EXHIBIT 10.1
AMENDED AND RESTATED SERVICES AGREEMENT
This AMENDED AND RESTATED SERVICES AGREEMENT (this "Agreement") is made
and entered into as of April 1, 2001 by and between 3333 HOLDING CORPORATION, a
Nevada corporation ("Holding"), and CENTEX SERVICE COMPANY, a Nevada corporation
("Service Company").
RECITALS
A. Holding desires to engage Service Company to perform certain
services for Holding and its subsidiaries and affiliates, as hereinafter set
forth.
B. Service Company desires to accept such engagement upon the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Holding and Service
Company do hereby agree as follows:
1. Term of Agreement. The initial term of this Agreement shall extend
from the date hereof to the close of business on March 31, 2002, provided that
this Agreement shall continue thereafter for successive one-year terms unless
and until terminated in accordance with the provisions of Section 7 hereof.
2. Services. Service Company shall provide, either directly or through
its affiliates, such tax, accounting, bookkeeping, legal, treasury, information
technology support, facilities management, insurance, employee benefits, public
relations, clerical and similar services to Holding in connection with its
business as may from time to time be requested by Holding.
3. Liability of Service Company. Service Company shall not be liable,
responsible or accountable in damages or otherwise to Holding for any act
performed by Service Company on behalf of Holding and in a manner reasonably
believed by Service Company to be within the scope of the authority granted to
it by this Agreement and in the best interests of Holding, provided that Service
Company was not guilty of gross negligence or willful or wanton misconduct with
respect to such act.
4. Indemnification. Holding shall indemnify, save harmless and defend
Service Company and each of Service Company's shareholders, directors, officers,
employees, agents, attorneys and insurers (individually, an "Indemnitee")
against any and all losses, damages, liabilities, judgments, fines, penalties,
amounts paid in settlement and expenses (including reasonable attorneys' fees),
including losses, damages, liabilities, judgments, fines, penalties, amounts
paid in settlement and expenses (including reasonable attorneys' fees) incurred
as the result of the negligence of any Indemnitee, arising out of or in
connection with anything done or omitted by such Indemnitee in connection with
the performance by Service Company of its duties and obligations under this
Agreement, provided that such Indemnitee's conduct did not constitute gross
negligence or willful or wanton misconduct.
AMENDED AND RESTATED SERVICES AGREEMENT - Page 1
5. Compensation. Service Company shall receive a fee for its services
under this Agreement as follows: (i) from April 1, 2001 through September 30,
2001, $50,000 per quarter; (ii) from October 1, 2001 through March 31, 2002,
$12,500 per quarter; and (iii) if the term of this Agreement is renewed in
accordance with Section 1, $12,500 per quarter thereafter. All such payments
shall be paid by Holding to Service Company within 10 days after the end of each
calendar quarter. In addition, Holding shall pay to Service Company an amount
equal to the reasonable costs and expenses incurred and paid by Service Company
in connection with the performance of its duties and obligations under this
Agreement, including but not limited to any taxes paid by Service Company in
connection with the performance of its duties and obligations under this
Agreement, including but not limited to any taxes paid by Service Company on
behalf of Holding and the allocable portion of Service Company's bookkeeping,
clerical and other general and administrative expenses. Service Company shall
submit invoices to Holding from time to time setting forth in reasonable detail
the costs and expenses incurred and paid by it for which it claims the right to
receive payment under this Section 5. Holding shall pay to Service Company
within 10 days after receiving any such invoice the amount set forth on such
invoice that Service Company is entitled to receive under this Section 5. If
Holding fails to make such payment within such 10 day period, the amount so
owing by Holding to Service Company shall bear interest from and after the day
on which Service Company paid such costs and expenses on behalf of Holding until
such amount has been paid in full at a rate equal to the lesser of the prime
rate announced or published by Bank of America, N.A. (or its successor) from
time to time or the maximum rate of interest permitted under applicable law.
6. Assignment and Delegation. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that this Agreement may not be assigned by either
party without the prior written consent of the other party hereto. Any consent
granted by either party to an assignment by the other party shall not be deemed
a consent to any subsequent assignment. Notwithstanding the foregoing, Service
Company may, without the consent of Holding, assign and delegate the performance
of and the responsibility for any duties and obligations of Service Company
hereunder to any corporation, firm, joint venture or partnership 50% or more of
whose voting stock (or its equivalent) is owned directly or indirectly by, or
which is otherwise controlled by, Centex Corporation. Upon execution of any such
assignment and delegation, notice thereof in the form of an executed copy of the
document or instrument effecting such assignment and delegation shall be
delivered promptly by Service Company to Holding and Service Company shall be
released from any further obligation or responsibility under this Agreement for
the performance of the duties and obligations so assigned and delegated.
7. Termination. This Agreement may be terminated by any of the
following methods:
(a) Subject to the limitations set forth herein, this Agreement
may be terminated by written notice from either party to the
other prior to March 1 of any year. Any such termination will
be effective on the following March 31. Notwithstanding the
foregoing, Holding may not terminate this Agreement pursuant
to this Section 7(a) prior to the later of: (i) the date of
Detachment of the Warrants (following which no Warrants remain
in the Deposit Account) pursuant to Section 8.3(b) of that
certain Nominee Agreement dated November 30, 1987, as affected
by that certain Supplement to Nominee Agreement dated as of
July 27, 2000 (collectively, the "Nominee Agreement") entered
into by and between Centex Corporation, a Nevada corporation
of which Service Company is a subsidiary ("Centex
Corporation"), Centex Development Company, L.P., a Delaware
limited partnership (the "Partnership"), and certain other
parties. As used in this subsection (a), capitalized terms
shall have the meanings assigned to them in the Nominee
Agreement; and (ii) the date of Payout, as that term is
defined in Article II of that certain Second Amended
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and Restated Agreement of Limited Partnership of Centex
Development Company, L.P., dated February 24, 1998.
(b) This Agreement may be terminated at any time by written
agreement of the parties hereto.
(c) If either party breaches any of the terms of this Agreement,
the other party hereto shall give the breaching party written
notice of such breach. If the breaching party fails to remedy
the breach within 30 days after receiving such notice the
other party may terminate this Agreement; provided, however,
that if at the expiration of such 30 day period the breaching
party is diligently using its best efforts to remedy the
breach, the other party may not terminate this Agreement on
account of such breach during the additional period, not to
exceed 60 days, in which the breaching party continues without
interruption to use its best efforts to remedy the breach.
(d) If either party hereto shall be dissolved and its business
terminated, this Agreement shall automatically terminate upon
the effectiveness of such dissolution.
No termination of this Agreement shall have the effect of terminating Service
Company's right to collect any amounts owed to it under this Agreement. Within
30 days following the termination of this Agreement, Service Company shall
deliver to Holding all instruments, documents, reports, books, accounts and
records, and copies thereof, that Service Company has received from or that
pertain to Holding.
8. Confidentiality. Service Company agrees that any information
regarding Holding that Service Company obtains or is furnished in connection
with the performance of its duties and obligations under this Agreement,
including, but not limited to, information regarding Holding's business and
operations is confidential and proprietary, and Service Company agrees to
maintain the confidentiality of such information and not to disclose such
information to any other party without the prior written consent of Holding,
except to the extent that such disclosure is necessary to enable Service Company
to perform its duties and obligations under this Agreement or to comply with its
legal obligations. Information that is generally known in the industry or to the
public shall not be deemed confidential or proprietary information for purposes
of this Section 8.
9. Notices. Any notice, statement or demand required or permitted to be
given under this Agreement shall be in writing and shall be personally
delivered, sent by mail, or sent by telegram or telex, confirmed by letter,
addressed to the party in the manner and at the address shown below, or at such
other address as the party shall have designated in writing to the other party:
To Holding: 3333 Holding Corporation
2728 N. Harwood, 3rd Floor
Dallas, Texas 75201
Attention: General Counsel
To Service Centex Service Company
Company: 2728 N. Harwood, 9th Floor
Dallas, Texas 75201
Attention: General Counsel
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10. Nature of Relationship. The parties hereto intend that Service
Company's relationship to Holding shall be that of an independent contractor.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between Service Company and Holding or
their successors or assigns, and neither Service Company nor any officer or
employee of Service Company shall be considered at any time to be an employee of
Holding.
11. Amendments. This Agreement cannot be amended, changed or modified
except by another agreement in writing, duly signed by both parties hereto.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof.
13. Headings. The section headings contained herein are for convenience
of reference only and are not intended to define, limit, or describe the scope
or intent of any provision of this Agreement.
14. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Texas.
15. Severability. Any provision of this Agreement that is prohibited or
unenforceable under the laws of any jurisdiction shall be ineffective in such
jurisdiction to the extent necessary to render such provision valid and
enforceable, and if such provision cannot be rendered valid and enforceable in
such jurisdiction by limitation it shall be ineffective therein. The invalidity
or unenforceability of any provision of this Agreement shall not render invalid
or unenforceable any other provision of this Agreement.
16. Previous Agreements. This Agreement supersedes and replaces all
prior written agreements between Holding and Service Company relating to Service
Company's performance of services for Holding (including, without limitation,
that certain Service Agreement dated May 5, 1987 and any amendments thereto).
Service Company and Holding agree that all such previous agreements are hereby
terminated.
[Signature Page Follows]
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IN WITNESS WHEREOF, Holding and Service Company have executed this
Agreement as of the day and year first set forth.
3333 HOLDING CORPORATION,
a Nevada corporation
By:
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Name:
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Title:
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CENTEX SERVICE COMPANY,
a Nevada corporation
By:
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Name:
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Title:
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