Exhibit 10.1





Exhibit 10.1




AMENDMENT NO. 1 TO 

CREDIT AGREEMENT 




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



RECITALS




WHEREAS, subject to the terms and conditions of this Amendment, the parties hereto wish to:
(i) waive any existing Events of Default (if any) arising in connection with Section 7.1 prior to
the date hereof; (ii) acknowledge and consent to the Parent Guarantor’s sale of Daymark and its
Subsidiaries (the “Daymark Disposition”) and the terms of the restructured intercompany
payable by the Parent Guarantor in favor of Daymark, in each case to the extent and on the terms
set forth herein; and (iii) amend the Credit Agreement and certain exhibits thereto, as provided
herein; and



NOW, THEREFORE, in consideration of the covenants made hereunder, and other good and valuable
consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:



SECTION 1. Definitions. Capitalized terms used herein and not otherwise defined shall have
the meanings set forth for such terms in the Credit Agreement, as amended by this Amendment.



SECTION 2. Amendments to Credit Agreement. The Credit Agreement is hereby amended as
follows:



(a) The definition of “Net Worth” is hereby amended by deleting such definition in its
entirety and replacing it with the following:




““Net Worth”: at any date, (A) the sum of (i) the net worth of the Borrower
and its Subsidiaries, determined on a consolidated basis in accordance with GAAP,
plus (ii) any Loans (other than any PIK Amounts) included in such net worth
calculation, minus (B) any intercompany Receivable from the Parent Guarantor which
is eliminated or set off in consolidation of the Parent Guarantor’s financial
statements.”



(b) Exhibit H is hereby amended by deleting such exhibit in its entirety and replacing it with
the exhibit attached hereto as Exhibit A.



SECTION 3. Acknowledgement of Reimbursement Obligation. Each Loan Party acknowledges that
the costs and expenses of the Administrative Agent and its Affiliates for which it is responsible
under Section 10.5 of the Credit Agreement include, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent in connection with this Amendment.
Without limiting the generality of the foregoing, the Borrower agrees to pay all invoices and
statements for such costs and expenses relating to this Amendment submitted to the Borrower by the
Administrative Agent or its Affiliates or directly submitted to the Borrower by any such legal
counsel promptly after receipt of such invoices and statements by the Borrower.


 


 









 





SECTION 4. Conditions to Effectiveness of this Amendment. The effectiveness of this
Amendment is subject to the satisfaction of the following conditions:



(a) Execution of Counterparts. The Administrative Agent shall have received
counterparts of (i) this Amendment duly executed by each Loan Party, the Administrative Agent and
each Lender, (ii) (a) amendments to the Closing Date Warrants duly executed by each party thereto
and (b) the Waiver to Commitment Letter, dated as of July 22, 2011, duly executed by each party
thereto, in each case, in form and substance satisfactory to the Administrative Agent and (iii)
duly executed and delivered control agreements with respect to each Deposit Account, Securities
Account and Commodity Account listed on Schedule 8 to the Perfection Certificate (other than the
Accounts (as such term is defined in the Guarantee and Collateral Agreement) of Daymark and its
Subsidiaries), in each case, in form and substance reasonably satisfactory to the Administrative
Agent.



(b) Security Interests. The Administrative Agent shall have a valid and perfected,
first priority security interest in all Collateral as of the date hereof.



(c) Approvals. All governmental and third party approvals necessary in connection
with the Loan Documents, the continuing operations of the Group Members and the transactions
contemplated hereby shall have been obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being taken or threatened by any competent
authority that would restrain, prevent or otherwise impose adverse conditions on the financing
contemplated hereby.



(d) Accuracy of Representations and Warranties. After giving effect to this
Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the
Loan Documents shall be true and correct in all material respects (except that any representation
and warranty that is qualified by or subject to materiality or “Material Adverse Effect” shall be
true and correct in all respects) on and as of the date hereof as if made on and as of the date
hereof, except to the extent such representations and warranties expressly relate to an earlier
date, in which case, such representations and warranties shall be true and correct in all material
respects (except that any representation and warranty that is qualified by materiality or subject
to “Material Adverse Effect” shall be true and correct in all respects) on and as of such earlier
date.



(e) No Default or Event of Default. After giving effect to this Amendment, no Default
or Event of Default shall have occurred and be continuing on the date hereof.



(f) Payment of Fees and Expenses. The Lenders (on a pro rata basis in accordance with
their respective commitments as of the date hereof) shall have received a closing fee in the
aggregate amount of $180,000, and the Lenders and the Administrative Agent shall have received all
other fees required to be paid, and all expenses (including: (i) fees and expenses of the financial
advisor to the Lenders and their Affiliates and (ii) the reasonable fees and expenses of legal
counsel) required to be reimbursed, on or before the date hereof.



SECTION 5. Approval and Release Documentation.



(a) Without limiting the other requirements set forth in Section 7.5(h) of the Credit
Agreement (except to the extent expressly set forth below in this Section), the Administrative
Agent and the Required Lenders hereby: (i) consent to and approve the Daymark Disposition on terms
and conditions set forth in the stock purchase agreement attached hereto as Exhibit B (the
“Daymark SPA”) and with such amendments and modifications thereto that are immaterial and
do not adversely impact the Lenders (it being agreed that such amendments and modifications may
include, without limitation, amendments to the provisions of the Daymark SPA set forth on



 


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Schedule 5(a)(i)
hereto); (ii) consent to the restructuring of the intercompany payable owed by the Parent Guarantor to Daymark as
contemplated under the Daymark SPA (such restructured debt being referred to herein as the
“Restructured Daymark Note”) and with such amendments and modifications thereto that are
immaterial and do not adversely impact the Lenders (it being agreed that such amendments and
modifications may include, without limitation, amendments to the provisions of the Restructured
Daymark Note set forth on Schedule 5(a)(ii) hereto); (iii) notwithstanding anything to the
contrary set forth in Section 7.2 of the Credit Agreement, expressly consent for purposes of
Section 7.2 of the Credit Agreement to the existence of the restructured Indebtedness on the terms
described in clause (ii) of this Section 5(a); and (iv) agree that the 10-day prior
delivery requirement contained in Section 7.5.(h)(iv) of the Credit Agreement shall be satisfied if
the certificate and other information required thereby are delivered prior to or concurrently with
the consummation of the Daymark Disposition.



(b) Upon the occurrence of each of (i) the satisfaction of the requirements set forth in
Section 7.5(h) of the Credit Agreement (in the case of Section 7.5(h)(iv), subject to the terms of
Section 5(a)(iv) herein), (ii) the consummation of the Daymark Disposition and (iii) the delivery
to the Administrative Agent of a duly executed copy of the Daymark SPA and the Restructured Daymark
Note, the Administrative Agent agrees to execute and deliver a guaranty and lien release for
Daymark and its Subsidiaries substantially in the form attached hereto as Exhibit C or
such other form as the Administrative Agent shall agree with the Borrower.



SECTION 6. Waiver. The Administrative Agent and the Lenders hereby waive any and all
defaults, violations or breaches under the Credit Agreement (if any) relating to Borrower’s failure
to comply with Section 7.1 of the Credit Agreement or to meet any other Net Worth requirement
provided for as a condition to borrowing under the Credit Agreement, in each case, prior to the
date hereof, provided, that, such waiver is limited precisely as written and shall not be
deemed to (i) waive compliance with the provisions of Section 7.1 or any other provisions
of the Credit Agreement for any future periods, (ii) be a waiver of any other term or condition of
the Credit Agreement or any of the other Loan Documents, or (iii) prejudice any right or rights
which the Administrative Agent or the other Lenders may now have or may have in the future under,
in connection with, or with respect to the Credit Agreement or any of the other Loan Documents.



SECTION 7. Representations and Warranties. The Borrower, the Parent Guarantor and each
other Guarantor represent and warrant as follows:



(a) Authority. The execution, delivery and performance by each Loan Party of this
Amendment and each other Credit Document executed, or to be executed, by such Loan Party and the
consummation of the transactions contemplated hereby and thereby (i) are within the power of such
Loan Party and (ii) have been duly authorized by all necessary actions on the part of such Loan
Party.



(a) Enforceability. Each of this Amendment and each other Loan Document executed, or
to be executed, by each Loan Party has been, or will be, duly executed and delivered by such Loan
Party and constitutes, or will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to or affecting the
enforcement of creditors’ rights generally and general principles of equity.



(b) Non-Contravention. The execution and delivery by each Loan Party of this Amendment
and the other Loan Documents executed by such Loan Party and the performance and consummation of
the transactions contemplated hereby and thereby do not (i) violate any Requirement of Law
applicable to such Loan Party; (ii) violate any provision of, or result in the breach or the
acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or
lapse of time or both), any Contractual
Obligation of such Loan Party, except as could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect; (iii) result in the creation or
imposition of any Lien (or the obligation to create or impose any Lien) upon any material property,
asset or revenue of such Loan Party (except such Liens as may be created in favor of the
Administrative Agent for the benefit of itself and the Lenders pursuant to this Amendment or the
other Loan Documents) or (iv) violate any provision of any existing law, rule, regulation, order,
writ, injunction or decree of any court or Governmental Authority to which it is subject.


 


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(c) Reaffirmation. The Borrower and the Parent Guarantor hereby reaffirms, for the
benefit of the Lenders and the Administrative Agent, the accuracy in all material respects each
representation and warranty contained in Section 4 of the Credit Agreement on and as of the
date hereof (except for representations and warranties expressly made as of a specified date, which
shall be true in all material respects as of such date). Each Loan Party shall be deemed to have
reaffirmed, for the benefit of the Lenders and the Administrative Agent, the accuracy in all
material respects each representation and warranty contained in Section 4 of the Guarantee
and Collateral Agreement on and as of the date hereof (except for representations and warranties
expressly made as of a specified date, which shall be true in all material respects as of such
date).



(d) No Default or Event of Default. As of the date hereof, both before and after
giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.



SECTION 8. Validity of Obligations and Liens.



(a) Validity of Obligations. Each Loan Party acknowledges and agrees that each Loan
Party is indebted to the Lenders and the Administrative Agent for the Obligations, without defense,
counterclaim or offset of any kind and each Loan Party hereby ratifies and reaffirms the validity,
enforceability and binding nature of such Obligations.



(b) Validity of Guarantees. The Parent Guarantor and each other Guarantor, as a
Guarantor under the Guarantee and Collateral Agreement hereby (i) acknowledges and agrees to the
terms of this Amendment and (ii) confirms and agrees that notwithstanding the effectiveness of this
Amendment, the Guarantee and Collateral Agreement is, and shall continue to be, in full force and
effect and the Guarantee and Collateral Agreement is hereby ratified and confirmed in all respects,
except that, on and after the effectiveness of this Amendment, each reference in the Guarantee and
Collateral Agreement to the “Credit Agreement”, “thereunder”, “thereof” or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this Amendment.



(c) Validity of Liens and Loan Documents. The Borrower and each Guarantor ratify and
reaffirm the validity and enforceability (without defense, counterclaim or offset of any kind) of
the Liens and security interests granted to secure any of the Obligations or any Guarantee
Obligation by any Loan Party to the Administrative Agent, for the benefit of the Lenders, pursuant
to the Loan Documents to which any Loan Party is a party and hereby confirm and agree that
notwithstanding the effectiveness of this Amendment, and except as expressly amended by this
Amendment, each Loan Document is, and shall continue to be, in full force and effect and each is
hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this
Amendment, each reference in the Loan Documents to the “Credit Agreement”, “thereunder”, “thereof”
or words of like import shall mean and be a reference to the Credit Agreement as amended by this
Amendment.



SECTION 9. Execution in Counterparts. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Delivery of an executed
signature
page of this Amendment by email or facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Amendment signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.


 


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SECTION 10. Continuing Effectiveness. Except as modified by this Amendment, the Credit
Agreement shall remain in full force and effect and is hereby ratified and confirmed in all
respects and this Amendment shall be a Loan Document for all purposes, and references in the Credit
Agreement to “the date hereof” and “the date of this Agreement” and phrases of similar import,
shall in all instances be references to, and continue to refer to, April 15, 2011, and not the date
of this Amendment. This Amendment shall not constitute an amendment or waiver of any provision of
the Credit Agreement not expressly referred to herein.



SECTION 11. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



SECTION 12. Integration. This Amendment and the other Loan Documents represent the entire
agreement of the Borrower, the Guarantors, the Administrative Agent and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.



SECTION 13. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.



SECTION 14. Submission To Jurisdiction; Waivers. Each Loan Party hereby irrevocably and unconditionally:





(a) submits for itself and its property in any legal action or proceeding relating to
this Amendment and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of any
United States Federal or New York State court sitting in the Borough of Manhattan in the
City of New York;




(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Borrower at its address set forth in Section 10.2 of
the Credit Agreement or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;


 


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(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and




(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.



SECTION 15. WAIVER OF JURY TRIAL. EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



SECTION 16. Headings. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this Amendment for any
other purpose or be given any substantive effect.



SECTION 17. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of each Loan Party, the Lenders, the Administrative Agent and their respective successors
and permitted assigns, except that no Loan Party may assign or transfer any of its rights or
obligations under this Amendment without the prior written consent of the Administrative Agent and
each Lender. Any purported assignment or transfer by a Loan Party in violation of the foregoing
shall be null and void.



[signature pages follow]



 


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



	 	 	 	 	 
	 	GRUBB & ELLIS MANAGEMENT SERVICES, INC., as Borrower

 	 
	 	By:  	/s/ Thomas P. D’Arcy	 
	 	 	Name:  	Thomas P. D’Arcy	 
	 	 	Title:  	President and Chief Executive Officer	 
	 
	 	GRUBB & ELLIS COMPANY, as Parent Guarantor and as a Guarantor

 	 
	 	By:  	/s/ Thomas P. D’Arcy 	 
	 	 	Name:  	Thomas P. D’Arcy	 
	 	 	Title:  	President and Chief Executive Officer	 



 


 









 





GUARANTORS:




	 	 	 	 	 
	 	DAYMARK REALTY ADVISORS, INC., a Delaware corporation

 	 
	 	By:  	/s/ Steven Shipp	 
	 	 	Name:  	Steven Shipp	 
	 	 	Title:  	President and Chief Executive Officer	 
	 
	 	GRUBB & ELLIS EQUITY ADVISORS, LLC, a Delaware limited liability company

 	 
	 	By:  	/s/ Thomas P. D’arcy	 
	 	 	Name:  	Thomas P. D’arcy	 
	 	 	Title:  	President	 
	 
	 	GRUBB & ELLIS HEALTHCARE REIT II ADVISOR, LLC, a Delaware limited liability company

 	 
	 	By:  	/s/ Thomas P. D’arcy	 
	 	 	Name:  	Thomas P. D’arcy	 
	 	 	Title:  	President	 
	 
	 	GRUBB & ELLIS LANDAUER VALUATION ADVISORY SERVICES, LLC, a Delaware limited liability company

 	 
	 	By:  	/s/ Thomas P. D’arcy 	 
	 	 	Name:  	Thomas P. D’arcy	 
	 	 	Title:  	President	 
	 
	 	GRUBB & ELLIS REALTY INVESTORS, LLC, a Virginia limited liability company

 	 
	 	By:  	/s/ Steven Shipp	 
	 	 	Name:  	Steven Shipp	 
	 	 	Title:  	President	 



 


 









 





	 	 	 	 	 
	 	NNN REALTY ADVISORS, INC., a Delaware corporation 

 	 
	 	By:  	/s/ Steven Shipp	 
	 	 	Name:  	Steven Shipp	 
	 	 	Title:  	President	 



	 	 	 	 	 
	 	TRIPLE NET PROPERTIES REALTY, INC., a California corporation

 	 
	 	By:  	/s/ Steven Shipp	 
	 	 	Name:  	Steven Shipp	 
	 	 	Title:  	President	 



 


 









 





	 	 	 	 	 
	 	COLFIN GNE LOAN FUNDING, LLC, as Administrative Agent and as a Lender

 	 
	 	By:  	/s/ Mark M. Hedstrom	 
	 	 	Name:  	Mark M. Hedstrom	 
	 	 	Title:  	Vice President	 



 


 









 







EXHIBIT A




FORM OF ADDITIONAL WARRANT

[See attached]




 


 









 




EXHIBIT
H




FORM OF ADDITIONAL WARRANTS




NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND SUBJECT TO SECTION
6 BELOW, NO OFFER, SALE, TRANSFER, ASSIGNMENT OR OTHER DISPOSITION MAY BE EFFECTED UNLESS (1) THERE
IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING THE SECURITIES, (2) THE SALE IS MADE
IN ACCORDANCE WITH RULE 144 UNDER THE ACT OR (3) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
COMPANY IS DELIVERED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION
FROM SUCH REGISTRATION (WHICH OPINION MAY BE RENDERED BY IN-HOUSE COUNSEL).



WARRANT TO PURCHASE [___________] SHARES OF COMMON STOCK




Issue
Date: [     ]




THIS CERTIFIES THAT, for value received, [_____] (together with its transferees, “Holder”),
is entitled to subscribe for and purchase [_____] [(_____)]shares (the “Warrant
Shares”) of fully paid and nonassessable $0.01 par value per share Common Stock (the “Common
Stock”) of Grubbs & Ellis Company, a Delaware corporation (“Company”), at the Warrant Price (as
hereinafter defined), subject to the provisions and upon the terms and conditions hereinafter set
forth. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed in
the Credit Agreement among Grubb & Ellis Management Services, Inc., as Borrower, Grubb & Ellis
Company, as Parent Guarantor, the Several Lenders from time to time parties thereto, and ColFin GNE
Loan Funding, LLC, as Administrative Agent, dated as of April 15, 2011 (as amended, the “Credit
Agreement”).



1. Warrant Price. The “Warrant Price” shall initially be one cent ($0.01) per share,
subject to adjustment as provided in Section 7 below.



2. Conditions to Exercise. Unless this Warrant has previously expired pursuant to the
terms specified herein, the purchase right represented by this Warrant may be exercised, subject to
adjustment as provided in Section 7 below, during the term commencing on the Issue Date and ending
at 5:00 P.M. Pacific time on the third anniversary of the Issue Date of this Warrant (the
“Expiration Date”) only in the following circumstances:



(a) Exercisability Upon Satisfaction of Fundamental Change Condition. Holder may
exercise this Warrant on or before the Expiration Date upon the occurrence of a Fundamental Change
in which the consideration received for each share of Common Stock has a fair market value equal to
or greater than Seventy-One Cents ($0.71) per share (the “Trigger Price”); provided
that if an Early Termination Event occurs this Warrant shall terminate and be of no further
force and effect; or


 


 









 





(b) Exercisability Upon Satisfaction of VWAP Condition. Holder may exercise this
Warrant on or before the Expiration Date beginning from the first date on which the
VWAP for any thirty (30) consecutive calendar day period following the date hereof is equal to
or greater than the Trigger Price.



(c) Most Favored Nation. The following shall be in effect for so long as any
Obligation is outstanding:



In addition to any adjustments provided in Section 7 hereof, if in connection with any
financing arrangement, the Issuer, its Affiliates or any subsidiary of the Issuer issues any
Options, or other equity linked securities to purchase common stock of the Issuer or any subsidiary
of the Issuer, with an exercise condition that is based on a share price that is lower than the
Trigger Price, then the Trigger Price shall be adjusted downward (but not upward) to such lower
price without any further action on the part of any party.



In addition to any adjustments provided in Section 7 hereof, to the extent that the Issuer,
its Affiliates or any subsidiary of the Issuer issues any equity linked security or arrangement
other than an Option in connection with a financing arrangement, the Trigger Price shall be
equitably adjusted downward as is necessary to provide the Holders the result set forth above.



3. Method of Exercise; Payment; Issuance of Shares; Issuance of New Warrant; Put
Rights. Subject to Section 2 hereof, the Warrant may be exercised, at the option of the
Holder, by any one or combination of the following methods:



(a) Cash Exercise. Subject to Section 2 hereof, the purchase right represented by
this Warrant may be exercised, by Holder, in whole or in part, by the surrender of the original of
this Warrant (together with a duly executed Notice of Exercise in substantially the form attached
hereto) at the principal office of Company (as set forth in Section 20 below) and by providing
payment to Company, by wire transfer of immediately available funds, of an amount equal to the
product of the Warrant Price per share multiplied by the number of Warrant Shares then being
purchased. In the event of any exercise of the rights represented by this Warrant, certificates
for the shares of stock so purchased (the “Share Certificates”) shall be in the name of, and
delivered to, Holder, or such other Person as such Holder may direct (subject to the terms of
transfer contained herein and upon payment by such Holder of any applicable transfer taxes). Such
delivery shall be made within 3 Trading Days after the exercise of this Warrant and at Company’s
expense and, unless this Warrant has been fully exercised or expired, a new Warrant having terms
and conditions substantially identical to this Warrant and representing the portion of the Warrant
Shares, if any, with respect to which this Warrant shall not have been exercised, shall also be
issued to Holder within 3 Trading Days after the exercise of this Warrant.



(b) Cashless Exercise. Subject to Section 2 hereof, if the Per Share Market Value of
one share of Common Stock on the date of exercise is greater than the Warrant Price (at the date of
calculation as set forth below), in lieu of exercising this Warrant by payment of cash, Holder may
exercise this Warrant by a cashless exercise by surrender of this Warrant at the principal office
of Company together with the properly endorsed Notice of Exercise in which event Company shall
issue to Holder a number of shares of Common Stock computed using the following formula:




X
= Y - (A)(Y)

                    B


 


 









 





	 	 	 	 	 
	Where

	 	X =
	 	the number of shares of Common Stock to be issued to Holder.
	 
	 	 	 	 
	 

	 	Y =
	 	the number of shares of Common Stock purchasable upon
exercise of all of the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being exercised.
	 
	 	 	 	 
	 

	 	A =
	 	the Warrant Price.
	 
	 	 	 	 
	 

	 	B =
	 	the Per Share Market Value of one share of Common Stock on
the date of exercise.






In the event of any exercise of the rights represented by this Warrant, the Share Certificates
shall be in the name of, and delivered to, Holder, or such other Person as such Holder may direct
(subject to the terms of transfer contained herein and upon payment by such Holder of any
applicable transfer taxes). Such delivery shall be made within 3 Trading Days after the exercise
of this Warrant and at Company’s expense and, unless this Warrant has been fully exercised or
expired, a new Warrant having terms and conditions substantially identical to this Warrant and
representing the portion of the Warrant Shares, if any, with respect to which this Warrant shall
not have been exercised, shall also be issued to Holder within 3 Trading Days after the exercise of
this Warrant.



(c) Loan Reduction Exercise. Subject to Section 2 hereof, the purchase right
represented by this Warrant may be exercised, by Holder, in whole or in part, by the surrender of
the original of this Warrant (together with a duly executed Notice of Exercise in substantially the
form attached hereto) at the principal office of Company and by delivering to Company an executed
amendment to the Credit Agreement, reducing the principal amount owed by an amount equal to the
product of the Warrant Price per share multiplied by the number of Warrant Shares then being
purchased. In the event of any exercise of the rights represented by this Warrant, Share
Certificates shall be in the name of, and delivered to, Holder, or such other Person as such Holder
may direct (subject to the terms of transfer contained herein and upon payment by such Holder of
any applicable transfer taxes). Such delivery shall be made within 3 Trading Days after the
exercise of this Warrant and at Company’s expense and, unless this Warrant has been fully exercised
or expired, a new Warrant having terms and conditions substantially identical to this Warrant and
representing the portion of the Warrant Shares, if any, with respect to which this Warrant shall
not have been exercised, shall also be issued to Holder within 3 Trading Days after the exercise of
this Warrant.




4. Representations and Warranties of Holder and Company.



(a) Representations and Warranties by Holder. Holder represents and warrants to
Company with respect to this purchase as follows:



(i) Authorization. All company action on the part of Holder, its officers, directors,
shareholders, members or partners, as applicable, necessary for the authorization, execution,
delivery and performance of its obligations under this Warrant has been taken and this Warrant
constitutes the legally binding and valid obligation of Holder enforceable in accordance with its
terms.



(ii) Evaluation. Holder has substantial experience in evaluating and investing in
private placement transactions of securities of companies similar to Company so that Holder is
capable of evaluating the merits and risks of its investment in Company and has the capacity to
protect its interests.


 


 









 





(iii) Resale. Holder is acquiring this Warrant and the Warrant Shares issuable upon
exercise of this Warrant (collectively the “Securities”) for investment for its own
account, not as a nominee or agent, and not with a view to, or for resale in connection with,
any distribution thereof. Holder understands that the Securities have not been registered under
the Securities Act of 1933, as amended (the “Act”) by reason of a specific exemption from the
registration provisions of the Act which depends upon, among other things, the bona fide nature of
the investment intent as expressed herein and the other representations and warranties of Holder
contained herein.



(iv) Rule 144. Holder acknowledges that the Securities must be held indefinitely
unless subsequently registered under the Act or an exemption from such registration is available.
Holder is aware of the provisions of Rule 144 promulgated under the Act which permit limited resale
of shares purchased in a private placement subject to the satisfaction of certain conditions.



(v) Accredited Investor. Holder is an “accredited investor” within the meaning of
Regulation D promulgated under the Act.



(vi) Opportunity To Discuss. Holder has read, understood, and is familiar with
Company’s public filings available at the Securities and Exchange Commission’s website and has had
an opportunity to discuss Company’s business, management and financial affairs with its management
and an opportunity to review Company’s facilities. Holder understands that such discussions, as
well as the written information issued by Company, were intended to describe the aspects of
Company’s business and prospects which Company believes to be material but were not necessarily a
thorough or exhaustive description.



(b) Representations and Warranties by Company. Company hereby represents and
warrants to Holder as follows: 



(i) Corporate Organization and Authority. Company (a) is a corporation duly
organized, validly existing, and in good standing in its jurisdiction of incorporation, and (b) has
the corporate power and authority to own and operate its properties and to carry on its business as
now conducted. Company is qualified as a foreign corporation in all jurisdictions where such
qualification is required except in each jurisdiction in which failure to so qualify would not have
a material adverse effect on the business, operations, assets, liabilities, results of operations
or financial condition of Company.



(ii) Corporate Power. Company has all requisite legal and corporate power and
authority to execute, issue and deliver this Warrant, to issue the Warrant Shares issuable upon
exercise or conversion of this Warrant, and to carry out and perform its obligations under this
Warrant and any related agreements.



(iii) Authorization; Enforceability. All corporate action on the part of Company, its
officers, directors and shareholders necessary for the authorization, execution, delivery and
performance of its obligations under this Warrant and for the authorization, issuance and delivery
of this Warrant and the Warrant Shares issuable upon exercise of this Warrant has been taken and
this Warrant constitutes the legally binding and valid obligation of Company enforceable in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or similar laws relating to or affecting the enforcement of creditors’
rights, or to principles of equity.


 


 









 





(iv) Valid Issuance of Warrant and Warrant Shares. This Warrant has been validly
issued and is free of restrictions on transfer other than restrictions on transfer set forth herein
and under applicable state and federal securities laws. The Warrant Shares issuable upon conversion
of this Warrant, when issued, sold and delivered in accordance with the terms
of this Warrant for the consideration expressed herein, will be duly and validly issued, fully
paid and nonassessable, and will be free of restrictions on transfer other than restrictions on
transfer set forth herein and under applicable state and federal securities laws. Subject to
applicable restrictions on transfer, the issuance and delivery of this Warrant and the Warrant
Shares issuable upon exercise or conversion of this Warrant are not subject to any preemptive or
other similar rights or any liens or encumbrances except as specifically set forth in Company’s
Certificate of Incorporation or this Warrant or except as created by Holder. Subject to the
accuracy of Holder’s representations and warranties contained in Section 4(a), the offer, sale and
issuance of the Warrant Shares, as contemplated by this Warrant, are exempt from the prospectus and
registration requirements of applicable United States federal and state securities laws, and
neither Company nor any authorized agent acting on its behalf has or will take any action hereafter
that would cause the loss of such exemption.



(v) No Conflict. The execution, delivery, and performance of this Warrant will not
result in (a) any violation of, conflict with, or constitute a default under, with or without the
passage of time or the giving of notice (1) any provision of Company’s Certificate of Incorporation
or by-laws; (2) any provision of any material judgment, decree, or order to which Company is a
party, by which it is bound, or to which any of its material assets are subject; (3) any material
contract, obligation, or commitment to which Company is a party or by which it is bound; or (4) any
material statute, rule, or governmental regulation applicable to Company, or (b) the creation of
any lien, charge or encumbrance upon any material assets of Company.



(vi) Capitalization. The capitalization table of Company attached hereto as Annex A
is complete and accurate as of [_____] and reflects (a) all outstanding capital stock of
Company and (b) all outstanding warrants, options, conversion privileges, preemptive rights or
other rights or agreements to purchase or otherwise acquire or issue any equity securities or
convertible securities of Company. Company has authorized the issuance of a total of 20,000,000
shares of Preferred Stock, 1,000,000 of which have been designated as Series A Preferred Stock, and
200,000,000 shares of Common Stock and no other shares of preferred stock have been designated or
issued.




5. Legends.



(a) Legend. Each certificate representing the Warrant Shares shall be endorsed with
substantially the following legend:




THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
ASSIGNED OR OTHERWISE DISPOSED OF UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING THE SECURITIES, (2) THE SALE IS MADE IN ACCORDANCE
WITH RULE 144 UNDER THE ACT OR (3) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
COMPANY IS DELIVERED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION (WHICH OPINION MAY BE RENDERED BY
IN-HOUSE COUNSEL).


 


 









 






Company need not enter into its stock records a transfer of Warrant Shares unless the
conditions specified in the foregoing legend are satisfied. Company may also instruct its
transfer agent not to allow the transfer of any of the Warrant Shares unless the conditions
specified in the foregoing legend are satisfied.



(b) Removal of Legend and Transfer Restrictions. The legend relating to the Act
endorsed on a certificate pursuant to paragraph 5(a) of this Warrant shall be removed and Company
shall issue a certificate without such legend to Holder if (i) the Securities are registered under
the Act and a prospectus meeting the requirements of Section 10 of the Act is available, or (ii)
Company has received an opinion of counsel (which may include the opinion of in-house counsel)
reasonably satisfactory to Company to the effect that public sale, transfer or assignment of the
Securities may be made without registration and without compliance with any restriction.



6. Conditions to Transfer or Exercise of Warrant. Subject to the further provisions
of this Section 6, this Warrant and the Warrant Shares represented hereby may be sold, transferred,
conveyed or assigned by Holder. This Warrant may not be transferred to any person who is not an
“accredited investor,” as such term is defined in Regulation D promulgated under the Act. It shall
be a condition to any transfer or exercise of this Warrant that at the time of such transfer or
exercise, Holder shall provide Company with a representation in writing that Holder or transferee
is acquiring this Warrant and the shares of Common Stock to be issued upon exercise for investment
purposes only, not as a nominee or agent, and not with a view to any sale or distribution. As
further condition to each transfer, at the request of Company, Holder shall surrender this Warrant
to Company and the transferee shall receive and accept a Warrant, of like terms, tenor and date,
executed by Company.




7. Adjustment for Certain Events.



(a) Adjustment Exceptions. The number of Warrant Shares issuable upon exercise of
this Warrant shall be subject to adjustment from time to time as provided in this Section 7 (in
each case, after taking into consideration any prior adjustments pursuant to this Section 7);
provided that this Section 7 will not apply to: (i) the issuance of any Additional
Warrants; (ii) the issuance of any Common Stock upon the exercise of the Closing Date Warrants or
any Additional Warrants; (iii) the issuance of Common Stock upon conversion of the Company’s
existing outstanding 12% cumulative participating perpetual convertible preferred stock upon the
terms and subject to the conditions of the Certificate of the Powers, Designations, Preferences and
Rights of the 12% Cumulative Participating Perpetual Convertible Preferred Stock as such conversion
terms thereof are in effect as of April 15, 2011; (iv) the issuance of Common Stock upon
conversion of the Company’s existing outstanding 7.95% convertible senior securities due 2015, upon
the terms and subject to the conditions of the Indenture for the 7.95% Convertible Senior
Securities due 2015 as such conversion terms thereof are in effect as of April 15, 2011; and (v)
the issuance of Common Stock as equity compensation to employees, officers, directors and
independent contractor brokers (in each case including as inducements to new hires or appointees)
(collectively the “Equity Compensation Grants”), provided that this exception to the adjustment
provisions of this Section 7 is limited to the following Equity Compensation Grants: (A) the
issuance of any shares of common stock pursuant to any outstanding (as of April 15, 2011) options,
restricted stock awards, stock appreciation rights, phantom stock rights or other equity grants
(the “Existing Equity Compensation”), and (B) the issuance of an additional 2,000,000 shares of
Common Stock in the form of options, restricted stock awards, stock appreciation rights, phantom
stock rights or other equity grants (the “Additional Equity Compensation”) and the issuance of the
Common Stock underlying such Additional Equity Compensation plus any Additional Equity Compensation
and any Existing Equity Compensation that is forfeited, expired or terminated provided that any
amount issued in excess of the above will result in any requisite adjustment under this Section 7.


 


 









 





(b) Adjustment to Number of Warrant Shares Upon Issuance of Common Stock. Except in
the case of an event described in either Section 7(d) or Section 7(e), if Company shall, at any
time or from time to time after the Issue Date, issue or sell, or in accordance with Section 7(c)
is deemed to have issued or sold, any shares of Common Stock without consideration or for
consideration per share less than either: (i) the Per Share Market Value or (ii) the Trigger
Price, as such amounts are proportionately adjusted for stock splits, reverse stock splits, stock
combinations, stock dividends and other distributions and recapitalizations affecting the Common
Stock after the Issue Date, (collectively the “Original Prices” and the greater of (i) or (ii) the
“Original Adjustment Price”), then immediately upon such issuance or sale (or deemed issuance or
sale), the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to any
such issuance or sale (or deemed issuance or sale) shall be increased to a number of Warrant Shares
equal to the product obtained by multiplying the number of Warrant Shares issuable upon exercise of
this Warrant immediately prior to such issuance or sale (or deemed issuance or sale) by a fraction
(which shall in no event be less than one):



(i) the numerator of which shall be the number of shares of Common Stock then outstanding
immediately after such issuance or sale (or deemed issuance or sale); and



(ii) the denominator of which shall be the sum of (A) the number of shares of Common Stock
then outstanding immediately prior to such issuance or sale (or deemed issuance or sale) plus (B)
the aggregate number of shares of Common Stock which the aggregate amount of consideration, if any,
received by Company upon such issuance or sale (or deemed issuance or sale) would purchase at the
Original Adjustment Price.



(c) Effect of Certain Events on Adjustment to Number of Warrant Shares. For purposes
of determining the adjusted number of Warrant Shares under Section 7(b) hereof, the following shall
be applicable:



(i) Issuance of Options. If Company shall, at any time or from time to time after the
Issue Date, in any manner grant or sell (whether directly or by assumption in a merger or
otherwise) any Options, whether or not such Options or the right to convert or exchange any
Convertible Securities issuable upon the exercise of such Options are immediately exercisable, and
the price per share (determined as provided in this paragraph and in Section 7(c)(v)) for which
Common Stock is issuable upon the exercise of such Options or upon the conversion or exchange of
Convertible Securities issuable upon the exercise of such Options is less than either of the
Original Prices in effect immediately prior to the time of the granting or sale of such Options,
then the total maximum number of shares of Common Stock issuable upon the exercise of such Options
or upon conversion or exchange of the total maximum amount of Convertible Securities issuable upon
the exercise of such Options shall be deemed to have been issued as of the date of granting or sale
of such Options (and thereafter shall be deemed to be outstanding for purposes of adjusting the
number of Warrant Shares under Section 7(b)), at a price per share equal to the quotient obtained
by dividing (A) the sum (which sum shall constitute the applicable consideration received for
purposes of Section 7(b)) of (x) the total amount, if any, received or receivable by Company as
consideration for the granting or sale of all such Options, plus (y) the minimum aggregate amount
of additional consideration payable to Company upon the exercise of all such Options, plus (z), in
the case of such Options which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable to Company upon the issuance or sale of all such
Convertible Securities and the conversion or exchange of all such Convertible Securities, by (B)
the total maximum number of shares of Common Stock issuable upon the exercise of all such Options
or upon the conversion or exchange of all Convertible Securities issuable upon the exercise of all
such Options. Except as otherwise provided in Section 7(c)(iii), no further adjustment of the
number of Warrant Shares
shall be made upon the actual issuance of Common Stock or of Convertible Securities upon
exercise of such Options or upon the actual issuance of Common Stock upon conversion or exchange of
Convertible Securities issuable upon exercise of such Options.


 


 









 





(ii) Issuance of Convertible Securities. If Company shall, at any time or from time
to time after the Issue Date, in any manner grant or sell (whether directly or by assumption in a
merger or otherwise) any Convertible Securities, whether or not the right to convert or exchange
any such Convertible Securities is immediately exercisable, and the price per share (determined as
provided in this paragraph and in Section 7(c)(v)) for which Common Stock is issuable upon the
conversion or exchange of such Convertible Securities is less than either of the Original Prices in
effect immediately prior to the time of the granting or sale of such Convertible Securities, then
the total maximum number of shares of Common Stock issuable upon conversion or exchange of the
total maximum amount of such Convertible Securities shall be deemed to have been issued as of the
date of granting or sale of such Convertible Securities (and thereafter shall be deemed to be
outstanding for purposes of adjusting the number of Warrant Shares pursuant to Section 7(b)), at a
price per share equal to the quotient obtained by dividing (A) the sum (which sum shall constitute
the applicable consideration received for purposes of Section 7(b)) of (x) the total amount, if
any, received or receivable by Company as consideration for the granting or sale of such
Convertible Securities, plus (y) the minimum aggregate amount of additional consideration, if any,
payable to Company upon the conversion or exchange of all such Convertible Securities, by (B) the
total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities. Except as otherwise provided in Section 7(c)(iii), (A) no further
adjustment of the number of Warrant Shares shall be made upon the actual issuance of Common Stock
upon conversion or exchange of such Convertible Securities and (B) no further adjustment of the
number of Warrant Shares shall be made by reason of the issue or sale of Convertible Securities
upon exercise of any Options to purchase any such Convertible Securities for which adjustments of
the number of Warrant Shares have been made pursuant to the other provisions of this Section 7(c).



(iii) Change in Terms of Options or Convertible Securities. Upon any change in any of
(A) the total amount received or receivable by Company as consideration for the granting or sale of
any Options or Convertible Securities referred to in Section 7(c)(i) or Section 7(c)(ii) hereof,
(B) the minimum aggregate amount of additional consideration, if any, payable to Company upon the
exercise of any Options or upon the issuance, conversion or exchange of any Convertible Securities
referred to in Section 7(c)(i) or Section 7(c)(ii) hereof, (C) the rate at which Convertible
Securities referred to in Section 7(c)(i) or Section 7(c)(ii) hereof are convertible into or
exchangeable for Common Stock, or (D) the maximum number of shares of Common Stock issuable in
connection with any Options referred to in Section 7(c)(i) hereof or any Convertible Securities
referred to in Section 7(c)(ii) hereof, then (whether or not the original issuance or sale of such
Options or Convertible Securities resulted in an adjustment to the number of Warrant Shares
pursuant to this Section 7) the number of Warrant Shares issuable upon exercise of this Warrant at
the time of such change shall be adjusted or readjusted, as applicable, to the number of Warrant
Shares which would have been in effect at such time pursuant to the provisions of this Section 7
had such Options or Convertible Securities still outstanding provided for such changed
consideration, conversion rate or maximum number of shares, as the case may be, at the time
initially granted, issued or sold, but only if as a result of such adjustment or readjustment, the
number of Warrant Shares issuable upon exercise of this Warrant is increased.


 


 









 





(iv) Treatment of Expired or Terminated Options or Convertible Securities. Upon the
expiration or termination of any unexercised Option (or portion thereof) or any unconverted or
unexchanged Convertible Security (or portion thereof) for which any
adjustment (either upon its original issuance or upon a revision of its terms) was made
pursuant to this Section 7 (including without limitation upon the redemption or purchase for
consideration of all or any portion of such Option or Convertible Security by Company), the number
of Warrant Shares then issuable upon exercise of this Warrant shall forthwith be changed pursuant
to the provisions of this Section 7 to the number of Warrant Shares which would have been in effect
at the time of such expiration or termination had such unexercised Option (or portion thereof) or
unconverted or unexchanged Convertible Security (or portion thereof), to the extent outstanding
immediately prior to such expiration or termination, never been issued, provided that this Section
7(c)(iv) will not apply to the extent the Warrant is exercised.



(v) Calculation of Consideration Received. If Company shall, at any time or from time
to time after the Issue Date, issue or sell, or is deemed to have issued or sold in accordance with
Section 7(c), any shares of Common Stock, Options or Convertible Securities: (A) for cash, the
consideration received therefor shall be deemed to be the net amount received by Company therefor;
(B) for consideration other than cash, the amount of the consideration other than cash received by
Company shall be the fair value of such consideration, except where such consideration consists of
marketable securities, in which case the amount of consideration received by Company shall be the
Per Share Market Value for such securities as of the end of business on the date of receipt of such
securities; (C) for no specifically allocated consideration in connection with an issuance or sale
of other securities of Company, together comprising one integrated transaction, the amount of the
consideration therefor shall be deemed to be the fair value of such portion of the aggregate
consideration received by Company in such transaction as is attributable to such shares of Common
Stock, Options or Convertible Securities, as the case may be, issued in such transaction; or (D) to
the owners of the non-surviving entity in connection with any merger in which Company is the
surviving corporation, the amount of consideration therefor shall be deemed to be the fair value of
such portion of the net assets and business of the non-surviving entity as is attributable to such
shares of Common Stock, Options or Convertible Securities, as the case may be, issued to such
owners. The net amount of any cash consideration shall be the dollar amount thereof and the fair
value of any consideration other than cash or marketable securities shall be determined by an
Independent Appraiser.



(vi) Record Date. For purposes of any adjustment to the number of Warrant Shares in
accordance with this Section 7, in case Company shall take a record of the holders of its Common
Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in
Common Stock, Options or Convertible Securities or (B) to subscribe for or purchase Common Stock,
Options or Convertible Securities, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date of the granting of such right
of subscription or purchase, as the case may be, provided such distribution is actually made.



(vii) Treasury Shares. The number of shares of Common Stock outstanding at any given
time shall not include shares owned or held by or for the account of Company or any of its
wholly-owned subsidiaries, and the disposition of any such shares (other than the cancellation or
retirement thereof or the transfer of such shares among Company and its wholly-owned subsidiaries)
shall be considered an issue or sale of Common Stock for the purpose of this Section 7.


 


 









 





(viii) Other Dividends and Distributions. Subject to the provisions of this Section
7(c), if Company shall, at any time or from time to time after the Issue Date, make or declare, or
fix a record date for the determination of holders of Common Stock entitled to receive, a dividend
or any other distribution payable in securities of Company (other
than a dividend or distribution of shares of Common Stock, Options or Convertible Securities
in respect of outstanding shares of Common Stock), cash or other property, then, and in each such
event, provision shall be made so that the Holder shall receive upon exercise of the Warrant, in
addition to the number of Warrant Shares receivable thereupon, the kind and amount of securities of
Company, cash or other property which the Holder would have been entitled to receive had the
Warrant been exercised in full into Warrant Shares on the date of such event and had the Holder
thereafter, during the period from the date of such event to and including the Exercise Date (as
hereinafter defined), retained such securities, cash or other property receivable by them as
aforesaid during such period, giving application to all adjustments called for during such period
under this Section 7 with respect to the rights of the Holder; provided, that no such provision
shall be made if the Holder receives, simultaneously with the distribution to the holders of Common
Stock, a dividend or other distribution of such securities, cash or other property in an amount
equal to the amount of such securities, cash or other property as the Holder would have received if
the Warrant had been exercised in full into Warrant Shares on the date of such event.



(d) Adjustment to Number of Warrant Shares Upon Dividend, Subdivision or Combination of
Common Stock. If Company shall, at any time or from time to time after the Issue Date, (i) pay
a dividend or make any other distribution upon the Common Stock or any other capital stock of
Company payable in shares of Common Stock or in Options or Convertible Securities, or (ii)
subdivide (by any stock split, recapitalization or otherwise) its outstanding shares of Common
Stock into a greater number of shares, the number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to any such dividend, distribution or subdivision shall be
proportionately increased. If Company at any time combines (by combination, reverse stock split or
otherwise) its outstanding shares of Common Stock into a smaller number of shares, the number of
Warrant Shares issuable upon exercise of this Warrant immediately prior to such combination shall
be proportionately decreased. Any adjustment under this Section 7(d) shall become effective at the
close of business on the date the dividend, subdivision or combination becomes effective.



(e) Adjustment to Number of Warrant Shares Upon Reorganization, Reclassification,
Consolidation or Merger. Subject to Section 2(a), in the event of any (i) capital
reorganization of Company, (ii) reclassification of the stock of Company (other than a change in
par value or from par value to no par value or from no par value to par value or as a result of a
stock dividend or subdivision, split-up or combination of shares), (iii) consolidation or merger of
Company with or into another Person, (iv) sale of all or substantially all of Company’s assets to
another Person, (v) transaction constituting a Fundamental Change or (v) other similar transaction
(other than any such transaction covered by Section 7(d)), in each case which entitles the holders
of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities or
assets with respect to or in exchange for Common Stock, each Warrant shall, immediately after such
reorganization, reclassification, consolidation, merger, sale or similar transaction, remain
outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of
Warrant Shares then exercisable under this Warrant, be exercisable for the kind and number of
shares of stock or other securities or assets of Company or of the successor Person resulting from
such transaction to which the Holder would have been entitled upon such reorganization,
reclassification, consolidation, merger, sale or similar transaction if the Holder had exercised
this Warrant in full immediately prior to the time of such reorganization, reclassification,
consolidation, merger, sale or similar transaction and acquired the applicable number of Warrant
Shares then issuable hereunder as a result of such exercise (without taking into account any
limitations or restrictions on the exercisability of this Warrant); and, in such case, appropriate
adjustment (in form and substance satisfactory to the Holder) shall be


 


 









 





made with respect to the
Holder’s rights under this Warrant to insure that the provisions
of this Section 7 hereof shall thereafter be applicable, as nearly as possible, to this Warrant in relation to
any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant. In
the event of a Fundamental Change, following which the Warrants would cease to represent the right
to acquire securities, no adjustment shall be made pursuant to the terms hereof. The provisions of
this Section 7(e) shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales or similar transactions. Company shall not effect any such
reorganization, reclassification, consolidation, merger, sale or similar transaction unless, prior
to the consummation thereof, the successor Person (if other than Company) resulting from such
reorganization, reclassification, consolidation, merger, sale or similar transaction, shall assume,
by written instrument substantially similar in form and substance to this Warrant and satisfactory
to the Holder, the obligation to deliver to the Holder such shares of stock, securities or assets
which, in accordance with the foregoing provisions, such Holder shall be entitled to receive upon
exercise of this Warrant. Notwithstanding anything to the contrary contained herein, if the Warrant
is exercisable in accordance with Section 2 hereof with respect to any corporate event or other
transaction contemplated by the provisions of this Section 7(e), the Holder shall have the right to
elect prior to the consummation of such event or transaction, to give effect to the exercise rights
contained in Section 3 instead of giving effect to the provisions contained in this Section 7(e)
with respect to this Warrant.



(f) Certain Events. If any event of the type contemplated by the provisions of this
Section 7 but not expressly provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or other rights with equity features)
occurs, then the Board shall make an appropriate adjustment in the number of Warrant Shares
issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner
consistent with the provisions of this Section 7; provided, that no such adjustment pursuant to
this Section 7(f) shall decrease the number of Warrant Shares issuable as otherwise determined
pursuant to this Section 7.



8. Notice of Adjustments. Whenever the kind or number of securities issuable under
this Warrant shall be adjusted pursuant to Section 7 hereof, Company shall prepare a certificate
signed by an officer of Company setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and
number or kind of shares issuable upon exercise of this Warrant after giving effect to such
adjustment, and shall cause copies of such certificate to be mailed (by certified or registered
mail, return receipt required, postage prepaid) within thirty (30) days of such adjustment to
Holder as set forth in Section 20 hereof.



9. Financial and Other Reports. From time to time up to the earlier of the Expiration
Date or the complete exercise of this Warrant, Company shall furnish to Holder, if Company is a
private company, (a) unaudited consolidated and, if available, consolidating balance sheets,
statements of operations and cash flow statements within 30 days of each fiscal month of each
fiscal year, certified by Company’s president or chief financial officer, and (b) Company’s
complete annual audited consolidated and, if available, consolidating balance sheets, statements of
operations and cash flow statements certified by an independent certified public accountant
selected by Company within 120 days of the fiscal year end or, if sooner, promptly following such
time as Company’s Board of Directors receives the audit. If Company is a publicly held company, it
shall deliver to Holder quarterly unaudited consolidated and, if available, consolidating balance
sheets, statements of operations and cash flow statements and annual audited consolidated and, if
available, consolidating balance sheets, statements of operations and cash flow statements,
certified by a recognized firm of certified public accountants, within 5 days after the statements
are required to be provided to the SEC. All such statements are to be prepared using GAAP and, if
Company is a publicly held company, are to be in compliance with
SEC requirements. At the time of Company’s delivery of quarterly financial statements in
accordance with this Section 9, Company shall also deliver to Holder an updated capitalization
table of Company in the form attached hereto as Annex A. For so long as Company is a privately
held company, Holder agrees to hold in confidence and trust and not to improperly use or disclose
any information provided to or learned by Holder in connection with its rights under this Section 9
regarding the business as conducted by Company as of today’s date on the same terms and conditions
as set forth in Section 11.8 of the Credit Agreement.


 


 









 





10. Transferability of Warrant. This Warrant is transferable on the books of Company
at its principal office by the registered Holder upon surrender of this Warrant properly endorsed,
subject to compliance with Section 6 and applicable federal and state securities laws. Company
shall issue and deliver to the transferee a new Warrant representing the Warrant so transferred.
Upon any partial transfer, Company will issue and deliver to Holder a new Warrant with respect to
the Warrant not so transferred. Holder shall not have any right to transfer any portion of this
Warrant to any direct competitor of Company or to any significant shareholder or any direct or
indirect subsidiary of any such direct competitor of the Company which is known or should be known
as such to the Holder.



11. Registration Rights. Company grants registration rights to Holder of this Warrant
for any Common Stock of Company obtained by Holder upon exercise or conversion of this Warrant,
pursuant to the Registration Rights Agreement dated as of April 15, 2011 between Grubb & Ellis
Company CDCF II GNE Holding, LLC and CFI GNE Warrant Investor, LLC and subject to pro rata
limitations on the number of securities which can be included in a registration among other persons
who have the right to register securities pursuant to “piggyback” rights afforded to such persons.



12. No Fractional Shares. No fractional share of Common Stock will be issued in
connection with any exercise or conversion hereunder, but in lieu of such fractional share Company
shall make a cash payment therefor upon the basis of the Warrant Price then in effect.



13. Charges, Taxes and Expenses. Issuance of certificates for shares of Common Stock
upon the exercise or conversion of this Warrant shall be made without charge to Holder for any
United States or state of the United States documentary stamp tax or other incidental expense with
respect to the issuance of such certificate, all of which taxes and expenses shall be paid by
Company, and such certificates shall be issued in the name of Holder.



14. No Shareholder Rights Until Exercise; Additional Rights. Except as expressly
provided herein, this Warrant does not entitle Holder to any voting rights or other rights as a
shareholder of Company prior to the exercise hereof. Company agrees that if it shall at any time
in any manner grant to or confer upon any other holder of a warrant any right or benefit that has
the effect of establishing rights or otherwise benefiting the holder of any such warrant, in their
capacity as holder of such warrant, in a manner more favorable than the rights and benefits
established in favor of the Holder (“Additional Rights”) then, in each case, the Holder shall
automatically and without further action on behalf of Holder or Company receive substantially the
same rights and benefits as the Additional Rights afforded to such other holder of a warrant.



15. Registry of Warrant. Company shall maintain a registry showing the name and
address of the registered Holder of this Warrant. This Warrant may be surrendered for exchange or
exercise, in accordance with its terms, at such office or agency of Company, and Company and Holder
shall be entitled to rely in all respects, prior to written notice to the contrary, upon such
registry.


 


 









 





16. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and, in the case of loss, theft, or destruction, of indemnity reasonably satisfactory to
it, and, if mutilated, upon surrender and cancellation of this Warrant, Company will execute and
deliver a new Warrant, having terms and conditions substantially identical to this Warrant, in lieu
hereof.



17. Definitions. For purposes of this Warrant, the following terms have the following
meanings:



“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.




“Board” means the board of directors of Company.



“Capital Stock” of any person means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock or other equity participations,
including partnership interests, whether general or limited, of such person and any rights (other
than debt securities convertible and exchangeable into an equity interest), warrants or options to
acquire an equity interest in such person.



“Convertible Securities” means any securities (directly or indirectly) convertible
into or exchangeable for Common Stock, but excluding Options.



“Early Termination Event” means any consummation of (a) any recapitalization,
reclassification or change of Common Stock (other than changes resulting from a subdivision or
combination) as a result of which Common Stock would be converted into cash, or (b) any
consolidation or merger involving Company pursuant to which Common Stock will be converted into
cash; provided that in the case of either (a) or (b) of this definition, the
applicable transaction is an all-cash transaction, and each holder of Common Stock receives an
amount less than the Trigger Price.



“Exercise Date” means, for any given exercise of this Warrant, the date on which the
conditions to such exercise as set forth in Section 2 shall have been satisfied at or prior to 5:00
p.m., Pacific time, on a Business Day, including, without limitation, the receipt by Company of the
Exercise Agreement, the Warrant and the Aggregate Exercise Price.



“Fundamental Change” means the occurrence after the time of the Issue Date, the
following:



(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act or any successor provisions to either of the foregoing), including any group acting
for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, becomes the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act, except that a person will be deemed to have “beneficial ownership” of all shares
that any such person has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 50% or more of the total voting power
of Company’s Voting Stock (other than as a result of any merger, share exchange, transfer of assets
or similar transaction solely for the purpose of changing Company’s
jurisdiction of incorporation and resulting in a reclassification, conversion or exchange of
outstanding shares of Common Stock solely into shares of Common Stock of the surviving entity); or


 


 









 





(b) consummation of (A) any recapitalization, reclassification or change of Common Stock
(other than changes resulting from a subdivision or combination) as a result of which Common Stock
would be converted into, or exchanged for, stock, other securities, other property or assets, or
(B) any statutory share exchange, consolidation or merger involving Company pursuant to which
Common Stock will be converted into cash, securities or other property, or (C) any sale, transfer,
assignment, lease, conveyance or other disposition, directly or indirectly, of all or substantially
all Company’s assets and the assets of Company’s Subsidiaries, considered as a whole (other than a
disposition of such assets as an entirety or virtually as an entirety to a wholly-owned Subsidiary)
shall have occurred, provided that the following shall not be a Fundamental Change:



(i) any transaction pursuant to which holders of Company’s Capital Stock immediately prior to
the transaction are entitled to exercise, directly or indirectly, 50% or more of the total voting
power of all shares of Capital Stock entitled to vote generally in the election of directors of the
continuing or surviving Person immediately after the transaction; or



(ii) any merger, share exchange, transfer of assets or similar transaction solely for the
purpose of changing Company’s jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of common stock solely into shares of common stock of
the surviving entity; or



(c) during any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (together with any new directors whose nomination,
election or appointment by such board or whose nomination for election by Company’s stockholders
was approved by a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election, nomination or appointment was
previously so approved) cease for any reason to constitute 50% or more of the Board of Directors
then in office; or




(d) Company’s stockholders shall have approved any plan of liquidation or dissolution; or



(e) the Common Stock (or other common stock into which the Securities are then convertible
pursuant to the terms of this Indenture) ceases to be listed on the New York Stock Exchange, the
Nasdaq Global Select Market, the Nasdaq Global Market or the NYSE Amex (or their respective
successors).



“Independent Appraiser” means a nationally recognized or major regional investment
banking firm or firm of independent certified public accountants of recognized standing (which may
be the firm that regularly examines the financial statements of Company) that is regularly engaged
in the business of appraising the Capital Stock or assets of corporations or other entities as
going concerns, and which is not affiliated with either Company or the Holder of any Warrant.



“Options” means any warrants or other rights or options to subscribe for or purchase
Common Stock or Convertible Securities.


 


 









 





“Per Share Market Value” means on any particular date (a) the last sale price per
share of the Common Stock on such date on the NYSE Amex (or their respective successors) or
another registered national stock exchange on which the Common Stock is then listed, or if there is
no such price on such date, then the closing bid price or last sale price, as applicable, on such
exchange or quotation system on the date nearest preceding such date, or (b) if the Common Stock is
not listed then on the NYSE Amex (or their respective successors). or any registered national stock
exchange, the closing bid price or last sale price, as applicable, for a share of Common Stock in
the over the counter market, as reported by the OTC Bulletin Board or in the National Quotation
Bureau Incorporated or similar organization or agency succeeding to its functions of reporting
prices) at the close of business on such date, or (c) if the Common Stock is not then reported by
the OTC Bulletin Board or the National Quotation Bureau Incorporated (or similar organization or
agency succeeding to its functions of reporting prices), then the average of the “Pink Sheet”
quotes for the five (5) Trading Days preceding such date of determination, or (d) if the Common
Stock is not then publicly traded the fair market value of a share of Common Stock as determined by
an Independent Appraiser mutually agreeable to Company and the Holder; provided, that all
determinations of the Per Share Market Value shall be appropriately adjusted for any stock
dividends, stock splits or other similar transactions during such period. The determination of
fair market value by an Independent Appraiser shall be based upon the fair market value of Company
determined on a going concern basis as between a willing buyer and a willing seller and taking into
account all relevant factors determinative of value, and shall be final and binding on all parties.
In determining the fair market value of any shares of Common Stock, no consideration shall be
given to any restrictions on transfer of the Common Stock imposed by agreement or by federal or
state securities laws, or to the existence or absence of, or any limitations on, voting rights.



“Person” means any individual, sole proprietorship, partnership, limited liability
company, corporation, joint venture, trust, incorporated organization or government or department
or agency thereof.




“Trading Day” means a day on which the principal Trading Market is open for trading.



“Trading Market” means any of the following markets or exchanges on which the Common
Shares are listed or quoted for trading on the date in question: the NYSE AMEX, the Nasdaq Capital
Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange
(or any successors to any of the foregoing).



“Voting Stock” of any person means Capital Stock of such person which ordinarily has
voting power for the election of directors (or persons performing similar functions) of such
person, whether at all times or only for so long as no senior class of securities has such voting
power by reason of any contingency.



“VWAP” means, for any date, the price determined by the first of the following clauses
that applies: (a) if the Common Shares are then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Shares for such date (or the nearest preceding date) on
the Trading Market on which the Common Shares are then listed or quoted as reported by Bloomberg
L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
time)), (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price
of the Common Shares for such date (or the nearest preceding date) on the OTC Bulletin Board, (c)
if the Common Shares are not then listed or quoted for trading on the OTC Bulletin Board and if
prices for the Common Shares are then reported in the “Pink Sheets” published by Pink OTC Markets,
Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the
most recent bid price per Common Share so reported, or (d) in all other cases, the fair market
value of a Common Share as determined by an
Independent Appraiser selected in good faith by the holders of a majority in interest of the
Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.


 


 









 






18. Miscellaneous.



(a) Issue Date. The provisions of this Warrant shall be construed and shall be given
effect in all respect as if it had been issued and delivered by Company on April 15, 2011.



(b) Successors. This Warrant shall be binding upon any successors or assigns of
Company.



(c) Headings. The headings used in this Warrant are used for convenience only and are
not to be considered in construing or interpreting this Warrant.



(d) Saturdays, Sundays, Holidays. If the last or appointed day for the taking of any
action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or
shall be a legal holiday in the State of New York, then such action may be taken or such right may
be exercised on the next succeeding day not a legal holiday.



(e) Attorney’s Fees. In the event of any dispute between the parties concerning the
terms and provisions of this Warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs incurred in such dispute, including reasonable attorney’s
fees.



19. No Impairment. Company will not, by amendment of its Certificate of Incorporation
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate in order to protect
the rights of Holder against impairment.



20. Addresses. Any notice required or permitted hereunder shall be in writing and
shall be mailed by overnight courier, registered or certified mail, return receipt requested, and
postage prepaid, or otherwise delivered by hand or by messenger, addressed as set forth below, or
at such other address as Company or Holder shall have furnished to the other party in accordance
with the delivery instructions set forth in this Section 20.



	 	 	 	 	 
	 

	 	If to Company:
	 	Grubb & Ellis Company

1551 N. Tustin Ave., Suite 300

Santa Ana, CA 92705

Attn: Chief Financial Officer
	 
	 	 	 	 
	 

	 	With Copies to:
	 	Zukerman, Gore, Brandeis & Crossman, LLP

875 Third Avenue

New York, NY 10022

Attn: Clifford A. Brandeis
	 
	 	 	 	 
	 

	 	If to Holder:
	 	[_____]

Attn: [_____]
	 
	 	 	 	 
	 

	 	With Copies to:
	 	Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue, Suite 3400

Los Angeles, California 90071

Attn: Rick Madden and Kristine Dunn






 


 









 






If mailed by registered or certified mail, return receipt requested, and postage prepaid,
notice shall be deemed to be given five (5) days after being sent, and if sent by overnight
courier, by hand or by messenger, notice shall be deemed to be given when delivered (if on a
business day, and if not, on the next business day).



21. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS WARRANT OR THE
WARRANT SHARES.



22. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF THAT WOULD REQUIRE THE APPLICATION OF ANOTHER STATE’S LAWS.



[Remainder of page intentionally left blank]




 


 









 







IN WITNESS WHEREOF, Company has caused this Warrant to be executed by its officer thereunto
duly authorized.



GRUBBS & ELLIS COMPANY




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 
	 	 
	 

	 	 	 	 

	 	 






Dated as of
 _____,
 _____.




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	Accepted and Agreed to	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By: [__________________________]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 
	 	 
	 

	 	 	 	 	 	 

	 	 






 


 









 





NOTICE OF EXERCISE




To:

[Name of Company]


                                        


                                        


                                        




	2.	 	The undersigned Warrantholder (“Holder”) elects to acquire shares of the Common Stock (the
“Common Stock”) of
 _____ 

(the “Company”), pursuant to the terms of the Stock Purchase
Warrant issued effective [•] (the “Warrant”).
	 
	3.	 	Holder exercises its rights under the Warrant as set forth below:






	 	(     )	 	 Holder elects to purchase
 _____ 

shares of
Common Stock as provided in Section 3(a) and tenders herewith a check in the
amount of $_____ 

as payment of the purchase price.






	 	(     )	 	 Holder elects to convert the purchase rights into
 shares of Common Stock as provided in Section 3(b) of the Warrant.






	 	(     )	 	 Holder elects to convert the purchase rights into
 shares of Common Stock as provided in Section 3(c) of the Warrant.






	4.	 	Holder surrenders the Warrant with this Notice of Exercise.





Holder represents that it is acquiring the aforesaid shares of Common Stock for investment and not
with a view to or for resale in connection with distribution and that Holder has no present
intention of distributing or reselling the shares.



Please issue a certificate representing the shares of the Common Stock in the name of Holder or in
such other name as is specified below:



	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Taxpayer I.D.:	 	 	 	 
	 

	 	 	 	 

	 	 






 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	[NAME OF HOLDER]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:	 	 
	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Date: _______ ___, 20____	 	 







 


 









 







ANNEX A




FORM OF




CAPITALIZATION TABLE




(as of June 30, 2011)




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Number of Shares	 
	 	 	Amount	 	 	 	 	 	 	Outstanding (or Shares	 
	Class of Stock or Equity	 	Authorized	 	 	Amount	 	 	underlying such equity	 
	Interest	 	(if applicable)	 	 	Outstanding	 	 	interest)	 
	Common Stock; $0.01
par value
	 	 	200,000,000	 	 	 	69,921,581	(1)	 	 	69,921,581	 
	Preferred Stock;
$0.01 par value
	 	 	19,000,000	 	 	 	0	 	 	 	0	 
	12% Cumulative
Participating
Perpetual
Convertible
Preferred Stock;
$0.01 par value
	 	 	1,000,000	 	 	 	965,700	 	 	 	58,527,214	 
	Options
	 	 	         (2)	 	 	 	321,400	 	 	 	321,400	 
	Unvested Restricted
Stock
	 	 	         (2)	 	 	 	4,257,843	 	 	 	4,257,843	 
	Phantom Stock
	 	 	NA	 	 	4,058,251	 	 	 	4,058,251	 
	Treasury Stock
	 	 	NA	 	 	1,267,974	 	 	 	1,267,974	 
	7.95% convertible
senior securities
due 2015;
convertible at the
rate of 445.583
Shares for each
$1,000 principal
amount
	 	 	NA	 	$	31,500,000	 	 	 	14,035,865	 








	 	 	 
	(1)	 	Includes Unvested Restricted Stock set forth on this table, but does not
include Phantom Stock set forth in this table.
	 
	(2) 	 	590,175 Shares remaining available for future issuance under previously
authorized equity compensation plans.





 


 











 







EXHIBIT B




FORM OF DAYMARK SALE AGREEMENT

[Provided under separate cover]




 


 









 







EXHIBIT C




FORM OF GUARANTY AND LIEN RELEASE

[Provided under separate cover]