exv10w33



 







Exhibit 10.33




CUSTODIAL SERVICE AGREEMENT AND FEE SCHEDULE




This agreement, dated as of May 1, 2006, is made by and between Branch
Banking and Trust Company of Virginia, as Custodian (“Custodian”). and Gladstone Commercial
Corporation (“Company”). This agreement is made for the purpose of setting forth the
respective responsibilities of each party and specifying the fees to be paid.



WHEREAS, the Company from time to time may desire to deposit with the Custodian certain secured
promissory notes (the “Securities”) to hold on the Company’s behalf, and in such event or
events the parties to this Agreement shall perform in the capacities enumerated herein, and



WHEREAS, the parties to this Agreement wish to agree among themselves as to the duties to be
performed and the fees associated with such performance, and



WHEREAS, it is intended that this Agreement shall remain in effect until terminated or amended by
the parties hereto,


NOW, THEREFORE, the parties agree as follows:





	1.	 	The duties of the Custodian shall be enumerated on Exhibit A attached to this
Agreement and incorporated herein.
	 
	2.	 	The fee schedule attached to this Agreement as Exhibit B and incorporated herein
shall apply for a period of one year from the date that Custodian assumes
responsibility. Thereafter, the parties hereto may adjust the fee schedule from time to
time as agreed. Custodian will bill Company at the end of each quarter for fees
incurred during such prior quarter.
	 
	3.	 	The parties agree that Company or any party designated by Company may conduct
periodic audits or reviews of the files maintained by the Custodian hereunder, and
Custodian will make its facilities and personnel available during normal business
hours as reasonably requested by Company in order to facilitate any such audit or
review. The parties agree that no addition charges will be assessed in connection
with any audit or review.
	 
	4.	 	Company agrees that it shall indemnify, release, hold harmless and defend Custodian
and its directors, officers, employees, and agents from and against any liability,
claims, demands, obligations, or contentions asserted by any person or entity,
including without limitation all attorney’s fees, whether or not suit is instituted, and




 









 






	 	 	other costs and expenses connected therewith, arising out of or in any way connected with this
Agreement provided, Custodian shall not be relieved from liability resulting from its willful
malfeasance, bad faith, gross negligence or reckless disregard of its obligations and duties
under this Agreement.
	 
	5.	 	In the event of conflicting claims, demands, obligations or contentions asserted by
anyone, including, without limitations, by Company, with respect to any document
held hereunder, Company acknowledges and agrees that the Custodian shall have no
duty to adjudicate such claims. Company agrees that in the event of such conflicting
claims, demands obligations or contentions, the Custodian shall be entitled to initiate
an action in the nature of an interpleader in any court of competent jurisdiction and
that the Custodian shall be entitled to make claim for and to receive from the value of
the documents deposited hereunder all funds due to the Custodian from Company
pursuant to the indemnity granted and all of the Custodian’s costs and expenses,
including, without limitations, attorney’s fees, arising out of or in any way incident or
related to such action in the nature of an interpleader, which claims by the Custodian
shall have first priority status among the claims asserted against the documents.
	 
	6.	 	This Agreement may be amended at any time by written agreement of the parties.
	 
	7.	 	Any party may terminate this Agreement by providing ten (10) days advance written
notice to the other party.
	 
	8.	 	This agreement shall be interpreted under the laws of the Commonwealth of Virginia.
	 
	9.	 	All notices and communications hereunder shall be in writing and shall be deemed to
have been given when delivered in person, by electronic transmission (promptly
followed by hard copy) or by first class mail.




A) If to the Company:

          Gladstone Commercial

          1521 Westbranch Drive

          Suite 200

          McLean, Virginia 22102-1625

          Attention: Mr. Harry Brill



B) If to the Custodian:

          Branch Banking and Trust Company of Virginia

          223 West Nash Street

          Wilson, North Carolina 27893

          252-246-4116 (office)

          252-246-4303 (facsimile)

          Attention: Corporate Trust Services









 









 











EXHIBIT A




CUSTODIAN DUTIES





	•	 	Receive delivery and hold certain secured promissory notes delivered
by the Company.
	 
	•	 	Receive promissory notes and deliver to vault for safekeeping. The
vault adds the documents and agreements to the records by assigning security numbers.
	 
	•	 	Take appropriate action to comply with Company requests or deny requests
with reasonable explanation.
	 
	•	 	Withdraw and deliver promissory notes as requested by the Company within
three business days.










 









 











EXHIBIT B




CUSTODIAL FEE SCHEDULE




Branch Banking and Trust Company of Virginia — Corporate Trust Services Department:




Custodial Services Fee Schedule Prepared for




GLADSTONE COMMERCIAL




Annual Fees:




0 — 10 Custodial Files -           $250 per file

($500 Base Fee — Minimum)




Miscellaneous





	1.	 	Annual Base Fee is applicable for each annual period or portion thereof.
	 
	2.	 	The (first) Annual Base Fee is due upon acceptance of account.
	 
	3.	 	Document File fees will be billed quarterly, in arrears per Section 2 of the Custodial
Service Agreement.
	 
	4.	 	Courier and other delivery charges will be billed to the Company. Routine mail
charges are not billed.
	 
	5.	 	Where extraordinary services are required or requested an additional charge may
result based on the time expended, expenses incurred and the responsibility involved.





	 	 	 	 	 	 	 
	Accepted By:

	 	/s/ Harry Brill
	 	 	 	Date: 5/1/2006
	 

	 	 

	 	 	 	 







 









 










EXHIBIT C




INSTRUCTIONS TO RELEASE DOCUMENTS OR SECURITIES




To: BRANCH BANKING AND TRUST COMPANY




     The undersigned hereby authorize and direct you to disburse and release the Securities,
as defined in that certain Custodial Service Agreement dated May 1, 2006, and entered into by and
among Gladstone Commercial Corporation and BRANCH BANKING AND TRUST COMPANY OF VIRGINIA, to the
officers of Gladstone Commercial Corporation designated below:


     David Gladstone 



     Terry Brubaker 



     George Stelljes III



     Harry Brill




     and in the following manner (i.e., United States Postal Service or Express Mail (indicate
address for mailing), pursuant to instructions provided below):



     Via Federal Express to 1521 Westbranch Drive, Suite 200, McLean, Virginia 22102, or such
other address as designated by the officers listed above.



     Dated this 1st day of May, 2006.



	 	 	 	 	 
	 	 	GLADSTONE COMMERCIAL CORPORATION
	 
	 	 	 	 
	 	 	/s/ Harry Brill
	 	 	 
	 

	 	By:
	 	Harry Brill
	 

	 	Title:
	 	Chief Financial Officer