exv10w2



 





Exhibit 10.2




MANAGEMENT AGREEMENT








     THIS AGREEMENT is made and entered into as of the ___day of May, 2007 by and between
PROINVEST REALTY FUND, LLC, a Delaware Limited Liability Company (“Owner”) and PROINVEST REALTY
ADVISORS, LLC, a Texas Limited Liability Company (“Proinvest”). Capitalized terms used herein
and not defined shall have the meaning defined in the LLC Agreement.







WITNESSETH




     WHEREAS, Owner has been formed pursuant to the terms and conditions of that certain Limited
Liability Company Agreement of Proinvest Realty Fund LLC (the “LLC Agreement”), dated effective May
1, 2007, by and between Proinvest and G N Olson & Company, LLC, a Texas limited liability company,
to function as a publicly registered but non-traded commercial real estate investment fund, as
described the Prospectus (“Prospectus”) for the Owner filed with its Registration Statement Form
S-11, dated June 28, 2007 and filed with the United States Securities and Exchange Commission;



     WHEREAS, Proinvest has been elected Manager of the Owner pursuant to the LLC Agreement; and



     NOW, THEREFORE, in consideration of the mutual promises herein contained and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:



ARTICLE I.




APPOINTMENT OF PROINVEST




     Owner hereby retains Proinvest as an independent contractor for the purpose of performing the
services described in this Agreement and Proinvest hereby agrees to perform the services on the
terms and conditions set forth herein. Subject to such terms and conditions, Proinvest shall
provide advisory, consultation and management services in accordance with this Agreement and shall
formulate and implement the Business Plans (hereafter defined) for the purpose of enabling Owner to
maximize the value of the assets of the Company as described in the LLC Agreement (all together,
the “Assets;” any one, an “Asset”) while diligently endeavoring to minimize the risks associated
therewith. Proinvest agrees to use its best efforts to manage the Assets in accordance with this
Agreement



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ARTICLE II.




TERM OF AGREEMENT




     This Agreement shall continue in force until ten (10) years (the “Initial Term”) after the
date hereof (the “Initial Term”) unless earlier terminated in accordance with Article XII or
extended by Owner in accordance with this Article II; provided, however, that the
provisions of Article X hereof shall remain in full force and effect and such termination shall not
affect the obligation of Owner to pay to Proinvest any amount that is payable to Proinvest pursuant
to this Agreement and which has not been paid on the date of such termination. Proinvest shall have
the right, at its option, to extend the term of this Agreement for one (1) or more successive
renewal terms (each, a “Renewal Term”) of one (1) year each provided that Proinvest sends written
notice to Owner of such extension not later than thirty (30) days before the end of the Initial
Term or the preceding Renewal Term, as the case may be, for the purpose of liquidating the Assets
and terminating the business of the Owner as contemplated by Article XIII of the LLC Agreement.



ARTICLE III.




ASSETS SUBJECT TO AGREEMENT








     The Assets will be acquired, financed, developed or redeveloped and sold in accordance with
the Owner’s business plan (the “Owner’s Business Plan”) and as described in the LLC Agreement and
the Prospectus and in compliance with Proinvest’s Policies and Procedures Manual (the “Asset
Management Manual”), dated of even date herewith, as heretofore amended and as hereafter amended
from time to time with the written approval of the Owner. Each Asset shall have an “Initial
Value,” based on the amount of the purchase price paid by Owner for the Asset, plus all costs of
acquisition and all costs of capital improvements to the Asset provided for in the initial annual
Asset Business Plan (hereafter defined) for each Asset prepared by Proinvest and approved by Owner.







     Each Asset acquisition and its initial Asset Business Plan must be approved, in writing, by
the Executive Committee of the Owner, in the manner and within the time limitations set forth in
the Asset Management Manual.



     Proinvest, in conjunction with the property manager and the leasing and marketing agent for
each Asset, will prepare a comprehensive plan (“Asset Business Plan”) for the operation,
maintenance, utilization and economic development of the Asset for the balance of calendar year of
the Asset’s acquisition, submitting such Asset Business Plan, along with recommendations
with respect to achieving maximum economic returns to the Owner from the Asset within thirty



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(30) days of the date after the contract for the acquisition of the Asset. The Asset Business Plan
shall be prepared in a format detailed in the Asset Management Manual and shall include a detailed
narrative description of the plan. All permanent policies or actions required pursuant to the Asset
Business Plan are subject to the approval of the Executive Committee of the Owner. On or before
November 15 of each calendar year during the term of this Agreement, Proinvest shall prepare and
submit to the Owner for its approval an annual Asset Business Plan for each Asset for the next
succeeding calendar year. Each proposed Asset Business Plan submitted following the initial Asset
Business Plan shall include an explanation of and commentary on the Asset’s performance and
variances from the Asset Business Plan and the Asset Budget (hereinafter defined) for the prior
calendar year.




     Each Asset Business Plan shall include (a) the current status of the Asset, including its
physical condition, operations, leasing and management; (b) an analysis of the market area of the
Asset; (c) a financial analysis, including a statement of its current financial situation; (d)
recommendations as to a rental schedule; (e) a plan for securing tenants; (f) a plan for
maintaining the Asset and, if appropriate, a capital budget for rehabilitating or improving the
Asset and a schedule for employees, if any; and (g) and Asset Budget.



ARTICLE IV.




PROINVEST’S DUTIES




     4.1. Scope of Proinvest’s Duties and Responsibilities. Proinvest’s duties under this
Agreement shall be to provide asset management services for the Assets and to advise Owner on the
manner Proinvest deems best to manage the Assets and to implement the Asset Business Plans and the
Owner’s Business Plan. The Asset Business Plan is the asset-specific plan mutually approved by
Owner and Proinvest for the acquisition, management and disposition of the Asset, as the same may
be amended or modified from time to time, subject to the approval of Owner. Proinvest shall
coordinate and manage the legal, property leasing and management, marketing and other necessary
services to implement the Asset Business Plans, and Proinvest’s duties shall include, but not be
limited to, the following:



          (a) Proinvest shall submit to Owner from time to time, but not less frequently than
quarter-annually by the date which is fifteen (15) days after the end of each calendar quarter,
proposed revisions to the Asset Business Plans for Owner’s approval whenever Proinvest or Owner
reasonably determines that revisions to any Asset Business Plan would be in the best interests of
the Owner;




          (b) Proinvest shall ensure the timely filing at Owner’s expense of tax certiorari petitions or
other appropriate real estate tax challenges for the Assets and shall engage attorneys,

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at the cost of Owner (provided that the Owner shall be entitled to review all invoices), to provide legal
services to Owner with respect to the Assets and the implementation of the Asset Business Plans;




          (c) Proinvest shall engage environmental consultants and other professionals, at the cost of
Owner (provided that the Owner shall be entitled to review all invoices), to perform environmental
and physical condition evaluations of the Assets;




          (d) Proinvest shall inspect (or cause to be inspected) the physical condition of the Assets at
such intervals, not less frequently than quarterly, that Proinvest deems appropriate and Proinvest
shall provide Owner with a written report of such inspections;




          (e) Proinvest shall negotiate with prospective third party purchasers for the disposition of
the Assets in accordance with the Asset Business Plans;




          (f) unless otherwise required by a mortgagee or mortgagees of the Assets, Proinvest shall
establish and maintain (or require the applicable property manager to establish and maintain), to
the extent funds are received from the Assets or otherwise made available therefor, escrow accounts
in order to ensure the timely payment of real estate taxes and insurance premiums in respect of the
Assets;




          (g) consistent with prudent real property management practices and the requirements of any
mortgagee or mortgagees of the Assets, Proinvest shall maintain or cause to be maintained at
Owner’s cost and expense (i) a standard hazard insurance policy providing fire and extended
coverage insurance in an amount equal to the full insurable value of the Assets; (ii) comprehensive
general liability insurance including bodily injury, death and property damage liability in usual
and customary amounts; and (iii) to the extent required (because any Asset is in an area identified
in the Federal Register by the Federal Emergency Management Agency as having special flood hazards)
and available under the Flood Disaster Protection Act of 1973, as amended, a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance Administration with an
insurance carrier generally acceptable to commercial and multifamily mortgage lending institutions
for properties similar to the affected Asset, in an amount representing coverage not less than the
lesser of (i) the full insurable value of the affected Asset, or (iii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973, with each such
insurance policy naming the Owner as a loss payee;




          (h) Proinvest shall assist Owner in negotiating with third party lenders for the financing or
refinancing of the Assets and shall assist in concluding such financing and
refinancing arrangements, subject to approval thereof by the Executive Committee of the Owner;




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          (i) Proinvest shall engage third parties approved by Owner (which third parties may include
Affiliates), at the cost of Owner, to provide property management services to Owner pursuant to the
property management agreement approved by Owner as a part of the Asset Management Manual;




          (j) Proinvest shall evaluate the information provided to Proinvest concerning any casualty
loss affecting the Assets, including whether the loss is covered by a casualty insurance policy,
and shall advise and assist Owner in filing claims and settling claims in respect of such loss; and




          (k) Proinvest shall assist Owner in the negotiation and implementation of construction
agreements with respect to the development, construction, or rehabilitation of any improvements in
or to the Assets provided for in the Asset Business Plans.



Proinvest shall collect all revenues from the Assets and deposit the same in the Operating Account
(defined below in Section 5.8) or shall assist and oversee the property manager or managers engaged
pursuant to paragraph (i) of this Section 4.1 in the collection of such revenues and shall deposit
or cause to be deposited such revenues in the Operating Account.




     4.2. Owner’s Budgets. Within ninety (90) days following the date of this Agreement and
within 45 days prior to the beginning of each calendar year thereafter, Proinvest shall submit to
the Owner, for approval by the Executive Committee of the Owner, an annual budget (the “Owner’s
Budget”) for costs to be incurred pursuant to this Agreement. Proinvest shall submit to Owner from
time to time, but not less frequently than quarter-annually by the date which is fifteen days after
the end of each calendar quarter, proposed revisions to the Owner’s Budget for approval by the
Executive Committee of the Owner whenever Proinvest determines that revisions should be made to the
Owner’s Budget. In the event that an Owner’s Budget has not been approved for any year, the Owner’s
Budget approved for the preceding year shall apply to the current year until an Owner’s Budget is
approved for the current year, adjusted in proportion to the Initial Value of the Assets and
otherwise appropriately adjusted for changes in the Assets. The Owner’s Budget shall reflect all of
the costs and expenses to the Owner to be incurred under this Agreement, including the revenues,
costs, and expenses of and from the Assets, as reflected in the individual budgets (any one, “Asset
Budget;” all together, “Asset Budgets”) prepared by Proinvest for the approval of the Owner from
time to time as required hereby pertaining to the individual Assets.



     4.3. Limitations on Proinvest’s Authority. Proinvest shall not have the authority,
without obtaining the prior written approval of the Executive Committee of the Owner, to: (i) sell
or hypothecate any Asset, except as may be provided in the respective Asset Business Plan; (ii)
incur any costs on behalf of Owner if the amount thereof would result in an increase in any line
item of the respective approved Asset Budget; (iii) effectuate any transaction that is not in



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accordance with (or more favorable to Owner than) the respective Asset Business Plan; (iv) act on
behalf of, or hold itself out as having the authority to act on behalf of, the Owner in any manner
which is beyond the scope of the terms of this Agreement; or (v) take any other action with respect
to any Asset if specifically prohibited in advance by Owner in writing (unless such action was
required by any law, rule, regulation or order of any governmental authority, or was required,
based on Proinvest’s good faith belief, to prevent imminent harm to persons or property). Subject
to the foregoing limitations on the authority of Proinvest, Proinvest shall have the authority, in
Owner’s name, to take all action that it determines to be in the best interests of the Owner with
respect to the duties and responsibilities of Proinvest under this Agreement.




     4.4. Requests for Approval by Owner. Owner shall act promptly with respect to any
written request by Proinvest for approval (which approval shall be effective only if given in
writing, provided however, that if the approval requested by Proinvest in its written request is
not approved or disapproved by Owner in writing within ten (10) days after Owner’s receipt of such
request, the request shall be deemed approved) of any action proposed to be taken by Proinvest or
any amendment to the Owner’s Budget, any Asset Budget, or the Owner’s Business Plan proposed by
Proinvest. Proinvest’s requests for approval or consent by Owner under this Agreement shall in no
event be unreasonably withheld, delayed, conditioned, or denied. A request by Owner for additional
information or a modification shall be deemed disapproval until 10 days after the modification is
made or additional information is provided.



     4.5. Standard of Performance. Proinvest shall at all times act in good faith and in
the best interests of Owner with respect to the Assets and, using its best efforts, shall carry out
its obligations hereunder in accordance with normal and prudent practices in the real estate asset
management business. It is acknowledged, understood and agreed, that recommendations to be made by
Proinvest in connection with the performance of its services under this Agreement, including
without limitation, those relating to whether and how to assert claims against third parties,
restructure loans or liquidate or otherwise dispose of any Asset, involve highly subjective
judgments and may result in unanticipated consequences. Proinvest assumes no responsibility under
this Agreement other than to render the services called for hereunder in accordance with the
standard set forth above and shall not be responsible to Owner, or others, for any action of Owner
in following or declining to follow any recommendation of Proinvest unless such recommendation was
specifically given in writing and in giving such recommendation Proinvest was acting with gross
negligence, bad faith or willful misconduct. Proinvest and its affiliates, directors, members,
managers, officers, shareholders and employees shall not in any event be liable hereunder, except
as set forth in this Section 4.5, and except that Proinvest shall be liable for the indemnification
provided in Section 10.1.1 and for any losses resulting from Proinvest’s
gross negligence or acts constituting a breach of Proinvest’s covenants or representations
contained herein, bad faith or willful misconduct.



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ARTICLE V.




BOOKS, RECORDS, REPORTS AND ACCOUNTS








     5.1. Books and Records. At all times during the term of this Agreement, Proinvest
shall maintain at its principal place of business, or at such other location as it may reasonably
designate, a complete and accurate set of files, books and records of all business activities and
operations conducted by Proinvest in connection with Proinvest’s performance under this Agreement.
Proinvest shall make its files, books and records available to Owner as Owner may require from time
to time. On a monthly basis, Proinvest shall deliver to Owner a duplicate set of all material
notices, correspondence, memoranda and other records relating to the Assets or to funds received or
generated by Proinvest during the prior month.







     5.2. Records Pertaining to Particular Assets. Proinvest’s records and accounts shall
reflect, with respect to the Assets, all items of expense incurred by Proinvest with respect to the
management of such Assets, as well as information regarding the status of such Assets, including
appraisal, marketing, environmental, engineering and other information.



     5.3. Retention of Records. Unless returned to Owner, or otherwise disposed of in
accordance with the written direction of Owner, for a period of not less than twelve (12) months
after the date of termination or expiration of this Agreement, Proinvest shall continue to maintain
all files and records pertaining to its performance under this Agreement.



     5.4 Information regarding Members. Proinvest shall maintain an alphabetical list of
the names, addresses and business telephone numbers of the Members along with the number of Units
held by each of them (the “Member List “) as a part of the books and records of the Owner, which
shall be available for inspection by any Member or his designated representative at the principal
office of the Owner during normal business hours upon the request of the Member. The Member List
shall be updated at least quarterly to reflect changes in the information contained therein.
Proinvest shall mail a copy of the Member List to any Member requesting the Member List within ten
(10) days of the request. The copy of the Member List to be mailed to a Member shall be printed in
alphabetical order, on white paper, and in readily readable type size (in no event smaller than
10-point type). A reasonable charge for copy work may be charged by Proinvest. The purposes for
which a Member may request a copy of the Member List include, without limitation, matters relating
to the Members’ voting rights under this Agreement and the exercise of the Members’ rights under
federal proxy laws. If Proinvest neglects or refuses to exhibit, produce or mail a copy of the Member List as requested, it shall be liable to the
Member requesting the list for the costs, including attorneys’ fees, incurred by that Member for
compelling the production of the Member List and for actual damages suffered by the Member by
reason of such refusal or neglect. It shall be a defense that the actual purpose and reason for a



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request for inspection of or a request for a copy of the Member List is to secure such list of
Members or other information for the purpose of selling such list or copies thereof or for the
purpose of using the same for a commercial purpose other than in the interest of the requesting
Member relative to the affairs of the Owner. Proinvest may require any Member requesting the Member
List to represent that the list is not requested for a commercial purpose unrelated to such
Member’s interest in the Owner.




     5.5  Financial Records. Proinvest shall maintain the books of account and other
records of the Owner. The books of account for financial accounting purposes shall be kept in
accordance with generally accepted accounting principles. Any Managing Director shall have the
right to inspect and copy such books and records at any time during normal business hours. Any
Managing Director shall have the right, not more often than once per year, to designate a certified
public accountant who is a senior member of a nationally recognized public accounting firm to
examine or audit the financial records of the Owner, which audit shall be at the joint expense of
the Owner and such Managing Director. Any Member shall have the right, not more often than once
per year, to designate a certified public accountant who is a senior member of a nationally
recognized public accounting firm to examine or audit the financial records of the Owner, at the
expense of such Member. Each Managing Director or Member desiring to examine or audit the books or
records of the Owner shall, prior to being provided access to such books or records, execute
agreements and assurances acceptable to the Owner regarding all confidential information of the
Owner, and regarding compliance with disclosure requirements under federal and state securities
laws, including but not limited to Regulation FD promulgated by the Securities and Exchange
Commission.



     5.6. Owner’s Right to Examine Books and Records. At all times during the term of this
Agreement and at all times during the twelve (12) month period following the expiration or
termination of this Agreement, Owner and its duly authorized agents, representatives or employees
may, at such reasonable times as Owner may determine, inspect, audit, and copy any of Proinvest’s
records, files, reports and related materials pertaining to the Assets and to Proinvest’s
performance under this Agreement.



     5.7. Reports. Proinvest shall provide the following reports and information to the
Owner:



     (a) Acquisition Reports. Until the proceeds of the Offering available for investment
have been invested or committed for investment, Proinvest shall prepare and send to the Owner
for transmittal to the Members a quarterly report of any Asset acquisitions within the prior
quarter. Such report shall contain the following information (i) a description of the geographic
location of the Asset acquired within such quarter; (ii) a statement of the Contract Purchase Price
including terms of the purchase; (iii) the present or proposed use of such Asset; (vi) the terms of
any material lease affecting such Asset; (v) a description of the proposed method of financing,



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including estimated down payment and leverage ratio; and (vi) if known to Proinvest, a statement
regarding the amount of then received proceeds of the Offering (in both dollar amount and as a
percentage of the total net proceeds of the Offering anticipated to be available for investment in
Assets) which remain unexpended or uncommitted. Such quarterly report shall be provided by
Proinvest to the Owner within fifteen (15) days after the end of each calendar quarter.




     (b) Expense Reporting. Owner is required to provide, in the notes to the Owner’s
financial statements included in its annual reports on Form 10-K, a category-by-category breakdown
of the general and administrative expenses incurred by the Owner for the periods covered by the
annual report. This breakdown must reflect each type of general and administrative expense incurred
by the Owner (e.g. investor relations, independent accountants, salaries, rent, utilities,
insurance, filing fees, legal fees, etc.) and the amount charged to the Owner for each category of
expense incurred. Proinvest shall cause to be prepared and shall provide to the Owner within sixty
(60) days after the end of each fiscal year, a report of general and administrative expenses
incurred by Proinvest by or on behalf of Owner, reflecting each type of general and administrative
expense and the amount charged to the Owner for each category of expense incurred. Such reports
shall include (i) a statement of services rendered by Proinvest, and (2) the amount of fees
received, by category of fee, by Proinvest from Company.



     (c) Other Reports. Proinvest shall cause to be prepared and timely provided to the
Owner all information within the possession of Proinvest required or necessary to enable Owner to
file complete and accurate quarterly or annual reports required to be filed with appropriate
federal and state regulatory and administrative bodies under then currently applicable laws, rules
and regulations. Proinvest shall provide any information or assistance reasonably requested by
Owner in connection with such quarterly or annual reports.



     (d) Continuing Monthly Reports. By the twentieth (20th) day of each month, Proinvest
shall prepare and deliver to Owner a monthly report detailing the operations, revenues and expenses
of the Assets. The Monthly Report shall include the following with respect to each Asset and with
respect to all of the Assets as a portfolio, in hard copy:



Monthly Report (“Monthly Report”)




     (1) Property Management List


-Schedule of expenditures to be reimbursed pursuant to Article VI.

-Manager’s Narrative Report (“Narrative Report”) on the Asset

-Explanations Regarding Asset Budget Variances

-Delinquency Report with Narrative

-Detail to Accounts Receivable




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-Updated Rent Roll

-Changes from Prior Month’s Rent Roll




     (2) Accounting List


-Balance Sheet

-Summary Operating Statement

-Detailed Operating Statement showing all receipts and disbursements and reflecting the

 financial condition of the Assets for the month immediately preceding,

-A detailed explanation of variances to the Asset Budgets

-Cash Flow Statement

-Bank Statement Reconciliation

-Copy of the Bank Statements

-General Ledger Detail

-Cash Receipts Journal

-Cash Disbursements Journal

-Diskette Template




     (3) Leasing List


-Leasing Activity Report

-Lease Expiration Report

-Accounts receivable breakdown showing all monies past due by tenant on an

  account aging basis,




     The Narrative Report provides an explanation of the activities that occurred in the previous
month and should address five main areas:


-Overall Performance of the Assets

-Administrative Issues, Problems, and Events

-Leasing Activities and Tenant Relations

-Building Operations

-Construction and Tenant Improvement Activities




     (4) Diskette Template



     In addition to the foregoing hard copy reports, Proinvest will submit summary information to
the Owner on a computer diskette, formatted in Microsoft Excel or other formatted file template
satisfactory to Proinvest and the Owner which will allow the Owner to download Asset Budget and
general ledger account information.




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     Owner shall have the right to make reasonable modifications or additions to the required
Monthly Report.







     5.8. Operating Account; Deposit Account. Promptly after the date of this Agreement,
the Owner and Proinvest shall establish and maintain one or more interest bearing accounts) (the
“Operating Account”) in Owner’s name in Texas Capital Bank, N. A. or another bank or banks
reasonably acceptable to Owner, into which Proinvest shall cause to be deposited all rents,
revenues, receipts, loan payments, lease payments and all other payments, cash or income to the
extent actually received by Proinvest with respect to the Assets (collectively “Income”) of any
kind, type or nature which Proinvest receives and which emanate from or relate in any way to the
Assets. Unless otherwise required by any mortgagee or mortgagees of the Assets, Proinvest shall set
aside from such Income into escrow account(s) only the amounts reasonably estimated by Proinvest to
be necessary to pay real estate taxes or insurance premiums as required under this Agreement, and
any balance remaining shall be paid over to the Owner on Friday of each week by wire transfer of
immediately available funds or automated clearinghouse transfer. Promptly after the date of this
Agreement, the Owner and Proinvest shall establish and maintain one
or more interest-bearing
account(s) (the “Deposit Account”) in Owner’s name at Texas Capital Bank, N.A. or another bank or
banks reasonably acceptable to Owner, into which Proinvest shall deposit all amounts collected by
Proinvest relating to a Disposition. The Owner shall pay from the Deposit Account all expenses
relating to the Disposition and to the extent provided in Article IX, shall pay Proinvest any fees
owing in respect of such Disposition prior to withdrawing funds
therefrom for its own account.












     5.9 Annual Certificates. Proinvest shall deliver to Owner within 15 days after the
end of each calendar year during the term of this Agreement a certificate signed by the Chief
Operating Officer and the Chief Financial Officer (if any) of Proinvest stating that this Agreement
remains in full force and effect, that Owner has performed its obligations under this Agreement,
and that Proinvest has performed all of its obligations under this Agreement in all material
respects. Owner shall deliver to Proinvest within 15 days after the end of each calendar year
during the term of this Agreement a certificate signed by the Chief Executive Officer of the Owner
stating that this Agreement remains in full force and effect, that Proinvest has performed its
obligations under this Agreement, and that Owner has performed all of its obligations under this
Agreement in all material respects.







ARTICLE VI.




THIRD PARTY CONTRACTS




     6.1. Third-Party Agreements. Proinvest shall advise Owner as to the necessity or



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desirability of entering into agreements, at Owner’s expense, with third parties (“Third Party
Contracts”) to perform the duties specified in Section 4.1, and other duties Proinvest reasonably
deems necessary, with respect to the Assets under this Agreement. Proinvest shall include in each
Asset Budget estimated costs determined by Proinvest for Third Party Contracts as to each Asset
and as to of each of the following services, and any such other services:



          (a) Legal Services;




          (b) Title Work;




          (c) Financial Investigation Services;




          (d) Commission Brokerage Services for Sales and Leasing;




          (e) Marketing Services;




          (f) Surveying Services;




          (g) Environmental Consulting Services;




          (h) Property Management Services;




          (i) Real estate tax challenge counsel, consultants or other services;




          (j) Construction Services;




          (k) Architectural, Landscape Design, and Interior Design Fees;




          (l) Engineering Fees;




          (m) Promotional and Advertising Expenses;




          (n) Common Area and Business Office Finish-Out, Furnishings, and Equipment;




          (o) Zoning Consultant Fees; and




          (p) Offsite Development Costs.




     6.2. Reimbursement of Third Party Costs. Owner shall deliver to Proinvest the amounts
necessary for Proinvest to make all payments which become due and payable for the



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costs of the Third Party Contracts in accordance with the Asset Budget or otherwise approved by Owner provided
that Owner has received from Proinvest such original invoices and/or other documentation provided
by third parties as may be necessary to confirm services rendered and amounts due; such amounts
shall be paid or reimbursed by Owner within thirty (30) days of Owner’s receipt of such invoices
and documentation. The parties shall develop a mutually acceptable routine for payments so that
there is minimal disruption of their respective operations.



ARTICLE VII.




LEGAL REPRESENTATION




     Proinvest shall be authorized on Owner’s behalf, and at Owner’s expense, consistent with the
Owner’s Budget and the Owner’s Business Plan, to retain counsel to provide all legal services
required under this Agreement pertaining to the Assets. Proinvest shall promptly notify the Owner
of any and all litigation or claims made or threatened in writing against the Assets, the Owner or,
insofar as it relates to the Assets, Proinvest, in each case to the extent Proinvest actually
receives notice thereof. At the time Proinvest notifies the Owner of any such litigation or claims,
Proinvest shall also indicate whether Proinvest believes such matter is covered by an insurance
policy and whether notice of such matter has been given to an insurance company, and what course of
action Proinvest recommends to handle the claim.



ARTICLE VIII.




PROINVEST’S COMPENSATION




     8.1. Fees and Compensation. Proinvest shall be entitled to be paid the following fees
and other compensation, for so long as Proinvest shall remain the Manager and for so long as this
Agreement shall remain in effect. If this Agreement is terminated, but Proinvest remains the
Manager, Proinvest shall be entitled to continue to be paid the compensation set out in Section
8.1.2, but not the fees set out in Section 8.1.1. If Proinvest is removed, resigns or otherwise
ceases to serve as Manager, but this Agreement remains in effect, Proinvest shall be entitled to
continue to be paid the fees set out in Section 8.1.1, but not
the compensation set out in Section 8.1.2.



     8.1.1. Fees. (a) Property Advisory Fee. Proinvest shall be paid a Property
Advisory Fee in the amount of two percent (2%) times the gross Contract Purchase Price for each
Asset and two percent (2%) times the capitalized amount of any funds used to develop, construct,
rehabilitate or improve Asset. The gross Contract Purchase Price shall include the stated
purchase price plus all other amounts paid by the Owner or for which the Owner is liable,



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including but not limited to, debt secured by the Asset. The capitalized amount shall include all
amounts capitalized on the financial statements of the Owner in connection with any development,
construction or improvement of an Asset, including any capitalized costs for environmental studies,
inspections, zoning or re-zoning applications, structural or engineering studies and all similar
costs. The Property Advisory Fee shall be paid to Proinvest promptly upon the closing and funding
of the purchase of any Asset based upon the approved Asset Budget for that Asset.



          The total of all Acquisition Fees, including the Property Advisory Fees paid to Proinvest or
its affiliates, shall not at any time during the duration of the Owner exceed the compensation
customarily charged in arm’s-length transactions by others rendering similar services as an ongoing
public activity in the same geographic location and for comparable property.




     (b) Refinancing Fee. Proinvest shall be paid a Refinancing Fee in the amount of
seventy five basis points (0.75%) times the principal amount of any loan incurred to finance or
refinance an Asset, excluding any loan incurred in connection with the initial acquisition of the
Asset. The Refinancing Fee shall be paid to Proinvest promptly upon the closing and funding of the
loan.







     (c) Disposition Fee. Proinvest shall be paid a Disposition Fee in the amount of two
percent (2%) of the gross sales price or finance amount or capitalized lease amount [for any
long-term lease in excess of ten years] upon any Disposition of any Asset. The Disposition Fee
shall be paid to Proinvest promptly upon the closing and funding or other settlement of any
Disposition. A Disposition shall mean any sale, exchange, assignment, condemnation or other
governmental taking, financing or refinancing, lease financing or other long-term lease, casualty
or abandonment of or transfer of rights in or assignments of rights to or any similar transaction
involving all or any part of any Asset, which transaction substantially terminates the Owner’s
ownership interest in the Asset. The term “Disposition” shall not include any such action by
another entity in which the Owner is a participant unless (i) the Owner determines that such action
constitutes a Disposition by the Owner, or (ii) such action substantially terminates the Owner’s
equity interest in such other entity or substantially eliminates any remaining value in the equity
interest in such other entity. The term “Disposition” shall be construed to include
all events or circumstances under which the members of the Owner might reasonably expect to receive
a return of all or part of their capital
contribution. The Owner shall have discretion to determine whether a particular transaction shall
constitute a Disposition.







     (d) Management Fee. Proinvest shall be paid an annual Management Fee equal to the sum
of (1) not more than one percent (1.0%) of the Asset Value, plus (2) not more than one-half of one
percent (0.5%) of cash of the Owner held in bank accounts, money market funds or similar accounts.
The Management Fee will be payable on the tenth day of each month in an



14









 







amount equal to one-twelfth
of the annual Management Fee, calculated as of the last day of the immediately preceding month.
Accrued but unpaid Management Fees for any period shall be deferred without interest and shall be
payable in subsequent periods from any funds available to the Owner after payment of all other
costs and expenses of the Owner (other than the Preferential Return), including any reserves then
determined by Proinvest to no longer be necessary to be retained by the Owner. If Proinvest is
terminated, Proinvest shall be paid Management Fees through the date of such termination.



          (e) Construction Management and Supervision Fees. Proinvest or any of its affiliates may
provide services in connection with the development or construction of Assets. The Owner shall
pay Development Fees or Construction Fees to Proinvest or any of its affiliates in an amount not
exceeding ten percent (10%) of the direct costs of any development or construction, excluding from
such direct costs construction site personnel of the Owner or Proinvest and construction site
utilities chargeable to the Owner or Proinvest. Each Development Fee or Construction Fee must be
comparable to and competitive with amounts charged by third parties in the same geographic area.
Each proposed Development Fee or Construction Fee must be set out in the Asset Budget for a
particular Asset, whether prepared for an Asset prior or subsequent to acquisition. If
construction has commenced before an Asset is acquired, the completion of the construction shall be
guaranteed at the price contracted by an adequate completion bond or other arrangements.



          (f) Change in Compensation. The compensation of Proinvest may be changed from time to
time by a vote of the Investor Members holding not less than sixty seven percent (67%) of all
outstanding Units and of the Board of Managing Directors of the owner, as provided in the LLC
Agreement.



     8.1.2 Compensation. Proinvest shall be entitled to those allocations and
distributions provided to the Manager under the LLC Agreement. As provided in the LLC Agreement,
the allocation to Proinvest would be an allocation of twenty-five percent (25%) of net income,
after Investor Members have received allocations equal to all prior losses, the cumulative
Preferential Return, and all unreturned capital contributions. As provided in the LLC Agreement,
the distributions to Proinvest would include distributions of twenty-five percent (25%) of
distributions after the Investor Members have received distributions equal to the cumulative
Preferential Return and all unreturned capital contributions. Allocation and payment of such
compensation shall in all respects be subject to the provisions of the LLC Agreement, including
without limitation provisions granting the Board of Managing Directors discretion regarding
allocations and distributions.



          8.2. Expense Reimbursement. (a) Reimbursement of Acquisition Expenses.
Proinvest shall be reimbursed by the Owner for all Acquisition Expenses relating to Asset
acquisitions by



15









 







the Owner which are paid by Proinvest rather than the Owner, such as legal fees,
travel expenses, title insurance premium expenses and other closing costs, in an amount not to
exceed one-half percent (.5%) of the Contract Purchase Price of each Asset. Proinvest shall be
reimbursed for all Acquisition Expenses related to properties that are not acquired by the Owner,
in the actual amount incurred, which expenses shall be accrued as incurred and submitted for
reimbursement by Proinvest to the Owner from time to time. In addition, the Owner shall bear the
expenses of independent appraisers, market analysts, zoning consultants, environmental consultants,
or other such persons not affiliated with Proinvest who may be engaged to evaluate potential real
estate acquisitions and developments by or on behalf of the Owner.



     (b) Other Expenses to be Reimbursed by Owner. Except as provided in this Section
8.2(b), all of the Owner’s expenses shall be billed directly to and paid by the Owner. The Owner
shall reimburse Proinvest and its affiliates for the actual cost to them of services, goods and
materials used for or by the Owner and obtained from entities unaffiliated with Proinvest.
Proinvest shall be reimbursed for the administrative services provided by Proinvest or its
affiliates and necessary to the prudent operation of the Owner; provided that the reimbursement
shall be at the lower of Proinvest’s actual cost or the amount the Owner would be required to pay
to independent parties for comparable administrative services in the same geographic location. No
payment or reimbursement will be made for services for which Proinvest is entitled to compensation
by way of a separate fee under Section 8.1. Excluded from allowable reimbursements shall be: (i)
rent or depreciation, utilities, capital equipment, or other administrative or overhead items of
Proinvest; and (ii) salaries, fringe benefits, tax withholding amounts, and other payroll
administrative items allocated to any controlling persons of Proinvest. A controlling person, for
purposes of this Section 8.2(b), shall be deemed to include, but not be limited to, any person,
whatever his title, who is a salaried employee of Proinvest and who performs functions for
Proinvest similar to those of a chairman or member of the Board of Directors or of executive
management, including Proinvest, President, Chief Operating Officer, Vice President, Executive Vice
President or Senior Vice President, Company Secretary and Treasure. The annual report to investors
shall include a breakdown of the costs reimbursed to Proinvest pursuant to this subsection. Within
the scope of the annual audit of the Owner’s financial statements, the independent certified public
accountant shall verify the allocation of such costs to the Owner.



     (c) Expenses to be Paid by Proinvest. Proinvest or its affiliates shall pay, at no
additional cost to the Owner (i) rent or depreciation, utilities, capital equipment, or other
administrative or overhead items of Proinvest; (ii) salaries, fringe benefits, tax withholding
amounts, and other payroll administrative items allocated to any controlling persons of Proinvest;
and (iii) all other administrative expenses which are unrelated to the business of the Owner.
Proinvest or its affiliates shall pay, at no additional cost to the Owner, Organization and
Offering Expenses , and other than commissions paid to broker-dealers and other underwriting



16









 











compensation and any trailing fees) to the extent such expenses exceed three percent (3.0%) of the
gross proceeds of the Offering.











     (d) Reimbursable Expenses to be Included in Budget. In connection with any request
for reimbursement, (i) Proinvest shall have included in the Asset Budget or the Owner’s Budget an
estimate of such reimbursable expenses, (ii) the reimbursement sought shall not exceed the amount
estimated in the Asset Budget or the Owner’s Budget, and (iii) together with the reasonably
anticipated reimbursable expenses which would be included in the same Asset Budget or Owner’s
Budget line item still to be incurred, the reimbursement is not reasonably anticipated to exceed
the amount estimated in the Asset Budget or the Owner’s Budget for the period covered thereby, or
provided that such expenses were incurred by Proinvest because they were required, based on
Proinvest’s good faith belief, to prevent imminent harm to persons or property. Except as provided
for in the LLC Agreement, Proinvest’s in-house expenses shall in no event be reimbursable
expenditures.











     (e) Time Reimbursement Due. Owner shall pay to Proinvest the amount of reimbursable
expenses incurred by Proinvest during the preceding calendar month that are reimbursable pursuant
to this Section 8.2 provided that Owner has received from Proinvest an itemized statement of such
reimbursable costs; such expenses shall be paid by Owner within thirty (30) days after Owner’s
receipt of such itemized statement.







ARTICLE IX.

OWNER’S DUTIES




     9.1. Designate Representative(s). On the date of this Agreement, and as necessary
from time to time thereafter, Owner shall designate in writing a representative with whom Proinvest
shall communicate, and provide notice as required under this Agreement, regarding all matters
pertaining to the Owner and the Assets. Such representative shall have authority to act on behalf
of Owner on any and all matters requiring action hereunder with regard to the Owner and the Assets.



     9.2. Furnish Asset files, Information and Cooperation with Proinvest. As of the date
of this Agreement or as soon thereafter as may be practicable, Owner shall provide to Proinvest
copies of all documents, correspondence, data, reports, information and items in its possession
pertaining to the Owner and the Assets. Owner shall thereafter furnish Proinvest information
required of Owner and otherwise provide cooperation and assistance to Proinvest, to permit the
orderly performance of Proinvest’s duties under this Agreement.



     9.3. Compensate Proinvest. Owner shall timely compensate Proinvest for its services
under this Agreement in accordance with the provisions of this Agreement.



17









 





ARTICLE X.

INDEMNIFICATION




     10.1. Agreement to Indemnify.



          10.1.1. Proinvest’s Indemnity. Proinvest agrees to indemnify and hold harmless the
Owner and all of its officers, directors, shareholders, partners, affiliates, agents and employees
(collectively, “Owner Indemnitees”) against any and all actual or alleged claims, losses,
penalties, fines, forfeitures, judgments, reasonable attorneys’ fees and related litigation costs,
fees and expenses and amounts paid in settlement actually and reasonably incurred in connection
with any claim(s) against any Owner Indemnitee:




               (a) which result from any act or omission constituting gross negligence, bad faith or willful
misconduct by Proinvest or any officer, director, shareholder, partner, agent or employee of
Proinvest in connection with Proinvest’s performance under this Agreement; or



               (b) which result from any action taken by or on behalf of Proinvest relating to any Asset or
to the Owner which is a breach of any of Proinvest’s covenants or representations in this
Agreement.



          10.1.2. Owner’s Indemnity. Owner agrees to indemnify and hold harmless Proinvest and
all of its officers, directors, shareholders, members, managers, partners, agents and employees
(collectively, “Proinvest Indemnitees “) against any and all actual or alleged claims, losses,
penalties, fines, forfeitures, judgments, reasonable attorneys’ fees and related litigation costs,
fees and expenses and amounts paid in settlement actually and reasonably incurred in connection
with third party claims against any Proinvest Indemnitee (collectively, “Losses”);




               (i) which result from any act or omission by or on behalf of Proinvest in connection with
Proinvest’s actions under this Agreement;



                    (A) unless such act or omission constitutes gross negligence, bad faith or willful misconduct,
in which event the Proinvest Indemnitees will not be indemnified under this Agreement; or



                    (B) unless such act or omission is a breach of any of Proinvest’s covenants or representation
in this Agreement, in which event the Proinvest Indemnitees will not be indemnified under this
Agreement; or



18









 





                    (C) unless such Losses are covered by insurance, in which event the Proinvest Indemnitees will
be indemnified only to the extent of any deductible and any uninsured Losses, and provided that the
indemnity under this subparagraph (i) of Section 10.1.2 shall be void if Proinvest fails to carry
and/or maintain the insurance as required under this Agreement (unless such failure is due to
Owner’s failure to provide Proinvest with funds to pay the premium for the insurance after
Proinvest has requested such funds from Owner in writing); or



               (ii) which result from any act or omission constituting gross negligence, bad faith or willful
misconduct by an officer, director, member, manager, shareholder, partner, agent or employee of the
Owner in connection with this Agreement, unless Owner was acting on the recommendation of Proinvest
which was specifically given in writing and in giving such recommendation Proinvest was acting with
gross negligence, bad faith or willful misconduct, or unless such Losses are covered by insurance,
in which event the Proinvest Indemnitees will be indemnified only to the extent of any deductible
and any uninsured Losses, and provided that the indemnity under this subparagraph (ii) of Section
10.1.2 shall be void if Proinvest fails to carry and/or maintain the insurance as required under
this Agreement (unless such failure is due to Owner’s failure to provide Proinvest with funds to
pay the premium for the insurance after Proinvest has requested such funds from Owner in writing);
or



               (iii) which arise under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.A. §§
9601 et seq. in connection with any Asset ;



                    (A) unless such liability arises from an act or omission of Proinvest or those acting on its
behalf which constitutes gross negligence, bad faith or willful misconduct, in which event the
Proinvest Indemnitees will not be indemnified under this Agreement; or



                    (B) unless such Losses arise from Proinvest Indemnitees’ ownership or operation of the Assets
or acts and omissions by or on behalf of Proinvest in each case prior to the date of this
Agreement, in which event the Proinvest Indemnitees will not be
indemnified under this Agreement; or



                    (C) unless such losses are covered by insurance, in which event the Proinvest Indemnitees will
be indemnified only to the extent of any deductible and any uninsured Losses;


provided that the indemnity under this subparagraph (iii) of Section 10.1.2 shall be void if
Proinvest fails to carry and/or maintain the insurance as required under this Agreement (unless
such failure is due to Owner’s failure to provide Proinvest with funds to pay the premium for the


19









 






insurance after Proinvest has requested such funds from Owner in writing); or




               (iv) which arise solely from the fact of Proinvest’s status as a party to this Agreement, and
not from any act or omission of Proinvest or those acting on its behalf, unless such losses are
covered by insurance, in which event the Proinvest Indemnitees will be indemnified only to the
extent of any deductible and any uninsured Losses, provided that the indemnity under this
subparagraph (iv) of Section 10.1.2 shall be void if Proinvest fails to carry and/or maintain the
insurance as required under this Agreement (unless such failure is due to owner’s failure to
provide Proinvest with funds to pay the premium for the insurance after Proinvest has requested
such funds from Owner in writing).



     10.2. Indemnity Procedures. If any claim shall be asserted, or any action, suit or
other proceeding shall be instituted, by a third party against (i) any Owner Indemnitee or (ii) any
Proinvest Indemnitee (each an “Indemnified Party”) with respect to any occurrence as to
which the other party (an “Indemnifying Party”) shall have any indemnity obligation under this
Agreement, such Indemnified Party shall promptly notify Indemnifying Party of the assertion of such
claim, action, suit or proceeding and shall tender the defense and, subject to the next succeeding
paragraph, settlement or compromise of any such claim, action, suit or proceeding to Indemnifying
Party for conduct thereof by Indemnifying Party. Indemnifying Party shall timely commence and
diligently continue such defense, settlement or compromise at Indemnifying Party’s sole expense.
Indemnifying Party shall have the right to select counsel, subject to Indemnified Party’s prior
written approval, which approval shall not be unreasonably withheld or delayed, for such defense.
Should any such claim, action, suit or proceeding result in a final and unappealable judgment,
Indemnifying Party shall promptly pay the same. Indemnified Party agrees to cooperate with
Indemnifying Party to the extent Indemnifying Party may reasonably request such cooperation but at
the sole expense of Indemnifying Party. Indemnifying Party shall succeed to and have the benefit of
all the defenses, claims and other rights of each Indemnified Party relating to or affecting any
obligation or liability of Indemnifying Party under this indemnity, and each Indemnified Party
agrees to fully disclose any and all such defenses, claims and other rights to Indemnifying Party
and upon request to promptly execute any documents and take any other action (at the sole expense
of the Indemnifying Party) necessary or desirable to further assure
Indemnifying Party the right to the benefit of such defenses, claims or other rights.
Indemnified Party shall have the right (but shall not have the obligation) upon notice to
Indemnifying Party, at any time and at its own cost and expense, to participate in the defense of
any such claim, action, suit or proceeding, to be represented by counsel of its choice (provided,
however, that the Indemnifying Party shall not be liable under this subparagraph for the fees and
expenses of more than one set of counsel for all Indemnified Parties unless a conflict of interest
exists between or among Indemnified Parties) and to assert in any such action, suit or proceeding
any counterclaims or cross claims Indemnified Party may have. In the event Indemnifying Party fails
to timely commence the defense, settlement or compromise thereof, Indemnified Party shall have the
right (but shall not have the obligation) upon notice to Indemnifying Party and failure of



20









 







Indemnifying Party to act, to defend, settle, compromise or take such other action as Indemnified
Party shall deem necessary in connection with any such claim, action, suit or proceeding and, in
the event it is determined that Indemnified Party was entitled to be indemnified under this Article
X by Indemnifying Party, shall have the right to be indemnified by Indemnifying Party for the
entire cost of defense, including attorneys’ fees and disbursements and experts’ fees and expenses
(including those incurred in connection with appellate proceedings). Notwithstanding the foregoing,
if any party making such claim, or any party to any such action, suit or proceeding, shall take any
action to create or impose any lien or encumbrance on any of the assets of Indemnified Party in
respect of such claim, action, suit or proceeding or if any judgment shall be entered which would
result in Indemnified Party being obligated to pay the same, Indemnifying Party shall provide such
bond, deposit or take such other action as shall be required to prevent the creation or imposition
of any such lien, and to stay the execution of such judgment pending any appeal or other proceeding
prior to final entry thereof. Indemnifying Party shall have the right to settle or compromise any
such claim, action, suit or proceeding without the prior written consent of Indemnified Party
provided that, at the time of such settlement or compromise, Indemnifying Party shall satisfy and
discharge any and all liability of Indemnified Party resulting therefrom or shall post security
reasonably satisfactory to the Indemnified Party to assure the ultimate satisfaction and discharge
of such liability and provided that such settlement or compromise shall not require an admission of
liability or wrongdoing by Indemnified Party. Except as provided in the preceding sentence,
Indemnifying Party shall not settle or compromise any such claim, action, suit or proceeding
without the prior written consent of the Indemnified Party, which consent shall not be unreasonably
withheld or delayed. The failure or delay of Indemnified Party to promptly notify Indemnifying
Party of the institution of any claim, action, suit or other proceeding shall not release or
otherwise limit the indemnification obligation of Indemnifying Party except to the extent that
Indemnifying Party shall be prejudiced by the failure or delay of Indemnified Party to give
Indemnifying Party notice of such action, suit or proceeding.



     10.3. Recovery of Litigation Costs. In the event any dispute between the parties to
this Agreement shall result in litigation, arbitration or other proceeding, the court shall have
the discretion to award to the prevailing party all reasonable costs and expenses, including
without limitation reasonable attorneys’ fees and disbursements, incurred by the prevailing party in
connection with such litigation or other proceeding and any appeal thereof. Such costs, expenses,
fees and disbursements shall be included in and made a part of the judgment recovered by the
prevailing party, if any.



ARTICLE XI

INSURANCE




     11.1. Fidelity Bond and Errors and Omissions Coverage.



21









 





          11.1.1 Fidelity Bond. Proinvest shall obtain and maintain at all times during the
term of this Agreement a blanket fidelity bond with a responsible company with broad coverage of
all officers, employees or other persons acting in any capacity with respect to the Assets or
handling funds, money, documents and papers relating to the Assets, in such amount as Proinvest may
reasonably determine to be appropriate. Any such fidelity bond shall insure and protect the Owner,
at a minimum, against losses, including, without limitation, those arising from theft, embezzlement
and fraud. As soon as practicable after the date of this Agreement, Proinvest shall cause to be
delivered to the Owner a statement from the surety that such fidelity bond shall in no event be
terminated or materially modified without 30 days’ prior written notice to the Owner. The Owner
shall be notified of all draws or claims against the fidelity bond related to this Agreement.




     11.1.2. Errors and Omissions. Proinvest shall obtain and maintain at all times during
the term of this Agreement an errors and omissions insurance policy with a responsible company with
broad coverage of all officers, employees or other persons acting in any capacity with respect to
the Assets or handling funds, money, documents and papers relating to the Assets. Any such errors
and omissions policy shall insure and protect the Owner, at a minimum, against losses, including,
without limitation, those arising from errors and omissions and negligent acts of such persons or
misplacement of funds, money, or documents. The protection against errors and omissions shall be in
the amount of at least $3,000,000. An soon as practicable after the date of this Agreement,
Proinvest shall cause to be delivered to the Owner a statement from the insurance company that such
policy shall in no event be terminated or materially modified without 30 days’ prior written notice
to the Owner. The Owner shall be notified of all draws or claims against the insurance policy
related to this Agreement.



     11.2. Liability Insurance. Proinvest shall obtain and maintain at all times during
the term of this Agreement comprehensive general liability, automobile liability, workers’
compensation and ether insurance to protect the interest of Proinvest in connection with the
performance of this Agreement. The Owner shall be designated as an additional insured under
such insurance policies. As soon as practicable after the date of this Agreement, Proinvest
shall cause to be delivered to the Owner a statement from the insurance company that such policy
shall in no event be terminated or materially modified without 30 days’ prior written notice to the
Owner. The Owner shall be notified of all draws or claims against the insurance policy related to
this Agreement.



     11.3 Notice of Cancellation. Proinvest agrees to notify Owner, or to cause Owner to
be notified, in writing immediately, and in any event within five (5) days, of the notice of
cancellation or termination of any such coverage. Proinvest further agrees to notify the Owner in
writing within five (5) days of filing a claim related to this Agreement under such coverage.



22









 





     11.4. Evidence of Insurance. On the effective date of this Agreement and annually
thereafter, Proinvest shall provide to the Owner for approval copies of policies, certificates of
insurance or other proof evidencing its insurance coverage as required under this Article XI.



ARTICLE XII.

TERMINATION OF AGREEMENT; PROCEDURES UPON

TERMINATION OR EXPIRATION OF AGREEMENT




     12.1. Termination. This Agreement may be terminated at any time upon the mutual
written agreement of Owner and Proinvest. Each party may terminate this Agreement by written
notice to the other party at any time following the occurrence of an Event of Default and the
failure to cure such Event of Default within the grace periods provided pursuant to Section 12.2.
As used herein, the term “Event of Default” shall mean the occurrence of one or more of the
followings



          (a) the failure by any party to pay or transfer monies when and as payment shall be required
pursuant to the terms of this Agreements




          (b) the failure by any party to perform any of’ its non-monetary obligations in accordance
with the terms of this Agreement;




          (c) the filing of a petition in bankruptcy or for an arrangement or for reorganization
pursuant to the Federal Bankruptcy Act or any similar law, Federal or state by any party, or the
adjudication by decree of a court of competent jurisdiction that any party is a bankrupt, or is
declared insolvent, or if any party shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or shall consent to
the appointment of a receiver or receivers of all or any part of its property; or




          (d) the filing of a petition in bankruptcy against any party or for reorganization of a party
to this Agreement pursuant to the Federal Bankruptcy Act or any similar law, federal or state, if
such petition shall not be discharged or dismissed within sixty (60) days after the date on which
such petition was filed; or




          (e) the termination or dissolution of either party.




     12.2 Notice of Default and Right to Cure. Upon the occurrence of an Event of Default,
the non-defaulting party shall provide the other party (the “Defaulting Party”) written notice
setting forth the nature of such Event of Default, and the Defaulting Party shall have thirty (30)
days to cure any Event of Default other than the failure of Proinvest to maintain insurance in



23









 





accordance with this Agreement, and Proinvest shall have ten (10) days to cure any failure to
maintain insurance in accordance with this Agreement, provided, however, that if the nature of the
Event of Default (other than the failure of Proinvest to maintain insurance in accordance with this
Agreement) is such that it cannot reasonably be cured within thirty (30) days, the Defaulting Party
may cure such Event of Default by commencing in good faith to cure the default promptly after its
receipt of such written notice and prosecuting the cure of such default to completion with
diligence and continuity within a reasonable time thereafter, but in any event within ninety (90)
days thereafter.



     12.3. Failure to Cure. If the Defaulting Party fails to cure the Event of Default
within the foregoing time periods, the other party may terminate this Agreement by written notice,
which termination shall be effective upon receipt of the notice or upon the date specified in the
notice.



     12.4 Termination by Proinvest. Proinvest may resign as Manager only after two years
following the effective date of the Registration Statement filed on behalf of the Owner with the
Securities and Exchange Commission; and only if it has identified a successor person to serve as
Manager, and such successor has been approved as successor Manager by a majority vote of the Board
after being given ninety (90) days notice. Any such resignation by Proinvest shall automatically
terminate this Agreement, effective as of the date of such resignation, unless otherwise agreed in
writing between Owner and Proinvest. Proinvest may not otherwise resign, withdraw from or
terminate its service as Manager of the Owner.



     12.5 Payment to Withdrawn or Removed Manager. Upon the resignation, withdrawal or
removal of Proinvest as Manager or termination of this Agreement, the Owner shall be required to
pay Proinvest any amounts then accrued and owing to Proinvest under this Agreement. The method of
payment to Proinvest must be fair and must protect the solvency and liquidity of the Owner. In
addition, the Owner shall have the right, but not the obligation, to terminate Proinvest’s interest
in Owner’s income, losses, distributions and capital upon payment to
Proinvest of an amount equal to the value of its interest in Owner’s income, losses,
distributions and capital on the date of such resignation, withdrawal, removal or termination of
this Agreement. Such interest shall be computed taking into account Proinvest’s economic interest
in the Owner under the LLC Agreement. In the event Proinvest (or its representative) and the Owner
cannot mutually agree upon such value within ninety (90) days following such resignation,
withdrawal, removal or termination, such value shall be determined by arbitration before a panel of
three appraisers, one of whom shall be selected by Proinvest (or its representative) and one by the
Owner, and the third of whom shall be selected by the two appraisers so selected by the parties.
Such arbitration shall take place in Dallas, Texas and shall be in accordance with the rules and
regulations of the American Arbitration Association then in force and effect. The expense of
arbitration shall be borne equally by Proinvest and the Owner. Payment to Proinvest of the value of
its interest in Owner’s income, losses, distributions and



24









 











capital shall be made, if the termination
was voluntary, by the delivery of an unsecured promissory note, bearing no interest and having
principal payable, if at all, from distributions which Proinvest would have otherwise received
under this Agreement. Payment to Proinvest of the value of its interest in Owner’s income, losses,
distributions and capital shall be made, if the termination was involuntary, at the option of
Proinvest, by the delivery of a promissory note, secured by a letter of credit issued by Texas
Capital Bank, N.A. or other bank acceptable to Proinvest, coming due in five years from the date of
termination, and bearing interest at the rate of the greater of nine percent (9%) per annum or the
rate of interest most recently announced by Texas Capital Bank, N.A. as its “prime rate” as of the
date of the termination plus one percent (1%) per annum, with principal and interest payable
annually in equal installments.







     12.6. Termination of Executory Contracts. Upon the removal or occurrence of an Event
of Dissociation of Proinvest, this Agreement and all other executory contracts between the Owner
and Proinvest or any affiliate thereof (unless such affiliate is also an affiliate of any remaining
or new Manager) may be terminated and canceled by the Owner without prior notice or penalty,
excluding any executory contract or agreement regarding the compensation, rights to indemnification
or similar rights of Proinvest. Proinvest or any affiliate thereof (unless such affiliate is also
an affiliate of a remaining or new Manager or Manager) may also terminate and cancel any such
executory contract effective upon sixty (60) days prior written notice of such termination and
cancellation to the remaining or new Manager or Managers, if any, or to the Owner. Upon the
termination of this Agreement, Owner’s appointment of Proinvest as Manager shall terminate, but the
termination of this Agreement for any reason shall not affect any right, obligation or liability
that has accrued under this Agreement, including specifically, but without limitation Proinvest’s
rights to fees and other compensation payable under this Agreement and the LLC Agreement, except as
provided herein and in the LLC Agreement.



     12.7. Procedures upon Expiration or Termination. Upon the expiration or termination
of this Agreement, Proinvest, as directed by Owner, either will immediately deliver all documents,
files, books, paper and accounts relating to the Assets (the “Records”) that are in
Proinvest’s possession or control to the control of Owner or will hold the Records for up to a
twelve (12) month period until Owner directs Proinvest to deliver the records. Proinvest may make
and maintain copies of the Records for its files.



     12.8. Duty of Cooperation. Upon the expiration or termination of this Agreement, the
parties will cooperate with each other to effect an efficient and smooth transition of
responsibility with respect to the Assets.



     12.9. Default Interest. If Owner shall fail to pay any Proinvest Fee within ten (10)
days following the receipt by Owner of notice of such failure, Owner shall pay interest to
Proinvest on the delinquent amount from the tenth day following the due date at an annual rate
equal to five (5) percentage points in excess of the prime rate of Texas Capital Bank, N.A. or such
other bank



25









 







as shall hold the Operating Account, but in no event in excess of the highest rate of
interest permitted by applicable law.



     12.10. Late Payments. If the late payment by Proinvest of any expense payable by it
on Owner’s behalf shall result in Owner incurring late charges or default interest, Proinvest shall
itself pay if possible, or shall reimburse Owner promptly for the payment of, such charges and
interest unless such late payment is due to Owner’s failure to provide funds to Proinvest to timely
make such payments after being requested in writing by Proinvest to provide the funds required.



ARTICLE XIII.

MISCELLANEOUS PROVISIONS




     13.1. No Partnership Intended. Nothing in this Agreement shall be deemed or construed
to create a co-partnership or joint venture between the parties hereto and Proinvest shall be an
independent contractor.



     13.2. Entire Agreement. This Agreement and the LLC Agreement together embody the
entire Agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties, covenants or undertakings
other than those expressly set forth or referred to herein or in the LLC Agreement. This Agreement
and the LLC Agreement together supersede any and all prior agreements and understandings between
the parties with respect to such subject matter. In the event of conflict between the terms of
this Agreement and the LLC Agreement, the terms of the LLC Agreement shall control.



     13.3. Amendment. This Agreement may only be amended in writing signed by both of
the parties.



     13.4. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



     13.5. Benefit and Burden. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns; provided, however, that
neither party may assign this Agreement without the prior consent of the other party hereto except
to an Affiliate of the assigning party (which Affiliate shall expressly assume the obligations of
the assigning party), nor shall any controlling interest in either party hereto or any interests
aggregating during the term hereof into a controlling interest of either party hereto be sold,
transferred or assigned. Nothing herein shall limit the right of either party to transfer interests
which both alone and in the aggregate do not constitute a controlling interest.



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Notwithstanding any
provision to the contrary, Owner shall have the right to assign this Agreement to a lender to
secure Owner’s obligation to repay a loan from such lender to Owner, provided that any such
assignment shall provide that Proinvest shall not be required to perform any of its obligations
hereunder unless all of the obligations of the Owner have been and are being fully performed in all
material respects. Upon request, Proinvest shall provide to such lender such assurances regarding
this Agreement and the Assets as the lender shall reasonably request and shall agree to such
reasonable modifications to this Agreement as shall be requested by any such lender, provided that
such modifications do not affect the rights or obligations of Proinvest under this Agreement in any
material adverse respect and do not modify in any respect adverse to Proinvest the provisions of
this Agreement relating to the fees or reimbursements payable to Proinvest.







     13.6. Notice. Any notice or other communication required or permitted to be given
hereunder shall be in writing, and shall be delivered personally, by telecopy (with a hard copy and
a transmission confirmation sent by a recognized overnight national carrier service (such as
Federal Express) for next business day delivery) or by recognized overnight national courier
service (such as Federal Express) for next business day delivery or shall be sent by certified or
registered mail, return receipt requested, first-class postage prepaid to the parties at the
addresses set forth below (or to such other addresses as the parties may specify by due notice to
the other):








	 	 	 
	If to Owner:

	 	Proinvest Realty Fund, LLC
	 

	 	8333 Douglas Avenue, Suite 1450
	 

	 	Dallas, Texas 75225
	 

	 	Attn: G. N. Olson, Chairman of the
Board of Directors and 

         Chief Executive Officer
	 

	 	Tel.: 214. 363.7130
	 

	 	Fax.: 214.363.9168
	 
	 	 
	If to Proinvest:

	 	Proinvest Realty Advisors, LLC
	 

	 	8333 Douglas Avenue, Suite 1450
	 

	 	Dallas, Texas 75225
	 

	 	Attn: T E Millard, Executive Vice President and
	 

	 	Chief Operating Officer
	 

	 	Tel.: 214. 363.7130
	 

	 	Fax.: 214.363.9168






     Any notice delivered to a party’s designated address by (a) personal delivery, (b) recognized
overnight national courier service, or (c) registered or certified mail, return receipt requested,
shall be deemed to have been received by such party at the time the notice is delivered to such
party’s designated address. Confirmation by the courier delivering any notice given pursuant to
this Section shall be conclusive evidence of receipt of such notice. Each party hereby



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agrees that
it will not refuse or reject delivery of any notice given hereunder, that it will acknowledge, in
writing, receipt of the same upon request by any other party and that any notice rejected or
refused by it shall be deemed for all purposes of this Agreement to have been received by the
rejecting party on the date so refused or rejected, as conclusively established by the records of
the U.S. Postal Service or the courier service. Any notice required to be given within a stated
period of time which is sent by certified or registered mail shall be considered timely if
postmarked before midnight of the last day of such period.



     13.7. Separability. The invalidity or unenforceability of any provision of this
Agreement shall not impair the validity or enforceability of any other provision.



     13.8. Governing Law. This Agreement shall be governed by the laws of the State of
Texas.



     13.9. Headings. The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of this Agreement.



     13.10. No Waiver. No waiver shall be effective against either party unless it is in
writing, signed by that party. No waiver by either party of any breach of any term or covenant
contained in this Agreement shall operate as a waiver of such term or covenant itself, or of any
subsequent breach thereof.



     13.11. Affiliate. For purpose of this Agreement, the term “Affiliate” means any
corporation, partnership, joint venture, trust or other entity (collectively, a “Person”) or group
of persons acting in concert in respect of the Person in question that, directly or indirectly,
through one or more intermediaries, controls or is controlled by or is under common control with
such Person. For the purposes of this definition, “control” (including, with correlative meanings,
the terms “controlled by” and “under common control with”), as used with respect to any Person or
group of Persons, shall mean possession, directly or indirectly, through one or more
intermediaries, of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by contract or otherwise.



     13.12. Authorization. Proinvest hereby represents and warrants to Owner that
Proinvest has full power and authority to execute, deliver and perform its obligations under this
Agreement and that this Agreement has been duly executed and delivered by Proinvest. Owner hereby
represents and warrants to Proinvest that Owner has full power and authority to execute, deliver
and perform its obligations under this Agreement and that this Agreement has been duly executed and
delivered by Owner.



     13.13. Limitation of Recourse. There shall be no liability under this Agreement of,
nor any recourse under this Agreement to, any officer, director, shareholder, member, manager,



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affiliate, employee or agent of either party to this Agreement.



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



	 	 	 	 	 
	 	OWNER:



PROINVEST REALTY FUND, LLC

A Delaware Limited Liability Company

 	 
	 	By:  	PROINVEST REALTY ADVISORS, LLC
 	 
	 	 	A Texas Limited Liability Company 	 
	 	 	 	 
	 
	 	 	 
	 	 	By:  
 	 
	 	 	G.
N. Olson, Chairman of the Board of Managing    
	 
	 	Directors  and Chief Executive Officer 	 
	 
	 	PROINVEST REALTY ADVISORS, LLC

A Texas Limited Liability Company

 	 
	 	By:  	 	 
	 	 	T E Millard, Executive Vice President and 	 
	 	 	Chief Operating Officer 	 
	 




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