Exhibit 10.5
TRADEMARK SECURITY AGREEMENT
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
acknowledged, the undersigned GRUBB & ELLIS COMPANY ("Debtor"), a Delaware
corporation, hereby conveys a security interest to PNC BANK, NATIONAL
ASSOCIATION ("Lender"), a national banking association, its successors and
assigns, all of the Debtor's right, title and interest in and to (i) the
trademarks and any applications therefor listed on EXHIBIT A hereto and (ii)
any United States federally registered other trademarks and applications
therefor which Debtor shall hereafter acquire, in each case including without
limitation all proceeds thereof, (all of the aforesaid property being
hereinafter referred to as the "Collateral") as security for the payment when
due whether by declaration, acceleration or otherwise of the principal of and
interest on each and every loan of Lender to the Debtor and each and every
other liability of Debtor to Lender, including (i) all "Obligations", as such
term is defined in the Credit Agreement of even date herewith among, inter
alia, the Debtor and the Lender, as the same may be amended and modified from
time to time (the "Credit Agreement"), (ii) liabilities now in existence,
(iii) liabilities incurred or arising contemporaneously herewith, and (iv)
liabilities that shall hereafter be incurred or arise (collectively, the
"Liabilities"). Capitalized terms not otherwise defined herein shall have
the meanings given to them in the Credit Agreement unless the context clearly
indicates otherwise.
1. Debtor covenants and warrants that as of the date hereof and to the
best of its knowledge:
(a) Each of the trademarks constituting a part of the Collateral is
subsisting and has not been adjudged invalid or unenforceable;
(b) All of the trademarks constituting a part of the Collateral are
valid and enforceable;
(c) No claim has been made that the use of any of the trademarks
constituting a part of the Collateral does or may violate the rights of any
third person;
(d) With the exception of licenses of the Collateral, the Debtor is
the sole and exclusive owner of the entire and unencumbered right, title and
interest in and to all of the trademarks constituting a part of the
Collateral, free and clear of any liens, charges and encumbrances other than
Permitted Liens (as defined in the Credit Agreement);
(e) Debtor has the unqualified right to enter into this Agreement
and perform its terms;
(f) Debtor has used, and shall continue to use for the duration of
this Agreement, consistent standards of quality in its services sold under
any trademarks constituting part of the Collateral.
2. Debtor agrees that, until such time as all of the Liabilities shall
have been satisfied in full, it shall not enter into any agreement which is
inconsistent with Debtor's obligations under this Agreement, without Lender's
prior written consent;.
3. If, during the term of this Agreement, Debtor shall at any time or
from time to time acquire any additional material United States federally
registered trademarks and/or applications therefor not then listed on Exhibit
A, the Debtor shall give to Lender prompt notice thereof in writing and the
provisions hereof shall automatically apply thereto.
4. In any case mentioned in Section 3 hereof, Debtor authorizes Lender
to modify this Agreement by amending Exhibit A to include any material United
States federally registered trademarks and/or applications therefor so
acquired by Debtor.
5. In addition to the rights and remedies available to Lender
hereunder, Lender shall have such rights and remedies as are set forth in the
Credit Agreement. At such time as Debtor shall have satisfied in full all of
the Liabilities and the Commitment is terminated, this Agreement shall
terminate and Lender shall execute and deliver to Debtor all documents,
instruments, agreement or any combination thereof as may be necessary or
proper as the Debtors shall reasonably request to evidence such termination.
6. To the extent set forth in, and subject to, the Credit Agreement,
any and all reasonable fees, costs and expenses of whatever kind or nature
incurred by Lender in connection with the filing or recording of any
documents, and the payment or discharge of reasonable counsel fees,
maintenance fees or other costs of protecting, maintaining or preserving of
any of the Collateral, or of defending or prosecuting any actions or
proceedings arising out of or related to any of the Collateral, shall be
borne and paid by Debtor on demand by Lender and until so paid shall be added
to the principal amount of the Liabilities and shall bear interest at default
rate prescribed in the instrument or instruments evidencing such Liabilities.
7. Debtor shall have the duty to prosecute diligently any application
with respect to any material trademarks constituting a part of the Collateral
pending as of the date of this Agreement or thereafter until the Liabilities
shall have been paid in full, to make any necessary federal application with
respect thereto, to file and prosecute opposition and cancellation
proceedings, and to do any and all acts which are necessary to preserve and
maintain all rights in
all of the material trademarks constituting a part of the Collateral. Any
expenses incurred in connection with the Collateral shall be borne by Debtor.
Debtor shall not abandon any of the trademarks constituting a part of the
Collateral, without the consent of Lender, which consent shall not be
unreasonably withheld.
8. If Debtor fails to comply with any of its obligations hereunder,
Lender may after the occurrence and during the continuance of an Event of
Default do so in Debtor's name or in Lender's name, but at Debtor's expense,
and Debtor hereby agrees to in accordance with, and subject to the Credit
Agreement, reimburse Lender in full for all expenses, including reasonable
attorneys' fees, incurred by Lender in protecting, defending and maintaining
any of the trademarks constituting a part of the Collateral.
9. No course of dealing between Debtor and Lender, nor any failure to
exercise, nor any delay in exercising, on the part of Lender, any right,
power or privilege hereunder or under any note or instrument evidencing any
of the Liabilities or any agreement pursuant to which they were incurred
shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, power or privilege hereunder or thereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
10. All of Lender's rights and remedies with respect to any of the
trademarks constituting a part of the Collateral, whether established hereby
or by any instrument or instruments evidencing any of the Liabilities or by
any other agreements or by law, shall be cumulative and may be exercised
singularly or concurrently.
11. If any provision of this Agreement is hereafter determined to be
unlawful, and if the unlawful provision can be deleted without altering the
essence of this Agreement, the
unlawful provision and only that provision shall be severed from this
Agreement and the remaining provisions shall remain in full force and effect.
12. This Agreement is subject to modification only by a writing signed
by the parties, except as provided in Section 4 hereof.
13. The benefits and burdens of this Agreement shall inure to the
benefit of and be binding upon the respective successors and permitted
assigns of the parties.
14. This Trademark Security Agreement and any other documents delivered
in connection herewith and the rights and obligations of the parties hereto
and thereto shall for all purposes be governed by and construed and enforced
in accordance with the substantive law of the Commonwealth of Pennsylvania
without giving effect to the principles of conflict of laws.
[SIGNATURES APPEAR ON NEXT PAGE]
[SIGNATURE PAGE 1 OF 1 TO TRADEMARK SECURITY AGREEMENT]
WITNESS the due execution hereof this 13th day of March, 1997.
GRUBB & ELLIS COMPANY
By: /s/ Brian Parker
--------------------------------
Brian Parker
Senior Vice President and
Chief Financial Officer