-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LiSdqxp6fktI+jzv9796G7FbGGJwMUKucuILx64sfac83cuGk1XWi/TImdMl+mRX Mp40zRB5FWXB3c+q938Qqg== 0000905729-03-000220.txt : 20030520 0000905729-03-000220.hdr.sgml : 20030520 20030520160401 ACCESSION NUMBER: 0000905729-03-000220 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030520 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GRUBB & ELLIS CO CENTRAL INDEX KEY: 0000216039 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE AGENTS & MANAGERS (FOR OTHERS) [6531] IRS NUMBER: 941424307 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32339 FILM NUMBER: 03712609 BUSINESS ADDRESS: STREET 1: 2215 SANDERS RD STREET 2: STE 400 CITY: NORTHBROOK STATE: IL ZIP: 60062 BUSINESS PHONE: 4159561990 MAIL ADDRESS: STREET 1: ONE MONTGOMERY ST STE 3100 STREET 2: TELESIS TWR 9TH FLR CITY: SAN FRANCISCO STATE: CA ZIP: 94104 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KOJAIAN MIKE CENTRAL INDEX KEY: 0001029458 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1400 NORTH WOODWARD AVE SUITE 250 CITY: BLOOMFIELD HILLS STATE: MI ZIP: 48304 BUSINESS PHONE: 2486447600 MAIL ADDRESS: STREET 1: 1400 NORTH WOODWARD AVE SUITE 250 CITY: BLOOMFIELD HILLS STATE: MI ZIP: 48304 SC 13D/A 1 grubbs13da5051503.htm Grubb and Ellis Form 13D - 05-15-03

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

SCHEDULE 13D/A
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)

(Amendment No. 5)1

Grubb & Ellis Company


(Name of Issuer)

 

Common Stock, $0.01 par value


(Title of Class of Securities)

 

40009 52 0


(CUSIP Number)

 

C. Michael Kojaian
c/o Kojaian Ventures, L.L.C.
39400 Woodward Avenue, Suite 250
Bloomfield Hills, Michigan 48304
Telephone (248) 644-7600


(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

 

May 9, 2003


(Date of Event Which Requires Filing of this Statement)


          If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

          Note:    Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

(Continued on the following pages)

(Page 1 of 11 Pages)

_________________
1          The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

          The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).




CUSIP NO. 40009 52 0

13D

Page 2 of 11 Pages



1

NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Mike Kojaian


2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

 

 

(a) x

 

 

(b) o


3

SEC USE ONLY


4

SOURCE OF FUNDS (See Instructions)

PF


5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

o


6

CITIZENSHIP OR PLACE OF ORGANIZATION

United States of America




NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7



8



9



10

SOLE VOTING POWER

850,844


SHARED VOTING POWER

723,840

SOLE DISPOSITIVE POWER

850,844

SHARED DISPOSITIVE POWER

723,840

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

          1,574,684


12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES


o


13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

          10.4%*


14

TYPE OF REPORTING PERSON

          IN


* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.



2


CUSIP NO. 40009 52 0

13D

Page 3 of 11 Pages



1

NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

C. Michael Kojaian


2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

 

 

(a) x

 

 

(b) o


3

SEC USE ONLY


4

SOURCE OF FUNDS (See Instructions)

PF


5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

o


6

CITIZENSHIP OR PLACE OF ORGANIZATION

United States of America




NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7



8



9



10

SOLE VOTING POWER

850,842


SHARED VOTING POWER

2,061,198

SOLE DISPOSITIVE POWER

850,842

SHARED DISPOSITIVE POWER

2,061,198

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

          2,912,040


12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

o


13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

          19.2%*


14

TYPE OF REPORTING PERSON

          IN


* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.



3


CUSIP NO. 40009 52 0

13D

Page 4 of 11 Pages



1

NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Kojaian Holdings, L.L.C.


2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

 

 

(a) x

 

 

(b) o


3

SEC USE ONLY


4

SOURCE OF FUNDS (See Instructions)

WC


5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

o


6

CITIZENSHIP OR PLACE OF ORGANIZATION

Michigan




NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7



8



9



10

SOLE VOTING POWER

0


SHARED VOTING POWER

723,840

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

723,840

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

          723,840


12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

o


13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

          4.8%*


14

TYPE OF REPORTING PERSON

          OO


* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.



4


CUSIP NO. 40009 52 0

13D

Page 5 of 11 Pages



1

NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Kojaian Ventures, L.L.C.


2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

 

 

(a) x

 

 

(b) o


3

SEC USE ONLY


4

SOURCE OF FUNDS (See Instructions)

Not applicable


5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

o


6

CITIZENSHIP OR PLACE OF ORGANIZATION

Michigan




NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7



8



9



10

SOLE VOTING POWER

0


SHARED VOTING POWER

1,337,358

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

1,337,358

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

          1,337,358


12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES


o


13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

          8.8%*


14

TYPE OF REPORTING PERSON

          OO


* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.



5


CUSIP NO. 40009 52 0

13D

Page 6 of 11 Pages



1

NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Kojaian Ventures-MM, Inc.


2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

 

 

(a) x

 

 

(b) o


3

SEC USE ONLY


4

SOURCE OF FUNDS (See Instructions)

Not applicable


5

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)

o


6

CITIZENSHIP OR PLACE OF ORGANIZATION

Michigan




NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON WITH

7



8



9



10

SOLE VOTING POWER

0


SHARED VOTING POWER

1,337,358

SOLE DISPOSITIVE POWER

0

SHARED DISPOSITIVE POWER

1,337,358

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

          1,337,358


12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES


o


13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

          8.8%*


14

TYPE OF REPORTING PERSON

          CO


* Based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.



6


          This Amendment No. 5 to Schedule 13D is being filed on behalf of Mike Kojaian, C. Michael Kojaian, Kojaian Holdings, L.L.C., a Michigan limited liability company ("KH"), Kojaian Ventures, L.L.C., a Michigan limited liability company ("KV"), and Kojaian Ventures-MM, Inc., a Michigan corporation and managing member of KV ("KVMM"). This Amendment No. 5 amends in certain respects Amendment No. 1 to Schedule 13D filed by Mike Kojaian and C. Michael Kojaian on February 13, 2001 ("Amendment No. 1"), Amendment No. 2 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, KV and KVMM on April 19, 2002 ("Amendment No. 2"), Amendment No. 3 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, KV and KVMM on May 16, 2002 ("Amendment No. 3"), and Amendment No. 4 to Schedule 13D filed by Mike Kojaian, C. Michael Kojaian, KV and KVMM on September 27, 2002 ("Amendment No. 4"). All items not reported in this Amendment No. 5 are herein incorporated by reference from Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4.

Item 2.

Identity and Background

          This Amendment No. 5 is being filed by Mike Kojaian, C. Michael Kojaian, KH, KV, and KVMM (collectively, the "Reporting Persons"). The contents of Item 2 of Amendment No. 4 are herein incorporated by reference.

Item 3.

Source and Amount of Funds or Other Consideration.

          The contents of Item 3 of Amendment No. 4 are herein incorporated by reference.

Item 4.

Purpose of Transaction.

          The contents of paragraphs one, two, and four of Item 4 of Amendment No. 3, as well as Item 4 of Amendment No. 4, are herein incorporated by reference.

          C. Michael Kojaian, through an affiliated entity, has agreed to acquire the outstanding $32 million senior credit facility (the "Credit Facility") of Grubb & Ellis Company (the "Company"). It is expected that the Credit Facility will be acquired by May 30, 2003.

          In addition, another affiliated entity of C. Michael Kojaian, Kojaian Funding, L.L.C., provided $4 million of working capital to the Company on May 9, 2003 pursuant to a Letter Agreement dated May 7, 2003 between the Company and Kojaian Management Company (on behalf of Kojaian Funding, L.L.C.). In conjunction with that Letter Agreement, the Company executed and delivered to Kojaian Funding, L.L.C. its promissory note dated May 9, 2003 in the principal amount of $4 million. In addition, the Company and certain of its subsidiaries entered into a Guarantee and Collateral Agreement dated May 9, 2003 in favor of Kojaian Funding, L.L.C. and the Company and Kojaian Funding, L.L.C. entered into a Security Agreement dated May 9, 2003. The $4 million loan to the Company from Kojaian Funding, L.L.C. is subordinated to the Company's obligations under the Credit Facility, pursuant to the terms of a Subordination Agreement dated May 9, 2003 executed by Koj aian Funding, L.L.C. in favor of Bank of America, N.A. and the other lenders under the Credit Facility.

          The Reporting Persons may from time to time in the future acquire or dispose of additional securities of the Company in open market or privately negotiated transactions,

7


depending on market conditions and other considerations that the Reporting Persons deem relevant. As of the date of this Amendment No. 5, the Reporting Persons have no specific plans or proposals to acquire or dispose of securities of the Company.

          The Reporting Persons reserve the right to take any and all actions with respect to their respective investments in the Company as they from time to time may determine in the future in their sole discretion.

Item 5.

Interest in Securities of the Issuer

          (a)     Mike Kojaian is the beneficial owner of 1,574,684 shares of the Company's common stock, $0.01 par value ("Common Stock"), through his direct ownership of 850,844 shares of Common Stock and indirect ownership of 723,840 of Common Stock. These shares of Common Stock represent approximately 10.4% of the outstanding shares of Common Stock based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

          C. Michael Kojaian is the beneficial owner of 2,912,040 shares of Common Stock through his direct ownership of 850,842 shares of Common Stock and indirect ownership of 2,061,198 shares of Common Stock. These shares of Common Stock represent approximately 19.2% of the outstanding shares of Common Stock based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003. C. Michael Kojaian is the beneficial owner of 11,725 shares of Preferred Stock through his indirect ownership of 11,725 shares of Preferred Stock.

          KH is the beneficial owner of 723,840 shares of Common Stock through its direct ownership of 723,840 shares of Common Stock. These shares represent approximately 4.8% of the outstanding shares of Common Stock based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003.

          KV is the beneficial owner of 1,337,358 shares of Common Stock through its direct ownership of 1,337,358 shares of Common Stock. These shares represent approximately 8.8% of the outstanding shares of Common Stock, based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003. KV is the beneficial owner of 11,725 shares of Preferred Stock through its direct ownership of 11,725 shares of Preferred Stock.

          KVMM is the beneficial owner of 1,337,358 shares of Common Stock through its indirect ownership of 1,337,358 shares of Common Stock. These shares represent approximately 8.8% of the outstanding shares of Common Stock based on 15,174,226 shares as determined by the Company to have been outstanding as of February 1, 2003. KVMM is the beneficial owner of 11,725 shares of Preferred Stock through its indirect ownership of 11,725 shares of Preferred Stock.

          (b)     Mike Kojaian has sole voting and dispositive power over 850,844 shares of Common Stock and shared voting and dispositive power over 723,840 shares of Common Stock.

          C. Michael Kojaian has sole voting and dispositive power over 850,842 shares of Common Stock and shared voting and dispositive power over 2,061,198 shares of Common

8


Stock. C. Michael Kojaian has sole voting and dispositive power over 0 shares of Preferred Stock and shared voting and dispositive power over 11,725 shares of Preferred Stock.

          KH has sole voting and dispositive power over 0 shares of Common Stock and shared voting and dispositive power over 723,840 shares of Common Stock.

          KV has sole voting and dispositive power over 0 shares of Common Stock and shared voting and dispositive power over 1,337,358 shares of Common Stock. KV has sole voting and dispositive power over 0 shares of Preferred Stock and shared voting and dispositive power over 11,725 shares of Preferred Stock.

          KVMM has sole voting and dispositive power over 0 shares of Common Stock and shared voting and dispositive power over 1,337,358 shares of Common Stock. KVMM has sole voting and dispositive power over 0 shares of Preferred Stock and shared voting and dispositive power over 11,725 shares of Preferred Stock.

          Mike Kojaian and C. Michael Kojaian and certain other persons are parties to a Voting Agreement dated January 24, 1997 concerning the voting of shares of the Company's Common Stock, as described in Item 6 below, the contents of which are herein incorporated by reference. However, each of Mike Kojaian and C. Michael Kojaian reserve the right to act independently with respect to the shares of Common Stock owned by them and disclaim beneficial ownership of the shares of Common Stock owned by the other.

          (c)     In the sixty (60) days prior to the date of this Amendment No. 5, none of the Reporting Persons engaged in any transactions with respect to the Common Stock.

          (d)     Not applicable.

          (e)     Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships with respect to Securities of the Issuer.

          The contents of Item 4 of this Amendment No. 5, including all information incorporated by reference into it, and Item 6 of Amendment No. 3 are herein incorporated by reference.

Item 7.

Material to Be Filed as Exhibits


Exhibit 1

Letter Agreement dated April 14, 2002 by and between the Company and KV. Filed as Exhibit 1 to the Amendment No. 2 to the Schedule 13D of Mike Kojaian, C. Michael Kojaian, Kojaian Ventures, L.L.C. and Kojaian Ventures-MM, Inc. filed on April 19, 2002 and herein incorporated by reference.

   

Exhibit 2

Letter Amendment dated May 13, 2002 by and between the Company and KV. Filed as Exhibit 1 to the Company's Form 8-K Current Report filed on May 14, 2002 and herein incorporated by reference.



9


   

Exhibit 3

Convertible Subordinated Promissory Note and Security Agreement in the principal amount of $11,237,500 dated May 13, 2002. Filed as Exhibit 3 to the Company's Form 8-K Current Report filed on May 14, 2002 and herein incorporated by reference.

   

Exhibit 4

Certificate of Amendment of Certificate of Designations, Number, Voting Powers, Preferences and Rights of Series A Preferred Stock of Grubb & Ellis Company. Filed as Exhibit 4 to the Company's Form 8-K Current Report filed on May 14, 2002 and herein incorporated by reference.

 

 

Exhibit 5

Letter Agreement dated May 7, 2003 between Grubb & Ellis Company and Kojaian Management Corporation.

   

Exhibit 6

Promissory Note dated May 9, 2003 in the principal amount of $4,000,000 executed by Grubb & Ellis Company in favor of Kojaian Funding, L.L.C.

   

Exhibit 7

Security Agreement dated May 9, 2003 between Grubb & Ellis Company and Kojaian Funding, L.L.C.

   

Exhibit 8

Guarantee and Collateral Agreement dated May 9, 2003 by Grubb & Ellis Company and certain of its subsidiaries in favor of Kojaian Funding, L.L.C.

   

Exhibit 9

Joint Filing Agreement dated May 19, 2003 by and among the Reporting Persons.




















10


SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


Dated: May 19, 2003

 

/s/ Mike Kojaian


 

 

Mike Kojaian

 

 

 

 

 

 

Dated: May 19, 2003

 

/s/ C. Michael Kojaian


 

 

C. Michael Kojaian

 

 

 

 

 

 

Dated: May 19, 2003

 

KOJAIAN HOLDINGS, L.L.C.

 

 

 

 

 

By

/s/ C. Michael Kojaian


 

 

 

C. Michael Kojaian, its Member

 

 

 

 

 

 

Dated: May 19, 2003

 

KOJAIAN VENTURES, L.L.C.

 

 

 

 

 

By Kojaian Ventures-MM, Inc., its Managing Member

 

 

 

 

 

By

/s/ C. Michael Kojaian


 

 

 

C. Michael Kojaian, President

 

 

 

Dated: May 19, 2003

 

KOJAIAN VENTURES-MM, INC.

 

 

 

 

 

By

/s/ C. Michael Kojaian


 

 

 

C. Michael Kojaian, President










11


EX-5 3 kojex5_051503.htm Exhibit 5 to Schedule 13D 05-15-03

EXHIBIT 5

 


KOJAIAN

KOJAIAN MANAGEMENT CORPORATION
39400 WOODWARD AVENUE
SUITE 250
BLOOMFIELD HILLS, MICHIGAN 48304-2876
(248) 644-7600
(248) 644-7620 FAX




May 7, 2003



Mr. Brian Parker
Chief Financial Officer
GRUBB & ELLIS COMPANY
2215 Sanders Road
Suite 400
Northbrook, IL 60062

Dear Mr. Parker:

Subject to the terms and conditions set forth herein, Kojaian Management Corporation, on behalf of an entity to be formed ("Lender"), hereby agrees to make a loan to Grubb & Ellis Company (the "Company") in the principal amount of Four Million Dollars ($4,000,000) (the "Loan"). The terms and conditions of the making of the Loan are as follows:

1.

The making of the Loan shall be conditioned upon the prior authorization of the Board of Directors of the Company based upon the recommendation of a committee consisting of a disinterested director (hereinafter, "Company Approval");

 

 

2.

The Company Approval shall occur no later than May 7, 2003;

 

 

3.

The funding of the Loan will be within 2 business days of receiving written notice of the timely Company Approval, after receiving any necessary consent of the First Lenders under the Credit Agreement (as defined in 7 below) and after execution of documentation acceptable to Lender and the Company;

 

 

4.

The Loan shall bear interest at a rate of ten percent (10%) per annum;

 

 

5.

In connection with the Loan, the Company shall make monthly interest payments in arrears on the first day of each month;

 

 

6.

The Loan shall mature on July 15, 2004, unless earlier due to default;

 

 

7.

The Loan shall be secured by all assets of the Company and guaranteed by all of its subsidiaries and secured by all of their assets, all of which security interests shall be properly perfected but junior and subordinate to the rights of lenders under, and cross-defaulted with, that certain Credit Agreement dated December 31, 2000 (as amended, restated, refinanced or other modified from time to time) between the Company and various financial institutions (together with their respective successors and assigns, the "First Lenders") and Bank of America, N.A., as administrative agent (in such capacity, the "Agent") (the "Credit Agreement") pursuant to a subordination agreement in a form and content satisfactory to Lender and the First Lenders;




Mr. Brian Parker
Grubb & Ellis Company
May 1, 2003
Page Two


 

 

8.

At the closing of the Loan, Company shall pay Lender a fee equal to 1% of the principal amount of the Loan and reimburse all of Lender's reasonable costs, including counsel fees, in connection with the Loan;

 

 

9.

Upon no fewer than 15 days advance notice, the Loan may be prepaid by the Company at any time without penalty but with accrued and unpaid interest; and

 

 

10.

The Loan shall otherwise have terms and conditions as are customary in sophisticated commercial loan transactions and as are satisfactory to Lender and to the Company and Lender, in its sole discretion, shall then be satisfied in all respects with its arrangements with First Lender.


Please confirm your acceptance of the terms and conditions contained in this letter by executing and returning a copy hereof as soon as possible.

Thank you for your cooperation.

Very truly yours,

KOJAIAN MANAGEMENT CORPORATION



/s/ C. Michael Kojaian
C. Michael Kojaian
Executive Vice President

CMK--alg


This letter is agreed to and accepted by the Company this 7th day of May, 2003;


GRUBB & ELLIS COMPANY

 

 

 

 

 

 

 

BY:

Brian Parker


 

Its:

CFO


 

EX-6 4 kojex6_051503.htm Exhibit 6 to Schedule 13D

EXHIBIT 6

PROMISSORY NOTE

$4,000,000

Bloomfield Hills, Michigan
May 9, 2003



          FOR VALUE RECEIVED, Grubb & Ellis Company, a Delaware corporation (the "Maker"), hereby unconditionally promises to pay to the order of Kojaian Funding, L.L.C. (the "Holder"), having an address at 39400 Woodward Avenue, Suite 250, Bloomfield Hills, Michigan 48304, at such address or at such other place as may be designated in writing by the Holder, or its successors and/or assigns, the original aggregate principal sum of Four Million Dollars ($4,000,000), together with interest on the unpaid principal balance of this Note outstanding at a rate per annum equal to ten percent (10%) (computed on the basis of the actual number of days elapsed in a 360-day year).

          Interest-only payments shall be paid on June 1, 2003 and on the first day of each month, in arrears, thereafter through and including July 15, 2004 (the "Maturity Date") when the entire outstanding principal, any accrued interest, plus reasonable, documented out-of-pocked expenses of the Holder incurred in connection with the collection of this Note ("reasonable expenses"), shall be due and payable, or earlier if such amounts are made automatically due and payable upon the occurrence of an Event of Default (as defined below); provided, however, that the obligations herein are subject to the terms of that certain Subordination Agreement dated of even date herewith among the Maker, various financial institutions, and Bank of America, N.A. (the "Subordination Agreement") and no payments of any nature whatsoever shall be made nor rights shall be exercised with respect to the Note in contravention of the terms and provisions of the Subor dination Agreement. Subject to the provisions of the Amended and Restated Credit Agreement, dated as of December 31, 2000, as amended, among the Company, Various Financial Institutions, LaSalle Bank National Association, American National Bank and Trust Company of Chicago and Bank of America as same may be modified, extended, amended or supplemented at any time or from time to time (the "Credit Agreement"), the principal amount of this Note, plus accrued interest thereon with respect thereto, may be prepaid in cash, in whole or in part, at anytime and from time to time by Maker by the tendering of payment thereof to Holder after providing Holder with 15 days prior written notice of said prepayment. All cash payments by the Maker under this Note shall be in immediately available funds

          The Note is transferable and assignable to any person to whom such transfer is permissible under applicable law. The Maker agrees to issue from time to time replacement Notes in the form hereof to facilitate such transfers and assignments. In addition, after delivery of an indemnity in form and substance satisfactory to the Maker, the Maker also agrees to issue a replacement Note if the Note is lost, stolen, mutilated or destroyed.

          Every amount overdue under this Note shall bear interest from and after the date on which such amount first became overdue at an annual rate which is two (2) percentage points above the rate per year specified in the first paragraph of this Note (the "Default Interest Rate"). The Default




Interest Rate shall be increased at an annual rate which is two (2) percentage points above the then current Default Interest Rate on the thirtieth day after the date on which the Note first became overdue and for each month thereafter that the Note remains overdue; provided, however that the Default Interest Rate shall not exceed a maximum annual rate of 18%. Such interest on overdue amounts under this Note shall be payable on demand and shall accrue and be compounded monthly until the obligation of the Maker with respect to the payment of such interest has been discharged (whether before or after judgment). In no event shall any interest charged, collected or reserved under this Note exceed the maximum rate then permitted by applicable law and if any such payment is paid by the Maker, then such excess sum shall be credited by the Holder as a payment of principal.

          All payments by the Maker under this Note shall be made without set-off, defense or counterclaim and be free and clear and without any deduction or withholding for any taxes or fees of any nature whatever, unless the obligation to make such deduction or withholding is imposed by law.

          No delay or omission on the part of the Holder in exercising any right under this Note shall operate as a waiver of such right or of any other right of the Holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or waiver of the same or any other right on any future occasion.

          Maker agrees that: (i) upon the failure to pay when due the then outstanding principal balance, accrued interest and reasonable expenses hereunder; (ii) if Maker (1) commences any voluntary proceeding under any provision of Title 11 of the United States Code, as now or hereafter amended, or commences any other proceeding, under any law, now or hereafter in force, relating to bankruptcy, insolvency, reorganization, liquidation, or otherwise to the relief of debtors or the readjustment of indebtedness, (2) makes any assignment for the benefit of creditors or a composition or similar arrangement with such creditors, or (3) appoints a receiver, trustee or similar judicial officer or agent to take charge of or liquidate any of its property or assets; (iii) upon the commencement against Maker of any involuntary proceeding of the kind described in paragraph (ii) which is not discharged by Maker within 45 days after the commencement of said proceeding; ( iv) the default by the Maker, and the continuation thereof beyond any applicable notice and cure periods, of any of its other debt obligations, including the breach of any material provision of the Credit Agreement which would institute acceleration thereunder; or (v) upon the closing of a transaction that is deemed to be a Liquidation pursuant to Section 3(c)(ii) of the Certificate of Designation (any of (i) through (v), an "Event of Default"), all unpaid principal and accrued interest under this Note shall become immediately due and payable upon demand with ten (10) days written notice. The term "Person" means an individual, a corporation, a partnership, a limited liability company, an associate, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

          Upon the occurrence and continuance of an Event of Default, the Holder shall (a) be entitled to vote all Investment Property (as defined in the UCC) constituting Collateral, (b) be entitled to receive, hold and/or apply to the payment of the Obligations any dividends payable in respect of the Collateral, and (c) have all the rights and remedies of a secured party under the UCC. The Maker shall take such steps from time to time as may be requested by the Holder to ensure that the security interest created hereby shall constitute a first priority security interest under applicable law, including the UCC; provided however, the security interest created herein shall be junior to and subordinate to the rights under the Credit Agreement while the Credit Agreement is in place.


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          Any voluntary or mandatory prepayment of this Note shall be applied first to the payment of interest accrued and unpaid on this Note and second to the payment of principal.

          This Note is secured by a Security Agreement of even date herewith (the "Security Agreement") which is a lien upon all assets of the Maker. The obligations of Maker contained herein and in the Security Agreement are guaranteed by that certain Guarantee and Collateral Agreement dated of even date herewith among Maker, certain of Maker's subsidiaries and Holder.

          None of the terms or provisions of this Note may be excluded, modified or amended except by a written instrument duly executed by the Holder and the Maker expressly referring to this Note and setting forth the provision so excluded, modified or amended.

          Maker hereby forever waives presentment, demand, presentment for payment, protest, notice of protest, notice of dishonor of this Note and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of this Note upon ten (10) days written notice.

          If action is instituted to collect on this Note, the Maker promises to pay all reasonable costs and expenses, including reasonable attorney's fees, incurred in connection with such action.

          This Note shall be governed and construed in accordance with the laws of the State of Illinois applicable to agreements made and performed entirely in such State, without regard to conflict of laws principles thereof, and shall be binding upon the successors or assigns of the Maker and shall inure to the benefit of the successors and assigns of the Holder.


 

GRUBB & ELLIS COMPANY

 

 

 

 

 

 

 

By:

/s/ Brian Parker


 

 

Name: Brian Parker
Title: CFO














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EX-7 5 kojex7_051503.htm Exhibit 7 to Schedule 13D

EXHIBIT 7

SECURITY AGREEMENT

          THIS AGREEMENT is made on May 9 , 2003, by and between GRUBB & ELLIS COMPANY, a Delaware corporation ("Company"), whose chief executive office is located at 2215 Sanders Road, Suite 400, Northbrook, Illinois 60062, and KOJAIAN FUNDING, L.L.C., a Michigan limited liability company, ("Kojaian"), whose address is 39400 Woodward Avenue, Suite 250, Bloomfield Hills, Michigan 48304.

     RECITALS:

          A.     Kojaian has loaned an amount equal to $4,000,000.00 (the "Loan") to the Company pursuant to that certain Promissory Note, of even date herewith (the "Promissory Note"), and as further evidenced by among other things, UCC financing statements executed in connection therewith.

          B.     Company has agreed to grant Kojaian a security interest to secure the indebtedness and liabilities whatsoever of Company, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising and howsoever evidenced under the Promissory Note.

     NOW, THEREFORE, in consideration of the Recitals and the covenants and agreements herein contained, the Company hereby agrees as follows:

          1.     Security for Liabilities. As security for the payment of the Loan including any renewals or extensions thereof from Company to Kojaian and all obligations of any and every kind and nature heretofore, now or hereafter owing from Company to Kojaian, however incurred or evidenced, whether primary, secondary, contingent or otherwise, whether arising under this Agreement, under any other security agreement(s), promissory note(s), guarantee(s), mortgage(s), lease(s), instrument(s), document(s), contract(s), letter(s) of credit or similar agreement(s) heretofore, now or hereafter executed by Company and delivered to Kojaian, or by operation of law plus all interest, reasonable costs, expenses and reasonable attorney fees which may be made or incurred by Kojaian in the disbursement, administration or collection of such obligations and in the protection, maintenance and liquidation of the Collateral (hereinaf ter collectively called "Liabilities"), Company hereby grants to Kojaian a continuing security interest in the property and interests in property described below (hereinafter referred to as the "Collateral").

          2.     Collateral. The Collateral covered by this Agreement is all the Company's property described below, which it now owns or shall hereafter acquire or create immediately upon the acquisition or creation thereof, and includes, but is not limited to, any items listed on any schedule or list attached hereto:

a.     All personal property of the Company, including without limitation:

        All Accounts, Receivables, and all Goods whose sale, lease or other disposition has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, the Company, or rejected or refused by an Account Debtor.

        All Chattel Paper, including without limitation, Electronic Chattel Paper; Documents; Instruments, including without limitation, Promissory Notes; Letter of Credit Rights and proceeds of letters of credit; Supporting Obligations; notes secured by real estate; Commercial



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Tort Claims and General Intangibles, including without limitation, Payment Intangibles and Software.

        All Inventory, including without limitation raw materials, work in process, materials and finished goods leased by the Company as lessor or held for sale or lease or furnished or to be furnished under contracts of service or used or consumed in a business.

        All Goods (other than Inventory), including without limitation, Equipment.

        All Securities, Investment Property and Deposit Accounts.

          b.     All Proceeds (whether Cash Proceeds or Noncash Proceeds) of the foregoing property, including without limitation proceeds of insurance payable by reason of loss or damage to the foregoing property and of eminent domain or condemnation awards.

          c.     All products of, additions and accessions to, and substitutions, betterments and replacements for the foregoing property.

          d.     All sums at any time credited by or due from Company to Kojaian.

          e.     All property in which the Company has an interest now or at any time hereafter coming into the possession or under the control of Kojaian or in transit by mail or carrier to or from Kojaian or in possession of or under the control of any third party acting on Kojaian's behalf without regard to whether Kojaian received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether Kojaian has conditionally released the same (excluding, nevertheless, any of the foregoing property of the Company which now or any time hereafter is in possession or control of Kojaian under any written trust agreement wherein Kojaian is trustee and Company is trustor).

          Terms used and not otherwise defined in this Agreement shall have the meaning given such terms in the Illinois Uniform Commercial Code. In the event the meaning of any term defined in the Illinois Uniform Code is amended after the date of this Agreement, the meaning of such term as used in this Agreement shall be that of the more encompassing of: (i) the definition contained in the Illinois Uniform Commercial Code prior to the amendment, and (ii) the definition contained in the Illinois Uniform Commercial Code after the amendment.

          3.     Perfection of Security Interest. Company hereby irrevocably authorizes Kojaian to file financing statement(s) describing the Collateral in all public offices deemed necessary by Kojaian, and to take any and all actions, including, without limitation, filing all financing statements, continuation financing statements and all other documents that Kojaian may reasonably determine to be necessary to perfect and maintain Kojaian's security interests in the Collateral. Company shall have possession of the Collateral, except where expressly otherwise provided in this Agreement or where Kojaian chooses to perfect its security interest by possession, whether or not in addition to the filing of a financing statement. Where Collateral is in the possession of a third party, Company will join with Kojaian in notifying the third party of Kojaian's security interest and obtaining an acknowledgement from the third p arty that it is holding the Collateral for the benefit of Kojaian. Company will cooperate with Kojaian in obtaining control with respect to Collateral consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper. Company will not create any Chattel Paper without placing a legend on the Chattel Paper acceptable to Kojaian indicating that Kojaian has a security interest in the Chattel Paper. Company shall pay the cost of filing or recording all financing statement(s) and other documents. Company agrees to promptly execute and deliver to Kojaian all

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financing statements, continuation financing statements, assignments, certificates of title, applications for vehicle titles, affidavits, reports, notices, schedules of Accounts, designations of Inventory, letters of authority and all other documents that Kojaian may reasonably request in form satisfactory to Kojaian to perfect and maintain Kojaian's security interests in the Collateral. In order to fully consummate all of the transactions contemplated hereunder, Company shall make appropriate entries on its books and records disclosing Kojaian's security interests in the Collateral.

          4.     Subordination. This Security Agreement and the obligations herein are junior to and subordinate to the rights of lenders under, and cross defaulted with, that certain Credit Agreement dated December 31, 2000 (as amended, restated, refinanced or other modified from time to time) between the Company and various financial institutions (together with their respective successors and assigns, the "First Lenders") and Bank of America, N.A., as administrative agent (in such capacity, the "Agent") (the "Credit Agreement").

          5.     Guarantee. The obligations of Company herein are guaranteed by that certain Guarantee and Collateral Agreement dated of even date herewith among Company, certain of Company's subsidiaries and Kojaian.

          6.     Warranties and Representations. Company warrants and represents, except for the rights of First Lenders under the Credit Agreement and those exceptions contained therein which would not create a material adverse effect on the security granted hereunder: (a) except as may be otherwise disclosed in an attachment to this Agreement, Company has rights in or the power to transfer the Collateral and its title to the Collateral is free and clear of all liens or security interests, except Kojaian's and First Lenders' security interests and except for "Permitted Liens" (as that term is defined in the Credit Agreement), (b) all Chattel Paper constituting Collateral evidences a perfected security interest in the goods covered by it free from all other liens and security interests, (c) no financing statements, other than that of Kojaian and First Lenders and any other holders of Permitted Lines, are on file cove ring the Collateral or any of it, (d) if Inventory is represented or covered by documents of title, Company is the owner of the documents free of all liens and security interests other than Kojaian's security interest and warehousemen's charges, if any, not delinquent; (e) the Company's exact legal name and the address of the Company's chief executive office are as set forth in the first paragraph of this Agreement; (f) if the Company is a Registered Organization, the form of its organization and the State under which it is organized are as set forth in the first paragraph of this Agreement; (g) the Collateral, wherever located, is covered by this Agreement; (h) the amounts represented by Company as owing to Company in respect of each Account, Chattel Paper and General Intangible are accurate in all material respects; (i) the execution and delivery of this Agreement and any instruments evidencing Liabilities will not violate nor constitute a breach of Company's Articles of Incorporation, By-Laws, Articles of Organization, Partnership Agreement, if any, or any agreement or restriction of any type whatsoever to which Company is a party or is subject; (j) there are no actions or proceedings which are threatened or pending against Company which might result in any material adverse change in Company's financial condition or which might materially affect any of Company's assets; and (k) Company has duly filed all federal, state, and other governmental tax returns which Company is required by law to file, and will continue to file same during such time as any of the Liabilities hereunder remain owing to KOJAIAN, and all such taxes required to be paid have been paid, in full.

          7.     Covenants. Company covenants and agrees that while any of the Liabilities remain unperformed and unpaid it will: (a) preserve its legal existence and not, in one transaction or a series of related transactions, merge into or consolidate with any other entity, or sell all or substantially all of its assets without the prior written consent of Kojaian; (b) not change the state where it is located; (c) neither change its name, form of business entity nor address of its chief executive office without giving

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written notice to Kojaian thereof at least thirty (30) days prior to the effective date of such change, and Company agrees that all documents, instruments, and agreements demanded by Kojaian in response to such change shall be prepared, filed, and recorded at Company's expense prior to the effective date of such change; (d) not use the Collateral, nor permit the Collateral to be used, for any unlawful purpose, whatever; (e) maintain the Collateral in first-class condition and repair; and (f) indemnify and hold Kojaian harmless against claims of any persons or entities not a party to this Agreement concerning disputes arising over the Collateral.

          8.     Insurance, Taxes, Etc. Company has the risk of loss of the Collateral. Company shall: (a) pay promptly all taxes, levies, assessments, judgments, and charges of any kind upon or relating to the Collateral, to Company's business, and to Company's ownership or use of any of its assets, income, or gross receipts; (b) at its own expense, keep and maintain all of the Collateral insured against loss or damage by fire, theft, explosion and other risks in such amounts, with such companies, under such policies and in such form as shall be reasonably satisfactory to Kojaian, which policies shall expressly provide that loss thereunder shall be payable to Kojaian as its interest may appear (and Kojaian shall have a security interest in the proceeds of such insurance and may apply any such proceeds which may be received by it toward payment of the Liabilities, whether or not due, in such order of application as K ojaian may determine); and (c) maintain at its own expense commercial general liability and property damage insurance in such amounts, with such companies, under such policies and in such form as shall be reasonably satisfactory to Kojaian, and, upon Kojaian's request, shall furnish Kojaian with such policies and evidence of payment of premiums thereon. If Company at any time hereafter should fail to obtain or maintain any of the policies required above or pay any premium in whole or in part relating thereto, or shall fail to pay any such tax, assessment, levy, or charge or to discharge any such lien, claim, or encumbrance, then Kojaian, without waiving or releasing any obligation or default of Company hereunder, may at any time hereafter (but shall be under no obligation to do so) make such payment or obtain such discharge or obtain and maintain such policies of insurance and pay such premiums, and take such action with respect thereto as Kojaian deems advisable. All sums so disbursed by Kojaian, including reasonable attorney fees, court costs, expenses, and other charges relating thereto, shall be part of the Liabilities, secured hereby, and payable upon demand together with interest at the then applicable default interest rate payable in connection with any of the Liabilities from the date when advanced until paid.

          9.     Collection of Accounts. Kojaian conditionally authorizes and permits Company to collect Accounts from debtors. This privilege may be terminated by Kojaian at any time after an Event of Default hereunder upon written notice from Kojaian, and upon mailing such notice Kojaian shall be entitled to and have all of the ownership, title, rights, securities and guarantees of Company in respect to Accounts, and in respect to the property evidenced thereby, including the right of stoppage in transit, and Kojaian shall have the right to enforce the Company's rights against the account debtors and obligors. Thereafter Company will receive all payments on Account as agent of and for Kojaian and will transmit to Kojaian, on the day of receipt thereof, all original checks, drafts, acceptances, notes and other evidence of payment received in payment of or on account of Accounts, including all cash moneys similarly r eceived by Company. Until such delivery, Company shall keep all such remittances separate and apart from Company's own funds, capable of identification as the property of Kojaian, and shall hold the same in trust for Kojaian. All items or accounts which are delivered by Company to Kojaian on account of partial or full payment or otherwise as proceeds of any of the Collateral shall be deposited to the credit of a deposit account (herein called the "Collateral Deposit Account") of Company with Kojaian, as security for payment of the Liabilities. Company shall have no right to withdraw any funds deposited in the Collateral Deposit Account. Kojaian may from time to time, at its discretion, and shall upon request of Company made not more than once in a week, apply all or any of the then balance, representing collected funds in the Collateral Deposit Account, toward payment of the Liabilities,

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whether or not then due, in such order of application as Kojaian may determine, and Kojaian may, from time to time, in its discretion, release all or any of such balance to Company. Company, if in default in the performance of any of the provisions of this Agreement beyond applicable notice and cure periods, upon demand, will open all mail only in the presence of a representative of Kojaian, who may take therefrom any remittance on Accounts in which Kojaian shall have a security interest. Kojaian or its representatives is authorized to endorse, in the name of Company, any item howsoever received by Kojaian, representing any payment on or other proceeds of any of the Collateral, and may endorse or sign the name of Company to Accounts, invoices, assignments, financing statements, notices to debtors, bills of lading, storage receipts, or other instruments or documents in respect to Accounts or the property covered thereby requested by Kojaian. Company will promptly give Kojaian copies of all Accounts, to be acc ompanied by such information and by such documents or copies thereof as Kojaian may require. Company will maintain such records with respect to Accounts and the conduct and operation of its business as Kojaian may request, and will furnish Kojaian all information with respect to Accounts and the conduct and operation of its business, including balance sheets, operating statements and other financial information, as Kojaian may request.

          10.     Care, Custody, and Dealings with Collateral. Kojaian shall have no liability to Company with respect to Kojaian's care and custody of any Collateral in Kojaian's possession and shall have no duty to sell, surrender, collect or protect the same or to preserve rights against prior parties or to take any action with respect thereto beyond the custody thereof, exercising that reasonable custodial care which it would exercise in holding similar interests for its own account. Kojaian shall only be liable for its acts of gross negligence. Kojaian is hereby authorized and empowered to take the following steps, either prior or subsequent to default hereunder: (a) to deal directly with issuers, entities, owners, transfer agents and custodians to effect changes in the registered name of any such Collateral, to effect substitutions and replacements thereof necessitated by any reason (including by reason of reca pitalization, merger, acquisition, debt restructuring or otherwise), to execute and deliver receipts therefor and to take possession thereof; (b) to communicate and deal directly with payors of instruments (including securities, promissory notes, letters of credit, certificates of deposits and other instruments), which may be payable to or for the benefit of Company at any time, with respect to the terms of payment thereof; (c) in the Company's name, to agree to any extension of payment, any substitution of Collateral or any other action or event with respect to the Collateral; (d) to notify parties who have an obligation to pay or deliver anything of value (including money or securities) with respect to the Collateral to pay or deliver the same directly to Kojaian on behalf of Company and to receive and receipt for any such payment or delivery in Company's name as an addition to the Collateral; (e) to surrender renewable certificates or any other instruments or securities forming a portion of the Collateral which may permit or require reissuance, renewal or substitution at any time and to immediately take possession of and receive directly from the issuer, maker or other obligor, the substituted instrument or securities; (f) to exercise any right which Company may have with respect to any portion of the Collateral, including rights to seek and receive information with respect thereto; and (g) to do or perform any other act and to enjoy all other benefits with respect to the Collateral as Company could in its own name.

          11.     Disposition of Collateral. Kojaian does not authorize, and Company agrees not to make any sales or leases of any of the Collateral, license any of the Collateral, or grant any other security interest in any of the Collateral; provided, however, that until such time as Kojaian shall notify Company of the revocation of such power and authority and after and Event of Default hereunder, Company (a) may only in the ordinary course of its business, at its own expense, sell, lease or furnish under contracts of service any of the inventory normally held by Company for such purpose; (b) may use and consume any raw materials, work in process or materials, the use and consumption of which is necessary in order to carry on Company's business; and (c) will at its own expense, endeavor to collect, as and when due, all accounts due with respect to any of the Collateral, including the taking of such action with res pect to

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such collection as Kojaian may reasonably request or, in the absence of such request, as Company may deem advisable. A sale in the ordinary course of business does not include a transfer in partial or total satisfaction of a debt. To the extent Company uses any proceeds of any of the Liabilities to purchase Collateral, Company's repayment of the Liabilities shall apply on a "first-in-first-out" basis so that the portion of the Liabilities used to purchase a particular item of Collateral shall be deemed paid in the chronological order the Company purchased the Collateral.

          12.     Information. Company shall permit Kojaian or its agents upon reasonable request to have access to, and to inspect, all the Collateral (and Company's other assets, if any) and may from time to time verify Accounts, inspect, check, make copies of, or extracts from the books, records, and files of Company, and Company will make same available at any time for such purposes. In addition, Company shall promptly supply Kojaian with such other financial or other information concerning its affairs and assets as Kojaian may request from time to time.

          13.     Events of Default. The Company, without notice or demand of any kind, shall be in default under this Agreement upon the occurrence of any of the following events (each an "Event of Default"):

          a.     Nonpayment of Obligations. Any amount due and owing on the Liabilities or any fees due Kojaian hereunder, any reasonable expenses incurred by Kojaian hereunder or any and all other liabilities and obligations of the Company to Kojaian, howsoever created, arising or evidenced, and howsoever owned, held or acquired, whether now or hereafter existing, whether now due or to become due, direct or indirect, absolute or contingent, and whether several, joint or joint and several, whether by its terms or as otherwise provided herein, is not paid when due. Notwithstanding the foregoing, in the event Company elects to defer interest payments as provided in the Note it shall not be considered an Event of Default hereunder so long as Company provides Kojaian with five (5) days prior written notice of its intention to do so.

          b.     Misrepresentation. Any written warranty, representation, certificate or statement in this Agreement, any loan document executed in conjunction with the Liabilities (the "Loan Documents") or any other agreement with Kojaian or otherwise made by or for the Company or any other party obligated on any of the Liabilities ("Obligor") shall be false when made or at any time, or if any financial data or any other information now or hereafter furnished to Kojaian by or on behalf of any Obligor shall prove to be false, inaccurate or misleading in any material respect.

          c.     Nonperformance. Any failure to perform or default in the performance of any covenant, condition or agreement contained in this Agreement, or in the Loan Documents or any other agreement with Kojaian and the continuation thereof for thirty (30) days beyond the date due.

          d.     Default under Loan Documents. Any default under any of the other Loan Documents, all of which covenants, conditions and agreements contained therein are hereby incorporated in this Agreement by express reference.

          e.     Default under Other Agreements. Except to the extent that the same would not constitute an Event of Default under the Credit Agreement, any default in the payment of principal, interest or any other sum for any other obligation beyond any period of notice and/or grace provided with respect thereto or in the performance of any other term, condition or covenant contained in any material agreement (including, but not limited to any capital or



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operating lease or any agreement in connection with the deferred purchase price of property) under which any such obligation is created, the effect of which default is to cause or permit the holder of such obligation (or the other party to such other agreement) to cause such obligation to become due prior to its stated maturity or terminate such other agreement.

          f.     Assignment for Creditors. Any Obligor makes an assignment for the benefit of creditors, fails to pay, or admits in writing its inability to pay its debts as they mature; or if a trustee of any substantial part of the assets of any Obligor is applied for or appointed, and in the case of such trustee being appointed in a proceeding brought against such Obligor, the Obligor, by any action or failure to act indicates its approval of, consent to, or acquiescence in such appointment and such appointment is not vacated, stayed on appeal or otherwise shall not have ceased to continue in effect within thirty (30) days after the date of such appointment.

          g.     Bankruptcy. Any proceeding involving any Obligor, is commenced by or against such Obligor under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of the federal government or any state government, and in the case of any such proceeding being instituted against such Obligor, (i) such Obligor, by any action or failure to act indicates its approval of, consent to or acquiescence therein, or (ii) an order shall be entered approving the petition in such proceedings and such order is not vacated, stayed on appeal or otherwise shall not have ceased to continue in effect within thirty (30) days after the entry thereof.

          h.     Judgments. Except to the extent that the same would not constitute an Event of Default under the Credit Agreement, the entry of any judgment, decree, levy, attachment, garnishment or other process, or the filing of any judgment lien against any Obligor which is not fully covered by insurance, and such judgment or other process shall not have been, within thirty (30) days from the entry thereof, (i) bonded over to the satisfaction of Kojaian and appealed, (ii) vacated, or (iii) discharged.

          i.     Collateral Impairment. The entry of any judgment, decree, levy, attachment, garnishment or other process, or the filing of any lien against any collateral securing any of the Liabilities that would result in a material adverse effect on the Company and such judgment or other process shall not have been, within thirty (30) days from the entry thereof, (i) bonded over to the satisfaction of Kojaian and appealed, (ii) vacated, or (iii) discharged, or the loss, theft, destruction, seizure or forfeiture, or the occurrence of any material deterioration or impairment of any of any collateral securing any of the Liabilities any material decline or depreciation in the value or market price thereof (whether actual or reasonably anticipated), which causes any collateral securing any of the Liabilities, in the sole opinion of Kojaian acting in good faith, to become unsatisfactory as to value or character, or which caus es Kojaian to reasonably believe that it is insecure and that the likelihood for repayment of the Liabilities is or will soon be impaired, time being of the essence. The cause of such deterioration, impairment, decline or depreciation shall include, but is not limited to, the failure by the Company to do any act deemed reasonably necessary by Kojaian to preserve and maintain the value and collectability of any collateral securing any of the Liabilities.

          j.     Material Adverse Event. The occurrence of any material adverse event which causes a change in the financial condition of any Obligor, or which would have a material adverse effect on the business of any Obligor.



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          k.     Material Adverse Financial Change. The determination by Kojaian that a material adverse change has occurred in the financial condition of any Obligor from the condition set forth in the most recent financial statement of such Obligor furnished to Kojaian, or from the financial condition of such Obligor most recently disclosed to Kojaian in any manner.

          14.     Remedies Upon Default. Upon the occurrence of any Event of Default, any and all of the Liabilities may (notwithstanding any provisions thereof and unless otherwise provided in any loan agreement executed in conjunction therewith), at the option of Kojaian, and without demand or notice of any kind, be declared and thereupon shall immediately become due and payable and Kojaian may exercise from time to time any rights and remedies including the right to immediate possession of the Collateral available to it under applicable law. Kojaian may directly contact third parties and enforce against them all rights which arise with respect to the Collateral and to which Company or Kojaian would be entitled. Company waives any right it may have to require Kojaian to pursue any third person for any of the Liabilities. Kojaian shall have the right to hold any property then in, upon or in any way affiliated to sai d Collateral at the time of repossession even though not covered by this Agreement until return is demanded in writing by the Company. Company agrees, upon the occurrence of an Event of Default, to assemble at its expense all the Collateral and make it available to Kojaian at a convenient place acceptable to Kojaian. Company agrees to pay all reasonable costs of Kojaian of collection of the Liabilities, and enforcement of rights hereunder, including reasonable attorney fees and legal expenses, including participation in Bankruptcy proceedings, and expense of locating the Collateral and expenses of any repairs to any realty or other property to which any of the Collateral may be affixed or be a part. If any notification of intended disposition of any of the Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if sent at least ten (10) days before such disposition, postage pre-paid, addressed to the Company either at the address shown above or at any other address of the Company appearing on the records of Kojaian and to such other parties as may be required by the Illinois Uniform Commercial Code. Company acknowledges that Kojaian may be unable to effect a public sale of all or any portion of the Collateral because of certain legal and/or practical restrictions and provisions which may be applicable to the Collateral and, therefore, may be compelled to resort to one or more private sales to a restricted group of offerees and purchasers. After an Event of Default, Company consents to any such private sale so made even though at places and upon terms less favorable than if the Collateral were sold at public sale. Kojaian shall have no obligation to clean-up or otherwise prepare the Collateral for sale. Kojaian may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Kojaian may specific ally disclaim any warranties as to the Collateral. If Kojaian sells any of the Collateral upon credit, Company will be credited only with payments actually made by the purchaser, received by Kojaian and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Kojaian may resell the Collateral and the Company shall be credited with the proceeds of sale. Kojaian shall have no obligation to marshal any assets in favor of the Company. Company waives the right to jury trial in any proceeding instituted with respect to the Collateral. Out of the net proceeds from sale or disposition of the Collateral, Kojaian shall retain all the Liabilities then owing to it and the actual cost of collection (including reasonable attorney fees) and shall tender any excess to Company or its successors or assigns. If the Collateral shall be insufficient to pay the entire Liabilities, Company shall pay to Kojaian the resulting deficiency upon demand. Company expressly waives any and al l claims of any nature, kind or description which it has or may hereafter have against Kojaian or its representatives, by reason of taking, selling or collecting any portion of the Collateral in the course of exercising its remedies hereunder. Company consents to releases of the Collateral at any time (including prior to default) and to sales of the Collateral in groups, parcels or portions, or as an entirety, as Kojaian shall deem appropriate. Company expressly absolves Kojaian from any loss or decline in market value of any Collateral by reason of delay in the enforcement or assertion or nonenforcement of any rights or remedies under this Agreement.

8


Company agrees that Kojaian shall, upon the occurrence of an Event of Default, have the right to peacefully retake any of the collateral. Company waives any right it may have in such instance to a judicial hearing prior to such retaking.

          15.     General. Time shall be deemed of the very essence of this Agreement. Except as otherwise defined in this Agreement, all terms in this Agreement shall have the meanings provided by the Illinois Uniform Commercial Code. Kojaian shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if it takes such action for that purpose as Company requests in writing, but failure of Kojaian to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and failure of Kojaian to preserve or protect any rights with respect to such Collateral against any prior parties or to do any act with respect to the preservation of such Collateral not so requested by Company shall not be deemed a failure to exercise reasonable care in the custody and preservation of such Collateral. This Agreement has been delivered in Illinois and shall be construed in accordance with the laws of the State of Illinois. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. The rights and privileges of Kojaian hereunder shall inure to the benefit of its successors and assigns, and this Agreement shall be binding on all heirs, personal representatives, assigns and successors of Company and all persons who become bound as a debtor to this Agreement. Company hereby expressly authorizes and appoints Kojaian to act as its attorney-in-fact for the sole purpose of executing any and all financing statements or other documents deemed necessary to perfect the security interest herein contemplated.

          16.     No Waiver. Any delay on the part of Kojaian in exercising any power, privilege or right hereunder, or under any other instrument executed by Company to Kojaian in connection herewith shall not operate as a waiver thereof, and no single or partial exercise thereof, or the exercise of any other power, privilege or right shall preclude other or further exercise thereof, or the exercise of any other power, privilege or right. The waiver of Kojaian of any default by Company shall not constitute a waiver of any subsequent defaults, but shall be restricted to the default so waived. All rights, remedies and powers of Kojaian hereunder are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all rights, remedies, and powers given hereunder or in or by any other instruments, or by the Illinois Uniform Commercial Code, or any laws now existing or hereafter enacted. The Comp any acknowledges that this is the entire agreement between the parties except to the extent that writings signed by the party to be charged are specifically incorporated herein by reference either in this Agreement or in such writings, and acknowledges receipt of a true and complete copy of this Agreement.
















9


          IN WITNESS WHEREOF, this Security Agreement was executed and delivered by the undersigned on the date stated in the first paragraph above.

Witnesses:

 

Company:

 

 

 

 

 

GRUBB & ELLIS COMPANY

 

 

 

 

 

 

 


 

By:

/s/ Brian Parker


 

 

 

 

 


 

Its:

CFO


 

 

 

 

 

 

 

 

KOJAIAN:

 

 

 

 

 

KOJAIAN FUNDING, L.L.C., , a Michigan
limited liability company

 

 

 

 

 

 

 

 

By:

KOJAIAN VENTURES, L.L.C., a
Michigan limited liability company,
Member

 

 

 

 

 

 

 

By:

KOJAIAN VENTURES-MM,
INC., a Michigan corporation

 

 

 

 

 

 


 

 

 

By:

/s/ C. Michael Kojaian


 

 

 

 

 

C. Michael Kojaian

 


 

 

 

 

Its: Manager








10


EX-8 6 kojex8_051503.htm

EXHIBIT 8








GUARANTEE AND COLLATERAL AGREEMENT


made by


GRUBB & ELLIS COMPANY


and certain of its Subsidiaries


in favor of


KOJAIAN FUNDING, L.L.C.


Dated as of May 9, 2003


























TABLE OF CONTENTS

     

Page

       

SECTION 1.

DEFINED TERMS

 

1

 

1.1

Definitions

 

1

 

1.2

Other Definitional Provisions

 

5

         

SECTION 2.

GUARANTEE

 

5

 

2.1

Guarantee

 

5

 

2.2

Right of Contribution

 

6

 

2.3

No Subrogation

 

6

 

2.4

Amendments, etc. with respect to the Borrower Obligations

 

6

 

2.5

Guarantee Absolute and Unconditional

 

7

 

2.6

Reinstatement

 

8

 

2.7

Payments

 

8

         

SECTION 3.

GRANT OF SECURITY INTEREST

 

8

         

SECTION 4.

REPRESENTATIONS AND WARRANTIES

 

9

 

4.1

Representations in Credit Agreement

 

9

 

4.2

Title: No Other Liens

 

9

 

4.3

Perfected First Priority Liens

 

10

 

4.4

Chief Executive Office

 

10

 

4.5

Inventory and Equipment

 

10

 

4.6

Farm Products

 

10

 

4.7

Pledged Securities

 

10

 

4.8

Receivables

 

11

 

4.9

Intellectual Property

 

11

         

SECTION 5.

COVENANTS

 

11

 

5.1

Covenants in Credit Agreement

 

11

 

5.2

Delivery of Instruments and Chattel Paper

 

12

 

5.3

Maintenance of Insurance

 

12

 

5.4

Payment of Obligations

 

12

 

5.5

Maintenance of Perfected Security Interest: Further Documentation

 

12

 

5.6

Changes in Locations, Name, etc.

 

12

 

5.7

Notices

 

13

 

5.8

Pledged Securities

 

13

 

5.9

Receivables

 

14

 

5.10

Intellectual Property

 

14

         

SECTION 6.

REMEDIAL PROVISIONS

 

16

 

6.1

Certain Matters Relating to Receivables

 

16

 

6.2

Communications with Obligors; Grantors Remain Liable

 

17



i


 

6.3

Pledged Stock

 

17

 

6.4

Proceeds to be Turned Over to Lender

 

18

 

6.5

Application of Proceeds

 

18

 

6.6

Code and Other Remedies

 

18

 

6.7

Registration Rights

 

19

 

6.8

Waiver, Deficiency

 

20

         

SECTION 7.

MISCELLANEOUS

 

20

 

7.1

Amendments in Writing

 

20

 

7.2

Notices

 

20

 

7.3

No Waiver by Course of Conduct; Cumulative Remedies

 

21

 

7.4

Enforcement Expenses; Indemnification

 

21

 

7.5

Successors and Assigns

 

22

 

7.6

Set-Off

 

22

 

7.7

Counterparts

 

22

 

7.8

Severability

 

22

 

7.9

Section Headings

 

22

 

7.10

Integration

 

22

 

7.11

GOVERNING LAW

 

23

 

7.12

Submission To Jurisdiction; Waivers

 

23

 

7.13

Acknowledgments

 

23

 

7.14

WAIVER OF JURY TRIAL

 

24

 

7.15

Additional Grantors

 

24

 

7.16

Releases

 

24



SCHEDULES:

 

1

Notice of Addresses of Guarantors

2

Description of Pledged Securities

3

Filings and Other Actions Required to Perfect Security Interests

 

-UCC Financing Statements

4

Location of Jurisdiction of Organization and Chief Executive Office

5

Location of Inventory and Equipment

6

Intellectual Property








ii


GUARANTEE AND COLLATERAL AGREEMENT

          This GUARANTEE AND COLLATERAL AGREEMENT, dated as of May 9, 2003, made by each of the signatories hereto (together with any other entity that may become a party hereto as provided herein, the "Grantors"), in favor of KOJAIAN FUNDING, L.L.C., a Michigan limited liability company, (the "Lender") party to the Letter Agreement, dated as of May 7, 2003 (the "Letter Agreement"), between GRUBB & ELLIS COMPANY, a Delaware corporation (the "Borrower") and the Lender.

WITNESSETH:

          WHEREAS, pursuant to the Letter Agreement, the Lender has agreed to make a Four Million Dollar ($4,000,000) loan to the Borrower (the "Loan") upon the terms and subject to the conditions set forth therein:

          WHEREAS, the Borrower is a member of an affiliated group of companies that includes each other Grantor;

          WHEREAS, the proceeds of the Loan will be used in part to enable the Borrower to make valuable transfers to one or more of the other Grantors in connection with the operation of their respective businesses;

          WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the making of the Loan; and

          WHEREAS, it is a condition precedent to the obligation of the Lender to make its Loan to the Borrower that the Grantors shall have executed and delivered this Agreement to the Lender.

          NOW, THEREFORE, in consideration of the promises and to induce the Lender to make the Loan to the Borrower thereunder, each Grantor hereby agrees with the Lender as follows:

SECTION 1. DEFINED TERMS

          1.1     Definitions. (a) Unless otherwise defined herein, terms defined in the Security Agreement dated as of even date herewith among the Borrower and the Lender (the "Security Agreement") and used herein shall have the meanings given to them in the Security Agreement, and the following terms which are defined in the Uniform Commercial Code in effect in the State of Illinois on the date hereof are used herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm Products, Instruments and Inventory.

     (b) The following terms shall have the following meanings:

     "Agreement": this Guarantee and Collateral Agreement, as the same may be



1


amended, supplemented or otherwise modified from time to time.

     "Borrower Obligations": the collective reference to the unpaid principal of and interest on the Loan and all other obligations and liabilities of the Borrower (including, without limitation, interest accruing at the then applicable rate provided in the Promissory Note dated of even date herewith from Borrower to Lender (the "Note") after the maturity of the Loan and interest accruing at the then applicable rate provided in the Note after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Lender (or, in the case of any Hedge Agreement referred to below, any Affiliate of Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Note, Security Agreement, this Ag reement, the other Loan Documents, any Letter of Credit or any Hedge Agreement entered into by the Borrower with Lender (or any Affiliate of Lender) or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, guarantee obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Lender that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).

     "Collateral": as defined in Section 3.

     "Collateral Account": any collateral account established by the Lender as provided in Section 6.1 or 6.4.

     "Copyrights": (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished (including, without limitation, those listed in Schedule 6), all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, and (ii) the right to obtain all renewals thereof.

     "Copyright Licenses": any written agreement naming any Grantor as licensor or licensee (including, without limitation, those listed in Schedule 6), granting any right under any Copyright, including, without limitation, the grant of rights to manufacture, distribute, exploit and sell materials derived from any Copyright.

     "General Intangibles": all "general intangibles" as such term is defined in Section 9-106 of the Uniform Commercial Code in effect in the State of Illinois on the date hereof and, in any event, including, without limitation, with respect to any Grantor, all contracts, agreements, instruments and indentures in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same



2


may from time to time be amended, supplemented or otherwise modified, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to damages arising thereunder and (iii) all rights of such Grantor to perform and to exercise all remedies thereunder, in each case to the extent the grant by such Grantor of a security interest pursuant to this Agreement in its right, title and interest in such contract, agreement, instrument or indenture is not prohibited by such contract agreement, instrument or indenture without the consent of any other party thereto, would not give any other party to such contract agreement, instrument or indenture the right to terminate its obligations thereunder, or is permitted with consent if all necessary consents to such grant of a security interest have been obtained from the other parties thereto (it being understood that the foregoing shall not be deemed to obligate such Grantor to obtain such consents); provided, that the foregoing limitation shall not affect, limit, restrict or impair the grant by such Grantor of a security interest pursuant to this Agreement in any Receivable or any money or other amounts due or to become due under any such contract, agreement, instrument or indenture.

     "Guarantor Obligations": with respect to any Guarantor, the collective reference to, without duplication, (i) the Borrower Obligations and (ii) all obligations and liabilities of such Guarantor which may arise under or in connection with this Agreement or any other Loan Document to which such Guarantor is a party, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to Lender that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).

     "Guarantors": the collective reference to each Grantor other than the Borrower.

     "Hedge Agreements": as to any Person, all interest rate swaps, caps or collar agreements or similar arrangements entered into by such Person providing for protection against fluctuations in interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.

     "Intellectual Property": the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

     "Intercompany Note": any promissory note evidencing loans made by any Grantor to the Borrower or any of its Subsidiaries.

     "Issuers": the collective reference to each issuer of a Pledged Security.



3


     "Illinois UCC": the Uniform Commercial Code as from time to time in effect in the State of Illinois.

     "Obligations": (i) in the case of the Borrower, the Borrower Obligations, and (ii) in the case of each Guarantor, its Guarantor Obligations.

     "Patents": (i) all letters patent of the United States, any other country or any political subdivision thereof and all goodwill associated therewith, all reissues and extensions thereof, including, without limitation, any of the foregoing referred to in Schedule 6, (ii) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, including, without limitation, any of the foregoing referred to in Schedule 6, and (iii) all rights to obtain any reissues or extensions of the foregoing.

     "Patent License": all agreements, whether written or oral, providing for the grant by or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in part by a Patent, including, without limitation, any of the foregoing referred to in Schedule 6.

     "Pledged Notes": all promissory notes listed on Schedule 2, all Intercompany Notes at any time issued to any Grantor and all other promissory notes issued to or held by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business).

     "Pledged Securities": the collective reference to the Pledged Notes and the Pledged Stock.

     "Pledged Stock": the shares of Capital Stock listed on Schedule 2, together with any other shares, stock certificates, options or rights of any nature whatsoever in respect of the Capital Stock of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect; provided that Pledged Stock shall not include more than 66% of the issued and outstanding Capital Stock of any Foreign Subsidiary.

     "Proceeds": all "proceeds" as such term is defined in Section 9-306(1) of the Uniform Commercial Code in effect in the State of Illinois on the date hereof and, in any event, shall include, without limitation, all dividends or other income from the Pledged Securities, collections thereon or distributions or payments with respect thereto.

     "Receivable": any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been earned by performance (including, without limitation, any Account).

     "Securities Act": the Securities Act of 1933, as amended.



4


     "Trademarks": (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common-law rights related thereto, including, without limitation, any of the foregoing referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.

     "Trademark License": any agreement, whether written or oral, providing for the grant by or to any Grantor of any right to use any Trademark, including, without limitation, any of the foregoing referred to in Schedule 6.

          1.2     Other Definitional Provisions, (a) The words "hereof, "herein", "hereto" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Schedule references are to this Agreement unless otherwise specified.

               (b)     The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

               (c)     Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor's Collateral or the relevant part thereof.

SECTION 2. GUARANTEE

          2.1     Guarantee. (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees to the Lender and its respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations.

               (b)     Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws relating to the insolvency of debtors (after giving effect to the right of contribution established in Section 2.2).

               (c)     Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Lender hereunder.



5


               (d)     The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and the obligations of each Guarantor under the guarantee contained in this Section 2 shall have been indefeasibly satisfied by payment in full, notwithstanding that from time to time during the term of the Security Agreement the Borrower may be free from any Borrower Obligations.

               (e)     No payment made by the Borrower, any Guarantor, any other guarantor or any other Person or received or collected by the Lender from the Borrower, any Guarantor, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Borrower Obligations or any payment received or collected from such Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of such Guarantor hereunder until the Borrower Obligations are paid in full.

          2.2     Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid an amount hereunder which would, but for this provision, render such Guarantor insolvent for purposes of state or federal fraudulent conveyance laws, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder to the extent such contribution would not render such other Guarantor insolvent. Each Guarantor's right of contribution shall be subject to the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the obligations and liabilities of any Guarantor to the Lender, and each Guarantor shall remain liable to the Lender for the full amount guaranteed by such Guarantor hereunder.

          2.3     No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by Lender, no Guarantor shall be entitled to be subrogated to any of the rights of Lender against the Borrower or any other Guarantor or any collateral security or guarantee or right of offset held by Lender for the payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to Lender by the Borrower on account of the Borrower Obligations are indefeasibly paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Borrower Obligations shall not have been indefeasibly paid in full, such amount shall be held by such Guarantor in trus t for Lender, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor be turned over to Lender in the exact form received by such Guarantor (duly indorsed by such Guarantor to Lender, if required), to be applied against the Borrower Obligations, whether matured or unmatured, in such order as Lender may determine.

          2.4     Amendments, etc. with respect to the Borrower Obligations. Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment

6


of any of the Borrower Obligations made by Lender may be rescinded by Lender and any of the Borrower Obligations continued, and the Borrower Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by Lender, and the Note, Security Agreement and the other Loan Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Lender may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by Lender for the payment of the Borrower Obligations may be sold, exchanged, waived, surrendered or released. Lender shall not have any obligation to protect, secure, perfect or insure any Lien at any time held by it as s ecurity for the Borrower Obligations or for the guarantee contained in this Section 2 or any property subject thereto.

          2.5     Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof of reliance by Lender upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Borrower Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and Lender, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any o f the Guarantors with respect to the Borrower Obligations. Each Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment, and not of collection, without regard to (a) the validity or enforceability of the Note, Security Agreement or any other Loan Document, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of such Guarantor under the guaran tee contained in this Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, Lender may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by Lender to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of Offset shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect

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the rights and remedies, whether express, implied or available as a matter of law, of Lender against any Guarantor. For the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings.

          2.6     Reinstatement. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Borrower Obligations is rescinded or must otherwise be restored or returned Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervener or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.

          2.7     Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to the Lender without set-off or counterclaim in Dollars at 39400 Woodward Avenue, Suite 250, Bloomfield Hills, Michigan 48304.

SECTION 3. GRANT OF SECURITY INTEREST

          3.1     (a)     Each Grantor hereby grants to the Lender, a security interest in (and pledges of ownership and other interests, as applicable) all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the "Collateral"), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantor's Obligations:

          (a)     all Accounts;

          (b)     all Chattel Paper;

          (c)     all Documents;

          (d)     all Equipment (other than Equipment secured by a Lien permitted pursuant to Sections 8.3(f), 8.3(g), 8.3(h) and 8.3(k) of that certain Credit Agreement dated December 31, 2000 (as amended, restated, refinanced or other modified from time to time) between Borrower and various other financial institutions (together with their respective successors and assigns), and Bank of America, N.A. (the "Credit Agreement");

          (e)     all General Intangibles;

          (f)     all Instruments;

          (g)     all Intellectual Property;

          (h)     all Inventory;


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          (i)     all Pledged Securities;

          (j)     all books and records pertaining to the Collateral; and

          (k)     to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

Notwithstanding the foregoing to the contrary, Collateral shall not include ownership or other interests in the Persons listed in Schedule I hereto, property which is subject to an agreement that expressly prohibits the granting of a Lien that is permitted under Section 8.3 of the Credit Agreement, or which would, as a result of granting a Lien in such property, cause a default under any such permitted Lien.

               (b)     To further secure the payment, performance and observance of the Obligations of each Grantor hereunder, each Grantor hereby collaterally assigns to Lender all of such Grantor's right, title and interest in, under and to any Leases to which such Grantor is a party, except to the extent that such collateral assignment, in and of itself, is prohibited by the terms of such Lease or would constitute a default under such lease. This Assignment is for collateral security purposes only. So long as no Event of Default has occurred and is continuing, such Grantor shall have the right to retain, use and enjoy all rights under each such Lease, including the right to use and occupy the premises subject to the Lease.

               (c)     Notwithstanding anything to the contrary, this Guarantee and Collateral Agreement shall be subject to and subordinate to the liens and rights granted in the Amended and Restated Credit Agreement, dated as of December 31, 2000 as amended, among the Borrower, various financial institutions, LaSalle Bank National Association, American National Bank & Trust Company of Chicago and Bank of America (the "Credit Agreement").

SECTION 4. REPRESENTATIONS AND WARRANTIES

          To induce the Lender to enter into the Letter Agreement and to induce the Lender to make the Loan to the Borrower thereunder, each Grantor hereby represents and warrants to Lender that:

          4.1     Representations in Credit Agreement. In the case of each Guarantor, the representations and warranties set forth in Section 5 of the Credit Agreement as they relate to such Guarantor, or to the Loan Documents to which such Guarantor is a party, each of which is hereby incorporated herein by reference, are true and correct, and the Lender shall be entitled to rely on each of them as if they were fully set forth herein and made to Lender, provided that each reference in each such representation and warranty to the Borrower's knowledge shall, for the purposes of this Section 4.1, be deemed to be a reference to such Guarantor's knowledge.

          4.2     Title: No Other Liens. Except for the security interest granted to the Lender pursuant

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to this Agreement and the other Liens permitted to exist on the Collateral by the Credit Agreement, such Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others. No financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Lenders under the Credit Agreement, for the benefit of the Lender, pursuant to this Agreement or as are permitted by the Credit Agreement, Security Agreement or as they relate to obligations being paid on or about the date hereof (all of which obligations are being paid in full on the Closing Date.)

          4.3     Perfected Priority Liens. The security interests, subject to the Security Agreement granted pursuant to this Agreement (a) upon completion of the filings and other actions specified on Schedule 3 (which, in the case of all filings and other documents referred to on said Schedule, have been delivered to the Lender in completed and duly executed form) will constitute valid, and to the extent liens thereon can be perfected by the filings and actions specified on Schedule 3, perfected security interests in all of the Collateral in favor of the Lender, as collateral security for such Grantor's Obligations, enforceable in accordance with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase any Collateral from such Grantor, and (b) are prior to all other Liens on the Collateral in existence on the date hereof other than Liens permitted by the Credit Agreement which have priority over the Liens on the Collateral by operation of law.

          4.4     Chief Executive Office. On the date hereof, such Grantor's jurisdiction of organization and the location of such Grantor's chief executive office or sole place of business are specified on Schedule 4.

          4.5     Inventory and Equipment. On the date hereof the Inventory and the Equipment (other than mobile goods) are kept at the locations listed on Schedule 5.

          4.6     Farm Products. None of the Collateral constitutes, or is the Proceeds of Farm Products.

          4.7     Pledged Securities. (a) The shares of Pledged Stock pledged by such Grantor hereunder constitute all the issued and outstanding shares of all classes of the Capital Stock of each Subsidiary owned by such Grantor or, in the case of any Subsidiary that is a Foreign Subsidiary, 66% of the issued and outstanding shares of Capital Stock of such Subsidiary.

               (b)     All the shares of the Pledged Stock have been duly and validly issued and are fully paid and nonassessable.

               (c)     Each of the Pledged Notes executed by Borrower or a Restricted Subsidiary constitutes a legal, valid and binding obligation, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.


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               (d)     Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Pledged Securities pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except the security interest created by this Agreement and Liens not prohibited by the Credit Agreement.

          4.8     Receivables. (a) No amount payable to such Grantor under or in connection with any Receivable is evidenced by any Instrument or Chattel Paper which has not been delivered to the Lender.

               (b)     The amounts represented by such Grantor to the Lender from time to time as owing to such Grantor in respect of the Receivables will at such times be accurate in all material respects.

          4.9     Intellectual Property. (a) Schedule 6 lists all material Intellectual Property owned by such Grantor in its own name on the date hereof.

               (b)     On the date hereof, all material Intellectual Property owned or used by such Grantor is valid, subsisting, unexpired and enforceable, has not been abandoned; and to the Grantor's knowledge, does not, and has not been alleged to, infringe the intellectual property rights of any other Person.

               (c)     Except to the extent granted in the ordinary course of business, on the date hereof none of the Intellectual Property owned or used by such Grantor is the subject of any licensing or franchise agreement pursuant to which such Grantor is the licensor or franchiser.

               (d)     No holding, decision or judgment has been rendered by any Governmental Authority which would limit, cancel or question the validity of, or such Grantor's rights in, any Intellectual Property owned or used by such Grantor in any respect that is reasonably likely to have a material adverse effect.

               (e)     Except as set forth in Schedule 5.9 to the Credit Agreement, no action or proceeding is pending, or, to the knowledge of such Grantor, threatened, on the date hereof (i) seeking to limit, cancel or question the validity of any material Intellectual Property owned or used by such Grantor or such Grantor's ownership interest therein, and (ii) which is reasonably likely to have a material adverse effect on the value of any Intellectual Property owned or used by such Grantor.

SECTION 5. COVENANTS

          Each Grantor covenants and agrees with the Lender, that, from and after the date of this Agreement until the Obligations shall have been paid in full:

          5.1     Covenants in Security Agreement. In the case of each Guarantor, such Guarantor shall take, or shall refrain from taking, as the case may be, each action that is necessary to be taken or not taken, as the case may be, so that no Default or Event of Default is caused by the

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failure to take such action or to refrain from taking such action by such Guarantor or any of its Subsidiaries.

          5.2     Delivery of Instruments and Chattel Paper. If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be immediately delivered to the Lender, duly indorsed in a manner satisfactory to the Lender, to be held as Collateral pursuant to this Agreement.

          5.3     Maintenance of Insurance. (a) Such Grantor will, or will cause Borrower to, comply with the terms and provisions of the Security Agreement governing the maintenance of insurance.

          5.4     Payment of Obligations. Except to the extent otherwise expressly permitted by the Security Agreement, such Grantor will pay and discharge, or otherwise satisfy, at or before maturity or before they become delinquent, as the case may be, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including, without limitation, claims for labor, materials and supplies) against or with respect to the Collateral, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Grantor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interes t therein.

          5.5     Maintenance of Perfected Security Interest: Further Documentation. (a) Such Grantor shall maintain the security interest created by this Agreement as a perfected (to the extent perfected by the actions or filings described in Schedule 3 hereto) security interest having at least the priority described in Section 4.3 and shall defend such security interest against the claims and demands of all Persons whomsoever other than the holders of Liens permitted by the Security Agreement.

               (b)     Such Grantor will furnish to the Lender from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral in each case as Lender may reasonably request, all in reasonable detail.

               (c)     At any time and from time to time, upon the written request of the Lender, and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Lender may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, the filing of any financing or continuation statements under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interests created hereby.

          5.6     Changes in Locations, Name, etc. Such Grantor will not, except upon 15 days'

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prior written notice to the Lender and delivery to the Lender of (a) all additional executed financing statements and other documents reasonably requested by the Lender to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule 5 showing any additional location at which Inventory or Equipment shall be kept:

          (i)     permit any of the Inventory or Equipment to be kept at a location other than those listed on Schedule 5 (or such other location where appropriate filings have been made);

          (ii)     change the location of its chief executive office or sole place of business from that referred to in Section 4.4; or

          (iii)     change its name, identity or corporate structure to such an extent that any financing statement filed by the Lender in connection with this Agreement would become misleading.

          5.7     Notices. Such Grantor will advise the Lender promptly, in reasonable detail, of:

               (a)     any Lien (other than security interests created hereby or Liens permitted under the Credit Agreement and Security Agreement) on any of the Collateral which would adversely affect the ability of the Lender to exercise any of its remedies hereunder; and

               (b)     of the occurrence of any other event which could reasonably be expected to have a material adverse effect on the aggregate value of the Collateral or on the security interests created hereby.

          5.8     Pledged Securities. (a) Except as provided in the Credit Agreement, if such Grantor shall become entitled to receive or shall receive any stock certificate (including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of the Capital Stock of any Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Lender and the Lender, hold the same in trust for the Lender and the Lender and deliver the same forthwith to the Lender in the exact form received, duly indorsed by such Grantor to the Lender, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor and with, if the Lender so requests, signature guaranteed, to be held by the Lender, subject to the terms hereof, as additional collateral security for the Obligations. Any sums paid upon or in respect of the Pledged Securities upon the liquidation or dissolution of any Issuer shall be deemed to be Dispositions and shall be treated in accordance with the terms and provisions of the Security Agreement. Notwithstanding anything to the contrary herein, in no event shall any Grantor be required to pledge more than 66% of the outstanding Capital Stock of any Foreign Subsidiary.

               (b)     Except as permitted in the Credit Agreement and to the extent prohibited

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by the Security Agreement, such Grantor will not (i) vote to enable, or take any other action to permit, any Issuer to issue any stock or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock or other equity securities of any nature of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Pledged Securities or Proceeds thereof (except pursuant to a transaction expressly permitted by the Credit Agreement), (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Pledged Securities or Proceeds thereof, or any interest therein, or (iv) enter into any agreement or undertaking (other than the Loan Documents) restricting the right or ability of such Grantor or the Lender to sell, assign or transfer any of the Pledged Securities or Proceeds thereof.

               (c)     Except to the extent of the provisions of the Credit Agreement, concurrently with the pledge of Pledged Stock in respect of any Issuer that is a partnership or limited liability company, the relevant Grantor will send to such Issuer written instructions confirming that such Pledged Stock has been pledged to Lender and requesting such Issuer to deliver to the Lender an acknowledgment in form and substance satisfactory to Lender confirming that such Issuer has registered the pledge effected by this Agreement on its books.

               (d)     In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Lender promptly in writing of the occurrence of any of the events described in Section 5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the Pledged Securities issued by it.

          5.9     Receivables. (a) Other than in the ordinary course of business consistent with its past practice or as permitted by the Credit Agreement, such Grantor will not (i) grant any extension of the time of payment of any Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable in any manner that could adversely affect the value thereof,

               (b)     Such Grantor will deliver to the Lender a copy of each material demand, notice or document received by it that questions or calls into doubt the validity or enforceability of more than 5% of the aggregate amount of the then outstanding Receivables of the Borrower.

          5.10     Intellectual Property. For so long as no Event of Default has occurred and is continuing, such Grantor shall protect and enhance the value of all Intellectual Property in accordance with prudent business practices; provided that at no time shall Borrower permit the tradename "Grubb & Ellis" to be abandoned or altered in any manner. Upon the occurrence and during the continuance of an Event of Default:

               (a)     Such Grantor (either itself or through its licensees) will (i) continue to use

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each material Trademark now or hereafter owned or used by such Grantor in order to maintain such material Trademark in full force free from any claim of abandonment for non-use, (ii) maintain as in the past the quality of products and services offered under such Trademark, (iii) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable Requirements of Law, (iv) not adopt or use any mark which is confusingly similar or a colorable imitation of such material Trademark unless the Lender shall obtain a perfected security interest in such mark pursuant to this Agreement, and (v) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such material Trademark may become invalidated or impaired in any way.

               (b)     Such Grantor (either itself or through its licensees) will not do any act, or omit to do any act, whereby any material Patent owned or used by such Grantor may become forfeited, abandoned or dedicated to the public.

               (c)     Such Grantor (either itself or through its licensees) (i) will employ each material Copyright owned or used by such Grantor and (ii) will not (and will not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any material portion of such Copyrights may become invalidated or otherwise impaired. Such Grantor will not (either itself or through its licensees) do any act whereby any material portion of such Copyrights may fall into the public domain.

               (d)     Such Grantor (either itself or through licensees) will not do any act that knowingly uses any material Intellectual Property owned or used by such Grantor to infringe the intellectual property rights of any other Person.

               (e)     Such Grantor will notify the Lender immediately if it knows, or has reason to know, that any application or registration relating to any material Intellectual Property owned or used by such Grantor may become forfeited, abandoned or dedicated to the public, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court or tribunal in any country) regarding such Grantor's ownership of, or the validity of, any material Intellectual Property owned or used by such Grantor or such Grantor's right to register the same or to own and maintain the same.

               (f)     Whenever such Grantor, either by itself or through any agent, employee, licensee or designee, shall file an application for the registration of any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, such Grantor shall report such filing to the Lender within five (5) Business Days after the last day of the fiscal quarter in which such filing occurs. Upon request of the Lender, such Grantor shall execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers as the Lender may request to evidence the Lender's and the Lender' security interest in any Copyright, Patent or Trademark and the goodwill and general intangibles of such Grantor relating thereto or represented thereby.


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               (g)     Such Grantor will take all reasonable and necessary steps, including, without limitation, in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of the material Intellectual Property, including, without limitation, as to Trademarks, filing of applications for renewal, affidavits of use and affidavits of incontestability and, as to Patents, paying maintenance fees.

               (h)     In the event that any material Intellectual Property owned or used by such Grantor is infringed, misappropriated or diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property and (ii) if such Intellectual Property is of material economic value, promptly notify the Lender after it learns thereof and sue for infringement, misappropriation or dilution, to seek injunctive relief where appropriate and to recover any and all damages for such infringement, misappropriation or dilution.

SECTION 6. REMEDIAL PROVISIONS

          6.1     Certain Matters Relating to Receivables. (a) Except as provided in the Credit Agreement, at any time and from time to time after the occurrence and during the continuance of an Event of Default, the Lender shall have the right to make test verifications of the Receivables in any manner and through any medium that it reasonably considers advisable, and each Grantor shall furnish all such assistance and information as the Lender may require in connection with such test verifications. At any time and from time to time after the occurrence and during the continuation of an Event of Default, upon the Lender's request and at the expense of the relevant Grantor, such Grantor shall cause independent public accountants or others satisfactory to the Lender to furnish to the Lender reports showing reconciliations, aging and test verifications of, and trial balances for, the Receivables. Notwithstanding anything else to the contrary contained herein, at any time other than during the occurrence and continuation of an Event of Default, at the expense of the Lender, (i) the Lender shall have the right to make test verifications of the Receivables in any manner and through any medium that it reasonably considers advisable, and each Grantor shall furnish all such assistance and information as the Lender may require in connection with such test verifications, and (ii) upon the Lender's request such Grantor shall cause independent public accountants or others satisfactory to the Lender to furnish to the Lender reports showing reconciliations, aging and test verifications of, and trial balances for, the Receivables.

               (b)     Except as provided in the Credit Agreement, the Lender hereby authorizes each Grantor to collect such Grantor's Receivables, subject to the Lender's direction and control and the Lender may curtail or terminate said authority at any time after the occurrence and during the continuance of an Event of Default. At Lender's request, any payments of Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Lender if required, in a Collateral Account maintained under the

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sole dominion and control of the Lender, subject to withdrawal by the Lender for the account of the Lender only as provided in Section 6.5, and (ii) until so turned over, shall be held by such Grantor in trust for the Lender, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

               (c)     At the Lender's request, each Grantor shall deliver to the Lender all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables, including, without limitation, all original orders, invoices and shipping receipts.

          6.2     Communications with Obligors; Grantors Remain Liable. (a) Except as provided in the Credit Agreement, the Lender in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables to verify the existence, amount and terms of any Receivables.

               (b)     Upon the request of the Lender at any time after the occurrence and during the continuance of an Event of Default, each Grantor shall notify obligors on the Receivables that the Receivables have been assigned to the Lender and that payments in respect thereof shall be made directly to the Lender.

               (c)     Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Receivables to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Lender shall not have any obligation or liability under any Receivable (or any agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by Lender of any payment relating thereto, nor shall Lender be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action t o enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

          6.3     Pledged Stock. (a) Unless an Event of Default shall have occurred and be continuing and Lender shall have given notice to the relevant Grantor of its intent to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted to receive all cash dividends paid in respect of the Pledged Stock and all payments made in respect of the Pledged Notes, in each case paid in the normal course of business of the relevant Issuer and consistent with past practice, to the extent permitted in the Security Agreement, and to exercise all voting and corporate rights with respect to the Pledged Securities; provided, however, that no vote shall be cast or corporate right exercised or other action taken which would be inconsistent with or result in any violation of any provision of the Security Agreement, this Agreement or any other Loan Document.


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               (b)     If an Event of Default shall occur and be continuing and Lender shall give notice of its intent to exercise such rights to the relevant Grantor or Grantors, (i) the Lender shall have the right to receive any and all cash dividends, payments or other Proceeds paid in respect of the Pledged Securities and make application thereof to the Obligations in such order as it may determine, and (ii) any or all of the Pledged Securities shall be registered in the name of Lender and Lender may thereafter exercise (x) all voting, corporate and other rights pertaining to such Pledged Securities at any meeting of shareholders of the relevant Issuer or Issuers or otherwise and (y) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to such Pledged Securities as if it were the absolute owner thereof (including, without limitation, the righ t to exchange at its discretion any and all of the Pledged Securities upon the merger, consolidation reorganization, recapitalization or other fundamental change in the corporate structure of any Issuer, or upon the exercise by any Grantor or Lender of any right, privilege or option pertaining to such Pledged Securities, and in connection therewith, the right to deposit and deliver any and all of the Pledged Securities with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and condition as Lender may determine), all without liability except to account for property actually received by it, but Lender shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

               (c)     Each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from Lender in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to Lender.

          6.4     Proceeds to be Turned Over to Lender. If an Event of Default shall occur and be continuing, in addition to the rights of Lender specified in Section 6.1 with respect to payments of Receivables, all Proceeds received by any Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor for Lender and shall, forthwith upon receipt by such Grantor and upon the request of Lender, be turned over to the Lender in the exact form received by such Grantor (duly indorsed by such Grantor to the Lender, if required). All Proceeds received by the Lender hereunder shall be held by it in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by Lender in a Collateral Account (or by such Grantor in trust for the Lender and the Lender) shall continue to be held as collateral security for all the Obligations and shall not constitute payment thereof until appli ed as provided in Section 6.5.

          6.5     Application of Proceeds. If an Event of Default shall have occurred and be continuing, Lender shall apply all or any part of Proceeds held in any Collateral Account in payment of the Obligations in such order as it may elect. Any balance of such Proceeds remaining after the Obligations shall have been paid in full, over to the Borrower or to whomsoever may be lawfully entitled to receive the same.


18


          6.6     Code and Other Remedies. If an Event of Default shall occur and be continuing, Lender may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the Illinois UCC or any other applicable law. Without limiting the generality of the foregoing, the Lender, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker's board or office of Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor further agrees, at Lender's request, to assemble the Collateral and make it available to the Lender at places which the Lender shall reasonably select, whether at such Grantor's premises or elsewhere. It shall apply the net proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of Lender hereunder, including, without limitation, reasonable attorneys' fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the Lender may elect, and only after such application and after the payment by the Lender of any other amount required by any provision of law, including, without limitation, Section 9-504(1)(c) of the Illinois UCC, need the Lender account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against Lender arising out of the reasonable exercise by it of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

SECTION 7. MISCELLANEOUS

          7.1     Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with the Security Agreement.

          7.2     Notices. All notices, demands, instructions and other communications required or permitted to be given to or made upon any party hereto shall be in writing, shall be addressed as follows and for each Guarantor as set forth on Schedule I, and shall be either (i) personally delivered to the party, (ii) sent by U.S. registered or certified mail, (iii) sent by a reputable express mail company which guarantees next day delivery, or (iv) telecopied to the respective telecopier numbers set forth herein. Any party may redesignate the address or telecopier number

19


to which notices are to be sent to it by written notice to the other parties. Notwithstanding the foregoing, any notice which is in fact received shall be deemed to have been delivered pursuant to this Section, even if such delivery is not accomplished in accordance with this Section.

 

If to Lender:

 
   

KOJAIAN FUNDING, L.L.C.
c/o Kojaian Management Company'
39400 Woodward Avenue, Suite 250
Bloomfield Hills, MI 48304-2876
Attn: C. Michael Kojaian
Telecopier No. (248) 644-7620

 

   
 

with a copy to (which shall not constitute notice):

     
   

Carson Fischer, P.L.C.
300 East Maple Road -- Third Floor
Birmingham, Michigan 48009
Attn: Robert M. Carson, Esq.
Telecopier No. (248) 644-1832

     
 

If to Borrower:

Grubb & Ellis Company
2215 Sanders Road, Suite 400
Northbrook, Illinois 60062
Attn: Robert Walner
Telecopier No. (847) 753-9060

     
 

with a copy to (which shall not constitute notice):

     
   

Clifford A. Brandeis, Esq.
Zuckerman, Gore & Brandeis, LLP
900 3rd Avenue, 8th Floor
New York, NY 10022-4728
Attn: _________________________
Telecopier No. (212) 223-6433


          7.3     No Waiver by Course of Conduct. Cumulative Remedies. Lender shall not by any act (except by a written instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or

20


remedy which Lender would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

          7.4     Enforcement Expenses: Indemnification. (a) To the same extent as the Borrower would be required to do so pursuant to the Security Agreement, each Guarantor agrees to pay or reimburse Lender for all its reasonable costs and expenses incurred in collecting against such Guarantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Guarantor is a party, including, without limitation, the fees and disbursements of counsel to Lender.

               (b)     To the same extent as the Borrower would be required to do so pursuant to the Security Agreement, each Guarantor agrees to pay, and to save the Lender harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.

               (c)     Each Guarantor agrees to pay, and to save Lender harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement to the same extent as the Borrower would be required to do so pursuant the Security Agreement.

               (d)     The agreements in this Section 7.4 shall survive repayment of the Obligations and all other amounts payable under the Security Agreement and the other Loan Documents.

          7.5     Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of Lender and its successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of Lender.

          7.6     Set-Off. Each Grantor hereby irrevocably authorizes Lender at any time and from time to time without notice to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Lender to or for the credit or the account of such Grantor, or any part thereof in such amounts as Lender may elect, against and on account of the obligations and liabilities of such Grantor to Lender hereunder and claims of every nature and description of Lender against such Grantor, in any currency, whether arising hereunder, under the Security Agreement any other Loan Document or otherwise, as Le nder may elect, whether or Lender has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Lender shall notify such Grantor

21


promptly of any such set-off and the application made by Lender of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of Lender under this Section 7.6 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which Lender may have.

          7.7     Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

          7.8     Severability, Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any Jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

          7.9     Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

          7.10     Integration. This Agreement and the other Loan Documents represent the agreement of the Grantors and the Lender with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by Lender relative to subject matter hereof and thereof not expressly set forth or referred to herein or in the other Loan Documents.

          7.11     GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS WITHOUT REGARD FOR ITS CONFLICTS OF LAW PRINCIPLES.

          7.12     Submission To Jurisdiction: Waivers, Each Grantor and Lender hereby irrevocably and unconditionally:

          (a)     submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the State of Illinois, the courts of the United States of America for the Northern District of Illinois, and appellate courts from any thereof;

          (b)     consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

          (c)     agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially



22


similar form of mail), postage prepaid, to such Grantor at its address referred to in Section 7.2 or at such other address of which the Lender shall have been notified pursuant thereto;

          (d)     agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

          (e)     waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.

          7.13     Acknowledgments. Each Grantor hereby acknowledges that:

          (a)     it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;

          (b)     Lender has no fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Grantors and Lender is solely that of debtor and creditor; and

          (c)     no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lender or among the Grantors and the Lender.

          7.14     WAIVER OF JURY TRIAL. EACH GRANTOR AND LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

          7.15     Additional Grantors. Each future Subsidiary of the Borrower shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.

          7.16     Releases, (a) At such time as the Loans, the Reimbursement Obligations and the other Obligations shall have been paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of Lender and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, Lender shall deliver to such Grantor any Collateral held by Lender hereunder, and execute and deliver to such Grantor such documents (including, without limitation, UCC termination statements) as such Grantor shall reasonably request to evidence such termination.

23


               (b)     If any of the Collateral shall be sold, transferred or otherwise disposed of by any Grantor in a transaction permitted by the Security Agreement, then the Lender, at the request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral, including, without limitation, amendments to UCC financing statements. At the request and sole expense of the Borrower, a Guarantor shall be released from its obligations hereunder in the event that all the Capital Stock of such Guarantor shall be sold, transferred or otherwise disposed of in a transaction permitted by the Security Agreement; provided that the Borrower shall have delivered to Lender at least ten Business Days prior to the date of the proposed release, a written request for release ide ntifying the relevant Guarantor and the terms of the sale or other disposition in reasonable detail, including the price thereof and any expenses in connection therewith, together with a certification by the Borrower stating that such transaction is in compliance with the Security Agreement and the other Loan Documents.

BALANCE OF PAGE INTENTIONALLY LEFT BLANK

- Signature Page Follows -




















24


          IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.

 

GRUBB & ELLIS COMPANY, a Delaware
corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS NEW YORK, a New York
corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS OF MICHIGAN, a Michigan
corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS OF OREGON, INC., a Washington
corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS AFFILIATES, INC., a Delaware
corporation

   
 

By: /s/ Brian Parker


 

Title: CFO






25




          IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.

 

GRUBB & ELLIS EUROPE, INC., a California
corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS MORTGAGE GROUP, INC., a
California corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS MANAGEMENT SERVICES, INC.,
a Delaware corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


 

 
 

GRUBB & ELLIS CONSULTING SERVICES
COMPANY, a Florida corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


   
 

LANDAUER HOSPITALITY INTERNATIONAL,
INC., a Delaware corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


   
 

GRUBB & ELLIS MANAGEMENT SERVICES
OF MICHIGAN, INC., a Michigan corporation

   
 

By: /s/ Brian Parker


 

Title: CFO





26


          IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.


 

HSM, INC., a Texas corporation

   
 

By: /s/ Brian Parker


 

Title: CFO


EX-9 7 kojex9_051503.htm Grubb and Ellis Exhibit 9 to Schedule 13D 05-15-03

EXHIBIT 9

JOINT FILING AGREEMENT

          Pursuant to Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to file with the Securities and Exchange Commission Amendment No. 5 to Schedule 13D (the "Amendment"), with respect to the Common Stock of Grubb & Ellis Company. The undersigned agree that the Amendment will be filed on behalf of each and all of them. Each of the undersigned agrees that he or it shall be responsible for the accuracy and completeness of the information concerning him or it contained in the Amendment. This agreement may be executed in any number of counterparts, which taken together shall constitute one and the same document.


Dated: May 19, 2003

 

/s/ Mike Kojaian


 

 

Mike Kojaian

 

 

 

 

 

 

Dated: May 19, 2003

 

/s/ C. Michael Kojaian


 

 

C. Michael Kojaian

 

 

 

 

 

 

Dated: May 19, 2003

 

KOJAIAN HOLDINGS, L.L.C.

 

 

 

 

 

By

/s/ C. Michael Kojaian


 

 

 

C. Michael Kojaian, its Member

 

 

 

 

 

 

Dated: May 19, 2003

 

KOJAIAN VENTURES, L.L.C.

 

 

 

 

 

By Kojaian Ventures-MM, Inc., its Managing Member

 

 

 

 

 

By

/s/ C. Michael Kojaian


 

 

 

C. Michael Kojaian, President

 

 

 

Dated: May 19, 2003

 

KOJAIAN VENTURES-MM, INC.

 

 

 

 

 

By

/s/ C. Michael Kojaian


 

 

 

C. Michael Kojaian, President

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