Gladstone Commercial Corporation 725,000 Shares Common Stock Underwriting Agreement
Exhibit 1.1
Gladstone Commercial Corporation
725,000 Shares
725,000 Shares
Common Stock
Underwriting Agreement
Underwriting Agreement
January 28, 2011
Xxxxxx Xxxxxxxxxx Xxxxx LLC
As Representative of the Underwriters,
named on Schedule I hereto
c/o Janney Xxxxxxxxxx Xxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
As Representative of the Underwriters,
named on Schedule I hereto
c/o Janney Xxxxxxxxxx Xxxxx LLC
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Gladstone Commercial Corporation, a Maryland corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule
I hereto (the “Underwriters”), an aggregate of 725,000 shares (the “Firm Shares”) of its Common
Stock, par value $.001 per share (the “Common Stock”). In addition, the Company has agreed to sell
to the Underwriters, subject to the terms and conditions stated
herein, up to an additional 108,750 shares of Common Stock (the “Additional Shares”) to cover over-allotments by the Underwriters, if
any. The Firm Shares and the Additional Shares are collectively referred to in this Agreement as
the “Shares.” Xxxxxx Xxxxxxxxxx Xxxxx LLC is acting as the representative of the Underwriters and
in such capacity is referred to in this Agreement as the “Representative.” The Company is the
indirect general partner of Gladstone Commercial Limited Partnership (the “Operating Partnership”),
a Delaware limited partnership that serves as the Company’s operating partnership subsidiary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) in accordance with the provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the “Act”), a registration
statement (File No. 333-169290) on Form S-3 with respect to the Shares, including a base prospectus
(the “Base Prospectus”), and such amendments or post-effective amendments to such registration
statement as may have been required to the date of this Agreement, which has been prepared by the
Company pursuant to and in conformity in all material respects with the requirements of the Act.
The Commission has declared effective such registration statement and any post-effective amendments
thereto. Copies of such registration statement, including any amendments thereto, each related
preliminary prospectus (meeting the requirements of Rule 430B of the Act) contained therein, and
the exhibits, financial statements and schedules thereto have heretofore been made available by the
Company to the Underwriters. A final prospectus containing information permitted to be omitted at
the time of effectiveness by Rule 430B of the Act will be filed promptly by the Company with the
Commission in accordance with Rule 424(b) of the Act. The term “Registration Statement” as used
herein means the registration statement on
Form S-3 (File No. 333-169290) at the time it originally became effective (or any part thereof
is deemed effective under Rule 430B(f)(2)) (the “Effective Date”), including financial statements,
all exhibits and all documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act and, if applicable, the information deemed to be included by Rule 430B of the Act.
The term “Prospectus” as used herein means, together with the Base Prospectus, the final prospectus
supplement relating to the Shares, as first filed with the Commission pursuant to Rule 424(b) of
the Act (the “Prospectus Supplement”). The term “Preliminary Prospectus” as used herein shall mean
a preliminary prospectus as contemplated by Rule 430B of the Act included at any time in the
Registration Statement, including the Base Prospectus and any preliminary prospectus supplement
with respect to this offering (the “Preliminary Prospectus Supplement”), and including in each case
the documents incorporated by reference therein. The term “Free Writing Prospectus” as used herein
shall have the meaning set forth in Rule 405 of the Act. The term “Issuer Free Writing Prospectus”
as used herein shall have the meaning set forth in Rule 433 of the Act. The term “Disclosure
Package” as used herein shall mean the Preliminary Prospectus as most recently amended or
supplemented on or prior to the Initial Time of Sale (as defined below) together with the Issuer
Free Writing Prospectuses identified in Schedule II hereto, if any, and any other Free
Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package. The Preliminary Prospectus, if any, any Issuer Free Writing
Prospectus required to be filed pursuant to Rule 433(d) of the Act and the Prospectus delivered to
the Underwriters for use in connection with the offering of the Shares have been and will be
identical to the respective versions thereof transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System (“XXXXX”), except to the extent permitted
by Regulation S-T. For purposes of this Agreement, the words “amend,” “amendment,” “amended,”
“supplement” or “supplemented” with respect to the Registration Statement, the Prospectus, any Free
Writing Prospectus or the Disclosure Package shall mean amendments or supplements to the
Registration Statement, the Prospectus, any Free Writing Prospectus or the Disclosure Package, as
the case may be, as well as documents filed after the date of this Agreement and prior to the
completion of the distribution of the Shares and incorporated by reference therein as described
above. As used herein, the term “Incorporated Documents” means the documents that are incorporated
by reference in the Registration Statement, the Prospectus, any Preliminary Prospectus, or any
amendment or supplement thereto during the period when a prospectus (or in lieu thereof, the notice
contemplated by Rule 173(a) of the Act) relating to any of the Shares is required to be delivered
under the Act by any Underwriter or any dealer.
1. Representations and Warranties. The Company and the Operating
Partnership jointly and severally represent and warrant to, and agree with, each Underwriter as of
the date hereof, as of the Closing Date (defined below) and as of the Date of Delivery (defined
below) as follows:
(a) The Company meets the requirements for use of Form S-3 under the Act. Neither the
Commission nor any state or other jurisdiction or other regulatory body has issued, and none
is, to the knowledge of the Company, threatening in writing to issue, any stop order under
the Act or other order suspending the effectiveness of the Registration Statement (as
amended or supplemented) or preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending the qualification or registration of the Shares for offering
or sale in any jurisdiction nor instituted or, to the
knowledge of the Company, threatened in writing to institute proceedings for any such
purpose. The Disclosure Package as of 8:45 a.m. Eastern time on the date hereof (the “Initial
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Time of Sale”), the Registration Statement at each Effective Date, and the Prospectus and
any amendments or supplements thereto when they are filed with the Commission or become
effective, as the case may be, in all material respects conform or will conform, as the case
may be, to the requirements of the Act. Neither the Registration Statement nor any
amendment thereto, as of the applicable Effective Date, contains or will contain, as the
case may be, any untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the statements therein, not
misleading. Neither the Prospectus nor any amendment or supplement thereto contains or will
contain, as the case may be, any untrue statement of a material fact or omits or will 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.
Neither the Disclosure Package nor any amendment or supplement thereto, at the Initial Time
of Sale, contains or will contain, as the case may be, any untrue statement of a material
fact or omits or will 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. Notwithstanding the foregoing, the Company makes no
representation or warranty as to information contained in or omitted from the Registration
Statement, the Disclosure Package or the Prospectus, or any such amendment or supplement, in
reliance upon, and in conformity with, written information furnished by the Representative
to the Company relating to the Underwriters by or on behalf of the Underwriters expressly
for use in the preparation thereof (as provided in Section 8(b) hereof). There is no
contract, agreement, understanding or arrangement, whether written or oral, or document
required to be described in the Registration Statement, Disclosure Package or Prospectus or
to be filed as an exhibit to the Registration Statement that is not described, filed or
incorporated by reference as required by the Act.
(b) The Incorporated Documents at the time they became effective or at the time they
were filed with the Commission, complied in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations adopted by
the Commission thereunder (collectively, the “Exchange Act”). During the period when a
prospectus (or in lieu thereof, the notice contemplated by Rule 173(a) of the Act) relating
to any of the Shares is required to be delivered under the Act by any Underwriter or any
dealer, any future documents incorporated by reference or deemed incorporated by reference
so filed, when they are filed, will comply in all material respects with the requirements of
the Exchange Act. No such incorporated document contained or will contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading; and, when read together and with the other information in each of
the Disclosure Package and the Prospectus, at the Effective Date of the Registration
Statement, at the Initial Time of Sale and at the Closing Date (and, if any Additional
Shares are purchased, at the Date of Delivery), each such incorporated document did not or
will not, as the case may be, contain an untrue statement of a material fact or omit to
state a 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.
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(c) The Company is eligible to use Issuer Free Writing Prospectuses in connection with
the offering of the Shares pursuant to Rules 164 and 433 of the Act. Any Issuer Free
Writing Prospectus that the Company is required to file pursuant to Rule 433(d) of the Act
has been, or will be, timely filed with the Commission in accordance with the requirements
of the Act. Each Issuer Free Writing Prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) of the Act or that was prepared by or on behalf of or used
by the Company complies or will comply in all material respects with the requirements of the
Act, including, but not limited to, legending requirements. Except for the Issuer Free
Writing Prospectuses, if any, identified in Schedule II hereto, the Company has not
prepared, used or referred to, and will not, without your prior consent, prepare, use or
refer to any Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue
date and at all times through the completion of the offering and sale of the Shares, did
not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement. The foregoing
sentence does not apply to statements in or omissions from any such Issuer Free Writing
Prospectus based upon and in conformity with information furnished to the Company by the
Representative on behalf of the Underwriters expressly for use therein (that information
being limited to that described in the last sentence of Section 8(b) hereof). The Company
filed the Registration Statement with the Commission before using any Free Writing
Prospectus.
(d) All disclosures contained in the Registration Statement, Disclosure Package or the
Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply in all material respects with Regulation G of the
Exchange Act, and Item 10 of Regulation S-K under the Act, to the extent applicable.
(e) The Company has been duly incorporated and is existing as a corporation under and
by virtue of the laws of the State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland (the “SDAT”), with all requisite
corporate power and authority to own, lease and operate its properties, and conduct its
business in all material respects as currently carried on and described in the Prospectus.
The Company is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such qualification except where
the failure to be so qualified would not have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the Company and its
Subsidiaries (as defined below), taken as a whole (a “Material Adverse Effect”). Other than
the entities listed on Schedule III hereto (individually a “Subsidiary” and
collectively the “Subsidiaries” and for all purposes of this Agreement, shall include the
Operating Partnership), the Company does not own, directly or indirectly, any capital stock
or other equity securities or interests of any corporation, partnership, limited liability
company, joint venture association or other entity.
(f) Each Subsidiary has been duly organized and is validly existing as a limited
partnership, limited liability company or corporation, as the case may be, in good standing
under the laws of its state of organization, with all requisite power and authority to own
and lease its properties, and conduct its business in all material respects as
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described in
the Disclosure Package and the Prospectus. Each Subsidiary has qualified to do business and
is in good standing as a foreign limited partnership, limited liability company or
corporation in every jurisdiction in which the ownership or leasing of its properties or the
nature or conduct of its business, as described in the Disclosure Package and the
Prospectus, requires such qualification except where the failure to be so qualified would
not have a Material Adverse Effect.
(g) The capitalization of the Company is and will be as set forth in the Disclosure
Package and the Prospectus as of the date set forth therein. All the outstanding shares of
capital stock of the Company have been, and as of the Closing Date (and, if any Additional
Shares are purchased, at the Date of Delivery), as the case may be, will be, duly authorized
and validly issued, are fully paid and nonassessable and are free of any preemptive or
similar rights; except as set forth in the Disclosure Package and the Prospectus, the
Company is not a party to or bound by any outstanding options, warrants or similar rights to
subscribe for, or contractual obligations to issue, sell, transfer or acquire, any of its
capital stock or any securities convertible into or exchangeable for any of such capital
stock; the Shares to be issued and sold to the Underwriters by the Company hereunder have
been duly authorized and, when issued and delivered to the Underwriters against full payment
therefor in accordance with the terms hereof will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; the capital stock of the Company
conforms to the description thereof in the Registration Statement, the Disclosure Package
and the Prospectus (or any amendment or supplement thereto); and the delivery of
certificates for the Shares being sold by the Company against payment therefor pursuant to
the terms of this Agreement, if any, will pass valid title to the Shares being sold by the
Company, free and clear of any claim, encumbrance or defect in title, to the Underwriters
purchasing such shares in good faith and without notice of any lien, claim or encumbrance.
The certificates for the Shares being sold by the Company, if any, are in valid and
sufficient form.
(h) Except as disclosed in the Registration Statement, the General Disclosure Package
and the Prospectus, the Operating Partnership has not issued any security or other equity
interest other than units of limited partnership interest (the “Units”) held indirectly by
the Company that are redeemable at the Company’s option for cash or shares of Common Stock.
None of the Units in the Operating Partnership has been or will be issued or is owned or
held in violation of any preemptive right. The outstanding Units in the Operating
Partnership have been issued by the Operating Partnership in compliance with applicable
federal and state securities laws.
(i) All of the outstanding shares of capital stock, limited liability company interests
or partnership interests of each Subsidiary, as the case may be, have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except with respect to
security interests in favor of Capital One, N.A. and as otherwise set forth in the
Disclosure Package and the Prospectus, all such interests are owned by the Company
either directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or encumbrances. No such
equity interest in any Subsidiary was issued in violation of the preemptive or any similar
right of any security holder of such Subsidiary.
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(j) The Company and the Operating Partnership have full legal right, power and
authority to enter into and perform this Agreement and to consummate the transactions
contemplated herein, including the issuance, sale and delivery of the Shares as provided
herein and the Operating Partnership’s issuance of the Units to the Company. The Company’s
and the Operating Partnership’s execution and delivery of this Agreement and the performance
by the Company and the Operating Partnership of their respective obligations arising under
this Agreement have been duly and validly authorized by the Company and the Operating
Partnership and this Agreement has been duly executed and delivered by the Company and the
Operating Partnership, and constitutes a valid and legally binding agreement of the Company
and the Operating Partnership, enforceable against the Company and the Operating Partnership
in accordance with its terms, except to the extent enforceability may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting creditors’
rights generally and (ii) equitable principles being applied at the discretion of a court
before which any proceeding may be brought, and except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
(k) The Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Prospectus, will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and distribution of
the Shares by the Underwriters in the manner contemplated herein and in the Prospectus.
(m) Neither the issue and sale of the Shares nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict with,
result in a breach or violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its Subsidiaries pursuant to (i) the charter
or bylaws of the Company, each as amended to date, the Certificate of Limited Partnership or
the First Amended and Restated Agreement of Limited Partnership, as further amended and/or
restated (the “Partnership Agreement”), of the Operating Partnership or any of the
applicable organizational documents of any Subsidiary, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its
Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to the Company or any
of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its Subsidiaries or any of its or
their properties, except in the case of clauses (ii) and (iii), to the extent such
conflicts, breaches, violations, liens, charges and encumbrances, if any, would not have a
Material Adverse Effect.
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(n) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(o) The consolidated historical financial statements and schedules of the Company
incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus present fairly, in all material respects, the consolidated financial position of
the Company as of the dates indicated and the consolidated results of operations and
consolidated cash flows for the Company for the periods specified, all in conformity with
accounting principles generally accepted in the United States (“GAAP”) applied on a
consistent basis. The financial statement schedules included in the Company’s Annual Report
on Form 10-K for the year ended December 31, 2009 (the “Annual Report”) have been compiled
on a basis consistent with the financial statements included in the Annual Report
incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus. The selected financial data included in the Disclosure Package and the
Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus. The pro forma financial
information incorporated by reference in the Registration Statement, the Disclosure Package
and the Prospectus present fairly the information shown therein, have been prepared in
accordance with GAAP and have been properly compiled, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. The pro forma financial
statements incorporated by reference in the Disclosure Package, the Prospectus and the
Registration Statement comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Act. No other financial statements or
schedules are required by Form S-3 or otherwise to be included or incorporated by reference
in the Registration Statement, the Disclosure Package or the Prospectus.
(p) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its Subsidiaries or its
or their property is, except as set forth in or contemplated in the Disclosure Package and
the Prospectus, pending or, to the knowledge of the Company, threatened in writing that (i)
could reasonably be expected to have a Material Adverse Effect on the performance of this
Agreement or the consummation of any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect.
(q) Neither the Company nor any Subsidiary is in violation or default of (i) any
provision of its charter or bylaws or applicable organizational documents, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or
such Subsidiary or any of its properties, as applicable, except in the case of
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clauses (ii)
and (iii), such violations or defaults as would not have a Material Adverse Effect.
(r) PricewaterhouseCoopers LLP, who has examined and reported upon the audited
financial statements and schedules of the Company and its consolidated Subsidiaries and upon
the assessment of the Company’s management of the Company’s internal control over financial
reporting, including Management’s Report on Internal Control Over Financial Reporting
contained in the Company’s Annual Report, incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus, are, and were during the periods
covered by its reports, an independent registered public accounting firm within the meaning
of the Act and the Exchange Act.
(s) There are no transfer taxes or other similar fees or charges under federal law or
the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Shares that have not been or will not be paid.
(t) The Company and each of its Subsidiaries have filed all foreign, federal, state and
local tax returns that are required to be filed or have requested extensions thereof, except
in any case in which the failure so to file would not have a Material Adverse Effect, and
have paid all taxes required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in good faith or as
would not have a Material Adverse Effect.
(u) The Company and each of its Subsidiaries, and their respective properties, are
insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which they are engaged;
all policies of insurance insuring the Company or any of its Subsidiaries or their
respective businesses, assets, employees, officers, and directors are in full force and
effect; the Company and its Subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; and there are no claims by the Company or any of
its Subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause except such as would not
have a Material Adverse Effect; and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at an increase in cost that would not have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the
Prospectus.
(v) The Company and its Subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses except such licenses,
certificates, permits and authorizations the failure to possess would not, individually or
in the aggregate, have a Material Adverse Effect, and neither the Company nor any such
Subsidiary has received any notice in writing of proceedings
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relating to the revocation or
modification of any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus.
(w) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(x) The Company and its Subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human
health and safety, access for disabled persons, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received
and are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability under any Environmental Laws, except
where such non-compliance with Environmental Laws, failure to receive required permits,
licenses or other approvals, or liability would not, individually or in the aggregate, have
a Material Adverse Effect, except as set forth in or contemplated in the Prospectus. Except
as set forth in the Prospectus, neither the Company nor any of the Subsidiaries has been
named as a “potentially responsible party” under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(y) In the ordinary course of its business, in connection with the acquisition of
properties, the Company periodically reviews the effect of Environmental Laws on the
acquisition properties of the Company and its Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material Adverse Effect, except as
set forth in or contemplated in the Prospectus.
(z) The Company and its Subsidiaries are in compliance in all material respects with
all currently applicable provisions of the Employee Retirement Income Security Act of 1974,
as amended, including the regulations and published interpretations thereunder (herein
called “ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect to
any “pension plan” (as defined in Section 3(2) ERISA) for which
the Company or any Subsidiary would have any liability; the Company and its
Subsidiaries have not incurred and do not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended (the “Code”); and each
“pension plan” for which the Company or any Subsidiary would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in
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all material
respects and nothing has occurred, whether by action or by failure to act, that would
reasonably be expected to cause the loss of such qualification.
(aa) Except with respect to certain non-timely filings of reports required by Section
16 of the Exchange Act by certain of the Company’s directors and executive officers, there
is and has been no material failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any provision of the Act,
the Exchange Act, or the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection thereunder (the “Xxxxxxxx-Xxxxx Act”).
(bb) The Company or its Subsidiaries, including the Operating Partnership, have good
and marketable title in fee simple to, or a valid leasehold interest in, each real property
described or identified in the Disclosure Package, the Prospectus or the Incorporated
Documents as owned or leased by them (individually, a “Property,” and together the
“Properties”), free and clear of all liens, encumbrances, claims, security interests,
restrictions and defects except such as are disclosed in the Disclosure Package and the
Prospectus or do not, individually or in the aggregate, materially affect the value of such
Property and do not interfere in any material respect with the use made and proposed to be
made of such Property by the Company or any Subsidiary. Neither the Company nor any
Subsidiary owns or leases any real property, except as described in the Registration
Statement, the Disclosure Package, the Prospectus, or the Incorporated Documents. Except as
disclosed in the Disclosure Package, the Prospectus or the Incorporated Documents, no person
has an option or right of first refusal to purchase all or part of any of the Properties or
any interest therein. Each of the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes, laws and regulations
and laws relating to access to the Properties), except if and to the extent disclosed in the
Disclosure Package and the Prospectus and except for such failures to comply that would not
have a Material Adverse Effect. Each Property with respect to which a certificate of need or
similar approval to operate the Property is required is presently, and at the Closing Date
will be, operating pursuant to a current, valid certificate of need or similar certificate.
Neither the Company nor any Subsidiary has knowledge of any pending or threatened
condemnation proceeding, zoning change, or other proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on or access to a Property,
except such proceedings or actions that would not have a Material Adverse Effect. The
Company or a Subsidiary has obtained an owner’s title insurance policy from a title
insurance company, or, if such title insurance policy has not yet been issued, a binding
commitment by such title insurance company to issue such a policy, in any event covering
each Property, with coverage in an amount at least equal to the cost of acquisition of such
Property, including the principal amount of any indebtedness assumed with respect to the
Property.
(cc) All of the mortgages and/or deeds of trust described or identified in the
Disclosure Package, the Prospectus or the Incorporated Documents as owned by the Company,
the Operating Partnership or any Subsidiary constitute the valid and legally binding
obligation of the borrower thereunder (the “Borrower”), and are enforceable in accordance
with their terms and except as set forth in or contemplated in the Prospectus; to the best
of the Company’s and the Operating Partnership’s knowledge, no Borrower is
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in default in the
payment of any amounts due under any such mortgage and/or deed of trust and no party thereto
is in breach or default under any of such agreements except where such breach or default
would not have a Material Adverse Effect.
(dd) The lease agreements between the Company, or any Subsidiary and the tenants at the
Properties (the “Leases”), are valid and enforceable in all material respects by the Company
and/or its Subsidiary except as enforceability may be limited by bankruptcy, reorganization,
moratorium or similar laws affecting the enforceability of creditors’ rights generally and
rules of law governing specific performance, injunctive relief and other equitable remedies,
and, to the best of the Company’s and the Operating Partnership’s knowledge, no tenants are
in default in the payment of any amounts due under any such Lease and no party thereto is in
breach or default under any of such agreements except where such breach or default would not
have a Material Adverse Effect.
(ee) Except as described in the Prospectus or to the extent the existence of such lease
would not interfere in any material respect with the use made and proposed to be made of
such Property by the Company or any Subsidiary, the Company does not hold any Property under
a ground lease.
(ff) The Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act), which (i) are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s principal executive officer and its principal
financial officer by others within those entities, (ii) will be evaluated for effectiveness
as of the end of each fiscal quarter and fiscal year of the Company and (iii) are effective
in all material respects to perform the functions for which they were established. The
Company is not aware of (a) any significant deficiency in the design or operation of
internal controls which could materially and adversely affect the Company’s ability to
record, process, summarize and report financial data or any material weaknesses in internal
controls or (b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company’s internal controls.
(gg) The Company maintains a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(hh) The Company or a Subsidiary owns or possesses all trademarks, service marks,
tradenames, trademark registrations, service xxxx registrations, copyrights, licenses, trade
secrets, processes and other intangible property rights and know-how necessary for the
conduct of its business as described in the Registration Statement (collectively, the
“Intellectual Property”). Except as described in the Prospectus, (i) no
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third parties have
received rights to any such Intellectual Property from the Company or any Subsidiary, other
than licenses granted in the ordinary course of business; (ii) to the Company’s and the
Operating Partnership’s knowledge, there is no infringement by third parties of any such
Intellectual Property, (iii) there is no pending or, to the Company’s and the Operating
Partnership’s knowledge, threatened action, suit, proceeding or claim by others challenging
the Company’s or a Subsidiary’s rights in or to any such Intellectual Property, and the
Company and the Operating Partnership are unaware of any facts which would form a basis for
any such claim; (iv) there is no pending or, to the Company’s and the Operating
Partnership’s knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property, and the Company and the Operating
Partnership are unaware of any facts which would form a basis for any such claim; and (v)
there is no pending or, to the Company’s and the Operating Partnership’s knowledge,
threatened action, suit, proceeding or claim by others that the Company or any Subsidiary
infringes or otherwise violates, or would infringe or otherwise violate any patent,
trademark, copyright, trade secret or other proprietary rights of others, and the Company
and the Operating Partnership are unaware of any facts which would form a basis for any such
claim.
(ii) Neither the Company, the Operating Partnership, nor to the Company’s knowledge,
any director, officer, agent, employee or other person associated with or acting on behalf
of the Company or the Operating Partnership, has used any funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity;
made any direct or indirect unlawful payment to any foreign or domestic government official
or employee from company funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment. No funds of the Company have been set aside to be used
for any payment in violation of any law.
(jj) The Company will timely file with the Nasdaq Global Select Market (“NASDAQ”) all
documents and notices required by NASDAQ of companies that have or will issue securities
that are traded on NASDAQ. The Company will use its reasonable best efforts to qualify the
Shares for listing and maintain the listing of the Shares on NASDAQ.
(kk) Except as described in the Disclosure Package and the Prospectus, the Company and
its Subsidiaries have good and marketable title to all personal property owned by them, free
and clear of all encumbrances and defects; and all personal property held under lease by the
Company or any Subsidiary are held by it under valid, subsisting and enforceable leases, in
each case, with such exceptions as do not have a Material Adverse Effect.
(ll) No material relationship, direct or indirect, exists between or among the Company
on the one hand, and the director, officers, or stockholders of the Company on the other
hand, which is required to be described in the Prospectus and which is not so described.
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(mm) The statistical and market-related data included in the Disclosure Package, the
Prospectus and the Registration Statement, if any, are based on or derived from sources that
the Company reasonably believes to be reliable and accurate.
(nn) The Company is organized in conformity with the requirements for qualification as
a real estate investment trust (“REIT”) under the Code, and the Company’s method of
operation will enable it to meet the requirements for taxation as a REIT under the Code. The
Operating Partnership is treated as a disregarded entity for federal income tax purposes and
not as a corporation or association taxable as a corporation. Gladstone Commercial
Advisers, Inc. (“Gladstone Advisers”) is organized and is owned in a manner that meets the
requirements for qualification as a taxable REIT subsidiary under the Code, and Gladstone
Advisers’ method of operation will enable it to meet the requirements for taxation as a
taxable REIT subsidiary under the Code.
Any certificate signed by any officer of the Company or the Operating Partnership and
delivered to the Representative or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed a representation and warranty by the Company or the Operating
Partnership, as applicable, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $17.35 per share (representing a public offering price of
$18.35 per share, less an
underwriting discount of $1.00 per share), the amount of the Firm Shares set forth opposite
such Underwriter’s name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the Underwriters to
purchase, severally and not jointly, up to 108,750 Additional Shares in the aggregate at the
same purchase price per share as the Underwriters shall pay for the Firm Shares, less an
amount per share equal to any dividends or distributions declared by the Company and payable
on the Firm Shares but not payable on the Additional Shares. Said option may be exercised
only to cover over-allotments in the sale of the Firm Shares by the Underwriters. Said
option may be exercised in whole or in part at any time on or before the 30th day after the
date hereof upon written or telegraphic notice by the Representative to the Company setting
forth the number of shares of the Additional Shares as to which the Underwriters are
exercising the option and the Date of Delivery. The number of Additional Shares to be
purchased by each Underwriter shall be the same percentage of the total number of shares of
the Additional Shares to be purchased by the Underwriters as such Underwriter is purchasing
of the Firm Shares, subject to such
adjustments as you in your absolute discretion shall make to eliminate any fractional
shares.
3. Delivery and Payment. Delivery of and payment for the Firm
Shares and the Additional Shares (if the option provided for in Section 2(b) hereof shall have been
exercised
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before the
Business Day, defined below, prior to the Closing Date) shall be made
at 10:00 a.m. Eastern time, on February 2, 2011, or at such time on such date not more than three (3) Business Days after the
foregoing date as the Representative shall designate, which date and time may be postponed by
agreement between the Representative and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Shares being herein called the “Closing Date”). Delivery
of the Shares shall be made to the Representative for the respective accounts of the Underwriters
against payment by the Underwriters through the Representative of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Firm Shares and the Additional Shares shall be made through the
facilities of The Depository Trust Company unless the Representative shall otherwise instruct.
“Business Day” shall mean any day other than a Saturday, Sunday, a legal holiday, or a day on which
banking institutions or trust companies are authorized or obligated by law to close in New York
City.
If the option provided for in Section 2(b) hereof is exercised on or after the Business Day
prior to the Closing Date, the Company will deliver the Additional Shares (at the expense of the
Company) to the Representative, on the date (the “Date of Delivery”) specified by the
Representative (which shall be within three (3) Business Days after exercise of said option) for
the respective accounts of the Underwriters, against payment by the Underwriters through the
Representative of the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. If settlement for the Additional
Shares occurs after the Closing Date, the Company will deliver to the Representative on the Date of
Delivery for the Additional Shares, and the obligation of the Underwriters to purchase the
Additional Shares shall be conditioned upon receipt of, opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Shares for sale to the public as set forth in the Prospectus Supplement under
the caption “Underwriting.”
5. Agreements. The Company agrees with the Underwriters that:
(a) The Company will comply with the requirements of Rule 430B of the Act and will
notify the Representative immediately, and confirm the notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or any new
registration statement relating to the Shares or the filing of any supplement or amendment
to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or the filing of a new
registration statement or any amendment or supplement to the Prospectus or for additional
information, (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or such new registration
statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Shares for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes or of any examination pursuant to Section 8(e) of the Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding
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under
Section 8A of the Act in connection with the offering of the Shares. The Company will
promptly effect the filings required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on Rule 424(b)(8)), notify the
Representative of the filing thereof, and take such steps as it deems necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Company will comply with the Act and the Exchange Act so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement and in the
Registration Statement and the Prospectus. If at any time when the Prospectus is required
by the Act or the Exchange Act to be delivered in connection with sales of the Shares, any
event shall occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of outside counsel to the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of such outside counsel,
at any such time to amend the Registration Statement, to file a new registration statement,
or to amend or supplement the Prospectus in order to comply with the requirements of the
Act, the Company will (i) promptly prepare and file with the Commission, subject to Section
5(j), such amendment, supplement or new registration statement as may be necessary to
correct such statement or omission or to comply with such requirements, (ii) use its
reasonable best efforts to have such amendment or new registration statement declared
effective as soon as practicable, and (iii) furnish to the Underwriters, without charge,
such number of copies of such amendment, supplement or new registration statement as the
Underwriters may reasonably request. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement (or any other registration statement relating to the
Shares) or the Prospectus or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company will promptly notify the Representative and will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
(c) As soon as practicable, the Company will make generally available to its security
holders and to the Representative an earnings statement or statements of the Company and its
Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
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(d) The Company has furnished or will deliver to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration Statement and of each
amendment thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein or otherwise
deemed to be part thereof) and signed copies of all consents and certificates of experts,
and will also deliver to the Representative, without charge, a conformed copy of the
Registration Statement and of each amendment thereto (without exhibits) for each of the
Underwriters. The Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. The
Company will deliver to each Underwriter, without charge, as many copies of each Preliminary
Prospectus as such Underwriter may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is required to be
delivered under the Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will arrange, if necessary, for the qualification of the Shares for
sale under the laws of such jurisdictions as the Representative may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Shares; provided that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so subject.
(f) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(g) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), the Prospectus
Supplement, the Base Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, the Prospectus
Supplement, the Base Prospectus, and all amendments or supplements to any of them, as may,
in each case, be reasonably requested for use in connection with the offering and sale of
the Shares; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for the
Shares, including any stamp or transfer taxes in connection with the original issuance and
sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any
blue sky memorandum and all other agreements or documents to which the Company is a party
printed (or reproduced) and delivered in connection with the offering of the Shares;
-16-
(v) the
registration of the Shares under the Exchange Act and the listing of the Shares on NASDAQ;
(vi) any required registration or qualification of the Shares for offer and sale under the
securities or blue sky laws of the several states (including filing fees relating to such
registration and qualification); (vii) any filings required to be made with the Financial
Industry Regulatory Authority (“FINRA”) (including any filing fees); (viii) the
transportation and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Shares; (ix) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; (x) the Underwriters’ non-accountable expenses equal
to $60,000; and (xi) all other reasonable costs and expenses incident to the performance by
the Company of its obligations hereunder.
(h) The Company will apply the net proceeds from the sale of the Shares to be sold by
it hereunder in accordance in all material respects with the statements under the caption
“Use of Proceeds” in the Prospectus. The Company will effect the issuance to the Company by
Operating Partnership of a number of Units equal to the number of Shares and having economic
and other terms substantially identical to the terms of the Shares upon the Company’s
contribution to the Operating Partnership of the proceeds from the sale of the Shares.
(i) The Company shall engage and maintain, at its expense, a transfer agent and, if
necessary under the jurisdiction of its incorporation or the rules of any national
securities exchange on which the Shares will be listed, a registrar (which, if permitted by
applicable laws and rules may be the same entity as the transfer agent) for the Shares.
(j) The Company will give the Representative notice of its intention to file or prepare
any amendment to the Registration Statement or any new registration statement relating to
the Shares or any amendment, supplement or revision to either any Preliminary Prospectus
(including any prospectus included in the Registration Statement or amendment thereto) at
the time it became effective or to the Prospectus, whether pursuant to the Act, the Exchange
Act or otherwise, and the Company will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Representative or counsel to the
Underwriters shall reasonably object. The Company will give the Representative notice of
its intention to make any filing pursuant to the Exchange Act from the date hereof to the
Closing Date (and, if any Additional Shares are purchased to the Date of Delivery) and will
furnish the Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing and will not file or use any such document to which the
Representative or counsel for the Underwriters shall reasonably object. The Company, during
the period when the Prospectus is required to be delivered under the Act, will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act. To the extent the distribution
of Shares has been completed, the Company will not be required to provide the Representative
with reports it is required to file with the Commission under the Exchange Act.
-17-
(k) The Company will use its reasonable best efforts to affect the listing of the
Shares on NASDAQ.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Firm Shares and the Additional Shares on the
Closing Date or any Date of Delivery, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Operating Partnership contained
herein as of the date hereof, the Closing Date and any Date of Delivery, to the accuracy of the
statements of the Company and the Operating Partnership made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the
Act and no proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus containing information omitted pursuant to Rule 430B relating
to the description of the Shares, the specific method of distribution and similar matters
shall have been filed with the Commission in the manner and within the time period required
by Rule 424(b) (without reliance on Rule 424(b)(8)), as applicable (or any required
post-effective amendment providing such information shall have been filed and become
effective in accordance with the requirements of Rule 430B).
(b) The Company shall have requested and caused Bass, Xxxxx & Xxxx PLC, counsel for the
Company, to have furnished to the Representative their opinion, dated the Closing Date and
any Date of Delivery, and addressed to the Representative, in the form mutually agreed upon,
and their opinion, dated the Closing Date and any Date of Delivery, and addressed to the
Representative, in form reasonably satisfactory to the Representative, that the Company is
qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code for its
taxable year ended December 31, 2010 and that the Company’s current organization and
proposed method of operation will enable it to continue to qualify as a REIT for its taxable
year ending December 31, 2011 and in the future.
(c) The Representative shall have received from Squire, Xxxxxxx & Xxxxxxx (US) LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any Date
of Delivery, and addressed to the Representative, with respect to the issuance and sale of
the Shares, the Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(d) The Company and the Operating Partnership shall have furnished to the
Representative a certificate, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company (and appropriate officer of the
Operating Partnership), dated the Closing Date and any Date of Delivery, to the effect
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that
the signers of such certificate have carefully examined the Registration Statement, the
Disclosure Package, the Prospectus, any supplements to the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company and the Operating
Partnership in this Agreement are true and correct on and as of the Closing Date
(and any Date of Delivery) with the same effect as if made on the Closing Date (or
any Date of Delivery), and the Company and the Operating Partnership have complied
with all the agreements and satisfied all the conditions on their part to be
performed or satisfied at or prior to the Closing Date (or any Date of Delivery);
(ii) the Registration Statement has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to the Company’s knowledge,
threatened; and
(iii) since the date of the most recent financial statements included in the
Prospectus, there has been no material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its Subsidiaries
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus.
(e) On the date of this Agreement and on the Closing Date (including any Date of
Delivery, as the case may be) PricewaterhouseCoopers LLP shall have furnished to the
Representative, at the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration
Statement and the Prospectus; provided, that the letter delivered on the Closing Date or any
Date of Delivery, as the case may be, shall use a “cut-off” date no more than three (3)
Business Days prior to such Closing Date or such Date of Delivery.
(f) Subsequent to the date hereof or, if earlier, the dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have been (i) any
change or decrease specified in the letter or letters referred to in paragraph (e) of this
Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the Prospectus
the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole and reasonable judgment of the Representative, so material
and adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Registration Statement and the Prospectus.
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(g) During the period beginning from the date hereof and continuing to and including
the date sixty (60) days after the date of the Prospectus, not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except
as provided hereunder, of any securities of the Company that are substantially similar to
the Shares, including but not limited to any options or warrants to purchase shares of
Common Stock or any securities that are convertible into or exchangeable for, or that
represent the right to receive, Common Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent, other than issuances of Common Stock
pursuant to the Company’s Dividend Reinvestment Plan. Notwithstanding anything contained in
this Section 6(g) to the contrary, if (A) during the last seventeen (17) days of the
sixty-day period referenced above, the Company issues an earnings release or material news
or material event relating to the Company occurs; or (B) prior to the expiration of the
sixty-day period referenced above, the Company announces that it will release earnings
results during the sixteen-day period beginning on the last day of such sixty-day period,
and, in either the case of clause (A) or (B) immediately above, the safe harbor pursuant to
Rule 139 under the Act is not available to the underwriters, the restrictions imposed by
this Section 6(g) shall continue to apply until the expiration of the eighteen-day period
beginning on the issuance of the earnings release or the occurrence of the materials news or
material event.
(h) The Company shall have obtained and delivered to the Underwriters executed copies
of “lock-up” agreements from the directors and executive officers of the Company listed on
Schedule IV hereto, in the form mutually agreed upon.
(i) At the Closing Date and the Date of Delivery, counsel to the Underwriters shall
have been furnished with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Shares as herein
contemplated, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of the Shares as
herein contemplated shall be reasonably satisfactory in form and substance to the
Representative and counsel to the Underwriters.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be delivered to the office of
Squire, Xxxxxxx & Xxxxxxx (US) LLP, counsel for the Underwriters, at 0000 Xxx Xxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, on the Closing Date and any Date of Delivery, as applicable.
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7. Reimbursement of Underwriters’ Expenses. If the sale of the
Shares provided for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied (other than Section 6(c)), because of
any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on
the part of the Company or the Operating Partnership to perform any agreement herein or comply with
any provision hereof other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Xxxxxx Xxxxxxxxxx Xxxxx LLC on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of the Shares.
8. Indemnification and Contribution.
(a) The Company and the Operating Partnership jointly and severally agree to indemnify
and hold harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including any information deemed
to be a part thereof, or in any Preliminary Prospectus, Issuer Free Writing Prospectus, the
Disclosure Package or the Prospectus, or in any amendment or supplement to any of the
foregoing, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating, defending and/or settling any such loss, claim, damage, liability or action;
provided, however, that the Company and the Operating Partnership will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representative specifically
for inclusion therein. This indemnity agreement will be in addition to any liability that
the Company and the Operating Partnership may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company and the Operating Partnership, each director of the Company, each officer who
signs the Registration Statement, and each person who controls the Company and the Operating
Partnership within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company and the
Operating Partnership to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representative specifically for inclusion in the documents referred to in the
foregoing indemnity. The Company and Operating Partnership
-21-
acknowledge that (i) the public
offering price and underwriting discount figures appearing on the cover page and under the
caption “Underwriting” in the Prospectus Supplement; and (ii) the concession and reallowance
figures appearing under the caption “Underwriting” in the Prospectus Supplement constitute
the only information furnished in writing by or on behalf of the Underwriters for inclusion
in the Prospectus Supplement or the Base Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice
at the indemnifying party’s expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other parties indemnified pursuant to
this Agreement which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company, the Operating Partnership and the Underwriters severally agree to
-22-
contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) (collectively
“Losses”) to which the Company, the Operating Partnership and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership on the one hand and by the
Underwriters on the other from the offering of the Shares; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Shares) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Shares purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company, the Operating Partnership and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Operating Partnership on the one hand and
of the Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company and the Operating Partnership shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Company or by the Operating
Partnership on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Operating Partnership and the Underwriters
agree that it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or the Operating Partnership within
the meaning of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company and the Operating Partnership, subject in each case to
the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Shares agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount of Shares set
forth opposite their names in Schedule I hereto bears to the aggregate amount of Shares set forth
-23-
opposite the names of all the nondefaulting Underwriters) the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Shares which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate number of Common Stock set forth in Schedule I
hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Shares, and if such nondefaulting Underwriters do not purchase
all the Shares, this Agreement will terminate without liability to any nondefaulting Underwriter or
the Company or the Operating Partnership. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date shall be postponed for such period, not exceeding five (5)
Business Days, as the Representative shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by written notice given to the Company prior to
delivery of and payment for the Shares, if at any time prior to such time (i) trading in any shares
of the Company’s capital stock shall have been suspended by the Commission or NASDAQ or trading in
securities generally on NASDAQ shall have been suspended or limited or minimum prices shall have
been generally established on NASDAQ, (ii) a banking moratorium shall have been declared either by
federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it, in the sole and
reasonable judgment of the Representative, impractical or inadvisable to proceed with the offering
or delivery of the Shares as contemplated by the Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the Company and the
Operating Partnership or the officers of the Company and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company, the Operating Partnership or any of the
officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Shares. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Company or the Operating Partnership, will be
mailed, delivered or telefaxed to Gladstone Commercial Corporation, 0000 Xxxxxxxxxx Xxxxx, Xxxxx
000, XxXxxx, Xxxxxxxx 00000, Fax number 000-000-0000, Attention: Xxxxx Xxxxxxxxx, Chairman and
Chief Executive Officer, with a copy to Bass, Xxxxx & Xxxx PLC, The Tower at Peabody Place, 000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, Fax number 000-000-0000, Attention: Xxxx
X. Good, Esq. and if sent to the Representative, will be mailed, delivered or telefaxed to Xxxxxx
Xxxxxxxxxx Xxxxx LLC, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Fax number 000-000-0000,
Attention: Xxxxx X. Xxxxx with a copy to Squire, Xxxxxxx & Xxxxxxx (US) LLP, 000 X. Xxxxxx Xx.,
Xxxxx 0000, Xxxxxxxxxx, XX 00000, Fax number 000-000-0000, Attention: Xxxxx X. Xxxxxxx, Esq.
-24-
13. No Fiduciary Duty. Notwithstanding any preexisting
relationship, advisory or otherwise, between the parties or any oral representations or assurances
previously or subsequently made by the Underwriters, the Company acknowledges and agrees that: (a)
nothing herein shall create a fiduciary or agency relationship between the Company and the
Underwriters; (b) the Underwriters are not acting as advisors, expert or otherwise, to the Company
in connection with this offering, sale of the Shares or any other services the Underwriters may be
deemed to be providing hereunder, including, without limitation, with respect to the public
offering price of the Shares; (c) the relationship between the Company and the Underwriters is
entirely and solely commercial, based on arms-length negotiations; (d) any duties and obligations
that the Underwriters may have to the Company shall be limited to those duties and obligations
specifically stated herein; and (e) notwithstanding anything in this Agreement to the contrary, the
Company acknowledges that the Underwriters may have financial interests in the success of the
offering that are not limited to the difference between the price to the public and the purchase
price paid to the Company by the Underwriters for the Shares and the Underwriters have no
obligation to disclose, or account to the Company for, any of such additional financial interests.
The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the Underwriters with respect to any breach or alleged breach of fiduciary
duty.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 8 hereof, and no other person will
have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to contracts made and to
be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
-25-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Operating Partnership and the Underwriters.
| Very truly yours, Gladstone Commercial Corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| Gladstone Commercial Limited Partnership |
||||
| By: | GCLP Business Trust II | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Trustee | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Trustee | |||
| CONFIRMED as of the date first above mentioned, on behalf of the Representative and the other Underwriters named in Schedule I hereto. By Xxxxxx Xxxxxxxxxx Xxxxx LLC For itself and the other Underwriter named in Schedule I to the foregoing Agreement. |
||||
| /s/ Xxxxx Xxxxx | ||||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director | |||
SCHEDULE I
| Number of | |||||
| Underwriters | Firm Shares | ||||
Xxxxxx Xxxxxxxxxx Xxxxx LLC |
674,250 | ||||
J.J.B. Xxxxxxxx, X.X. Xxxxx, LLC |
50,750 | ||||
Total |
725,000 | ||||
SCHEDULE II
None.
SCHEDULE III
List of Subsidiaries
List of Subsidiaries
0000 X Xxxxxxxx Xxxxx Xxxxxxx XX, LLC
000 Xxxxxxxxxx Xxxxx, Xxxxx XX LLC
3094174 Nova Scotia Company
3094175 Nova Scotia Company
ACI06 Champaign IL LLC
AC07 Lawrenceville GA LLC
AFL05 Xxxxxx SC LLC
AFL05 Xxxxxx SC Member LLC
APML07 Hialeah FL LLC
C08 Fridley MN LLC
CDLCI07 Mason OH LLC
CI05 Clintonville WI LLC
CMI04 Canton NC LLC
CMS06-3 LLC
COCO04 Austin TX GP LLC
COCO04 Austin TX, L.P.
Corning Big Flats LLC
D08 Marietta OH LLC
DBI07 Bolingbrook IL LLC
Dorval Property Trust
EE, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx XX LLC
EE07 Raleigh NC, L.P.
EE07 Raleigh NC GP LLC
EI07 Tewksbury MA LLC
ELF08 Florida LLC
First Park Ten COCO San Antonio GP LLC
First Park Ten COCO San Antonio, L.P.
FMCT08 Chalfont PA GP LLC
FMCT08 Chalfont PA LP
FTCHI07 Grand Rapids MI LLC
GBI07 Syracuse NY LLC
GCC Acquisition Holdings LLC
GCC Chicago Holdings LLC
GCC COCO, Inc.
GCC Dorval LLC
GCC Granby LLC
GCC Norfolk LLC
GCLP Business Trust I
GCLP Business Trust II
Gladstone Commercial Advisers, Inc.
Gladstone Commercial Limited Partnership
Gladstone Commercial Partners LLC
Gladstone Commercial Lending LLC
Granby Property Trust
HMBF05 Newburyport MA LLC
Little Xxxx 00 Xxxxxxxxx XX Member LLC
Little Arch Charlotte NC LLC
MPI06 Mason OH LLC
MFI06-2 LLC
MSI05-3 LLC
000 Xxxxxxxxxx Xxxxx, Xxxxx XX LLC
3094174 Nova Scotia Company
3094175 Nova Scotia Company
ACI06 Champaign IL LLC
AC07 Lawrenceville GA LLC
AFL05 Xxxxxx SC LLC
AFL05 Xxxxxx SC Member LLC
APML07 Hialeah FL LLC
C08 Fridley MN LLC
CDLCI07 Mason OH LLC
CI05 Clintonville WI LLC
CMI04 Canton NC LLC
CMS06-3 LLC
COCO04 Austin TX GP LLC
COCO04 Austin TX, L.P.
Corning Big Flats LLC
D08 Marietta OH LLC
DBI07 Bolingbrook IL LLC
Dorval Property Trust
EE, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx XX LLC
EE07 Raleigh NC, L.P.
EE07 Raleigh NC GP LLC
EI07 Tewksbury MA LLC
ELF08 Florida LLC
First Park Ten COCO San Antonio GP LLC
First Park Ten COCO San Antonio, L.P.
FMCT08 Chalfont PA GP LLC
FMCT08 Chalfont PA LP
FTCHI07 Grand Rapids MI LLC
GBI07 Syracuse NY LLC
GCC Acquisition Holdings LLC
GCC Chicago Holdings LLC
GCC COCO, Inc.
GCC Dorval LLC
GCC Granby LLC
GCC Norfolk LLC
GCLP Business Trust I
GCLP Business Trust II
Gladstone Commercial Advisers, Inc.
Gladstone Commercial Limited Partnership
Gladstone Commercial Partners LLC
Gladstone Commercial Lending LLC
Granby Property Trust
HMBF05 Newburyport MA LLC
Little Xxxx 00 Xxxxxxxxx XX Member LLC
Little Arch Charlotte NC LLC
MPI06 Mason OH LLC
MFI06-2 LLC
MSI05-3 LLC
NJT06 Sterling Heights MI LLC
NW05 Richmond VA LLC
XX Xxxxxxxx GCC, L.P.
XX Xxxxxxxx SPE GP LLC
OB Midway NC Gladstone Commercial LLC
XX00 Xxxxxxxxxx VA LLC
Pocono PA GCC GP LLC
Pocono PA GCC, L.P.
PZ05 Maple Heights OH LLC
RB08 Concord OH LLC
RC06 Menomonee Falls WI LLC
XXXX00 Xxxxxxx LLC
XXX00 Xxxxxxxxx XX GP LLC
XXX00 Xxxxxxxxx XX LP
SCC10 Orange City IA LLC
SJMH06 Baytown TX GP LLC
SJMH06 Baytown TX XX
XXXX Grand Prairie, L.P.
SRFF08 Reading PA GP LLC
XXXX00 Xxxxxxx XX LP
STI05 Franklin NJ LLC
SVMMC05 Toledo OH LLC
TCI06 Burnsville MN LLC
XX00 Xxxxxxxxx XX LLC
WMI05 Columbus OH LLC
WMI05 Hazelwood MO LLC
WPI07 Tulsa OK LLC
YorkTC05 Eatontown NJ LLC
XXX00 Xxxxx Xxxxxx XX LLC
NW05 Richmond VA LLC
XX Xxxxxxxx GCC, L.P.
XX Xxxxxxxx SPE GP LLC
OB Midway NC Gladstone Commercial LLC
XX00 Xxxxxxxxxx VA LLC
Pocono PA GCC GP LLC
Pocono PA GCC, L.P.
PZ05 Maple Heights OH LLC
RB08 Concord OH LLC
RC06 Menomonee Falls WI LLC
XXXX00 Xxxxxxx LLC
XXX00 Xxxxxxxxx XX GP LLC
XXX00 Xxxxxxxxx XX LP
SCC10 Orange City IA LLC
SJMH06 Baytown TX GP LLC
SJMH06 Baytown TX XX
XXXX Grand Prairie, L.P.
SRFF08 Reading PA GP LLC
XXXX00 Xxxxxxx XX LP
STI05 Franklin NJ LLC
SVMMC05 Toledo OH LLC
TCI06 Burnsville MN LLC
XX00 Xxxxxxxxx XX LLC
WMI05 Columbus OH LLC
WMI05 Hazelwood MO LLC
WPI07 Tulsa OK LLC
YorkTC05 Eatontown NJ LLC
XXX00 Xxxxx Xxxxxx XX LLC
SCHEDULE IV
Persons Who Are To Deliver Lock-Up Agreements
1. Xxxxx Xxxxxxxxx
2. Xxxxx Xxx Xxxxxxxx
3. Xxxxxx Xxxxxxxx, III
4. Xxxxx A.R. Xxxxxx
5. Xxxx Xxxxxxxx
6. Xxxxxxx X. English
7. Xxxxxx Xxxx
8. Xxxx X. Xxxxxxx
9. Xxxxxxx X. Xxxxxx
10. Xxxxxxxx Xxxxx
11. Xxxx Xxxxxx
12. Xxxx Xxxxxx
13. Xxxx Xxxxxxxxxx
14. Xxxxxxx X. XxXxxxx
2. Xxxxx Xxx Xxxxxxxx
3. Xxxxxx Xxxxxxxx, III
4. Xxxxx A.R. Xxxxxx
5. Xxxx Xxxxxxxx
6. Xxxxxxx X. English
7. Xxxxxx Xxxx
8. Xxxx X. Xxxxxxx
9. Xxxxxxx X. Xxxxxx
10. Xxxxxxxx Xxxxx
11. Xxxx Xxxxxx
12. Xxxx Xxxxxx
13. Xxxx Xxxxxxxxxx
14. Xxxxxxx X. XxXxxxx
