EXHIBIT 10.28
CONTRACTOR AGREEMENT
This Contractor Agreement (the "Agreement") is entered into effective
as of the 22nd day of November, 2000, by and between XXXXX HOMES, INC., a
Florida corporation ("XXXXX") and TECHNICAL OLYMPIC S.A., a Greek corporation
("CONTRACTOR").
RECITALS
WHEREAS, XXXXX desires for its subsidiaries and affiliates (the "XXXXX
Entities") to receive economic benefits by utilizing the services of CONTRACTOR;
WHEREAS, CONTRACTOR is willing to provide such services for the
business operations of the XXXXX Entities;
WHEREAS, for such purpose, XXXXX will cause the XXXXX Entities to
assign their respective rights under certain construction contracts currently in
effect and certain future construction contracts (the "Assigned Construction
Contracts") to CONTRACTOR, and CONTRACTOR will assume the Assigned Construction
Contracts, subject to the terms and conditions set forth herein;
WHEREAS, CONTRACTOR will enter into certain other or additional
construction contracts for the operations of the XXXXX Entities (such contracts
collectively with the Assigned Construction Contracts, the "Contracts");
WHEREAS, CONTRACTOR and XXXXX desire to document their agreements;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that in consideration
of the mutual benefits to accrue to each of the parties hereof, the receipt and
sufficiency of which are hereby acknowledged, XXXXX and CONTRACTOR hereby agree
as follows:
1. Engagement.
XXXXX hereby engages CONTRACTOR, and CONTRACTOR hereby accepts
such engagement and agrees to perform the construction
services described in Section 3 below (the "Services"), on
behalf of and for the account of XXXXX and the XXXXX Entities
in accordance with the terms and conditions of this Agreement.
2. General Standards.
CONTRACTOR will provide the construction Services and perform
its obligations hereunder with reasonable diligence. XXXXX
will provide its services and perform its obligations
hereunder with reasonable diligence.
3. Services to be Performed by CONTRACTOR.
a. CONTRACTOR hereby agrees to provide the construction work
according to the Contracts as may be directed by the
respective XXXXX Entities from time to time.
b. In the event any of the XXXXX Entities desires to contract for
the construction and purchase of any goods and/or services on
a regular basis from any vendors not currently utilized, such
XXXXX Entity, in its own free unlimited discretion, shall have
the right to negotiate and execute a contract or agreement
with such vendor on terms acceptable to it. If both CONTRACTOR
and the respective XXXXX Entity agree that the same is in
their best interest, an XXXXX Entity may then assign any such
contract to CONTRACTOR. In the alternative, in lieu of such
assignment, the parties can agree on a case-by-case basis to
have such contract executed by CONTRACTOR at inception.
However, notwithstanding anything herein to the contrary, each
XXXXX Entities shall have the right not to assign any future
contracts to CONTRACTOR or not to have the same executed by
CONTRACTOR at inception, in such XXXXX Entity's sole
discretion. CONTRACTOR shall comply with instructions it may
receive from the respective XXXXX Entity from time to time
with regard to the termination or renewal of any of the
Contracts or any contracts subsequently assigned or entered
into directly by CONTRACTOR as directed by the respective
XXXXX Entity.
c. With regard to any materials and supplies purchased by
CONTRACTOR on behalf of an XXXXX Entity for the construction,
the respective XXXXX Entity shall promptly pay all invoices
remitted by any suppliers when the same are due and payable
directly to the vendor on behalf of CONTRACTOR. CONTRACTOR
shall promptly forward copies of any such invoices to the
respective XXXXX Entity for processing in accordance with this
Agreement.
d. CONTRACTOR shall perform such incidental services to the ones
listed herein as reasonably requested from time to time by the
Board of Directors or management of XXXXX, but only to the
extent CONTRACTOR consents to perform such incidental
services.
4. Indemnification.
x. XXXXX shall indemnify and hold CONTRACTOR harmless form all
suits, actions, losses, increased costs, damages, claims, or
liability of any character, type or description, including
without limiting the generality of the foregoing, all expenses
of litigation, courts costs and attorney's fees arising from,
or related to (i) claims by any other parties to the Contracts
because of the assignment of the Contracts to CONTRACTOR; (ii)
any claims by any customer or homebuyer of the XXXXX Entities
of whatsoever kind, including but not limited to a breach of
warranty or a claim of indemnity, or the providing of goods,
products, services, or labor by the XXXXX Entities; or (iii)
termination of any Contract by the other party thereto due to
a failure of any of the XXXXX Entities to pay for products of
services delivered or sold under such Contract.
b. CONTRACTOR shall indemnify and hold XXXXX and the XXXXX
Entities harmless from all suits, actions, losses, increased
costs, damages, claims, or liability of any character, type or
description, including without limiting the generality of the
foregoing, all expenses of litigation, courts costs and
attorney's
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fees arising from, or related to, the assignment of the
Contracts and the assumption of the liabilities of the XXXXX
Entities under the Contracts by CONTRACTOR, including but not
limited to any claims of breech of contract by any of the
other parties to the Contracts due to the failure of
CONTRACTOR to perform under the Contracts.
c. The above provision concerning indemnification shall survive
the termination of this Agreement.
5. Term and Termination.
This Agreement shall commence on the date hereof and shall
continue to be in effect until terminated by either party.
Either party may terminate this Agreement upon sixty (60) days
prior written notice to the other party.
6. Nature of Services
CONTRACTOR and XXXXX agree that all services performed
hereunder shall be in Contractor's capacity as an independent
contractor, and it is not the purpose or intent of this
Agreement to create any franchise, joint venture, trust,
partnership, or employer/employee relationship for any
purposes whatsoever. Nothing in this Agreement shall be
construed to make either party hereto an agent, joint
venturer, partner, legal representative, employee or
policy-making participant of the other, and neither party
shall have the right to obligate or bind the other party in
any manner whatsoever. The performance by CONTRACTOR of its
duties under this Agreement shall not relieve XXXXX of any
legal or contractual duty whatsoever, including duties to
comply with applicable laws, rules, regulations, order,
policies, procedures and financial and accounting reporting
requirements.
7. Successors and Assigns
Neither XXXXX nor CONTRACTOR may assign its rights nor claims,
transfer or subcontract its obligations or delegate its duties
hereunder without the prior written consent of the other party
hereto.
8. No Third Party Beneficiary
The provisions of this Agreement are enforceable solely by the
parties to this Agreement, and no other person shall have the
right to enforce any provision of this Agreement or to compel
any party to this Agreement to comply with the terms of this
Agreement.
9. Notices
All notices, requests, clause, demands and other
communications hereunder shall be in writing and in English
and shall be deemed to have been duly given when delivered in
person, by overnight courier or telecopy to the respective
parties as follows:
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If to XXXXX: Xxxxx Homes, Inc.
000 X.X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx
If to CONTRACTOR : Technical Olympic S.A.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
With a copy to: Technical Olympic S.A.
00 Xxxxxxx Xxxxxx
Xxxxxx 00000 Xxxxxx
Facsimile: 000-000-000-0000
Attention: Andreas Stengos
Or to such other address as the person to whom notice is given
may have previously furnished to the other in writing in the
manner set forth above; provided however, that notice of any
change of address shall be effective only upon receipt
thereof.
10. Further Actions
At any time and from time to time, each party agrees, without
further consideration, to take such actions and to execute and
deliver such documents as may be necessary to effectuate the
purposes of this agreement.
11. This Agreement, and the application or interpretation thereof,
shall be governed by the laws of the State of Texas.
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EXECUTED effective as of the 22nd day of November, 2000.
XXXXX : XXXXX HOMES, INC.
By: /s/ Xxxxx XxXxxx
----------------------
Name: Xxxxx XxXxxx
Title: Vice President
CONTRACTOR: TECHNICAL OLYMPIC S.A.
By: /s/ Andreas Stengos
----------------------
Name: Andreas Stengos
Title: Managing Director
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