exv10w4



 





Exhibit 10.4




MARKETING, OPERATING AND LICENSE AGREEMENT




     THIS MARKETING, OPERATING AND LICENSE AGREEMENT (“Agreement”), dated September 1, 2007, is
made by and between PROINVEST REALTY ADVISORS LLC (“PRA”), a Texas limited liability company,
PROINVEST REALTY FUND LLC (“PRF”), a Delaware limited liability company, and CHURCHILL DATA
SERVICES, LLC (“CDS”), a Texas limited liability company.



WITNESSETH:




     WHEREAS, PRA has been formed for the purpose of organizing, capitalizing, and managing various
real estate investment funds (any one, “Fund”; all together, “Funds”) which will be intended to
own, develop, and operate commercial and other real estate projects in the State of Texas, and
elsewhere; and



     WHEREAS, to promote economies of scale and efficient and cost effective operations, PRA
desires to engage the marketing services (“Marketing Services”) of CDS as an independent contractor
to furnish certain marketing and services to and on behalf of PRA, the Funds, and each of the
special purpose entities (any one “SPE;” all together, “SPE’s”) intended to be formed by each of
the Funds to acquire specific real estate assets, and CDS desires to provide the Marketing Services
to and on behalf of PRA, the Funds, and the SPE’s (all together, “Proinvest Group”), in
consideration of the payment to CDS of the Marketing Fee (hereinafter defined) and Trailing Fee
(hereinafter defined) as specified herein; and







     WHEREAS, CDS has been formed by Michael T. Churchill, as the sole member and manager of CDS,
to accept an assignment, with the consent of PRA and the PRF, by virtue of that certain Assignment
of Marketing Agreement, dated August 30, 2007, of all rights titles, interests and obligations of
Critical Data, Inc. (“Consultant”), a Washington corporation, pursuant to that certain Amended and
Restated Marketing Agreement (“Marketing Agreement”), dated as of February 27, 2007, made by and
among PRA, PRF and Consultant; and







     WHEREAS, CDS proposes to provide the Marketing Services to PRA and PRF incident to the
offering (“Offering”) and sale by the PRF of up to $100 million of membership interests (any one,
“Unit;” all together, “Units”) in PRF at a price per Unit of $50,000 and as to be more particularly
described in the prospectus and all supplements and amendments thereto from time to time (all
together, “Prospectus”) describing the Offering and constituting a part of the Form S-11
registration statement (“Form S-11”) filed or to be filed by PRF with the Securities and Exchange
Commission; and







     NOW, THEREFORE, for and in consideration of the sum of $10, and other good, valuable,
sufficient, and received consideration, PRA, PRF and CDS hereby amend and restate the Marketing
Agreement, as assigned by Consultant to CDS, in its entirety, and agree as follows:







ARTICLE 1




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MARKETING



Section 1.1. Marketing Services. At the outset of this Agreement, CDS shall
promptly familiarize itself with the Confidential Business Plan for Proinvest Realty Advisors LLC
and Confidential Business Plan for Proinvest Realty Fund LLC (“ Proinvest Business Plan”)
heretofore provided by PRA to CDS. PRA shall endeavor to timely and fully respond to information
and document requests from CDS with respect to the Proinvest Business Plan, the transactions
contemplated thereby, and marketing issues identified by CDS so as to enable the CDS to perform its
obligations hereunder. Based upon the Proinvest Business Plan, Consultant prepared and delivered to
PRA and PRF a comprehensive marketing plan (“Proinvest Marketing Plan”) for the marketing of the
Units to prospective investors (“Prospective Investors”) in PRF. The Proinvest Marketing Plan
includes (a) specific marketing recommendations of the Consultant as to achieving a full
subscription by Prospective Investors to the Offering, (b) a detailed budget of the expected costs
and expenses for full implementation of the Proinvest Marketing Plan, and (c) a detailed timeline
(schedule) for full implementation of the Proinvest Marketing Plan. CDS will promptly (within
fifteen (15) days after the date hereof) review, update and revise the Proinvest Marketing Plan in
collaboration with PRA and PRF. All permanent policies or actions required as a result of the
Proinvest Marketing Plan, as updated and as revised and all recommendations made to CDS by third
parties, are subject to the written approval of PRA.







The Proinvest Marketing Plan includes (a) an analysis of comparable and competitive offerings
similar to the Offering, (b) recommendations for structural changes, if any, to PRF, and (c) a
plan for the active advertisement and marketing of the Units in compliance with the requirements
and limitations of all applicable state and federal securities regulation laws (together,
“Securities Laws”), including advertising devices, brochures, and other collateral materials and
marketing presentations (all together, “Other Offering Materials”), and (d) a plan for securing
Prospective Investors as contemplated by the preceding paragraph. In implementing the Proinvest
Marketing Plan, CDS shall, as necessary and appropriate, consult with Prospera, the broker-dealer
who will manage the sale of the Units through licensed broker-dealers and other third party
registered intermediaries. CDS shall diligently and timely cooperate with and assist PRA and PRF in
the implementation of the Proinvest Marketing Plan, and shall perform all such functions, duties,
and discharge all such responsibilities, as shall be allocated to CDS as the successor to the
Consultant under the Proinvest Marketing Plan. The division of primary obligations of CDS and
Prospera with respect to the Offering are as follows:








     CDS – Marketing Consultant:


CDS, as the marketing consultant to the Proinvest Group will be responsible for:



Based on the Proinvest Marketing Plan crafting the central, essential, compelling PRF marketing
message and supporting information to be communicated to target Prospective Investors.



Creating the marketing message dissemination process calculated to present PRF as a desirable
investment opportunity for its Prospective Investors, emphasizing PRF’s competitive advantages


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and placing the PRF investment product first in line for recommendation by broker dealers and other
registered representatives to Prospective Investors.



Developing a proprietary network data-base for PRA and PRF identifying Prospective Investors and
the intermediaries that will lead to Prospective Investors, including broker dealers, wealth
managers, financial planners, trust companies, banks and other financial institutions, foundations,
private equity groups, hedge funds, and funds of funds and media publications that target the same
Prospective Investors and intermediaries and ongoing maintenance, growth and refinement of the
network data-base.



Utilization of the network data-base system to establish contact with Prospective Investors and
intermediaries, qualify them as potential marketing targets and present or orchestrate the
presentation of the marketing message to them on behalf Prospera, and on behalf of PRA and PRF,
including a program of telephone follow-up and scheduling of personal meetings for follow up, and
including organization of a “road show” program to be conducted by PRA and PRF. If any recipients
of the PRF “message” and “media” have any questions regarding the offering, they will be directed
to contact PRA or PRF or a designated individual at Prospera. CDS personnel may answer questions
and communicate with Prospective Investors and intermediaries only with respect to the process and
orchestration of presentation of the “media/message”, e.g., arranging printing, publication,
meetings, creating and qualifying the network and arranging the “road show”.



Cooperating fully with the Proinvest Group and Prospera in all aspects of the offering and
marketing of the PRF, being truthful with PRA, PRF and Prospera and their respective personnel and
keeping PRA, PRF and Prospera fully informed with respect to all matters that affect the Fund and
the marketing of the Fund and appearing, on reasonable notice, for meetings, conferences and other
activities in support of the marketing of the Fund.




     Prospera Financial Services – Exclusive Managing Broker Dealer:


Prospera has agreed to serve as the Exclusive Managing Broker Dealer for the Fund Offering.
Prospera will be responsible for:



Actively participating with PRA, PRF and CDS in the preparation and refinement of the Fund offering
materials and Fund marketing plan and materials, approving the final plan and materials, to be
evidenced by the inclusion in the materials of the prominent identification of Prospera as the
Exclusive Managing Broker Dealer for the Fund offering and executing the Proinvest Marketing Plan.



Using its best efforts to assure compliance of the marketing program and offering materials with
NASD rules and regulations and all Federal and State Securities laws requirements. Issuers’ legal
counsel, Secore & Waller, will also be responsible for assuring the same compliance.



Conducting a due diligence assessment of the Fund offering and the issuer, including the engagement
of a third party due diligence assessment and production of a due diligence report
(sometimes referred to as a “fairness” or “transaction feasibility” opinion) suitable for


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dissemination to prospective investors. The due diligence report will be limited in scope to a
review of such directly relevant facts and circumstances as are necessary to enable Prospera and
its consultant to determine, based on information made available to Prospera by Proinvest through
the Fund prospectus and the offering materials, that Prospera, the participating broker dealers and
other registered representatives have reasonable grounds to believe that all material facts are
adequately and accurately disclosed and provide a fair basis for evaluating the offering, in
accordance with NASD Rule 2810 (b) (3). Prospera has accepted the Dallas, Texas law firm of Secore
& Waller, LLP, counsel to PRA and PRF to provide the due diligence report.



Cooperating fully with PRA, PRF and CDS in all aspects of the offering and marketing of the Fund,
being truthful with PRA, PRF and CDS and their respective personnel and keeping Proinvest and
Critical Data fully informed with respect to all matters that affect the Fund and the marketing of
the Fund and appearing, on reasonable notice, for meetings, conferences and other activities in
support of the marketing of the Fund.



Soliciting from its existing client base, and using reasonable efforts to cause other broker
dealers and registered representatives to solicit, subscriptions to the Fund. Prospera will also
timely and effectively respond to inquiries from intermediaries and Prospective Investors regarding
the Fund, using its best efforts to close and book subscriptions as a broker dealer pursuant to
those inquiries.



Negotiation and documentation of fee agreements with participating broker dealers, financial
planners and other registered representatives and sales and distribution intermediaries, subject to
PRA and PRF approval.



Oversight and supervision of the Fund subscription process, including execution delivery and
maintenance of all subscription documentation as agent for the Fund as well as maintenance of books
and records of the subscriptions, in a manner and with documentation acceptable to PA and PRF..



Maintenance of the Fund Escrow, prior to the initial closing of the Fund at the Fund minimum of $5
million, at LegacyTexas Bank, a Texas state bank.



As a part of the agreement between PRA, PRF and Prospera, Prospera will be required to prepare a
detailed plan, time-line and budget designed to satisfy its responsibilities.



Section 1.2. CDS Business Plan. Within thirty (30) days after the date hereof, CDS
will prepare a business plan for the operations of CDS (the “CDS Business Plan”), including and
complete plan and budget incorporating the same elements as the Proinvest Business Plan and
specifically including staffing requirements and capital and operating budgets and financial
forecasts, and the assumptions supporting all of such plans, budgets and forecasts. The CDS
Business plan must be reasonably acceptable to PRA and shall include performance benchmarks
acceptable to PRA, in its sole discretions, against which benchmarks the performance by CDS of its
obligations hereunder will be measured. In the event CDS does not meet any performance benchmark
set forth in the approved CDS Business Plan, as PRA may, in its sole
discretion determine, such failure shall constitute a default by CDS
hereunder. No temporary waiver or waivers of a default


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hereunder by PRA shall constitute a complete or permanent waiver by PRA of any such default and at
any time after the occurrence of any default hereunder that has not been permanently waived by PRA,
in writing or cured, as evidenced by PRA acknowledgment of such cured default, in writing, PRA
shall be entitled to terminate this Agreement and to pursue all remedies available to PRA in the
event of such default.



Section 1.3. No General Solicitation. Neither CDS nor any person or entity
affiliated directly or indirectly with CDS may engage in any “general solicitation” or
“advertising,” as each of such terms is defined in and interpreted under the Securities Laws,
including most particularly the Securities Act of 1933, in any effort by PRA, PRF or, Prospera, or
any other party to procure Prospective Investors.



Section 1.4. Certain Sales of Units on Net Asset Value Basis. PRF shall cause
Prospera to arrange sales (“Fee Remission Sales”) of the Units to the principals (“CDS Principals”)
of the CDS, if so requested by the CDS, for the account of the CDS Principals on a net asset value
basis, i.e., without payment of any fee to the Prospera, any broker dealer selling commissions or
concessions, or any participating broker dealer marketing fees or expenses (“Net Asset Value
Basis”).



With respect to any Fee Remission Sales of Units on a Net Asset Value Basis to CDS Principals or to
the principals of PRA or the Prospera, for the personal account of any such principals, if so
requested by such principals, shall also be made without payment of any Marketing Fees otherwise
payable to the CDS hereunder.



Section 1.5. Confidential Information. Any term or condition hereof to the contrary
notwithstanding, CDS hereby expressly acknowledges and agrees that the Proinvest Business Plan, the
Marketing Plan, and any and all work product of any kind, character, or description produced by or
through the efforts of CDS incident to the provision of the Marketing Services, including without
limitation purchased lists, databases, contact information, document layouts and designs, sales
materials, published or unpublished financial information, published or unpublished business plans
other than the Proinvest Business Plan, published or unpublished marketing plans other than the
Marketing Plan, financial and other projections, marketing data, guides, manuals, charts, graphics,
research information, business procedures, trademarks and related rights, service marks and related
rights, copyrights and related rights, patents and related rights, URL’s, trade names, telephone
numbers, and business information generally, whether in tangible, intangible, visual, or electronic
format, are and shall remain the exclusive property PRA.



CDS shall at all times prior to, and after, a Termination (hereinafter defined) maintain as
confidential and proprietary solely to PRA any and all information, data, plans, surveys, and work
product (all together, “Confidential Information”) of whatever kind, character, or description,
including the Business Plan and the Marketing Plan, resulting from the rendition of the Marketing
Services or provided to CDS by or at the behest of the PRA, PRF, Prospera, or any other party
incident to the Offering or the business and affairs of PRA and PRF, generally. Without limitation,
the Confidential Information shall include (a) any existing, planned, or
proposed strategic, marketing, and other business plans and strategies of PRA and PRF,


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including any such plans and strategies proposed or developed by CDS, (b) the identities of persons and
entities with whom the PRA and PRF presently does, or with whom PRA or PRF propose doing, business,
(c) any transactional structural proposals or models of or by PRA, PRF, and the CDS, (d) any
existing, planned, or proposed business operations, products, or services of PRA and PRF, (e) any
financial information, projections, pro forma and other analyses, compilations, models, statements,
and reports to or by PRA, PRF, and the CDS, (f) any existing, planned, or proposed business
operations, systems, strategies, or methodologies of PRA and PRF, (g) any existing, planned, or
proposed customer, client, or Prospective Investor lists of PRA or PRF, and (g) generally, as to
all of the information and materials described in the preceding subparts (a) through (f) of this
Section 1.5, any such information and materials in whatever form, format, or medium, including
without limitation written, verbal, electronic, mechanical, or graphic form or format. To the
extent requested by PRA or PRF all Confidential Information shall be copyrighted by CDS solely in
the name of PRA.



Section 1.6. Compensation and Expense Reimbursement. CDS is hereby appointed the
exclusive marketing agent for PRF. PRF shall pay, or cause to be paid, to CDS (a) current marketing
consultant fees (“Marketing Fees”) in amounts equal to 0.25% per Unit sold and for which PRF has
actually received funds, plus (b) trailing marketing consultant fees (“Trailing Fees”), payable in
amounts equal to 2.0% of the cash flow received by the Company from time to time derived solely
from the disposition of any real estate asset (“Asset”) owned by PRF, and after payment by PRF of
(A) all indebtedness related to the Asset being sold, (B) all selling expenses related to the Asset
being sold, (C) the establishment of reasonable, necessary, and prudent capital reserves by PRF
from the proceeds received by PRF from the Asset being sold, and (D) the payment and distribution
with respect to the Units of all amounts necessary for the Units to achieve an 8% internal rate of
return. PRF shall also pay or reimburse to the Consultant all of the reasonable, necessary, normal,
and appropriately documented expenses (“Marketing Expenses”) incurred by CDS related to the
Offering and the rendition by CDS of the Marketing Services., limited to the purposes and amounts
specified the then current CDS Business Plan and Marketing Plan and the budgets contained therein
and approved by PRA. CDS shall deliver to PRA and PRF a statement of the Marketing Expenses on or
before the last calendar day of each calendar month and PRF shall pay or cause the Marketing
Expenses noted in such statement to be paid on or before the 15th calendar day of the
next succeeding calendar month. The Marketing Fees and the Trailing Fees shall be paid on or before
the 15th calendar day of the calendar month next succeeding the calendar month for which
such fees become due and payable. The payments to be made under this paragraph are expressly
subject to, and may be limited by, the rules and regulations of the National Association of
Securities Dealers.



Section 1.7. Consulting. CDS shall, from time to time, as requested by PRA, consult with
and advise entities within the Proinvest Group as to the process of planning and strategy of
marketing the Funds, the development of measurements that have a strategic focus balanced between
product branding and closing subscriptions and which are predictive rather than reactive, the
provision of information and analysis providing insight into the creation of value through
marketing of the Funds and the progress in creating value is matched against strategic objectives,
and major marketing initiatives.




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Section 1.8. Third Party Service Providers. CDS will, in cooperation with PRA and PRF,
select and manage third party, marketing related service providers to entities within the Proinvest
Group. No third part service provider may be engaged without the prior written consent of PRF and
the Fund or Funds for which the services are proposed to be engaged.



Section 1.9. Services Not Exclusive. PRA and PRF recognize that the Services will
not be exclusive to the entities within the Proinvest Group and that CDS will be providing similar
services to other independent third parties, provided however that such third party services must
be approved in writing by PRA, in its reasonable discretion, and may not interfere in any material
way with the performance by CDS of its obligations hereunder.



Section 1.10. Termination. This Agreement may be terminated (“Termination”) by
either PRA, PRF, or CDS at any time after not less than 30 days prior written notice by PRA, PRF,
or CDS to each of the others. Upon a Termination, CDS shall deliver to PRA within 15 days
thereafter (a) an accounting itemizing (i) any Marketing Fees and Trailing Fees accrued or earned
and unpaid as of the date of the Termination, plus (ii) all Marketing Expenses unpaid as of the
date of the Termination, and (b) all Confidential Information in the possession of or reasonably
available to CDS. CDS shall be entitled to payment of Trailing Consultant Fees calculated as
specified herein only after the PRF has been fully subscribed or the PRF Offering is terminated and
after the sale of the last PRF Asset. In the event any Services Fee payable to Seneca or
reimbursable to PRA for its prior payment to Seneca on behalf of CDS, is not paid or reimbursed on
the date of Termination, the amount of such unpaid or unreimbursed Service fee may offset against
and deducted from any payments otherwise due CDS on or after such Termination.



Section 1.11 PRA Advances to CDS. PRA has agreed to advance to CDS the sum of
$6,000 per month, commencing September 1, 2007 and continuing on the 1st day of each
succeeding month until the earlier of (a) January 1, 2008 or (b) the day the Fund Minimum has been
subscribed. When the Fund minimum has been subscribed, PRF is hereby directed by CDS to be repay
the loan advances to PRA through the deduction by PRF of such loan amount from Marketing Fees
otherwise payable by PRF to CDS and repayment of such loan to PRA for the account of CDS. CDS also
hereby directs PRF to repay any Marketing Expenses advanced by PRA to CDS on behalf of PRF directly
to PRA upon subscription of the Fund minimum. PRA may also, from time to time, make other
advancements of expenses to CDS, at the sole option of PRA, and such other advancements shall also
be reimbursable to PRA in the same manner as specified above in this Section 1.11.



Section 1.12 PRA Payments to Critical Data. PRA and PRF shall be entitled to deduct
from any Marketing Fees payable to CDS hereunder the amount of any Consultant Fees required to be
paid to Consultant pursuant to the terms and conditions of the Assignment.



Section 1.13 PRA Disclaimer of any Interest in Marketing Fees or Trailing Fees.
With the exception of the repayment by PRF to PRA of advances made by PRA to CDS pursuant to
Section 1.11, or payment of Consultant Fees to consultant pursuant to Section 1.12 hereof, PRA
hereby expressly disclaims any right to any Marketing Fees or Trailing Fees payable to CDS by PRF
hereunder.




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ARTICLE 2

OPERATIONS



Section 2.1. Status of CDS. CDS shall provide to and on behalf of the entities
within the Proinvest Group the Marketing Services, as described herein. With respect to each of the
entities within the Proinvest Group, CDS shall at all times be an independent contractor. No
provision hereof shall be construed to constitute CDS or any of its officers or employees as an
employee of PRA, PRF or any entity within the Proinvest Group.




Article 3

License Agreement







Section 3.1 Intellectual Property Rights. The term Intellectual Property Rights,
as used herein shall mean “All rights, titles and interests or PRA, whether foreign or domestic, in
and to any and all trade secrets, confidential information rights, patents, invention rights,
copyrights, service marks, trademarks, know-how, or similar intellectual property rights and all
applications and rights to apply for such rights, as well as any and all moral rights, rights of
privacy, publicity and similar rights and license rights of any type under the laws or regulations
of any governmental, regulatory, or judicial authority, foreign or domestic and all renewals and
extensions thereof.” CDS may employ the Intellectual Property Rights or develop Intellectual
Property Rights in the performance of its duties on behalf of PRF. CDS shall not, through such use
or development or otherwise, acquire any right, title or interest in such Intellectual Property
Rights.







Section 3.2 License. Subject to the terms and conditions of this Agreement, PRA
hereby grants to Licensee a nonexclusive, nontransferable, non-assignable, limited license to (i)
use the Intellectual Property in its business, and (ii) market CDS’s right to the use of the
Intellectual Property to PRA and PRF’s respective lenders and investors, including marking
reservation of all copyrights to PRA in CDS’s written marketing materials.



Section 3.2 License Fee. CDS hereby agrees to pay PRA a License Fee of $1,200 per
year, payable in increments of $100.00 per month on the first day of each month during the term
hereof, inconsideration of its license to use the Intellectual Property Rights as provided for
herein. All such payments are non-cancellable and nonrefundable. The amount of such payments due
and payable, from time to time, shall be increased or decreased or otherwise calculated as may be
determined from time to time, but not less often than annually, by the mutual agreement of PRA and
CDS.



Section 3.3. Limitations. All rights to the use of the Intellectual Property
rights not expressly granted herein to CDS are expressly reserved by PRA. Without limiting the
generality of the preceding sentence, CDS hereby agrees (i) to use the Intellectual Property rights
solely for purposes associated with the conduct and administration of PRA and the Funds’ commercial
real estate investment and asset management business and the marketing of its business in
conjunction with the use of the Intellectual Property Rights, (v) not to market or distribute the


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Intellectual Property rights for sale, except in conjunction with the marketing of CDS’s business
as a whole and (vi) not to sublicense the Intellectual Property Rights.



Section 3.4 Development, Interpretation, Modification, Adaptation and Refinement of the
Product. PRA and CDS anticipate that as the business of the Proinvest Group develops, further
development, interpretation, modification, adaptation and refinement of the Intellectual Property
Rights will be necessary to serve the interests of PRA and CDS. PRA and CDS shall work closely on
a day to day basis throughout the term of this Agreement to effect such development,
interpretation, modification, adaptation and refinement of the Intellectual Property Rights.



Section 3.6 Marketing Efforts. Upon written notification from CDS to PRA, CDS
shall have the right to use the PRA’s name, and to include further appropriate information
regarding PRA and PRF, on the CDS’s web site and marketing materials; provided, however,
that as a condition to such use, PRA must review and approve any such use, in advance and in
writing.



Section 3.6 Title to Intellectual Property. PRA retains all right, title, and
interest in and to the Intellectual Property. This Agreement grants no additional express or
implied license, right, or interest to CDS or to any other party in any copyright, trade secret,
trademark, invention, or other intellectual property right of PRA. CDS hereby receives no right to,
and shall not, sell, assign, lease, market, transfer, encumber, or suffer to exist any lien or
security interest on the Intellectual Property or any element or component thereof, nor shall CDS
take, or omit to take, any action that would cause, or prevent any of the Intellectual Property
from being placed in the public domain. CDS shall at all times maintain and shall not remove, or
allow to be removed, any PRA copyright, trade secret, or other proprietary rights notice from any
of the Intellectual Property. CDS shall not make any warranties with respect to the Intellectual
Property.




ARTICLE 4

GENERAL



Section 4.1. Status of the Parties. Nothing in this Agreement shall be deemed or
construed to create a partnership or joint venture between the CDS and any member of the Proinvest
Group. At all times during the effectiveness of this Agreement, CDS shall be, and shall act solely
as, an independent contractor with PRA, and PRF.



Section 4.2 Rights, Power and Authority. PRA, PRF and CDS each hereby warrant to the other
that it has all necessary rights, power, and authority to enter into this Agreement and to grant
the rights by such party under this Agreement.







Section 4.3. No Third-Party Beneficiaries. This Agreement is personal to the
parties hereto and is for the sole but mutual benefit of such parties. No third party shall, under
any circumstances, constitute a third-party beneficiary of this Agreement. This Agreement may not
be transferred, assigned, conveyed, pledged, or hypothecated.







Section 4.4. Non-Delegation of Duties. The duties of CDS hereunder may not be
delegated or assigned, in whole or in part, by CDS to any third party without the prior written
consent of PRA and PRF.




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Section 4.5. Turn-Over of Property and Information on Termination. With respect to
the termination of this Agreement, CDS shall deliver to PRA within 15 calendar days after such
termination of this Agreement (a) an up-to-date accounting reflecting the balance of income and
expenses of Proinvest and each entity within the Proinvest Group, as of the date of termination,
(b) any balance of monies of Proinvest and each entity within the Proinvest Group held by Seneca,
and (c) all files and correspondence, and security or other deposits, of Proinvest and each entity
within the Proinvest Group, vendor and service contracts, receipts for deposits, books, records,
plans, specifications, personal property, keys and access cards, marketing information, insurance
policies, unpaid bills, and all other property, records, and financial records, whether in written,
graphic, or electronic format. All such materials, items, and information shall be deemed herein to
be the sole property of Proinvest and the entities within the Proinvest Group. Upon termination of
this Agreement, Seneca shall, to the extent that there are not sufficient funds in the Operating
Accounts of Seneca or the entities within the Proinvest Group, forward to affected entity any
unpaid bills for authorized expenditures and such bills shall thereafter be the sole responsibility
of Proinvest. Further, any payment for the account of Proinvest or any entity within the Proinvest
Group received by Seneca following a termination of this Agreement shall be forwarded in accordance
with the written instructions of Proinvest.



Section 4.6 Notices. Any notice required or permitted hereunder shall be deemed
given when delivered in person or, whether actually received or not, 2 business days after being
deposited in a regularly maintain receptacle of the United States Postal Service, as certified
mail, return receipt requested, postage prepaid, and addressed (a) if to PRA or to PRF: 8333
Douglas Ave, Ste 1450, Dallas TX 75225-5852, Attn: T E Millard, and (b) if to CDS: 7029 Mossvine
Drive, Dallas, Texas 75254, Attn: Michael T. Churchill.



Section 4.7 Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas. Venue for resolution of any dispute hereunder shall
lie exclusively in Dallas County, Texas.



Section 4.8. Governing Law. The terms and conditions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Texas.



Section 4.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall constitute one and
the same document.



IN WITNESS WHEREOF, this Agreement has been executed by the Company Sponsor and the Consultant
on the date first recited.




	 	 	 	 	 
	 	PROINVEST REALTY ADVISORS LLC, a

Texas limited liability company

 	 
	 	By:  	 	 
	 	 	G N Olson 	 
	 	 	President & Chief Executive Officer 	 



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	 	PROINVEST REALTY FUND LLC, a

Delaware limited liability company

 	 
	 	By:  	 	 
	 	 	G N Olson 	 
	 	 	Chief Executive Officer 	 
	 
	 	CHURCHILL DATA SERVICES, a

Texas limited liability company

 	 
	 	By:  	 	 
	 	 	Michael T. Churchill 	 
	 	 	President 	 
	 




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