Exhibit 10.46
SETTLEMENT AND RELEASE AGREEMENT
(JUNIOR MEZZANINE)
This SETTLEMENT AND RELEASE AGREEMENT (the "Settlement Agreement") is made
and entered into as of June 29, 2007, by and among: (i) Technical Olympic S.A.
("Technical Olympic"); (ii) TOUSA, Inc. f/k/a Technical Olympic USA, Inc.
("TOUSA"); (iii) TOUSA, LLC; (iv) TOI, LLC; (v) TOUSA Homes, L.P. ("TOUSA
Homes," and collectively with TOUSA, TOUSA, LLC and TOI, LLC, the "TOUSA
Entities"); (vi) TE/TOUSA, LLC ("TE/TOUSA"); (vii) TE/TOUSA Mezzanine Two, LLC
("TE/TOUSA Mezz Two"); (viii) TE/TOUSA Mezzanine, LLC ("TE/TOUSA Mezz");
(ix) TE/TOUSA Senior, LLC ("TE/TOUSA Senior"); (x) EH/Transeastern, LLC ("EHT,"
and collectively with TE/TOUSA, TE/TOUSA Mezz Two, TE/TOUSA Mezz and TE/TOUSA
Senior, the "Transeastern JV Entities"); and (xi) the lenders party to that
certain $87,500,000 Junior Mezzanine Credit Agreement (such agreement together
with all amendments, modifications, renewals thereof and all documents,
ancillary or otherwise, entered into in connection therewith are collectively
referred to herein as the "Junior Mezzanine Agreement"), dated as of August 1,
2005, by and among TE/TOUSA Mezz Two, as Borrower, Deutsche Bank Trust Company
Americas (in its individual capacity, "DBTCA"), as Administrative Agent (in such
capacity, "Junior Mezzanine Administrative Agent"), the lenders now or hereafter
a party thereto (the "Junior Mezzanine Lenders"), and Deutsche Bank Securities
Inc. ("DBSI"), as Sole Lead Arranger and Sole Book Running Manager, which is
secured by, among other assets, a pledge of the membership interests of TE/TOUSA
Mezz and TE/TOUSA Mezz Two held, respectively, by TE/TOUSA Mezz Two and TE/TOUSA
(the "Junior Mezzanine Debt"). Technical Olympic, the TOUSA Entities, the
Transeastern JV Entities, the Junior Mezzanine Administrative Agent, DBTCA,
DBSI, the Junior Mezzanine Lenders and any subsequent Person (as such term, and
each capitalized term used but not otherwise defined herein, is defined in the
Junior Mezzanine Agreement) that becomes a party hereto in accordance with the
terms hereof are each referred to herein as a "Party," and collectively, the
"Parties."
W I T N E S S E T H:
WHEREAS, EHT, Transeastern Properties, Inc., Arthur J. Falcone, Edward
W. Falcone, Falcon/TEP Holdings, LLC f/k/a Falcone/Ritchie LLC
("Falcone/Ritchie") and certain affiliates thereof (collectively, the "Falcone
Entities") entered into that certain Asset Purchase Agreement, dated as of
June 6, 2005 (the "Asset Purchase Agreement"), providing for, among other
things, the purchase of the homebuilding business and assets of Transeastern
Properties, Inc. and the assignment of certain rights and the assumption of
obligations under certain land bank agreements to EHT, including, without
limitation, the right to exercise certain options to purchase tracts of land
subject to those land bank agreements and build improvements thereon and the
obligation to perform certain development and other activities in connection
with such tracts of land;
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WHEREAS, on or about June 6, 2005, TOUSA and DBSI entered into a
letter agreement with respect to the acquisition of the assets of Transeastern
Properties, Inc. (the "Letter Agreement");
WHEREAS, TE/TOUSA Senior and EHT entered into that certain
$450,000,000 Credit Agreement (the "Senior Debt"), dated as of August 1, 2005,
by and among