EXHIBIT 10.2(a)
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 CENTEX DEVELOPMENT COMPANY,
L.P., a Delaware limited partnership ("CDCLP"), and 3333 HOLDING CORPORATION, a
Nevada corporation ("Holding").
RECITALS
A. CDCLP desires to engage Holding to perform certain services for
CDCLP and its subsidiaries and affiliates, as hereinafter set forth.
B. Holding 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, CDCLP and Holding 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. Holding shall provide, either directly or through its
affiliates, such tax, accounting, bookkeeping, legal, treasury, information
technology support, facilities management, insurance, employee benefits, public
relations, executive and managerial oversight and similar services to CDCLP in
connection with its business as may from time to time be requested by CDCLP.
3. Liability of Holding. Holding shall not be liable, responsible or
accountable in damages or otherwise to CDCLP for any act performed by Holding on
behalf of CDCLP and in a manner reasonably believed by Holding to be within the
scope of the authority granted to it by this Agreement and in the best interests
of CDCLP, provided that Holding was not guilty of gross negligence or willful or
wanton misconduct with respect to such act.
4. Indemnification. CDCLP shall indemnify, save harmless and defend
Holding and each of Holding'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 Holding of its duties and obligations under this Agreement, provided that
such Indemnitee's conduct did not constitute gross negligence or willful or
wanton misconduct.
5. Compensation. Holding 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
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accordance with Section 1, $37,500 per quarter thereafter. All such shall be
paid by CDCLP to Holding within 10 days after the end of each calendar quarter.
In addition, CDCLP shall pay to Holding an amount equal to the reasonable costs
and expenses incurred and paid by Holding in connection with the performance of
its duties and obligations under this Agreement, including but not limited to
any taxes paid by Holding in connection with the performance of its duties and
obligations under this Agreement, including but not limited to any taxes paid by
Holding on behalf of CDCLP and the allocable portion of Holding's bookkeeping,
clerical and other general and administrative expenses. Holding shall submit
invoices to CDCLP 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. CDCLP shall pay to Holding within 10 days after
receiving any such invoice the amount set forth on such invoice that Holding is
entitled to receive under this Section 5. If CDCLP fails to make such payment
within such 10 day period, the amount so owing by CDCLP to Holding shall bear
interest from and after the day on which Holding paid such costs and expenses on
behalf of CDCLP 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, Holding
may, without the consent of CDCLP, assign and delegate the performance of and
the responsibility for any duties and obligations of Holding 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 Holding to CDCLP and Holding 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, CDCLP 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
("Centex Corporation"), CDCLP, 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 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.
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(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 Holding's
right to collect any amounts owed to it under this Agreement. Within 30 days
following the termination of this Agreement, Holding shall deliver to CDCLP all
instruments, documents, reports, books, accounts and records, and copies
thereof, that Holding has received from or that pertain to CDCLP.
8. Confidentiality. Holding agrees that any information regarding CDCLP
that Holding obtains or is furnished in connection with the performance of its
duties and obligations under this Agreement, including, but not limited to,
information regarding CDCLP's business and operations is confidential and
proprietary, and Holding agrees to maintain the confidentiality of such
information and not to disclose such information to any other party without the
prior written consent of CDCLP, except to the extent that such disclosure is
necessary to enable Holding 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 CDCLP: Centex Development Company, L.P.
2728 N. Harwood, 3rd Floor
Dallas, Texas 75201
Attention: General Counsel
To Holding: 3333 Holding Corporation
2728 N. Harwood, 3rd Floor
Dallas, Texas 75201
Attention: Chief Financial Officer
10. Nature of Relationship. The parties hereto intend that Holding's
relationship to CDCLP 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 Holding and CDCLP or their successors or
assigns, and neither Holding nor any officer or employee of Holding shall be
considered at any time to be an employee of CDCLP.
11. Amendments. This Agreement cannot be amended, changed or modified
except by another agreement in writing, duly signed by both parties hereto.
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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 CDCLP and Holding relating to Holding's
performance of services for CDCLP (including, without limitation, that certain
Management Agreement dated April 1, 1994 and any amendments thereto). Holding
and CDCLP agree that all such previous agreements are hereby terminated.
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IN WITNESS WHEREOF, CDCLP and Holding have executed this Agreement as of
the day and year first set forth.
CDCLP:
CENTEX DEVELOPMENT COMPANY, L.P.,
a Delaware limited partnership
By: 3333 Development Corporation,
a Nevada corporation,
its general partner
By:
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Name:
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Title:
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HOLDING:
3333 HOLDING CORPORATION,
a Nevada corporation
By:
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Name:
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Title:
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