<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
GRUBB & ELLIS COMPANY
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2215 SANDERS ROAD, SUITE 400 94-1424307
(State or other jurisdiction of Northbrook, IL 60062 (I.R.S. Employer
Incorporation or organization) (847) 753-7500 Identification Number)
</TABLE>
(Address and telephone number of Registrant's principal executive offices)
ROBERT J. WALNER, ESQ.
GRUBB & ELLIS COMPANY.
2215 SANDERS ROAD, SUITE 400
NORTHBROOK, IL 60062
(847) 753-7500
(Name, address, including ZIP code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
SCOTT R. HABER, ESQ.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT, AS
DETERMINED BY THE REGISTRANT.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1)(2) FEE
<S> <C> <C>
Debt Securities.............................................................
Preferred Stock, $0.01 par value............................................
Common Stock, $0.01 par value...............................................
Equity Warrants.............................................................
Debt Warrants...............................................................
Total $150,000,000 $44,250
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee, which is
calculated in accordance with Rule 457(o).
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities Act
of 1933.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED , 1998
GRUBB & ELLIS COMPANY
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
Grubb & Ellis Company, a Delaware corporation (the "Company"), directly or
through agents, dealers or underwriters designated from time to time, may offer,
issue and sell, in one or more series or issuances, up to $150,000,000 in the
aggregate of (a) secured or unsecured debt securities (the "Debt Securities") of
the Company, in one or more series, which may be either senior debt securities
(the "Senior Debt Securities"), senior subordinated debt securities (the "Senior
Subordinated Debt Securities") or subordinated debt securities (the
"Subordinated Debt Securities"), (b) shares of preferred stock of the Company,
par value $0.01 per share (the "Preferred Stock"), in one or more series, (c)
shares of common stock of the Company, par value $0.01 per share (the "Common
Stock"), (d) warrants to purchase Common Stock or Preferred Stock (the "Equity
Warrants") or (e) warrants to purchase Debt Securities (the "Debt Warrants" and
together with the Equity Warrants, the "Warrants"), or any combination of the
foregoing, either individually or as units consisting of one or more of the
foregoing, each on terms to be determined at the time of sale. The Debt
Securities may be issued as exchangeable and/or convertible Debt Securities
exchangeable for or convertible into shares of Common Stock or Preferred Stock.
The Preferred Stock may also be exchangeable for and/or convertible into shares
of Common Stock or another series of Preferred Stock. The Debt Securities, the
Preferred Stock, the Common Stock and the Warrants are collectively referred to
herein as the "Securities." When a particular series of Securities is offered, a
supplement to this Prospectus (each, a "Prospectus Supplement") will be
delivered with this Prospectus. The Prospectus Supplement will set forth the
terms of the offering and sale of the offered Securities.
SEE "RISK FACTORS" COMMENCING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF SECURITIES.
Except as described more fully herein or as set forth in the Prospectus
Supplement relating to any offered Debt Securities, the Indenture (as herein
defined) will not provide holders of Debt Securities protection in the event of
a highly-leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities. See "Description of Debt Securities--Consolidation, Merger and Sale
of Assets."
The Common Stock is traded on the New York Stock Exchange under the symbol
"GBE." Any Common Stock sold pursuant to a Prospectus Supplement will be listed
on the New York Stock Exchange. On March 19, 1998, the last reported sale price
of the Common Stock on the New York Stock Exchange was $11 5/16 per share. The
Company has not yet determined whether any of the Debt Securities, Preferred
Stock or Warrants offered hereby will be listed on any exchange or
over-the-counter market. If the Company decides to seek listing of any such
Securities, the Prospectus Supplement relating thereto will disclose such
exchange or market.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
--------------------------
The Securities will be sold directly by the Company, through agents, dealers
or underwriters as designated from time to time, or through a combination of
such methods. The Company reserves the sole right to accept, and together with
its agents, from time to time, to reject in whole or in part any proposed
purchase of Securities to be made directly or through agents. If agents of the
Company or any dealers or underwriters are involved in the sale of the
Securities, the names of such agents, dealers or underwriters and any applicable
commissions or discounts will be set forth in the applicable Prospectus
Supplement. See "Plan of Distribution" for possible indemnification arrangements
with agents, dealers and underwriters.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by the applicable Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS , 1998
<PAGE>
Certain persons participating in this offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the Securities.
Specifically, the underwriters may overallot in connection with the offering and
may bid for and purchase securities in the open market. For a description of
these activities, see "Plan of Distribution."
CAUTIONARY LANGUAGE REGARDING FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS, INCLUDING ANY DOCUMENTS THAT ARE INCORPORATED BY REFERENCE
AS SET FORTH IN "INFORMATION INCORPORATED BY REFERENCE," CONTAINS
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SECTION 21E OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"). SUCH
STATEMENTS ARE INDICATED BY WORDS OR PHRASES SUCH AS "ANTICIPATE," "ESTIMATE,"
"PROJECT," "BELIEVE," AND SIMILAR WORDS OR PHRASES. SUCH STATEMENTS ARE SUBJECT
TO CERTAIN RISKS, UNCERTAINTIES OR ASSUMPTIONS. SHOULD ONE OR MORE OF THESE
RISKS OR UNCERTAINTIES MATERIALIZE, OR SHOULD UNDERLYING ASSUMPTIONS PROVE
INCORRECT, ACTUAL RESULTS MAY VARY MATERIALLY FROM THOSE ANTICIPATED, ESTIMATED
OR PROJECTED.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act
with respect to the Securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement, part of which
has been omitted in accordance with the rules and regulations of the Commission.
For further information about the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits filed as
a part thereof and otherwise incorporated therein. Statements made in this
Prospectus as to the contents of any agreement or other document referred to
herein are qualified by reference to the copy of such agreement or other
document filed as an exhibit to the Registration Statement or such other
document, each such statement being qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Exchange Act
and, in accordance therewith, files periodic reports, proxy statements and other
information with the Commission. The Registration Statement, including the
exhibits thereto, as well as such reports and other information filed by the
Company with the Commission, can be inspected, without charge, and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington D.C., 20549; 7 World Trade Center, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. The
Commission also maintains a site on the World Wide Web at that contains reports,
proxy statements and other information regarding registrants that file
electronically with the Commission, and certain of the Company's filings are
available at such web site. Copies of such materials can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports and other information
concerning the Company can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission pursuant to the Exchange
Act are incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K/A for the year ended June
30, 1997;
(2) the Company's Quarterly Report on Form 10-Q/A for the quarter ended
September 30, 1997;
(3) the Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997;
2
<PAGE>
(4) description of Common Stock contained in the Company's Form 8-A
Registration Statement used to register the Common Stock and filed with the
Commission which was declared effective by the Commission on April 15, 1981,
except that authorized shares of capital stock and Common Stock have been
increased to 51,000,000 and 50,000,000, respectively; and
(5) all other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and before
the termination of the offering, which shall be deemed to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
This Prospectus may not be used to consummate sales of offered Securities
unless accompanied by a Prospectus Supplement. The delivery of this Prospectus
together with a Prospectus Supplement relating to particular offered Securities
in any jurisdiction shall not constitute an offer in the jurisdiction of any
other Securities covered by this Prospectus.
The Company will provide without charge to each person (including any
beneficial owner) to whom this Prospectus is delivered, upon request, copies of
any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document). Requests for documents
should be submitted to the Corporate Secretary, Grubb & Ellis Company, 2215
Sanders Road, Suite 400, Northbrook, Illinois 60062 (telephone 847/753-7500).
The information relating to the Company contained in this Prospectus does not
purport to be comprehensive and should be read together with the information
contained in the documents incorporated or deemed to be incorporated by
reference herein.
THE COMPANY
The Company, a Delaware corporation organized in 1980, is the successor by
merger to a real estate brokerage company first established in California in
1958. Unless the context indicates otherwise, all references to the "Company"
refer to Grubb & Ellis Company and its wholly owned subsidiaries. The Company is
a full service commercial real estate company that provides services to real
estate owners/investors and tenants including transaction services and property
and facilities management. Additionally, the Company provides financial advisory
services as well as consulting and strategic services with respect to commercial
real estate. The Company is one of the nation's largest publicly traded
commercial real estate firms, based on total revenues.
Property and facilities management services are provided by Grubb & Ellis
Management Services, Inc. ("GEMS"), a wholly owned subsidiary of the Company
since January 24, 1996 (at which time GEMS was a majority owned subsidiary).
GEMS (formerly Axiom Real Estate Management, Inc.) elected to change its name in
September 1997. GEMS has approximately 100 million square feet of property under
management.
Currently, the Company has offices and affiliates in 74 markets throughout
the United States, with approximately 4,000 professionals and staff.
Internationally, the Company serves the needs of its multinational clients
through its European headquarters in London.
STRATEGIC INITIATIVES
In fiscal 1997, the Company launched several initiatives designed to help
meet its goal of enhancing the quality of its service lines and expanding and
diversifying sources of revenue beyond traditional commercial brokerage. The
Company established the Corporate Services Group and Institutional Services
3
<PAGE>
Group, which will utilize an innovative relationship management system to allow
the Company to respond to the increasing demand from major corporate and
institutional clients for expanded services through a single point of contact.
The Company also launched a national affiliate program, which will enable it to
enter markets where it previously did not have a formal presence and to better
meet the multi-market needs of national clients. Currently, the Company has
formed alliances with 18 independent brokerage firms with a presence in 21
geographic or metropolitan markets in the United States. The Company has also
begun to invest in technology systems designed to keep it competitive in future
years. Among them is a state-of-the-art, company-wide information sharing and
research network, to be implemented over the next 12 to 18 months, which the
Company believes will enable professional staff across all offices to work more
efficiently, access the latest market intelligence, and more fully address
clients' needs.
CREDIT AGREEMENT
The Company maintains a revolving credit facility ("Credit Agreement") in
the amount of $35 million with PNC National Association and American National
Bank and Trust Company of Chicago (collectively the "Banks") for general
corporate purposes. The Credit Agreement expires on March 13, 2001. As of March
15, 1998, the Company had no outstanding borrowings under the Credit Agreement.
The Credit Agreement contains certain restrictive covenants, including, among
other things, restrictions on the issuance of debt, prohibition of the payment
of dividends, restriction on the issuance of certain types of preferred stock
and the maintenance of certain financial ratios. These restrictions may prevent
the issuance of certain securities by the Company as set forth in herein, in the
absence of the prior approval of the Banks or the termination of the Credit
Agreement. There is no assurance that approval by the Banks could be obtained.
RISK FACTORS
In addition to the other information in this Prospectus, prospective
purchasers of the Securities offered hereby should carefully consider the risk
factors set forth in "Business" included in the Company's most recently
incorporated Annual Report on Form 10-K. See "Information Incorporated by
Reference."
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net proceeds
from the sale of Securities offered hereby will be used for general corporate
purposes, which may include the reduction of outstanding indebtedness, working
capital increases, acquisitions and capital expenditures. Pending the
application of the net proceeds, the Company expects to invest such proceeds in
short-term, interest-bearing instruments or other investment-grade securities.
4
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for
the Company for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
- ---------------------------------------------------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1993(1) 1994(1) 1995 1996 1997
- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
-- -- 1.66 1.76 8.42
</TABLE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to combined fixed
charges and preferred stock dividends for the periods indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
- ---------------------------------------------------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1993(2) 1994(2) 1995(2) 1996(2) 1997
- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
-- -- -- -- 4.24
</TABLE>
The ratio of earnings to fixed charges has been computed by dividing
earnings by fixed charges. The ratio of earnings to fixed charges and preferred
stock dividends has been computed by dividing earnings by the sum of fixed
charges and preferred stock dividend requirements. Earnings consist of income
before income taxes plus fixed charges. Fixed charges consist of interest on all
indebtedness and amortization of debt issuance costs. The Company did not have
any indebtedness or preferred stock outstanding subsequent to June 30, 1997; as
such, no ratio information has been provided for the interim period ended
December 31, 1997.
- ------------------------
(1) The Company's earnings were insufficient to cover its fixed charges for the
fiscal years ended June 30, 1993 and 1994, by $57,686,000 and $16,943,000,
respectively.
(2) The Company's earnings were insufficient to cover its fixed charges,
including preferred stock dividend requirements, for the fiscal years ended
June 30, 1993, 1994, 1995 and 1996, by $58,684,000, $19,437,000, $1,530,000
and $995,000, respectively.
5
<PAGE>
GENERAL DESCRIPTION OF SECURITIES
The Company directly or through agents, dealers or underwriters designated
from time to time, may offer, issue and sell, together or separately, up to
$150,000,000 in the aggregate of (a) secured or unsecured debt securities (the
"Debt Securities") of the Company, in one or more series, which may be either
senior debt securities (the "Senior Debt Securities"), senior subordinated debt
securities (the "Senior Subordinated Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities"), (b) shares of preferred stock
of the Company, par value $0.01 per share (the "Preferred Stock"), in one or
more series, (c) shares of common stock of the Company, par value $0.01 per
share (the "Common Stock"), (d) warrants to purchase Common Stock or Preferred
Stock (the "Equity Warrants") or (e) warrants to purchase Debt Securities (the
"Debt Warrants" and together with the Equity Warrants, the "Warrants"), or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The Debt Securities may be issued as exchangeable and/or convertible Debt
Securities exchangeable for or convertible into shares of Common Stock or
Preferred Stock. The Preferred Stock may also be exchangeable for and/or
convertible into shares of Common Stock or another series of Preferred Stock.
The Debt Securities, the Preferred Stock, the Common Stock and the Warrants are
collectively referred to herein as the "Securities." When a particular series of
Securities is offered, a supplement to this Prospectus (each, a "Prospectus
Supplement") will be delivered with this Prospectus. The Prospectus Supplement
will set forth the terms of the offering and sale of the offered Securities.
The Company maintains the Credit Agreement in the amount of $35 million with
the Banks for general corporate purposes. The Credit Agreement expires on March
13, 2001. As of March 15, 1998, the Company had no outstanding borrowings under
the Credit Agreement. The Credit Agreement contains certain restrictive
covenants, including, among other things, restrictions on the issuance of debt,
prohibition of the payment of dividends, restriction on the issuance of certain
types of preferred stock and the maintenance of certain financial ratios. These
restrictions may prevent the issuance of certain securities by the Company as
set forth in herein, in the absence of the prior approval of the Banks or the
termination of the Credit Agreement. There is no assurance that approval by the
Banks could be obtained.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement,
and the extent, if any, to which such general provisions do not apply to the
Debt Securities so offered, will be described in the Prospectus Supplement
relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively, the
"Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") as in
effect on the date of the Indenture. The Debt Securities will be subject to all
such terms, and potential purchasers of the Debt Securities are referred to the
Indenture and the TIA for a statement thereof. The following summary of certain
provisions of the Indenture does not purport to be complete and is qualified in
its entirety by reference to the Indenture, including the definitions therein of
certain terms used below. A copy of the proposed form of Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. As used under this caption, unless the context otherwise requires,
"Offered Debt Securities" shall mean the Debt Securities offered by this
Prospectus and an accompanying Prospectus Supplement.
6
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GENERAL
The Indenture will provide for the issuance of Debt Securities in series and
will not limit the principal amount of Debt Securities which may be issued
thereunder. In addition, except as may be provided in the Prospectus Supplement
relating to such Debt Securities, the Indenture will not limit the amount of
additional indebtedness the Company may incur.
The applicable Prospectus Supplement or Prospectus Supplements will describe
the following terms of the series of Offered Debt Securities in respect of which
this Prospectus is being delivered: (1) the title of the Offered Debt
Securities; (2) whether the Offered Debt Securities are Senior Debt Securities,
Senior Subordinated Debt Securities or Subordinated Debt Securities or any
combination thereof; (3) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities will be
issued; (4) any limit upon the aggregate principal amount of the Offered Debt
Securities; (5) the date or dates on which the principal of the Offered Debt
Securities is payable; (6) the rate or rates (which may be fixed or variable) at
which the Offered Debt Securities will bear interest, if any, or the manner in
which such rate or rates are determined; (7) the date or dates from which any
such interest will accrue, the interest payment dates on which any such interest
on the Offered Debt Securities will be payable and the record dates for the
determination of holders to whom such interest is payable; (8) the place or
places where the principal of and any interest on the Offered Debt Securities
will be payable; (9) the obligation of the Company, if any, to redeem,
repurchase or repay the Offered Debt Securities in whole or in part pursuant to
any sinking fund or analogous provisions or at the option of the holders and the
price or prices at which and the period or periods within which and the terms
and conditions upon which the Offered Debt Securities shall be redeemed,
repurchased or repaid pursuant to such obligation; (10) the denominations in
which any Offered Debt Securities will be issuable, if other than denominations
of U.S. $1,000 and any integral multiple thereof; (11) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities of the series which will be payable upon declaration of the
acceleration of the maturity thereof; (12) any addition to or change in the
covenants which apply to the Offered Debt Securities; (13) any Events of Default
with respect to the Offered Debt Securities, if not otherwise set forth under
"Events of Default;" (14) whether the Offered Debt Securities will be issued in
whole or in part in global form, the terms and conditions, if any, upon which
such global Offered Debt Securities may be exchanged in whole or in part for
other individual securities, and the depositary for the Offered Debt Securities;
(15) the terms and conditions, if any, upon which the Offered Debt Securities
shall be exchanged for or converted into Common Stock or Preferred Stock; (16)
the nature and terms of the security for any secured Offered Debt Securities;
(17) the form and terms of any guarantee of the Offered Debt Securities; and
(18) any other terms of the Offered Debt Securities which terms shall not be
inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal amount
("Original Issue Discount Securities"). Federal income tax considerations and
other special considerations applicable to any such Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable to
bearer securities will be described in the applicable Prospectus Supplement.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will rank PARI PASSU with all other unsecured and
unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture, to all Senior Indebtedness of the Company.
With respect to any series of Senior Subordinated Debt Securities, "Senior
Indebtedness" of the Company will be defined to mean the principal of, and
premium, if any, and any interest (including
7
<PAGE>
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect) and all other monetary
obligations of every kind or nature due on or in connection with (a) all
indebtedness of the Company whether heretofore or hereafter incurred (i) for
borrowed money or (ii) in connection with the acquisition by the Company or a
subsidiary of the Company of assets other than in the ordinary course of
business, for the payment of which the Company is liable directly or indirectly
by guarantee, letter of credit, obligation to purchase or acquire or otherwise,
or the payment of which is secured by a lien, charge or encumbrance on assets
acquired by the Company, (b) amendments, modifications, renewals, extensions and
deferrals of any such indebtedness, and (c) any indebtedness issued in exchange
for any such indebtedness (clauses (a) through (c) hereof being collectively
referred to herein as "Debt"); provided, however, that the following will not
constitute Senior Indebtedness with respect to Senior Subordinated Debt
Securities: (1) any Debt as to which, in the instrument evidencing such Debt or
pursuant to which such Debt was issued, it is expressly provided that such Debt
is subordinate in right of payment to all Debt of the Company not expressly
subordinated to such Debt; (2) any Debt which by its terms refers explicitly to
the Senior Subordinated Debt Securities and states that such Debt shall not be
senior in right of payment; and (3) any Debt of the Company in respect of the
Senior Subordinated Debt Securities or any Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt Securities will
be subordinate in right of payment to all Senior Indebtedness of the Company and
to any Senior Subordinated Debt Securities; provided, however, that the
following will not constitute Senior Indebtedness with respect to Subordinated
Debt Securities: (1) any Debt as to which, in the instrument evidencing such
Debt or pursuant to which such Debt was issued, it is expressly provided that
such Debt is subordinate in right of payment to all Debt of the Company not
expressly subordinated to such Debt; and (2) any Debt of the Company in respect
of Subordinated Debt Securities and any Debt which by its terms refers
explicitly to the Subordinated Debt Securities and states that such Debt shall
not be senior in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all amounts
of principal, premium, if any, and interest then due on all applicable Senior
Indebtedness of the Company shall have been paid in full or if there shall have
occurred and be continuing beyond any applicable grace period a default in any
payment with respect to any such Senior Indebtedness, or if there shall have
occurred any event of default with respect to any such Senior Indebtedness
permitting the holders thereof to accelerate the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default. However,
the Company may make payments pursuant to the Senior Subordinated Debt
Securities or the Subordinated Debt Securities, as the case may be, if a default
in payment or an event of default with respect to the Senior Indebtedness
permitting the holder thereof to accelerate the maturity thereof has occurred
and is continuing and judicial proceedings with respect thereto have not been
commenced within a certain number of days of such default in payment or event of
default. Upon any distribution of the assets of the Company upon dissolution,
winding-up, liquidation or reorganization, the holders of Senior Indebtedness of
the Company will be entitled to receive payment in full of principal, premium,
if any, and interest (including interest accruing subsequent to the commencement
of any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect)
before any payment is made on the Senior Subordinated Debt Securities or
Subordinated Debt Securities, as applicable. By reason of such subordination, in
the event of insolvency of the Company, holders of Senior Indebtedness of the
Company may receive more, ratably, and holders of the Senior Subordinated Debt
Securities or Subordinated Debt Securities, as applicable, having a claim
pursuant to the Senior Subordinated Debt Securities or Subordinated Debt
Securities, as applicable, may receive less, ratably, than the other creditors
of the Company. Such subordination will not prevent the occurrence of any event
of default (an "Event of Default") in respect of the Senior Subordinated Debt
Securities or the Subordinated Debt Securities.
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If the Company offers Debt Securities, the applicable Prospectus Supplement
will set forth the aggregate amount of outstanding indebtedness, if any, as of
the most recent practicable date that by the terms of such Debt Securities would
be senior to such Debt Securities. The applicable Prospectus Supplement will
also set forth any limitation on the issuance by the Company of any additional
senior indebtedness.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged for
or converted into shares of Common Stock or Preferred Stock will be set forth in
the Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, payment
of principal, premium, if any, and any interest on the Debt Securities will be
payable, and the exchange of and the transfer of Debt Securities will be
registerable, at the office of the Trustee or at any other office or agency
maintained by the Company for such purpose subject to the limitations of the
Indenture. Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will be issued in denominations of U.S. $1,000 or integral
multiples thereof. No service charge will be made for any registration of
transfer or exchange of the Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities (the "Global Securities") that will be deposited with a
Depositary or its nominee identified in the applicable Prospectus Supplement. In
such a case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Each Global Security will be deposited with such
Depositary or nominee or a custodian therefor and will bear a legend regarding
the restrictions on exchanges and registration of transfer thereof referred to
below and any such other matters as may be provided for pursuant to the
applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any person or entity
other than the Depositary for such Global Security or any nominee of such
Depositary, and no such transfer may be registered, unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such
as required by the applicable Indenture, (ii) the Company executes and delivers
to the Trustee an order that such Global Security shall be so transferable,
registerable and exchangeable, and such transfers shall be registerable, or
(iii) there shall exist such circumstances, if any, as may be described in the
applicable Prospectus Supplement. All Debt Securities issued in exchange for a
Global Security or any portion thereof will be registered in such names as the
Depositary may direct.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in the applicable Prospectus Supplement. The Company expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
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institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Security will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificate form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificate form and will not be
considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Indenture. If the
Company requests any action of holders or if an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the Depositary will authorize
the participants to give such notice or take such action, and participants would
authorize beneficial owners owning through such participants to give such notice
or take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture, the
rights of the beneficial owners of the Debt Securities to receive payment of the
principal and premium, if any, of and interest on such Debt Securities, on or
after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
Principal of and any interest on a Global Security will be payable in the
manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture will provide that the Company may not consolidate with or
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its property or assets to any person in
one or more related transactions unless (a) the Company is the surviving
corporation or the entity or the person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia; (b) the person formed by
or surviving any such consolidation or merger (if other than the Company) or the
entity or person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Debt Securities and the Indenture; and (c) immediately prior
to and after giving effect to the transaction, no Default (as defined in the
Indenture) or Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing, any subsidiary of the Company may consolidate
with, merge into or transfer all or part of its properties and assets to the
Company.
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CERTAIN OTHER COVENANTS
Unless otherwise indicated in this Prospectus or a Prospectus Supplement,
the Debt Securities will not have the benefit of any covenants that limit or
restrict the Company's business or operations, the pledging of the Company's
assets or the incurrence of indebtedness by the Company.
With respect to any series of Senior Subordinated Debt Securities, the
Company will agree not to issue Debt which is, expressly by its terms,
subordinated in right of payment to any other Debt of the Company and which is
not expressly made PARI PASSU with, or subordinate and junior in right of
payment to, the Senior Subordinated Debt Securities.
The applicable Prospectus Supplement will describe any material covenants in
respect of a series of Debt Securities. Other than the covenants of the Company
included in the Indenture as described above or as described in the applicable
Prospectus Supplement, there are no covenants or other provisions in the
Indenture providing for a put or increased interest or otherwise that would
afford holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will constitute Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay principal of any Debt Security
of that series when due and payable at maturity, upon redemption or otherwise;
(b) failure to pay any interest on any Debt Security of that series when due,
and the Default continues for 30 days; (c) the Company fails to comply with any
of its other agreements in the Debt Securities of that series or in the
Indenture with respect to that series and the Default continues for the period
and after the notice provided therein (and described below); and (d) certain
events of bankruptcy, insolvency or reorganization. A Default under clause (c)
above is not an Event of Default with respect to a particular series of Debt
Securities until the Trustee or the holders of at least 50% in principal amount
of the then outstanding Debt Securities of that series notify the Company of the
Default and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
If an Event of Default with respect to outstanding Debt Securities of any
series (other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization) shall occur and be continuing, either the Trustee
or the holders of at least 50% in principal amount of the outstanding Debt
Securities of that series by notice, as provided in the Indenture, may declare
the unpaid principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities, such lesser amount as may be specified in
the terms of that series) of, and any accrued and unpaid interest on, all Debt
Securities of that series to be due and payable immediately. However, at any
time after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before a judgment or decree based on such acceleration
has been obtained, the holders of a majority in principal amount of the
outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. For information as to waiver of defaults,
see "Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the Trustee during
an Event of Default to act with the required standard of care, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders, unless such holders
shall have offered to the Trustee reasonable security or indemnity. Subject to
certain provisions, including those requiring security or indemnification of the
Trustee, the holders of a majority in principal amount of the outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of that series.
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The Company will be required to furnish to the Trustee under the Indenture
annually a statement as to the performance by the Company of its obligations
under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may amend the
Indenture or the Debt Securities with the written consent of the holders of a
majority in principal amount of the then outstanding Debt Securities of each
series affected by the amendment with each series voting as a separate class.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series may also waive compliance in a particular instance by
the Company with any provision of the Indenture with respect to the Debt
Securities of that series; provided, however, that without the consent of each
holder of Debt Securities affected, an amendment or waiver may not (i) reduce
the percentage of the principal amount of Debt Securities whose holders must
consent to an amendment or waiver; (ii) reduce the rate or change the time for
payment of interest on any Debt Security (including default interest); (iii)
reduce the principal of, premium, if any, or change the fixed maturity of any
Debt Security, or reduce the amount of, or postpone the date fixed for,
redemption or the payment of any sinking fund or analogous obligation with
respect thereto; (iv) make any Debt Security payable in currency other than that
stated in the Debt Security; (v) make any change in the provisions concerning
waivers of Default or Events of Default by holders or the rights of holders to
recover the principal of, premium, if any, or interest on, any Debt Security;
(vi) waive a default in the payment of the principal of, or interest on, any
Debt Security, except as otherwise provided in the Indenture or (vii) reduce the
principal amount of Original Issue Discount Securities payable upon acceleration
of the maturity thereof. The Company and the Trustee may amend the Indenture or
the Debt Securities without notice to or the consent of any holder of a Debt
Security: (i) to cure any ambiguity, defect or inconsistency; (ii) to comply
with the Indenture's provisions with respect to successor corporations; (iii) to
comply with any requirements of the Commission in connection with the
qualification of the Indenture under the TIA; (iv) to provide for uncertificated
Debt Securities in addition to or in place of certificated Debt Securities; (v)
to add to, change or eliminate any of the provisions of the Indenture in respect
of one of more series of Debt Securities, provided, however, that any such
addition, change or elimination (A) shall neither (1) apply to any Debt Security
of any series created prior to the execution of such amendment and entitled to
the benefit of such provision, nor (2) modify the rights of a holder of any such
Debt Security with respect to such provision, or (B) shall become effective only
when there is no outstanding Debt Security of any series created prior to such
amendment and entitled to the benefit of such provision; (vi) to make any change
that does not adversely affect in any material respect the interest of any
holder; or (vii) to establish additional series of Debt Securities as permitted
by the Indenture.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series, by notice to the Trustee, may waive an existing
Default or Event of Default and its consequences except a Default or Event of
Default in the payment of the principal of, or any interest on, any Debt
Security with respect to the Debt Securities of that series; provided, however,
that the holders of a majority in principal amount of the outstanding Debt
Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration.
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DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. Unless otherwise specified in the applicable Prospectus
Supplement, the Indenture will provide that the Company may be discharged from
any and all obligations in respect of the Debt Securities of any series (except
for certain obligations to register the transfer or exchange of Debt Securities
of such series, to replace stolen, lost or mutilated Debt Securities of such
series, and to maintain paying agencies) upon the deposit with the Trustee, in
trust, of money and/or U.S. government obligations, that, through the payment of
interest and principal in respect thereof in accordance with their terms, will
provide money in an amount sufficient in the opinion of a nationally recognized
firm of independent public accountants to pay and discharge each installment of
principal, premium, if any, and interest, if any, on and any mandatory sinking
fund payments in respect of the Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of the Indenture and such
Debt Securities. Such discharge may occur only if, among other things, the
Company has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or, since the date of execution of the
Indenture, there has been a change in the applicable United States federal
income tax law, in either case to the effect that holders of the Debt Securities
of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to United States federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
DEFEASANCE OF CERTAIN COVENANTS. Unless otherwise specified in the
applicable Prospectus Supplement, the Indenture will provide that, upon
compliance with certain conditions, the Company may omit to comply with the
restrictive covenants contained in the Indenture, as well as any additional
covenants or Events of Default contained in a supplement to the Indenture, a
Board Resolution or an Officers' Certificate delivered pursuant thereto. The
conditions include: the deposit with the Trustee of money and/or U.S. government
obligations, that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent public
accountants to pay principal, premium, if any, and interest, if any, on and any
mandatory sinking fund payments in respect of the Debt Securities of such series
on the stated maturity of such payments in accordance with the terms of the
Indenture and such Debt Securities; and the delivery to the Trustee of an
opinion of counsel to the effect that the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit and related covenant defeasance and
will be subject to United States federal income tax in the same amount and in
the same manner and at the same times as would have been the case if such
deposit and related covenant defeasance had not occurred.
DEFEASANCE AND EVENTS OF DEFAULT. In the event the Company exercises its
option to omit compliance with certain covenants of the Indenture with respect
to any series of Debt Securities and the Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default, the
amount of money and/or U.S. government obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Debt Securities of such series at
the time of their stated maturity but may not be sufficient to pay amounts due
on the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable for such
payments.
REGARDING THE TRUSTEES
The Trustee with respect to any series of Debt Securities will be identified
in the Prospectus Supplement relating to such Debt Securities. The Indenture and
provisions of the TIA incorporated by reference therein contain certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim, as security or otherwise. The
Trustee and its affiliates may engage in, and will be permitted to continue to
engage in, other transactions with the Company and its affiliates; PROVIDED,
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HOWEVER, that if it acquires any conflicting interest (as defined in the TIA),
it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee. The TIA and the Indenture provide that in case an Event of Default
shall occur (and be continuing), the Trustee will be required, in the exercise
of its rights and powers, to use the degree of care and skill of a prudent
person in the conduct of such person's affairs. Subject to such provision, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt Securities
issued thereunder, unless they have offered to the Trustee indemnity
satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Certificate of Incorporation and the certificate of designations (a "Certificate
of Designations") relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of the Preferred Stock.
GENERAL
The Company has authority to issue 1,000,000 shares of preferred stock,
$0.01 par value per share ("preferred stock of the Company," which term, as used
herein, includes the Preferred Stock offered hereby). As of March 19, 1998, the
Company had no shares of preferred stock of the Company outstanding.
Prior to issuance of shares of each series, the Board of Directors is
required by the General Corporation Law of the State of Delaware (the "DGCL")
and the Certificate of Incorporation to adopt resolutions and file a Certificate
of Designation (the "Certificate of Designation") with the Secretary of State of
the State of Delaware, fixing for each such class or series the designations,
powers, preferences and rights of the shares of such class or series and the
qualifications, limitations or restrictions thereon, including, but not limited
to, dividend rights, dividend rate or rates, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences as are permitted by
the DGCL. The Board of Directors could authorize the issuance of shares of
Preferred Stock with terms and conditions which could have the effect of
discouraging a takeover or other transaction which holders of some, or a
majority, of such shares might believe to be in their best interests or in which
holders of some, or a majority, of such shares might receive a premium for their
shares over the then-market price of such shares.
Subject to limitation prescribed by the DGCL, the Certificate of
Incorporation and the Amended and Restated Bylaws of the Company, the Board of
Directors of the Company is authorized without further stockholder action to
provide for the issuance of up to 1,000,000 shares of preferred stock of the
Company, in one or more series, with such voting powers, full or limited, and
with such designations, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated in the resolution or resolutions providing for the issuance
of a series of such stock adopted, at any time or from time to time, by the
Board of Directors of the Company (as used herein the term "Board of Directors
of the Company" includes any duly authorized committee thereof).
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The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number of
shares offered; (ii) the amount of liquidation preference per share; (iii) the
initial public offering price at which such Preferred Stock will be issued; (iv)
the dividend rate (or method of calculation), the dates on which dividends shall
be payable and the dates from which dividends shall commence to cumulate, if
any; (v) any redemption or sinking fund provisions; (vi) any conversion or
exchange rights; and (vii) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges, limitations
and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. The rights of the holders of each series of the
Preferred Stock will be subordinate to those of the Company's general creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as set forth in, or as are determined by the method described in, the
Prospectus Supplement relating to such series of the Preferred Stock. Such rate
may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company on such
record dates, fixed by the Board of Directors of the Company, as specified in
the Prospectus Supplement relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay any dividend for such period, whether or not dividends
on such series are declared payable on any future dividend payment dates.
Dividends on the shares of each series of Preferred Stock for which dividends
are cumulative will accrue from the date on which the Company initially issues
shares of such series.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as the shares of any series of the Preferred Stock are outstanding, unless (i)
full dividends (including if such Preferred Stock is cumulative, dividends for
prior dividend periods) have been paid or declared and set apart for payment on
all outstanding shares of the Preferred Stock of such series and all other
classes and series of preferred stock of the Company (other than Junior Stock)
and (ii) the Company is not in default or in arrears with respect to the
mandatory or optional redemption or mandatory repurchase or other mandatory
retirement of, or with respect to any sinking or other analogous funds for, any
shares of Preferred Stock of such series or any shares of any other preferred
stock of the Company of any class or series (other than Junior Stock, the
Company may not declare any dividends on any shares of Common Stock of the
Company or any other stock of the Company ranking as to dividends or
distributions of assets junior to such series of Preferred Stock (the Common
Stock and any such other stock being herein referred to as "Junior Stock"), or
make any payment on account of, or set apart money for, the purchase, redemption
or other retirement of, or for a sinking or other analogous fund for, any shares
of Junior Stock or make any distribution in respect thereof, whether in cash or
property or in obligations of stock of the Company, other than in Junior Stock
which is neither convertible into, nor exchangeable or exercisable for, any
securities of the Company other than Junior Stock.
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LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of each series of the Preferred Stock will
be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets is made to the
holders of Common Stock or any other shares of stock of the Company ranking
junior as to such distribution to such series of the Preferred Stock, the amount
set forth in the Prospectus Supplement relating to such series of the Preferred
Stock. If, upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the amounts payable with respect to the Preferred Stock of
any series and any other shares of preferred stock of the Company (including any
other series of the Preferred Stock) ranking as to any such distribution on a
parity with such series of the Preferred Stock are not paid in full, the holders
of the Preferred Stock of such series and of such other shares of preferred
stock of the Company will share ratably in any such distribution of assets of
the Company in proportion to the full respective preferential amounts to which
they are entitled. After payment to the holders of the Preferred Stock of each
series of the full preferential amounts of the liquidating distribution to which
they are entitled, unless otherwise provided in the applicable Prospectus
Supplement, the holders of each such series of the Preferred Stock will be
entitled to no further participation in any distribution of assets by the
Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of preferred
stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by
the Company or by any other method as may be determined by the Company in its
sole discretion to be equitable. From and after the redemption date (unless
default is made by the Company in providing for the payment of the redemption
price plus accumulated and unpaid dividends, if any) dividends will cease to
accumulate on the shares of the Preferred Stock called for redemption and all
rights of the holders thereof (except the right to receive the redemption price
plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as to dividends and
distribution of assets with such series of the Preferred Stock are in arrears,
no shares of any such series of the Preferred Stock or such other series of
preferred stock of the Company will be redeemed (whether by mandatory or
optional redemption) unless all such shares are simultaneously redeemed, and the
Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares pursuant to a purchase or exchange offer made on the same terms to
holders of all such shares outstanding.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted into shares of Common Stock, another series of
Preferred Stock or any other Security will be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions for conversion,
either mandatory, at the option of the holder or at the option of the Company,
in which case the number of shares of Common Stock, the shares of another series
of Preferred Stock or the amount of any other
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securities to be received by the holders of Preferred Stock would be calculated
as of a time and in the manner stated in the Prospectus Supplement.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable law, the
holders of the Preferred Stock will not be entitled to vote for any purpose.
DESCRIPTION OF COMMON STOCK
The Company has authority to issue 50,000,000 shares of Common Stock. As of
March 19, 1998, the Company had 19,638,963 shares of Common Stock outstanding.
The holders of Common Stock are entitled to one vote per share on all matters to
be voted on by stockholders, including the election of directors. Stockholders
are not entitled to cumulative voting rights, and, accordingly, the holders of a
majority of the shares voting for the election of directors can elect the entire
Board if they choose to do so and, in that event, the holders of the remaining
shares will not be able to elect any person to the Board of Directors.
The holders of Common Stock are entitled to receive such dividends, if any,
as may be declared from time to time by the Board of Directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock of the Company which may be
outstanding. Upon liquidation or dissolution of the Company subject to prior
liquidation rights of the holders of preferred stock of the Company, the holders
of Common Stock are entitled to receive on a pro rata basis the remaining assets
of the Company available for distribution. Holders of Common Stock have no
preemptive or other subscription rights, and there are no conversion rights or
redemption or sinking fund provisions with respect to such shares. All
outstanding shares of Common Stock are, and all shares being offered by this
Prospectus will be, fully paid and not liable to further calls or assessment by
the Company.
SECTION 203 OF THE DGCL
The Company is subject to the "business combination" statute of the DGCL, an
anti-takeover law enacted in 1988. In general, Section 203 of the DGCL prohibits
a publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder," for a period of three years after the date of
the transaction in which a person became an "interested stockholder," unless (i)
prior to such date the board of directors of the corporation approved either the
"business combination" or the transaction which resulted in the stockholder
becoming an "interested stockholder," (ii) upon consummation of the transaction
which resulted in the stockholder becoming an "interested stockholder," the
"interested stockholder" owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the number of shares outstanding those shares owned (1)
by persons who are directors and also officers and (2) employee stock plans in
which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer, or (iii) on or subsequent to such date the "business combination" is
approved by the board of directors and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of
a least 66 2/3 of the outstanding voting stock which is not owned by the
"interested stockholder." A "business combination" includes mergers, stock or
asset sales and other transactions resulting in a financial benefit to the
"interested stockholders." An "interested stockholder" is a person who, together
with affiliates and associates, owns (or within three years, did own) 15% or
more of the corporation's voting stock. Although Section 203 permits the Company
to elect not to be governed by its provisions, the Company to date has not made
this election. As a result of the application of Section 203, potential
acquirors of the Company may be discouraged from attempting to effect an
acquisition transaction with the Company, thereby possibly depriving holders of
the Company's
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securities of certain opportunities to sell or otherwise dispose of such
securities at above-market prices pursuant to such transactions.
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Debt Securities ("Debt
Warrants"), as well as Warrants to purchase Preferred Stock or Common Stock
("Equity Warrants") (together, the "Warrants"). Warrants may be issued
independently or together with any Securities and may be attached to or separate
from such Securities. The Warrants are to be issued under warrant agreements
(each, a "Warrant Agreement") to be entered into between the Company and a bank
or trust company, as warrant agent (the "Warrant Agent"), all as shall be set
forth in the Prospectus Supplement relating to Warrants being offered pursuant
thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the debt warrant certificates representing such Debt Warrants ("Debt Warrant
Certificates"), including the following: (1) the title of such Debt Warrants;
(2) the aggregate number of such Debt Warrants; (3) the price or prices at which
such Debt Warrants will be issued; (4) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such Debt
Warrants, and the procedures and conditions relating to the exercise of such
Debt Warrants; (5) the designation and terms of any related Debt Securities with
which such Debt Warrants are issued, and the number of such Debt Warrants issued
with each such Debt Security; (6) the date, if any, on and after which such Debt
Warrants and the related Debt Securities will be separately transferable; (7)
the principal amount of Debt Securities purchasable upon exercise of each Debt
Warrant; (8) the date on which the right to exercise such Debt Warrants will
commence, and the date on which such right will expire; (9) the maximum or
minimum number of such Debt Warrants which may be exercised at any time; (10) a
discussion of any material federal income tax considerations; and (11) any other
terms of such Debt Warrants and terms, procedures and limitations relating to
the exercise of such Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders
of Debt Warrants will not have any of the rights of holders of the Debt
Securities purchasable upon such exercise and will not be entitled to payment of
principal of or any premium, if any, or interest on the Debt Securities
purchasable upon such exercise.
EQUITY WARRANTS
The applicable Prospectus Supplement will describe the following terms of
Equity Warrants offered thereby: (1) the title of such Equity Warrants; (2) the
Securities (i.e., Preferred Stock or Common Stock) for which such Equity
Warrants are exercisable; (3) the price or prices at which such Equity Warrants
will be issued; (4) if applicable, the designation and terms of the Preferred
Stock or Common Stock with which such Equity Warrants are issued, and the number
of such Equity Warrants issued with each such share of Preferred Stock or Common
Stock; (5) if applicable, the date on and after which such Equity Warrants and
the related Preferred Stock or Common Stock will be separately transferable; (6)
if applicable, a discussion of any material federal income tax considerations;
and (7) any other terms of such Equity Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Equity Warrants.
Holders of Equity Warrants will not be entitled, by virtue of being such
holders, to vote, consent, receive dividends, receive notice as stockholders
with respect to any meeting of stockholders for the election of directors of the
Company or any other matter, or to exercise any rights whatsoever as
stockholders of the Company.
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The exercise price payable and the number of shares of Common Stock or
Preferred Stock purchasable upon the exercise of each Equity Warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of Common Stock or Preferred Stock or a stock split, reverse
stock split, combination, subdivision or reclassification of Common Stock or
Preferred Stock. In lieu of adjusting the number of shares of Common Stock or
Preferred Stock purchasable upon exercise of each Equity Warrant, the Company
may elect to adjust the number of Equity Warrants. No adjustments in the number
of shares purchasable upon exercise of the Equity Warrants will be required
until cumulative adjustments require an adjustment of at least 1% thereof. The
Company may, at its option, reduce the exercise price at any time. No fractional
shares will be issued upon exercise of Equity Warrants, but the Company will pay
the cash value of any fractional shares otherwise issuable. Notwithstanding the
foregoing, in case of any consolidation, merger, or sale or conveyance of the
property of the Company as an entirety or substantially as an entirety, the
holder of each outstanding Equity Warrant shall have the right to the kind and
amount of shares of stock and other securities and property (including cash)
receivable by a holder of the number of shares of Common Stock of Preferred
Stock into which such Equity Warrant was exercisable immediately prior thereto.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such principal
amount of Securities at such exercise price as shall in each case be set forth
in, or be determinable as set forth in, the Prospectus Supplement relating to
the Warrants offered thereby. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the Prospectus Supplement
relating to the Warrants offered thereby. After the close of business on the
expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement relating
to the Warrants offered thereby. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent or any other office indicated in the Prospectus Supplement,
the Company will, as soon as practicable, forward the Securities purchasable
upon such exercise. If less than all of the Warrants represented by such warrant
certificate are exercised, a new warrant certificate will be issued for the
remaining Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them and may also sell the Securities to investors directly
or through agents. Any such underwriter or agent involved in the offer and sale
of Securities will be named in the applicable Prospectus Supplement. The Company
has reserved the right to sell or exchange Securities directly to investors on
its own behalf in those jurisdictions where and in such manner as it is
authorized to do so.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Sales of Common Stock offered
hereby may be effected from time to time in one or more transactions on the New
York Stock Exchange or in negotiated transactions or a combination of such
methods. The Company may also, from time to time, authorize dealers, acting as
the Company's agents, to offer and sell Securities upon the terms and conditions
as are set forth in the applicable Prospectus Supplement. In connection with the
sale of Securities, underwriters may receive compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agent. Any such underwriter, dealer or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement. Unless otherwise indicated in a Prospectus Supplement, an agent will
be acting on a best
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efforts basis and a dealer will purchase Securities as a principal, and may then
resell such Securities at varying prices to be determined by the dealer.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable Prospectus Supplement. Dealers and agents participating in the
distribution of Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act, and to
reimbursement by the Company for certain expenses.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the Securities. This may include
over-allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by
exercising the over-allotment option granted to such persons. In addition, such
persons may stabilize or maintain the price of the Securities by bidding for or
purchasing Securities in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in any such offering may be
reclaimed if Securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the Securities at a level above that which might
otherwise prevail in the open market. Such transactions, if commenced, may be
discontinued at any time.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will be
passed upon for the Company by Latham & Watkins, San Francisco, California.
Certain legal matters will be passed upon for any agents or underwriters by
counsel for such agents or underwriters identified in the applicable Prospectus
Supplement.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report (Form 10-K/A) for the year ended June 30, 1997 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN SO AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER TO SELL IS NOT AUTHORIZED, OR IN WHICH THE
PERSON IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Information Incorporated by Reference..................................... 2
The Company............................................................... 3
Risk Factors.............................................................. 4
Use of Proceeds........................................................... 4
Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges
and Preferred Stock Dividends........................................... 5
General Description of Securities......................................... 6
Description of Debt Securities............................................ 6
Description of Preferred Stock............................................ 14
Description of Common Stock............................................... 17
Section 203 of the DGCL................................................... 17
Description of Warrants................................................... 18
Plan of Distribution...................................................... 19
Legal Matters............................................................. 20
Experts................................................................... 20
</TABLE>
[LOGO]
GRUBB & ELLIS COMPANY
$150,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
---------------------
PROSPECTUS
---------------------
, 1998
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the distribution
of the securities being registered are as set forth in the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee........................... $ 44,250
*Rating Agency Fees............................................... 100,000
*Legal Fees and Expenses.......................................... 100,000
*Accounting Fees and Expenses..................................... 75,000
*Printing Expenses................................................ 150,000
*Blue Sky Fees.................................................... 5,000
*Trustee/Issuing & Paying Agent Fees and Expenses................. 10,000
*Transfer Agent Fees & Expenses................................... 10,000
*Miscellaneous.................................................... 50,000
---------
*Total........................................................ $ 544,250
---------
---------
</TABLE>
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* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Subsection (b)(7) of Section 102 of
the DGCL, enables a corporation in its original certificate of incorporation or
an amendment thereto to eliminate or limit the personal liability of a director
to the corporation or its stockholders for monetary damages for violations of
the director's fiduciary duty, except (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any present or former director, officer, employee or agent of the
corporation, or any individual serving at the Company's request as a director,
officer or employee of another organization, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding provided that such director, officer, employee or agent acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided further that such director, officer, employee or agent had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
present or former director, officer, employee or agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director, officer, employee or agent acted in good faith and
in a manner reasonably believed to be in, or not opposed to, the best interests
of the corporation, except that no indemnification may be made in respect to any
claim, issue or matter as to which such director, officer, employee or agent
shall have been adjudged to be liable to the corporation unless and only to the
extent
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that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all of the circumstances of the case, such director, officer,
employer or agent is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by him in connection
therewith; that indemnification and advancement of expenses provided for, by, or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a present or former
director, officer, employee or agent of the corporation, or any individual
serving at the Company's request as a director, officer or employee of another
organization, against any liability asserted against him or incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
Article X of the Certificate of Incorporation provides that the Company
shall, to the fullest extent permitted by applicable law, including, without
limitation, the DGCL indemnify each director and officer, present or former, of
the Company whom it may indemnify pursuant to such applicable law, including
certain liabilities under the Securities Act. In addition, Article X of the
Certificate of Incorporation provides that a director of the Company shall not
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, and (iv) for any transaction from which the
director derives an improper personal benefit. The effect of the provision of
the Certificate of Incorporation is to eliminate the rights of the Company and
its stockholders (through stockholders' derivative suits on behalf of the
Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
rights of the Company or any stockholder to seek nonmonetary relief such as an
injunction or rescission in the event of a breach of a director's duty of care.
Furthermore, Section 7.01 of the Company's Bylaws provides that the Company
shall indemnify, in addition to its directors and officers, employees and agents
against losses incurred by any such person by reason of the fact that such
person was acting in such capacity to the fullest extent authorized by the DGCL.
The Company has entered into indemnification agreements with each of its
directors and executive officers, which also provide indemnification against
certain liabilities, including certain liabilities under the Securities Act. The
Company currently maintains directors' and officers' liability insurance in the
form of a policy which provides for coverage of liabilities up to a maximum
amount of $10 million per policy year (subject to certain minimum initial
payments by the Company). The policy insures directors and officers for
liabilities incurred in connection with or on behalf of the Company, except for
losses incurred on account of certain specified liabilities, including losses
from "matters which may be deemed uninsurable under the law pursuant to which
this policy shall be construed."
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ITEM 16. EXHIBITS
<TABLE>
<C> <S>
4.1(1) Restated Certificate of Incorporation of the Company.
4.2(2) Certificate of Retirement with respect to 130,233 shares of Junior Convertible
Preferred Stock of the Company.
4.3(3) Certificate of Retirement with respect to 8,894 shares of Series A Senior
Convertible Preferred Stock, 128,266 shares of Series B Senior Convertible
Preferred Stock and 19,767 shares of Junior Convertible Preferred Stock of the
Company.
4.4(4) Amendment to the Restated Certificate of Incorporation of the Company as filed
with the Delaware Secretary of State on December 9, 1997.
4.5(5) Amended and Restated Bylaws of the Company.
4.6 Form of Indenture
5 Opinion of Latham & Watkins
12 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on signature page of this Registration Statement).
</TABLE>
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(1) Filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and incorporated herein by reference.
(2) Filed as Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1996 and incorporated herein by reference.
(3) Filed as Exhibit 3.4 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1996 and incorporated herein by reference.
(4) Filed as Exhibit 4.4 to the Company's Form S-8 (Registration No. 333-42741)
filed with the Securities and Exchange Commission on December 19, 1997.
(5) Filed as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1996 and incorporated herein by
reference.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
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(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 and (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will, unless in
the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Northbrook, State of Illinois on ,
1998.
<TABLE>
<S> <C> <C>
GRUBB & ELLIS COMPANY
By: /s/ NEIL R. YOUNG
-----------------------------------------
Neil R. Young
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Robert J. Walner and Carol M.
Vanairsdale, and each of them, with full power of substitution and full power to
act without the other, his true and lawful attorney-in-fact and agent to act for
him in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file this Registration Statement, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully, to all intents
and purposes, as they or he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on , 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ---------------------------------------- ----------------------------------------------
<C> <S>
/s/ NEIL R. YOUNG President, Chief Executive Officer and
- ---------------------------------------- Chairman of the Board (Principal Executive
Neil R. Young Officer)
/s/ BRIAN PARKER Senior Vice President and Chief Financial
- ---------------------------------------- Officer (Principal Financial Officer and
Brian Parker Accounting Officer)
/s/ R. DAVID ANACKER
- ---------------------------------------- Director
R. David Anacker
/s/ LAWRENCE S. BACOW
- ---------------------------------------- Director
Lawrence S. Bacow
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ---------------------------------------- ----------------------------------------------
<C> <S>
/s/ JOE F. HANAUER
- ---------------------------------------- Director
Joe F. Hanauer
/s/ C. MICHAEL KOJAIAN
- ---------------------------------------- Director
C. Michael Kojaian
/s/ SIDNEY LAPIDUS
- ---------------------------------------- Director
Sidney Lapidus
/s/ REUBEN S. LEIBOWITZ
- ---------------------------------------- Director
Reuben S. Leibowitz
/s/ ROBERT J. MCLAUGHLIN
- ---------------------------------------- Director
Robert J. McLaughlin
/s/ JOHN D. SANTOLERI
- ---------------------------------------- Director
John D. Santoleri
/s/ TODD WILLIAMS
- ---------------------------------------- Director
Todd Williams
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
4.1(1) Restated Certificate of Incorporation of the Company.
4.2(2) Certificate of Retirement with respect to 130,233 shares of Junior Convertible
Preferred Stock of the Company.
4.3(3) Certificate of Retirement with respect to 8,894 shares of Series A Senior
Convertible Preferred Stock, 128,266 shares of Series B Senior Convertible
Preferred Stock and 19,767 shares of Junior Convertible Preferred Stock of the
Company.
4.4(4) Amendment to the Restated Certificate of Incorporation of the Company as filed with
the Delaware Secretary of State on December 9, 1997.
4.5(5) Amended and Restated Bylaws of the Company.
4.6 Form of Indenture
5 Opinion of Latham & Watkins
12 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney (contained on signature page of this Registration Statement).
</TABLE>
- ------------------------
(1) Filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and incorporated herein by reference.
(2) Filed as Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1996 and incorporated herein by reference.
(3) Filed as Exhibit 3.4 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1996 and incorporated herein by reference.
(4) Filed as Exhibit 4.4 to the Company's Form S-8 (Registration No. 333-42741)
filed with the Securities and Exchange Commission on December 19, 1997.
(5) Filed as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1996 and incorporated herein by
reference.
<PAGE>
GRUBB & ELLIS COMPANY,
as Issuer
and
_________________________
as Trustee
_________________________
INDENTURE
dated as of ______________
_________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . 1
Section 1.01. Certain Definitions.. . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions.. . . . . . . . . . . . . . . . . . . . 4
Section 1.03. Incorporation by Reference of Trust Indenture Act.. . . . 5
Section 1.04. Rules of Construction.. . . . . . . . . . . . . . . . . . 5
ARTICLE 2. THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating. 5
Section 2.02. Execution and Authentication. . . . . . . . . . . . . . . 8
Section 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . 8
Section 2.04. Paying Agent to Hold Money in Trust.. . . . . . . . . . . 8
Section 2.05. Securityholder Lists. . . . . . . . . . . . . . . . . . . 9
Section 2.06. Transfer and Exchange.. . . . . . . . . . . . . . . . . . 9
Section 2.07. Replacement Securities. . . . . . . . . . . . . . . . . .10
Section 2.08. Outstanding Securities. . . . . . . . . . . . . . . . . .10
Section 2.09. Temporary Securities. . . . . . . . . . . . . . . . . . .10
Section 2.10. Cancellation. . . . . . . . . . . . . . . . . . . . . . .11
Section 2.11. Defaulted Interest. . . . . . . . . . . . . . . . . . . .11
Section 2.12. Special Record Dates. . . . . . . . . . . . . . . . . . .11
Section 2.13. Global Securities.. . . . . . . . . . . . . . . . . . . .12
Section 2.14. CUSIP Numbers.. . . . . . . . . . . . . . . . . . . . . .13
ARTICLE 3. REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Section 3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . .13
Section 3.02. Selection of Securities to Be Redeemed. . . . . . . . . .14
Section 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . .14
Section 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . .15
Section 3.05. Deposit of Redemption Price.. . . . . . . . . . . . . . .15
Section 3.06. Securities Redeemed in Part.. . . . . . . . . . . . . . .15
ARTICLE 4. COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 4.01. Payment of Securities.. . . . . . . . . . . . . . . . . .15
Section 4.02. Maintenance of Office or Agency.. . . . . . . . . . . . .16
Section 4.03. Commission Reports. . . . . . . . . . . . . . . . . . . .16
Section 4.04. Compliance Certificate. . . . . . . . . . . . . . . . . .17
Section 4.05. Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . .17
Section 4.06. Stay, Extension and Usury Laws. . . . . . . . . . . . . .17
Section 4.07. Corporate Existence.. . . . . . . . . . . . . . . . . . .17
<PAGE>
Section 4.08. Calculation of Original Issue Discount. . . . . . . . . .18
ARTICLE 5. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 5.01. When Company May Merge, etc.. . . . . . . . . . . . . . .18
Section 5.02. Successor Corporation Substituted.. . . . . . . . . . . .18
ARTICLE 6. DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . .19
Section 6.01. Events of Default.. . . . . . . . . . . . . . . . . . . .19
Section 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . .20
Section 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . .21
Section 6.04. Waiver of Past Defaults.. . . . . . . . . . . . . . . . .21
Section 6.05. Control by Majority.. . . . . . . . . . . . . . . . . . .21
Section 6.06. Limitation on Suits.. . . . . . . . . . . . . . . . . . .21
Section 6.07. Rights of Holders to Receive Payment. . . . . . . . . . .22
Section 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . .22
Section 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . .22
Section 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . .23
Section 6.11. Undertaking for Costs.. . . . . . . . . . . . . . . . . .23
ARTICLE 7. TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 7.01. Duties of Trustee.. . . . . . . . . . . . . . . . . . . .24
Section 7.02. Rights of Trustee.. . . . . . . . . . . . . . . . . . . .25
Section 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . .26
Section 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . .26
Section 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . .26
Section 7.06. Reports by Trustee to Holders.. . . . . . . . . . . . . .26
Section 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . .27
Section 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . .27
Section 7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . .29
Section 7.10. Eligibility; Disqualification.. . . . . . . . . . . . . .29
Section 7.11. Preferential Collection of Claims Against Company.. . . .29
ARTICLE 8. SATISFACTION AND DISCHARGE; DEFEASANCE . . . . . . . . . . . . .29
Section 8.01. Satisfaction and Discharge of Indenture.. . . . . . . . .29
Section 8.02. Application of Trust Funds; Indemnification.. . . . . . .30
Section 8.03. Legal Defeasance of Securities of any Series. . . . . . .31
Section 8.04. Covenant Defeasance.. . . . . . . . . . . . . . . . . . .33
Section 8.05. Repayment to Company. . . . . . . . . . . . . . . . . . .34
ARTICLE 9. SUPPLEMENTS, AMENDMENTS AND WAIVERS. . . . . . . . . . . . . . .34
Section 9.01. Without Consent of Holders. . . . . . . . . . . . . . . .34
ii
<PAGE>
Section 9.02. With Consent of Holders.. . . . . . . . . . . . . . . . .35
Section 9.03. Revocation and Effect of Consents.. . . . . . . . . . . .36
Section 9.04. Notation on or Exchange of Securities.. . . . . . . . . .36
Section 9.05. Trustee to Sign Amendments, etc.. . . . . . . . . . . . .36
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .36
Section 10.01. Indenture Subject to Trust Indenture Act. . . . . . . .36
Section 10.02. Notices.. . . . . . . . . . . . . . . . . . . . . . . .37
Section 10.03. Communication By Holders With Other Holders.. . . . . .38
Section 10.04. Certificate and Opinion as to Conditions Precedent. . .38
Section 10.05. Statements Required in Certificate or Opinion.. . . . .38
Section 10.06. Rules by Trustee and Agents.. . . . . . . . . . . . . .38
Section 10.07. Legal Holidays. . . . . . . . . . . . . . . . . . . . .39
Section 10.08. No Recourse Against Others. . . . . . . . . . . . . . .39
Section 10.09. Counterparts. . . . . . . . . . . . . . . . . . . . . .39
Section 10.10. Governing Law. . . . . . . . . . . . . . . . . . . . .39
Section 10.11. Severability.. . . . . . . . . . . . . . . . . . . . .39
Section 10.12. Effect of Headings, Table of Contents, etc.. . . . . .39
Section 10.13. Successors and Assigns.. . . . . . . . . . . . . . . .39
Section 10.14. No Interpretation of Other Agreements. . . . . . . . .40
</TABLE>
iii
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03, 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06; 10.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.03; 10.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(b)(ii), 7.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . .7.02, 7.05; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(a), 7.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01(d), 7.02
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . .2.13(f)
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.12; 9.03
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.01
</TABLE>
(*)N.A. means not applicable.
* THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE.
<PAGE>
INDENTURE dated as of ____________ between Grubb & Ellis Company, a
Delaware corporation (the "Company"), and ____________________, a
_________________, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. CERTAIN DEFINITIONS.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of such certification (and
delivered to the Trustee, if appropriate).
"Closing Date" means the date on which the Securities of a particular
series were originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
1
<PAGE>
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, a President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" shall mean the corporate trust office of the
Trustee, which shall initially be ____________________________________________.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary for such series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the Closing Date.
"Global Security" shall mean a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to a Depositary or pursuant to such
Depositary's instructions, all in accordance with this Indenture and pursuant to
Section 2.01, which shall be registered as to principal and interest in the name
of such Depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Interest" when used with respect to an Original Issue Discount
Security that by its terms bears interest only after maturity, means interest
payable after maturity.
2
<PAGE>
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, any Vice-President, the Treasurer, the Controller, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer or the principal accounting officer of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides
that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" of a Security means the principal amount due on the stated
maturity of the Security plus the premium, if any, on the Security.
"Securities" means the Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means any corporation, partnership or limited liability
company of which the Company, or the Company and one or more Subsidiaries, or
any one or more Subsidiaries, directly or indirectly owns or own (i) in the case
of a corporation, voting securities entitling the holders thereof to elect a
majority of the directors, either at all times or so long as there is no default
or contingency which permits the holders of any other class of securities to
vote for the election of one or more directors, (ii) in the case of a
partnership, at least a majority of the general partnership interests and at
least a majority of total outstanding partnership
3
<PAGE>
interests or (iii) in the case of a limited liability company, at least a
majority of the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, and as in effect on the date of execution of this Indenture; PROVIDED,
HOWEVER, that in the event the TIA is amended after such date, "TIA" means, to
the extent required by such amendment, the Trust Indenture Act, as so amended.
"Trustee" means the party named as such above until a successor
becomes such pursuant to this Indenture and thereafter means or includes each
party who is then a trustee hereunder, and if at any time there is more than one
such party, "Trustee" as used with respect to the Securities of any series means
the Trustee with respect to Securities of that series. If Trustees with respect
to different series of Securities are trustees under this Indenture, nothing
herein shall constitute the Trustees co-trustees of the same trust, and each
Trustee shall be the trustee of a trust separate and apart from any trust
administered by any other Trustee with respect to a different series of
Securities.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that is not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Term Defined in Section
------- -------------------
<S> <C>
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 10.07
"Paying Agent" 2.03
"Place of Payment" 2.01
"redemption price" 3.03
"Registrar" 2.03
</TABLE>
4
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company and any successor
obligor on the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the
plural include the singular; and
(v) provisions apply to successive events and transactions.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. UNLIMITED IN AMOUNT, ISSUABLE IN SERIES, FORM AND DATING.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more series. There shall be established in or pursuant to a Board
Resolution or an Officers' Certificate
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pursuant to authority granted under a Board Resolution or established in one
or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to this Article 2);
(c) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Securities of the series
will be issued;
(d) the date or dates on which the principal of the Securities
of the series is payable;
(e) the rate or rates that may be fixed or variable at which the
Securities of the series shall bear interest, if any, or the manner in
which such rate or rates shall be determined, the date or dates from which
such interest shall accrue, the interest payment dates on which such
interest shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(f) the place or places where the principal of and any interest
on Securities of the series shall be payable, if other than as provided
herein;
(g) the price or prices at which (if any), the period or periods
within which (if any) and the terms and conditions upon which (if other
than as provided herein) Securities of the series may be redeemed, in whole
or in part, at the option, or as an obligation, of the Company;
(h) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period and periods within which
and the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(j) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02 hereof;
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(k) any addition to or change in the covenants set forth in
Article 4 that applies to Securities of the series;
(l) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(m) the Trustee for the series of Securities;
(n) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or Securities may
be exchanged in whole or in part for other individual Securities, and the
Depositary for such Global Security and Securities;
(o) the provisions, if any, relating to any security provided
for the Securities of the series;
(p) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series;
PROVIDED, HOWEVER, that no such term may modify or delete any provision
hereof if imposed by the TIA; AND PROVIDED, FURTHER, that any modification
or deletion of the rights, duties or immunities of the Trustee hereunder
shall have been consented to in writing by the Trustee).
All Securities of any series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or Officers' Certificate or in any such indenture
supplemental hereto.
The principal of and any interest on the Securities shall be payable
at the office or agency of the Company designated in the form of Security for
the series (each such place herein called the "Place of Payment"); PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution or Officers' Certificate, or established in
one or more indentures supplemental hereto. Prior to the delivery of a Security
to the Trustee for authentication in any form approved by or pursuant to a Board
Resolution or Officers' Certificate, the Company shall deliver to the Trustee
the Board Resolution or Officers' Certificate by or pursuant to which such form
of Security has been approved, which Board Resolution or Officers' Certificate
shall have attached thereto a true and correct copy of the form of Security that
has been approved by or pursuant thereto.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication.
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SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
Company Order.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities of that series may be
presented for payment (a "Paying Agent"). The Registrar for a particular series
of Securities shall keep a register of the Securities of that series and of
their transfer and exchange. The Company may appoint one or more co-Registrars
and one or more additional paying agents for each series of Securities. The
term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent, Registrar or co-Registrar without prior notice to any
Securityholder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such. The Company or any of its
Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar and
Paying Agent for each series of Securities unless another Registrar or Paying
Agent, as the case may be, is appointed prior to the time Securities of that
series are first issued.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Whenever the Company has one or more Paying Agents it will, prior to
each due date of the principal of or interest on, any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the
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<PAGE>
benefit of the Persons entitled to such principal or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent. If
the Company or an Affiliate acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Securityholders of the particular
series for which it is acting all money held by it as Paying Agent. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for such money. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
SECTION 2.05. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven business days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
SECTION 2.06. TRANSFER AND EXCHANGE.
Where Securities of a series are presented to the Registrar or a
co-Registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same series of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.09, 2.13, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a particular series
during a period beginning at the opening of business 15 days before the day of
any selection of Securities of that series for
9
<PAGE>
redemption under Section 3.02 and ending at the close of business on the day
of selection, or (ii) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security of that series being
redeemed in part.
SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of same series if the Company's and the Trustee's requirements are met.
The Trustee or the Company may require an indemnity bond to be furnished which
is sufficient in the judgment of both to protect the Company, the Trustee, and
any Agent from any loss which any of them may suffer if a Security is replaced.
The Company may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall
be entitled to all the benefit of the Indenture equally and proportionately with
any and all other Securities of the same series.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease
to be outstanding because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination.
When requested by the Trustee, the Company shall advise the Trustee of such
amount, showing its computations in reasonable detail.
SECTION 2.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed
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by one Officer of the Company. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
Holders of temporary securities shall be entitled to all of the
benefits of this Indenture.
SECTION 2.10. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall return
such cancelled Securities to the Company at the Company's written request. The
Company may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest, in any lawful manner. It may elect
to pay such defaulted interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each such Security.
The Company shall fix any such record date and payment date for such payment.
At least 15 days before any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
SECTION 2.12. SPECIAL RECORD DATES.
(a) The Company may, but shall not be obligated to, set a record
date for the purpose of determining the identity of Holders entitled to
consent to any supplement, amendment or waiver permitted by this Indenture.
If a record date is fixed, the Holders of Securities of that series
outstanding on such record date, and no other Holders, shall be entitled to
consent to such supplement, amendment or waiver or revoke any consent
previously given, whether or not such Holders remain Holders after such
record date. No consent shall be valid or effective for more than 90 days
after such record date unless consents from Holders of the principal amount
of Securities of that series required hereunder for such amendment or
waiver to be effective shall have also been given and not revoked within
such 90-day period.
(b) The Company may, but shall not be obligated to, fix any day
as a record date for the purpose of determining the Holders of any series
of Securities entitled to join in the giving or making of any notice of
Default, any declaration of acceleration,
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<PAGE>
any request to institute proceedings or any other similar direction. If
a record date is fixed, the Holders of Securities of that series
outstanding on such record date, and no other Holders, shall be entitled
to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; PROVIDED,
HOWEVER, that no such action shall be effective hereunder unless taken
on or prior to the date 90 days after such record date.
SECTION 2.13. GLOBAL SECURITIES.
(a) TERMS OF SECURITIES. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a series shall be issued in whole or in part in the form of
one or more Global Securities and the Depositary for such Global Security
or Securities.
(b) TRANSFER AND EXCHANGE. Notwithstanding any provisions to
the contrary contained in Section 2.06 of this Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.06
of this Indenture for securities registered in the names of Holders other
than the Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or if at any time such Depositary
ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Company fails to appoint a successor Depositary within 90
days of such event or (ii) the Company executes and delivers to the Trustee
an Officers' Certificate to the effect that such Global Security shall be
so exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such
names as the Depositary shall direct in writing in an aggregate principal
amount equal to the principal amount of the Global Security with like tenor
and terms.
Except as provided in this paragraph (b) of this Section, a
Global Security may not be transferred except as a whole by the Depositary
with respect to such Global Security to a nominee of such Depositary, by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor Depositary.
(c) LEGEND. Any Global Security issued hereunder shall bear a
legend in substantially the following form:
"Unless this certificate is presented by an authorized
representative of The Depositary Trust Company, a New York
corporation ("DTC"), New York, New York, to the issuer or its
agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
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WRONGFUL inasmuch as the registered owner hereof, Cede & Co.
has an interest herein."
"Transfer of this Global Security shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor thereof or such successor's nominee and limited to
transfers made in accordance with the restrictions set forth in
the Indenture referred to herein."
(d) ACTS OF HOLDERS. The Depositary, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take under this Indenture.
(e) PAYMENTS. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.01
hereof, payment of the principal of and interest, if any, on any Global
Security shall be made to the Person specified therein.
(f) CONSENTS, DECLARATION AND DIRECTIONS. Except as provided in
paragraph (e) of this Section, the Company, the Trustee and any Agent shall
treat a Person as the Holder of such principal amount of outstanding
Securities of such series represented by a Global Security as shall be
specified in a written statement of the Depositary with respect to such
Global Security, for purposes of obtaining any consents, declarations or
directions required to be given by the Holders pursuant to this Indenture.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing any series of Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on such Securities or as contained in any notice and that
reliance may be placed only on the other identification numbers printed on such
Securities, and any such action relating to such notice shall not be affected by
any defect in or omission of such numbers in such notice. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities of any series pursuant to
any optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
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The Company shall give the notice provided for in this Section at
least 45 days before the redemption date (unless a shorter notice period shall
be satisfactory to the Trustee), which notice shall specify the provisions of
such Security pursuant to which the Company elects to redeem such Securities.
If the Company elects to reduce the principal amount of Securities of
any series to be redeemed pursuant to mandatory redemption provisions thereof,
it shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, by lot or by such other method as the Trustee deems appropriate.
The Trustee shall make the selection not more than 75 days and not less than 30
days before the redemption date from Securities of that series outstanding and
not previously called for redemption. Except as otherwise provided as to any
particular series of Securities, Securities and portions thereof that the
Trustee selects shall be in amounts equal to the minimum authorized denomination
for Securities of the series to be redeemed or any integral multiple thereof.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities or portions of Securities to
be called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any particular series of
Securities, at least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder whose Securities
are to be redeemed.
The notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
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<PAGE>
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on and
after the redemption date; and
(7) the CUSIP number, if any, of the Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the redemption of any other
Security.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the Redemption Price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m. New York City time on the redemption date, the
Company shall deposit with the Paying Agent (or, if the Company or any Affiliate
is the Paying Agent, shall segregate and hold in trust) money sufficient to pay
the redemption price of all Securities called for redemption on that date other
than Securities that have previously been delivered by the Company to the
Trustee for cancellation. The Paying Agent shall return to the Company any
money not required for that purpose.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of same series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of and
interest on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be considered paid
on the date due if the Paying Agent, if other than the
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Company or an Affiliate, holds as of 10:00 a.m. Eastern Time on that date
immediately available funds designated for and sufficient to pay all
principal and interest then due.
To the extent lawful, the Company shall pay interest on overdue
principal and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
SECTION 4.03. COMMISSION REPORTS.
The Company shall deliver to the Trustee within 15 days after it files
them with the Commission copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) that the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act; PROVIDED, HOWEVER the Company shall not be required to deliver to
the Trustee any materials for which the Company has sought and received
confidential treatment by the Commission. The Company also shall comply with
the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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SECTION 4.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, commencing within 120 days of
_________________, an Officers' Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company, they
would normally have knowledge of any failure by the Company to comply with all
conditions, or default by the Company with respect to any covenants, under this
Indenture, and further stating whether or not they have knowledge of any such
failure or default and, if so, specifying each such failure or default and the
nature thereof. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided for in this Indenture. The certificate need not comply with Section
10.04 hereof.
The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good faith by
appropriate proceedings.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
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SECTION 4.08. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
If, as of the end of any fiscal year of the Company, the Company has
any outstanding Original Issue Discount Securities under the Indenture, the
Company shall file with the Trustee promptly following the end of such fiscal
year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on such Original Issue
Discount Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be required
under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia;
(2) the Person formed by or assuming any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately prior to and after giving effect to the
transaction no Default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee on or prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer by the Company
(other than by lease) of all or substantially all of the assets of the Company
in accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may
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exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein. In the event of any such transfer, the predecessor Company shall be
released and discharged from all liabilities and obligations in respect of
the Securities and the Indenture, and the predecessor Company may be
dissolved, wound up or liquidated at any time thereafter.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to Securities of any
particular series if, unless in the establishing Board Resolution, Officers'
Certificate or supplemental indenture hereto, it is provided that such series
shall not have the benefit of said Event of Default:
(1) the Company defaults in the payment of interest on any
Security of that series when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of that
series, occurs and is continuing, or the Company fails to comply with any
of its other agreements in the Securities of that series or in this
Indenture with respect to that series and the Default continues for the
period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability generally to pay its
debts as the same become due.
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(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
(6) any other Event of Default provided with respect
to Securities of that series which is specified in a Board
Resolution, Officers' Certificate or supplemental indenture
establishing that series of Securities.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) above is not an Event of Default with
respect to a particular series of Securities until the Trustee or the Holders of
at least 50% in principal amount of the then outstanding Securities of that
series notify the Company of the Default and the Company does not cure the
Default within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested in writing
by the Holders of 50% of the principal amount of the then outstanding Securities
of that series.
SECTION 6.02. ACCELERATION.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clauses (4) and (5) of Section 6.01)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 50% in principal amount of the then outstanding Securities of that
series by notice to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and any accrued interest on
all the Securities of that series to be due and payable on the Securities of
that series. Upon such declaration the principal (or such lesser amount) and
interest shall be due and payable immediately. If an Event of Default specified
in clause (4) or (5) of Section 6.01 occurs, all of such amount shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of a majority in principal amount of
the then outstanding Securities of that series by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with
respect to that series have been cured or waived except nonpayment of principal
(or such lesser amount) or interest that has become due solely because of the
acceleration.
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SECTION 6.03. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal or interest on the Securities of that series or to enforce
the performance of any provision of the Securities of that series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal amount
of the then outstanding Securities of any series, by notice to the Trustee, may
waive an existing Default or Event of Default with respect to that series and
its consequences except a Default or Event of Default in the payment of the
principal (including any mandatory sinking fund or like payment) of or interest
on any Security of that series (PROVIDED, HOWEVER, that the Holders of a
majority in principal amount of the outstanding Securities of any series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration).
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy with respect to that series available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
is unduly prejudicial to the rights of another Holder of Securities of that
series, or that may involve the Trustee in personal liability. The Trustee may
take any other action which it deems proper that is not inconsistent with any
such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of Securities of any series may not pursue a remedy with
respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to that series;
(2) the Holders of at least 50% in principal amount of the then
outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
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(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities of that series do not
give the Trustee a direction inconsistent with the request.
No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a preference
or priority over another Holder of Securities of that series.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of and interest, if
any, on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing with respect to Securities of any series, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal (or such portion of the principal
as may be specified as due upon acceleration at that time in the terms of that
series of Securities) and interest, if any, remaining unpaid on the Securities
of that series then outstanding, together with (to the extent lawful) interest
on overdue principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07 hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled to and empowered to collect and receive any money
or other property payable or deliverable on any such claims and to distribute
the same, and any custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
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and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money with respect to Securities of any
series pursuant to this Article, it shall pay out the money in the following
order:
<TABLE>
<CAPTION>
<S> <C>
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including
payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Securityholders for amounts due and unpaid on the
Securities of such series for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities of such series for principal and interest,
respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
</TABLE>
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defense made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities of any series.
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ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and
the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA and
no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to
determine whether or not they conform to the
requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer of
the Trustee, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it
receives security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Absent written instruction from the Company, the Trustee shall
not be required to invest any such money. Money held in trust by the
Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to TIA Section 315(a) through (d):
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers under the Indenture, unless the Trustee's conduct
constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
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<PAGE>
(f) The Trustee may consult with counsel of its selection and
may rely upon the advice of such counsel or any Opinion of Counsel.
(g) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has
actual knowledge thereof or unless written notice of any event that is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities generally
or the Securities of a particular series, as the case may be, and this
Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA
Sections 310(b) and 311.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to all Holders of Securities of that series a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any such Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of such
Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after May 15 in each year, the Trustee with respect to
any series of Securities shall mail to Holders of Securities of that series as
provided in TIA Section 313(c) a brief report dated as of such May 15 that
complies with TIA Section 313(a) (if such report is required by TIA Section
313(a)). The Trustee shall also comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each stock
exchange on which any of the Securities are listed, as required by TIA
Section 313(d). The Company shall notify the Trustee when the Securities are
listed on any stock exchange.
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<PAGE>
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services hereunder. The
Company shall reimburse the Trustee upon written request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
The Company shall indemnify each of the Trustee or any predecessor
Trustee for any loss, liability, damage, claims or expenses, including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee) incurred by it, without negligence or bad faith on its part, in
connection with the administration of this Indenture and its duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee in its capacity as Trustee, except money or property
held in trust to pay principal and interest on particular Securities. Such lien
will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) hereof occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
This Section 7.07 shall survive the termination of this Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee with respect to one or more or
all series of Securities and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the
Trustee as to that series by so notifying the Trustee in writing and may appoint
a successor Trustee with the Company's consent. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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<PAGE>
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee for that series. Within one year
after the successor Trustee with respect to any series takes office, the Holders
of a majority in principal amount of the then outstanding Securities of that
series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company. If a successor Trustee as to a particular series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least 10% in principal
amount of the then outstanding Securities of that series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof with respect
to any series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07 hereof), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that series.
The successor Trustee shall mail a notice of its succession to the Holders of
Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
shall contain such provisions as shall be necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
or desirable to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; PROVIDED, HOWEVER, that nothing herein or in
such supplemental Indenture shall constitute such Trustee co-trustees of the
same trust and that each
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<PAGE>
such Trustee shall be trustee of a trust hereunder separate and apart from
any trust hereunder administered by any other such Trustee.
Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to that series.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who satisfies
the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee as to any
series of Securities shall always have a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Order cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
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(1) have become due and payable, or
(2) will become due and payable at their stated
maturity within one year, or
(3) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section
8.03, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit
(in the case of Securities that have become due and payable on or prior to
the date of such deposit) or to the stated maturity or redemption date, as
the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 hereof, and, if
money shall have been deposited with the Trustee pursuant to clause (a) of this
Section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03 hereof, the obligations of the Trustee
under Sections 8.02 and 8.05 hereof shall survive.
SECTION 8.02. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 8.05 hereof, all money
deposited with the Trustee pursuant to Section 8.01 hereof, all money and
U.S. Government Obligations deposited with the Trustee pursuant to Section
8.03 or 8.04 hereof and all money received by the Trustee in respect of
U.S. Government Obligations deposited with the Trustee pursuant to Section
8.03 or 8.04 hereof, shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
persons entitled thereto, of the principal and interest for whose payment
such money has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by
Sections 8.03 and 8.04 hereof.
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(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Sections 8.03 or 8.04 hereof
or the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or money held by
it as provided in Sections 8.03 or 8.04 hereof that, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, are
then in excess of the amount thereof which then would have been required to
be deposited for the purpose for which such U.S. Government Obligations or
money were deposited or received. This provision shall not authorize the
sale by the Trustee of any U.S. Government Obligations held under this
Indenture.
SECTION 8.03. LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES.
Unless this Section 8.03 is otherwise specified to be inapplicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any such
series on the 91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it relates to such
outstanding Securities of such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (d) hereof,
(i) payment of the principal of an each installment of principal of or
interest on the outstanding Securities of such series on the stated
maturity of such principal of or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and the Securities of such series;
(b) the Company's obligations with respect to such Securities of
such series under Sections 2.03, 2.06 and 2.07 hereof; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 8.02 hereof and the
duty of the Trustee to authenticate Securities of such series issued on
registration of transfer of exchange;
PROVIDED that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities, cash in
U.S. Dollars and/or U.S. Government
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Obligations which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on
such Trustee), not later than one day before the due date of any payment
of money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge
each installment of principal (including mandatory sinking fund or
analogous payments) of and interest, if any, on all the Securities of
such series on the dates such installments of interest or principal are
due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the date
of such deposit or during the period ending on the 91st day after such
date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such series over any
other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
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SECTION 8.04. COVENANT DEFEASANCE.
Unless this Section 8.04 is otherwise inapplicable to Securities of
any series, on and after the 91st day after the date of the deposit referred to
in subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.08 and 5.01 hereof as well as any additional covenants contained in a
supplemental indenture hereto for a particular series of Securities or a Board
Resolution or an Officers' Certificate delivered pursuant to Section 2.01(n)
hereof (and the failure to comply with any such provisions shall not constitute
a Default or Event of Default under Section 6.01 hereof) and the occurrence of
any event described in clause (e) of Section 6.01 hereof shall not constitute a
Default or Event of Default hereunder, with respect to the Securities of such
series, PROVIDED that the following conditions shall have been satisfied:
(a) With reference to this Section 8.04, the Company has
deposited or caused to be irrevocably deposited (except as provided in
Section 8.03 hereof) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, cash in U.S. Dollars and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay principal
and interest, if any, on and any mandatory sinking fund in respect of the
Securities of such series on the dates such installments of interest or
principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the date
of such deposit or during the period ending on the 91st day after such
date;
(d) The Company shall have delivered to the Trustee an Opinion
of Counsel confirming that Holders of the Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
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(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
SECTION 8.05. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon the
Company's request any money held by them for the payment of principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.
ARTICLE 9.
SUPPLEMENTS, AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities may
supplement or amend this Indenture or the Securities without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED,
HOWEVER, that any such addition, change or elimination (A) shall neither
(i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is no
outstanding Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect in any
material respect the interests of the Securityholders of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.01 hereof.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee as to any series
of Securities may amend this Indenture or the Securities of that series with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities of each series affected by the amendment, with each such
series voting as a separate class. The Holders of a majority in principal
amount of the then outstanding Securities of any series may also waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to that series or the Securities of that series;
PROVIDED, HOWEVER, that without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the percentage of the principal amount of Securities
whose Holders must consent to an amendment or waiver;
(2) reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous provision;
(3) reduce the rate of, or change the time for payment of
interest on, any Security;
(4) reduce the principal of or change the fixed maturity of any
Security or waive a redemption payment or alter the redemption provisions
with respect thereto;
(5) make any Security payable in money other than that stated in
the Security (including defaulted interest);
(6) reduce the principal amount of Original Issue Discount
Securities payable upon acceleration of the maturity thereof;
(7) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); or
(8) waive a default in the payment of the principal of, or
interest on, any Security, except to the extent otherwise provided for in
Section 6.02 hereof.
An amendment or waiver under this Section that waives, changes or
eliminates any covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular series of
Securities, or that modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
The Company shall mail supplemental indentures to Holders upon
request. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
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<PAGE>
SECTION 9.03. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security; PROVIDED, HOWEVER, that unless a record date shall have been
established pursuant to Section 2.12(a) hereof, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date on which the amendment
or waiver becomes effective. An amendment or waiver shall become effective on
receipt by the Trustee of consents from the Holders of the requisite percentage
principal amount of the outstanding Securities of any series, and thereafter
shall bind every Holder of Securities of that series.
SECTION 9.04. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee, the
Trustee may, at the written direction of the Company and at the Company's
expense, place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Security thereafter authenticated; or (b) if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall receive an Opinion of Counsel stating that the
execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment or waiver if the same does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties, liabilities
or immunities under this Indenture or otherwise.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. INDENTURE SUBJECT TO TRUST INDENTURE ACT.
This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
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<PAGE>
SECTION 10.02. NOTICES.
Any notice or communication is duly given if in writing and delivered
in person or sent by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next-day delivery,
addressed as follows:
If to the Company:
Grubb & Ellis Company
2215 Sanders Road, Suite 400
Northbrook, IL 60062
Attention: General Counsel
Telephone: (847) 753-7500
If to the Trustee:
____________________
__________________
________________________
Attention: Corporate Trust Administration
Telephone: ______________
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee at the same time.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
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<PAGE>
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
provided for in Section 4.03 hereof) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel may
rely on an officer's certificate or certificates of public officials.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee as to Securities of any series may make reasonable rules
for action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable rules
and set reasonable requirements for their functions.
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<PAGE>
SECTION 10.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or Northbrook, Illinois, are not required to
be open. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 10.08. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under any series of
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration of issuance of the Securities.
SECTION 10.09. COUNTERPARTS.
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 10.10. GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture
and the Securities, without regard to the conflict of laws provisions thereof.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.12. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents are
for convenience only and shall not affect the construction hereof.
SECTION 10.13. SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successor.
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<PAGE>
SECTION 10.14. NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
[signature page follows]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first above written.
GRUBB & ELLIS COMPANY
BY: ___________________________
Name:
Title:
_____________________,
as Trustee
By: _____________________________
Name:
Title:
i
<PAGE>
EXHIBIT 5
[LETTERHEAD]
March 20, 1998
Grubb & Ellis Company
2215 Sanders Road, Suite 400
Northbrook IL 60062
Re: $150,000,000 Aggregate Offering Price of Securities of Grubb & Ellis
Company
Ladies and Gentlemen:
In connection with a registration statement on Form S-3 (the "Registration
Statement") filed on March 20, 1998 with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), you have requested our opinion with respect to the matters set forth
below.
You have provided us with a draft prospectus (the "Prospectus") which is a
part of the Registration Statement. The Prospectus provides that it will be
supplemented in the future by one or more supplements to the Prospectus (each, a
"Prospectus Supplement"). The Prospectus as supplemented by various Prospectus
Supplements will provide for the issuance and sale by Grubb & Ellis Company, a
Delaware corporation (the "Company"), of up to $150,000,000 aggregate offering
price of (i) one or more series of senior, senior subordinated or subordinated
debt securities (the "Debt Securities"), (ii) one or more series of preferred
stock, par value $0.01 per share (the "Preferred Stock"), (iii) shares of common
stock, par value $0.01 per share (the "Common Stock"), or (iv) warrants to
purchase Common Stock, Preferred Stock or Debt Securities (collectively, the
"Warrants"). The Debt Securities, Preferred Stock, Common Stock and Warrants are
collectively referred to herein as the "Securities." Any Debt Securities may be
exchangeable and/or convertible into shares of Common Stock or Preferred Stock.
The Preferred Stock may also be exchangeable for and/or convertible into shares
of Common Stock or another series of Preferred Stock. The Debt Securities will
be issued pursuant to one or more indentures and one or more supplements thereto
(collectively, the "Indentures"), in each case between the Company and a trustee
(each, a "Trustee").
In our capacity as your special counsel in connection with the Registration
Statement, we are generally familiar with the proceedings taken and proposed to
be taken by the Company in connection with the authorization and issuance of the
Securities. For purposes of this opinion, we have assumed that such proceedings
will be timely and properly completed, in accordance with all requirements of
applicable federal, Delaware and New York laws, in the manner presently
proposed.
We have made such legal and factual examinations and inquiries, including an
examination of originals and copies certified or otherwise identified to our
satisfaction, of all such documents, corporate records and instruments of the
Company as we have deemed necessary or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
We have been furnished with, and with your consent have exclusively relied
upon, certificates of officers of the Company with respect to certain factual
matters. In addition, we have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
<PAGE>
Grubb & Ellis Company
March 20, 1998
Page 2
We are opining herein as to the effect on the subject transaction only of
the federal securities laws of the United States, the General Corporation Law of
the State of Delaware and with respect to the opinion, set forth in Paragraph 1
below and Paragraph 4 (to the extent the Warrants are Warrants to purchase Debt
Securities), the internal laws of the State of New York, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or, in the case of Delaware, any other laws, or
as to any matters of municipal law or the laws of any local agencies within any
state.
Subject to the foregoing and the other qualifications set forth herein, it
is our opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in
accordance with the terms of the applicable Indenture (including, without
limitation, the adoption by the Board of Directors of the Company of a
resolution duly authorizing the issuance and delivery of the Debt
Securities), duly authenticated by the Trustee and duly executed and
delivered on behalf of the Company against payment therefor in accordance
with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (b) when the Registration Statement and any
required post-effective amendment thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under
the Securities Act, and (c) assuming that the terms of the Debt Securities
as executed and delivered are as described in the Registration Statement,
the Prospectus and the related Prospectus Supplement(s), and (d) assuming
that the Debt Securities as executed and delivered do not violate any law
applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (e) assuming that the
Debt Securities as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether or not imposed by
any court or governmental or regulatory body having jurisdiction over the
Company, and (f) assuming that the Debt Securities are then issued and sold
as contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), the Debt Securities will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with the terms of the Debt Securities.
2. The Company has the authority pursuant to its Restated Certificate
of Incorporation, as amended (the "Certificate of Incorporation"), to issue
up to 50,000,000 shares of Common Stock. Upon adoption by the Board of
Directors of the Company of a resolution in form and content as required by
applicable law and upon issuance and delivery of and payment for such shares
in the manner contemplated by the Registration Statement, the Prospectus and
the related Prospectus Supplement(s) and by such resolution, such shares of
Common Stock (including any Common Stock duly issued (i) upon the exchange
or conversion of any shares of Preferred Stock that are exchangeable or
convertible into Common Stock, (ii) upon the exercise of any Warrants
exercisable for Common Stock or (iii) upon the exchange or conversion of
Debt Securities that are exchangeable or convertible into Common Stock) will
be validly issued, fully paid and nonassessable.
3. The Company has the authority pursuant to the Certificate of
Incorporation to issue up to 1,000,000 shares of Preferred Stock. When a
series of Preferred Stock has been duly established in accordance with the
terms of the Certificate of Incorporation and applicable law, and upon
adoption by the Board of Directors of the Company of a resolution in form
and content as required by applicable law and upon issuance and delivery of
and payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by
such resolution, such shares of such series of Preferred Stock (including
any Preferred Stock duly issued (i) upon the exchange or conversion of any
shares of Preferred Stock that are exchangeable or convertible into another
series of Preferred Stock, (ii) upon the exercise of any Warrants
exercisable for Preferred Stock or (iii) upon the exchange or conversion of
Debt Securities
<PAGE>
Grubb & Ellis Company
March 20, 1998
Page 3
that are exchangeable or convertible into Preferred Stock) will be validly
issued, fully paid and nonassessable.
4. When (a) the Warrants have been duly executed and delivered, and
issued and sold in the form and in the manner contemplated in the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (b) when the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable law have all become effective under the Securities
Act, and (c) assuming that the terms of the Warrants as executed and
delivered are as described in the Registration Statement, the Prospectus and
the related Prospectus Supplement(s), and (d) assuming that the Warrants, as
executed and delivered, do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding
upon the Company, and (e) assuming the Warrants as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body
having jurisdiction over the Company, and (f) assuming that the Warrants are
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Warrants will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms.
The opinions set forth in Paragraphs 1 and 4 above are subject to the
following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor may be
brought; (iii) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of, or
contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy; (iv) we express no opinion
concerning the enforceability of any waiver of rights or defenses with respect
to stay, extension or usury laws; and (v) we express no opinion with respect to
whether acceleration of Debt Securities may affect the collectibility of any
portion of the stated principal amount thereof which might be determined to
constitute unearned interest thereon.
We assume for purposes of this opinion that the Company has been duly
incorporated and is validly existing as a corporation under the laws of the
State of Delaware and has the corporate power and authority to issue and sell
the Securities; that the applicable Indenture has been duly authorized by all
necessary corporate action by the Company, has been duly executed and delivered
by the Company and constitutes the legally valid, binding and enforceable
obligation of the Company enforceable against the Company in accordance with its
terms; that the Trustee for each Indenture is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
the Trustee is duly qualified to engage in the activities contemplated by the
applicable Indenture; that the applicable Indenture has been duly authorized,
executed and delivered by the Trustee and constitutes a legally valid, binding
and enforceable obligation of the Trustee, enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, generally and with
respect to acting as Trustee under the applicable Indenture, with all applicable
laws and regulations; and that the Trustee has the requisite organizational and
legal power and authority to perform its obligations under the applicable
Indenture.
We assume for purposes of this opinion that the warrant agent (the "Warrant
Agent") under the warrant agreement (the "Warrant Agreement") pursuant to which
the Warrants will be issued is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the applicable
Warrant Agreement has been duly authorized, executed and delivered by the
Warrant Agent and constitutes a legally valid, binding and enforceable
obligation of the Warrant Agent, enforceable
<PAGE>
Grubb & Ellis Company
March 20, 1998
Page 4
against the Warrant Agent in accordance with its terms; that the Warrant Agent
is in compliance, generally and with respect to acting as Warrant Agent under
the applicable Warrant Agreement, with all applicable laws and regulations; and
that the Warrant Agent has the requisite organizational and legal power and
authority to perform its obligations under the applicable Warrant Agreement.
We consent to your filing this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the Prospectus included therein.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to, or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
GRUBB & ELLIS COMPANY
STATEMENT REGARDING COMPUTATION OF RATIOS
EXHIBIT 12
(in '000s)
<TABLE>
<CAPTION>
Fiscal year ended
-------------------------------------------------------------------------
June 30, June 30, June 30, June 30, June 30,
1993 1994 1995 1996 1997
------------- ------------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Earnings:
Pretax income (loss) from continuing
operations $ (57,686) $ (16,943) $ 2,004 $ 2,300 $ 10,781
Interest expense 3,548 2,538 3,017 3,034 1,453
---------- ---------- ---------- --------- ---------
Total $ (54,138) $ (14,405) $ 5,021 $ 5,334 $ 12,234
---------- ---------- ---------- --------- ---------
---------- ---------- ---------- --------- ---------
Fixed Charges:
Preferred dividend requirements (4):
Junior convertible preferred stock $ 312 $ 766 $1,036 $ 923 $ 399
Senior convertible preferred stock 686 1,728 2,498 2,372 1,032
---------- ---------- ---------- --------- ---------
998 2,494 3,534 3,295 1,431
Interest expense 3,548 2,538 3,017 3,034 1,453
---------- ---------- ---------- --------- ---------
Total $ 4,546 $ 5,032 $ 6,551 $ 6,329 $ 2,884
---------- ---------- ---------- --------- ---------
---------- ---------- ---------- --------- ---------
Ratio of earnings to fixed charges (3) -- -- 1.66 1.76 8.42
---------- ---------- ---------- --------- ---------
---------- ---------- ---------- --------- ---------
Coverage deficiency (1) $ 57,686 $ 16,943 n/a n/a n/a
---------- ---------- ---------- --------- ---------
---------- ---------- ---------- --------- ---------
Ratio of earnings to fixed charges and
preferred stock dividends -- -- -- -- 4.24
---------- ---------- ---------- --------- ---------
---------- ---------- ---------- --------- ---------
Coverage deficiency (2) $ 58,684 $ 19,437 $ 1,530 $ 995 n/a
---------- ---------- ---------- --------- ---------
---------- ---------- ---------- --------- ---------
</TABLE>
(1) The Company's earnings were insufficient to cover its fixed charges for the
fiscal years ended June 30, 1993 and 1994, by the amounts indicated.
(2) The Company's earnings were insufficient to cover its fixed charges,
including preferred stock dividend requirements for the fiscal years ended
June 30, 1993, 1994, 1995 and 1996, by the amounts indicated.
(3) Fixed charges only includes interest expense for purposes of computing
this ratio.
(4) Dividends in 1995 and 1996 on the junior and senior convertible
preferred stock have been increased to an amount representing the pretax
earnings which would be required to cover such dividend requirements.
This adjustment is not required in 1995, 1994, and 1997 as the Company's
effective tax rate reflected a tax benefit.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Grubb & Ellis
Company for the registration of $150,000,000 of debt securities, preferred
stock, common stock, equity warrants and debt warrants, and to the incorporation
by reference therein of our report dated August 18, 1997 (except for Note 1(k),
as to which the date is March 21, 1998), with respect to the consolidated
financial statements of Grubb & Ellis Company included in its Annual Report
(Form 10-K/A) for the year ended June 30, 1997, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
March 21, 1998
