EXHIBIT 10.27
SUPPLEMENTAL CONTRACTOR AGREEMENT
This Supplementary - Explanatory Contractor Agreement (the "Agreement") is
entered into effective as of the 4th day of January 2001, by and between NEWMARK
HOMES CORP., a former Nevada corporation and now a Delaware Corporation
("NEWMARK") and TECHNICAL OLYMPIC S.A., a Greek corporation ("CONTRACTOR")
through its registered branches in Texas, Tennessee, North Carolina or Florida.
RECITALS
WHEREAS, on November 6th, 2000, a Contractor Agreement between NEWMARK and the
CONTRACTOR, was signed.
WHEREAS, NEWMARK and the CONTRACTOR desire to complete and clarify hereof the
Contractor Agreement dated November 6th 2000.
WHEREAS, NEWMARK desires for its subsidiaries and affiliates in Texas,
Tennessee, North Carolina or Florida the ("Newmark Entities") to receive
economic benefits by utilizing the services of CONTRACTOR, for a total contract
value of ONE HUNDRED FIFTY TWO MILLION FOUR HUNDRED TWENTY FIVE THOUSAND DOLLARS
($152.425.000); that is:
a. Texas - one hundred three million four hundred ninety three thousand -
dollars ($103.493.000)
b. Tennessee - six million six hundred fourteen thousand dollars
($6.614.000)
c. North Carolina - three million five hundred forty four thousand dollars
($3.544.000)
d. Florida - thirty eight million seven hundred seventy four thousand
dollars ($38.774.000)
WHEREAS, CONTRACTOR is willing to provide such services for the business
operations of the Newmark Entities in Texas, Tennessee North Carolina or
Florida;
WHEREAS, for such purpose, NEWMARK will cause the Newark Entities in Texas,
Tennessee North Carolina or Florida 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 in Texas, Tennessee, North
Carolina or Florida (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 assure 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 Texas, Tennessee, North
Carolina or Florida in accordance with the terms and conditions of this
Agreement.
2. General Standards.
a. 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 for a total contract value of one hundred fifty two
million four hundred twenty five thousand dollars
($152.425.000) as may be directed by the respective Newmark
Entities in Texas, Tennessee, North Carolina or Florida from
time to time.
b. In the event any of the Newmark Entities in Texas, Tennessee,
North Carolina or Florida 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 Texas, Tennessee, North Carolina or Florida,
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 in Texas, Tennessee, North Carolina
or Florida agree that the same is in their best interest, a
Newmark Entity in Texas, Tennessee, North Carolina or Florida
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 in Texas,
Tennessee, North Carolina or Florida. 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 in Texas, Tennessee, North Carolina or Florida sole
discretion. CONTRACTOR shall comply with instructions it may
receive from the respective Newmark Entity in Texas,
Tennessee, North Carolina or Florida 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 in Texas, Tennessee, North Carolina or Florida.
c. With regard to any materials and supplies purchased by
CONTRACTOR on behalf of a Newmark Entity in Texas, Tennessee,
North Carolina or Florida for the construction, the respective
Newmark Entity in Texas, Tennessee, North
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Carolina or Florida 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 in Texas, Tennessee, North Carolina or Florida 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. Contractor Fee
For the services rendered by the CONTRACTOR as described in Section 3
above, NEWMARK will reimburse to him amount equal to the total of the
CONTRACTOR'S expenses according to the present agreement and supported
by the respective Invoices. Additionally the general expenses for the
establishment and operation of the CONTRACTOR'S subsidiaries will not
be invoiced to NEWMARK and will be incurred by the CONTRACTOR.
5. 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 in Texas, Tennessee, North Carolina or Florida 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 in Texas,
Tennessee, North Carolina or Florida; or (iii) termination of
any Contract by the other party thereto due to a failure of
any of the Newmark Entities in Texas, Tennessee, North
Carolina or Florida to pay for products of services delivered
or sold under such Contract.
b. CONTRACTOR shall indemnify and hold NEWMARK and the Newmark
Entities in Texas, Tennessee, North Carolina or Florida
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, the assignment of
the Contracts and the assumption of the liabilities of the
Newmark Entities in Texas, Tennessee, North Carolina or
Florida 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.
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c. The above provisions concerning indemnification shall survive
the termination of this Agreement.
6. Term and Termination
This Agreement shall commence on the date hereof and shall continue to
be in effect until the completion of the project of a total value of
one hundred fifty two million four hundred twenty five thousand
dollars: ($152.425.000).
7. 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 venture, 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.
8. 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.
9. 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.
10. 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:
If to NEWMARK: Newmark Homes Corp,
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
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If to CONTRACTOR: Technical Olympic S.A.
0000 Xxxx Xxxxxxx Xx
Xxxxx 000, Xxxxxx Xxxxx
Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx Xx Xxxx
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.
11. 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.
12. This Agreement, and the application or interpretation thereof, shall be
governed by the laws of the State of Texas.
EXECUTED effective as of the 4th day of January, 2001.
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
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