AMENDED AND RESTATED MARKETING AGREEMENT
EXHIBIT
10.4
AMENDED AND RESTATED
MARKETING AGREEMENT
MARKETING AGREEMENT
THIS AMENDED AND RESTATED MARKETING
AGREEMENT (“Agreement”), dated as of February 27, 2007, is
made by and among PROINVEST
REALTY ADVISORS LLC (“Company Sponsor”), a Texas limited liability
company, PROINVEST REALTY FUND LLC (“Company”),
a Delaware limited liability company, and CRITICAL DATA INC (“Consultant”),
a Washington corporation.
WITNESSETH:
WHEREAS, the Consultant proposes to provide
certain marketing services (“Marketing Services”) to the Company
Sponsor and to the Company incident to the
offering (“Offering”) and sale by the Company of up to $100 million of membership
interests (any one, “Unit;” all together, “Units”) in the Company
at a price per Unit of $10,000 and as to be more particularly
described in the prospectus and all supplements and amendments thereto from
time to time (all together, “Prospectus”) describing the Offering and
constituting a part of the Form S-11 registration statement
(“Form S-11”) to
be filed by the Company with the Securities and Exchange Commission; and
WHEREAS, the Company Sponsor and the Company propose to engage the
Consultant to provide the Marketing Services; and
WHEREAS, the Company Sponsor, acting on its own behalf and on behalf of the Company, and the Consultant mutually executed and
delivered that other certain Marketing Agreement, dated February 27, 2007, which the Company Sponsor, the Company and the
Consultant now propose to modify, amend, and restate
in its entirety by the execution and delivery hereof;
NOW THEREFORE, for and (consideration of the mutual agreements
herein and) other good, valuable,
sufficient, and received consideration, the Company Sponsor, the Company, and the Consultant hereby agree
as follows:
Section 1. Marketing Services. At the outset of this Agreement, the Consultant shall promptly familiarize itself with the Confidential Business
Plan for Proinvest Realty Advisors LLC and Confidential Business Plan for Proinvest Realty Fund LLC (“Business Plan”) heretofore
provided by the Company Sponsor to the Consultant.
The Company Sponsor shall endeavor to timely and fully respond to information
and document requests from the Consultant with respect to the Business Plan, the
(transactions contemplated thereby, and marketing issues) identified by the Consultant so as to enable the Consultant to perform its obligations
hereunder. Based upon the Business Plan,
the Consultant has prepared and delivered to the Company Sponsor and the Company a
comprehensive marketing plan (“Marketing Plan”) for the marketing of
the Units to prospective investors (“Prospective Investors”) in the Company.
The Marketing Plan includes (a) specific marketing recommendations of the Consultant as to
achieving a full subscription by Prospective Investors to the Offering, (b)
a detailed budget of the expected costs and expenses for full implementation of the Marketing
Plan, and (c) a detailed timeline (schedule) for full implementation of the Marketing Plan. All
permanent policies or
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actions required as a result of the Marketing Plan, and recommendations made to the
Consultant by third parties, are subject to the approval of the Company Sponsor.
The Marketing Plan includes (a) an analysis of comparable and competitive offerings similar to the
Offering, (b) recommendations for structural changes, if any, to the Company, and (c) a plan for
the active advertisement and marketing of the Units in compliance with the requirements and
limitations of all applicable state and federal securities regulation laws (together, “Securities
Laws”), including advertising devices, brochures, and other collateral materials and marketing
presentations (all together, “Other Offering Materials”), and (d) a plan for securing Prospective
Investors as contemplated by the preceding paragraph. In implementing the Marketing Plan, the
Consultant shall, as necessary and appropriate, consult with Prospera Financial Services Inc
(“Managing Broker-Dealer”), a Texas corporation, the broker-dealer who will manage the sale of the
Units through licensed broker-dealers and other third party registered intermediaries. The
Consultant shall diligently and timely cooperate with and assist the Company Sponsor and the
Company in the implementation of the Marketing Plan, and shall perform all such functions, duties,
and discharge all such responsibilities, as shall be allocated to the Consultant under the
Marketing Plan.
Any term or condition hereof to the contrary notwithstanding, the Consultant hereby expressly
acknowledges and agrees that the Business Plan, the Marketing Plan, and any and all work product
of any kind, character, or description produced by or through the efforts of the Consultant
incident to the provision of the Marketing Services, including without limitation prospective
purchaser lists, databases, contact information, document layouts and designs, sales materials,
published or unpublished financial information, published or unpublished business plans other than
the Business Plan, published or unpublished marketing plans other than the Marketing Plan,
financial and other projections, marketing data, guides, manuals, charts, graphics, research
information, business procedures, trademarks and related rights, service marks and related rights,
copyrights and related rights, patents and related rights, URL’s, tradenames, telephone numbers,
and business information generally, whether in tangible, intangible, visual, or electronic format,
are and shall remain the exclusive property of the Company Sponsor and the Company.
Section 2. No General Solicitation. Neither the Consultant nor any person or entity
affiliated directly or indirectly with the Consultant (any one, “Consultant Affiliate”) may engage
in any “general solicitation” or “advertising,” as each of such terms is defined in and interpreted
under the Securities Laws, including most particularly the Securities Act of 1933, in any effort by
the Company, the Managing Broker-Dealer, or any other party to procure Prospective Investors.
Section 3. Certain Sales of Units on Net Asset Value Basis. The Company shall cause the
Managing Broker-Dealer to arrange sales (“Fee Remission Sales”) of the Units to the principals
(“Consultant Principals”) of the Consultant, if so requested by the Consultant, for the personal
account of the Consultant Principals and on a net asset value basis, i.e., without payment of any
fee to the Managing Broker-Dealer, any broker dealer
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selling
commissions or concessions, or any participating broker dealer marketing fees or expenses (“Net Asset
Value Basis”).
With respect to any Fee
Remission Sales of Units on a Net Asset Value Basis to the
Consultant Principals or to the principals of the Company Sponsor or the
Managing Broker Dealer, for the personal account of any such principals, if
so requested by such principals, shall also be made without payment
of any Consultant Fees otherwise payable to the Consultant hereunder.
Any Fee Remission Sales shall be subscribed to by means of a subscription agreement specifically prepared
by the Company Sponsor for Fee Remission Sales.
Section 4. Confidential Information.
The Consultant shall at all times prior to , and after, a Termination (hereinafter
defined) maintain as confidential and proprietary solely to the
Company Sponsor and the Company any and all information, data,
plans, surveys, and work product (all together, “Confidential
Information”) of
whatever kind, character, or description, including the Business Plan
and the Marketing Plan, resulting from the rendition of the Marketing Services
or provided to the Consultant by or at the behest of the Company sponsor, the
Company, the Managing Broker-Dealer, or any other party incident to the Offering
or the business and affairs of the Company Sponsor and the Company
generally. Without limitation, the Confidential Information shall include (a) any existing,
planned, or proposed strategic, marketing, and other business plans and strategies of the Company Sponsor and
the Company, including any such plans and strategies proposed or developed by the Consultants, (b) the
identities of persons and entities with whom the Company Sponsor and the Company
presently does, or with whom the Company Sponsor and the Company propose doing,
business, (c) any transactional structural proposals or models of or
by the Company Sponsor, the Company, and the Consultant, (d) any existing,
planned, or proposed business operations, products,
or services of the Company Sponsor and the Company, (e) any
financial information, projections, pro forma and other analyses, compilations, models, statements, and reports to
or by the Company Sponsor, the Company, and
the Consultant, (f) any existing, planned ,or proposed business operations,
systems strategies, or methodologies of the Company Sponsor and the Company, (g) any existing,
planned, or proposed customer, client, or Prospective Investor lists
of the Company Sponsor and the Company, and (g) generally, as to all of the
information and materials described in the preceding subparts
(a) through (f) of this Section 3, any such information and
materials in whatever form, format, or medium, including without
limitation written, verbal, electronic,
mechanical, or graphic form or format. To the extent
requested by the Company Sponsor and the Company, all Confidential Information shall be copyrighted by the Consultant solely
in the name of the Company Sponsor and/or the Company.
Section 5. Compensation and Expense Reimbursement of the Consultant.
The Consultant is hereby appointed the exclusive marketing agent for the Company.
The Company shall pay, or cause to be paid, to the Consultant (a) current
marketing consultant fees (“Consultant Fees”) in amounts
equal to 0.25% (or $25.00) per Unit sold and for which the
Company has actually received funds, plus (b) trailing marketing
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Consultant fees (“Trailing Consultant Fees”), payable (i) solely from the subordinated
aggregate 30% residual interest in the company retained by the
Company Sponsor, the Consultant, and Prospera Financial Services Inc, and (ii) in amounts equal to 2.0%
of the cash flow received by the Company from time to time derived solely from the disposition
of any real estate asset (“Company Asset”)
owned by the Company, and after payment by the
Company of (A) all indebtedness related to the Company Asset being
sold, (B) all selling expenses related to the Company Asset being sold,
(C) the establishment of reasonable, necessary, and prudent capital
reserves by the Company from the proceeds received by the Company from the Company Asset being
sold, and (D) the payment and distribution with respect to the Units of all amounts necessary for the
Units to achieve an 8% internal rate of return. The company shall
also pay or
reimburse to the Consultant all of the reasonable, necessary, normal, and appropriately documented expenses
(“Consultant Expenses”) incurred by the Consultant related to the Offering and the rendition by the Consultant of the Marketing
Services. The Consultant shall deliver to the Company Sponsor a statement of
the Consultant Expenses on or before the last calendar day
of each calendar month and the Company Sponsor shall pay or cause the Consultant Expenses noted
in such statement to be paid on or before the
15th calendar day of the next succeeding
calendar month. The
Consultant Fees and the Consultant Trailing
Fees shall be paid on or before the
15th calendar day of the calendar month next
succeeding the calendar month for which such fees become due and payable. The
Consultant shall be entitled to payment of Consultant Fees and Trailing
Consultant Fees calculated as specified herein until the
sale of the last asset of the Company, irrespective
of a Termination (as hereinafter defined).
The payments to be made under this paragraph are expressly subject to,
and may be limited by, the rules
and regulations of the National Association of Securities Dealers.
Section 6. Termination.
This Agreement may be terminated (“Termination”) by either the Company Sponsor, the
Company, or the Consultant at any time after not less than
90 days prior written notice by the Company Sponsor,
the Company, or the
Consultant to each of the others. Upon a Termination, the Consultant shall deliver
to the Company Sponsor and/or the Company within 15 days
thereafter (a) an accounting itemizing (i) any Consultant Fees and Trailing Consultant
Fees accrued or earned and unpaid as of the date
of the Termination, plus (ii) all Consultant Expenses unpaid as of the date of the Termination,
and (b) all Confidential Information in the possession of or reasonably available to
the Consultant.
Section 7. Notices.
All notices required, permitted or convenient under this Agreement shall be
in writing and shall be deemed delivered when deposited into a regularly maintained receptacle of the United States Postal Service
as first class, postage pre-paid, return
receipt requested certified mail, and
addressed (a) if to the Company Sponsor: Proinvest Realty Advisors LLC, 0000 Xxxxxxx
Xxx, Xxx 0000, Xxxxxx XX 00000, Attn: X X Xxxxx,
Pres & CEO, (b) if to the Company: Proinvest Realty Fund LLC, 0000 Xxxxxxx Xxx,
Xxx 0000, Xxxxxx XX 00000, Attn: X X Xxxxx, Pres & CEO, and (c) if to the Consultant:
Critical Data, Inc, Undercliff Mansion, 000 X
0xx Xx, Xxxxxxx XX 00000,
Attn: Xxxxxxx X Xxxxxxx, President.
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Section 8. Status of the Parties.
Nothing in this Agreement shall be deemed or construed to create a partnership or joint Venture between the
Company and the Consultant. At all times during the
effectiveness of this Agreement, the consultant shall be,
and shall act solely as, an
independent
contractor with the Company Sponsor and the Company.
Section 9.
No Third-party Beneficiaries. This Agreement is personal to the Consultant, the Company Sponsor, and the
Company and is for the sole but mutual benefit of the Consultant, the
Company Sponsor, and the Company. No third
party shall, under any circumstances,
constitute a third-party beneficiary of
this Agreement. This Agreement may not be transferred, assigned,
conveyed, pledged, or hypothecated, by operation of law or
otherwise, by the Consultant to any other party.
Section 10. Applicable Law and Venue.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas. Venue
for resolution of any dispute hereunder shall lie exclusively in Dallas County, Texas.
Section 11.
Counterparts. This Agreement may be executed in counterparts, and
each such counterpart shall constitute an original.
IN WITNESS
WHEREOF, this Agreement has been executed by the Company Sponsor
and the Consultant on the date first recited.
| PROINVEST REALTY ADVISORS LLC, a Texas limited liability company |
||||
| By: | /s/ X X Xxxxx | |||
| X X Xxxxx | ||||
| President & Chief Executive Officer | ||||
| PROINVEST REALTY FUND LLC, a | ||||
| Delaware limited liability company | ||||
| By: | /s/ X X Xxxxx | |||
| X X Xxxxx | ||||
| President & Chief Executive Officer | ||||
| CRITICAL DATA INC, a Washington corporation |
||||
| By: | /s/ Xxxxxxx X Xxxxxxx | |||
| Xxxxxxx X Xxxxxxx | ||||
| President | ||||
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