EXHIBIT 10.26
CONTRACTOR AGREEMENT
This Contractor Agreement (the "Agreement") is entered into effective
as of the 6th day of November, 2000, by and between NEWMARK HOMES CORP., a
Nevada corporation ("NEWMARK") and TECHNICAL OLYMPIC S.A., a Greek corporation
("CONTRACTOR").
RECITALS
WHEREAS, NEWMARK desires for its subsidiaries and affiliates (the
"Newmark 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 Newmark Entities;
WHEREAS, for such purpose, NEWMARK will cause the Newmark Entities to
assign their respective rights under certain construction and other contracts
currently in effect and certain future construction and other 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 Newmark Entities (such
contracts collectively with the Assigned Construction Contracts, the
"Contracts");
WHEREAS, CONTRACTOR and NEWMARK 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, NEWMARK and CONTRACTOR hereby
agree as follows:
1. Engagement.
NEWMARK hereby engages CONTRACTOR, and CONTRACTOR hereby accepts such
engagement and agrees to perform the construction and related services
described in Section 3 below (the "Services"), on behalf of and for the
account of NEWMARK and the Newmark Entities in accordance with the
terms and conditions of this Agreement.
2. General Standards.
CONTRACTOR will provide the Services and perform its obligations
hereunder with reasonable diligence. NEWMARK 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 for the construction and
to purchase such materials, supplies and labor pursuant to the
Contracts as may be directed by the respective Newmark
Entities from time to time.
b. In the event any of the Newmark 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 Newmark 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 Newmark Entity agree that the
same is in their best interest, a Newmark 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 Newmark Entity 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
Newmark Entity's sole discretion. CONTRACTOR shall comply with
instructions it may receive from the respective Newmark 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 Newmark Entity.
c. With regard to any materials and supplies purchased by
CONTRACTOR on behalf of a Newmark Entity for the construction,
the respective Newmark 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 Newmark 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 NEWMARK, but only to the
extent CONTRACTOR consents to perform such incidental
services.
4. Indemnification.
x. XXXXXXX shall indemnify and hold CONTRACTOR 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 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 Newmark
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 Newmark
Entities; or (iii) termination of any Contract by the other
party thereto due to a failure of any of the Newmark Entities
to pay for products of services delivered or sold under such
Contract.
b. CONTRACTOR shall indemnify and hold NEWMARK and the Newmark
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
2
fees arising from, or related to, the assignment of the
Contracts and the assumption of the liabilities of the Newmark
Entities under the Contracts by CONTRACTOR, including but not
limited to any claims of breach 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 provisions 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 NEWMARK 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 NEWMARK of any
legal or contractual duty whatsoever, including duties to comply with
applicable laws, rules, regulations, orders, policies, procedures and
financial and accounting reporting requirements.
7. Successors and Assigns.
Neither NEWMARK 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:
3
If to NEWMARK: Newmark Homes Corp.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxx
If to CONTRACTOR: 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.
4
EXECUTED effective as of the 6th day of November, 2000.
NEWMARK: NEWMARK HOMES CORP.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
CONTRACTOR: TECHNICAL OLYMPIC S.A.
By: /s/ Andreas Stengos
------------------------------
Name: Andreas Stengos
Title: Managing Director
5
