AMENDED AND RESTATED ACCOUNTING AND ADMINISTRATIVE SERVICES AGREEMENT
EXHIBIT 10.3
AMENDED AND RESTATED
ACCOUNTING AND ADMINISTRATIVE SERVICES AGREEMENT
ACCOUNTING AND ADMINISTRATIVE SERVICES AGREEMENT
THIS AMENDED AND RESTATED ACCOUNTING AND ADMINISTRATIVE SERVICES AGREEMENT (“Agreement”),
dated effective as of February 27, 2007 (“Effective Date”), is made by and between PROINVEST
REALTY ADVISORS LLC (“Proinvest”), a Texas limited liability company, and SENEGA MORTGAGE COMPANY
LLC (“Seneca”), a Texas limited liability company.
WITNESSETH:
WHEREAS, Proinvest 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, Proinvest has organized Proinvest Realty Fund LLC (“First Fund”), a Delaware limited
liability company, which will be the first of the Funds and which is intended to own, develop, and
operate commercial real estate 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, Proinvest
desires to engage the accounting and administrative services (“Services”) of Seneca as an
independent contractor to furnish certain financial, accounting, bookkeeping, and administrative
services to and on behalf of Proinvest, 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 Seneca desires to provide the Services to and on behalf of Proinvest, the
Funds, the First Fund, and the SPE’s (all together, “Proinvest Group”), in consideration of the
payment to Seneca of the Service Fee (hereinafter defined) as specified herein; and
WHEREAS, Proinvest and Seneca propose that Seneca, through its capital markets and mortgage
banking operations, assist the Managing Directors (“Managing Directors”) of Proinvest and the
officers (“Officers”) of Proinvest in the intermediation between the business operations and
strategies of Proinvest and the capital markets; and
WHEREAS, Proinvest and Seneca propose that Seneca provide oversight, in conjunction with the
Managing Directors and the Officers, of (a) the treasury function of the entities within the
Proinvest Group, including the cash management, financing and banking relationships, and risk
management Junctions, (b) the control function of the entities within the Proinvest Group,
including accounting, audit, tax management, payroll, records, budgeting and internal and external
reporting functions (including reporting under the Securities Act of 1933, the Securities Exchange
Act of 1934, and Xxxxxxxx-Xxxxx), (c) the management of the information systems of the entities
within the Proinvest Group, and (d) the integration of the finance strategies of the entities
within the Proinvest Group into the business and operations of the entities within the Proinvest
Group, and the execution of those strategies;
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WHEREAS, Proinvest and Seneca entered into that certain Accounting and Administrative
Services Agreement (“Original Agreement”), dated February 27, 2007, and Proinvest and Seneca now
propose to modify and amend certain of the terms and conditions of the original Agreement;
NOW, THEREFORE, for and in consideration of the sum of $10, and other good, valuable, sufficient,
and received consideration, Proinvest and Seneca hereby agree as follows:
Section 1. Status of Seneca. Seneca shall provide to and on behalf of the entities
within the Proinvest Group the Services, as described herein. With respect to each of the entities
within the Proinvest Group, Seneca shall at all times be an independent contractor. No provision
hereof shall be construed to constitute Seneca or any of its officers or employees as an employee
of Proinvest or any entity within the Proinvest Group. Subject to the adoption of a formal
resolution of the Managing Directors, Warner E Stone (“Stone”) or a designee of Stone will be
appointed the Executive Vice President, (Acting) Chief Financial Officer, and (Acting) Treasurer
and Controller of Proinvest in furtherance of the provision by Seneca of the Services, to serve at
the pleasure of the Managing Directors. Neither Stone nor a designee of Stone shall be an employee
of Proinvest, and Stone or any designee of Stone shall at all times be and remain an employee of or
contractor with Seneca compensated solely by Seneca. As soon as practicable, a new member or
members of the senior management of Proinvest will be recruited by the Managing Directors and
Seneca to become the Chief Administrative Officer, the Chief Financial Officer, the Controller, and
the Treasurer of Proinvest, in each instance with such duties and responsibilities commensurate
with such titles as the Managing Directors may determine, and reporting to the Chief Operating
Officer of Proinvest.
2. Bookkeeping and Administrative Services. Seneca shall utilize such existing or
newly-employed staff (“Seneca Staff”) of Seneca as necessary to provide the Services, and as may
be approved by the Managing Directors. Proinvest and Seneca presently contemplate that the Seneca
Staff shall initially consist of a staff level property acquisition analyst, reporting to the
Chief Acquisitions Officer of Proinvest, and 2 staff level accounts or bookkeepers reporting to
the Controller and the Chief Administrative Officer of Proinvest. At such time as the Managing
Directors deem reasonable and prudent, those employees on the Seneca Staff who have been employed
by Seneca solely in support of the provision of the Services to entities within the Proinvest
Group will become employees of Proinvest. The Services to be provided to entities within the
Proinvest Group by Stone and the Seneca Staff shall be as follows:
(a) Accounting.
(i) Books and Records. Upon receipt from the respective entities within the Proinvest
Group of all necessary supporting documentation and information, Seneca will provide all
accounting, bookkeeping, and record keeping services for and on behalf of each of the entities
within the Proinvest Group, including the maintenance of all books and records, preparation of all
financial and other reports required to be delivered by the entities within the Proinvest Group to
other parties, including regulatory authorities such as the Securities and Exchange Commission
(“SEC”), pursuant to the terms of the applicable operating agreements, asset
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management agreements, management agreements, or otherwise. Under the supervision of Proinvest and
Stone, Seneca shall establish a company chart of accounts for each entity within the Proinvest
Group acceptable to Proinvest and maintain a cash basis set of books of account for Proinvest and
for each entity within the Proinvest Group. Seneca shall prepare monthly statements of operations
(any one, “Statement of Operations;” all together, “Statements of Operations”) for each entity
within the Proinvest Group using the approved chart of accounts, with the statements reflecting
monthly and year-to-date actual results, benchmarked against the Budgets (hereinafter defined),
Seneca shall prepare the Statements of Operations, general ledger reports, and related schedules
and spreadsheets (all together, “Monthly Reports”). The date for completion of the Monthly Reports
will be the 10th calendar day of each calendar month as to operations for the then immediately
preceding calendar month. At year-end, Seneca shall calculate and book fixed asset depreciation for
personal property purchased and/or owned by each entity within the Proinvest Group and prepare a
year-end Statement of Operations and detailed general ledger report for each entity within the
Proinvest Group. Seneca will maintain a fixed asset tracking system for the purchase, depreciation,
and disposal of the personal property of each entity within the Proinvest Group. All such books,
records, and reports shall be maintained and prepared in Proinvest standard formal, consistent with
the accounting records, financial statements, and other reports prepared by Seneca for
itself and other related companies.
(ii) Tax Returns. Seneca will coordinate the preparation of all federal, state, and
local income tax returns required to be prepared and filed by entities within the Proinvest Group.
All year-end Statements of Operations and necessary supporting schedules shall be delivered by
Seneca to outside certified public accountants (“Outside CPA’s”) retained by entities within the
Proinvest Group, as designated by Proinvest from time to time, for tax return preparation. Seneca
shall consult with the Outside CPA’s, the Managing Directors, and the Officers in the tax return
preparation and filing process. Seneca will coordinate the filing of all tax return amendments,
protests, appeals, and other proceedings pertaining to the calculation of taxes due or the payment
thereof by entities within the Proinvest Group.
(iii) Bank Accounts. Seneca will coordinate the opening of operating and other bank
accounts (“Bank Accounts”) for entities within the Proinvest Group at such bank, banks, or other
depository financial institutions as may be designated by Proinvest, from time to time. Each
entity within the Proinvest Group will provide to Seneca all required tax identification numbers,
organizational documents, and lists of authorized check signatories, with appropriate authorizing
resolutions, for the Bank Accounts. Only the Managing Directors, and authorized and designated
Officers and staff of Proinvest, shall be authorized check signers.
(iv) Cash Management. Seneca will maintain and effect documented, established methods
for cash management and liquidity for the entities within the Proinvest Group.
(v) Accounts Receivable and Payable. Seneca will supervise and coordinate the payment
of all expenses of the entities within the Proinvest Group, and will maintain all records with
respect thereto. Seneca will designate a member of the Seneca Staff to handle all accounts
receivable and payable of entities within the Proinvest Group. Seneca will receipt for or
acknowledge and deposit all revenues received by entities within the Proinvest Group and post the
receipts to the respective books of the entities within the Proinvest Group. Seneca will
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receive and code all accounts payable and present copies thereof to the President or
Executive Vice President of Proinvest, or to any Managing Director designated by the President or
Executive Vice President of Proinvest for such purpose, for approval. After such approval, the
accounts payable will be input into the accounts payable system of the affected entity within the
Proinvest Group for payment. Approximately 3 times each calendar month, Seneca will generate a
voucher selection report and will consult with the President or Executive Vice President of
Proinvest, or with any Managing Director designated by the President or Executive Vice President of
Proinvest for such purpose, to determine the items selected for payment in each check run. After
the voucher selection report is so approved, checks will be run on magnetic ink character
recognition imprinted check stock and presented to the President or Executive Vice President of
Proinvest, or to any Managing Director designated by the President or Executive Vice President of
Proinvest for such purpose, for payment. After signature, Seneca will route or mail the appropriate
checks to the designated payees, Seneca will accommodate special out-of-sequence check runs on a
limited, on-demand basis. In all cases, check tissues (copies) and paid invoices will be maintained
by Seneca in an orderly system of files established for each of the entities in the Proinvest
Group. Charges to the general ledger cash balance for each entity within the Proinvest Group will
be posted on a daily basis. Seneca will reconcile statements on the Bank Accounts of each entity
within the Proinvest Group on a monthly basis by a member of the Seneca Staff other than the check
issuers or signers. Checks written out of any operating account of any Fund are anticipated to
include cash distributions to investors, fees and expense reimbursements, and other non-property
specific expenses.
(vi) Insurance. Seneca will place company multi-peril and commercial general
liability insurance coverages for the properties owned by, and for, entities within the Proinvest
Group pursuant to specifications determined by Proinvest, from time to time. The selection of
insurers, changes in insurers, types and amounts of coverages, policy terms and conditions, and
premiums are subject to the prior approval of Proinvest.
(vii) Coordination of Property Level Accounting. Seneca will be responsible for all
property level accounting pursuant to property management agreements entered into by Proinvest
with the Funds and/or the SPE’s. Reports generated by Seneca on a property specific basis shall be
provided by an accounting assistant employee of Seneca (“Fund Accountant”) added to the Seneca
Staff when determined reasonable, necessary, and prudent by Proinvest. The Fund Accountant shall
consolidate the property level financial information and accounts under the supervision of a
senior accounting assistant employee of Seneca (“Portfolio Accountant”) and the Controller of
Proinvest into consolidated statements of operations and balance sheets of the Funds.
(viii) Property Taxes. Seneca will coordinate the payment of all property taxes due
from entities within the Proinvest Group through the accounts receivable and payable process and
shall consult with and advise the entities within the Proinvest Group and monitor the conduct of
all tax appeals, protests, and contests.
(ix) Budgets. All of the ongoing expenses of the operations of entities within the
Proinvest Group shall be made pursuant to operating budgets (“Operating Budgets”) prepared by
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Seneca and approved by Proinvest, from time to time, as determined to be reasonable,
necessary, and prudent by Proinvest.
(b) Administration.
(i) Purchasing. Seneca will assist the entities within the Proinvest Group in the
establishment of vendor accounts and specifications for furniture, fixtures, equipment, supplies,
and services, to the end of enabling the Proinvest Group to benefit from all reasonably available
discounts, preferences, or other purchasing advantages available to Seneca and to facilitate
billing and payment therefor as a part of the Services.
(ii) Payroll and Employee Benefits Seneca will provide all payroll services for
entities within the Proinvest Group, including provision and coordination of such employee
benefits and health insurance coverage as Proinvest may approve, from time to time.
(iii) Coordination with SPE Property Management Services. Seneca will consult with
and assist entities within the Proinvest Group in the preparation of and, at the direction of
Proinvest, will prepare financial projections, business plans, and budgets for the entities within
the Proinvest Group, as required from time to time under applicable operating agreements, asset
management agreements, and property management agreements. Such financial projections, business
plans, and budgets will be based upon information furnished to Seneca by the entities within the
Proinvest Group, and will be in a standard Proinvest format, consistent with such plans and
budgets prepared by Seneca for itself.
(c) Other.
(i) Consulting. Seneca shall, from time to time, as requested by Proinvest, consult
with and advise entities within the Proinvest Group as to the process of planning and strategy of
business and operations, the development of measurements that have a strategic focus balanced
between operations and finance and which are predictive rather than reactive, the provision of
information and analysis providing insight into the creation of value and the progress in creating
value is matched against strategic objectives, and major financial initiatives.
(ii) Third Party Service Providers Seneca will, in cooperation with the Managing
Directors and the Officers, select and manage third party, finance related service providers to
entities within the Proinvest Group, including accountants, auditors, tax consultants, banks,
mortgage bankers, and insurance agents and brokers.
Section 3. Services Not Exclusive. Proinvest recognizes that the Services will not be
exclusive to the entities within the Proinvest Group and that Seneca will be providing similar
services to other independent third parties and to affiliates of Seneca which operate
independently of the entities within the Proinvest Group in other real estate and financial
markets, but which are organized and operate within a corporate and operational framework of
accounting and administrative services sharing substantially similar to that of Seneca with the
entities within the Proinvest Group.
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Section 4. Compensation Accounting and Administrative Services. For and in
consideration of the Services, (a) Seneca shall receive a 20% equity ownership interest in
Proinvest, plus (b) an aggregate monthly fee (“Services Fee”) in the amount of $16,861 for the
calendar months of April, 2007 through and including December, 2007, and thereafter in an amount as
determined by negotiation between the Proinvest and Seneca based on the share of the costs and
expenses to Seneca in providing the Services, including the proportionate share of the reasonable
overhead expenses of Seneca attributable to maintaining the executive, bookkeeping, accounting,
administrative, support staff, facilities, and equipment necessary so as to enable Seneca to
continue to provide the quality and availability of the Services necessary to promote the
efficient, cost-effective, and superior operation of the entities within the Proinvest Group. From
and after the Effective Date until the earlier to occur of either the first annual determination of
the Services Fee as hereinafter specified in this Section 4 or the organization by Proinvest of
another of the Funds other than the First Fund, the Services Fee shall be apportioned and allocated
$2,500 to Proinvest and $14,361 to the First Fund. Incident to any such Services Fee negotiation,
Proinvest shall have the right to reasonably review the pertinent aspects of the annual operating
budget of Seneca, including without limitation, the compensation levels for the Seneca Staff and
other employees and staff members of Seneca dedicated or allocated to the provision of the
Services. The share of such costs and expenses of Seneca taken into account in any such Services
Fee negotiation will be determined on a fair and equitable basis and will based upon their relative
use and in comparison with that of the other Seneca accounting and administrative service clients.
The Services Fee shall be determined and equitably apportioned and allocated within the Proinvest
Group not less frequently than annually and shall be increased or decreased and re-apportioned and
re-allocated, as necessary, based upon the overall operating costs and expenses of Seneca during
the previous calendar year, the relative use of entities within the Proinvest Group of the Services
during the previous calendar year, the projected overall operating costs and expenses of Seneca for
the next ensuing calendar year, and the projected use by entities within the Proinvest Group of the
Services during the next ensuing calendar year. To the maximum extent practicable, specific costs
and expenses which are attributable solely to an entity within the Proinvest Group shall be billed
by Seneca directly to such entity and shall not be included as part of the overall operating costs
and expenses of Seneca for purposes of determining the Services Fee. If the term of this Agreement
expires or is terminated on a date other than the last day of a calendar month, Proinvest shall pay
to Seneca on the first day of the last calendar month of the term, a pro rata portion of the last
monthly Services Fee based upon the actual number of days in such month.
Section 5. Liability of Seneca. Seneca shall not be liable to any entity
within the Proinvest Group except for willful breach, gross negligence, or willful misconduct of
Seneca, the Seneca Staff, or the other employees or agents of Seneca in the performance of the
Services.
Section 6. Non-Delegation of Duties. The duties of Seneca hereunder may not
be delegated or assigned, in whole or in part, by Seneca to any third party without the prior
written consent of Proinvest.
Section 7. Term and Termination. The term of this Agreement shall commence
as of the date hereof and shall continue until the first to occur of (a) the dissolution of
Proinvest, or (b) dissolution of Seneca, or (c) the expiration of 90 calendar days after written
notice from Seneca
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to Proinvest, or from Proinvest to Seneca, of an election to terminate this Agreement. If
this Agreement is so terminated, Proinvest and Seneca shall each be released from all further
obligations and liabilities hereunder with respect to the Services other than those incurred on or
before the date of such termination, and except as provided for in
Section 12 and Section 13 hereof.
Section 8. Turn-Over of Property and Information on Termination. With respect
to the termination of this Agreement, Seneca shall deliver to Proinvest within 15 calendar days
after such termination of this Agreement (a) an 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 9. 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 Proinvest: 0000
Xxxxxxx Xxx, Xxx 0000, Xxxxxx XX 00000-0000, Attn: X X Xxxxxxx, Executive Vice President, and (b)
if to Seneca: 0000 XxXxxxxx Xx, Xxx 000, Xxxxxx XX 00000, Attn: N E Stone.
Section 10. 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 11. 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, Proinvest and Seneca have executed this Agreement on or as of the date
first recited.
[Signatures appear on the next page.]
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