EXHIBIT 10.29
SUPPLEMENTAL CONTRACTOR AGREEMENT
This Supplementary - Explanatory Contractor Agreement (the "Agreement") is
entered into effective as of the 3rd day of January 2001, by and between XXXXX
HOMES INC., a Florida corporation ("XXXXX") and TECHNICAL OLYMPIC S.A., a Greek
corporation ("CONTRACTOR") through its registered branches in Texas or Florida.
RECITALS
WHEREAS, on November 22nd 2000, a Contractor Agreement between XXXXX and the
CONTRACTOR, was signed.
WHEREAS, XXXXX and the CONTRACTOR desire to complete and clarify hereof the
Contractor Agreement dated November 22nd 2000.
WHEREAS, XXXXX desires for its subsidiaries and affiliates in Texas or Florida
(the "XXXXX Entities") to receive economic benefits by utilizing the services of
CONTRACTOR, for a total contract value of ONE HUNDRED FORTY ONE MILLION THREE
HUNDRED NINETY THOUSAND DOLLARS ($141.390.000), that is:
a. Texas - fourteen million five hundred thousand dollars
($14.500.000)
b. Florida - one hundred twenty six million eight hundred ninety
thousand dollars ($126.890.000)
WHEREAS, CONTRACTOR is willing to provide such services for the business
operations of the XXXXX Entities in Texas or Florida;
WHEREAS, for such purpose, XXXXX will cause the XXXXX Entities in Texas or
Florida 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 in Texas or Florida (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 assure 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 Texas or Florida 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 for a total contract value of one
hundred forty one million three hundred ninety thousand
dollars ($141.390.000) as may be directed by the respective
XXXXX Entities in Texas or Florida from time to time.
b. In the event any of the XXXXX Entities in Texas 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 XXXXX Entity in Texas 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 XXXXX Entity in Texas or Florida agree that the
same is in their best interest, a XXXXX Entity in Texas 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 XXXXX Entity in Texas 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 XXXXX Entity's in Texas or Florida sole
discretion. CONTRACTOR shall comply with instructions it may
receive from the respective XXXXX Entity in Texas 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 XXXXX Entity in Texas or Florida.
c. With regard to any materials and supplies purchased by
CONTRACTOR on behalf of a XXXXX Entity in Texas or Florida for
the construction, the respective XXXXX Entity in Texas 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 XXXXX
Entity in Texas 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 XXXXX, but only to the
extent CONTRACTOR consents to perform such incidental
services.
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4. Contractor Fee.
For the services rendered by the CONTRACTOR as described in Section 3
above, XXXXX 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 XXXXX and will be incurred by the CONTRACTOR.
5. Indemnification.
x. XXXXX 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 Contacts to CONTRACTOR; (ii)
any claims by any customer or homebuyer of the XXXXX Entities
in Texas 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
XXXXX Entities in Texas or Florida; or (iii) termination of
any Contract by the other party thereto due to a failure of
any of the XXXXX Entities in Texas or Florida to pay for
products of services delivered or sold under such Contract.
b. CONTRACTOR shall indemnify and hold XXXXX and the XXXXX
Entities in Texas 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 XXXXX Entities in Texas 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.
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 forty one million three hundred ninety thousand dollars
($141.390.000).
7. 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
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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 XXXXX 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 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.
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 XXXXX: XXXXX Homes Inc.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
If to CONTRACTOR: Technical Olympic S.A.
0000 Xxxx Xxxxxxx Xx
Xxxxx 000, Xxxxxx Xxxxx
Xxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx XxXxxx
With a copy to: Technical Olympic S.A.
00 Xxxxxxx Xxxxxx
Xxxxxx 00000 Xxxxxx
Facsimile: 000-000-000-0000
Attention: Andreas Stengos
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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 3rd day of January, 2001.
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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