EXHIBIT 4
WARRANT AGREEMENT
This Warrant Agreement (the "Agreement"), dated as of March 13, 1998,
is by and between FRANCHISE FINANCE CORPORATION OF AMERICA, a corporation
duly organized and validly existing under the laws of Delaware (the
"Company") and Colony Investors III, L.P. (the "Holder").
WHEREAS, the Company wishes to issue and sell to the Holder (i)
certain shares of the Company's common stock, $.01 par value per share (the
"Stock"), pursuant to the Stock Purchase Agreement dated as of February 13,
1998, between the Company and the Holder, and (ii) warrants to acquire
additional shares of Stock for an aggregate purchase price of $100,000,000;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
DEFINITIONS, ACCOUNTING TERMS AND DETERMINATIONS
As used herein:
"Board" means the Board of Directors of the Company.
"Bylaws" means the Amended and Restated Bylaws of the Company as
adopted by the Board on February 4, 1994.
"Certificate of Incorporation" means the Second Amended and Restated
Certificate of Incorporation of the Company as filed with the Secretary of
State of the State of Delaware on May 7, 1997.
"Commission" means the Securities and Exchange Commission or any other
similar or successor agency of the Federal government administering the
Securities Act and/or the Securities Exchange Act of 1934, as amended from
time to time (the "Exchange Act").
"Date of Issuance" shall mean March 13, 1998.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled (whether through ownership of securities or other ownership
interests, by contract or otherwise) by any of the foregoing.
"Holder" shall have the meaning set forth at the head of this
Agreement and each other Person who acquires the original Warrant
Certificate or any Warrant Certificate issued upon transfer, division,
combination, partial exercise of Warrants or in replacement or substitution
therefor or who acquires Warrant Shares pursuant to the provisions of this
Agreement.
"Include" and "Including" shall be construed as if followed by the
phrase "without being limited to."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or a Governmental Authority.
"Registration Rights Agreement" means the Registration Rights
Agreement of even date herewith between the Company and the Holder relating
to the registration of the Registrable Securities (as defined therein)
under and pursuant to the Securities Act, as said Registration Rights
Agreement shall be modified and supplemented in accordance with its terms
and in effect from time to time.
"Restricted Securities" means the Warrants and any Warrant Shares or
other securities which have been issued or are issuable upon the exercise
of such Warrants until such time as any such Restricted Securities (a) have
been sold pursuant to an effective registration statement under the
Securities Act or (b) are distributed pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act and, if it has so
requested, the Company has received an opinion of counsel (either its own
counsel or, if the Company so requests, counsel to the holders of such
Restricted Securities) reasonably acceptable to the Company that such
Restricted Securities may be so transferred without registration or
pursuant to an exemption under the Securities Act, and in each such
instance the Company has delivered new Warrant Certificates not bearing the
legend prescribed by Section 2.03 hereof.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act (as such rule may be amended from time to time or any
successor or similar rule then in force).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Stockholder" means any Person (excluding any Holder) who owns any
shares of common or preferred stock of the Company (or any successor
thereto).
"Transfer" means, unless the context otherwise requires, any
disposition of any Restricted Securities, or of any interest in any
thereof, which would constitute an offer or sale thereof within the meaning
of the Securities Act.
"Warrant" shall have the meaning assigned to such term in
Section 2.01.
"Warrant Certificate" shall have the meaning assigned to such term in
Section 2.01.
"Warrant Shares" means (a) the shares of Stock purchased or
purchasable by the Holder upon the exercise of the Warrant, including any
Stock into which such Stock may thereafter be changed or converted, and
(b) if required hereunder, any additional shares of Stock issued or
distributed by way of a dividend, stock split or other distribution in
respect of the Stock referred to in clause (a) above, or acquired by way of
any rights offering or similar offering made in respect of the Stock
referred to in clause (a) above.
Except as otherwise may be expressly provided herein, all accounting
terms used herein shall be interpreted in accordance with generally
accepted accounting principles consistently applied. All calculations made
for the purposes of determining compliance with the terms of this Agreement
and the Warrants shall be made by application of generally accepted
accounting principles consistently applied (except as otherwise may be
expressly provided herein).
ARTICLE II
ISSUANCE AND EXECUTION OF WARRANT
Section 2.01. AUTHORIZATION AND ISSUANCE OF SHARES AND WARRANTS. The
Company has authorized: (a) the issuance of a warrant certificate
substantially in the form of Annex 1 to this Agreement (the "Warrant
Certificate") evidencing warrants to purchase shares of Stock (such Warrant
Certificate, other Warrant Certificates issued upon transfer, partial
exercise, division or combination of, or in substitution or replacement for
any Warrant Certificate or the rights to purchase Stock evidenced by each
of the foregoing, is, as the context requires, sometimes referred to herein
as a "Warrant" or "Warrants"); and (b) the issuance of such number of
shares of Stock as shall permit the compliance by the Company with its
obligations to issue Stock pursuant to the Warrants. In addition, the
Warrant Certificate may have such letters, numbers or other marks of
identification or designation and such legends, summaries, or endorsements
stamped, printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as, in any particular case, may be required to comply with
any law or with any rule or regulation of any regulatory authority or
agency, or to conform to customary usage; provided, however, that no such
change shall be made which affects the duties or obligations of the Company
without the consent of the Company.
Section 2.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATE. The
Warrant Certificate shall be executed on behalf of the Company by the
Chairman of the Board or the Company's President or any Vice President and
attested to by its Secretary or Assistant Secretary, either manually or by
facsimile signature printed thereon. In case any authorized officer of the
Company who shall have signed any Warrant Certificate shall cease to be
such officer of the Company either before or after delivery thereof by the
Company to the Holder, the signature of such person on such Warrant
Certificate shall be valid nevertheless and such Warrant Certificate may be
issued and delivered to the person entitled to receive the Warrants
represented thereby with the same force and effect as though the person who
signed such Warrant Certificate had not ceased to be such officer of the
Company. The Warrant Certificate originally issued to Holder shall be
delivered on the Date of Issuance. The Company shall maintain books (the
"Warrant Register") for the registration of Warrants and the registration
of transfers of Warrants.
Section 2.03. TRANSFER AND EXCHANGE OF WARRANTS.
(a) Warrant Certificates evidencing Restricted Securities (and
only such Warrant Certificates) will bear a legend in substantially
the following form:
NEITHER THE EXERCISE OF THE WARRANTS EVIDENCED BY THIS CERTIFICATE NOR
THE ISSUANCE OF SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR PURSUANT TO THE SECURITIES LAWS OF ANY STATE, AND
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH TRANSFER IS
PURSUANT TO (i) A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO
SUCH SECURITIES UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS
THEREUNDER OR (ii) AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS AND, IF IT
HAS SO REQUESTED, THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
(EITHER ITS OWN COUNSEL OR, IF THE COMPANY SO REQUESTS, COUNSEL TO THE
HOLDERS OF SUCH SECURITIES) REASONABLY ACCEPTABLE TO THE COMPANY THAT
SUCH SECURITIES MAY BE SO TRANSFERRED. FURTHERMORE, THIS WARRANT AND
THE SECURITIES ISSUABLE UPON EXERCISE HEREOF ARE SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN THE COMPANY'S CERTIFICATE OF
INCORPORATION AND IN A REGISTRATION RIGHTS AGREEMENT AND AN INVESTOR'S
AGREEMENT, BOTH OF EVEN DATE HEREWITH.
(b) Following the transfer or exchange of a Restricted Security
or Securities (other than pursuant to an effective registration
statement under the Securities Act) the transferor of such Restricted
Security or Securities, upon request of the Company, shall deliver to
the Company an opinion of counsel, in substance reasonably
satisfactory to the Company, to the effect that such Restricted
Security to be issued upon such transfer or exchange may be so issued
without the foregoing legend; provided that such Restricted Security
nonetheless shall contain a legend referencing the restrictions
contained in the Investor's Agreement of even date herewith.
(c) Subject to paragraph (a) above, the Company shall register
the transfer of all or any whole number of Warrants covered by any
outstanding Warrant Certificate in the Warrant Register upon surrender
to the Company of Warrant Certificates accompanied by a written
instrument or instruments of transfer, in form reasonably satisfactory
to the Company, duly executed by the registered Holder or his attorney
duly authorized in writing. Upon any such registration of transfer a
new Warrant Certificate shall be issued to the transferee and the
surrendered Warrant Certificate promptly shall be canceled by the
Company. Warrant Certificates may be exchanged at the option of the
Holder thereof, upon surrender, properly endorsed by the registered
Holders, at the Company, with written instructions, for other Warrant
Certificates evidencing in the aggregate a like number of Warrants.
The Company may require the payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
such exchange or transfer.
Section 2.04. TRANSFER AND EXCHANGE OF WARRANTS. All the
restrictions imposed by this Article II upon the transferability of the
Restricted Securities shall cease and terminate as to any particular
Restricted Security when such Restricted Security shall have been
effectively registered under the Securities Act and applicable state
securities laws and sold by the Holder thereof in accordance with such
registration or sold under and pursuant to Rule 144. Whenever the
restrictions imposed by this Article II shall terminate as to any
Restricted Security as herein above provided, the Holder thereof shall be
entitled to receive from the Company, without expense (other than any tax
or governmental charge that may be imposed), a new certificate evidencing
such Restricted Security not bearing the restrictive legend otherwise
required to be borne by a certificate evidencing such Restricted Security.
ARTICLE III
COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Holder as follows:
Section 3.01. EXISTENCE; QUALIFICATION. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
Section 3.02. NO BREACH. The execution, delivery and performance of
this Agreement, the Warrants and the Registration Rights Agreement by the
Company, the issuance of the Warrants and the consummation of the
transactions contemplated hereby and thereby will not (a) violate the
Certificate of Incorporation or Bylaws of the Company, (b) violate any
loan, note or other evidence of indebtedness to which the Company is a
party or is bound, or constitute a breach of or default under any other
instrument or agreement to which the Company is a party or is bound which
is material to the business or properties of the Company taken as a whole,
(c) violate any judgment, order, injunction, decree or award against or
binding upon the Company, (d) result in the creation of any Lien upon any
of the properties or assets of the Company, or (e) violate any law, rule or
regulation relating to the Company, except in each such case as would not
have a material adverse effect on the Company.
Section 3.03. CORPORATE ACTION. The Company has all necessary
corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Warrants and the Registration Rights
Agreement; the execution, delivery and performance by the Company of this
Agreement, the Warrants and the Registration Rights Agreement have been
duly authorized by all necessary corporate action on the part of the
Company; this Agreement has been duly executed and delivered by the Company
and constitutes, and the Registration Rights Agreement when executed and
delivered by the Company will constitute, the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, or (b) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); the Warrants, when executed, issued and delivered
pursuant to this Agreement will constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally, or (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law); the Warrant Shares initially covered by the Warrants will be duly and
validly authorized and reserved for issuance and when paid for, issued and
delivered in accordance with the Warrants, shall be duly and validly
issued, fully paid and nonassessable and free and clear of any Liens; and
none of the Warrant Shares issued pursuant to the terms hereof or the
Warrants shall be in violation of any preemptive rights of any Stockholder.
Section 3.04. APPROVALS. Except as contemplated by the Registration
Rights Agreement, no authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any other
Person which shall not have been obtained on or prior to the Date of
Issuance are necessary for the execution, delivery or performance by the
Company of this Agreement, the Warrants or the Registration Rights
Agreement or for the validity or enforceability thereof.
Section 3.05. CAPITALIZATION. As of the Date of Issuance of the
original Warrant to Holder, the capitalization of the Company consists
solely of Stock and options and warrants to acquire Stock.
ARTICLE IV
HOLDER'S REPRESENTATIONS AND WARRANTIES
The Holder represents and warrants to the Company as follows:
Section 4.01. PURCHASE ENTIRELY FOR OWN ACCOUNT. The Warrant is
being acquired and, if such Warrant is exercised, the Stock issuable upon
such exercise will be acquired, for investment for the Holder's own
account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the federal or state
securities laws.
Section 4.02. INVESTMENT EXPERIENCE. The Holder represents that it
can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Warrant and the
Stock issuable upon exercise thereof. The Holder also represents it has
not been organized solely for the purpose of acquiring the Warrant or the
Stock issuable upon exercise thereof.
Section 4.03. RESTRICTED SECURITIES. The Holder understands that the
Warrant and the Stock issuable upon exercise of such Warrant are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and have not been registered under the
Securities Act nor qualified under applicable state securities laws and
that under such laws and applicable regulations such securities may not be
resold without registration under the Securities Act, except in certain
limited circumstances. In this connection, the Holder represents that it
is familiar with Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
Section 4.04. ACCREDITED INVESTOR. The Holder is an "accredited
investor" within the meaning of Rule 501 of Regulation D promulgated under
the Securities Act.
ARTICLE V
HOLDERS; RIGHTS
Section 5.01. DELIVERY EXPENSES. If any Holder surrenders any
Warrant Certificate or Warrant Shares to the Company or a transfer agent of
the Company for exchange for instruments of other denominations or
registered in another name or names, the Company shall cause such new
instruments to be issued and shall deliver, in each case at the cost of the
Holder, from the office of such Holder from or to the Company or its
transfer agent, the surrendered instrument and any new instruments issued
in substitution or replacement for the surrendered instrument.
Section 5.02. TAXES. The Company shall pay all transfer taxes which
may be payable in connection with the execution and delivery of this
Agreement or the Registration Rights Agreement or the issuance of the
Warrants and Warrant Shares hereunder or in connection with any
modification of this Agreement, the Registration Rights Agreement or the
Warrants and shall hold each Holder harmless without limitation as to time
against any and all liabilities with respect to all such taxes. The
Company shall not, however, be required to pay: (i) federal, state or local
income tax; (ii) any intangible personal property, franchise or similar
tax; or (iii) any transfer tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Stock in a name
other than that in which a Warrant is registered, and no such issue or
delivery shall be made unless and until the Person requesting such issue
has established, to the satisfaction of the Company, that such tax has been
paid. In addition, the Company shall not be obligated to pay any transfer
tax that is the sole legal obligation of any Holder, unless the Company
shall have received an opinion of counsel to the effect that such payment,
if made, would not cause the Company to fail to satisfy the requirements of
section 857(a)(1) of the Internal Revenue Code of 1986, as amended. The
obligations of the Company under this Section 5.02 shall survive any
termination of this Agreement or the Registration Rights Agreement, and any
cancellation or termination of the Warrants.
Section 5.03. REPLACEMENT OF INSTRUMENTS. Upon receipt by the
Company of evidence reasonably satisfactory to it of the ownership of and
the loss, theft, destruction or mutilation of any certificate or instrument
evidencing any Warrants or Warrant Shares, and (a) in the case of loss,
theft or destruction, of indemnity reasonably satisfactory to it, or (b) in
the case of mutilation, upon surrender or cancellation, thereof, the
Company, at the Holder's expense, shall execute, register and deliver, in
lieu thereof, a new certificate or instrument for (or evidencing the right
to purchase) an equal number of Warrants or Warrant Shares.
Section 5.04. CERTAIN RESTRICTIONS. The Company shall not at any
time enter into an agreement or other instrument, and has not entered into
an agreement currently in effect, making performance hereunder or the
issuance of shares of Stock upon the exercise of any Warrant a default
under any such agreement or instrument.
Section 5.05. INDEMNIFICATION. Each party hereto hereby irrevocably
indemnifies the other and saves it harmless against any and all reasonable
out of pocket losses, expenses or liabilities, including judgments, costs
and reasonable counsel fees and expenses arising out of or in connection
with a breach of this Agreement, except as a direct result of the gross
negligence, bad faith or willful misconduct of such other party.
ARTICLE VI
MISCELLANEOUS
Section 6.01. WAIVER. No failure on the part of any Holder to
exercise and no delay in exercising, and no course of dealing with respect
to, any right, power or privilege under this Agreement, the Warrants or the
Registration Rights Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege under this
Agreement, the Warrants or the Registration Rights Agreement preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
Section 6.02. NOTICES.
(a) All notices, requests and other communications provided for
herein and in the Warrants (including any waivers or consents under,
this Agreement and the Warrants) shall be given or made in writing:
if to the Company: Franchise Finance Corporation of America
The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
with a copy to: Franchise Finance Corporation of America
The Perimeter Center
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
with a copy to: Xxxxx Xxxx
000 00xx Xxxxxx; Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
if to Holder: Colony Investors III, L.P.
c/o Colony Capital, Inc.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
if to any other person who is the registered Holder of any
Warrants or Warrant Shares, to the address for such Holder as it
appears in the stock or warrant ledger of the Company; or, in the case
of any Holder, at such other address as shall be designated by such
party in a notice to the Company; or, in the case of the Company, at
such other address as the Company may designate in a notice to the
Holders.
(b) All such notices, requests and other communications shall
be: (i) personally delivered, sent by courier guaranteeing overnight
delivery or sent by registered or certified mail, return receipt
requested, postage prepaid, in each case given or addressed as
aforesaid; and (ii) effective upon receipt.
Section 6.03. EXPENSES, ETC. Each party hereto shall pay all of its
own costs and expenses incurred with respect to the negotiation, execution
and delivery of this Agreement and the Warrants.
Section 6.04. AMENDMENTS, ETC. Any provision of this Agreement may
be amended or modified only by an instrument in writing signed by (a) the
Company and (b) the Holders of at least a majority of the Warrant Shares
issued or issuable upon exercise of the Warrants; provided, however, that
no such amendment or waiver, without the written consent of all Holders of
such shares and Warrants at the time outstanding, shall amend this
Section 6.04.
Section 6.05. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 6.06. SURVIVAL.
(a) All representations and warranties made by the Company
herein or in any certificate or other instrument delivered by it or on
its behalf under this Agreement or the Registration Rights Agreement
shall be considered to have been relied upon by each Holder and shall
survive the issuance of the Warrants or the Warrant Shares regardless
of any investigation made by or on behalf of any Holder. All
statements in any such certificate or other instrument so delivered
shall constitute representations and warranties by the Company
hereunder.
(b) All representations and warranties made by the Holders
herein shall be considered to have been relied upon by the Company and
shall survive the issuance to the Holders of the Warrants or the
Warrant Shares regardless of any investigation made by the Company or
on its behalf.
Section 6.07. CAPTIONS. The captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
Section 6.08. COUNTERPARTS. This Agreement may be executed on
counterpart signature pages or in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart
signature page or counterpart.
Section 6.09. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be fully performed in such
State.
Section 6.10. SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
Section 6.11. DEFECTS IN NOTICE. Failure to file any certificate or
notice or to mail any notice, or any defect in any certificate or notice
pursuant to this Agreement shall not affect in any way the rights of any
registered Holder of a Warrant Certificate or the legality or validity of
any adjustment made pursuant to the provisions of the Warrant, or any
transaction giving rise to any such adjustment, or the legality or validity
of any action taken or to be taken by the Company.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
FRANCHISE FINANCE CORPORATION OF AMERICA
By: /s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
COLONY INVESTORS III, L.P.
By: Colony Capital III, L.P.
By: ColonyGP III, Inc.
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
