EX-10.2






Exhibit 10.2

Execution Version




AMENDMENT NO. 1 TO




FIRST LIEN TERM LOAN




CREDIT AGREEMENT




This Amendment No. 1 to First Lien Term Loan Credit Agreement, dated as of October
25, 2007 (this “Amendment”), is entered into among TOUSA, Inc., a Delaware
corporation (the “Administrative Borrower”), each Subsidiary Borrower (as defined in the
Credit Agreement (as defined below) and, together with the Administrative Borrower, the
“Borrowers”), the Lenders (as defined below) and Citicorp North America, Inc., as
Administrative Agent (in such capacity, the “Administrative Agent”), and amends the First
Lien Term Loan Credit Agreement dated as of July 31, 2007 (as amended to the date hereof and as the
same may be further amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”) entered into among the Borrowers, the institutions from time to time party thereto
as lenders (the “Lenders”), the Administrative Agent, and the other Agents and Arrangers
named therein. Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.



W I T N E S S E T H :




Whereas, the Borrowers, the Lenders party hereto and the Administrative Agent desire
to amend the Credit Agreement in order to effect the changes described below;



Now, Therefore, in consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto
hereby agree as follows:




	 	 	 	Section 1. Amendments to the Credit Agreement





(a) Section 1.1 of the Credit Agreement is hereby amended by inserting the following new
definitions in the appropriate alphabetical order:




“Third Quarter Disclosure Events” means the matters described on Schedule III
hereto.



(b) The definition of “Applicable Margin” in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:




“Applicable Margin” means, as of any date of determination, a per annum
interest rate equal to (A) for Eurodollar Rate Loans, 5.00%, and (B) for Base Rate Loans,
4.00%.”



(c) Section 4.5 of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:




“There has been no Material Adverse Change and there have been no events or
developments (other than the Transeastern Events or the Third Quarter Disclosure Events)
that in the aggregate have had a Material Adverse Effect since December 31, 2006.”



(d) Section 5.2 of the Credit Agreement is hereby amended by inserting the following proviso
immediately after the grid set forth therein:




“provided however that prior to December 31, 2007, no Default or Event of
Default shall exist with respect to the failure by the Administrative Borrower to maintain
the Total Leverage Ratio for the fiscal quarter ended September 30, 2007”



(e) Section 5.3 of the Credit Agreement is hereby amended by inserting the following proviso
immediately after the grid set forth therein:




“provided however that prior to December 31, 2007, no Default or Event of
Default shall exist with respect to the failure by the Administrative Borrower to maintain
the Interest Coverage Ratio for the fiscal quarter ended September 30, 2007 prior to
December 31, 2007”



(f) Section 5.4 of the Credit Agreement is hereby amended by adding the following proviso to
the end of the first sentence thereof:




“provided however that prior to December 31, 2007, no Default or Event of
Default shall exist with respect to the failure by the Administrative Borrower to maintain
such ratio for the fiscal quarter ended September 30, 2007”



(g) Section 5.5 of the Credit Agreement is hereby amended by adding the following proviso to
the end of the first sentence thereof:




“provided however that prior to December 31, 2007, no Default or Event of
Default shall exist with respect to the failure by the Administrative Borrower to maintain
such ratio for the fiscal quarter ended September 30, 2007.”



(h) The Credit Agreement is hereby amended by inserting the schedule attached hereto as
Exhibit A as Schedule III of the Credit Agreement.




	 	 	 	Section 2. Conditions Precedent to the Effectiveness of this Amendment





This Amendment shall be effective as of October 22, 2007 (the “Amendment Effective
Date”), but only when and if each of the following conditions precedent shall have been
satisfied or waived by the Administrative Agent (such date being the “Effective Date”):




(i) Executed Counterparts. The Administrative Agent shall have received this
Amendment duly executed by each Borrower, the Requisite Lenders and the Administrative
Agent.




(ii) Corporate and Other Proceedings. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory in all respects to the
Administrative Agent.




(iii) No Default or Event of Default. After giving effect to this Amendment, no
Default or Event of Default shall have occurred and be continuing.




(iv) Amendment Fee. Provided that the conditions precedent set forth in this
Section 2 shall have been satisfied or waived by the Administrative Agent no later than
October 24, 2007, the Administrative Borrower will pay to each Lender who has delivered
to the Administrative Agent an executed counterpart of this Amendment no later than
October 24, 2007, a fee equal to 50 bps (0.50%) of the outstanding principal amount of
such Lender’s Term Loans. Such fees, if payable, will be paid by the Administrative
Borrower on the Business Day following the Effective Date.




(v) Costs and Expenses Paid. The Borrowers shall have paid (A) to the
Administrative Agent all fees payable to the Lenders pursuant to clause (iv) above, (B)
all costs and invoiced out-of-pocket expenses of the Administrative Agent then due
under Section 10.3 of the Credit Agreement, including invoiced expenses incurred in
connection with the preparation, reproduction, execution and delivery of this Amendment
(including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel) and all other costs, expenses and fees then due under any Loan Document and
(C) to CNAI, as Administrative Agent, Revolving Credit Administrative Agent and Second
Lien Administrative Agent, a retainer equal to $500,000 for the fees and expenses of
counsel and the financial advisors to CNAI in such capacities.




(vi) Pro forma Borrowing Base Adjustment. The Administrative Agent shall have
received a pro forma manual update of the Borrowing Base calculation set forth in the
Borrowing Base Certificate for the period ending August 30, 2007, which shall
approximate changes as a result of: (A) impairments to GAAP values of Borrowing Base
Assets as of September 30, 2007, (B) sales and other partial releases of Mortgaged
Property through a recent date, (C) cash updated through a recent date and (D)
outstanding letters of credit issued and outstanding loans made under the Revolving
Credit Agreement through a recent date, which shall be in a format reasonably
satisfactory to the Administrative Agent.




	 	 	 	Section 3. Representations and Warranties





On and as of the Effective Date, after giving effect to this Amendment, each Borrower hereby
represents and warrants to the Administrative Agent and each Lender as follows:




(i) this Amendment has been duly authorized, executed and delivered by each
Borrower and constitutes the legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with its terms and the Credit Agreement
as amended by this Amendment and constitutes the legal, valid and binding obligation of
such Borrower enforceable against such Borrower in accordance with its terms, in each
case, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors’ rights and remedies
generally and subject to general principals of equity, regardless of whether considered
in a proceeding in equity or at law;




(ii) each of the representations and warranties contained in Article IV of the
Credit Agreement and each other Loan Document (other than the representations and
warranties set forth in Section 4.20 of the Credit Agreement) is true and correct in
all material respects on and as of the Effective Date, as if made on and as of such
date and except to the extent that such representations and warranties specifically
relate to a specific date, in which case such representations and warranties shall be
true and correct in all material respects as of such specific date; provided, however,
that references therein to the “Credit Agreement” shall be deemed to refer to
the Credit Agreement as amended hereby and after giving effect to the consents and
waivers set forth herein; and




(iii) no Default or Event of Default has occurred and is continuing.




	 	 	 	Section 4. Reference to the Effect on the Loan Documents





(a) As of the Amendment Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the
other Loan Documents to the Credit Agreement (including, without limitation, by means of words like
“thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and
construed as a single instrument. Each of the table of contents and lists of Exhibits and
Schedules of the Credit Agreement shall be amended to reflect the changes made in this Amendment as
of the Amendment Effective Date.



(b) Except as expressly amended hereby or specifically waived above, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force
and effect and are hereby ratified and confirmed.



(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrowers,
Joint Lead Arrangers or the agents under any of the Loan Documents, nor constitute a waiver or
amendment of any other provision of any of the Loan Documents or for any purpose except as
expressly set forth herein.



(d) This Amendment is a Loan Document.



(e) Each Subsidiary Borrower hereby reaffirms its obligations as a Guarantor under the
Guaranty in all respects.




	 	 	 	Section 5. Execution in Counterparts





This Amendment may be executed in any number of counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that all signature
pages are attached to the same document. Delivery of an executed counterpart by telecopy or
electronic transmission shall be effective as delivery of a manually executed counterpart of this
Amendment.




	 	 	 	Section 6. Governing Law





This Amendment and the rights and obligations of the parties shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.




	 	 	 	Section 7. Section Titles





The section titles contained in this Amendment are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the parties hereto,
except when used to reference a section. Any reference to the number of a clause, sub-clause or
subsection of any Loan Document immediately followed by a reference in parenthesis to the title of
the section of such Loan Document containing such clause, sub-clause or subsection is a reference
to such clause, sub-clause or subsection and not to the entire section; provided, however, that, in
case of direct conflict between the reference to the title and the reference to the number of such
section, the reference to the title shall govern absent manifest error. If any reference to the
number of a section (but not to any clause, sub-clause or subsection thereof) of any Loan Document
is followed immediately by a reference in parenthesis to the title of a section of any Loan
Document, the title reference shall govern in case of direct conflict absent manifest error.




	 	 	 	Section 8. Notices





All communications and notices hereunder shall be given as provided in the Credit Agreement.




	 	 	 	Section 9. Release





Upon the Effective Date, the Administrative Borrower and each Subsidiary Borrower hereby
absolutely and unconditionally releases, acquits and forever discharges the Administrative Agent
and each Lender from any and all manner of claims, demands, actions, causes of action and damages
that the Administrative Borrower or any Subsidiary Borrower may have as of the Effective Date on
account of or in any way arising out of any and all damages or consequences of any act or omission
related to this Amendment or the Credit Agreement or the transactions contemplated hereby or
thereby; provided, however, such release does not constitute a release of claims of
third parties or claims arising under chapter 5 of title 11 of the United States Code.




	 	 	 	Section 10. Severability





The fact that any term or provision of this Agreement is held invalid, illegal or
unenforceable as to any person in any situation in any jurisdiction shall not affect the validity,
enforceability or legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other situation or
jurisdiction or as applied to any person.




	 	 	 	Section 11. Successors





The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns.




	 	 	 	Section 12. Waiver of Jury Trial





Each of the parties hereto irrevocably waives trial by jury in any action or proceeding
with respect to this Amendment or any other Loan Document.



[SIGNATURE PAGES FOLLOW]




1




In Witness Whereof, the parties hereto have caused this Amendment to be
executed by their respective officers, trustees and general partners thereunto duly authorized, as
of the date first written above.



	 	 	 
	TOUSA, INC., as the Administrative Borrower

	By: /s/ Stephen M. Wagman

	
 
	 	Name: Stephen M. Wagman
	
 
	 	Title: Chief Financial Officer






	 	 	 
	Subsidiary Borrowers:
	ENGLE/GILLIGAN, LLC
	ENGLE HOMES COMMERCIAL CONSTRUCTION, LLC
	ENGLE HOMES RESIDENTIAL  CONSTRUCTION, L.L.C.
	ENGLE/JAMES LLC
	ENGLE SIERRA VERDE P4, LLC
	LB/TE #1, LLC
	LORTON SOUTH CONDOMINIUM, LLC
	MCKAY LANDING LLC
	NEWMARK HOMES, L.L.C.
	NEWMARK HOMES PURCHASING, L.P.
	NEWMARK HOMES, L.P.
	PREFERRED BUILDERS REALTY, INC.
	SILVERLAKE INTERESTS, L.C.
	TOI, LLC
	TOUSA, LLC
	TOUSA ASSOCIATES SERVICES COMPANY
	TOUSA HOMES, INC.
	TOUSA HOMES, L.P.
	TOUSA HOMES INVESTMENT #1, INC.
	TOUSA HOMES FLORIDA, L.P.
	TOUSA HOMES INVESTMENT #2, INC.
	TOUSA HOMES INVESTMENT #2, LLC
	TOUSA REALTY, INC.
	TOUSA INVESTMENT #2, INC.
	TOUSA HOMES ARIZONA, LLC
	TOUSA HOMES COLORADO, LLC
	TOUSA HOMES NEVADA, LLC
	TOUSA HOMES MID-ATLANTIC HOLDING, LLC
	TOUSA HOMES MID-ATLANTIC, LLC
	TOUSA MID-ATLANTIC INVESTMENT, LLC
	TOUSA/WEST HOLDINGS, INC.
	By:/s/Paul Berkowitz
	Name: Paul Berkowitz
	Title: EVP










2









	 
	Subsidiary Borrowers (continued):

	NEWMARK HOMES BUSINESS TRUST

	By: /s/ Stephen M. Wagman

	Name: Stephen M. Wagman

	Title: Co-Managing Trustee

	By: /s/ Paul Berkowitz

	Name: Paul Berkowitz

	Title: Co-Managing Trustee

	By: /s/ Russell Devendorf

	Name: Russell Devendorf

	Title: Co-Managing Trustee







3




	 
	Subsidiary Borrowers (continued):
	ENGLE HOMES DELAWARE, INC.
	TOUSA DELAWARE, INC.
	TOUSA FUNDING, LLC
	By:/s/Paul Berkowitz
	Name: Paul Berkowitz
	Title: President





4




CITICORP NORTH AMERICA, INC., as Administrative Agent



By: /s/ Tucker R. Borden

Name: Tucker R. Borden

Title: VP









5




	 	 	PERRY PRINCIPALS, LLC, as a Lender





By: /s/ Michael C. Neus

Name: Michael C. Neus

Title: General Counsel

6



GRAND CENTRAL ASSET TRUST SIL SERIES, as a Lender





By: /s/ Janet Haack

Name: Janet Haack

Title: As Attorney in Fact

7



Fortress Credit Investments I LTD. as a Lender



By: /s/ Glenn P. Cummins

Name: Glenn P. Cummins

Title: Chief Financial Officer









8




	 	 	THE FOOTHILL GROUP, INC., as a Lender





By: /s/ R. Michael

Name: R. Michael

Title: SVP




9



[Signature Page to Amendment No. 1 to




First Lien Term Loan Credit Agreement]





	 	 	TENNENBAUM MULTI-STRATEGY MASTER FUND, as a Lender






	 	 	By: Tennenbaum Capital Partners, LLC






	 	 	Its: Investment Member





By: /s/ David Hillader

Name: David Hillader

Title: Managing Director

10



ROYAL BANK OF CANADA, as a Lender





By: /s/ Suzanne Kaicher

Name: Suzanne Kaicher

Title:Attorney-in-Fact

11



ESPERANCE, as a Lender



By: /s/ Neam Ahmed

Name: Neam Ahmed

Title:Authorized Signatory

12



CASTLERIGG MASTER INVESTMENTS LTD., as a Lender





By: /s/ Timothy O’Brien

Name: Timothy O’Brien

Title:CFO

13



MCDONNELL LOAN OPPORTUNITY LTD, as a Lender



By: McDonnell Investment Management, LLC as Investment Manager




By: /s/ Kathleen A. Zarn

Name: Kathleen A. Zarn

Title: Vice President

14



HELIOS FUNDING LLC., as a Lender





By: /s/ Tara E. Kenny

Name: Tara E. Kenny

Title: Assistant Vice President



Fortress Credit Investments II LTD., as a lender



	 	 	 
	By: /s/ Glenn P. Cummins

	Name: Glenn P. Cummins

	Title:

	 	CFO











15




	 	 	CGDO, LLC, as a Lender





By: /s/ James Steinthal

Name: James Steinthal

Title: Managing Director

16



GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender





By: /s/ Pedro Ramirez

Name: Pedro Ramirez

Title: Authorized Signatory

17



VAN KAMPEN DYNAMIC CREDIT OPPORTUNITIES FUND, as a Lender



By: /s/ Philip Yarrow

Name: Philip Yarrow

Title: Vice President













CITIBANK, N.A., as a Lender



By: /s/ Erin Finegan

Name: Erin Finegan

Title: Attorney-In-Fact









18




	 	 	VAN KAMPEN SENIOR LOAN FUND, as a Lender





By: /s/ Philip Yarrow

Name: Philip Yarrow

Title: VP

19



VAN KAMPEN SENIOR INCOME TRUST, as a Lender





By: /s/ Philip Yarrow

Name: Philip Yarrow

Title:VP




20