Exhibit 10.2





Exhibit 10.2




REGISTRATION RIGHTS AGREEMENT




dated as of May 7, 2010




between




Grubb & Ellis Company




and




JMP Securities LLC,




as Initial Purchaser



 


 









 





REGISTRATION RIGHTS AGREEMENT dated as of May 7, 2010 between Grubb & Ellis Company, a
Delaware corporation (the “Company”), and JMP Securities LLC, as initial purchaser (the “Initial
Purchaser”) to the Purchase Agreement dated as of May3, 2010 (the “Purchase Agreement”) with the
Company. In order to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.



The Company agrees with the Initial Purchaser, (i) for its benefit as Initial Purchaser and
(ii) for the benefit of the beneficial owners (including the Initial Purchaser) from time to time
of the Securities (as defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Securities (each of the foregoing a
“Holder” and together the “Holders”), as follows:



Section 1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:




“Additional Filing Deadline” has the meaning set forth in Section 2(f)(v) hereof.




“Additional Interest Amount” has the meaning set forth in Section 2(f) hereof.



“Affiliate” means with respect to any specified person, an “affiliate,” as defined in Rule
144, of such person.




“Amendment Effectiveness Deadline” has the meaning set forth in Section 2(e)(i) hereof.



“Business Day” means any day, except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York are authorized or obligated by law or executive order to
close.



“Common Stock” means the shares of common stock, par value $0.01 per share, of the Company,
and any other shares of common stock as may constitute “Common Stock” for purposes of the
Indenture, including the Underlying Common Stock.




“Deferral Notice” has the meaning set forth in Section 3(h) hereof.




“Deferral Period” has the meaning set forth in Section 3(h) hereof.




“Effectiveness Deadline” has the meaning set forth in Section 2(a) hereof.



“Effectiveness Period” means the period commencing on the first date that a Shelf Registration
Statement is declared effective under the Securities Act hereof and ending on the date that all
Securities and the Underlying Common Stock have ceased to be Registrable Securities.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.




“Filing Deadline” has the meaning set forth in Section 2(a) hereof.




“FINRA” means the Financial Industry Regulatory Authority, Inc.




“Free Writing Prospectus” has the meaning set forth in Rule 405.




“Fundamental Change Purchase Date” has the meaning set forth in the Indenture.



“Holder” has the meaning set forth in the second paragraph of this Agreement.


 


 









 






“indemnified party” has the meaning set forth in Section 6(c).




“indemnifying party” has the meaning set forth in Section 6(c).



“Indenture” means the Indenture dated as of the date hereof between the Company and the
Trustee, pursuant to which the Securities are being issued.




“Initial Purchaser” has the meaning set forth in the preamble hereof.




“Interest Payment Date” means each May 1 and November 1 of each year.




“Issue Date” means the last date of original issuance of the Securities.




“Issuer Free Writing Prospectus” has the meaning set forth in Rule 433.




“Material Event” has the meaning set forth in Section 3(h) hereof.



“Notice and Questionnaire” means a written notice delivered to the Company containing
substantially the information called for by the Selling Securityholder Notice and Questionnaire
attached as Annex A to the Offering Memorandum of the Company dated as of May 3, 2010 relating to
the Securities.



“Notice Holder” means, on any date, any Holder that has delivered a Notice and Questionnaire
to the Company on or prior to such date.




“Purchase Agreement” has the meaning set forth in the preamble hereof.



“Prospectus” means a prospectus relating to a Shelf Registration Statement, as amended or
supplemented, and all materials incorporated by reference in such Prospectus.




“Record Date” means each April 15 and October 15 of each year.



“Record Holder” means with respect to any Interest Payment Date relating to any Securities as
to which any Additional Interest Amount has accrued, the registered holder of such Security on the
Record Date immediately preceding the Interest Payment Date.




“Redemption Date” has the meaning set forth in the Indenture



“Registrable Securities” means the Securities, the Underlying Common Stock and any securities
into or for which such Underlying Common Stock has been converted or exchanged, and any security
issued with respect thereto upon any stock dividend, split or similar event until, in the case of
any such security, the earliest of (i) its effective registration under the Securities Act and
resale in accordance with a Shelf Registration Statement, (ii) two years after the Issue Date, and
(iii) in the case of the Securities, the conversion or exchange of such Securities for Underlying
Common Stock.




“Registration Default” has the meaning set forth in Section 2(f) hereof.




“Registration Default Period” has the meaning set forth in Section 2(f) hereof.



“Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.



“Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.


 


2.









 





“Rule 405” means Rule 405 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.



“Rule 424” means Rule 424 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.



“Rule 430(b)” means Rule 430(b) under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



“Rule 433” means Rule 433 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC.




“Scheduled Trading Day” has the meaning set forth in the Indenture.




“SEC” means the Securities and Exchange Commission.



“Securities” means the 7.95% Convertible Senior Notes due 2015 of the Company to be purchased
pursuant to the Purchase Agreement, including any Securities purchased by the Initial Purchaser
upon exercise of its option to purchase additional Securities and any Securities purchased by the
holders of the Company’s 12% Cumulative Participating Perpetual Convertible Preferred stock
pursuant to their preemptive right.



“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.



“Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof, including
amendments to such registration statement, all exhibits to such registration statement and all
materials incorporated by reference in such registration statement.



“Special Counsel” means Cooley LLP or one such other successor counsel as shall be specified
by the Holders of a majority of the Registrable Securities, but which may, with the written consent
of the Initial Purchaser (which shall not be unreasonably withheld), be another nationally
recognized law firm experienced in securities law matters designated by the Company. For purposes
of determining Holders of a majority of the Registrable Securities in this definition, Holders of
Securities shall be deemed to be the Holders of the number of shares of Underlying Common Stock
into which such Securities have been or would be convertible as of the date the consent is
requested.




“Stated Maturity Date” has the meaning set forth in the Indenture.




“Trustee” means U.S. Bank, National Association, the Trustee under the Indenture.



“Underlying Common Stock” means the Common Stock into which the Securities are convertible or
issued upon any such conversion.



Section 2. Shelf Registration. (a) The Company shall prepare and file or cause to be prepared
and filed with the SEC, as soon as practicable but in any event by June 30, 2010 (the “Filing
Deadline”), a registration statement for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 of the Securities Act registering the resale from time to time by Holders of
the Registrable Securities (a “Shelf Registration Statement”). The Shelf Registration Statement
shall be on Form S-3 or another appropriate form permitting registration of the Registrable
Securities for resale by the Holders in accordance with the methods of distribution elected by the
Holders and set forth in the Shelf Registration Statement. If the Company is eligible pursuant to
Rule 430B(b) to omit from the related Prospectus the identities of selling securityholders and the
amounts of securities to be registered on their behalf, the Company shall prepare and file each
Shelf Registration Statement in a manner as to permit such omission and to allow for the subsequent
filing of such information in a Prospectus pursuant to Rule 424(b) in the manner contemplated by
Rule 430B(d). The Company shall use its commercially reasonable efforts to cause a Shelf
Registration Statement to be declared effective under the Securities Act as promptly as is
practicable



 


3.









 






but in any event by the date (the “Effectiveness Deadline”) that is 85 days after the Closing
Date (or 115 days after the Closing Date if the registration statement is reviewed by the SEC), and
to keep a Shelf Registration Statement continuously effective under the Securities Act until the
expiration of the Effectiveness Period. Each Holder that became a Notice Holder on or prior to the
date five Business Days prior to the date the initial Shelf Registration Statement is declared
effective shall be named as a selling securityholder in the initial Shelf Registration Statement
and the related Prospectus in such a manner as to permit such Holder to deliver the Prospectus to
purchasers of Registrable Securities in accordance with applicable law. None of the Company’s
security holders shall have the right to include any of the Company’s securities in a Shelf
Registration Statement, other than (i) the Holders and (ii) Kojaian Ventures L.L.C. and Kojaian
Holdings, LLC., both of which are affiliates of the Company’s chairman of the board, who have been
granted certain registration rights, including demand registration rights and “piggy-back”
registration rights, with respect to certain shares held by them and any of their affiliates
pursuant to a registration rights agreement among the Company and Kojaian Ventures L.L.C. and
Kojaian Holdings, LLC.



(b) If a Shelf Registration Statement covering resales of the Registrable Securities ceases to
be effective for any reason at any time during the Effectiveness Period (other than because all
securities registered thereunder shall have been resold pursuant thereto or shall have otherwise
ceased to be Registrable Securities), the Company shall use its commercially reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement so that all Registrable Securities
outstanding as of the date of such filing are covered by a Shelf Registration Statement. If a new
Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to
cause the new Shelf Registration Statement to become effective as promptly as is practicable after
such filing and to keep the new Shelf Registration Statement continuously effective until the end
of the Effectiveness Period.



(c) The Company shall amend and supplement the Prospectus and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or file a new Shelf Registration
Statement, if required by the Securities Act, or any other documents necessary to name a Notice
Holder as a selling securityholder pursuant to Section 2(e) below.



(d) The Company agrees that, unless it obtains the prior consent of the Holders of a majority
of the Registrable Securities that are registered under the Shelf Registration Statement at such
time or the consent of the managing underwriters in connection with any underwritten offering of
Registrable Securities, and each Holder agrees that, unless it obtains the prior written consent of
the Company and any such underwriters, it will not make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a Free
Writing Prospectus required to be filed with the SEC. The Company represents that any Issuer Free
Writing Prospectus prepared by it or authorized by it in writing for use by such Holder will not
include any information that conflicts with the information contained in the Shelf Registration
Statement or the Prospectus and, any such Issuer Free Writing Prospectus, when taken together with
the information in the Shelf Registration Statement and the Prospectus, will not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading.



(e) Each Holder may sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus only in accordance with this Section 2(e) and Section 3(h). Each Holder wishing
to sell Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus
shall deliver a Notice and Questionnaire to the Company prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement. From and after the date the initial
Shelf Registration Statement is declared effective, the Company shall, as promptly as practicable
after the date a fully completed Notice and Questionnaire is delivered, and in any event upon the
later of (x) 30 calendar days after such date or (y) 60 calendar days after the expiration of any
Deferral Period in effect when the Notice and Questionnaire is delivered or put into effect within
5 Business Days of such delivery date:


 


4.









 





(i) if required by applicable law, file with the SEC a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document incorporated therein by reference
or file a new Shelf Registration
Statement or any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in a Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of the Registrable Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to a Shelf Registration Statement or shall file a new Shelf
Registration Statement, the Company shall use its commercially reasonable efforts to cause such
post-effective amendment or new Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the date (the “Amendment
Effectiveness Deadline”) that is 45 days after the date such post-effective amendment or new Shelf
Registration Statement is required by this clause to be filed;




(ii) provide such Holder copies of any documents filed pursuant to Section 2(e)(i); and



(iii) notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any new Shelf Registration Statement or post-effective amendment filed pursuant
to Section 2(e)(i);



provided that if such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance
with Section 3(h). Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling securityholder in
any Shelf Registration Statement or related Prospectus.



(f) The parties hereto agree that the Holders of Registrable Securities will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with precision, if:




(i) a Shelf Registration Statement has not been filed on or prior to the Filing Deadline;



(ii) a Shelf Registration Statement has not been declared effective under the Securities Act
on or prior to the Effectiveness Deadline;



(iii) the Company has failed to perform its obligations set forth in Section 2(e)(i) within
the time period required therein;



(iv) a new Shelf Registration Statement or a post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(e)(i) has not become effective under the Securities Act on or
prior to the Amendment Effectiveness Deadline;



(v) a supplement to a Prospectus is required to be filed with the SEC pursuant to Section
2(e)(i) and fails to be filed with the SEC within the prescribed period and in the manner set forth
in Section 2(e) above (a date such filing is required to be made, an “Additional Filing Deadline”);
or



(vi) the aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(h) hereof.



Each event described in any of the foregoing clauses (i) through (vi) is individually referred
to herein as a “Registration Default” For purposes of this Agreement, each Registration Default set
forth above shall begin and end on the dates set forth in the table set forth below:



	 	 	 	 	 
	Type of	 	 	 	 
	Registration	 	 	 	 
	Default by Clause	 	Beginning Date	 	Ending Date
	(i)

	 	Filing Deadline
	 	the date a Shelf Registration Statement is filed
	 
	(ii)

	 	Effectiveness Deadline
	 	the date a Shelf Registration Statement becomes
effective under the Securities Act
	 
	(iii)

	 	the date by which the Company
is required to perform its
obligations under Section
2(e)(i) (taking into account
the last sentence of Section
2(e))
	 	the date the Company performs its obligations
set forth in Section 2(e)(i)






 


5.









 





	 	 	 	 	 
	Type of	 	 	 	 
	Registration	 	 	 	 
	Default by Clause	 	Beginning Date	 	Ending Date
	 
	 	 	 	 
	(iv)

	 	the Amendment Effectiveness
Deadline (taking into account
the last sentence of Section
2(e))
	 	the date the applicable post-effective
amendment to a Shelf Registration Statement or
a new Shelf Registration Statement becomes
effective under the Securities Act
	 
	 	 	 	 
	(v)

	 	the Additional Filing Deadline
	 	the date the applicable supplement to a
Prospectus is filed with the SEC in the manner
set forth in Section 2(e)
	 
	 	 	 	 
	(vi)

	 	the date on which the
aggregate duration of
Deferral Periods in any
period exceeds the number of
days permitted by Section
3(h)
	 	termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral
Periods to be exceeded






For purposes of this Agreement, Registration Defaults shall begin on the dates set forth in the
table above and shall continue until the ending dates set forth in the table above.



Commencing on (and including) any date that a Registration Default has begun and ending on
(but excluding) the next date on which there are no Registration Defaults that have occurred and
are continuing (a “Registration Default Period”), the Company shall pay to Record Holders of
Securities in respect of each day in the Registration Default Period, additional interest in
respect of any Security, (i)(a) at a rate per annum equal to 0.25% of the aggregate principal
amount of such Security for the first 90 days of such Registration Default and (b) a rate per annum
equal to 0.50% of the aggregate principal amount of such Security thereafter; or (ii)(a) a rate per
annum equal to 0.25% of the principal amount of such Security from the 31st day through the 60th
day following suspension of the use of the prospectus because we suspended use of the prospectus
for more than 30 days in any 90-day period or from the 61st day through the 150th day following
suspension because we suspended use of the prospectus for more than 60 days in any 12-month period;
and (b) 0.50% of the principal amount of such security from and after the 60th day following
suspension of the use of the prospectus because we suspended use of the prospectus for more than 30
days in any 90-day period or from the 150th day following suspension because we suspended use of
the prospectus for more than 60 days in any 12-month period (the “Additional Interest Amount”);
provided that in the case of a Registration Default Period that is in effect solely as a result of
a Registration Default of the type described in clause (iii), (iv) or (v) of the preceding
paragraph, such Additional Interest Amount shall be paid only to the Holders (as set forth in the
succeeding paragraph) that have delivered Notices and Questionnaires that caused the Company to
incur the obligations set forth in Section 2(e) the non-performance of which is the basis of such
Registration Default. Notwithstanding the foregoing, no Additional Interest Amount shall accrue as
to any Security from and after the earlier of (x) the date such security is no longer a Registrable
Security and (y) expiration of the Effectiveness Period. The rate of accrual of the Additional
Interest Amount with respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Registration Defaults.



The Additional Interest Amount shall accrue from the first day of the applicable Registration
Default Period, and shall be payable on each Interest Payment Date during the Registration Default
Period (and on the Interest Payment Date next succeeding the end of the Registration Default Period
if the Registration Default Period does not end on an Interest Payment Date) to the Record Holders
of the Securities entitled thereto; provided that any Additional Interest Amount accrued with
respect to any Security or portion thereof redeemed by the Company on a redemption date or
purchased by the Company on a repurchase date prior to the Interest Payment Date, shall, in any
such event, be paid instead to the Holder who submitted such Security or portion thereof for
redemption purchase on the applicable redemption date or repurchase date, as the case may be, on
such date, unless the Redemption Date or the Fundamental Change Purchase Date, as the case may be,
falls after the Record Date immediately preceding the Interest Payment Date and on or prior to the
corresponding Interest Payment Date, in which case the Record Holder shall receive such interest;
provided further that upon conversion of any Security, the Holder or Record Holder thereof shall
not be entitled to any Additional Interest Amount except for conversions after the close of
business on a Record Date but on or prior to the opening of business on the Scheduled Trading Day
immediately following the corresponding Interest Payment Date, in which case the Record Holder
shall receive such Additional Interest and the converting Holder shall be required to pay an amount
equal to such interest to the Company; provided, however that no such payment need
be made (i) for conversion following the Record Date immediately preceding the Stated



 


6.









 






Maturity Date, (ii) if the Company has specified a Redemption Date that is after the relevant
Record Date and on any prior to the second Scheduled Trading Day immediately following the
corresponding Interest Payment Date, (iii) if the Company has specified a Fundamental Change
Purchase Date that is after the relevant Record Date and on or prior to the second Scheduled
Trading Day immediately following the corresponding Interest Payment Date, or (iv) to the extent of
any overdue Additional Interest Amounts, if any such overdue Additional Interest Amounts exist at
the time of conversion with respect to such Security. The Trustee shall be entitled, on behalf of
registered holders of Securities, to seek any available remedy for the enforcement of this
Agreement, including for the payment of such Additional Interest Amount. Notwithstanding the
foregoing, the parties agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which additional interest are expressly provided shall be such Additional
Interest Amount. Nothing shall preclude any Holder from pursuing or obtaining specific performance
or other equitable relief with respect to this Agreement.



All of the Company’s obligations set forth in this Section 2(f) that are outstanding with
respect to any Registrable Security at the time such security ceases to be a Registrable Security
shall survive until such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of this Agreement pursuant to Section 8(k)).



The parties hereto agree that the additional interest provided for in this Section 2(f)
constitutes a reasonable estimate of the damages that may be incurred by Holders of Registrable
Securities by reason of the failure of a Shelf Registration Statement to be filed or declared
effective or available for effecting resales of Registrable Securities in accordance with the
provisions hereof.



Section 3. Registration Procedures. In connection with the registration obligations of the
Company under Section 2 hereof, the Company shall:



(a) Before filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Initial Purchaser and the Special Counsel of such
offering, if any, copies of all such documents proposed to be filed at least three Business Days
prior to the filing of such Shelf Registration Statement or amendment thereto or Prospectus or
supplement thereto (other than supplements that do nothing more than name Notice Holders and
provide information with respect thereto).



(b) Subject to Section 3(h) prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement continuously effective during the Effectiveness Period; cause the related Prospectus to
be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act; and use its
commercially reasonable efforts to comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so amended or such Prospectus as
so supplemented.



(c) As promptly as practicable give notice to the Notice Holders, the Initial Purchaser and
the Special Counsel, (i) when any Prospectus, prospectus supplement, Shelf Registration Statement
or post-effective amendment to a Shelf Registration Statement has been filed with the SEC and, with
respect to a Shelf Registration Statement or any post-effective amendment, when the same has been
declared effective (other than supplements that do nothing more than name Notice Holders and
provide information with respect thereto), (ii) of any request, following the effectiveness of the
initial Shelf Registration Statement under the Securities Act, by the SEC or any other federal or
state governmental authority for amendments or supplements to any Shelf Registration Statement or
related Prospectus or for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the effectiveness of any Shelf
Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv)
of the receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose, (v) of the
occurrence of, but not the nature of or details concerning, a Material Event and (vi) of the
determination by the Company that a post-effective amendment to a Shelf Registration Statement will
be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant
to Section 3(h)) state that it constitutes a Deferral Notice, in which event the provisions of
Section 3(h) shall apply. As promptly as practicable after the effectiveness of any
Shelf Registration Statement, the Company shall issue a press release to PR Newswire
announcing such effectiveness.


 


7.









 





(d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either case at the earliest
possible moment, and provide immediate notice to each Notice Holder and the Initial Purchaser of
the withdrawal of any such order.



(e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the
Initial Purchaser, upon request and without charge, at least one conformed copy of each Shelf
Registration Statement and any amendment thereto, including exhibits and all documents incorporated
or deemed to be incorporated therein by reference.



(f) During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if
any, and the Initial Purchaser, in connection with any sale of Registrable Securities pursuant to a
Shelf Registration Statement, without charge, as many copies of the Prospectus relating to such
Registrable Securities (including each preliminary prospectus) and any amendment or supplement
thereto as such Notice Holder may reasonably request; and the Company hereby consents (except
during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of
such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with
any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.



(g) Prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its commercially reasonable efforts to register or qualify or cooperate
with the Notice Holders and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be included in the
Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to a
Shelf Registration Statement, use its commercially reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the Effectiveness Period in
connection with such Notice Holder’s offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the Shelf Registration Statement and the related
Prospectus; provided that the Company will not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not otherwise be required to
qualify but for this Agreement or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then so subject.



(h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of proceedings with respect to a Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact (a “Material Event”) as a result of which a Shelf Registration Statement
shall contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Company, makes it appropriate to
suspend the availability of a Shelf Registration Statement and the related Prospectus:



(i) in the case of clause (B) above, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by reference or file any
other required document that would be incorporated by reference into such Shelf Registration
Statement and Prospectus so that such Shelf Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and such Prospectus does not contain any



 


8.









 






untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf
Registration Statement, use its commercially reasonable efforts to cause it to be declared
effective as promptly as is practicable, and



(ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability
of a Shelf Registration Statement is suspended (a “Deferral Notice”).



The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus
may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case
of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such
Material Event would not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the
case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension
is no longer appropriate. Any such period during which the availability of the Shelf Registration
Statement and any Prospectus is suspended (the “Deferral Period”) shall, without incurring any
obligation to pay additional interest pursuant to Section 2(f), not exceed 30 days in any 90-day
period or an aggregate of 60 days in any 12-month period.



(i) If requested in writing in connection with a disposition of Registrable Securities
pursuant to a Shelf Registration Statement, make reasonably available for inspection during normal
business hours by a representative for the Notice Holders of such Registrable Securities, any
broker-dealers, attorneys and accountants retained by such Notice Holders, and any attorneys or
other agents retained by a broker-dealer engaged by such Notice Holders, all relevant financial and
other records and pertinent corporate documents and properties of the Company and its subsidiaries,
and cause the appropriate officers, directors and employees of the Company and its subsidiaries to
make reasonably available for inspection during normal business hours on reasonable notice all
relevant information reasonably requested by such representative for the Notice Holders, or any
such broker-dealers, attorneys or accountants in connection with such disposition, in each case as
is customary for similar “due diligence” examinations; provided that such persons shall first
agree in writing with the Company that any non-public information shall be used solely for the
purposes of satisfying “due diligence” obligations under the Securities Act and exercising rights
under this Agreement and shall be kept confidential by such persons, unless (i) disclosure of such
information is required by court or administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) such information becomes generally available to the public other than
as a result of a disclosure or failure to safeguard by any such person or (iii) such information
becomes available to any such person from a source other than the Company and such source is not
bound by a confidentiality agreement, and provided further that the foregoing inspection and
information gathering shall, to the greatest extent possible, be coordinated on behalf of all the
Notice Holders and the other parties entitled thereto by the Special Counsel; and provided,
further, that the Company shall not be required to provide commercially sensitive materials to
direct competitors of the Company. Any person legally compelled to disclose any such confidential
information made available for inspection shall as soon as practicable provide the Company with
prior written notice of such requirement so that the Company may seek a protective order or other
appropriate remedy and such person shall take such actions as reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interest of the Holder.



(j) Comply with all applicable rules and regulations of the SEC and make generally available
to its securityholders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter
of the Company commencing after the effective date of a Shelf Registration Statement, which
statements shall be made available no later than 45 days after the end of the 12-month period or 90
days if the 12-month period coincides with the fiscal year of the Company.



(k) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold or to be sold pursuant to a Shelf
Registration Statement, which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be in such denominations as are permitted by the Indenture and registered
in such names as such Notice Holder may request in writing at least one Business Day prior to any
sale of such Registrable Securities.


 


9.









 





(l) Provide a CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement and provide the
Trustee and the transfer agent for the Common Stock with printed certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust Company.




(m) Cooperate and assist in any filings required to be made with FINRA.



(n) Cause the Underlying Common Stock covered by the Shelf Registration Statement to be listed
or quoted, as the case may be, on each securities exchange or automated quotation system on which
the Common Stock is then listed or quoted.



Section 4. Holder’s Obligations. (a) Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder shall be entitled to sell any of such Registrable Securities pursuant to
a Shelf Registration Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company with a Notice and Questionnaire as required pursuant to Section 2(d) hereof
(including the information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Notice Holder agrees promptly to furnish to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other information regarding
such Notice Holder and the distribution of such Registrable Securities as the Company may from time
to time reasonably request. Any sale of any Registrable Securities by any Holder shall constitute
a representation and warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan of distribution and
that such Prospectus does not as of the time of such sale omit to state any material fact relating
to or provided by such Holder or its plan of distribution necessary to make the statements in such
Prospectus, in the light of the circumstances under which they were made, not misleading. Each
Holder further agrees not to sell any Registrable Securities pursuant to the Shelf Registration
Statement without delivering, or, if permitted by applicable securities law, making available, to
the purchaser thereof a Prospectus in accordance with the requirements of applicable securities
laws. Each Holder further agrees that such Holder will not make any offer relating to the
Registrable Securities pursuant to the Shelf Registration Statement that would constitute an
“issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act),
unless it has obtained the prior written consent of the Company.



(b) Upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to any Shelf Registration Statement until such Notice Holder’s receipt of
copies of the supplemented or amended Prospectus provided for in Section 3(h)(i), or until it is
advised in writing by the Company that the Prospectus may be used.



Section 5. Registration Expenses. The Company shall bear all fees and expenses incurred in
connection with the performance by the Company of its obligations under Sections 2 and 3 of this
Agreement whether or not any Shelf Registration Statement is declared effective. Such fees and
expenses shall include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be made with FINRA
and the SEC and (y) of compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel in connection with
Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as
Notice Holders of a majority of the Registrable Securities being sold pursuant to a Shelf
Registration Statement may designate), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible for deposit with
The Depository Trust Company), (iii) all reasonable expenses of any persons in preparing or
assisting in preparing, word processing, printing and distributing any Shelf Registration
Statement, any Prospectus, any amendments or supplements thereto, and any securities sales
agreements and other documents relating to the performance of and compliance with this Agreement,
(iv) reasonable fees and disbursements of counsel for the Company in connection with any Shelf
Registration Statement, (v) reasonable fees and disbursements of the Trustee and its counsel and of
the registrar and transfer agent for the Common Stock, (vi) Securities Act liability insurance
obtained by the Company in its sole discretion and (vii) the reasonable fees and disbursements of
Special Counsel. In addition, the Company shall pay the internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and employees performing
legal or accounting duties), the expense of any annual audit, the



 


10.









 






fees and expenses incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay
any broker’s commission, agency fee or underwriter’s discount or commission in connection with the
sale of the Registrable Securities under a Shelf Registration Statement.




Section 6. Indemnification and Contribution.



(a) The Company agrees to indemnify and hold harmless each Notice Holder, each person, if any,
who controls any Notice Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Notice Holder within the meaning of Rule
405 under the Securities Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim), as incurred, caused by or that are based upon
or arise as of any untrue statement or alleged untrue statement of a material fact contained in any
Shelf Registration Statement or any amendment thereof, any preliminary prospectus or any Prospectus
(as amended or supplemented if the Company shall have furnished any amendments or supplements
thereto) or any Issuer Free Writing Prospectus prepared by it or authorized by it in writing for
use by such Notice Holder (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were made, except to the extent such
losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any Notice Holder furnished
to the Company in writing by or on behalf of such Notice Holder expressly for use therein; provided
that the foregoing indemnity shall not inure to the benefit of any Notice Holder (or to the benefit
of any person controlling such Notice Holder) from whom the person asserting such losses, claims,
damages or liabilities purchased the Registrable Securities, if a copy of the Prospectus or the
Issuer Free Writing Prospectus (both as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on behalf of such
Notice Holder to such person, if required by law so to have been delivered at or prior to the
written confirmation of the sale of the Registrable Securities to such person, and if the
Prospectus or the Issuer Free Writing Prospectus (both as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities, unless such failure is
the result of noncompliance by the Company under this Agreement.



(b) Each Notice Holder agrees severally and not jointly to indemnify and hold harmless the
Company and its directors, its officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) or any other Notice Holder, to the same extent as the foregoing
indemnity from the Company to such Notice Holder, but only (i) to the extent such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based solely upon information relating to such Notice Holder furnished to the
Company in writing by or on behalf of such Notice Holder expressly for use in such Shelf
Registration Statement or Prospectus or amendment or supplement thereto or (ii) to the extent that
such Notice Holder fails to send or deliver a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements thereto), but only
if (A) the Prospectus (as so amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities and (B) such failure is not the result of noncompliance
by the Company under this Agreement. In no event shall the liability of any Notice Holder
hereunder be greater in amount than the dollar amount of the net proceeds received by such Notice
Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement
giving rise to such indemnification obligation.



(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b)
hereof, such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such
proceeding; provided that the failure of any indemnified party to give such notice shall not
relieve the indemnifying party of its obligations or liabilities pursuant to this Agreement, except
(and only) to the



 


11.









 






extent that it shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure shall have materially
and adversely prejudiced the indemnifying party. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party
shall have failed promptly to assume the defense of such proceeding and to employ counsel
reasonably satisfactory to such indemnified party in any such proceeding or (iii) the named parties
to any such proceeding (including any impleaded parties) include both the indemnifying party and
the indemnified party and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority (with Holders of Securities deemed to be the Holders, for purposes
of determining such majority, of the number of shares of Underlying Common Stock into which such
Securities are or would be convertible as of the date on which such designation is made) of the
Registrable Securities covered by the Shelf Registration Statement held by Holders that are
indemnified parties pursuant to Section 6(a) and, in the case of parties indemnified pursuant to
Section 6(b), the Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be unreasonably withheld,
delayed or conditioned, but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.



(d) To the extent that the indemnification provided for in Section 6(a) or 6(b) is unavailable
to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company shall be deemed to be equal to the total net proceeds
from the initial issuance of the Securities to which such losses, claims, damages or liabilities
relate. The relative benefits received by any Holder shall be deemed to be equal to the value of
receiving registration rights under this Agreement for the Registrable Securities. The relative
fault of the Holders on the one hand and the Company on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the
Holders or by the Company, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders’ respective obligations
to contribute pursuant to this Section 6(d) are several in proportion to the respective number of
Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint.



The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding this Section 6(d), no indemnifying party that is a selling Holder shall be
required to contribute any amount in excess of the amount by which the net proceeds received by
such Holder from the sale of



 


12.









 






the Registrable Securities giving rise to the indemnification obligation exceeds the amount of
any damages that such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.



(e) The remedies provided for in this Section 6 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to an indemnified party at law or in equity,
hereunder, under the Purchase Agreement or otherwise.



(f) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Holder, any person controlling any Holder or any
affiliate of any Holder or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any Holder pursuant to
the Shelf Registration Statement.



Section 7. [Reserved].



Section 8. Miscellaneous.



(a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor
shall it, on or after the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders in this Agreement. The Company
represents and warrants that the rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the holders of the Company’s securities under any other agreements.



(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company has obtained the written consent of
Holders of a majority of the then outstanding Underlying Common Stock constituting Registrable
Securities (with Holders of Securities deemed to be the Holders, for purposes of this Section, of
the number of outstanding shares of Underlying Common Stock into which such Securities are or would
be convertible as of the date on which such consent is requested). Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to a Shelf
Registration Statement and that does not directly or indirectly affect the rights of other Holders
may be given by Holders of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Shelf Registration Statement; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence. Notwithstanding the foregoing sentence, this Agreement may be
amended by written agreement signed by the Company and the Initial Purchaser, without the consent
of the Holders of Registrable Securities, to cure any ambiguity or to correct or supplement any
provision contained herein that may be defective or inconsistent with any other provision contained
herein, or to make such other provisions in regard to matters or questions arising under this
Agreement that shall not adversely affect the interests of the Holders of Registrable Securities.
Each Holder of Registrable Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b) whether or not any notice,
writing or marking indicating such amendment, modification, supplement, waiver or consent appears
on the Registrable Securities or is delivered to such Holder.



(c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand delivery, by fax, by courier or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon
confirmation, if made by telecopier, (iii) one Business Day after being deposited with such
courier, if made by overnight courier or (iv) on the date indicated on the notice of receipt, if
made by first-class mail, to the parties as follows:



(i) if to a Holder, at the most current address given by such Holder to the Company in a
Notice and Questionnaire or any amendment thereto;


 


13.









 






	 	(ii)	 	if to the Company, to:

	 
	 	 	 	Grubb & Ellis Company

1551 North Tustin Avenue, Suite 300

Santa Ana, CA 92705

Attention: Thomas D’Arcy, President and Chief Executive Officer

Fax: (714) 975-2331

	 
	 	 	 	with a copy to:

	 
	 	 	 	Zukerman Gore Brandeis & Crossman, LLP

875 Third Avenue

New York, NY 10022

Attention: Cliff Brandeis, Esq.

Joseph E. Maloney, Esq.

Fax: (212) 223-6433

	 
	 	(iii)	 	if to the Initial Purchaser, to:

	 
	 	 	 	JMP Securities LLC

600 Montgomery Street, Suite 1100

San Francisco, CA 94111

Attention:  Kent Ledbetter, David Fullerton, Anthony Wayne and Stephanie Shum

Fax: (415) 838-8920

	 
	 	 	 	with copies to:

	 
	 	 	 	Cooley LLP

101 California Street, 5th Floor

San Francisco, CA 94111

Attention: Gian-Michele a Marca, Esq.

Fax: (415) 693-2222






or to such other address as such person may have furnished to the other persons identified in this
Section 8(c) in writing in accordance herewith.



(d) Approval of Holders. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) (other
than the Initial Purchaser or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities or other securities of
the Company) shall not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.



(e) Successors and Assigns. Any person who purchases any Registrable Securities from the
Initial Purchaser shall be deemed, for purposes of this Agreement, to be an assignee of the Initial
Purchaser. This Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties and shall inure to the benefit of and be binding upon each Holder of
any Registrable Securities, provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation of the terms of
the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such
person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms
and provisions of this Agreement and such person shall be entitled to receive the benefits hereof.


 


14.









 





(f) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be
original and all of which taken together shall constitute one and the same agreement.



(g) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



(i) Severability. If any term, provision, covenant or restriction of this Agreement is held
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.



(j) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement. In no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior agreement of the
Company.



(k) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effectiveness Period, except for any liabilities or obligations under Section
4, 5 or 6 hereof, any confidentiality obligations under Section 3(i) hereof, and the obligations to
make payments of and provide for additional interest under Section 2(f) hereof to the extent such
additional interest accrues prior to the end of the Effectiveness Period, each of which shall
remain in effect in accordance with its terms.



 


15.











 




IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 	 	 
	GRUBB & ELLIS COMPANY	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Thomas P. D’Arcy	 	 
	 	 	 	 	 
	 
	 	Name:	 	Thomas P. D’Arcy	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 






Confirmed and accepted, as of the date first above written:



	 	 	 	 	 	 	 
	JMP SECURITIES LLC	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Egilio Mogavero	 	 
	 	 	 	 	 
	 
	 	Name:	 	Egilio (Gil) Mogavero	 	 
	 
	 	 	 	 	 	 
	 
	 	Title:	 	MD, CCO