Amendment No. 1 to Credit Agreement



 






Exhibit 10.32




     AMENDMENT NO. 1, dated as of July 28, 2005 (this “Amendment No. 1”), to the Credit
Agreement dated as of October 26, 2004 (as amended, supplemented, amended and restated or otherwise
modified from time to time) (the “Credit Agreement”) among Technical Olympic USA,
Inc., a Delaware corporation (the “Borrower”), Citicorp North America, Inc.,
as administrative agent (in such capacity, the “Administrative Agent”) and the Requisite
Lenders listed on the signature pages hereto. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.



     WHEREAS, Section 7.02(i) of the Credit Agreement limits the then cost value (defined as the
aggregate cost plus all additions minus all returns thereon in cash) of any net
cash Investments by the Borrower in, or loans or contributions to, all Unaffiliated Joint Ventures
and Unaffiliated Unrestricted Subsidiaries, to 25% of the Adjusted Consolidated Tangible Net Worth
of the Borrower and its Restricted Subsidiaries;



     WHEREAS, pursuant to Section 10.1 of the Credit Agreement, the consent of the Requisite
Lenders is required to effect this Amendment No. 1;



     NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:



     Section 1. Amendments.



     (a) Section 1.1: Defined Terms.



     Section 1.1 of the Credit Agreement is hereby amended by deleting the last sentence of the
definition of “Indebtedness” in its entirety and replacing it with the following:



     “Nothwithstanding the foregoing, “Indebtedness” shall not include (x) the face amount of any
undrawn Performance Letters of Credit or the amount of any obligations in respect of surety bonds
or performance bonds, in each case to the extent unmatured, (y) Indebtedness Associated with Assets
Not Owned, or (z) obligations with respect to options to purchase real property that have not been
exercised.”



     (b) Section 7.2: Investments.



     Section 7.2 of the Credit Agreement is hereby amended by deleting clause (i) thereof in its
entirety and replacing it with the following:



 









 





     "(i) net cash Investments (including letters of credit) in, contributions and loans to
Unaffiliated Joint Ventures and Unaffiliated Unrestricted Subsidiaries, the then cost value of
which shall not at any time exceed in the aggregate for all such Investments 35% of the Adjusted
Consolidated Tangible Net Worth of the Borrower and its Restricted Subsidiaries (with cost value
defined as the aggregate cost plus all additions minus all returns thereon in
cash); provided that on the date which is the eighteen month anniversary of the effective
date of Amendment No. 1 to this Agreement, (x) the foregoing percentage shall be reduced to 30% and
(y) after giving effect to clause (x), the Borrower shall be in compliance with this clause (i) on
and as of such date;”



     Section 2. Representations and Warranties. The Borrower represents and warrants to
the Lenders as of the date hereof that:



     (a) The execution and delivery of this Amendment No. 1 by the Loan Parties has been duly
authorized.



     (b) Neither the execution or delivery by the Loan Parties of this Amendment No. 1, nor
compliance by the Loan Parties with the terms and provisions hereof, (i) will contravene any
applicable provision of any law, statute, rule or regulation, or any order, writ, injunction or
decree of any court or Governmental Authority, (ii) will conflict or be inconsistent with, or
result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, the terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other material agreement, contract or instrument to which it or any of its
Subsidiaries is a party or by it or any of its Subsidiaries’ property or assets is bound or to
which they or any of its Subsidiaries may be subject, or (iii) will violate any provision of its
respective certificate of incorporation or bylaws or the certificate of incorporation or bylaws (or
equivalent organizational or other charter documents) of any of its Subsidiaries.



     (c) Before and after giving effect to this Amendment No. 1, the representations and warranties
set forth in the Credit Agreement, are true and correct in all respects with the same effect as if
made on the Effective Date, except to the extent such representations and warranties expressly
relate to an earlier date.



     (d) At the time of and after giving effect to this Amendment No. 1, no Default or Event of
Default has occurred and is continuing.



     Section 3. Conditions to Effectiveness. This Amendment No. 1 shall become effective
on the date (the “Effective Date”) on which each of the following conditions is satisfied
(or waived in accordance with Section 10.1 of the Credit Agreement):



     (a) The Administrative Agent (or its counsel) shall have received from Lenders constituting
the Requisite Lenders and each of the other parties hereto either (i) a counterpart of this
Amendment No. 1 signed on behalf of such party or (ii) written evidence



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satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Amendment No. 1) that such party has signed a counterpart of this Amendment
No. 1;




     (b) All corporate and other proceedings taken or to be taken in connection with this Amendment
No. 1 and all documents incidental thereto, whether or not referred to herein, shall be
satisfactory in form and substance to the Requisite Lenders and their counsel.



     Section 4. Expenses. The Borrower agrees to reimburse the Administrative Agent for
its out-of-pocket expenses incurred by it in connection with this Amendment No. 1, including the
reasonable fees, charges and disbursements of Cahill Gordon & Reindel llp, counsel for the
Administrative Agent.



     Section 5. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which when so
executed and delivered shall be deemed to be an original, but all of which when taken together
shall constitute a single instrument. Delivery of an executed counterpart of a signature page of
this Amendment No. 1 by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.



     Section 6. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     Section 7. Headings. The headings of this Amendment No. 1 are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed as
of the date first above written.



	 	 	 	 	 
	 	TECHNICAL OLYMPIC USA, INC.,

as Borrower

 	 
	 	By:  	/s/ David J. Keller
 	 
	 	 	Name:  	David J. Keller 	 
	 	 	Title:  	Chief Financial Officer 	 



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	 	ENGLE HOMES DELAWARE, INC.

ENGLE HOMES RESIDENTIAL CONSTRUCTION, LLC

ENGLE/JAMES LLC

MCKAY LANDING, LLC

NEWMARK HOMES BUSINESS TRUST

NEWMARK HOMES PURCHASING, L.P.

NEWMARK HOMES, L.L.C.

NEWMARK HOMES, L.P.

PREFERRED BUILDERS REALTY, INC.

SILVERLAKE INTERESTS, L.C.

TOI, LLC

TOUSA ASSOCIATES SERVICES COMPANY

TOUSA DELAWARE, INC.

TOUSA FINANCING, INC.

TOUSA HOMES, INC.

TOUSA VENTURES, LLC,

TOUSA, LLC

TOUSA HOMES, L.P.

TOUSA INVESTMENT #1, LLC

TOUSA INVESTMENT #2, LLC

TOUSA INVESTMENT #3, LLC

TOUSA INVESTMENT #4, LLC

TOUSA INVESTMENT #5, LLC

TOUSA INVESTMENT #1, INC.

TOUSA INVESTMENT #2, INC.

TOUSA HOMES INVESTMENT #1, L.P.

TOUSA HOMES INVESTMENT #1, INC.

TOUSA HOMES INVESTMENT #2, INC.

TOUSA HOMES INVESTMENT #2, LLC

TOUSA MID-ATLANTIC INVESTMENT, LLC,

as Subsidiary Guarantors

 	 
	 	 	 
	 	 	 
	 	 	 
	 
	 	 	 
	 	By:  	                                               /s/ David J. Keller
 	 
	 	 	Name:  	David J. Keller 	 
	 	 	Title:  	Vice President 	 



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	 	CITICORP NORTH AMERICA, INC.

as Administrative Agent and Lender

 	 
	 	By:  	/s/ Jeanne M. Craig
 	 
	 	 	Name:  	Jeanne M. Craig 	 
	 	 	Title:  	Vice President 	 



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	 	BANK OF AMERICA, N.A., as Lender

 	 
	 	By:  	/s/ Mark W. Lariviere
 	 
	 	 	Name:  	Mark W. Lariviere 	 
	 	 	Title:  	Senior Vice President 	 



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	 	BRANCH BANKING AND TRUST
COMPANY, as Lender

 	 
	 	By:  	/s/
Carmen De Essaye
 	 
	 	 	Name:  	Carmen De Essaye 	 
	 	 	Title:  	Senior Vice President 	 
	 




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	 	CALYON NEW YORK BRANCH, as Lender

 	 
	 	By:  	/s/ Attila Coach
 	 
	 	 	Name:  	Attila Coach 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                                               /s/ James Gibson
 	 
	 	 	Name:  	James Gibson 	 
	 	 	Title:  	Managing Director 	 



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	 	COMERICA BANK, as Lender

 	 
	 	By:  	/s/ Charles Weddell
 	 
	 	 	Name:  	Charles Weddell 	 
	 	 	Title:  	Vice President 	 



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	 	COMPASS BANK, AN ALABAMA BANKING 

CORPORATION, as Lender

 	 
	 	By:  	/s/ Christopher M. Reynolds
 	 
	 	 	Name:  	Christopher M. Reynolds 	 
	 	 	Title:  	Assistant Relationship Manager 	 



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	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Lender

 	 
	 	By:  	/s/ Brenda Carey
 	 
	 	 	Name:  	Brenda Carey 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                               /s/ Stephen P. Lapham
 	 
	 	 	Name:  	Stephen P. Lapham 	 
	 	 	Title:  	Managing Director 	 



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	 	GUARANTY BANK, as Lender

 	 
	 	By:  	/s/ Jenny Ray Stilwell, CPA
 	 
	 	 	Name:  	Jenny Ray Stilwell 	 
	 	 	Title:  	Vice President 	 



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	 	JPMORGAN CHASE BANK, as Lender

 	 
	 	By:  	/s/ Michael P. O’Keefe
 	 
	 	 	Name:  	Michael P. O’Keefe 	 
	 	 	Title:  	 	 



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	 	KEYBANK NATIONAL ASSOCIATION, as Lender

 	 
	 	By:  	/s/ Andrew D. Stickney
 	 
	 	 	Name:  	Andrew D. Stickney 	 
	 	 	Title:  	Vice President 	 



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	 	NATIONAL CITY BANK, as Lender

 	 
	 	By:  	/s/ James M. Osberg
 	 
	 	 	Name:  	James M. Osberg 	 
	 	 	Title:  	Vice President 	 



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	 	PNC BANK, NATIONAL ASSOCIATION, as Lender

 	 
	 	By:  	/s/ Douglas G. Paul
 	 
	 	 	Name:  	Douglas G. Paul 	 
	 	 	Title:  	Senior Vice President 	 



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	 	SOVEREIGN BANK, as Lender

 	 
	 	By:  	/s/ T. Gregory Donohue
 	 
	 	 	Name:  	T. Gregory Donohue 	 
	 	 	Title:  	Senior Vice President 	 



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	 	WACHOVIA BANK, N.A., as Lender

 	 
	 	By:  	/s/ Catherine L. Roess
 	 
	 	 	Name:  	Catherine L. Roess 	 
	 	 	Title:  	Vice President 	 



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	 	WASHINGTON MUTUAL BANK F.A., as Lender

 	 
	 	By:  	/s/ Ann D. Brehony
 	 
	 	 	Name:  	Ann D. Brehony 	 
	 	 	Title:  	Vice President 	 
	 




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