Exhibit 10.1
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT (this
"AGREEMENT") is entered into and made effective as of the 7th day of August 2003
by and between GLADSTONE COMMERCIAL CORPORATION, a Maryland corporation (the
"COMPANY"), and GLADSTONE MANAGEMENT CORPORATION, a Delaware corporation (the
"ADVISER").
W I T N E S S E T H:
WHEREAS, the Company intends to be treated as a real estate investment
trust (REIT);
WHEREAS, the Adviser is an investment adviser registered under the
Investment Advisers Act of 1940, as amended (the "ADVISERS Act"), and the rules
and regulations promulgated thereunder;
WHEREAS, the Adviser desires to serve as the Company's investment
adviser and, in connection therewith, to perform certain services for the
Company with respect to the administration of the Company and its investment
activities, in all cases under the supervision and control of the Company's
Board of Directors and on the terms and subject to the conditions set forth
herein; and
WHEREAS, the Company desires to retain the Adviser to serve as its
investment adviser and, in connection therewith, to perform certain
administrative and investment advisory services under the supervision of the
Company's Board of Directors and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. APPOINTMENT OF ADVISER; DUTIES OF ADVISER.
(A) The Company hereby retains the Adviser to serve as its
investment adviser for the period and on the terms and subject to the conditions
as set forth in this Agreement.
(B) Subject to the supervision and control by the Company's
Board of Directors, the Adviser shall:
(I) (A) consistent with the Company's investment
policies adopted by the Company's Board of Directors, as revised from time to
time, manage the investment and reinvestment of the Company's assets;
(B) continuously review, supervise and administer the
Company's investment program to determine in its discretion the securities to be
purchased or sold and the portion of the Company's assets to be held
un-invested;
(C) provide the Company with all required records
concerning the Adviser's efforts on behalf of the Company; and
(D) provide regular reports to the Company's Board of
Directors concerning the Adviser's activities on behalf of the Company;
(II) (A) consistent with the Company's investment
policies adopted by the Company's Board of Directors, as revised from time to
time, manage the acquisition and divesture of real estate and mortgage loans
purchased or originated for the account of the Company;
(B) manage the Company's portfolio of real
estate and mortgage loans; and
(C) manage any other investments of the
Company;
(III) use its best efforts to present the Company
with investment opportunities consistent with the Company's investment policies
and objectives as adopted by the Company's Board of Directors and as revised
from time to time; and
(IV) devote sufficient resources to the business of
the Company to discharge its obligations under this Agreement.
(C) The Company's Board of Directors retains, and has the
exclusive right, to:
(I) Grant stock compensation to the officers of the
Company and any employee of the Adviser;
(II) Hire, fire and control the activities of the
Adviser's employees in connection with and to the extent of such employees' work
for the Company;
(III) Determine the economic value of the services
performed by the Adviser's employees that are assigned to the Company (including
wages and the number of units and value of any stock compensation granted); and
(IV) Remit funds sufficient to cover the complete
compensation, including all payroll taxes, of the Adviser's employees assigned
to the Company.
2. ACCEPTANCE BY ADVISER.
The Adviser hereby accepts appointment as investment adviser to the
Company on the terms and conditions set forth on this Agreement, and agrees to
discharge the foregoing responsibilities in compliance with the investment
objectives, policies and limitations set forth in the Company's prospectus (as
it may be amended or supplemented from time to time, the "PROSPECTUS") and
applicable laws and regulations, and under the supervision and control of the
Company's Board of Directors.
2.
3. COMPENSATION.
(A) The Adviser shall pay all of its own costs and expenses,
including such costs and expenses as the Adviser may incur in the performance of
its duties pursuant to this Agreement. In consideration for the Adviser's
services as set forth in this Agreement, the Company shall reimburse the Adviser
for expenses that it incurs as described in this Section 3.
(B) The Company will reimburse the Adviser promptly, against
the Adviser's voucher, for any expenses incurred the by the Adviser for the
Company's account. Without limitation, such expenses shall include (i) expenses
of the Company's organization, (ii) expenses incurred in connection with the
Company's initial public offering, (iii) expenses of any offering and sale by
the Company of its securities, (iv) the fees and disbursements of the Company's
counsel, accountants, custodian, transfer agent and registrar, (v) fees and
expenses incurred in producing and effecting filings with federal and state
securities administrators, (vi) costs of the Company's periodic reports to and
other communications with the Company's stockholders, (vii) fees and expenses of
members of the Company's Board of Directors who are not directors, managers,
officers or employees of the Adviser, and are not managers, officers or
employees of any entity managed by the Adviser, (viii) fees of members of the
Company's Board of Directors who are such directors, managers, officers or
employees, and (ix) premiums for any fidelity bond and similar insurance
maintained by the Company.
(C) The Company shall also reimburse the Adviser promptly,
against the Adviser's voucher, for all fees charged by third parties that are
directly related to the Company's business, which may include, without
limitation (i) any origination fee with respect to any loan, lease or investment
made by the Company, and (ii) and all transaction costs incident to the
acquisition and disposition by the Company of securities, leases, mortgage
loans, real estate and other investments and assets, including, without
limitation, legal and accounting fees and other professional or technical fees
and expenses (e.g., credit reports, appraisals, title search and delivery
charges, costs of specialized consultants such as accountants or
industry-specific technical experts, and deal-specific travel expenses) incurred
in monitoring, negotiating and working-out such securities, leases, mortgage
loans or real estate and other investments and assets, as well as responding to
any litigation or other disputes arising therefrom. All such origination fees
described in clause (i) above shall be reviewed as of the end of each calendar
quarter by the Company's Board of Directors.
(D) The Company shall also reimburse the Adviser for the
Company's pro rata portion of the payroll and related benefits (including tax
withholding) for each of the Adviser's employees who provide services to the
Company. This amount shall be computed on a monthly basis for each employee as
the ratio of the hours spent on behalf of the Company to the total hours worked
by the employee applied to the employee's payroll and related benefits for that
month.
(E) The Company shall also reimburse the Adviser for its pro
rata portion of the Adviser's total operating expenses (excluding payroll and
related benefits) not incurred for direct benefit of any party whom the Adviser
manages (e.g., general administrative and other overhead expenses) ("OVERHEAD").
This expense reimbursement and the payroll reimbursement discussed in paragraph
(D) above are collectively the equivalent of a management fee and are
collectively hereafter referred to as the "MANAGEMENT FEE." The Overhead
reimbursement component of the Management Fee shall be computed monthly on the
following basis:
(I) The Adviser shall calculate the total aggregate
hours of service performed by all of its employees, directors and associates
during the month, and that number shall be the "DENOMINATOR."
3.
(II) The Adviser and each of the Adviser's employees,
directors and associates shall calculate the total aggregate number of hours of
service performed on behalf of the Company during the month, and that number
shall be the "NUMERATOR."
(III) The percentage derived by dividing the
Numerator by the Denominator shall be the percentage of all Overhead that shall
be billed to the Company for that month (the "MONTHLY PERCENTAGE").
(IV) The Adviser will estimate its total operating
expenses (less payroll and related benefits and expenses incurred directly for
the benefit of parties that the Adviser manages, such as those expenses
described in Section 3(b) and 3(c)) for the month (the "ESTIMATED OVERHEAD"),
based on historical monthly expenses, and make any adjustments to the prior
monthly bills in order to reconcile the actual results with the earlier
estimates. The Adviser shall then calculate the month's Management Fee by
multiplying the Monthly Percentage by the Estimated Overhead and adding the
product to the payroll reimbursement for the month (described in Section 3(d)).
The Adviser will then xxxx the Company for an amount equal to Management Fee for
that month. The Management Fee for each month will be paid by the Company on the
fifth business day of the subsequent month.
(V) The Management Fee is subject to an annual
maximum of 2.0% of the Company's average invested assets (as determined jointly
by the Company and the Adviser) (the "ANNUAL MANAGEMENT FEE CAP") during each
calendar year. The Adviser shall reimburse the Company no less frequently than
annually for the amount by which amounts billed to and paid by the Company
exceed the Management Fee Cap during a given year. Notwithstanding the
foregoing, in the event that payroll reimbursements exceed the Annual Management
Fee Cap, any payroll amounts in excess of the Annual Management Fee Cap will
nevertheless be reimbursed by the Company, but no reimbursement for overhead
would be paid by the Company in such event, except as described in paragraph
(VI) below.
(VI) To the extent that aggregate Management Fees
payable or reimbursable by the Company exceed the Annual Management Fee Cap
(such amount, the "EXCESS FEES") and the Company's independent directors
determine, by majority vote, that the excess Management Fees were justified
based on unusual and nonrecurring factors which they deem sufficient, the
Company may reimburse the Adviser in future years for the full amount of the
Excess Fees, or any portion thereof, but only to the extent that the
reimbursement would not cause the Company's Management Fees and Excess Fees to
collectively exceed the Annual Management Fee Cap in any year.
(VII) In the event this Agreement is terminated, any
compensation to which the Adviser may be entitled to receive pursuant to this
Section 3(d) shall be computed as of the period ending on the last business day
on which this Agreement is in effect, subject to pro rata adjustment based on
the number of days elapsed in the current month as a percentage of the total
number of days in such month, as appropriate.
(F) The Company shall establish an Equity Incentive Plan for
the officers and directors of the Company. The plan shall be administered by the
Board of Directors or by its Compensation Committee if the Board of Directors
delegates that authority to the Compensation Committee.
4.
4. LIMITATION OF LIABILITY.
In the absence of: (i) willful misfeasance, bad faith or gross
negligence on the part of the Adviser in the performance of its obligations and
duties hereunder; (ii) reckless disregard by the Adviser of its obligations and
duties hereunder; or (iii) a loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services, the Adviser shall not be
subject to liability to the Company or any of its stockholders for any error of
judgment, mistake of law or any other act or omission in the course of, or
connected with, its rendering of services hereunder including, without
limitation, for any losses that may be sustained in connection with the
purchase, holding, redemption or sale of any security by the Adviser on behalf
of the Company.
5. EXCLUSIVITY.
The services provided by the Adviser hereunder are not exclusive and
the Adviser shall therefore remain free to render such services to others.
6. RECORDS.
The Adviser agrees to preserve the records required by Rule 204-2
promulgated under the Advisers Act for the period specified therein.
7. WRITTEN DISCLOSURE STATEMENT.
The Adviser has previously delivered to the Company a written
disclosure statement as required by Section 204-3(a) of the Advisers Act in the
form of either a copy of Part II of the Adviser's Form ADV which complies with
Section 204-1(b) of the Advisers Act or a written document containing at least
the information required by Part II of Form ADV. Such written disclosure
statement was delivered by the Adviser to the Company within the time period
specified by Section 204-1(b) of the Advisers Act.
8. DURATION.
This Agreement shall be effective beginning on the date set forth in
the preamble hereof, and shall remain in force through December 31, 2006. Upon
expiration of the initial term, the term of this Agreement shall be
automatically extended for successive one (1) year periods, unless either the
Company or the Adviser notifies the other party of its intention not to renew
this Agreement at least 120 days prior to the end of the term.
9. TERMINATION.
(A) This Agreement may be terminated by
(I) the Company's Board of Directors, immediately,
for Cause or upon the Bankruptcy of the Adviser;
(II) the vote of a majority of the Company's
Independent Directors upon sixty (60) days prior written notice to the Adviser;
or
5.
(III) the Adviser, immediately, with Good Reason.
(B) Definitions. For the purposes of this Section 9, the
following terms shall have the following definitions:
(I) "CAUSE" shall mean fraud, criminal conduct,
willful or negligent breach of fiduciary duty, or the commission of a material
breach of this Agreement;
(II) "GOOD REASON" shall mean either (A) a failure to
obtain a satisfactory agreement from any successor to the Company to assume and
agree to perform the Company's obligations under this Agreement, or (B) a
material breach of this Agreement; and
(III) "BANKRUPTCY" shall mean the happening of any of
the following: (A) the filing of an application by the Adviser for the
appointment of a trustee, receiver or similar person over all or substantially
all of his or its assets; (B) the filing by the Adviser of a voluntary petition
in bankruptcy or the filing of a pleading in any court of record admitting in
writing the Adviser's inability to pay substantially all of its debts as they
become due; (C) the making by the Adviser of a general assignment for the
benefit of creditors in connection with the winding up or liquidation of the
Adviser's business; (D) the expiration of 60 calendar days after a petition for
involuntary bankruptcy shall have been filed against the Adviser, or the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of the Adviser or of a substantial part of its property shall have
occurred, provided that the same shall not have been vacated or dismissed within
such 60-day period or there shall be remaining open any motion to vacate or
dismiss such petition filed before the expiration of any such 60-day period;
provided that such motion shall not remain open in excess of 120 calendar days
in the aggregate; (E) the filing by the Adviser of an answer admitting the
material allegations of, or its consenting to, or defaulting in answering, a
bankruptcy petition filed against the Adviser in any bankruptcy proceeding; or
(F) the entry of an order, judgment, or decree by any court of competent
jurisdiction adjudicating the Adviser bankrupt or appointing a trustee over its
assets, and such order, judgment or decree continuing unstayed and in effect for
a period of 60 consecutive calendar days.
10. AMENDMENTS.
This Agreement may be amended with the mutual consent of the parties;
PROVIDED, HOWEVER, that the Company shall not consent to any such amendment
unless such amendment shall be approved by (i) a majority of the Company's
directors and (ii) a majority the Company's independent directors.
11. SEVERABILITY.
If any term or condition of this Agreement shall be found to be invalid
or unenforceable to any extent or in any application, the remainder of this
Agreement, including such term or condition, except to the extent or in such
application such term or condition is held invalid or unenforceable, shall not
be affected thereby, and each and every term and condition of this Agreement
shall be valid and enforceable to the fullest extent and in the broadest
application permitted by law.
6.
12. CAPTIONS.
The captions of this Agreement are included for convenience only and in
no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
13. DEFINITIONS.
For purposes of this Agreement, "MAJORITY OF THE OUTSTANDING VOTING
SECURITIES," "ASSIGNMENT" and "INTERESTED PERSON" shall have the respective
meanings assigned to them in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"), subject, however, to such exemptions as may be
granted by the Securities and Exchange Commission pursuant to its rule-making
authority as set forth in the Investment Company Act or the Advisers Act, as the
case may be. "INDEPENDENT DIRECTOR" shall have the meaning ascribed to such term
under the rules of the Nasdaq Stock Market or such other securities market on
which the securities of the Company are traded.
14. NOTICES.
All notices required or permitted to be delivered under or pursuant to
this Agreement shall be so delivered by certified mail, postage prepaid, as
follows:
If to the Adviser: Gladstone Management Corporation
0000 Xxxxxx Xxxx., 0xx Xxxxx
XxXxxx, XX 00000
Attn: President
If to the Company: Gladstone Commercial Corporation
0000 Xxxxxx Xxxx., 0xx Xxxxx
XxXxxx, XX 00000
Attn: Chairman
Any notice delivered pursuant to this Section 14 shall be deemed
delivered on the third day following its deposit in the United States mail or
the date such notice is actually received by the addressee, whichever shall
occur first.
15. ASSIGNMENT.
This Agreement is generally not assignable or transferable by either
party hereto without the prior written consent of the other party. HOWEVER, (i)
the Adviser may assign this Agreement to an affiliate of the Adviser without the
Company's consent if the Adviser guarantees the performance of the obligations
hereunder, and (ii) either party may assign or transfer this Agreement to a
successor in interest.
16. ENTIRE AGREEMENT.
This Agreement contains the entire agreement of the parties with
respect to the matters referred to herein and supersedes all prior agreements,
negotiations, commitments or understandings.
7.
17. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be taken to be an original and
together shall constitute one and the same document.
18. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of Virginia and the applicable provisions of the Advisers Act.
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8.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first above written.
GLADSTONE COMMERCIAL CORPORATION
By: /s/ XXXXX XXXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxxx
Chairman of the Board and CEO
GLADSTONE MANAGEMENT CORPORATION
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxx
President and COO
9.
