0001341004-11-001895.txt : 20111019 0001341004-11-001895.hdr.sgml : 20111019 20111018213516 ACCESSION NUMBER: 0001341004-11-001895 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 14 FILED AS OF DATE: 20111019 DATE AS OF CHANGE: 20111018 GROUP MEMBERS: CDCF II GNE HOLDING LLC GROUP MEMBERS: CFI GNE WARRANT INVESTOR LLC GROUP MEMBERS: CFI RE HOLDCO LLC GROUP MEMBERS: COLONY CAPITAL CREDIT II L.P. GROUP MEMBERS: COLONY DISTRESSED CREDIT FUND II L.P. GROUP MEMBERS: COLONY GP CREDIT II LLC 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: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32339 FILM NUMBER: 111146803 BUSINESS ADDRESS: STREET 1: 500 WEST MONROE STREET STREET 2: SUITE 2800 CITY: CHICAGO STATE: IL ZIP: 60661 BUSINESS PHONE: 3126986700 MAIL ADDRESS: STREET 1: 500 WEST MONROE STREET STREET 2: SUITE 2800 CITY: CHICAGO STATE: IL ZIP: 60661 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Colony Financial, Inc. CENTRAL INDEX KEY: 0001467076 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 270419483 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O COLONY FINANCIAL, INC. STREET 2: 2450 BROADWAY, 6TH FLOOR CITY: SANTA MONICA STATE: CA ZIP: 90404 BUSINESS PHONE: 310-282-8820 MAIL ADDRESS: STREET 1: C/O COLONY FINANCIAL, INC. STREET 2: 2450 BROADWAY, 6TH FLOOR CITY: SANTA MONICA STATE: CA ZIP: 90404 SC 13D/A 1 sc13d-a.htm SCHEDULE SC 13D/A sc13d-a.htm
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 
Washington, D.C. 20549
 
SCHEDULE 13D
 
Under the Securities Exchange Act of 1934
(Amendment No.  2)*
 
GRUBB & ELLIS COMPANY
(Name of Issuer)
 
Common Stock
(Title of Class of Securities)
 
400095204
(CUSIP Number)
 
Ronald M. Sanders, Esq.
Colony Capital, LLC
2450 Broadway, 6th Floor
Santa Monica, CA 90404
(310) 282-8820
 
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
 
October 16, 2011
(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 that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
 
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.
 
* 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 (“Act”) 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.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
CDCF II GNE Holding, LLC
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
OO (Limited Liability Company)
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.

 
2

 
 
CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
CFI GNE Warrant Investor, LLC
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
OO (Limited Liability Company)
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.
 
 
3

 
 
CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
Colony Distressed Credit Fund II, L.P.
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
PN
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.

 
4

 

CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
Colony Capital Credit II, L.P.
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
PN
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.

 
5

 

CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
Colony GP Credit II, LLC
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
OO (Limited Liability Company)
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.

 
6

 

CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
CFI RE Holdco, LLC
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
OO (Limited Liability Company)
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.

 
7

 
 

CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
CFI RE Masterco, LLC
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
OO (Limited Liability Company)
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.
 
 
8

 
 
 
CUSIP No.
400095204

       
 
1
 
NAMES OF REPORTING PERSONS
       
     
Colony Financial, Inc.
       
       
 
2
 
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
       
     
(a)   þ
     
(b)   ¨
       
       
 
3
 
SEC USE ONLY
       
       
       
 
4
 
SOURCE OF FUNDS (SEE INSTRUCTIONS)
       
     
OO
       
       
 
5
 
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
       
     
¨
       
       
 
6
 
CITIZENSHIP OR PLACE OF ORGANIZATION
       
     
Delaware
       
           
     
7
 
SOLE VOTING POWER
           
         
0
           
           
 
NUMBER OF
 
8
 
SHARED VOTING POWER
 
SHARES
       
 
BENEFICIALLY
     
3,483,934 (1)
 
OWNED BY
       
 
EACH
       
 
REPORTING
 
9
 
SOLE DISPOSITIVE POWER
 
PERSON
       
 
WITH
     
0
           
           
     
10
 
SHARED DISPOSITIVE POWER
           
         
3,483,934 (1)
           
       
 
11
 
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
       
     
3,483,934 (1)
 
 
   
       
 
12
 
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
       
     
þ
 
 
   
       
 
13
 
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
       
     
4.99% (1)
 
 
   
       
 
14
 
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
       
     
CO
       
 
(1) Comprised of Warrants to purchase shares of common stock of Grubb & Ellis Company (the “Issuer”) issued to CDCF II GNE Holding, LLC and CFI GNE Warrant, Investor LLC.  The Reporting Persons own in the aggregate Warrants to purchase 5,384,784 shares of common stock of the Issuer, but are restricted by the terms of the Warrants from having the ability to exercise the Warrants to the extent that after giving effect to such exercise the Reporting Persons (together with their affiliates) would own greater than 4.99% of the outstanding shares of common stock of the Issuer while they are deemed to be members of a “group” as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with persons that are not their affiliates.  The Reporting Persons may be deemed to be part of a group with C-III Investments LLC, which individually owns Warrants to purchase 5,384,785 shares of common stock of the Issuer, and, therefore, the Reporting Persons could be deemed to beneficially own Warrants to purchase 10,769,569 shares of common stock of the Issuer.

The calculation of percentage ownership is based on 69,818,327 shares of common stock outstanding as of August 10, 2011, as disclosed in the Issuer’s Form 10-Q filed on August 15, 2011.
 
 
9

 
 
All information in this Amendment No. 2 to Schedule 13D (“Amendment No. 2”) is being supplied solely by the Reporting Persons, and only the Reporting Persons shall be deemed responsible for the accuracy of such information. This Amendment No. 2 to Schedule 13D is being filed by the Reporting Persons pursuant to Rule 13d-2(a) under the Exchange Act.  Amendment No. 2 amends and supplements the Schedule 13D as filed jointly by the Reporting Parties with the Securities and Exchange Commission (the “SEC”) on April 25, 2011 (the “Initial Schedule 13D”) and amended on July 26, 2011 by Amendment No. 1 (“Amendment No. 1”). Unless set forth below, all previous Items set forth in the Initial Schedule 13D and Amendment No. 1 are unchanged. All capitalized terms used herein that are not defined herein have the meanings for such terms set forth in the Initial Schedule 13D and Amendment No. 1.
 
Item 2. Identity and Background.
 
The response to Item 2 of the Schedule 13D is hereby amended and supplemented by adding the following paragraphs:
 
By virtue of the terms of the Exclusivity Agreement and the Intercreditor Agreement  (each defined and described in Item 6 hereof) the Reporting Persons together with C-III Investments LLC (“C-III”) and certain of its affiliates, may be deemed to comprise a group within the meaning of Section 13(d)(3) of the Exchange Act with respect to Shares of the Issuer.
 
Items 4 and 6 of this Schedule 13D are incorporated by reference in their entirety into this Item 2.
 
Item 4. Purpose of Transaction.
 
The response to Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following paragraphs:
 
                In consideration of the commitment to extend credit by C-III, consent to amend the credit facility to permit such incurrence of debt by ColFin GNE Loan Funding, LLC (“ColFin”) in accordance with the terms and conditions of Credit Amendment No. 2 (as defined in Item 6) and the due diligence investigation of the Issuer which was undertaken and continues to be undertaken, the Issuer entered into an Exclusivity Agreement (the “Exclusivity Agreement”) with C-III and ColFin (together, the “Exclusive Parties”), which requires the Issuer to work exclusively with the Exclusive Parties with respect to a potential acquisition, recapitalization, asset sale or other strategic transaction (“Potential Transaction”) and not to directly or indirectly, solicit or initiate or enter into any discussions, negotiations or transactions with, reply to or encourage, or provide any written or verbal information to, any individual, corporation, partnership or other entity or group other than the Exclusive Parties concerning the acquisition of the Issuer or any of the Issuer’s subsidiaries or any equity interest therein of any substantial portion of the Issuer’s assets.  The Exclusivity Agreement provides for an exclusivity period that commenced on October 16, 2011 and ends at 11:59 p.m. Pacific Time on November 15, 2011; provided, however, that such period may be extended by C-III, at its option, to 11:59 p.m. Pacific Time on December 15, 2011 if C-III continues to be diligently pursuing a Potential Transaction on November 15, 2011; and further provided that such period may be further extended by C-III, at its option, to 11:59 p.m. Pacific Time on January 14, 2012 if C-III continues to be diligently pursuing a Potential Transaction on December 15, 2011 (the “Exclusivity Period”).  Notwithstanding the foregoing, if a funding pursuant to Credit Amendment No. 2 does not occur on or before October 28, 2011, other than as a consequence of the Issuer’s breach, then the Exclusivity Period shall automatically terminate at 11:59 p.m. Pacific Time on October 28, 2011.  The Exclusivity Agreement provides however, that if the Issuer receives an unsolicited written offer from a third party for a Competing Transaction (as defined in the Exclusivity Agreement) that constitutes a Qualifying Proposal (as defined in the Exclusivity Agreement), then the Issuer shall immediately deliver a copy of the unsolicited offer to C-III.  At any time after the 60th day of the Exclusivity Period, the Issuer has the right to request C-III to provide written confirmation that C-III is willing to enter into a transaction with the Issuer on terms and conditions, and in the time frame, at least as favorable as the Qualifying Proposal.  If C-III fails to provide such written confirmation within three (3) business days after delivery of the Issuer’s request to C-III and the board of directors of the Issuer determines that it would be breach of its fiduciary duty to Issuer’s stockholders not to engage in discussions
 
 
 
10

 

 
with the third party then the Issuer shall have the right to provide information to, negotiate with and enter into an agreement with such third party with respect to a Competing Transaction, provided certain conditions are met.   During the Exclusivity Period, the Issuer shall cooperate with the Exclusive Parties in facilitating discussions with creditors and preferred stockholders of the Issuer.  The Exclusivity Agreement also provides the Issuer will reimburse C-III for certain expenses incurred in connection with pursuing a transaction.   This summary of the Exclusivity Agreement does not purport to be complete and is qualified in its entirety by reference to the Exclusivity Agreement, which is attached hereto as Exhibit 99.1 and incorporated by reference in its entirety into this Item 4.
 
Subject to the terms of the Intercreditor Agreement (as described and defined in Item 6 hereof), one or more of the Reporting Persons or their affiliates intend to have further discussions and other communications with the Issuer regarding a Potential Transaction and may also have discussions and other communications with other persons or entities (including other creditors, stakeholders and stockholders of the Issuer) regarding a Potential Transaction or any other transaction(s) involving the Issuer.  In the course of such discussions one or more of the Reporting Persons or their affiliates may suggest actions that could result in, among other things: (a) the acquisition by a Reporting Person(s) and/or their affiliates of additional Shares or other securities of the Issuer, or the disposition of Shares or other securities of the Issuer; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) changes in the present Board or management of the Issuer; (e) a material change in the present capitalization or dividend policy of the Issuer; (f) a material change in the Issuer's business or structure; (g) changes in the Issuer’s articles of incorporation or bylaws or other actions which may impede the acquisition of control of the Issuer by any person; (h) causing any class of the Issuer's securities to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to those enumerated above.
 
            Except to the extent that a Potential Transaction or anything else described in this Item 4 may be deemed to be a plan or proposal, none of the Reporting Persons currently has any plans or proposals that relate to or would result in any of the actions specified in clause (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons and their affiliates may, at any time and from time to time, formulate other purposes, plans or proposals regarding the Issuer or the Shares beneficially owned by the Reporting Person(s), or any other actions that could involve one or more of the types of transactions or have one or more of the results described in paragraphs (a) through (j) of Item 4 of Schedule 13D. The foregoing is subject to change at any time, and there can be no assurance that any of the Reporting Persons or their affiliates will take any of the actions set forth above.
 
 

 
11

 

 
Item 5. Interest in Securities of the Issuer.
 
The response to Item 5 of the Schedule 13D is hereby amended and supplemented as follows:
 
(a)    The aggregate number and percentage of the class of securities identified pursuant to Item 1 beneficially owned by each Reporting Person is stated in Items 11 and 13 on the cover page(s) hereto.
 
(b)    Number of Shares as to which each Reporting Person has:
 
 
(i)
sole power to vote or to direct the vote:
     
   
See Item 7 on the cover page(s) hereto.
     
 
(ii)
shared power to vote or to direct the vote:
     
   
See Item 8 on the cover page(s) hereto.
 

 
12

 
 
 
(iii)
sole power to dispose or to direct the disposition of:
     
   
See Item 9 on the cover page(s) hereto.
     
 
(iv)
shared power to dispose or to direct the disposition of:
     
   
See Item 10 on the cover page(s) hereto.
 
                (c) On October 16, 2011, in connection with Credit Amendment No. 2 (as described and defined in Item 6 hereof) and the loan assignment provided under the Assignment Agreement (as described and defined in Item 6 hereof) each of CDCF II GNE Holding, LLC (“CDCF”) and CFI GNE Warrant Investor, LLC (“CFI”) entered into a Warrant Assignment Agreement with C-III (each a “Warrant Assignment” and collectively the “Warrant Assignments”) whereby each of CDCF and CFI assigned Warrants with respect to 1,760,170 Shares of Common Stock of the Issuer to C-III and C-III instructed the Issuer to issue and deliver directly the CDCF Second Amendment Effective Date Warrants and CFI Second Amendment Effective Date Warrants (each as described and defined in Item 6 hereof) with respect to 932,222 Shares of Common Stock of the Issuer to each of CDCF and CFI. Pursuant to the Closing Mechanics Agreement (as described and defined in Item 6 hereof), in the event that Grubb & Ellis Management Services, Inc., as Borrower under the Amended Credit Agreement (as described and defined in Item 6 hereof) shall not have made a borrowing under the Commitment (as defined in the Amended Credit Agreement) of C-III on or prior to October 28, 2011, the assignment of the Warrants pursuant to the Warrant Assignments shall be voided.  The Warrants were acquired in connection with Credit Amendment No. 2.  The transfers of Warrants were effected in private transactions.  This summary of the Warrant Assignments does not purport to be complete and is qualified in its entirety by reference to the Warrant Assignments, which are attached for CDCF and CFI hereto as Exhibit 99.2 and Exhibit 99.3 respectively, and incorporated by reference in their entirety into this Item 5.
 
(d)    Not applicable.
 
(e)    Not applicable.
 
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
 
The response to Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following paragraphs at the end of such Item 6:
 
                On October 16, 2011, C-III, Grubb & Ellis Management Services, Inc., the Issuer, CDCF and CFI entered into a Closing Mechanics Agreement (the “Closing Mechanics Agreements”), pursuant to which the parties evidenced the order for certain aspects of their transactions and entered into other agreements with respect to the transactions.  This summary of the Closing Mechanics Agreements does not purport to be complete and is qualified in its entirety by reference to the Closing Mechanics Agreement which is attached hereto as Exhibit 99.4, and incorporated by reference in their entirety into this Item 6.
 
               
 
13

 
 
 
                On October 16, 2011, Grubb & Ellis Management Services, Inc., as Borrower, the Issuer, as Parent Guarantor and as a Guarantor, Grubb & Ellis Equity Advisors, LLC, Grubb and Ellis Healthcare REIT II Advisors, LLC and Grubb & Ellis Landauer Valuation Advisory Services, LLC, as Guarantors, ColFin, as Administrative Agent and as a Lender, and C-III (collectively, the “Loan Parties”) entered into Amendment No. 2 to Credit Agreement (“Credit Amendment No. 2”).  Pursuant to Credit Amendment No. 2 the Loan Parties agreed that subject to satisfaction of certain conditions precedent, as set forth in Credit Amendment No. 2, including that the Second Amendment Effective Date (as defined in Credit Amendment No. 2) shall occur on or before October 28, 2011, C-III shall join the Amended Credit Agreement (the “Amended Credit Agreement”) as a Lender (as such term is defined in the Amended Credit Agreement).  In addition, the amounts available under the Loan were increased by $10,000,000 and C-III has become a lender under the Amended Credit Agreement.  This summary of Credit Amendment No. 2 and the Amended Credit Agreement does not purport to be complete and is qualified in its entirety by reference to Credit Amendment No. 2 and the Amended Credit Agreement, which are attached hereto as Exhibit 99.5 and Exhibit 99.6, respectively, and incorporated by reference in their entirety into this Item 6.
 
     In connection with Credit Amendment No. 2, ColFin and C-III entered into an Assignment and Assumption (the “Assignment Agreement”), dated October 16, 2011, pursuant to which ColFin, in its capacity as a lender under the Amended Credit Agreement, agreed to assign to C-III and C-III agreed to purchase, certain outstanding loans in the amount of $4,000,000, plus accrued interest.  The effective date of the Assignment Agreement is the first Borrowing Date (as defined in the Amended Credit Agreement) after October 16, 2011, provided that C-III is the lender with respect to the relevant loans, which will occur on the date on which certain conditions precedent, as set forth in Credit Amendment No. 2, are satisfied, including that the Second Amendment Effective Date shall occur on or before October 28, 2011. This summary of the Assignment Agreement does not purport to be complete and is qualified in its entirety by reference to the Assignment Agreement, which is attached hereto as Exhibit 99.7 and incorporated by reference in its entirety into this Item 6.
 
    On October 16, 2011, the Issuer and each of CDCF and CFI entered into an Amendment to Warrants to Purchase Shares of Common Stock of the Issuer (the “Warrant Amendments”) pursuant to which Warrants to purchase Shares of Common Stock of the Issuer dated: April 15, 2011; April 30, 2011; May 31, 2011; June 30, 2011; July 31, 2011; August 31, 2011; and September 30, 2011 were amended.  The Warrant Amendments provided for, among other things, a limitation on the exercise of the Warrants (the “Warrant Exercise Limitation”), whereby: (i) no holder will be entitled to purchase or otherwise acquire Shares of Common Stock or other securities or instruments upon exercise of the Warrants to the extent such purchase, acquisition or receipt would cause the holder to become directly a “beneficial owner” (within the meaning of Section 13(d) of the Exchange Act) of 10.00% or more of the Shares of the Issuer’s outstanding Common Stock; and (ii) if, but for the operation of clause (i), such holder would be deemed to be a beneficial owner of 10.00% or more of the Shares of Common Stock of the Issuer then any exercise of the Warrant shall be void and have no effect to the extent (but only to the extent) that such exercise would result in the exercising holder (together with such holder’s affiliates) becoming the owner (as distinguished from a beneficial owner under Section 13(d) of the Exchange Act) of more than 4.99% of the Shares of Common Stock outstanding at such time; provided, however, that the foregoing 4.99% limitation on exercise of Warrants in this clause (ii) shall cease to apply to any holder that ceases to be part of a “group” (as defined in Section 13(d) of the Exchange Act) with persons that are not affiliates of such holder.  Additionally, the Warrant Amendments provide that the anti-dilution and most favored nation provisions of the original Warrants do not apply in respect to the transactions described herein and expected to become effective upon the Second Amendment Effective Date.  This summary of the Warrant Amendments does not purport to be complete and is qualified in its entirety by reference to the Warrant Amendments, which are attached for CFI and CDCF hereto as Exhibit 99.8 and Exhibit 99.9 respectively, and incorporated by reference in their entirety into this Item 6.
 
                Also on October 16, 2011 CDCF, CFI, C-III and the Issuer entered into an Amendment to Registration Rights Agreement (the “Registration Amendment”).  The Registration Amendment provided for (i) the inclusion of the Shares issuable upon exercise of the Second Amendment Effective Date Warrants (as defined in the Amended Credit Agreement) to the securities covered by the Registration Rights Agreement, (ii) the restatement of Schedule I to the Registration Rights Agreement to include C-III as a holder of Warrants, and (iii) an amendment to the notice provision to include C-III.  This summary of the Registration Amendment does not purport to be complete and is qualified in its entirety by reference to the Registration Amendment, which is attached hereto as Exhibit 99.10 and incorporated by reference in its entirety into this Item 6.
 
 
 
14

 
 
 
    On October 16, 2011, the Warrant Assignments were entered into (as described and defined in Item 5 hereof).
 
    Also on October 16, 2011, pursuant to the Amended Credit Agreement and the Warrant Assignment with CFI the Issuer issued to CFI Second Amendment Effective Date Warrants (the “CFI Second Amendment Effective Date Warrants”) to purchase 932,222 Shares of Common Stock of the Issuer.  Furthermore, on October 16, 2011, pursuant to the Amended Credit Agreement and the Warrant Assignment with CDCF the Issuer issued to CDCF Second Amendment Effective Date Warrants (the “CDCF Second Amendment Effective Date Warrants” and collectively with the CFI Second Amendment Effective Date Warrants the “Colony Second Amendment Effective Date Warrants”) to purchase 932,222 Shares of Common Stock of the Issuer.  Each Colony Second Amendment Effective Date Warrant contains the Warrant Exercise Limitation.  Pursuant to the Closing Mechanics Agreement, in the event that Grubb & Ellis Management Services, Inc., as Borrower under the Amended Credit Agreement shall not have made a borrowing under the Commitment (as defined in the Amended Credit Agreement) of C-III on or prior to October 28, 2011, the Colony Second Amendment Effective Date Warrants shall be rescinded. This summary of the Colony Second Amendment Effective Date Warrants does not purport to be complete and is qualified in its entirety by reference to the CDCF Second Amendment Effective Date Warrant and the CFI Second Amendment Effective Date Warrant, which are attached hereto as Exhibit 99.11 and Exhibit 99.12, respectively, and incorporated by reference in their entirety into this Item 6.
 
    In connection with Credit Amendment No. 2, the Exclusivity Agreement, the Registration Amendment, the Warrant Assignment with CDCF, and the Warrant Assignment with CFI, C-III, ColFin, CDCF and CFI entered into an Intercreditor Agreement (the “Intercreditor Agreement”), dated October 16, 2011.  Pursuant to the Intercreditor Agreement, until the Maturity Date (as defined in the Amended Credit Agreement) neither C-III nor ColFin (collectively, the “Lenders”) may consent to any amendment, modification or waiver of the Credit Agreement or other loan document, without the written consent of both Lenders.  If on the Maturity Date C-III (or any affiliate thereof) is a party to a definitive written agreement with the Issuer or one or more subsidiaries relating to a Potential Transaction then C-III shall have the right to consent to an extension of the Maturity Date without the consent of ColFin.  Under the terms of the Intercreditor Agreement, until the earlier of the Maturity Date or the date on which discussions between C-III and the Issuer regarding a Potential Transaction are discontinued, (i) neither Lender may sell assign, participate or otherwise transfer all or any part of its loans (except to certain controlled affiliates of C-III and controlled affiliates of Colony Capital LLC), without prior written consent of the other Lender and (ii) neither C-II, CDCF nor CFI may sell assign, participate or otherwise transfer all or any part of its Warrants (except to certain controlled affiliates of C-III and controlled affiliates of Colony Capital LLC), without prior written consent of both Lenders.  The Intercreditor Agreement also provides that no party to the Intercreditor Agreement may consent to any amendment, modification, supplement or waiver to the Registration Rights Agreement, or selection of Holders Counsel (as defined in the Registration Rights Agreement) without the prior written consent of each other party.  Furthermore, the Intercreditor Agreement provides that none of C-III, CDCF, nor CFI shall consent to any amendment, supplement or modification of any term of any Closing Date Warrants, Second Amendment Effective Date Warrants, or Additional Warrants (as each is defined in the Amended Credit Agreement) without the written consent of C-III, CDCF, and CFI.  The Intercreditor Agreement also provides that the current Administrative Agent may not resign as such without giving 60 days’ prior written notice to C-III.  A majority of the Lenders may remove the Administrative Agent if it or its Affiliate (as defined in the Intercreditor Agreement) ceases to be a Lender.  The Intercreditor Agreement also designated that C-III as the lead party for negotiations with creditors, stakeholders and stockholders with respect to a Potential Transaction.  Finally, the Intercreditor Agreement documents the intent of the parties to the Intercreditor Agreement that the subject loans, commitments and warrants be split 50/50 with C-III holding 50% of each and ColFin, CDCF and CFI (collectively, the “Colony Entities”) holding 50% of each.  This summary of the Intercreditor Agreement does not purport to be complete and is qualified in its entirety by reference to the Intercreditor Agreement, which is attached hereto as Exhibit 99.13 and incorporated by reference in its entirety into this Item 6.
 
    Items 2, 4 and 5 of this Schedule 13D are incorporated by reference in their entirety into this Item 6.
 
                Except as otherwise disclosed herein, in the Initial Schedule 13D, Amendment No. 1, the Exclusivity Agreement, the Warrant Assignments, Credit Amendment No. 2, the Assignment Agreement , the Registration Amendment, the CDCF Warrant Amendment, the CFI Warrant Amendment, and the Intercreditor Agreement, to the best knowledge of the Reporting Persons there are no contracts, arrangements, understandings or relationships among the Reporting Persons and any other person with respect to any securities of the Issuer.
 
 
 
15

 
 
Items 2, 4 and 5 of this Schedule 13D are incorporated by reference in their entirety into this Item 6.
 
Except as otherwise disclosed herein, in the Initial Schedule 13D, Amendment No. 1, the Exclusivity Agreement, the Warrant Assignments, Credit Amendment No. 2, the Assignment Agreement , the Registration Amendment, the CDCF Warrant Amendment, the CFI Warrant Amendment, and the Intercreditor Agreement, to the best knowledge of the Reporting Persons there are no contracts, arrangements, understandings or relationships among the Reporting Persons and any other person with respect to any securities of the Issuer.
 
Item 7.   Material to be Filed as Exhibits.
 
The response to Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following at the end of such Item 7:
 
Exhibit
 
Description of Exhibit
99.1
 
Exclusivity Agreement by and among C-III Investments LLC, and ColFin GNE Loan Funding, LLC and Grubb & Ellis Company dated as of October 16, 2011
99.2
 
Warrant Assignment Agreement by and between CDCF II GNE Holding, LLC and C-III Investments LLC, dated as of October 16, 2011
99.3
 
Warrant Assignment Agreement by and between CFI GNE Warrant Investor, LLC and C-III Investments LLC, dated as of October 16, 2011
99.4
  Closing Mechanics Agreement dated as of October 16, 2011
99.5   
Amendment No. 2 to Credit Agreement by and among  Grubb & Ellis Management Services Inc., as Borrower, Grubb & Ellis Company, as Parent Guarantor and as a Guarantor, Grubb & Ellis Equity Advisors, LLC, Grubb and Ellis Healthcare REIT II Advisors, LLC and Grubb & Ellis Landauer Valuation Advisory Services, LLC, as Guarantors, ColFin GNE Loan Funding, LLC, as Administrative Agent and as a Lender, and C-III Investments, dated October 16, 2011
99.6
 
Ex A – Form of Amended Credit Agreement to Amendment No. 2 to Credit Agreement
 

 
16

 
 
99.7
 
Assignment and Assumption Agreement  by and between C-III Investments LLC, as Assignee, and ColFin GNE Loan Funding, LLC as Assignor and Administrative Agent
99.8
 
Second Amendment Effective Date Warrant by and between Grubb & Ellis Company and CFI GNE Warrant Investor, LLC, dated October 16, 2011
99.9
 
Second Amendment Effective Date Warrant by and between Grubb & Ellis Company and CDCF II GNE Holding, LLC, dated October 16, 2011
99.10
 
Amendment to Registration Rights Agreement by and among Grubb & Ellis Company, CDCF II GNE Holding, LLC and CFI GNE Warrant Investor, LLC, dated October 16, 2011
99.11
 
Amendment to Warrants to Purchase Shares of Common Stock of Grubb & Ellis Company by and between Grubb & Ellis Company and CDCF II GNE Holding, LLC dated October 16, 2011
99.12
 
Amendment to Warrants to Purchase Shares of Common Stock of Grubb & Ellis Company by and between Grubb & Ellis Company and CFI GNE Warrant Investor, LLC, dated October 16, 2011
99.13
 
Intercreditor Agreement by and among C-III Investments, LLC, ColFin GNE Loan Funding, LLC, CDCF II GNE Holding, LLC and CFI GNE Warrant Investor, LLC, dated October 16, 2011
 

 
17

 

 
SIGNATURE
 
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: October 18, 2011
CDCF II GNE Holding, LLC
   
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President
 

 
Dated: October 18, 2011
CFI GNE Warrant Investor, LLC
   
 
By:
CFI RE Holdco, LLC
 
Its:
Managing Member
     
  By: CFI RE Masterco, LLC
  Its: Managing Member
     
 
By:
Colony Financial, Inc.
 
Its:
Managing Member
     
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President
 
 
 

 
 
 
Dated: October 18, 2011
Colony Distressed Credit Fund II, L.P.
   
 
By:
Colony Capital Credit II, L.P.
 
Its:
General Partner
     
 
By:
ColonyGP Credit II, LLC
 
Its:
General Partner
     
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President
 

 
Dated: October 18, 2011
Colony Capital Credit II, L.P.
   
 
By:
ColonyGP Credit II, LLC
 
Its:
General Partner
     
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President

 
 

 

 
Dated: October 18, 2011
ColonyGP Credit II, LLC
   
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President
 

 
Dated: October 18, 2011
CFI RE Holdco, LLC
   
 
By:
Colony Financial, Inc.
 
Its:
Managing Member
     
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President
 
 
 
Dated: October 18, 2011
CFI RE Masterco, LLC
   
 
By:
Colony Financial, Inc.
 
Its:
Managing Member
     
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:     Vice President
 

 
Dated: October 18, 2011
Colony Financial, Inc.
   
 
By:  
/s/ Ronald M. Sanders
   
Name:  Ronald M. Sanders
   
Title:    Vice President

 

 
 

 

EXHIBIT INDEX
 
The Exhibit Index is hereby amended and supplemented by adding the following at the end of such Exhibit Index.
 
 
Exhibit
 
Description of Exhibit
99.1
 
Exclusivity Agreement by and among C-III Investments LLC, and ColFin GNE Loan Funding, LLC and Grubb & Ellis Company dated as of October 16, 2011
99.2
 
Warrant Assignment Agreement by and between CDCF II GNE Holding, LLC and C-III Investments LLC, dated as of October 16, 2011
99.3
 
Warrant Assignment Agreement by and between CFI GNE Warrant Investor, LLC and C-III Investments LLC, dated as of October 16, 2011
99.4
  Closing Mechanics Agreement dated as of October 16, 2011
99.5   
Amendment No. 2 to Credit Agreement by and among  Grubb & Ellis Management Services Inc., as Borrower, Grubb & Ellis Company, as Parent Guarantor and as a Guarantor, Grubb & Ellis Equity Advisors, LLC, Grubb and Ellis Healthcare REIT II Advisors, LLC and Grubb & Ellis Landauer Valuation Advisory Services, LLC, as Guarantors, ColFin GNE Loan Funding, LLC, as Administrative Agent and as a Lender, and C-III Investments, dated October 16, 2011
99.6
 
Ex A – Form of Amended Credit Agreement to Amendment No. 2 to Credit Agreement
99.7
 
Assignment and Assumption Agreement  by and between C-III Investments LLC, as Assignee, and ColFin GNE Loan Funding, LLC as Assignor and Administrative Agent
99.8
 
Second Amendment Effective Date Warrant by and between Grubb & Ellis Company and CFI GNE Warrant Investor, LLC, dated October 16, 2011
99.9
 
Second Amendment Effective Date Warrant by and between Grubb & Ellis Company and CDCF II GNE Holding, LLC, dated October 16, 2011
99.10
 
Amendment to Registration Rights Agreement by and among Grubb & Ellis Company, CDCF II GNE Holding, LLC and CFI GNE Warrant Investor, LLC, dated October 16, 2011
99.11
 
Amendment to Warrants to Purchase Shares of Common Stock of Grubb & Ellis Company by and between Grubb & Ellis Company and CDCF II GNE Holding, LLC dated October 16, 2011
99.12
 
Amendment to Warrants to Purchase Shares of Common Stock of Grubb & Ellis Company by and between Grubb & Ellis Company and CFI GNE Warrant Investor, LLC, dated October 16, 2011
99.13
 
Intercreditor Agreement by and among C-III Investments, LLC, ColFin GNE Loan Funding, LLC, CDCF II GNE Holding, LLC and CFI GNE Warrant Investor, LLC, dated October 16, 2011
 
 
 
 
 
 
EX-99.1 2 exclusivity_agmt.htm EXHIBIT 99.1 -- EXCLUSIVITY AGREEMENT BY AND BETWEEN C-III INVESTMENTS AND COLFIN GNE LOAN FUNDING exclusivity_agmt.htm
Exhibit 99.1
 
C-III INVESTMENTS
5221 North O'Connor Boulevard
Suite 600
Irving, TX 75039
 
 
COLFIN GNE LOAN FUNDING
2450 Broadway
6th Floor
Santa Monica, CA 90404
     

October 16, 2011

Grubb & Ellis Company
c/o JMP Securities LLC
600 Montgomery Street, Suite 1100
San Francisco, CA 94111

Re:  Exclusivity Agreement

Ladies and Gentlemen:
 
We have discussed a potential acquisition, recapitalization, asset sale or other strategic transaction (a “Transaction”) involving Grubb & Ellis Company (the “Company”), C-III Investments LLC (“C-III”) and its affiliates and ColFin GNE Loan Funding, LLC (“Colony”, and together with C-III, the “Interested Parties”) and its affiliates.  In consideration of the extension of credit by the Interested Parties and/or affiliates thereof in accordance with the terms and conditions of that certain Second Amendment to Credit Agreement of even date herewith (the “Second Amendment”), which amends that certain Credit Agreement dated as of April 15, 2011 among the Company, Grubb & Ellis Management Services, as borrower, the lenders signatory thereto and Colony in its capacity as administrative agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), and the due diligence investigation of the Company that the Interested Parties and their affiliates have undertaken and intend to continue to undertake, the Company hereby agrees that it shall, and that it shall cause its subsidiaries and its and its subsidiaries’ officers, directors, employees, agents, affiliates and representatives (including, without limitation, any investment banking, legal or accounting firm or other advisor and any individual member or employee of the foregoing) (collectively, the “Representatives”), during the Exclusivity Period (as hereinafter defined), to work exclusively with the Interested Parties and their respective representatives with respect to a potential Transaction and not to, directly or indirectly, solicit or initiate or enter into any discussions, negotiations or transactions with, reply to or encourage, or provide any information, written or verbal to, any individual, corporation, partnership or other entity or group (other than the Interested Parties and their respective representatives) concerning the acquisition of the Company or any of its subsidiaries or any equity interest therein or all or any substantial portion of any of their assets, whether through direct purchase, merger, consolidation or other business combination or similar transaction involving the Company or any of its subsidiaries or any of their respective assets (singly or collectively, a “Competing Transaction”).  During the Exclusivity Period, the Company shall promptly notify each of the Interested Parties regarding any contact between it or any of its Representatives and any other person or entity regarding any offer or proposal (and shall promptly provide to each of the Interested Parties copies of any written materials received by the Company or its Representatives in connection with such
 

 
 

 

Grubb & Ellis Company
October 16, 2011
Page 2
 
 
proposal, discussion, negotiation or inquiry, or a written summary of any oral proposals, discussions, negotiations or inquiries) from such other person or entity that could be construed as a proposal or offer for a Competing Transaction.  The Company represents that neither it nor any of its affiliates nor, to the best of its knowledge, any of its officers or directors is party to or bound by any agreement with respect to any Competing Transaction.
 
For purposes of this letter agreement, the term “Exclusivity Period” means the period commencing on October 16 2011 and ending at 11:59 p.m. Pacific Time on November 15 2011; provided, however, that such period may be extended by C-III, at its option, to 11:59 p.m. Pacific Time on December 15, 2011 if C-III continues to be diligently pursuing a Transaction on November 15, 2011; and further provided, however, that such period may be further extended by C-III, at its option, to 11:59 p.m. Pacific Time on January 14, 2012 if C-III continues to be diligently pursuing a Transaction on December 15, 2011; provided, however, that notwithstanding the foregoing or anything else set forth herein to the contrary, if a funding pursuant to the Second Amendment does not occur on or before October 28, 2011 other than as a consequence of the Company’s breach thereof (it being expressly understood and agreed that the failure to satisfy a closing condition despite good faith attempts to do so shall not be deemed a breach by the Company), then the Exclusivity Period shall automatically terminate at 11:59 p.m. Pacific Time on October 28, 2011 and this letter agreement shall become null and void.  The exercise by C-III of its option to extend the Exclusivity Period as hereinabove provided shall be effected by written notice by C-III to the Company.
 
Notwithstanding the foregoing or anything else set forth herein to the contrary, if at any time during the Exclusivity Period the Company receives an unsolicited written offer (the “Unsolicited Offer”) from a third party (the “Third Party”) for a Competing Transaction that constitutes a Qualifying Proposal (as hereinafter defined), then: (i) the Company shall immediately deliver a copy of the Unsolicited Offer to C-III; and (ii) at any time after the sixtieth (60th) day of the Exclusivity Period, the Company shall have the right to request from C-III (the “Company Request”) written confirmation from C-III that C-III is willing to enter into a Transaction with the Company on terms and conditions, and in the time frame, at least as favorable to the Company as the Qualifying Proposal.  If (i) C-III fails to provide such written confirmation to the Company within three (3) business days after delivery by the Company of the Company Request to C-III and (ii) the board of directors of the Company determines, based on advice from the Company’s financial adviser and outside legal counsel, that it would be a breach of its fiduciary duty to the Company’s stockholders not to engage in discussions with such Third Party, then the Company shall have the right to provide information to, negotiate with and enter into an agreement with such Third Party with respect to the Competing Transaction if, and only if, prior to any such provision of information, negotiations or entering into an agreement the Third Party shall have (a) executed and delivered an Assignment and Assumption in the form attached hereto as Exhibit A (an “Assignment and Assumption”) with each Lender (as defined in the Credit Agreement), pursuant to which the Third Party agrees to purchase the Loan(s) (as defined in the Credit Agreement) held by each Lender at par plus all accrued and unpaid interest thereon (the “Loan Purchases”), and (b) tendered to each Lender the applicable consideration therefor in immediately available funds.  For the avoidance of doubt, no Lender or
 

 
 

 

Grubb & Ellis Company
October 16, 2011
Page 3
 
 
other person or entity shall be required to transfer to the Third Party any Warrant (as defined in the Credit Agreement) issued pursuant to the Credit Agreement (including the Second Amendment) prior to the date of assignment of the Loans to the Third Party.  Upon the consummation of the Loan Purchases, notwithstanding anything set forth herein to the contrary, the Exclusivity Period shall simultaneously and automatically terminate.
 
As used herein, “Qualifying Proposal” means a bona fide written proposal for a Competing Transaction that is: (i) not solicited or initiated by the Company or any of its affiliates or Representatives in violation of the terms of this letter agreement; (ii) in the good faith judgment of the board of directors of the Company, based on advice from the Company’s financial advisor and outside legal counsel, reasonably likely to be completed on a timely basis; (iii) not subject to financing or any other material condition (other than required governmental, stockholder and regulatory approvals and customary closing conditions such as due authorization, good standing, receipt of legal opinions, etc.); and (iv) in the good faith judgment of the board of directors of the Company, based on advice from the Company’s financial advisor and outside legal counsel, more favorable to the Company’s stockholders than the terms of any proposal for a Transaction submitted by C-III, if applicable.
 
During the Exclusivity Period, the Company and its affiliates shall cooperate with the Interested Parties and their representatives in facilitating discussions with creditors and preferred stockholders of the Company.
 
The parties agree that, notwithstanding the restrictions contained in that certain Confidentiality Agreement, dated March 25, 2011 (the “Confidentiality Agreement”), Colony may have discussions regarding the Possible Transactions (as defined in the Confidentiality Agreement) and disclose Information (as defined in the Confidentiality Agreement), with FMR LLC and its affiliates.
 
The Company shall promptly reimburse the C-III and its affiliates for all of their reasonable out-of-pocket expenses (including, without limitation, the reasonable and documented fees, charges, disbursements and expenses of financial advisors, accountants, consultants, experts, financing sources, attorneys and other advisors to the C-III and its affiliates) incurred by C-III and its affiliates in connection with pursuing a Transaction, up to a maximum amount of $1,000,000.
 
This letter agreement (and any amendments hereto), when executed by the Company, shall constitute a binding obligation with respect to the matters set forth herein.  That being said, this letter agreement (and any amendments hereto) shall not constitute a binding obligation on any party to enter into or otherwise consummate a Transaction.  This letter agreement may be amended only with the written approval of all parties hereto. This letter agreement (and any amendments hereto) may be signed in counterparts, all of which will constitute the same agreement, will be governed by and construed in accordance with the laws (other than the conflict of laws rules) of the New York and will bind and inure to the benefit of the parties and their respective successors and assigns.
 

 
 

 
 
Grubb & Ellis Company
October 16, 2011
Page 4
 
 
Please indicate your agreement with the terms of this letter agreement by countersigning two originals hereof and returning one to Jeffrey Cohen of C-III and one to Todd Sammann of Colony.
 
Very truly yours,


C-III INVESTMENTS LLC
 
By:
  /s/ Jeffrey P. Cohen  
 
 
Jeffrey P. Cohen
 
 
 
President
 


COLFIN GNE LOAN FUNDING, LLC
 
By:
  /s/ Mark M. Hedstrom  
   
Name:  Mark M. Hedstrom
 
   
Title:     Vice President
 



ACCEPTED AND AGREED
AS OF THIS 16th DAY OF
OCTOBER 2011:

GRUBB & ELLIS COMPANY
By:
  /s/ Michael Rispoli  
   
Name:  Michael Rispoli
 
   
Title:     Chief Financial Officer
 
 

 
 

 



EXHIBIT A

Form of Assignment and Assumption

(attached)
EX-99.2 3 cdcf_warrant.htm EXHIBIT 99.2 -- WARRANT ASSIGNMENT AGREEMENT BY AND BETWEEN CDCF II GNE HOLDING, LLC AND C-III INVESTMENTS cdcf_warrant.htm
Exhibit 99.2

WARRANT ASSIGNMENT AGREEMENT

This Warrant Assignment Agreement (this “Agreement”) is entered into as of October  16, 2011, by CDCF II GNE Holding, LLC, a Delaware limited liability company (“CDCF”), and C-III Investments LLC, a Delaware limited liability company (“C-III”).

WHEREAS, CDCF is the registered owner of warrants to purchase 3,520,339 shares of common stock of Grubb & Ellis Company (the “CDCF Warrants”);

WHEREAS, affiliates of CDCF are party to that certain Credit Agreement, dated as of April 15, 2011, as amended by Amendment No. 1 to Credit Agreement, dated as of July 22, 2011, and the Amendment (as defined below) (as the same may be further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Grubb & Ellis Management Services, Inc., as borrower (the “Borrower”), Grubb & Ellis Company, as parent guarantor (the “Parent Guarantor”), the several lenders from time to time parties thereto and ColFin GNE Loan Funding, LLC, as administrative agent;

WHEREAS, pursuant to that certain Amendment No. 2 to Credit Agreement, dated as of the date hereof (the “Amendment”), by and among the parties to the Credit Agreement and C-III, C-III has the right to receive warrants to purchase 3,728,889 shares of common stock of Parent Guarantor on the Second Amendment Effective Date (as defined in the Amendment) (the “C-III Warrants”);

WHEREAS, the parties hereto are also party to that certain Closing Mechanics Agreement, dated as of the date hereof (the “Mechanics Agreement”).

WHEREAS, in contemplation of the loan assignment provided under the Assignment and Assumption agreement, CDCF desires to assign, transfer, convey, set over and deliver to C-III all of CDCF’s right and interest under the CDCF Warrants with respect to 1,760,170 shares of common stock (the “CDCF Assigned Interest”), which CDCF Assigned Interest represents 50% of each individual Closing Date Warrant (as defined in the Credit Agreement) and 50% of each Additional Warrant (as defined in the Credit Agreement) issued by the Parent Guarantor and held by CDCF; and

WHEREAS, in contemplation of the loan assignment provided under the Assignment and Assumption agreement, C-III desires to assign all of C-III’s right and interest under the C-III Warrants with respect to 932,222 shares of common stock (the “C-III Assigned Interest” and, together with the CDCF Assigned Interest, the “Assigned Interests”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1.           Effective immediately, (a) CDCF hereby assigns, transfers, conveys, sets over and delivers to C-III all of its right and interest to the CDCF Assigned Interest, and (b) C-III hereby accepts the assignment, transfer, conveyance, set over and delivery of the CDCF Assigned Interest;


 
1

 

2.           Effective contemporaneously with C-III’s execution of the Amendment, (a) C-III hereby assigns to CDCF all of its right and interest to the C-III Assigned Interest, (b) C-III hereby agrees to instruct Parent Guarantor to deliver the C-III Assigned Interest directly to CDCF, and (c) CDCF hereby accepts the assignment, transfer, conveyance, set over and delivery of the C-III Assigned Interest; and

3.           Each party hereby represents and warrants to the other that the statements contained in this Section 3 are true and correct as of the date of this Agreement:

(A)           such party has full power and authority to assign, transfer, convey, set over and deliver the Assigned Interest delivered by such party hereby and to execute and deliver this Agreement.

(B)           such party has sole ownership of the Assigned Interest being transferred by it, which such party is assigning, transferring, conveying, setting over and delivering hereby, free and clear of all liens, charges, encumbrances and adverse claims.  Each party will, upon request, execute any additional documents necessary or desirable to complete the delivery of its Assigned Interest.

(C)           The execution, delivery and performance of this Agreement by such party does not and will not: (i) violate, conflict with or result in the breach of the organizational documents of such party; (ii) conflict with or violate any law or governmental order applicable to such party; or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the triggering of any payments or result in the creation of an encumbrance on any property or asset of the such party pursuant to, any of the terms, conditions or provisions of any contract, commitment, understanding or arrangement by which the such party is or may become bound, any material permit of the such party or any material permit pursuant to which any of the assets or properties of the undersigned is bound or subject.

(D)           Such party has full power and authority to accept the applicable Assigned Interests delivered to it hereunder.

(E)           Such party (i) is an “accredited investor” within the meaning of Rule 501 under the Securities Act of 1933, as amended (the “Securities Act”); (ii) has sufficient knowledge and experience in investing in companies so as to be able to evaluate the risks and merits of its investment in the Parent Guarantor and is able financially to bear the risks thereof; (iii) is acquiring the applicable Assigned Interests for its own account for the purpose of investment and not with a view to or for sale in connection with any distribution thereof; and (iv) understands that (a) none of the Assigned Interests has been registered under the Securities Act or any state securities laws and (b) the applicable Assigned Interests must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from such registration.

 
2

 


4.           The parties hereto agree that if the Termination Date occurs (as defined in Section 3 of the Mechanics Agreement), this agreement shall be rescinded ab initio and shall cease to be of any force or effect.

5.           This Agreement shall be binding upon the each party, and shall inure to the benefit of the each party’s successors, heirs and assigns.

6.           This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

 
(Remainder of Page Intentionally Left Blank)


 
3

 


IN WITNESS WHEREOF, the undersigned have duly executed this instrument as of the date first written above.

CDCF II GNE Holding, LLC
 
C-III Investments LLC
 
 
By:
  /s/ Mark M. Hedstrom  
By:
  /s/ Jeffrey P. Cohen  
    Name:
Title:
 
Mark M. Hedstrom
Vice President
      Name:
Title:
 
Jeffrey P. Cohen
President
 

EX-99.3 4 cfi_warrant.htm EXHIBIT 99.3 -- WARRANT ASSIGNMENT AGREEMENT BY AND BETWEEN CFI GNE WARRANT INVESTOR, LLC AND C-III INVESTMENTS cfi_warrant.htm
Exhibit 99.3
 
WARRANT ASSIGNMENT AGREEMENT

This Warrant Assignment Agreement (this “Agreement”) is entered into as of October  16, 2011, by CFI GNE Warrant Investor, LLC, a Delaware limited liability company (“CFI”), and C-III Investments LLC, a Delaware limited liability company (“C-III”).

WHEREAS, CFI is the registered owner of warrants to purchase 3,520,339 shares of common stock of Grubb & Ellis Company (the “CFI Warrants”);

WHEREAS, affiliates of CFI are party to that certain Credit Agreement, dated as of April 15, 2011, as amended by Amendment No. 1 to Credit Agreement, dated as of July 22, 2011, and the Amendment (as defined below) (as the same may be further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Grubb & Ellis Management Services, Inc., as borrower (the “Borrower”), Grubb & Ellis Company, as parent guarantor (the “Parent Guarantor”), the several lenders from time to time parties thereto and ColFin GNE Loan Funding, LLC, as administrative agent;

WHEREAS, pursuant to that certain Amendment No. 2 to Credit Agreement, dated as of the date hereof (the “Amendment”), by and among the parties to the Credit Agreement and C-III, C-III has the right to receive warrants to purchase 3,728,889 shares of common stock of Parent Guarantor on the Second Amendment Effective Date (as defined in the Amendment) (the “C-III Warrants”);

WHEREAS, the parties hereto are also party to that certain Closing Mechanics Agreement, dated as of the date hereof (the “Mechanics Agreement”).

WHEREAS, in contemplation of the loan assignment provided under the Assignment and Assumption agreement, CFI desires to assign, transfer, convey, set over and deliver to C-III all of CFI’s right and interest under the CFI Warrants with respect to 1,760,170 shares of common stock (the “CFI Assigned Interest”), which CFI Assigned Interest represents 50% of each individual Closing Date Warrant (as defined in the Credit Agreement) and 50% of each Additional Warrant (as defined in the Credit Agreement) issued by the Parent Guarantor and held by CFI; and

WHEREAS, in contemplation of the loan assignment provided under the Assignment and Assumption agreement, C-III desires to assign all of C-III’s right and interest under the C-III Warrants with respect to 932,222 shares of common stock (the “C-III Assigned Interest” and, together with the CFI Assigned Interest, the “Assigned Interests”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1.           Effective immediately, (a) CFI hereby assigns, transfers, conveys, sets over and delivers to C-III all of its right and interest to the CFI Assigned Interest, and (b) C-III hereby accepts the assignment, transfer, conveyance, set over and delivery of the CFI Assigned Interest;


 
1

 

2.           Effective contemporaneously with C-III’s execution of the Amendment, (a) C-III hereby assigns to CFI all of its right and interest to the C-III Assigned Interest, (b) C-III hereby agrees to instruct Parent Guarantor to deliver the C-III Assigned Interest directly to CFI, and (c) CFI hereby accepts the assignment, transfer, conveyance, set over and delivery of the C-III Assigned Interest; and

3.           Each party hereby represents and warrants to the other that the statements contained in this Section 3 are true and correct as of the date of this Agreement:

(A)           such party has full power and authority to assign, transfer, convey, set over and deliver the Assigned Interest delivered by such party hereby and to execute and deliver this Agreement.

(B)           such party has sole ownership of the Assigned Interest being transferred by it, which such party is assigning, transferring, conveying, setting over and delivering hereby, free and clear of all liens, charges, encumbrances and adverse claims.  Each party will, upon request, execute any additional documents necessary or desirable to complete the delivery of its Assigned Interest.

(C)           The execution, delivery and performance of this Agreement by such party does not and will not: (i) violate, conflict with or result in the breach of the organizational documents of such party; (ii) conflict with or violate any law or governmental order applicable to such party; or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the triggering of any payments or result in the creation of an encumbrance on any property or asset of the such party pursuant to, any of the terms, conditions or provisions of any contract, commitment, understanding or arrangement by which the such party is or may become bound, any material permit of the such party or any material permit pursuant to which any of the assets or properties of the undersigned is bound or subject.

(D)           Such party has full power and authority to accept the applicable Assigned Interests delivered to it hereunder.

(E)           Such party (i) is an “accredited investor” within the meaning of Rule 501 under the Securities Act of 1933, as amended (the “Securities Act”); (ii) has sufficient knowledge and experience in investing in companies so as to be able to evaluate the risks and merits of its investment in the Parent Guarantor and is able financially to bear the risks thereof; (iii) is acquiring the applicable Assigned Interests for its own account for the purpose of investment and not with a view to or for sale in connection with any distribution thereof; and (iv) understands that (a) none of the Assigned Interests has been registered under the Securities Act or any state securities laws and (b) the applicable Assigned Interests must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt from such registration.


 
2

 

4.           The parties hereto agree that if the Termination Date occurs (as defined in Section 3 of the Mechanics Agreement), this agreement shall be rescinded ab initio and shall cease to be of any force or effect.

5.           This Agreement shall be binding upon the each party, and shall inure to the benefit of the each party’s successors, heirs and assigns.

6.           This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

 
(Remainder of Page Intentionally Left Blank)


 
3

 

IN WITNESS WHEREOF, the undersigned have duly executed this instrument as of the date first written above.
 
 
CFI GNE Warrant Investor, LLC
C-III Investments LLC
 
By:
  /s/ Mark M. Hedstrom  
By:
  /s/ Jeffrey P. Cohen  
    Name:
Title:
 
Mark M. Hedstrom
Vice President
      Name:
Title:
 
Jeffrey P. Cohen
President
 

EX-99.4 5 cm_agmt.htm EXHIBIT 99.4 -- CLOSING MECHANICS AGREEMENT cm_agmt.htm
Exhibit 99.4


C-III INVESTMENTS LLC
5221 North O’Connor Blvd., Suite 600
Irving, Texas 75039
 
 
 
October 16, 2011
 
 
ColFin GNE Loan Funding, LLC
CDCF II GNE Holding, LLC
CFI GNE Warrant Investor, LLC
2450 Broadway, 6th Floor
Los Angeles, California  90404
 
- and -
 
Grubb & Ellis Company
Grubb & Ellis Management Services, Inc.
1551 North Tustin Avenue, Suite 300
Santa Ana, California  92705
 
CLOSING MECHANICS AGREEMENT
 
Ladies and Gentlemen:
 
     
Reference is made to each of:
       
 
(a)
 
Credit Agreement, dated as of April 15, 2011, as amended by Amendment No. 1 to Credit Agreement, dated as of July 22, 2011, and the Amendment (as defined below) (as further amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Grubb & Ellis Management Services, Inc., as borrower (the “Borrower”), Grubb & Ellis Company, as parent guarantor (the “Parent Guarantor”), the several lenders from time to time parties thereto and ColFin GNE Loan Funding, LLC, as administrative agent (in its capacity as administrative agent, the “Administrative Agent”);
       
 
(b)
 
Amendment No. 2 to Credit Agreement, dated as of the date hereof (the “Amendment”), by and among the parties to the Credit Agreement, C-III Investments LLC (“C-III”), Grubb & Ellis Equity Advisors, LLC, Grubb & Ellis Healthcare REIT II Advisor, LLC and Grubb & Ellis Landauer Valuation Advisory Services, LLC, pursuant to which the amount of available Loans under the Credit Agreement was increased by $10,0000,000 to a maximum of $28,000,000;
       
 
(c)
 
Assignment and Assumption, dated as of the date hereof (as amended, supplemented or otherwise modified from time to time, the “Assignment Agreement”), between C-III and ColFin GNE Loan Funding, LLC, pursuant to which ColFin GNE Loan Funding, LLC (in its capacity as a lender under the Credit Agreement, “Colony”) has agreed to assign to C-III, and C-III has agreed to purchase, certain outstanding Loans in an amount of $4,000,000, plus accrued interest (including PIK Amounts) from the April 15, 2011 through the Funding Date (as defined below);

 
 

 
 
2    

 
 
 
(d)
 
each Warrant Assignment Agreement contemplated by Section 1(c) hereof, which shall be dated the date hereof and be substantially in the form of Exhibit A attached hereto (each, as amended, supplemented or otherwise modified from time to time, a “Warrant Assignment Agreement”), between CFI or CDCF, as applicable, and C-III;
       
 
(e)
 
Amendment, to be dated as of the date hereof and be substantially in the form of Exhibit B attached hereto (the “CFI Warrant Amendment”), to the Warrants to Purchase Shares of Common Stock of Grubb & Ellis Company, dated: April 15, 2011; April 30, 2011; May 31, 2011; June 30, 2011; July 31, 2011; August 31, 2011; and September 30, 2011, issued by the Parent Guarantor to CFI GNI Warrant Investor, LLC (“CFI”);
       
 
(f)
 
Amendment, to be dated as of the date hereof and be substantially in the form of Exhibit C attached hereto (the “CDCF Warrant Amendment”; and, together with the CFI Warrant Amendment, the “Warrant Amendments”), to the Warrants to Purchase Shares of Common Stock of Grubb & Ellis Company, dated: April 15, 2011; April 30, 2011; May 31, 2011; June 30, 2011; July 31, 2011; August 31, 2011; and September 30, 2011, issued by the Parent Guarantor to CDCF II GNE Holding, LLC (“CDCF”; and, together with CFI, the “Warrant Holders”); and
       
 
(g)
 
the transactions contemplated by the Amendment (the “Transactions”).
 
All capitalized terms used, but not defined, in this Closing Mechanics Agreement (this “Agreement”) shall have the meanings given to them in the Amendment.
 
This Agreement shall evidence our agreement on the order in which certain aspects of the Transaction shall occur and certain other matters, as follows:
 
1.         On the date hereof, the following transactions shall be consummated in the order set forth below:
 
 
(a)
 
First, each Warrant Amendment shall be duly executed and delivered by each of the Parent Guarantor, the relevant Warrant Holder and C-III.
       
 
(b)
 
Second, the Registration Rights Agreement Amendment shall be executed and delivered by each of the Parent Guarantor and each Warrant Holder.
       
 
(c)
 
Third, each of (i) a Warrant Assignment Agreement with respect to the assignment by CFI to C-III of Closing Date Warrants for the purchase of 1,678,000 shares of common stock of the Parent Guarantor and of Additional Warrants for the purchase of 82,170 shares of common stock of the Parent Guarantor shall be executed and delivered by the parties thereto, in consideration of C-III’s agreements under the Assignment Agreement, and (ii) a Warrant Assignment Agreement with respect to the assignment by CDCF to C-III of Closing Date Warrants for the purchase of 1,678,000 shares of common stock of the Parent Guarantor and of Additional Warrants for the purchase of 82,170 shares of common stock of the Parent Guarantor shall be executed and delivered by the parties thereto, in consideration of C-III’s agreements under the Assignment Agreement.  Each of CFI, CDCF and the Parent Guarantor hereby agrees to take such additional actions as may reasonably be required such that C-III and the Warrant Holders are provided with the same rights with respect to each issue of Warrants (including, without limitation, the registration

 
 

 

3    
 
 
 
     
rights thereunder).  For purposes of this letter agreement, the term “Assigned Warrants” shall mean the Warrants described in this clause (c).
       
 
(d)
 
Fourth, the Parent Guarantor shall issue (i) to C-III, in the name of C-III, one or more Second Amendment Effective Date Warrants to purchase, in the aggregate, 1,864,444 shares of common stock of the Parent Guarantor and, simultaneously therewith, (ii) to CFI, in the name of CFI, one or more Second Amendment Effective Date Warrants to purchase, in the aggregate, 932,222 shares of common stock of the Parent Guarantor in accordance with the provisions of Section 2 of this letter agreement, and (iii) to CDCF, in the name of CDCF, one or more Second Amendment Effective Date Warrants to purchase, in the aggregate, 932,222 shares of common stock of the Parent Guarantor in accordance with the provisions of Section 2 of this letter agreement.  The creation of the Commitment by C-III under the Credit Agreement pursuant to the Amendment and the making of the Loans thereunder (the date upon which such Loans are made, the “Funding Date”) shall constitute good and valuable consideration for such issuance and delivery of Second Amendment Effective Date Warrants (the “Issuer Warrant Payment”).
 
2.         Notwithstanding anything to the contrary contained in any Lender Document, C-III does hereby irrevocably and unconditionally instruct the Parent Guarantor to issue and deliver the Second Amendment Date Warrants to CFI and CDCF in the manner set forth in clauses (ii) and (iii) of Section 1(d) hereof in lieu of the issuance and delivery of such Second Amendment Effective Date Warrants to C-III and (together with the issuance and delivery of the Second Amendment Effective Date Warrants to be delivered to C-III pursuant to clause (i) of Section 1(d) above) shall satisfy the condition set forth in Section 6(i) of the Amendment.
 
3.         Notwithstanding the provisions of Sections 1 of this letter agreement, in the event that the Borrower shall not have made a borrowing under the Commitment of C-III on or prior to October 28, 2011, then, without any further action on the part of any party hereto (including, without limitation, the Borrower):
 
 
(a)
 
the Second Amendment Date Warrants that have been issued to each of C-III, CFI and CDCF immediately shall be rescinded, ab initio, cancelled and null and void, in which case C-III shall no longer have any obligation on account of the Issuer Warrant Payment.  In the event that the Second Amendment Date Warrants shall be cancelled and null and void in accordance with this clause (a), each of C-III, CFI and CDCF shall be obligated to promptly return to the Parent Guarantor for destruction all physical Second Amendment Date Warrants previously delivered to it; and
       
 
(b)
 
On the Termination Date (as defined below), the transfer of Warrants pursuant to the Warrant Assignments shall be voided ab initio and C-III shall promptly (and, in any event, within three business days) execute and deliver such documents, instruments and agreements as reasonably are necessary in order to permit the assignment and transfer to CFI and CDCF respectively of the Assigned Warrants assigned and transferred by it to C-III on the Funding Date and, upon such assignment and transfer back to CFI and CDCF, C-III shall cease to have any obligation to pay to CFI and CDCF any amounts under the Assignment Agreement.  Each of CFI and CDCF hereby is granted a power of attorney by C-III to execute such reasonable and customary documents, instruments of assignment or other agreements as may be required to transfer the Assigned Warrants to it, such that each of CFI, CDCF and C-III is in the same position with respect to title to the Assigned Warrants as it was in immediately prior to the assignment and transfer effected on the date

 
 

 
 
4    
 
 
hereof pursuant to Section 1(c) above.  The effectiveness of such power of attorney shall require no further action on the part of C-III in the event that the Termination Date occurs.  Such power of attorney shall be coupled with an interest and shall be irrevocable.
 
The transactions contemplated by this Section 3 shall be deemed to occur immediately upon the close of trading of the New York Stock Exchange on the date which is five business days following the termination of the Commitment of C-III (whether on account of failure of the Second Amendment Effective Date to occur or for any other reason) under the Credit Agreement (the “Termination Date”).  The parties agree that they shall cause a public announcement of the termination of the Commitment promptly (and, in any event, within one business day) following such termination.
 
4.          CFI hereby represents and warrants that the Warrants transferred and assigned by it to C-III pursuant to the Warrant Assignment Agreements to which it is a party constitute 50.0% of each issue of Closing Date Warrants held by it and 50.0% of each issue of Additional Warrants held by it.  CDCF hereby represents and warrants that the Warrants transferred and assigned by it to C-III pursuant to the Warrant Assignment Agreements to which it is a party constitute 50.0% of each issue of Closing Date Warrants held by it and 50.0% of each issue of Additional Warrants held by it.
 
5.          Each party to this Agreement hereby agrees to use best efforts to consummate the Transactions in the manner described herein.
 
6.          This letter agreement may be amended, modified, or supplemented only by written agreement of each Party.
 
7.          This letter agreement constitutes the full and complete agreement of the Parties with respect to the subject matter hereof.  The agreements and understandings in this letter agreement shall supersede any and all conflicting or otherwise inconsistent terms under any other agreement to which a Party is party.
 
8.          This letter agreement, and the rights and obligations of the Parties hereunder, shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without regard to the rules regarding conflict or choice of laws of such State.
 
9.          This letter agreement may be executed in multiple counterparts each of which shall be deemed an original and all constitute one and the same instrument. The Parties agree that this letter agreement shall be legally binding upon the electronic transmission, including by facsimile or email, by each Party of a signed signature page to this letter agreement to the other Parties.
 
[SIGNATURES ON NEXT PAGE]

 
 

 

   
 
If the foregoing accurately reflects the terms of our understanding with respect to the terms set forth above, please sign and return a copy of this letter agreement to us.
 
 
Sincerely,
   
   
 
C-III INVESTMENTS LLC
   
   
 
By:
/s/ Jeffrey P. Cohen
   
Name: Jeffrey P. Cohen
   
Title:   President
 
 
 
Accepted, Acknowledged and Agreed
as of the date first set forth above:
 
     
     
     
COLFIN GNE LOAN FUNDING, LLC
 
GRUBB & ELLIS COMPANY
     
     
By:
/s/ Mark M. Hedstrom  
By:
/s/ Michael Rispoli
 
Name:  Mark M. Hedstrom
   
Name:  Michael Rispoli
 
Title:     Vice President
   
Title:     Chief Financial Officer
       
       
 
CDCF II GNE HOLDING, LLC
 
GRUBB & ELLIS MANAGEMENT SERVICES, INC.
     
     
By:
/s/ Mark M. Hedstrom  
By:
/s/ Michael Rispoli
 
Name:  Mark M. Hedstrom
   
Name:  Michael Rispoli
 
Title:     Vice President
   
Title:     Chief Financial Officer
       
       
 
CFI GNE WARRANT INVESTOR, LLC
   
     
     
By:
/s/ Mark M. Hedstrom      
 
Name:  Mark M. Hedstrom
     
 
Title:     Vice President
     
 

 
 

 

EXHIBIT A
 
[FORM OF] WARRANT ASSIGNMENT AGREEMENT
 
 
 
 
 

 
 

 

EXHIBIT B
 
[FORM OF] CFI WARRANT AMENDMENT
 
 
 
 

 
 

 

EXHIBIT C
 
[FORM OF] CDCF WARRANT AMENDMENT
 
 
 
 
 
 
 
 


EX-99.5 6 amendment2.htm EXHIBIT 99.5 -- AMENDMENT NO. 2 TO CREDIT AGREEMENT amendment2.htm
Exhibit 99.5

Execution Copy

AMENDMENT NO. 2 TO
CREDIT AGREEMENT

AMENDMENT NO. 2, dated as of October 16, 2011 (together with all exhibits and annexes hereto, this “Amendment”), to the Credit Agreement dated as of April 15, 2011 (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of July 22, 2011, the “Credit Agreement”), by and among (1) GRUBB & ELLIS COMPANY, a Delaware corporation (the “Parent Guarantor”); (2) GRUBB & ELLIS MANAGEMENT SERVICES, INC., a Delaware corporation (the “Borrower”); (3) the other guarantors party hereto (the “Guarantors” and, together with the Borrower and the Parent Guarantor, each a “Loan Party” and collectively, the “Loan Parties”); (4) each lender party thereto (collectively, the “Existing Lenders”); and (5) COLFIN GNE LOAN FUNDING, LLC, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

RECITALS
 
WHEREAS, subject to the terms and conditions of this Amendment, the parties hereto wish to amend the Credit Agreement as provided herein;
 
WHEREAS, each of the financial institutions listed on Schedule I hereto (each, a “New Lender”, and together with the Existing Lenders, the “Lenders”) wishes to become a Lender (as such term is defined in the Amended Credit Agreement) under the Amended Credit Agreement; and
 
NOW, THEREFORE, in consideration of the covenants made hereunder, and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1.     Definitions.  Capitalized terms used herein and not otherwise defined shall have the meanings set forth for such terms in the Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”).
 
SECTION 2.     Acknowledgment.  The Loan Parties hereby acknowledge and agree that C-III Investments LLC, a Delaware limited liability company, and its Affiliates are not direct competitors of Parent Guarantor.
 
SECTION 3.     Joinder of New Lenders.  By its signature below, each New Lender agrees that on the date upon which the conditions precedent set forth in Section 7 of this Amendment shall have been satisfied, which date shall occur on or before October 28, 2011 (the “Second Amendment Effective Date”) or shall be deemed not to have occurred, (i) each New Lender shall become a Lender (as such term is defined in the Amended Credit Agreement) under the Amended Credit Agreement and (ii) the Commitment of such New Lender as of the Second Amendment Effective Date shall be as set forth on Schedule 1.1 of the Amended Credit Agreement.
 
SECTION 4.     Amendments to Credit Agreement.  From and after the Second Amendment Effective Date, (i) the terms and provisions of the Credit Agreement are hereby amended by replacing such terms and provisions in their entirety with the terms and provisions set forth in the form of credit agreement attached hereto as Exhibit A (the “Form of Amended Credit Agreement”) and (ii) Schedules and/or Exhibits attached to the Form of Amended Credit Agreement replace and supersede the corresponding Schedules and/or Exhibits to the Credit Agreement.  For the avoidance of doubt, Annexes, Schedules and Exhibits to the original Credit Agreement which are not replaced pursuant to the preceding sentence shall remain in the form attached to the original Credit Agreement, except that (i) references therein to the Credit Agreement shall be deemed to refer to the Amended Credit Agreement and (ii) the Administrative
 

 
 

 

Agent may modify any Exhibits to the Amended Credit Agreement as it may deem necessary or desirable to implement and give effect to the transactions contemplated by this Amendment (provided, that, any such modifications shall not adversely affect the legal rights of, nor result in any additional obligations with respect to, any Loan Party, in each case as provided for under or pursuant to such Exhibit, without the consent of each Loan Party affected thereby). The parties hereto hereby authorize the Administrative Agent to fill in any blanks in this Amendment or the Amended Credit Agreement on the date that it has determined, to its actual knowledge, that each of such conditions has been satisfied; provided that any such action on the part of the Administrative Agent shall not be deemed to be a representation to any of the parties hereto or to any other Person regarding the satisfaction of such conditions or any other matter.   
 
SECTION 5.     Reimbursement Obligation.  Each Loan Party agrees to pay or reimburse the Administrative Agent, the Lenders and their respective Affiliates for all their reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Amendment and any other documents prepared in connection herewith and the consummation and administration of the transactions contemplated hereby, including the reasonable fees and disbursements of counsel to the Administrative Agent and the Lenders (it being agreed that the Loan Parties shall not be required to pay or reimburse the Administrative Agent and the Lenders and their respective Affiliates for fees of counsel in excess of $200,000 in connection with the development, preparation and execution of this Amendment and the documents required to be delivered in connection herewith on the Second Amendment Effective Date (excluding any and all invoices submitted to any Loan Party prior to the date hereof, which shall not be subject to such $200,000 limitation)) and filing and recording fees and expenses.
 
SECTION 6.     Conditions to Effectiveness of this Amendment.  The effectiveness of this Amendment is subject to the receipt by the Administrative Agent of counterparts of this Amendment duly executed by each Loan Party, the Administrative Agent and each Lender and satisfaction (or waiver by the Lenders) of the following conditions precedent:
 
(a)         Execution of Second Amendment Effective Date Warrants and Amendments to Existing Warrants. The Administrative Agent shall have received counterparts of (i) the Second Amendment Effective Date Warrants duly executed by the parties thereto in substantially the form attached hereto as Exhibit B and (ii) amendments to the warrants executed prior to the date hereof duly executed by the parties thereto in form and substance satisfactory to the Administrative Agent and the Lenders.
 
(b)         Exclusivity Agreement.  The exclusivity agreement, dated as of the date hereof, among the Lenders and Parent Guarantor shall be full force and effect.
 
(c)         Registration Rights Agreement.  The Lenders (and/or their designees) shall have received counterparts of an amendment to the Registration Rights Agreement, duly executed by the parties thereto, in connection with the issuance of the Second Amendment Effective Date Warrants, which amendment shall be in the form attached hereto as Exhibit C.
 
(d)         Security Interests.  The Administrative Agent shall have a valid and perfected, first priority security interest in all Collateral as of the date hereof.
 
(e)         Accuracy of Representations and Warranties.  After giving effect to this Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified by or subject to materiality or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date hereof as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case, such representations and
 

 
 

 

warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality or subject to “Material Adverse Effect” shall be true and correct in all respects) on and as of such earlier date.
 
(f)         No Default or Event of Default.  No Default or Event of Default shall have occurred and be continuing on the date hereof or after giving effect to this Amendment.
 
(g)        Warrants.  The Administrative Agent shall have received copies of all material documents and agreements required to be executed by the Loan Parties with respect to the Second Amendment Effective Date Warrants, each in form and substance satisfactory to the Administrative Agent and the Lenders, and (x) the Parent Guarantor shall have issued the Second Amendment Effective Date Warrants to the applicable Lenders or their designees and (y) the Parent Guarantor shall have reserved authorized and unissued shares of its common stock in an amount sufficient to satisfy the full exercise of the Second Amendment Effective Date Warrants,
 
(h)        Resolutions.  The board of directors of the Parent Guarantor shall have duly adopted resolutions approving the issuance of the Second Amendment Effective Date Warrants substantially in the form attached hereto as Exhibit B and otherwise pursuant to the terms of this Amendment and pertaining to such other matters as set forth therein, and such resolutions shall have not in any way been amended, modified, revoked or rescinded and shall be in full force and effect as of the date hereof and shall be the only corporate proceedings of the Parent Guarantor in force relating to or affecting the matters referred to therein.
 
SECTION 7.     Conditions to Second Amendment Effective Date.  The occurrence of the Second Amendment Effective Date is subject to the satisfaction (or waiver by the Lenders) of the following conditions precedent:
 
1)         Lien Searches.  To the extent available after use of commercially reasonable efforts by the Borrower prior to the Second Amendment Effective Date, the Administrative Agent shall have received the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.3 of the Credit Agreement or discharged on or prior to the Second Amendment Effective Date pursuant to documentation satisfactory to the Administrative Agent.
 
(b)        Filings, Registrations and Recordings.  Each document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.3 of the Credit Agreement), shall be in proper form for filing, registration or recordation.
 
(c)        Approvals.  All governmental and third party approvals necessary in connection with the Loan Documents, the continuing operations of the Group Members and the transactions contemplated hereby (other than such consents and third party approvals set forth on Schedule II to this Amendment) shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
 
(d)        Solvency Certificate.  The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Parent Guarantor in the form attached as Exhibit D to the Amended Credit Agreement certifying as to the solvency of the Parent Guarantor and the Borrower
 

 
 

 

(exclusive of their respective Subsidiaries) after giving effect to the transactions contemplated by this Amendment.
 
(e)        Borrowing Base Certificate.  The Administrative Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base as of the end of the month immediately preceding the Second Amendment Effective Date, which Borrowing Base Certificate shall contain a certification that, as of the Second Amendment Effective Date, there shall have been no material change to the Borrowing Base set forth in such Borrowing Base Certificate.
 
(f)         Net Worth.  As of the Second Amendment Effective Date, the Borrower’s Net Worth on a pro forma basis after giving effect to the transactions on the Second Amendment Effective Date and the use of proceeds thereof shall not be less than $20,000,000 and the Administrative Agent shall have received a Compliance Certificate to such effect, along with appropriate insertions and attachments thereto.
 
(g)        Accuracy of Representations and Warranties.  After giving effect to this Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified by or subject to materiality or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Second Amendment Effective Date as if made on and as of the Second Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality or subject to “Material Adverse Effect” shall be true and correct in all respects) on and as of such earlier date.
 
(h)        No Default or Event of Default.  No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date or after giving effect to the extensions of credit on the Second Amendment Effective Date.
 
(i)         Payment of Fees and Expenses.  The Lenders (on a pro rata basis in accordance with their respective undrawn Commitments after giving effect to the Second Amendment Effective Date) shall have received a closing fee in the amount of $100,000; and the Lenders, the Administrative Agent and their respective Affiliates shall have received all other fees and expenses required to be paid or reimbursed (including, without limitation, (i) pursuant to Section 5 of this Amendment and (ii) amounts payable pursuant to invoices submitted to any Loan Party prior to the date hereof reflecting amounts owing to Skadden, Arps, Slate, Meagher & Flom LLP and Moelis & Company LLC), on or before the Second Amendment Effective Date.  If the Second Amendment Effective Date occurs, all such amounts will be paid with proceeds of Loans made on the Second Amendment Effective Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Second Amendment Effective Date.
 
(j)         Warrants.  To the extent obtained after use of commercially reasonable efforts by the Borrower prior to the Second Amendment Effective Date, approval for listing of the shares of common stock issuable upon exercise of the Second Amendment Effective Date Warrants.  The board of directors of the Parent Guarantor shall have granted all necessary approvals under the Parent Guarantor’s organizational documents and Delaware General Corporation Law with respect to the acquisition and exercise of the Second Amendment Effective Date Warrants.
 
(k)        Borrowing Notice.  The Administrative Agent shall have received a notice of the Second Amendment Effective Date Borrowing as required by Section 2.2 of the Credit Agreement.
 

 
 

 

(l)         Allocation Schedule.  The Parent Guarantor, the Borrower and the Lenders shall have agreed on a schedule denoting allocations of proceeds between the Second Amendment Effective Date Warrants and the Loans to be made on the Second Amendment Effective Date.
 
(m)       Closing Certificate; Certified Certificate of Incorporation; Good Standing Certificates.  The Administrative Agent shall have received (i) a certificate of each Loan Party, dated as of the Second Amendment Effective Date, substantially in the form of Exhibit C to the Credit Agreement, with appropriate insertions and attachments, including either (a) the Organizational Documents of each Loan Party, certified by the relevant authority of the jurisdiction of organization of such Loan Party or (b) a certification that such Organizational Documents have not changed since the Closing Date and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of organization as of a recent date.
 
(n)        Legal Opinions.  The Administrative Agent shall have received the legal opinion of Zukerman Gore Brandeis & Crossman, LLP, counsel to the Loan Parties, in form and substance satisfactory to the Administrative Agent and the Lenders (including, without limitation, opinions with respect to the validity and perfection of security interests in the Collateral).
 
SECTION 8.     Consent.
 
(a)        Each Lender hereby consents to, and authorizes the Administrative Agent to enter into, this Amendment.
 
(b)        Each Lender hereby consents to, and authorizes the Administrative Agent to enter into, any other agreements necessary or advisable to grant and/or maintain a perfected interest in the Collateral described in the Security Documents.
 
SECTION 9.     Representations and Warranties.  The Borrower, the Parent Guarantor and each other Guarantor represent and warrant as of the effective date of this Amendment as follows:
 
1)          Authority. The execution, delivery and performance by each Loan Party of this Amendment and each other Loan Document executed, or to be executed, by such Loan Party and the consummation of the transactions contemplated hereby and thereby (i) are within the power of such Loan Party and (ii) have been duly authorized by all necessary actions on the part of such Loan Party.
 
(c)         Enforceability.  Each of this Amendment and each other Loan Document executed, or to be executed, by each Loan Party has been, or will be, duly executed and delivered by such Loan Party and constitutes, or upon execution will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
 
(d)         Non-Contravention. The execution and delivery by each Loan Party of this Amendment and the other Loan Documents executed by such Loan Party and the performance and consummation of the transactions (including the use of Loan) contemplated hereby and thereby do not (i) violate any Requirement of Law applicable to such Loan Party; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any Contractual Obligation of such Loan Party, except as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; (iii) result in the creation or imposition of any Lien (or the obligation to create or impose any Lien) upon any material property, asset or revenue of such Loan Party (except such Liens as may be created in favor of the Administrative Agent
 

 
 

 

for the benefit of itself and the Lenders pursuant to this Amendment or the other Loan Documents) or (iv) violate any provision of any existing law, rule, regulation, order, writ, injunction or decree of any court or Governmental Authority to which it is subject.
 
(e)        Reaffirmation.  The Borrower and the Parent Guarantor hereby reaffirms, for the benefit of the Lenders and the Administrative Agent, the accuracy in all material respects each representation and warranty contained in Section 4 of the Credit Agreement on and as of the date hereof (except for representations and warranties expressly made as of a specified date, which shall be true in all material respects as of such date).  Each Loan Party shall be deemed to have reaffirmed, for the benefit of the Lenders and the Administrative Agent, the accuracy in all material respects each representation and warranty contained in Section 4 of the Guarantee and Collateral Agreement on and as of the date hereof (except for representations and warranties expressly made as of a specified date, which shall be true in all material respects as of such date).
 
(f)         No Default or Event of Default.  As of the date hereof, both before and after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
 
(g)        Registration Rights.  The Warrants to be assigned by any Existing Lender or any of its Affiliates, following such assignment, continue to be subject to the Registration Rights Agreement executed on the Closing Date, and the New Lender, as holder of such Warrants, has all of the rights of an initial holder thereunder.
 
SECTION 10.    Validity of Obligations and Liens.
 
(a)         Validity of Obligations.  Each Loan Party acknowledges and agrees that each Loan Party is indebted to the Lenders and the Administrative Agent for the Obligations, without defense, counterclaim or offset of any kind and each Loan Party hereby ratifies and reaffirms the validity, enforceability and binding nature of such Obligations.
 
(b)         Validity of Guarantees.  The Parent Guarantor and each other Guarantor, as a Guarantor under the Guarantee and Collateral Agreement hereby (i) acknowledges and agrees to the terms of this Amendment and (ii) confirms and agrees that notwithstanding the effectiveness of this Amendment, the Guarantee and Collateral Agreement is, and shall continue to be, in full force and effect and the Guarantee and Collateral Agreement is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this Amendment, each reference in the Guarantee and Collateral Agreement to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
 
(c)         Validity of Liens and Loan Documents.  The Borrower and each Guarantor ratify and reaffirm the validity and enforceability (without defense, counterclaim or offset of any kind) of the Liens and security interests granted to secure any of the Obligations or any Guarantee Obligation by any Loan Party to the Administrative Agent, for the benefit of the Lenders, pursuant to the Loan Documents to which any Loan Party is a party and hereby confirm and agree that notwithstanding the effectiveness of this Amendment, and except as expressly amended by this Amendment, each Loan Document is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this Amendment, each reference in the Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement as amended by this Amendment.
 
SECTION 11.   Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken
 

 
 

 

together shall be deemed to constitute one and the same instrument.  Delivery of an executed signature page of this Amendment by email or facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.  A set of the copies of this Amendment signed by all the parties shall be lodged with the Borrower and the Administrative Agent.
 
SECTION 12.   Continuing Effectiveness. Except as modified by this Amendment, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects and this Amendment shall be a Loan Document for all purposes, and references in the Credit Agreement to “the date hereof” and “the date of this Agreement” and phrases of similar import, shall in all instances be references to, and continue to refer to, April 15, 2011, and not the date of this Amendment. This Amendment shall not constitute an amendment or waiver of any provision of the Credit Agreement not expressly referred to herein.
 
SECTION 13.   Severability.  Any provision of this Amendment that 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.
 
SECTION 14.   Integration.  This Amendment and the other Loan Documents represent the entire agreement of the Borrower, the Guarantors, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
 
SECTION 15.   GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
 
SECTION 16.  Submission To Jurisdiction; Waivers.  Each Loan Party hereby irrevocably and unconditionally:
 
(a)      submits for itself and its property in any legal action or proceeding relating to this Amendment and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of any United States Federal or New York State court sitting in the Borough of Manhattan in the City of New York;
 
(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 similar form of mail), postage prepaid, to the Borrower at its address set forth in Section 10.2 of the Credit Agreement or at such other address of which the Administrative Agent 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.
 
SECTION 17.  WAIVER OF JURY TRIAL.  EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
 
SECTION 18.   Headings.  Section and subsection headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect.
 
SECTION 19.   Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of each Loan Party, the Lenders, the Administrative Agent and their respective successors and permitted assigns, except that no Loan Party may assign or transfer any of its rights or obligations under this Amendment without the prior written consent of the Administrative Agent and each Lender.  Any purported assignment or transfer by a Loan Party in violation of the foregoing shall be null and void.
 
[signature pages follow]
 

 
 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
 

 
 
GRUBB & ELLIS MANAGEMENT SERVICES, INC., as Borrower
   
 
By:
  /s/ Michael Rispoli
     
Name:
  Michael Rispoli
     
Title:
  Chief Financial Officer
   
   
 
GRUBB & ELLIS COMPANY, as Parent Guarantor and as a Guarantor
   
 
By:
  /s/ Michael Rispoli
     
Name:
  Michael Rispoli
     
Title:
  Chief Financial Officer

[Amendment No. 2]

 
 

 

GUARANTORS:

 
GRUBB & ELLIS EQUITY ADVISORS, LLC, a Delaware limited liability company
 
 
By:
  /s/ Michael Rispoli
     
Name:
  Michael Rispoli
     
Title:
  Chief Financial Officer

 
 
GRUBB & ELLIS HEALTHCARE REIT II ADVISOR, LLC, a Delaware limited liability company
 
 
By:
  /s/ Michael Rispoli
     
Name:
  Michael Rispoli
     
Title:
  Chief Financial Officer
 
 
GRUBB & ELLIS LANDAUER VALUATION ADVISORY SERVICES, LLC, a Delaware limited liability company
 
 
By:
  /s/ Michael Rispoli
     
Name:
  Michael Rispoli
     
Title:
  Chief Financial Officer


[Amendment No. 2]

 
 

 

 
 
 
COLFIN GNE LOAN FUNDING, LLC,
as Administrative Agent and as a Lender
   
 
By:
  /s/ Mark M. Hedstrom
     
Name:
  Mark M. Hedstrom
     
Title:
  Vice President


[Amendment No. 2]

 
 

 



 
C-III INVESTMENTS LLC,
as a Lender
   
 
By:
  /s/ Jeffrey P. Cohen
     
Name:
  Jeffrey P. Cohen
     
Title:
  President


[Amendment No. 2]

 
 

 

SCHEDULE 1
NEW LENDERS


C-III INVESTMENTS LLC

 
 

 

SCHEDULE II
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES


Filing with the Securities and Exchange Commission, a Form D – Notice of Exempt Offering of Securities in respect of the Warrants.

Filing with the Securities and Exchange Commission a Registration Statement(s), pursuant to the terms of the Registration Rights Agreement by and between Grubbs & Ellis Company and the parties named therein, dated as of the Second Amendment Effective Date.

Filing with the New York Stock Exchange, a securities listing application with respect to the common stock issuable upon the exercise of the Second Amendment Effective Date Warrants.

 
 

 

EXHIBIT A

FORM OF AMENDED CREDIT AGREEMENT

[Provided under separate cover]

 
 

 

EXHIBIT B
 
FORM OF SECOND AMENDMENT EFFECTIVE DATE WARRANT
 
[Provided under separate cover]
 

 
 

 

EXHIBIT C
 
FORM OF AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
 
[Provided under separate cover]
 

EX-99.6 7 exhibita.htm EXHIBIT 99.6 -- EX A ? FORM OF AMENDED CREDIT AGREEMENT TO AMENDMENT NO. 2 TO CREDIT AGREEMENT exhibita.htm

Exhibit 99.6
 
EXECUTION VERSION
 
 
 



 
CREDIT AGREEMENT
 
among
 
GRUBB & ELLIS MANAGEMENT SERVICES, INC,
 
as Borrower,
 
GRUBB & ELLIS COMPANY,
 
as Parent Guarantor,
 
The Several Lenders from Time to Time Parties Hereto,
 
and
 
COLFIN GNE LOAN FUNDING, LLC,
as Administrative Agent,
 
Dated as of April 15, 2011
 
 
 

 
 

 

TABLE OF CONTENTS
 
Page
SECTION 1.
DEFINITIONS
1
     
1.1
Defined Terms
1
1.2
Other Definitional Provisions
20
     
SECTION 2.
AMOUNT AND TERMS OF COMMITMENTS AND LOANS
21
     
2.1
Commitments and Loans
21
2.2
Procedure for Borrowing
21
2.3
Repayment of Loans
22
2.4
Optional Prepayments
22
2.5
Mandatory Prepayments
22
2.6
Prepayment Premium
23
2.7
Interest Rates and Payment Dates
23
2.8
Computation of Interest and Fees
24
2.9
Pro Rata Treatment and Payments
24
2.10
Requirements of Law
25
2.11
Taxes
25
2.12
Change of Lending Office
28
2.13
Tax Treatment of Units
28
2.14
Replacement of Lenders
28
     
SECTION 3.
FEES
29
     
3.1
Closing Fee.
29
     
SECTION 4.
REPRESENTATIONS AND WARRANTIES
29
     
4.1
Financial Condition
29
4.2
No Change
29
4.3
Existence; Compliance with Law
29
4.4
Power; Authorization; Enforceable Obligations
29
4.5
No Legal Bar
30
4.6
Litigation
30
4.7
No Default
30
4.8
Ownership of Property; Liens
30
4.9
Intellectual Property
30
4.10
Taxes
30
4.11
Federal Regulations
31
4.12
Labor Matters
31
4.13
ERISA
31
4.14
Investment Company Act; Other Regulations
31
4.15
Subsidiaries
32
4.16
Use of Proceeds
32
4.17
Environmental Matters
32
4.18
Accuracy of Information, etc
33
4.19
Security Documents
33


 
i

 


4.20
Solvency
33
4.21
Regulation H
33
4.22
Accuracy of Borrowing Base
34
     
SECTION 5.
CONDITIONS PRECEDENT
34
     
5.1
Conditions to Initial Extension of Credit
34
5.2
Conditions to Each Loan (Other Than Any Additional Loan)
36
     
SECTION 6.
AFFIRMATIVE COVENANTS
37
     
6.1
Financial Statements
37
6.2
Certificates; Other Information
37
6.3
Payment of Obligations
39
6.4
Maintenance of Existence; Compliance
39
6.5
Maintenance of Property; Insurance
39
6.6
Inspection of Property; Books and Records; Discussions
40
6.7
Notices
40
6.8
Environmental Laws
41
6.9
Additional Collateral, etc
41
6.10
Cash Management.
42
6.11
Post-Closing.
42
6.12
Use of Proceeds of Additional Loans.
43
     
SECTION 7.
NEGATIVE COVENANTS
43
     
7.1
Financial Condition Covenants
43
7.2
Indebtedness
43
7.3
Liens
44
7.4
Fundamental Changes
45
7.5
Disposition of Property
46
7.6
Restricted Payments
47
7.7
Lines of Business.
48
7.8
Investments.
48
7.9
Clauses Restricting Subsidiary Distributions
50
7.10
Transactions with Affiliates
50
7.11
Sales and Leasebacks
50
7.12
Swap Agreements
50
7.13
Changes in Fiscal Periods
50
7.14
Negative Pledge Clauses
50
7.15
Capital Expenditures
51
7.16
Amendments or Waivers of Organizational Documents and other Indebtedness
51
7.17
Prepayments and Cancellations of Other Indebtedness
51
     
SECTION 8.
EVENTS OF DEFAULT
51
     
SECTION 9.
THE ADMINISTRATIVE AGENT
54
     
9.1
Appointment
54
9.2
Delegation of Duties
54


 
ii

 


9.3
Exculpatory Provisions
54
9.4
Reliance by Administrative Agent
54
9.5
Notice of Default
55
9.6
Non-Reliance on Administrative Agent and Other Lenders
55
9.7
Indemnification
55
9.8
Administrative Agent in Its Individual Capacity
56
9.9
Successor Administrative Agent
56
     
SECTION 10.
MISCELLANEOUS
56
     
10.1
Amendments and Waivers
57
10.2
Notices
57
10.3
No Waiver; Cumulative Remedies
58
10.4
Survival of Representations and Warranties
58
10.5
Payment of Expenses and Taxes
58
10.6
Successors and Assigns; Participations and Assignments
59
10.7
Adjustments; Set-off
61
10.8
Counterparts
62
10.9
Severability
62
10.10
Integration
62
10.11
GOVERNING LAW
62
10.12
Submission To Jurisdiction; Waivers
62
10.13
Acknowledgements
63
10.14
Releases of Guarantees and Liens
63
10.15
Confidentiality
63
10.16
WAIVERS OF JURY TRIAL
64
10.17
USA Patriot Act
64

 
iii

 

SCHEDULES:
 
1.1
Commitments
2.13
Allocations
4.4
Consents, Authorizations, Filings and Notices
4.6
Litigation
4.15
Subsidiaries
4.19
UCC Filing Jurisdictions
6.11
Post-Closing Requirements
7.2(g)
Existing Indebtedness
7.3(d)
Existing Liens
7.5(j)
Existing Joint Ventures
7.8(d)
Existing Investments


EXHIBITS:
 
A
Form of Guarantee and Collateral Agreement
B
Form of Compliance Certificate
C
Form of Closing Certificate
D
Form of Solvency Certificate
E
Form of Assignment and Assumption
F
Form of U.S. Tax Certificate
G
Form of Borrowing Base Certificate
H
Form of Additional Warrants


 
iv

 

CREDIT AGREEMENT (this “Agreement”), dated as of April 15, 2011, among GRUBB & ELLIS MANAGEMENT SERVICES, INC., a Delaware corporation (the “Borrower”), GRUBB & ELLIS COMPANY, a Delaware corporation (the “Parent Guarantor”), the lenders from time to time parties to this Agreement (the “Lenders”), and COLFIN GNE LOAN FUNDING, LLC, as administrative agent.
 
The parties hereto hereby agree as follows:
 
SECTION 1.  DEFINITIONS
 
1.1        Defined Terms.  As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
 
Additional Loans”:  as defined in Section 2.1.
 
Additional Warrants”:  as defined in Section 2.7(d).
 
Administrative Agent”:  ColFin GNE Loan Funding, LLC, together with its affiliates, as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors.
 
Affiliate”:  as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
 
Aggregate Exposure”:  with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate then unpaid principal amount of such Lender’s Loans and (b) the amount of such Lender’s Commitment then in effect.
 
Aggregate Exposure Percentage”:  with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.
 
Agreement”:  as defined in the preamble hereto.
 
Asset Sale”:  any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by clause (a), (b), (c), (e), (f), (g) or (i) of Section 7.5 or, solely to the extent the net cash proceeds of such Disposition are deposited by the applicable Group Member in a deposit account subject to a perfected Lien pursuant to a control agreement in favor of the Administrative Agent in form and substance satisfactory to Administrative Agent, clause (h) of Section 7.5) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $25,000.
 
Assignee”:  as defined in Section 10.6(b).
 
Assignment and Assumption”:  an Assignment and Assumption, substantially in the form of Exhibit E.
 

 
 

 

Attributable Indebtedness”:   on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
 
Benefitted Lender”:  as defined in Section 10.7(a).
 
Board”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).
 
Borrower”:  as defined in the preamble hereto.
 
Borrowing Base”:  at any time, an amount equal to (a) 1.56 times (b) the sum of (i) 100% of the Eligible Receivables at such time, minus (ii) Reserves.  The Administrative Agent may, in its Permitted Discretion, reduce the advance rate set forth above, adjust Reserves or reduce one or more of the other elements used in computing the Borrowing Base.
 
Borrowing Base Certificate”:  a certificate, signed and certified as accurate and complete by the chief financial officer of the Borrower and the Parent Guarantor, in substantially the form of Exhibit G.
 
Borrowing Date”:  any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder. There shall not be more than three Borrowing Dates (excluding any such date in respect of any Additional Loans).
 
Business”:  as defined in Section 4.17(b).
 
Business Day”:  a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.
 
Capitalized Lease Obligations”: as to any Person, all obligations under Capitalized Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
 
Capitalized Leases”:  as to any Person, all leases of property that are required to be, in accordance with GAAP, recorded as capitalized leases on the balance sheet (excluding the footnotes thereto) of such Person, provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP.
 
Capital Expenditures” shall mean expenditures made or liabilities incurred for the acquisition of any fixed assets or improvements, replacements, substitutions or additions thereto which have a useful life of more than one year, including the total principal portion of Capitalized Lease Obligations, which, in accordance with GAAP, would be classified as capital expenditures.
 
 “Capital Stock”:  any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
 
Cash Management Accounts”: as defined in Section 6.10.
 

 
2

 

Cash Management Account Bank”: as defined in Section 6.10.
 
Certificate of Designations”: the Parent Guarantor’s Certificate of Powers, Designations, Preferences and Rights of the 12% Cumulative Participating Perpetual Convertible Preferred Stock, as in effect on the Closing D