exv10w40






EXHIBIT 10.40




AMENDED AND RESTATED

DEALER MANAGER OPERATING AGREEMENT



THIS AMENDED AND RESTATED DEALER MANAGER OPERATING AGREEMENT (the “Agreement”) is entered into
and effective as of December 22, 2009 (the “Effective Date”), by and between Gladstone Commercial
Corporation, a Maryland corporation (the “Company”), and Halcyon Capital Markets, LLC, a
Massachusetts limited liability company (the “Dealer Manager”).




     WHEREAS, the parties entered into that certain Dealer Manager Agreement and Dealer
Manager Operating Agreement, each dated November 19, 2009 (the “Original Agreements”), in
connection with a private placement offering (the “Offering”) by the Company; and



     WHEREAS, after the execution of the Original Agreements and prior to the commencement of the
Offering, for various reasons certain terms and conditions of the Offering were required to be
updated or otherwise modified; and



     WHEREAS, the parties have agreed to execute an Amended and Restated Dealer Manager Agreement
and this Agreement to clarify and affirm their respective rights and obligations hereunder and
thereunder; and



     WHEREAS, the Company is offering for sale in the Offering up to 3,333,333 shares of the
Company’s Senior Common Stock (the “SCS Shares”) pursuant to a Confidential Private Placement
Memorandum of the Company dated December 22, 2009; and



     WHEREAS, pursuant to that certain Amended and Restated Dealer Manager Agreement dated December
22, 2009 (the “Dealer Manager Agreement”), the Dealer Manager has agreed to act as the dealer
manager for the Offering and the Company has agreed to pay certain commissions and fees to the
Dealer Manager for such services; and



     WHEREAS, the Company has agreed to advance funds to cover certain expenses to enable the
Dealer Manager to commence sales efforts in connection with the Offering; and



     WHEREAS, the parties hereto desire to set forth their understanding of the advancement of
these expenses pursuant to the terms and conditions of this Agreement.



     NOW, THEREFORE, in consideration of the premises and mutual covenants and conditions contained
in this Agreement and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the parties agree as follows:



     1. Budget. Attached as Exhibit A hereto is the initial budget of revenues and
expenses associated with the Offering (the “Budget”) agreed upon by the Company and the Dealer
Manager. The Dealer Manager agrees to use its best efforts to utilize funds advanced by the
Company pursuant to this Agreement in accordance with the Budget. Material exceptions to the
Budget must be approved by the Company in advance. The Budget may be revised to adapt to changes
in market conditions or marketing plans upon the mutual agreement of the parties.



     2. Expense Advances. Subject to the terms and conditions below, the Company hereby agrees to
advance to the Dealer Manager a Mutually Agreed upon amount each month based upon the budgeted
“Projected Dealer Manager Cash Flow” line item contained in the Budget. “Mutually Agreed” means
that the Dealer Manager and the Company must agree on the amount to be disbursed before the



 









 




end of each month and in order to do that the Dealer Manager will submit a projected use of
money from the prior disbursement by the 23rd day of the month based on the actual spending and the
projected spending. The Mutually Agreed upon amount to be advanced by the Company for each
calendar month shall be paid to the Dealer Manager by wire transfer or other immediately available
funds at least three (3) days prior to the first day of such month; provided, that the amount
advanced for the first calendar month shall be payable after the Dealer Manager furnishes
satisfactory evidence to the Company of the admission of Dan Werry as a member of the Dealer
Manager. Expense advances advanced to the Dealer Manager will be used only for the items set out
in the Budget and for the amounts set out in the Budget.




     3. Reimbursement of Advances. The Company may apply the portion of the dealer manager fee
(the “Halcyon DM Fee”) attributable to the Dealer Manager (i.e., net of any marketing or other
similar fees required to be paid to participating broker-dealers) against funds previously advanced
by the Company to the Dealer Manager in any given month. The Halcyon DM Fee shall not be paid by
the Company to the Dealer Manager until the Projected Dealer Manager Cash Flow—Total Cumulative on
the Budget has reached positive and remains positive for two consecutive months. The maximum total
amount to be paid by the Company to the Dealer Manager from all sources (not including the 7%
commissions) shall not exceed 3.75% (including the 1% that may be paid to participating
broker-dealers as marketing fees) of the Gross Offering Proceeds, meaning all SCS Shares sold by
the Dealer Manager multiplied by $15, except for SCS Shares sold to an Institution without the
Company’s prior written approval in accordance with the Dealer Manager Agreement. To the extent
that the maximum total amount paid to the Dealer Manager combined with expenses advanced by the
Company under this Agreement exceeds 3.75% (including any amounts paid to broker-dealers by the
Company) of the Gross Offering Proceeds, the Dealer Manager shall reimburse the Company for such
excess within five (5) days of the ending of the Offering per Section 7 below.



     4. Monthly Reports. The Dealer Manager shall provide to the Company for each calendar month,
no later than the fifth day of the subsequent calendar month, a report of actual expenses and sales
pursuant to the Offering, in sufficient detail to permit the Company to evaluate the performance of
the Dealer Manager in relation to the Budget. In addition the Dealer Manager shall provide the
following reports:



          (a) Weekly or daily on key accounts regarding the signing of the sales agreement.




          (b) Weekly or daily on wholesalers regarding the sale of SCS Shares.




          (c) Any and all other reasonable documentation requested by the Company.




     5. New Sponsor Approval. The Dealer Manager agrees that it shall not act as dealer manager or
provide similar services for any new sponsor of any private or public offering without the prior
written approval of the Company, which approval shall not be unreasonably withheld. When
determining whether to grant such approval, the Company shall primarily consider the following
factors: (a) whether the proposed new sponsor will be offering directly competing products (e.g.,
single-tenant, net lease properties); (b) whether there is a reasonable probability that the
credibility or reputation of the proposed new sponsor could be detrimental to the goodwill of the
Company and its affiliates, and (c) if adding another offering would adversely distract the
employees of the broker-dealers from the sale of the SCS Shares.



     6. State Registrations. The Dealer Manager shall be registered as a broker-dealer in every
state that it intends to sell in within thirty (30) days after the Effective Date, and shall not
make any sales of SCS Shares unless and until all such registrations are completed.



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     7. Term and Termination.



          (a) Term. Unless earlier terminated as provided below, the term of this Agreement
(the “Term”) shall commence on the Effective Date and shall terminate on the earlier to occur of
(i) the effective date of the termination of the Offering, (ii) the effective date of the
termination of the Dealer Manager Agreement, or (iii) a default under this Agreement.




          (b) Termination by the Company. Notwithstanding anything in this Agreement or the
Dealer Manager Agreement to the contrary, the Company may terminate this Agreement in any of the
following circumstances: (i) after the earlier to occur of 120 days following the receipt by the
Dealer Manager of the Offering’s third-party due diligence report and FINRA-compliant marketing
support materials or the date on which the Company has advanced $500,000 to the Dealer Manager
under this Agreement; (ii) in the event that the Dealer Manager has not fully complied with its
registration obligations pursuant to Section 6 above; (iii) if the Investment Committee of the
Company determines, in its sole and absolute discretion, that market conditions or the business of
the Company may be adversely affected by continuing to offer the SCS Shares in the Offering; or
(iv) if the Dealer Manager does not furnish satisfactory evidence of the admission of Dan Werry as
a member of the Dealer Manager within five (5) business days after the Effective Date.




          (c) Termination by the Dealer Manager. Notwithstanding anything in this Agreement or
the Dealer Manager Agreement to the contrary, the Dealer Manager may terminate this Agreement in
any of the following circumstances: (i) the Company fails to make any payment to the Dealer Manager
pursuant to this Agreement within fifteen (15) days after such payment is due; (ii) the Company or
its representatives frustrate sales and marketing activities by (A) refusing to participate in a
sales or marketing event as reasonably requested by the Dealer Manager or (B) unreasonably delaying
the approval or production of necessary support materials, third-party due diligence reports, or
the execution and maintenance of broker-dealer selling agreements; or (iii) the Company sustains
significant material damage to Company goodwill such that it becomes highly unlikely that the
Dealer Manager can sell the Company’s shares.




          (d) Effect of Termination. Upon a termination by the Company or the Dealer Manager
pursuant to subsection (b) or (c): (i) neither party shall have any further obligations other than
as specified under this Agreement; and (ii) the parties shall reasonably cooperate to preserve and
minimize any disruption to relationships developed by the Dealer Manager with the participating
broker-dealers listed on Exhibit B in connection with the Offering.




     8. Potential Future Additional Affiliated Dealer Manager. The Dealer Manager understands,
acknowledges and agrees that the Dealer Manager has been appointed as dealer manager of the
Offering of the SCS Shares on a non-exclusive basis and that the Company may, in the future, enter
into a separate dealer manager agreement with Circadian Partners, LLC, an affiliate of the
Company’s adviser and a member firm of FINRA, for the sale of the SCS Shares on the same or similar
terms set forth in the Dealer Manager Agreement.



     9. Miscellaneous.



          (a) Assignment. This Agreement may not be assigned by either party, except with the
prior written consent of the other party. This Agreement shall be binding upon the parties hereto,
their heirs, legal representatives, successors and permitted assigns.




          (b) Entire Agreement; Amendment. Other than the Dealer Manager Agreement, which
governs the relationship of the Dealer Manager and the Company in connection with the Offering,






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this Agreement constitutes the complete and exclusive statement of the agreement between the
parties relating to the subject matter hereof and supersedes all prior written and oral statements
or agreements with respect to such subject matter, including without limitation the Original
Agreements. This Agreement may be amended or modified only in a writing signed by the parties.




          (c) Applicable Law and Venue. This Agreement was executed and delivered in, and its
validity, interpretation and construction shall be governed by, the laws of the State of Virginia.
The parties hereby agree that venue for any action brought in connection with this Agreement shall
lie exclusively in McLean, Virginia.




          (d) Counterparts. This Agreement may be executed in any number of counterparts. Each
counterpart, when executed and delivered, shall be an original contract, but all counterparts, when
taken together, shall constitute one and the same agreement. Facsimile and electronic executions
and deliveries shall have the full force and effect of original signatures.









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



	 	 	 	 	 
	 	COMPANY:



Gladstone Commercial Corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEALER MANAGER:



Halcyon Capital Markets, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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Exhibit A




Budget



[See attached]



 









 





Exhibit B




Participating Broker-Dealers



[See attached]