EXHIBIT 4.29
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
GRUBB & ELLIS COMPANY
AMENDED AND RESTATED
10.65% SUBORDINATED PAYMENT-IN-KIND NOTE
DUE NOVEMBER 1, 2001
No. AP-1 Amended and Restated as of
$10,900,834.33 November 1, 1994
FOR VALUE RECEIVED, the undersigned, Grubb & Ellis Company, a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), hereby promises to pay to THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA (the "Holder"), or registered assigns, the principal sum of TEN MILLION,
NINE HUNDRED THOUSAND, EIGHT HUNDRED AND THIRTY-FOUR DOLLARS AND THIRTY-THREE
CENTS ($10,900,834.33) (subject to prepayments pursuant to the terms of the
Agreement (as defined below)) on November 1, 2001, with interest (computed on
the basis of a 360-day year -- 30-day month) on the unpaid balance thereof at
the then applicable PIK Rate from November 1, 1994 (as defined below), payable
semiannually on the first day of February and August in each year, commencing on
February 1, 1995, until the principal hereof shall have become due and payable,
provided that the unpaid balance of any principal and, to the extent permitted
by law, interest which shall have become due and payable shall bear interest
until paid at 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. For
the purposes of this Note, the PIK Rate shall mean a per annum interest rate
equal to (i) 10.65% until December 31, 1995 and (ii) 11.65% thereafter.
Subject to the provisions of the Agreement (as defined below), the
Company may, in its discretion, issue additional PIK Notes (as defined in the
Agreement) in lieu of a cash payment of any or all of the interest due on this
Note at any time prior to the retirement of all of the Company's Amended and
Restated 9.90% Senior Notes due November 1, 1998 issued pursuant to the
Agreement. Each issuance of additional PIK Notes in lieu of cash payments of
interest on the PIK Notes shall be made pro rata with
respect to the outstanding Notes prior to such issuance. Any such additional
PIK Notes shall be governed by and subject to the Agreement (as defined below)
and shall be subject to the same terms (including the rate of interest from time
to time payable thereon) as this Note (except, as the case may be, with respect
to the issuance date and aggregate principal amount).
Payments of both principal and interest are to be made at the main
office of Morgan Guaranty Trust Company of New York in New York City, or such
other place as the holder hereof shall designate to the Company in writing, in
lawful money of the United States of America.
This Note is one of a series of PIK Notes (the "Notes") issued
pursuant to a Senior Note, Subordinated Note and Revolving Credit Note Agreement
dated as of November 2, 1992 (as amended from time to time, herein called the
"Agreement") between the Company and The Prudential Insurance Company of
America, and is subject thereto and entitled to the benefits thereof. As
provided in the Agreement, this Note is subject to prepayment, in whole or in
part, as specified in the Agreement. The Company agrees to make prepayments of
principal on the dates and in the amounts specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or his attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company
shall not be affected by any notice to the contrary.
In case an Event of Default, as defined in the Agreement, shall occur
and be continuing, the principal of this Note may be declared due and payable in
the manner and with the effect provided in the Agreement.
The principal of and premium (if any) and interest on this Note is
subordinate and junior, to the extent set forth in the Agreement, to "the Senior
Debt" as defined in the Agreement.
This Note is intended to be performed in the State of New York, and
shall be construed and enforced in accordance with the law of such State.
The Company agrees in accordance with the Agreement to pay, and save
the holder hereof harmless against any liability for,
-2-
any expenses arising in connection with the enforcement by the holder hereof of
any of its rights under this Note or the Agreement.
This Note amends and restates in its entirety those certain 10.65%
Subordinated Payment-In-Kind Notes Due November 1, 1999 issued or to have been
issued by the Company to the Holder, and is made in substitution and not in
payment thereof. This Note is not intended as and shall not be deemed to
constitute a novation.
GRUBB & ELLIS COMPANY
By: /s/ Robert J. Hanlon, Jr.
-----------------------------
Name: Robert J. Hanlon, Jr.
Title: Senior Vice President and
Chief Financial Officer
-3-