LIMITED WAIVER AGREEMENT
Exhibit 10.1
CONFORMED COPY
THIS LIMITED WAIVER AGREEMENT (this “Waiver Agreement”), dated as of October 17, 2006, is made
and entered into among TECHNICAL OLYMPIC USA, INC., a Delaware corporation (the “Borrower”), the
subsidiaries of the Borrower party hereto as a Guarantor, the lenders party hereto as Lenders, the
financial institution party hereto as the Issuer, and CITICORP NORTH AMERICA, INC., a Delaware
corporation, as agent for the Lenders and the Issuer (in such capacity, the “Administrative
Agent”).
PRELIMINARY STATEMENTS
(1) The Borrower, the Lenders, the Issuer and the Administrative Agent are parties to the
Credit Agreement, dated as of March 9, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the Borrower, the Lenders and certain
other financial institutions and other entities party thereto as lenders, the Issuer, the
Administrative Agent and certain other financial institutions in other agent capacities.
Capitalized terms used and not otherwise specifically defined in this Waiver Agreement shall have
the meanings given to such terms in the Credit Agreement.
(2) The Borrower acknowledges that a Material Adverse Change has occurred with respect to
TOUSA Homes, L.P. as a result of matters relating to EH/Transeastern, LLC disclosed by the Borrower
in its 8-K filings made in September and October, 2006 (the “Transeastern Events”). As a result,
the Borrower is no longer able to satisfy all of the conditions precedent under the Credit
Agreement required to receive Loans or to obtain the Issuance of Letters of Credit.
(3) The Borrower has indicated to each of the Lenders, the Issuer and the Administrative Agent
that it is currently contemplating a request for a proposed amendment to the Credit Agreement (the
“Proposed Amendment”), which would (i) amend certain provisions of the Credit Agreement, including,
inter alia, the definition of a Material Adverse Change and (ii) provide collateral by the Borrower
and its Subsidiaries to secure their respective obligations under the Credit Agreement and the
other Loan Documents. In order to provide a period of time from October 17, 2006 through October
25, 2006 (the “Waiver Period”) for the Borrower to prepare and negotiate the Proposed Amendment
with the Lenders and to ensure that the Borrower has sufficient liquidity during the Waiver Period,
the Borrower has requested the Lenders, the Issuer and the Administrative Agent to enter into this
Waiver Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this
Waiver Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the parties
hereto agree as follows:
Section 1.01 Waiver. During the Waiver Period, and only during the Waiver Period, the
Lenders, the Issuers and the Administrative Agent agree (i) to waive any Material Adverse Change
that has occurred with respect to TOUSA Homes, L.P. as a result of the Transeastern Events and (ii)
the Borrower will not be required to make any representation as to such Material Adverse Change as
a condition precedent to the extension of any Loan or the Issuance of any Letter of Credit.
Section 1.02 Limited Availability. Notwithstanding anything in the Credit Agreement
to the contrary, during the Waiver Period the Lenders shall not be obligated to make Loans and the
Issuers shall not be obligated to Issue any Letter of Credit in excess of $25,000,000 in the
aggregate. The Borrower acknowledges that all conditions precedent set forth in Section 3.2 of the
Credit Agreement shall apply to each Loan and each Issuance of a Letter of Credit during the Waiver
Period, subject to the waiver set forth in Section 1.01.
Section 1.03 Waiver Fee. Provided that this Waiver Agreement becomes effective no
later than October 17, 2006, the Borrower will pay to each Lender who has delivered to the
Administrative Agent an executed counterpart of this Waiver Agreement no later than Monday, October
16, 2006, a fee equal to 5 bps (0.05%) of the Revolving Credit Commitment of such Lender. Such
fees, if payable, will be paid by the Borrower on October 17, 2006.
Section 1.04 Loan Document. This Waiver Agreement shall be deemed to be a Loan
Document.
Section 1.05 Proposed Amendment. By entering into this Waiver Agreement the Lenders,
the Issuers and the Administrative Agent are not agreeing to any amendment or modification of the
Credit Agreement or any other Loan Document, except as expressly set forth in Sections 1.01, 1.02
and 1.03, and are willing to participate in negotiations with respect to a Proposed Amendment on
the following terms and conditions:
(a) The negotiations between the Borrower and the Guarantors and the Lenders, the Issuers and
the Administrative Agent, and any other relevant party and their respective agents, professional
advisors and representatives, in connection with the Proposed Amendment are without prejudice to
any party’s rights. By entering such negotiations the Lenders, the Issuers and the Administrative
Agent are not waiving or agreeing to waive any Default or Event of Default that may exist or may
occur in the future, whether based on facts or events that have already occurred or may occur in
the
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future, or obligate themselves to grant any concessions. Any party hereto may terminate
negotiations at any time and for any reason (or for no reason), and upon such termination of
negotiations, each party’s respective obligations to the other shall be only as set forth in the
Credit Agreement and all other Loan Documents, as modified by this Waiver Agreement.
(b) No agreement (oral or otherwise) that may be reached during the negotiations shall be
binding upon the parties until final, definitive written agreements approved by each Requisite
Lender have been executed and delivered by such Lender and all other parties required under the
terms of the Credit Agreement.
Section 1.06 Execution in Counterparts. This Waiver Agreement 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 signature page of this Waiver Agreement by facsimile transmission shall be
as effective as delivery of a manually executed counterpart hereof. A set of the copies of this
Waiver Agreement signed by all parties shall be lodged with the Borrower and the Administrative
Agent.
Section 1.07 Expenses. The Borrower agrees to pay all out-of-pocket expenses incurred
by the Administrative Agent in connection with this Waiver Agreement or any other transaction
described herein or otherwise related hereto, including, without limitation, all legal fees and
expenses of counsel for the Administrative Agent in connection herewith.
Section 1.08 Continued Effectiveness; Reservation of Rights. The Credit Agreement and
the other Loan Documents, as modified by this Waiver Agreement, are and shall continue to be in
full force and effect and are hereby in all respects ratified and confirmed. This Waiver Agreement
shall be effective only in the specific instance and for the specific purpose for which given. The
Lenders, the Issuers and the Administrative Agent expressly reserve the right to exercise any
remedies they may have under the Loan Documents at any time without notice to the Borrower or any
other person or entity other than as required in the Credit Agreement or other Loan Document.
Section 1.09 Binding Effect. This Waiver Agreement shall become effective when it
shall have been executed by the Borrower, the Guarantors, the Administrative Agent and the
Requisite Lenders and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent and each Lender and Issuer and, in each case, their respective successors
and assigns.
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Section 1.10 Governing Law. This Waiver Agreement and the rights and obligations of
the parties hereto shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
Section 1.11 Submission to Jurisdiction. Any legal action or proceeding with respect
to this Waiver Agreement or any other Loan Document may be brought in the courts of the State of
New York sitting in the City of New York or of the United States of America for the Southern
District of New York, and, by execution and delivery of this Waiver Agreement, the Borrower hereby
accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including any
objection to the laying of venue or based on the grounds of forum non conveniens, that any
of them may now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
Section 1.12 WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS, THE
ISSUERS AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT
TO THIS WAIVER AGREEMENT OR ANY OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to be duly executed
as of the day and year first above written.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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[Signature Page to Limited Waiver Agreement]
BORROWER: | ||||
TECHNICAL OLYMPIC USA, INC. | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | ||||
Title: SVP, CAO, Interim CFO |
[Signature Page to Limited Waiver Agreement]
GUARANTORS: | ||||
XXXXX HOMES DELAWARE, INC. XXXXX HOMES RESIDENTIAL CONSTRUCTION, LLC XXXXX/XXXXX LLC XXXXX LANDING, LLC NEWMARK HOMES PURCHASING, X.X. XXXXXXX HOMES, L.L.C. NEWMARK HOMES, L.P. PREFERRED BUILDERS REALTY, INC. SILVERLAKE INTERESTS, L.C. TOI, LLC TOUSA, LLC TOUSA ASSOCIATES SERVICES COMPANY TOUSA DELAWARE, INC. TOUSA FUNDING, LLC TOUSA HOMES, INC. TOUSA HOMES, X.X. XXXXX HOMES INVESTMENT #1, INC. TOUSA HOMES INVESTMENT #1, X.X. XXXXX HOMES INVESTMENT #2, INC. TOUSA HOMES INVESTMENT #2, LLC TOUSA INVESTMENT #1, INC. TOUSA INVESTMENT #2, INC. TOUSA INVESTMENT #1, LLC TOUSA INVESTMENT #2, LLC TOUSA INVESTMENT #3, LLC TOUSA INVESTMENT #4, LLC TOUSA INVESTMENT #5, LLC TOUSA MID-ATLANTIC INVESTMENT, LLC TOUSA VENTURES, LLC TOUSA/WEST HOLDINGS, INC. |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | ||||
Title: SVP, CAO |
[Signature Page to Limited Waiver Agreement]
GUARANTORS (continued): | ||||
NEWMARK HOMES BUSINESS TRUST | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | ||||
Title: SVP, CAO |
[Signature Page to Limited Waiver Agreement]
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and Joint Bank Manager |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx | ||||
Title: Director | ||||
CITICORP NORTH AMERICA, INC., as Administrative Agent and a Lender |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx | ||||
Title: Director |
[Signature Page to Limited Waiver Agreement]
CITIBANK, N.A., as an Issuer | ||||
By: | /s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx | ||||
Title: Director |
[Signature Page to Limited Waiver Agreement]
JPMORGAN CHASE BANK, N.A., as Co-Documentation Agent and Lender |
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By: | /s/ Xxxxxxx X’Xxxxx | |||
Name: Xxxxxxx X’Xxxxx | ||||
Title: Associate |
[Signature Page to Limited Waiver Agreement]
WACHOVIA CAPITAL MARKETS, LLC, as Co-Documentation Agent |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: Xxxxxxx Xxxxx | ||||
Title: Vice President | ||||
WACHOVIA BANK, N.A., as Lender | ||||
By: | /s/ X. Xxxxx Holtzbook | |||
Name: X. Xxxxx Holtzbook | ||||
Title: Senior Vice President |
[Signature Page to Limited Waiver Agreement]
BANK OF THE WEST, a California Banking Corporation, as Lender |
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By: | /s/ Xxxxx Xxxx | |||
Name: Xxxxx Xxxx | ||||
Title: Vice President | ||||
By: | /s/ Xxxxxx Xxxxxxxxxx | |||
Name: Xxxxxx Xxxxxxxxxx | ||||
Title: Vice President |
[Signature Page to Limited Waiver Agreement]
BRANCH BANKING AND TRUST COMPANY, as Lender | ||||
By: | /s/ Xxxx X. Xxxxx | |||
Name: Xxxx X. Xxxxx | ||||
Title: Vice President |
[Signature Page to Limited Waiver Agreement]
CALYON NEW YORK BRANCH, as Lender | ||||
By: | /s/ Xxxxx Xxxxx | |||
Name: Xxxxx Xxxxx | ||||
Title: Managing Director | ||||
By: | /s/ Xxxxxx Xxxxx | |||
Name: Xxxxxx Xxxxx | ||||
Title: Managing Director |
[Signature Page to Limited Waiver Agreement]
COMPASS BANK, an Alabama banking corporation, as Lender |
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By: | /s/ Xxxxxxx Xxxx Xxxxx | |||
Name: Xxxxxxx Xxxx Xxxxx | ||||
Title: Senior Vice President |
[Signature Page to Limited Waiver Agreement]
COMERICA BANK, as Lender | ||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: Xxxxxxx Xxxxxxx | ||||
Title: Vice President |
[Signature Page to Limited Waiver Agreement]
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Lender |
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By: | /s/ Xxxx X’Xxxx | |||
Name: Xxxx X’Xxxx | ||||
Title: Director | ||||
By: | /s/ Xxxxxxxxx Xxxxxxx | |||
Name: Xxxxxxxxx Xxxxxxx | ||||
Title: Vice President |
[Signature Page to Limited Waiver Agreement]
FORTIS BANK S.A./N.V., CAYMAN ISLANDS BRANCH, as Lender |
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By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: Xxxxxx Xxxxxxxx | ||||
Title: Loan Closer | ||||
By: | /s/ Xxxxx Xxxx | |||
Name: Xxxxx Xxxx | ||||
Title: AVP |
[Signature Page to Limited Waiver Agreement]
GUARANTY BANK, as Lender | ||||
By: | /s/ Xxx Xxxxxxx | |||
Name: Xxx Xxxxxxx | ||||
Title: Senior Vice President |
[Signature Page to Limited Waiver Agreement]
KEYBANK NATIONAL ASSOCIATION, as Lender | ||||
By: | /s/ Tayven Hike, CFA | |||
Name: Tayven Hike, CFA | ||||
Title: Vice President |
[Signature Page to Limited Waiver Agreement]
NATEXIS BANQUES POPULAIRES, as Lender | ||||
By: | /s/ Xxxxx-Xxxxx Dugeny | |||
Name: Xxxxx-Xxxxx Dugeny | ||||
Title: VP- Real Estate Finance Manager | ||||
By: | /s/ Guillaume de Parscau | |||
Name: Guillaume de Parscau | ||||
Title: First VP – Business Development |
[Signature Page to Limited Waiver Agreement]
NATIONAL CITY BANK, as Lender | ||||
By: | /s/ Xxxx X. Xxxxxx | |||
Name: Xxxx X. Xxxxxx | ||||
Title: Senior Vice President |
[Signature Page to Limited Waiver Agreement]
PNC BANK, NATIONAL ASSOCIATION, as Lender |
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By: | /s/ Xxxxxxx X. Xxxx | |||
Name: Xxxxxxx X. Xxxx | ||||
Title: Senior Vice President |
[Signature Page to Limited Waiver Agreement]
XXXXXXX XXXXX BANK, FSB, as Lender | ||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: Xxxxxxx X. Xxxxxxx | ||||
Title: Vice President |
[Signature Page to Limited Waiver Agreement]
SOVEREIGN BANK, as Lender | ||||
By: | /s/ Xxxx X. Xxxxxxxx | |||
Name: Xxxx X. Xxxxxxxx | ||||
Title: Assistant Vice President |
[Signature Page to Limited Waiver Agreement]
UBS LOAN FINANCE, LLC, as Lender | ||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: Xxxxxxx X. Xxxxxx | ||||
Title: Director | ||||
By: | /s/ Xxxx X. Xxxx | |||
Name: Xxxx X. Xxxx | ||||
Title: Associate Director |
[Signature Page to Limited Waiver Agreement]
U.S. BANK NATIONAL ASSOCIATION, as Lender | ||||
By: | /s/ Xxxx Xxxxxx | |||
Name: Xxxx Xxxxxx | ||||
Title: VP |
[Signature Page to Limited Waiver Agreement]
WASHINGTON MUTUAL BANK, as Lender | ||||
By: | /s/ Xxxx X. Xxxxxx | |||
Name: Xxxx X. Xxxxxx | ||||
Title: SVP |