EX-10.1






EXECUTION COPY




INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of November 15, 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 WILMINGTON TRUST COMPANY, a banking corporation
duly organized and existing under the laws of the State of Delaware, having its corporate trust
office at 1100 North Market Street, Wilmington, DE 19890, solely in its capacity as successor
Trustee (the “Successor Trustee”).



RECITALS




WHEREAS, there are currently outstanding under the Indenture dated as of June 25, 2002, as
supplemented by Supplemental Indentures dated as of July 24, 2002, March 31, 2003, 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 “2002 Indenture”) $200,000,000 in
aggregate principal amount of the Company’s 9% Senior Notes due 2010 (the “9% Notes Due 2010
(2002)”) issued pursuant to the 2002 Indenture.



WHEREAS, there are currently outstanding under the Indenture dated as of February 3, 2003, as
supplemented by Supplemental Indentures dated as of March 31, 2003, 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 “2003 Indenture”) $100,000,000 in aggregate
principal amount of the Company’s 9% Senior Notes due 2010 (the “9% Notes due 2010 (2003)”) issued
pursuant to the 2003 Indenture.



WHEREAS, there are currently outstanding under the Indenture dated as of April 12, 2006, as
supplemented by Supplemental Indentures dated as of September 19, 2006 and August 14, 2007 among
the Company, the Subsidiary Guarantors as defined therein and the Resigning Trustee (the “2006
Indenture” and, together with the 2002 Indenture and the 2003 Indenture, the “Indentures”)
$250,000,000 in aggregate principal amount of the Company’s 8 1/4% Senior Notes due 2011 (the “8 1/4%
Notes” and, together with the 9% Notes Due 2010 (2002) and the 9% Notes due 2010 (2003), the
“Notes”) issued pursuant to the 2006 Indenture.



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




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




(d) $250,000,000 aggregate principal amount of the 8 1/4% Notes is outstanding.




(e) $200,000,000 aggregate principal amount of the 9% Notes Due 2010 (2002) is
outstanding.




(f) $100,000,000 aggregate principal amount of the 9% Notes Due 2010 (2003) is
outstanding.




(g) Interest on the 8 1/4% Notes has been paid through September 30, 2007.




(h) Interest on the 9% Notes Due 2010 (2002) has been paid through June 30,
2007.




(i) Interest on the 9% Notes Due 2010 (2003) has been paid through June 30,
2007.



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
Trusts under the Indentures, all the rights, powers, trusts and duties of the Resigning Trustee
under each of 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 business 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 Trustee, Registrar and Paying Agent under each of the Indentures as
provided in Section 101 above; (b) appoint the Successor Trustee as Trustee, Registrar and Paying
Agent under each of 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 Trustee, Registrar and Paying Agent under each of the
Indentures.



Section 202.




(a) The Company hereby waives receipt of 30 days’ 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 Trustee, Registrar and Paying Agent under the
Indentures and confirms to the Successor Trustee all the rights, powers, trusts and
duties of the Trustee, Registrar and Paying 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 Trustee, Registrar and
Paying 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
any of the Indentures.




(b) No covenant or condition contained in any of 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
any of 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 Trustee, Registrar and Paying Agent under
each of 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 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 each of the Indentures, the Successor
Trustee hereby accepts its appointment as Trustee, Registrar and Paying Agent under the Indentures
and shall hereby be vested with all the rights, powers, trusts and duties of the Trustee, Registrar
and Paying 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 Trustee,
Registrar and Paying 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 and
Paying Agent under the Indentures shall be effective upon the latest of: (a) 10 business days after
the date first above written; (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 and (c) the second business day following receipt by the Successor Trustee of the
Certified Holders List.



Section 403. Notwithstanding the resignation of the Resigning Trustee effected
hereby, the Company shall remain obligated under Section 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 each of the Indentures, the Company also acknowledges and
reaffirms its obligations to the Successor Trustee set forth in Section 7.07 of each 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:




Wilmington Trust Company



Rodney Square North



1100 North Market Street



Wilmington, Delaware 19890-0001



Attn: Suzanne MacDonald, Corporate Trust Administration



Tel: (302) 636-6530



Fax: (302) 636-64149



email: SmacDonald@WilmingtonTrust.com



With a copy to:




Arent Fox LLP


1675 Broadway


New York, New York 10019


Attn: Andrew I. Silfen, Esq.


Tel: (212) 484-3903


Fax: (212) 484-3990


email: silfen.andrew@arentfox.com



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TO THE COMPANY:




TOUSA, Inc.


4000 Hollywood Blvd., Ste. 500N




Hollywood, FL 33021




Attn: Treasurer




(Tel) 954-364-4000




(Fax) 954-364-4010



[Remainder of this page left intentionally blank]






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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







	 	 	WILMINGTON TRUST COMPANY, solely as Successor
Trustee





	 	 	 
	By

	 	/s/ Suzanne J. MacDonald
	
 
	 	 
	
 
	 	Name: Suzanne J. MacDonald

Title: Vice President






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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.



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EXHIBIT B




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

9% Senior Notes due 2010 (the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Trustee, Registrar and Paying Agent under the Indenture, dated as of June 25, 2002 (the
“Indenture”) pursuant to which your Notes were issued and are outstanding.



The Company has appointed Wilmington Trust Company, whose corporate trust office is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, as successor
Trustee, Registrar and Paying Agent under the Indenture, which appointment has been accepted and
has become effective.



WILMINGTON TRUST COMPANY, 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.



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

9% Senior Notes due 2010 (the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Trustee, Registrar and Paying Agent under the Indenture, dated as of February 3, 2003 (the
“Indenture”) pursuant to which your Notes were issued and are outstanding.



The Company has appointed Wilmington Trust Company, whose corporate trust office is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, as successor
Trustee, Registrar and Paying Agent under the Indenture, which appointment has been accepted and
has become effective.



WILMINGTON TRUST COMPANY, 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.



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

8 1/4% Senior Notes due 2011 (the “Notes”), Cusip No. ____________*




We hereby notify you of the resignations of Wells Fargo Bank, National Association, as
Trustee, Registrar and Paying Agent under the Indenture, dated as of April 12, 2006 (the
“Indenture”) pursuant to which your Notes were issued and are outstanding.



The Company has appointed Wilmington Trust Company, whose corporate trust office is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, as successor
Trustee, Registrar and Paying Agent under the Indenture, which appointment has been accepted and
has become effective.



WILMINGTON TRUST COMPANY, 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.




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