Exhibit 10.2
July 20, 1994
Grubb & Ellis Company
One Montgomery Street
Telesis Tower
San Francisco, California 94104
Attention: Robert J. Hanlon, Jr.
Chief Financial Officer
Ladies and Gentlemen:
Reference is made to the Senior Notes, the Subordinated Notes and the
Revolving Credit Note Agreement among Grubb & Ellis Company (the "Company") and
The Prudential Insurance Company of America ("Prudential"), dated as of November
2, 1992 (as amended from time to time, the "Agreement"), pursuant to which
Prudential (i) purchased an aggregate of $10,000,000 in principal amount of the
Company's 9.90% Senior Notes due November 1, 1996 (the "Senior Notes") and an
aggregate of $10,000,000 in principal amount of the Company's 10.65%
Subordinated Payment-in-Kind Notes due November 1, 1999 (the "PIK Notes") and
(ii) agreed to make revolving credit loans to the Company in the aggregate
principal amount of $5,000,000. Capitalized terms used herein and not defined
shall have the meanings given such terms in the Agreement.
RECITALS
A. The Company has informed Prudential that the Company believes it will
need additional working capital to fulfill its financial plans.
B. On March 28, 1994, the Company, Prudential and Warburg, Pincus
Investors, L.P. ("Warburg") reached agreement (the "Preliminary Agreement") upon
the terms of a proposed financing transaction to provide the Company with
additional working capital, including (i) a bridge loan facility (the "Warburg
Bridge Loan") provided by Warburg, (ii) a rights offering (the "Rights
Offering") of Company Common Stock, and (iii) modification to the Agreement.
Robert J. Hanlon, Jr.
July 20, 1994
Page 2
C. On March 28, 1994, Warburg and the Company entered into that certain
Loan and Security Agreement (the "Warburg Loan Agreement") regarding the Warburg
Bridge Loan, pursuant to which Warburg made available to the Company a revolving
credit facility of up to $10 million.
D. In addition, as contemplated by the Preliminary Agreement and at the
request of the Company, Prudential, by letter dated March 28, 1994, granted the
Company certain waivers with respect to certain covenants contained in the
Agreement and made certain other modifications thereof.
E. The Company intends to commence the Rights Offering pursuant to which
it intends to raise not less than $10 million of equity capital. The proceeds
from the Rights Offering will be used, in part, to repay, in full, all of the
Company's indebtedness to Warburg pursuant to the Warburg Loan Agreement.
F. By the terms of the Preliminary Agreement, and in connection with the
consummation of the Rights Offering, Prudential has agreed, among other things,
to provide the Company with additional financing through the lengthening of the
amortization periods with respect to the Company's indebtedness to Prudential as
well as making certain other modifications to the Agreement.
G. In consideration for Prudential's agreeing to make the foregoing
accommodations, the Company has agreed to certain other provisions set forth
herein.
NOW THEREFORE, in consideration of the terms and conditions contained
herein, the Company and Prudential agree as follows:
1. Paragraph 1 of the Agreement is hereby amended as follows:
(a) In subparagraph (a) deleting the date "November 1, 1996" and replacing
it with the date "November 1, 1998";
(b) In subparagraph (b) deleting the phrase "payable at the rate of
10.65%" and replacing it with the phrase "payable at the then applicable
PIK Rate"; and
(c) In subparagraph (b) deleting the date "November 1, 1999" and replacing
it with the date "November 1, 2001".
Robert J. Hanlon, Jr.
July 20, 1994
Page 3
2. Paragraph 2B.9 of the Agreement is hereby deleted in its entirety and
all references to Converted Revolving Notes throughout the Agreement are hereby
deleted.
3. Paragraph 4A of the Agreement is hereby amended and restated in its
entirety as follows:
"4A. REQUIRED PREPAYMENTS OF THE SENIOR NOTES. The Company shall
prepay the Senior Notes, without premium, in the amount of $5,000,000
on November 1, 1997, together with interest thereon to such prepayment
date. The remaining outstanding principal amount of the Senior Notes,
together with interest accrued thereon, is due and payable on November
1, 1998."
5. Paragraph 4B of the Agreement is hereby amended and restated in its
entirety as follows:
"4B. REQUIRED PREPAYMENTS OF PIK NOTES. The Company shall prepay the
PIK Notes, without premium, in the amount equal to 50% of the
aggregate principal amount of all outstanding PIK Notes as of the date
that that certain amendment letter dated July 20, 1994 by and between
Prudential and the Company becomes effective (in accordance with
Section 22 thereof) on November 1, 2000, together with interest
thereon to such prepayment date. The remaining outstanding principal
amount of the PIK Notes, together with interest accrued thereon, is
due and payable on November 1, 2001."
6. Paragraph 4C of the Agreement is hereby deleted in its entirety, and
the following shall be substituted therefor:
"4C. REQUIRED PREPAYMENT FROM EXCESS CASH FLOW. On July 1, 1998 and
on each July 1 and October 1 thereafter, the Company shall apply
thirty-seven and one-half percent (37.5%) of its positive Excess Cash
Flow, if any, from the preceding fiscal year to prepay the principal
amount of the PIK Notes, plus accrued interest to the date of
prepayment on the amount of the PIK Notes so prepaid, or, if all of
the PIK Notes have been repaid, to prepay the principal amount of the
Senior Notes, plus accrued interest to date of prepayment on the
amount of the Senior Notes so prepaid. Any such prepayments with
respect to the PIK Notes and/or Senior Notes shall be applied first to
accrued and unpaid interest thereon, and then in
Robert J. Hanlon, Jr.
July 20, 1994
Page 4
satisfaction of required payments of principal in inverse order of their
scheduled due dates."
7. Paragraph 4I of the Agreement is hereby deleted in its entirety.
8. Paragraph 5A of the Agreement is hereby amended by deleting the "and"
at the conclusion of subparagraph (vi) thereof, renumbering subparagraph (vii)
as subparagraph (viii) and inserting the following as a new subparagraph (vii):
"(vii) as soon as practicable and in any event within 90 days after
the end of each fiscal year, a schedule of all outstanding Guarantees
issued on behalf of salespersons of the Company or any Restricted
Subsidiary and all outstanding loans and outstanding advances made to
such Persons pursuant to the Commission Advance Program during such
fiscal year, which schedule shall specify (a) the outstanding amount
of each such Guarantee and advance, (b) the employee on whose behalf
such Guarantee, or to whom such advance, was made, (c) whether such
outstanding amount represents an outstanding Guarantee or an
outstanding advance and (d) the date such Guarantee or advance was
initially made; and"
9. Paragraph 6A of the Agreement is hereby amended and restated, in its
entirety, as follows:
"6A. WORKING CAPITAL RATIO. The Company covenants that on and
after April 1, 1997 it will not permit the ratio of Consolidated
Current Assets to Consolidated Current Liabilities (excluding the
current portion of Funded Debt) to be less than 1:1 at the end of any
fiscal quarter."
10. Paragraph 6C.2 of the Agreement is hereby amended as follows:
(a) By deleting Subparagraph 6C.2(ii) in its entirety, and inserting in
substitution therefor, the following:
"(ii) [Intentionally Omitted];";
(b) By deleting Subparagraph 6C.2(v) in its entirety and inserting in
substitution therefor, the following:
Robert J. Hanlon, Jr.
July 20, 1994
Page 5
"(v) additional Indebtedness consisting of nonrecourse Debt incurred
by newly created or newly acquired Restricted Subsidiaries not to
exceed $15,000,000 in the aggregate with respect to all such
additional Indebtedness plus any such additional nonrecourse Debt
incurred with respect to 222 Sutter Street Partners, Ltd.;";
(c) By deleting Subparagraph 6C.2(vi) in its entirety, and inserting in
substitution therefor, the following:
"(vi) guarantees of loans and advances made to salespersons of the
Company or any Restricted Subsidiary pursuant to the Commission
Advance Program provided that after giving effect thereto the
aggregate amount of such guarantees plus the aggregate amount of loans
and advances permitted pursuant to Subparagraph 6C.3(vi) shall not
exceed $5,000,000 outstanding at any one time;"; and
(d) By deleting Subparagraph 6C.2 (vii) in its entirety, and inserting in
substitution therefor, the following:
"(vii) Indebtedness incurred in connection with the refinancing of
the Revolving Loans in an amount not in excess of the aggregate
outstanding principal amount of Revolving Loans as of the date of such
refinancing; and".
11. Subparagraph 6C.3(vi) is hereby amended and restated in its entirety
as follows:
"(vi) make loans or other advances under the Commission Advance
Program to, or on account of errors and omissions insurance premium
payments for, salespersons associated with the Company or any
Restricted Subsidiary provided that the aggregate principal amount of
all such loans or advances plus the aggregate amount of all guarantees
permitted pursuant to Subparagraph 6C.2(vi) shall not exceed
$5,000,000 outstanding at any one time.
12. The parties hereto acknowledge the following amendment and restatement
of Paragraph 6C.6, which was effected pursuant to that certain letter agreement
dated as of March 28, 1994 by and between Prudential and the Company:
Robert J. Hanlon, Jr.
July 20, 1994
Page 6
"6C.6 SALE OF ASSETS - Transfer, sell or otherwise dispose of
assets of the Company (including, without limitation, capital stock of or
Indebtedness owned by a Restricted Subsidiary to the Company or another
Restricted Subsidiary) other than (i) assets transferred, sold or otherwise
disposed of in the ordinary course of business, including any assets which
are obsolete or worn out or which are replaced within three months of sale
by assets of at least the equivalent market value, (ii) equipment being
sold, leased, transferred or otherwise disposed of which the Company
determines is no longer required by it in conducting its business so long
as replacements are obtained for such equipment within three months of at
least the equivalent market value, (iii) assets (other than those described
in clauses (i) or (ii)) having a fair market value of up to $5,000,000 in
the aggregate and (iv) assets (other than those described in clauses (i) or
(ii)) having a fair market value above $5,000,000 in the aggregate so long
as the Company prepays its obligations hereunder and under the Notes
pursuant to Paragraph 4D, except that any Restricted Subsidiary may at any
time transfer assets to a wholly owned Restricted Subsidiary of the
Company; PROVIDED, HOWEVER, that (A) no assets may be disposed of pursuant
to clause (iv) at a time when an Event of Default has occurred and is
continuing and (B) in no event shall the Company permit the sale of its
name, its trademark, its logo or any other significant intangible assets,
except in connection with a permitted sale of a Subsidiary or division;"
13. Paragraph 6D of the Agreement is hereby deleted in its entirety and
the following is hereby substituted therefor:
"6D. INTEREST COVERAGE RATIO. As of April 1, 1997 and each July 1,
October 1, January 1 and April 1 thereafter, the Company will not permit
its Interest Coverage Ratio to be less than 2.0 to 1.
14. Paragraph 6E of the Agreement is hereby amended and restated in its
entirety as follows:
"6E. CAPITAL EXPENDITURES. The Company will not, in any fiscal
year commencing on or after January 1, 1997, permit the sum of (i) its
and its Restricted Subsidiaries' Capital Expenditures and (ii) the
cost of all acquisitions of assets or stock of other Persons to exceed
a cumulative amount equal to the sum of (a) $5,000,000, (b) an amount
equal to 25% of the Company's positive Excess Cash Flow, if any, for
the preceding
Robert J. Hanlon, Jr.
July 20, 1994
Page 7
fiscal year and (c) the Net Proceeds received in cash during such fiscal
year from the sale by the Company of, or exercise of any warrant or option
for, any stock in the Company."
15. Paragraph 6G of the Agreement is hereby amended and restated in its
entirety as follows:
"6G. CLEAN DOWN REQUIREMENT. In each fiscal year commencing on or
after January 1, 1997 the Company will not permit to be outstanding any
Revolving Loans or fees with respect thereto or interest thereon during one
sixty consecutive day period."
16. Paragraph 6H of the Agreement is hereby amended and restated in its
entirety as follows:
"6H. AXIOM. The Company will not permit Axiom to take, or
contract to take, any action, which would result in a violation of any
covenant, representation or warranty or other provision of this
Agreement were Axiom a Restricted Subsidiary except for any such
contracts or actions permitted or contemplated by the Axiom joint
venture agreement, as in effect on the date hereof.
17. Paragraph 11A of the Agreement is hereby amended by the addition of
the following definitions in the appropriate alphabetic location:
"'COMMISSION ADVANCE PROGRAM' shall mean any program pursuant to which the
Company or any Restricted Subsidiary may make advances to their sales
agents against future real estate commissions to be earned by such sales
agents.
'Consolidated Cash Interest Expenses' shall mean, when used with respect to
the Company for any period, the Total Interest Expense which is paid or due
and payable by the Company and its Restricted Subsidiaries during such
period, excluding any interest paid or due and payable in stock or any debt
or equity securities of the Company or any of its Subsidiaries.
'CONSOLIDATED CASH TAX PAYMENTS' shall mean, when used with respect to the
Company for any period, the sum of all taxes (of whatever kind and nature)
paid or due and payable by the Company and its Restricted Subsidiaries
during such period.
Robert J. Hanlon, Jr.
July 20, 1994
Page 8
'EXCESS CASH FLOW' shall mean, when used with respect to the Company
for any fiscal year, an amount equal to the positive difference
between (x) EBITDA for such fiscal year and (y) the sum of (i)
$5,000,000, (ii) Consolidated Cash Interest Payments for such fiscal
year, (iii) Consolidated Cash Tax Payments for such fiscal year, (iv)
Axiom pre-tax earnings for such fiscal year net of any debt repayments
to the Company from Axiom in such fiscal year, and (v) any payments
made pursuant to Paragraphs 4A, 4B, 4C, 4D or 4E hereof in such fiscal
year, all as determined in reliance upon the annual audited financial
statements for such fiscal year delivered to the Holders of Notes
pursuant to Paragraph 5A hereof on the March 31 next succeeding the
last day of such fiscal year.
'INTEREST COVERAGE RATIO' shall mean, as of any date, the ratio of (i)
EBITDA for the immediately preceding twelve month period to (ii) Total
Interest Expense for such period.
'PIK RATE' shall mean a per annum rate of interest equal to (i) 10.65% from
the date hereof until December 31, 1995, and (ii) 11.65% thereafter."
18. The definitions of "SENIOR DEBT", "TERMINATION DATE" and "TOTAL
INTEREST EXPENSE" in paragraph 11A of the Agreement are hereby amended and
restated in their entirety as follows:
"'SENIOR DEBT' means Indebtedness owed by the Company under the Senior
Notes and the Revolving Notes and any permitted refinancing of any
such Notes.
'TERMINATION DATE' shall mean November 1, 1999."
'TOTAL INTEREST EXPENSE' shall mean, for any period, total interest expense
(including that attributable to capital leases in accordance with GAAP) of
the Company and its Restricted Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of the Company and its Restricted
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit, but
excluding the amortization of original issued discount and capitalized debt
issuance expenses."
19. In consideration for Prudential's willingness to extend additional
credit to the Company, to waive the Events of Default that would be caused by
certain actions the Company has expressed
Robert J. Hanlon, Jr.
July 20, 1994
Page 9
an interest in taking and to amend the Agreement, the Company hereby agrees as
follows:
(a) The first paragraph of each of the outstanding PIK Notes shall be
amended and restated such that (x) the interest rate on such Notes
(the "PIK Rate") shall equal 10.65% until December 31, 1995 and 11.65%
thereafter and (y) the interest rate payable on principal and, to the
extent permitted by law, interest which has become due and owing shall
equal the greater of (i) 2% over the then applicable PIK Rate and (ii)
2% over the rate of interest publicly announced by Morgan Guaranty
Trust Company of New York from time to time in New York City as its
prime rate; and the Company will deliver to each of the Holders of PIK
Notes Amended and Restated PIK Notes (the "Amended PIK Notes")
substantially in the form attached hereto as Exhibit A;
(b) That certain Stock Subscription Warrant (the "Old Warrant") issued by
the Company to Prudential on January 29, 1993 shall be amended and
restated in the form attached hereto as Exhibit B (the "Amended Old
Warrant"), such amendment to:
(i) decrease the per share exercise price from $5.50 to $3.50;
(ii) eliminate certain of the antidilution provisions therein; and
(iii) extend the period during which the Old Warrant is exercisable
until December 31, 1998.
(c) The Company shall issue to Prudential a warrant (the "New Warrant"),
in the form attached hereto as Exhibit C, to purchase 150,000 shares
(subject to adjustment) of the Company's common stock at $2.375 per
share (subject to adjustment), which warrant shall be exercisable on
the date of issuance and for the five year period thereafter.
20. (a) The Company hereby acknowledges and agrees that it does not
currently have any claims of any kind, causes of action, suits, debts, damages,
judgments or liabilities whatsoever, whether known or unknown, liquidated or
unliquidated, contingent or otherwise, at law or in equity (collectively,
"Claims"), against Prudential, its directors, officers, employees, agents,
successors and assigns (collectively, the "Prudential Parties"),
Robert J. Hanlon, Jr.
July 20, 1994
Page 10
by reason of any act, cause, document, matter or thing whatsoever up to and
including the date hereof, related (i) to the borrower lender-relationship
created pursuant to the Agreement, the related documents or any prior agreements
relating to the Debt of the Company to Prudential and/or (ii) to Prudential's
ownership of stock in the Company or exercise of its rights as a stockholder
pursuant to the Stockholders' Agreement or otherwise and/or the Prudential Stock
Purchase Agreement, including, without limitation, any Claims based upon any
theory of equitable subordination or lender liability. To the extent that any
Claims referred to in the preceding sentence do exist, and as additional
consideration for Prudential's willingness to extend additional credit to the
Company and to amend the Agreement, the Company hereby releases and forever
discharges the Prudential Parties from, and unconditionally covenants not to sue
the Prudential Parties for, such Claims. The Company acknowledges that this is
intended to be a general release, that it has been represented by independent
counsel of its own choice and it has made this acknowledgement and executed this
release with the consent and upon the advice of its counsel.
(b) Prudential hereby acknowledges and agrees that, other than (i) its
right to repayment of principal and payments of interest with respect to the
Notes and the other obligations of the Company pursuant to the Agreement and
hereunder (including, without limitation, its obligations to pay the costs and
expenses referred to in paragraph 22(i) hereof) and (ii) contractual obligations
and obligations pursuant to the Company's Certificate of Incorporation with
respect to the Prudential Preferred Stock and the Old Warrants contemplated by
the Prudential Stock Purchase Agreement, the Company's Certificate of
Incorporation, the Stockholders' Agreement or the Old Warrants, it does not
currently have any Claims, against the Company, its directors, officers,
employees, agents, successors and assigns (collectively, the "Company Parties"),
by reason of any act, cause, document, matter or thing whatsoever up to and
including the date hereof, related (x) to the borrower lender-relationship
created pursuant to the Agreement, the related documents or any prior agreements
relating to the Debt of the Company to Prudential and/or (y) to Prudential's
ownership of stock in the Company or exercise of its rights as a stockholder
pursuant to the Stockholders' Agreement or otherwise and/or the Prudential Stock
Purchase Agreement. To the extent that any Claims referred to in the preceding
sentence do exist, and as additional consideration for the Company's willingness
to amend the Agreement, the Prudential hereby releases and forever discharges
the Company Parties from, and unconditionally covenants not to sue the Company
Parties for, such Claims, including, without
Robert J. Hanlon, Jr.
July 20, 1994
Page 11
limitations, any claims pursuant to any federal or state securities laws;
PROVIDED, HOWEVER, that nothing herein shall be deemed to release or discharge
any of the Company Parties from, or to grant a covenant not to sue any Company
Parties with respect to, any Claim arising from a breach of any representation,
warranty or covenant of the Company contained in the Agreement, the Prudential
Securities Purchase Agreement or any other contract, agreement or document, of
which Prudential, as of the date hereof, does not have actual knowledge;
FURTHER, PROVIDED, that Prudential hereby represents that it is not aware of any
facts which would constitute any such breach which upon the effectiveness of
this agreement (in accordance with Section 22 hereof) will continue to exist,
although nothing in this clause shall in any way abrogate the effect of the
immediately prior clause. Prudential acknowledges that it has been represented
by independent counsel of its own choice and it has made this acknowledgement
and executed this release with the consent and upon the advice of its counsel.
21. Prudential hereby acknowledges and agrees that nothing herein or in
the Agreement shall require the proceeds from the Rights Offering or any other
public offering of any shares of the Company's stock to be applied to repay the
Company's obligations pursuant to the Agreement and the Notes, PROVIDED,
HOWEVER, that this Paragraph 21 shall (i) in no way relieve the Company from any
of such repayment obligations in accordance with the terms of the Agreement and
the Notes, or (ii) in any manner limit the recourse of a holder of any of the
Notes to any of the Company's property, assets or funds.
22. The provisions of this agreement, including without limitation the
amendments to the Agreement, shall not be effective until the following
conditions have been completed to the satisfaction of Prudential and its
counsel:
(a) The Company shall have executed and delivered to Prudential the New
Warrant
(b) The Company shall have executed and delivered to Prudential the
Amended Old Warrant, upon which delivery Prudential agrees to return
to the Company the Old Warrant.
(c) The Company shall have executed and delivered to each Holder of PIK
Notes an Amended PIK Note, as described above in paragraph 17 of this
agreement, upon which delivery Prudential, on behalf of such Holders,
agrees to return to the Company the original PIK Notes.
Robert J. Hanlon, Jr.
July 20, 1994
Page 12
(d) The Company shall have executed and delivered to each Holder of Senior
Notes an Amended and Restated Senior Note in the form of Exhibit D
hereto, upon which delivery Prudential, on behalf of such Holders,
agrees to return to the Company the original Senior Notes.
(e) The Company shall have executed and delivered to Prudential an Amended
and Restated Revolving Credit Note in the form of Exhibit E hereto,
upon which delivery Prudential agrees to return to the Company the
original Revolving Credit Note.
(f) All conditions precedent to the consummation of the Rights Offering
shall have been satisfied or waived and Prudential shall have received
evidence that (i) the Board of Directors has duly approved the
Company's entry into and consummation of the transactions contemplated
by the Rights Offering Documents, (ii) the holders of the requisite
majorities of each class of the capital stock of the Company entitled
to vote have duly consented to the Rights Offering according to the
terms of the Rights Offering Documents, and (iii) any necessary
filings and other acts required to consummate the Rights Offering or
to comply with applicable laws and regulations have been duly
completed. For the purposes of this letter agreement, the term
"Rights Offering Documents" shall mean (i) that certain Registration
Statement under the Securities Act on Form S-3 filed by the Company
with respect to the shares of Common Stock, including all exhibits,
schedules and amendments thereto and (ii) that certain Standby
Agreement by and between Warburg and the Company.
(g) Prudential shall have received copies of the certificate of
incorporation, including all amendments thereto, of the Company
certified by the Secretary of State of Delaware as being in full force
and effect on a recent date prior to the date hereof, together with
the by-laws of the Company, including all amendments thereto,
certified by the Secretary or Assistant Secretary of the Company.
(h) Prudential shall have received a copy of each of the Rights Offering
Documents, certified as a true and correct copy thereof by officers of
the parties thereto, certified copies of all certificates and other
documents delivered in connection with the Rights
Robert J. Hanlon, Jr.
July 20, 1994
Page 13
Offering and copies of all opinions delivered in connection with the
Rights Offering.
(i) The Company shall have reimbursed Prudential for its costs and
expenses, including but not limited to reasonable attorneys' fees,
incurred in the preparation and negotiation of this agreement and the
related documents.
(j) The Company shall have delivered to Prudential certificates of
incumbency and corporate resolutions authorizing the execution,
delivery and performance of this agreement, the New Warrant, the
Amended Old Warrant, the New Notes and all other documents
contemplated hereby and thereby, together with a favorable opinion of
counsel, all in form and substance satisfactory to Prudential and its
counsel.
(k) The Company and Prudential shall agree, in writing, as to the
outstanding principal and accrued and unpaid interest on the Notes as
of the date on which this agreement becomes effective in accordance
with the terms of this Section 22.
23. This amendment shall be effective only to the extent specifically set
forth herein. The Company agrees that the execution by Prudential of this
agreement does not constitute "a course of dealing" in contravention of
Prudential's rights under the Agreement, the Senior Notes, the PIK Notes, the
Revolving Notes, the Old Warrant and other related documents. Except as
expressly provided herein or in the documents contemplated hereby, the
Agreement, the Senior Notes, the PIK Notes, the Revolving Notes, the Old Warrant
and other related documents are neither altered nor amended, and all the terms
and conditions of the Agreement, the Senior Notes, the PIK Notes, the Revolving
Notes, the Old Warrant and other related documents remain in full force and
effect. This amendment will supersede, replace and terminate (i) all provisions
of the Preliminary Agreement regarding the amendment of the Agreement, the Notes
and the Old Warrant and (ii) any and all other prior agreements regarding any
such amendments, and hereafter neither the Company nor Prudential shall have any
liability under such provisions of the Preliminary Agreement or any such other
agreements; PROVIDED, HOWEVER, that nothing herein shall supersede, replace or
terminate any provisions of the Preliminary Agreement relating to (i)
Prudential's ownership of preferred or common stock in the Company, (ii) the
provisions of the Stockholders' Agreement or (iii) any provision in Exhibit A
thereto under the headings
Robert J. Hanlon, Jr.
July 20, 1994
Page 14
"Bridge Financing" and "Rights Offering and Subscription Warrant Conversion."
24. This amendment may be executed in several counterparts, each of which
shall be deemed to be an original but all of which shall constitute one and the
same agreement.
Robert J. Hanlon, Jr.
July 20, 1994
Page 15
If you are in agreement with the foregoing, please sign the enclosed
duplicate of this letter where indicated below and return the same to Mr. John
Mullman of Prudential.
Very truly yours,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
-----------------------------
Title:
Agreed and accepted as of
the date first above written:
GRUBB & ELLIS COMPANY
By:
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Title: