Purchaser shall have delivered to the Seller by wire
transfer to the bank account designated in writing by the Seller on or prior
to the Closing Date, immediately available funds in an amount equal to the
Consideration, less the amount of the Deposit made pursuant to Section 2.2,
(ii) the representations and warranties of Purchaser set
forth herein shall be true and correct in all material respects as of the
Closing Date and Purchaser shall have delivered to Seller at Closing a
certificate signed by a duly elected and acting officer of Purchaser
confirming the same in writing, and
(iii) the Purchaser shall have delivered to the Seller an
opinion of counsel from Xxxxxxx Coie, LLP and The Xxxxxxxxx Group PLLC, as
outside counsel to Purchaser, addressed to the Seller, in substantially the
form attached hereto as Exhibit B.
(b) The obligations of the Purchaser shall be subject to the
following conditions, any one or all of which may be waived by the Purchaser:
(i) the Seller shall have delivered to the Purchaser the
certificate(s) representing the Preferred Shares, each such certificate to be
duly and validly endorsed in favor of the Purchaser,
(ii) the representations and warranties of the Seller set
forth herein shall be true and correct in all material respects as of the
Closing Date and Seller shall have delivered to Purchaser at Closing a
certificate signed by a duly elected and acting officer of Seller's Managing
Member confirming the same in writing,
(iii) the Purchaser shall have obtained the Financial
Advisor Opinion and the board of directors of Purchaser shall have made the
determinations required by Section 23B.06.400 of the Washington Business
Corporation Act with respect to the transaction provided for herein and shall
have approved the transaction provided for herein,
(iv) the Seller shall have delivered to the Purchaser an
opinion of counsel from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP addressed to
Purchaser, in substantially the form attached hereto as Exhibit A.
(v) the Purchaser shall have consummated the transaction
with Health Care REIT, Inc. and certain affiliates thereof related to the
sale/leaseback of seven facilities in Virginia, Connecticut, Massachusetts,
Washington, Mississippi and Kentucky and a related subordinated loan, the
proceeds of which shall be used to pay the Consideration, and
(vi) the Seller shall have delivered to the Purchaser the
resignation of Xxxxx Xxxxxxxx from the Board of Directors of Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER
The Seller represents and warrants to the Purchaser, as of the date
of this Agreement and as of the Closing Date (as if such representations and
warranties were remade on such dates), as follows:
Section 3.1 Authorization; Execution. The execution and
delivery of this Agreement and the sale of the Preferred Shares have been duly
and properly authorized by the Seller by all necessary action on the part of
the Seller. This Agreement has been duly executed and delivered by the Seller
and none of the sale of the Preferred Shares to be sold hereunder, or the
execution and delivery by the Seller of and performance by the Seller of this
Agreement and of any other documents contemplated hereby conflicts with
Seller's Certificate of Formation or Operating Agreement or any law,
regulation or court order applicable to it or any other agreement to which it
is subject.
Section 3.2 Consents; Governmental Approvals. No consent or
approval of any person, firm or corporation, and no consent, license, approval
or authorization of, or registration, filing or declaration with, any
Governmental Entity is required to be obtained or made by or on behalf of the
Seller in connection with the sale of the Preferred Shares provided hereunder,
or the execution, delivery or performance of any other documents or the
completion of the transaction contemplated hereby, except for any such
approvals as have been duly obtained or any pre or post Closing filings that
may be required to be made under the Exchange Act. In furtherance and not in
limitation of the foregoing, attached hereto as Exhibit C is the duly executed
consent of Seller's Lender confirming that it has consented to the transaction
provided for herein and that, at Closing and subject to the payment at Closing
of the Consideration by Purchaser, it will release all of its Liens on the
Preferred Shares.
Section 3.3 Binding Effect. This Agreement, and each of the
other documents to be executed by the Seller hereunder, is a legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with, and subject to the terms and conditions hereof, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally or limitations on the availability of equitable remedies and except
as rights to indemnification and contribution may be limited under federal and
state securities laws.
Section 3.4 Ownership of Preferred Shares. The Seller owns
(legally and beneficially) the Preferred Shares and at the Closing will
deliver the Preferred Shares free and clear of any and all Liens.
Section 3.5 Brokers. Neither the Seller nor any of its
Affiliates has used any broker or finder in connection with the transaction
contemplated hereby, and neither the Purchaser nor any Affiliate of the
Purchaser has or shall have any liability or otherwise suffer or incur any
Loss as a result of or in connection with any brokerage or finder's fee or
other commission of any Person retained by any of the Seller or any of its
Affiliates in connection with the transaction contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING THE PURCHASER
The Purchaser represents and warrant to the Seller, as of the date of
this Agreement and as of the Closing Date (as if such representations and
warranties were remade on such date), as follows:
Section 4.1 Authorization; Execution. The execution and
delivery of this Agreement, the payment of the Deposit and subject to the
satisfaction of the conditions to Closing set forth in Section 2.4(b)(iii),
the repurchase of the Preferred Shares have been duly and properly authorized
by the Purchaser by all necessary action on the part of the Purchaser. This
Agreement has been duly executed and delivered by the Purchaser and, none of
the payment of the Deposit and subject to the satisfaction of the conditions
to Closing set forth in Section 2.4(b)(iii), the repurchase of the Preferred
Shares at Closing pursuant to this Agreement, nor the execution and delivery
by the Purchaser of and performance by the Purchaser of this Agreement or of
any other documents contemplated hereby, conflicts with Purchaser's Articles
of Incorporation or Bylaws any law, regulation or court order applicable to it
or any other agreement to which it is subject.
Section 4.2 Consents; Governmental Approvals. No consent or
approval of any person, firm or corporation, and no consent, license, approval
or authorization of, or registration, filing or declaration with, any
Governmental Entity is required to be obtained or made by or on behalf of the
Purchaser in connection with (i) the execution of this Agreement or the
payment of the Deposit or, (ii) the repurchase of the Preferred Shares
provided herein, as well as the execution, delivery or performance of any
other documents or the completion of the transaction contemplated hereunder,
except for (A) in the case of clause (i), any such approvals as have been duly
obtained and (B) in the case of clause (ii) the approval of Purchaser's Board
of Directors, as described more fully in Section 2.4(b)(iii),and (C) in the
case of clauses (i) and (ii) any pre-Closing or post-Closing filings that may
be required to be made under the Exchange Act.
Section 4.3 Binding Effect. This Agreement, and each of the
other documents to be executed by the Purchaser hereunder, is a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with, and subject to the terms and conditions hereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or limitations on the availability of equitable
remedies and except as rights to indemnification and contribution may be
limited under federal and state securities laws.
Section 4.4 Brokers. Neither the Purchaser nor any of its
Affiliates has used any broker or finder in connection with the transaction
contemplated hereby, and neither the Seller nor any of its Affiliates has or
shall have any liability or otherwise suffer or incur any Loss as a result of
or in connection with any brokerage or finder's fee or other commission of any
Person retained by any of the Purchaser or any of its Affiliates in connection
with the transaction contemplated by this Agreement.
ARTICLE V
COVENANTS
Section 5.1 Efforts and Actions to Cause the Consummation of
the Transaction.
(a) Prior to the Closing, each of the parties shall use its
respective commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done and cooperate with each other in order
to do, all things necessary, proper or advisable (subject to any applicable
laws), to consummate the Closing as promptly as practicable including, without
limitation, the preparation and filing of all forms, registrations and notices
required to be filed to consummate the Closing and the taking of such actions
as are necessary to satisfy those conditions to such parties' obligation to
close which are within the control of such party. Further, the parties shall
not knowingly take, or agree to or commit to take, any action that would or is
reasonably likely to result in any of the conditions to the Closing not being
satisfied, or would make any representation or warranty contained herein
inaccurate in any material respect at, or as of any time prior to, the
Closing, or that would materially impair the ability of the parties to
consummate the Closing in accordance with the terms hereof or materially delay
such consummation.
(b) Prior to the Closing, each party promptly shall consult
with the other parties hereto with respect to, provide any necessary
information with respect to, and provide the other parties (or their
respective counsel) with copies of, all filings made by such party with any
Governmental Entity or any other information supplied by such party to a
Governmental Entity in connection with this Agreement and the transaction
contemplated hereby. If any party hereto or any of their respective Affiliates
receives a request for additional information or documentary material from any
such Person with respect to the transaction contemplated hereby, then such
party shall endeavor in good faith to make, or cause to be made, as soon as
reasonably practicable and after consultation with the other party, an
appropriate response in compliance with such request. In addition, at the
request of Seller or its representatives, Purchaser from time to time shall
provide updates on the status of the items identified as conditions to Closing
set forth in Sections 2.4(b)(iii) and (b)(v).
Section 5.2 Post-Closing Cooperation. In case at any time
after the Closing any further action is reasonably necessary, proper or
advisable to carry out the purposes of this Agreement, as soon as reasonably
practicable, each party hereto shall take, or cause its proper officers,
members or directors to take, all such reasonably necessary, proper or
advisable actions.
ARTICLE VI
TERMINATION
(a) Termination. This Agreement may be terminated at any
time by the mutual written consent of the Purchaser and the Seller or by
either the Purchaser or the Seller on or after the Termination Date (as it may
be extended), if the Closing shall not have theretofore occurred and the
failure of the Closing to occur is not solely the result of a material breach
of a representation, warranty or covenant by the party seeking such
termination.
ARTICLE VII
RESERVED
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Expenses. Each party shall pay its own expenses
in connection with this Agreement and the transaction contemplated hereby.
Section 8.2 Amendment. This Agreement may be amended,
modified or supplemented but only in writing signed by each of the parties
hereto.
Section 8.3 Notices. Any notice, request, instruction or
other document to be given hereunder by a party hereto shall be in writing,
shall be sent by facsimile transmission (with a hard copy to follow by
overnight delivery) or overnight delivery and shall be deemed to have been
given, when received or which receipt is refused:
(a) If to the Purchaser, addressed as follows:
Emeritus Corporation
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
And with copy to:
The Xxxxxxxxx Group PLLC
0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) If to Seller, addressed as follows:
Merit Partners, LLC
c/o NorthStar Capital Investment Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other individual or address as a party hereto may
designate for itself by notice given as herein provided.
Section 8.4 Waivers. The failure of a party hereto at any
time or times to require performance of any provision hereof shall in no
manner affect its right at a later time to enforce the same. No waiver by a
party of any condition or of any breach of any term, covenant, representation
or warranty contained in this Agreement shall be effective unless in writing,
and no waiver in any one or more instances shall be deemed to be a further or
continuing waiver of any such condition or breach in other instances or a
waiver of any other condition or breach of any other term, covenant,
representation or warranty.
Section 8.5 Counterparts. This Agreement may be executed in
one or more counterparts, and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed an original, but
all of which together shall constitute one and the same instrument.
Section 8.6 Interpretation. Consummation of the transaction
contemplated herein by a party with knowledge of any breach of or inaccuracy
in any representation, warranty or covenant or the other party, shall be
deemed a waiver of the closing party's rights and remedies with regard
thereto. No specific representation, warranty or covenant contained herein
shall limit the generality or applicability of a more general representation,
warranty or covenant contained herein. A breach of or inaccuracy in any
representation, warranty or covenant shall not be affected by the fact that
any more general or less general representation, warranty or covenant was not
also breached or inaccurate.
Section 8.7 Applicable Law. This Agreement shall be governed
by and construed and enforced in accordance with the internal laws of the
State of New York without giving effect to the principles of conflicts of law
thereof.
Section 8.8 Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective estates,
heirs, legal representatives, successors and assigns; provided, however, that
no assignment of any rights or obligations shall be made by any party hereto
without the written consent of each other party hereto.
Section 8.9 No Third-Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto and, to the extent provided
herein, their respective estates, heirs, successors, Affiliates and their
respective directors, officers, employees, agents and representatives, and no
provision of this Agreement other than Article V shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement, cause of
action or other right.
Section 8.10 Publicity. Prior to the Closing Date, except as
required by Law or the rules of any stock exchange, no public announcement or
other publicity regarding the transaction referred to herein shall be made by
the Purchaser, the Seller or any of their respective Affiliates, officers,
directors, employees, representatives or agents, without the prior written
agreement of the Purchaser and the Seller, in any case, as to form, content,
timing and manner of distribution or publication.
Section 8.11 Severability. If any provision of this
Agreement shall be held invalid, illegal or unenforceable, the validity,
legality or enforceability of the other provisions hereof shall not be
affected thereby.
Section 8.12 Remedies. In the event of a breach by Seller of
its obligations hereunder with respect to the sale of the Preferred Shares,
Purchaser shall have the right to terminate this Agreement and demand the
return of the Deposit or to seek specific performance of Seller's obligations
hereunder. In the event of a breach by Seller of its obligation under Section
2.2(b) to return the Deposit upon the occurrence of either of the events
described therein, Purchaser shall have the right to seek specific performance
of Seller's obligation thereunder. In the event of a breach by Purchaser of
its obligations hereunder, Seller's sole remedy shall be to retain the Deposit
and the same shall thereafter be applied to the Accrued Dividends in
accordance with the provisions of Section 2.2 hereof.
Section 8.13 Entire Understanding. This Agreement sets forth
the entire agreement and understanding of the parties hereto and supersedes
any and all prior correspondence, agreements, arrangements and understandings
among the parties.
Section 8.14 Jurisdiction of Disputes; Waiver of Jury Trial.
In the event any party to this Agreement commences any litigation, proceeding
or other legal action in connection with or relating to this Agreement, any
Related Agreement or any matters described or contemplated herein or therein,
with respect to any of the matters described or contemplated herein or
therein, the parties to this Agreement hereby (a) agree under all
circumstances absolutely and irrevocably to institute any litigation,
proceeding or other legal action in a court of competent jurisdiction located
within the City of New York, New York, whether a state or federal court; (b)
agree that in the event of any such litigation, proceeding or action, such
parties will consent and submit to personal jurisdiction in any such court
described in clause (a) of this Section and to service of process upon them in
accordance with the rules and statutes governing service of process (it being
understood that nothing in this Section shall be deemed to prevent any party
from seeking to remove any action to a federal court in New York, New York);
and (c) agree to waive to the full extent permitted by law any objection that
they may now or hereafter have to the venue of any such litigation, proceeding
or action in any such court or that any such litigation, proceeding or action
was brought in an inconvenient forum.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
EMERITUS CORPORATION,
a Washington corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President of Finance
MERIT PARTNERS, LLC, a New York limited
liability company
By: NorthStar Partnership, L.P., a
Delaware limited partnership
Its: Sole Member
By: NorthStar Capital Investment Corp.,
a Maryland corporation
Its: General Partner
By: /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title:
