EX-10.2






INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of November 20, 2007
(this “Instrument”), among TOUSA, Inc. (f/k/a TECHNICAL OLYMPIC USA, INC.), a corporation duly
organized and existing under the laws of Delaware, having its principal office at 4000 Hollywood
Boulevard, Suite 500 N, Hollywood, Florida 33021 (the “Company”), WELLS FARGO BANK, NATIONAL
ASSOCIATION, successor by merger to Wells Fargo Bank Minnesota, National Association, a national
banking association organized and existing under the laws of the United States, having a corporate
trust office at 213 Court Street, Suite 703, Middletown, Connecticut 06457, solely in its capacity
as resigning Trustee (the “Resigning Trustee”), and HSBC BANK USA, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United States, having its
corporate trust office at 10 East 40th Street, 14th Floor, New York, New York
10016, solely in its capacity as successor Trustee (the “Successor Trustee”).



RECITALS




WHEREAS, there are presently outstanding under the Indenture dated as of June 25, 2002, as
supplemented on July 24, 2002, July 18, 2003, July 19, 2004, August 26, 2004, December 17, 2004,
February 22, 2005, March 1, 2005, December 19, 2005, March 26, 2006, September 19, 2006, and August
14, 2007 among the Company, the Subsidiary Guarantors as defined therein and the Resigning Trustee
(the “10 3/8% Notes Indenture”) $185,000,000 in aggregate principal amount of the
Company’s 10 3/8% Senior Subordinated Notes due 2012 (the “10 3/8% Notes”) issued
pursuant to the 10 3/8% Notes Indenture.



WHEREAS, there are presently outstanding under the Indenture dated as of March 17, 2004, as
supplemented on July 19, 2004, August 26, 2004, December 17, 2004, February 22, 2005, March 1,
2005, December 19, 2005, March 26, 2006, September 19, 2006, and August 14, 2007among the Company,
the Subsidiary Guarantors as defined therein and the Resigning Trustee (the “7 1/2% Notes
Indenture (2011)”) $125,000,000 in aggregate principal amount of the Company’s 7 1/2%
Senior Subordinated Notes due 2011 (the “7 1/2% Notes Due 2011”) issued pursuant to the 7
1/2% Notes Indenture (2011).



WHEREAS, there are presently outstanding under the Indenture dated as of December 21, 2004, as
supplemented on February 22, 2005, March 1, 2005, December 19, 2005, March 26, 2006, September 19,
2006, and August 14, 2007 among the Company, the Subsidiary Guarantors as defined therein and the
Resigning Trustee (the “7 1/2% Notes Indenture (2015)”) $200,000,000 in aggregate
principal amount of the Company’s 7 1/2% Senior Subordinated Notes due 2015 (the “7
1/2% Notes (2015)”) issued pursuant to the 7 1/2% Notes Indenture (2015).



WHEREAS, there are presently outstanding under the Indenture dated as of July 31, 2007, among
the Company, the Subsidiary Guarantors as defined therein and the Resigning Trustee (the “14.75%
Notes Indenture” and together with the 10 3/8% Indenture, the 7 1/2% Indenture
(2011) and the 7 1/2% Indenture (2015), the “Indentures”) $20,000,000 in aggregate
principal amount of the Company’s 14.75% Senior Subordinated PIK Election Notes due 2015 (the
“14.75% Notes” and together with the 10 3/8% Notes, the 7 1/2% Notes Due 2011 and
the 7 1/2% Notes Due 2015, the “Notes”) issued pursuant to the 14.75% Notes Indenture.



WHEREAS, the Resigning Trustee wishes to resign as Indenture Trustee, the office or agency
where the Notes may be presented for registration of transfer or exchange (the “Registrar”), the
office or agency where the Notes may be presented for payment (the “Paying Agent”) and the office
or agency where the Notes may be authenticated (the “Authenticating Agent”). The Company wishes to
appoint the Successor Trustee to succeed the Resigning Trustee as Indenture Trustee, Registrar,
Paying Agent and Authenticating Agent under the Indentures. The Successor Trustee wishes to accept
appointment as Indenture Trustee, Registrar, Paying Agent and Authenticating Agent under the
Indentures.



NOW, THEREFORE, in consideration of the mutual covenants and promises herein, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Resigning Trustee and the Successor
Trustee agree as follows:



ARTICLE ONE

THE RESIGNING TRUSTEE




Section 101. Pursuant to Section 7.08(b) of each of the Indentures, the Resigning
Trustee hereby notifies the Company that it is hereby resigning as Indenture Trustee, Registrar,
Paying Agent, and Authenticating Agent effective immediately upon full execution of this Instrument
by all the parties hereto.



Section 102. The Resigning Trustee hereby represents and warrants to the Successor
Trustee that:




(a) No covenant or condition contained in any of the Indentures has been waived
by the Resigning Trustee.




(b) There is no action, suit or proceeding pending or, to the best of the
knowledge of the responsible officers of the Resigning Trustee, threatened against
the Resigning Trustee before any court or governmental authority arising out of any
action or omission by the Resigning Trustee as Indenture Trustee, Registrar, Paying
Agent or Authenticating Agent under any of the Indentures.




(c) This Instrument has been duly authorized, executed and delivered on behalf
of the Resigning Trustee.




(d) $185,000,000 aggregate principal amount of the 10 3/8% Notes is
outstanding.




(e) $125,000,000 aggregate principal amount of the 7 1/2% Notes Due
2011 is outstanding.




(f) $200,000,000 aggregate principal amount of the 7 1/2% Notes Due
2015 is outstanding.




(g) $20,000,000 aggregate principal amount of the 14.75 % Notes is outstanding.




(h) Interest on the 10 3/8% Notes has been paid through June 30, 2007.




(i) Interest on the 7 1/2% Notes Due 2011 has been paid through
September 14, 2007.




(j) Interest on the 7 1/2% Notes Due 2015 has been paid through July
14, 2007.




(k) As of the date of this Instrument, no interest has been paid on the 14.75%
Notes.



Section 103. The Resigning Trustee hereby assigns, transfers, delivers and confirms
to the Successor Trustee all right, title and interest of the Resigning Trustee in and to the Trust
under the Indentures, all the rights, powers, trusts and duties of the Resigning Trustee under the
Indentures and all property and money, if any, held by such Resigning Trustee under the Indentures,
with like effect as if the Successor Trustee was originally named as Trustee under the Indentures.
The Resigning Trustee shall execute and deliver such further instruments and shall do such other
things as the Successor Trustee may reasonably require so as to more fully and certainly vest and
confirm in the Successor Trustee all the rights, powers, trusts and duties hereby assigned,
transferred, delivered and confirmed to the Successor Trustee.



Section 104. As of or promptly after the effective date hereof, the Resigning Trustee
shall deliver to the Successor Trustee the items listed on Exhibit A annexed hereto, to the
extent these items are in the possession, custody or control of the Resigning Trustee.



Section 105. The Resigning Trustee agrees to pay or indemnify the Successor Trustee
and save the Successor Trustee harmless from and against any and all costs, claims, liabilities,
losses or damages whatsoever (including the reasonable fees, expenses and disbursements of the
Successor Trustee’s counsel and other advisors), that the Successor Trustee suffers or incurs
without negligence or willful misconduct on its part arising out of actions or omissions of the
Resigning Trustee. The Successor Trustee will furnish to the Resigning Trustee, promptly after
receipt, all papers with respect to any action the outcome of which would make operative the
indemnity provided for in this Section. The Successor Trustee shall notify the Resigning Trustee
promptly in writing (and, in any event, within no later than 10 days) of any claim for which it may
seek indemnity. The Resigning Trustee shall have the option to defend the claim and the Successor
Trustee shall cooperate fully in the defense. If the Resigning Trustee shall assume the defense,
then the Resigning Trustee shall not pay for separate counsel of the Successor Trustee. The
Resigning Trustee shall not be obligated to pay for any settlement made without its consent.



ARTICLE TWO

THE COMPANY




Section 201. The Company hereby certifies that the Company is, and the officer of the
Company who has executed this Instrument is, duly authorized to: (a) accept the Resigning
Trustee’s resignation as Indenture Trustee, Registrar, Paying Agent and Authenticating Agent under
the Indentures as provided in Section 101 above; (b) appoint the Successor Trustee as Indenture
Trustee, Registrar, Paying Agent, and Authenticating Agent under the Indentures; and (c) execute
and deliver such agreements and other instruments reasonably acceptable to the Company as may be
necessary or desirable to effectuate the succession of the Successor Trustee as Indenture Trustee,
Registrar, Paying Agent and Authenticating Agent under the Indentures.



Section 202.




(a) The Company hereby waives receipt of 30 day’s prior written notice set
forth in Section 7.08(b) of each of the Indentures.




(b) Pursuant to Section 7.08(c) of each of the Indentures, the Company hereby
appoints the Successor Trustee as Indenture Trustee, Registrar, Paying Agent and
Authenticating Agent under the Indentures and confirms to the Successor Trustee all
the rights, powers, trusts and duties of the Indenture Trustee, Registrar, Paying
Agent and Authenticating Agent under the Indentures and with respect to all property
and money held or to be held under the Indentures, with like effect as if the
Successor Trustee was originally named as Indenture Trustee, Registrar, Paying Agent
and Authenticating Agent under the Indentures. The Company shall execute and
deliver such further instruments reasonably acceptable to the Company and shall do
such other things as the Successor Trustee may reasonably require so as to more
fully and certainly vest and confirm in the Successor Trustee all the rights,
powers, trusts and duties hereby assigned, transferred, delivered and confirmed to
the Successor Trustee.



Section 203. The Company hereby represents and warrants to the Successor Trustee and
the Resigning Trustee that:




(a) No Event of Default and no other event which, after notice or lapse of
time or both, would become an Event of Default, has occurred and is continuing under
the Indentures.




(b) No covenant or condition contained in the Indentures has been waived by
the Company or by the holders of the percentage in aggregate principal amount of the
Notes required by the Indentures to effect any such waiver.




(c) Other than the Supplemental Indentures referenced in the Recitals section
of this Agreement, the Indentures have not been amended.




(d) The Indentures are in full force and effect.




(e) The Notes are validly issued securities of the Company.




(f) The Notes rank pari passu with each other in all respects.




(g) The Company is a corporation duly organized and existing under the laws of
Delaware.




(h) There is no action, suit or proceeding pending or, to the best of the
Company’s knowledge, threatened against the Company before any court or any
governmental authority arising out of any action or omission by the Company under
the Indentures.




(i) This Instrument has been duly authorized, executed and delivered on behalf
of the Company and constitutes its legal, valid and binding obligation.




(j) All conditions precedent applicable to the Company relating to the
appointment of the Successor Trustee as Indenture Trustee, Registrar, Paying Agent
and Authenticating Agent under the Indentures have been complied with by the
Company.



ARTICLE THREE

THE SUCCESSOR TRUSTEE




Section 301. The Successor Trustee hereby represents and warrants to the Resigning
Trustee and the Company that:




(a) The Successor Trustee is qualified and eligible under the provisions of
Section 7.10 of each of the Indentures to act as Indenture Trustee under the
Indentures.




(b) This Instrument has been duly authorized, executed and delivered on behalf
of the Successor Trustee.



Section 302. Pursuant to Section 7.08(f) of the Indentures, the Successor Trustee
hereby accepts its appointment as Indenture Trustee, Registrar, Paying Agent and Authenticating
Agent under the Indentures and shall hereby be vested with all the rights, powers, trusts and
duties of the Indenture Trustee, Registrar, Paying Agent and Authenticating Agent under the
Indentures and with respect to all property and money held or to be held under the Indentures, with
like effect as if the Successor Trustee was originally named as Indenture Trustee, Registrar,
Paying Agent and Authenticating Agent under the Indentures.



Section 303. Promptly after the execution and delivery of this Instrument, the
Successor Trustee, on behalf of the Company, shall cause a notice, substantially in the form of the
notices annexed hereto marked Exhibit B, to be sent to the Holders of the Notes under each
of the Indentures.



ARTICLE FOUR

MISCELLANEOUS




Section 401. Except as otherwise expressly provided or unless the context otherwise
requires, all capitalized terms used herein that are defined in the Indentures shall have the
meanings assigned to them in the Indentures.



Section 402. This Instrument and the resignation, appointment and acceptance effected
hereby shall be effective as of the close of business on the date first above written, upon the
execution and delivery hereof by each of the parties hereto; provided, however, that the
resignation of the Resigning Trustee and the appointment of the Successor Trustee as Registrar,
Paying Agent, and Authenticating Agent under the Indentures shall be effective upon the latest of:
(a) 10 business days after the date first above written; and (b) receipt by The Depository Trust
Company (“DTC”) of both the Resigning Trustee’s transfer agency change notice and the Successor
Trustee’s transfer agency change notice.



Section 403. Notwithstanding the resignation of the Resigning Trustee effected
hereby, the Company shall remain obligated under Sections 7.07 of the Indentures to compensate,
reimburse and indemnify the Resigning Trustee in connection with its prior Trusteeship under the
Indentures. Pursuant to Section 7.07 of the Indentures, the Company also acknowledges and affirms
its obligations to the Successor Trustee set forth in Section 7.07 of the Indentures, which
obligations shall survive the execution hereof.



Section 404. This Instrument shall be governed by and construed in accordance with the
laws of the jurisdiction that govern the Indentures and their construction.



Section 405. This Instrument may be executed in any number of counterparts each of
which shall be an original, but such counterparts shall together constitute but one and the same
instrument.



Section 406. All notices, whether faxed or mailed, will be deemed received when sent
pursuant to the following instructions:



TO THE RESIGNING TRUSTEE:




Wells Fargo Bank, National Association


Corporate Trust Services


625 Marquette Avenue


MAC N9311-110


Minneapolis, Minnesota 55479


Attention: Julie J. Becker


Tel: (612) 316-4772



Fax: (612) 667-9825




email: julie.j.becker@wellsfargo.com



TO THE SUCCESSOR TRUSTEE:




HSBC Bank USA, National Association


Corporate Trust and Loan Agency


10 East 40th Street, 14th Floor


New York, New York 10016


Attention: Robert Conrad


Tel: (212) 525-1314


Fax: (212) 525-1366


email: robert.conrad@us.hsbc.com




TO THE COMPANY:




TOUSA, Inc.




4000 Hollywood Blvd., Ste. 500N




Hollywood, FL 33021




Attention: Treasurer




Tel: (954) 364-4000




Fax: (954) 364-4010




Email: rdevendorf@tousa.com



IN WITNESS WHEREOF, the parties hereto have caused this Instrument of Resignation, Appointment
and Acceptance to be duly executed as of the day and year first above written.



TOUSA, INC.



	 	 	 
	By

	 	/s/ Russell Devendorf
	
 
	 	 
	
 
	 	Name: Russell Devendorf

Title: Vice President, Treasurer and






Secretary



WELLS FARGO BANK, NATIONAL



ASSOCIATION, solely as Resigning Trustee



	 	 	 
	By

	 	/s/ Julie J. Becker
	
 
	 	 
	
 
	 	Name: Julie J. Becker

Title: Vice President







	 	 	HSBC Bank USA, National Association, solely as
Successor Trustee





	 	 	 
	By

	 	/s/ Robert Conrad
	
 
	 	 
	
 
	 	Name: Robert Conrad

Title: Vice President






1




EXHIBIT A




Documents to be delivered to the Successor Trustee:



1. Executed copy of the Indentures.




	2.	 	Representative copies of all Securities in each series of Notes issued pursuant to the
Indentures.





3. File of closing documents.




	4.	 	Copies of the most recent of each of the SEC reports, if any, delivered by the Company
pursuant to the Indentures.






	5.	 	A copy of the most recent Compliance Certificate, if any, delivered pursuant to the
Indentures.






	6.	 	Certified List of Holders of the Securities as of the effective date of this Instrument,
certificate detail and all “stop transfers” and the reason for such “stop transfers” (or,
alternatively, if there are a substantial number of registered Holders, the computer tape
reflecting the identity, address, tax identification number and detailed holdings of each such
Holder).






	7.	 	Copies of any official notices sent by the Trustee to all Holders pursuant to the terms of
the Indentures during the past twelve months.





8. Notes debt service records.



9. Trust account statements for a one-year period preceding the date of this Instrument.



10. All unissued Notes inventory or DTC FAST held global certificates.



11. Such other documents as the Successor Trustee may reasonably require in order to transfer the
appointment to it.



2



EXHIBIT B




Notice to Holders of Technical Olympic USA, Inc. (n/k/a TOUSA, Inc.)

10 3/8% Senior Subordinated Notes due 2012

(the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Indenture Trustee, Registrar, Paying Agent, and Authenticating Agent under the Indenture, dated as
of June 25, 2002, as supplemented on July 24, 2002, July 18, 2003, July 19, 2004, August 26, 2004,
December 17, 2004, February 22, 2005, March 1, 2005, December 19, 2005, March 26, 2006, September
19, 2006, and August 14, 2007 (the “Indenture”) pursuant to which your Notes were issued and are
outstanding.



The Company has appointed HSBC Bank USA, National Association, whose corporate trust office is
located at 10 East 40th, 14th Floor, New York, New York, as successor
Trustee, Registrar, Paying Agent and Authenticating Agent under the Indenture, which appointment
has been accepted and has become effective.



     , solely as successor Trustee



Date:      , 2007



*No representation is made as to the correctness of the cusip number either as provided on the
notes or as contained herein.



3



Notice to Holders of Technical Olympic USA, Inc. (n/k/a TOUSA, Inc.)

7 1/2% Senior Subordinated Notes due 2011

(the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Indenture Trustee, Registrar, Paying Agent, and Authenticating Agent under the Indenture, dated as
of March 17, 2004 as supplemented on July 19, 2004, August 26, 2004, December 17, 2004, February
22, 2005, March 1, 2005, December 19, 2005, March 26, 2006, September 19, 2006, and August 14, 2007
(the “Indenture”) pursuant to which your Notes were issued and are outstanding.



The Company has appointed HSBC Bank USA, National Association, whose corporate trust office is
located at 10 East 40th, 14th Floor, New York, New York, as successor
Trustee, Registrar, Paying Agent and Authenticating Agent under the Indenture, which appointment
has been accepted and has become effective.



     , solely as successor Trustee



Date:      , 2007



*No representation is made as to the correctness of the cusip number either as provided on the
notes or as contained herein.



4



Notice to Holders of Technical Olympic USA, Inc. (n/k/a TOUSA, Inc.)

7 1/2% Senior Subordinated Notes due 2015

(the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Indenture Trustee, Registrar, Paying Agent, and Authenticating Agent under the Indenture, dated as
of December 21, 2004 as supplemented on February 22, 2005, March 1, 2005, December 19, 2005, March
26, 2006, September 19, 2006, and August 14, 2007 (the “Indenture”) pursuant to which your Notes
were issued and are outstanding.



The Company has appointed HSBC Bank USA, National Association, whose corporate trust office is
located at 10 East 40th, 14th Floor, New York, New York, as successor
Trustee, Registrar, Paying Agent and Authenticating Agent under the Indenture, which appointment
has been accepted and has become effective.



     , solely as successor Trustee



Date:      , 2007



*No representation is made as to the correctness of the cusip number either as provided on the
notes or as contained herein.



5



Notice to Holders of TOUSA, Inc.)

14.75% Senior Subordinated PIK Election Notes due 2015

(the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Indenture Trustee, Registrar, Paying Agent, and Authenticating Agent under the Indenture, dated as
of July 31, 2007 (the “Indenture”) pursuant to which your Notes were issued and are outstanding.



The Company has appointed HSBC Bank USA, National Association, whose corporate trust office is
located at 10 East 40th, 14th Floor, New York, New York, as successor
Trustee, Registrar, Paying Agent and Authenticating Agent under the Indenture, which appointment
has been accepted and has become effective.



     , solely as successor Trustee



Date:      , 2007



*No representation is made as to the correctness of the cusip number either as provided on the
notes or as contained herein.




6