ex10-1.htm


    
      

    

    Exhibit
      10.1

     

    EXECUTION
      COPY

     

    SECOND
      AMENDMENT

     

    SECOND
      AMENDMENT, dated as of October 26, 2007 (this “Second Amendment”), to the
      Credit Agreement, dated as of July 25, 2007 (as heretofore amended, supplemented
      or otherwise modified, the “Credit Agreement”), among Beazer Homes USA,
      Inc., a Delaware corporation (the “Borrower”), the several lenders from
      time to time parties thereto (the “Lenders”) and Wachovia Bank, National
      Association, as agent (in such capacity, the “Agent”).

     

    W
      I T
      N E S S E T H :

     

    WHEREAS,
      the Borrower, the Lenders and the Agent are parties to the Credit
      Agreement;

     

    WHEREAS,
      the Borrower has requested that the Lenders to amend the Credit Agreement,
      and
      the Lenders are agreeable to such request but only upon the terms and subject
      to
      the conditions set forth herein;

     

    NOW,
      THEREFORE, in consideration of the premises and the mutual agreements contained
      herein, and for other valuable consideration the receipt of which is hereby
      acknowledged, the Borrower, the Lenders, and the Agent agree as
      follows:

     

    SECTION
      1.  DEFINITIONS.  Unless
      otherwise defined herein, capitalized terms are used herein as defined in the
      Credit Agreement.

     

    SECTION
      2.  AMENDMENTS.

     

    2.1  Amendment
      to Section 1.01.

     

    (a)  Section
      1.01 of the Credit Agreement is hereby amended by inserting the following new
      definition in its appropriate alphabetical order:

     

    “Interim
      Period” means the period commencing the date on which any adverse judgment shall
      have been entered in the Senior Notes Litigation until the Restated Financial
      Statements Delivery Date.

     

    (b)  Section
      1.01 of the Credit Agreement is hereby amended by deleting the definition of
      Secured Borrowing Base in its entirety and inserting in lieu thereof the
      following:

     

    “Secured
      Borrowing Base” means, with respect to any date of determination, an amount
      equal to the sum of the following assets of the Loan Parties with respect which
      the Borrower shall have satisfied the Secured Borrowing Base
      Conditions:  an amount equal to (i) 100% of the Unrestricted Cash
plus (ii) 100% (or at any time during the Interim Period, 90%)
      of

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    the
      book
      value of Receivables from Housing Unit Closings plus  (iii) 30%
      (or at any time during the Interim Period, 20%) of the book value of Lots under
      Development plus (iv) 50% (or at any time during the Interim Period, 40%)
      of the book value of Finished Lots plus (v) 65% (or at any time during
      the Interim Period, 45%) of the book value of Speculative Housing Units
plus (vi) 80% (or at any time during the Interim Period, 60%) of the book
      value of Housing Units under Contract; provided that if the Agent has an
      Acceptable Appraisal with respect to a Real Property (or any portion thereof)
      that is included in the Secured Borrowing Base, then the amount of availability
      includable in the Secured Borrowing Base attributable to such Real Property
      (or
      portion thereof) shall be equal to the lesser of (A) the amounts calculated
      as
      set forth above and (B) the amounts that would be calculated as set forth using
      the Appraised Value of such Real Property (or portion thereof) instead of book
      value.  Notwithstanding anything to the contrary herein, (x) not more
      than 30% of the total aggregate Secured Borrowing Base (including, without
      limitation, Unrestricted Cash and Receivables) shall be comprised of Lots Under
      Development and Finished Lots and (y) not more than 25% of the total aggregate
      Secured Borrowing Base (including, without limitation, Unrestricted Cash and
      Receivables) shall be comprised of Secured Borrowing Base Assets of the type
      described in the foregoing clauses (iii) through (vi) that relate to property
      located in a Single Market.

     

    2.2  Amendments
      to Section 2.01.2  Section 2.01.2 of the Credit Agreement is
      hereby amended by deleting each reference in clause (b)(v) thereof to “Issuing
      Lenders therefor” and inserting in lieu thereof “Issuer thereof”.

     

    2.3  Amendments
      to Section 2.11.  Section 2.11(c) is hereby amended by deleting
      the reference to “Borrowing Base” therein and substituting in lieu therein
“Secured Borrowing Base”.

     

    2.4  Amendment
      to Section 8.01.  Section 8.01(13) of the Credit Agreement is
      hereby amended by deleting such Section in its entirety and inserting in lieu
      thereof:

     

    “(13)
      (A) Any adverse judgment shall
      have been entered in the Senior Notes Litigation, and (B)(i) such adverse
      judgment shall not have been stayed, annulled or rescinded within 60 days of
      being entered and (ii) to the extent such judgment has the effect of determining
      that there has been a default with respect to one or more tranches of Senior
      Notes based on the Borrower’s failure to make a filing with the Securities and
      Exchange Commission or to deliver a copy of a Securities and Exchange Commission
      filing to the applicable trustees or denying a motion for preliminary injunction
      with respect to such a default, such defaults shall not have been waived by
      the
      requisite holders of such applicable tranches of Senior Notes in accordance
      with
      the applicable Senior Indentures;”.

    


    SECTION
      3.  CONDITIONS
      PRECEDENT.

     

    3.1  Effective
      Date.  This Second Amendment shall become effective as of the date
      first set forth above (the “Second Amendment Effective Date”) following
      the date on which all of the following conditions have been satisfied or
      waived:

     

    (a)  Execution
      and Delivery.  The Agent shall have received:

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

                    (1)  this
      Second Amendment, executed and delivered by a duly authorized officer of the
      Borrower and the Lenders constituting Required Lenders; and

     

       
(2)  an
      executed Acknowledgment and Consent, in the form set forth as Exhibit A hereto,
      or a facsimile transmission thereof, from each Guarantor (such Acknowledgment
      and Consent, together with this Second Amendment, the “Amendment
      Documents”); and

     

    (b)  After
      giving effect to this Second Amendment, there shall be no Default or Event
      of
      Default.

     

    SECTION
      4.  GENERAL.

     

    4.1  Representations
      and Warranties.

     

    (a)  In
      order
      to induce the Agents and the Lenders to enter into this Second Amendment, the
      Borrower hereby represents and warrants to the Agents, the Arrangers and the
      Lenders that after giving effect to this Second Amendment, the representations
      and warranties of the Borrower contained in the Credit Agreement and the other
      Loan Documents are true and correct in all material respects on and as of the
      Second Amendment Effective Date (after giving effect hereto) as if made on
      and
      as of the Second Amendment Effective Date (except where such representations
      and
      warranties expressly relate to an earlier date in which case such
      representations and warranties were true and correct in all material respects
      as
      of such earlier date); provided that the representations and warranties
      contained in Section 4.04 (Financial Statements), Section 4.06 (Other
      Agreements), Section 4.07 (Litigation), Section 4.14 (Law; Environment) and
      Section 4.17 (Accuracy of Information) shall be deemed to be made as set forth
      in the Credit Agreement except that such representations and warranties shall
      be
      deemed to be made with an exception for the matters identified in the Audit
      Committee Report giving rise to the Restatement.

     

    (b)  In
      order
      to induce the Agents and the Lenders to enter into this Second Amendment, the
      Borrower hereby represents and warrants to the Agents, the Arrangers and the
      Lenders that each of the Borrower and the Guarantors has all necessary corporate
      power and authority to execute and deliver the Amendment Documents; the
      execution and delivery by each such party of the Amendment Documents have been
      duly authorized by all necessary corporate action on its part; and the Amendment
      Documents have been duly executed and delivered by each such party and
      constitute each such party’s legal, valid and binding obligation, enforceable in
      accordance with its terms.

     

    4.2  Notice
      of Effectiveness.  The Agent shall promptly advise the Lenders and
      the Borrower that this Second Amendment has become effective and of the Second
      Amendment Effective Date.

     

    4.3  APPLICABLE
      LAW AND JURISDICTION.  THE RIGHTS AND OBLIGATIONS OF THE PARTIES
      HERETO SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
      WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    4.4  Counterparts.  This
      Second Amendment may be executed by the parties hereto in any number of separate
      counterparts and all of said counterparts taken together shall be deemed to
      constitute one and the same instrument.

     

    4.5  Successors
      and Assigns.  This Second Amendment shall be binding upon and
      inure to the benefit of the Borrower and its successors and assigns, and upon
      the Agents and the Lenders and each of their respective successors and
      assigns.  The execution and delivery of this Second Amendment by any
      Lender prior to the Second Amendment Effective Date shall be binding upon its
      successors and assigns and shall be effective as to any loans or commitments
      assigned to it after such execution and delivery.

     

    4.6  Continuing
      Effect.  Except as expressly amended hereby, the Credit Agreement
      as amended by this Second Amendment shall continue to be and shall remain in
      full force and effect in accordance with its terms.  This Second
      Amendment shall not constitute an amendment or waiver of any provision of the
      Credit Agreement not expressly referred to herein and shall not be construed
      as
      an amendment, waiver or consent to any action on the part of the Borrower that
      would require an amendment, waiver or consent of the Agent or the Lenders except
      as expressly stated herein.  Any reference to the “Credit Agreement”
in any Credit Document or any related documents shall be deemed to be a
      reference to the Credit Agreement as amended by this Second
      Amendment.

     

    4.7  Headings.  Section
      headings used in this Second Amendment are for convenience of reference only,
      are not part of this Second Amendment and are not to affect the constructions
      o,
      or to be taken into consideration in interpreting, this Second Amendment.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
      executed and delivered by their respective duly authorized officers as of the
      date first above written.

     

    


    
      	
              BORROWER:

            	 	
              BEAZER
                HOMES USA, INC.,

            	 
	 	 	
              a
                Delaware corporation

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              By:
                /s/ Allan P. Merrill

            
	 	 	
              Name:
                Allan P. Merrill

            	 
	 	 	
              Title:   
                Executive Vice President

            	 


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	 	
              WACHOVIA
                BANK, NATIONAL ASSOCIATION, 

            
	 	 	
              as
                Agent and as a Lender

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              By:
                /s/ R. Scott Holtzapple

            
	 	 	
              Name:
                R. Scott Holtzapple

            	 
	 	 	
              Title:  
                Senior Vice President

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              CITIBANK,
                N.A.,
                as a Lender

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              By:
                /s/ Marni McManus

            
	 	 	
              Name:
                Marni McManus

            	 
	 	 	
              Title:  
                Director

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              BNP
                PARIBAS,
                as a Lender

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              By:
                /s/ Duane Helkowski

            
	 	 	
              Name:
                Duane Helkowski

            	 
	 	 	
              Title:  
                Managing Director

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              By:
                /s/ Melissa Bailey

            
	 	 	
              Name: 
                Melissa Bailey

            	 
	 	 	
              Title:   
                Vice President

            	 
	 	 	 	 
	 	 	 	 
	 	 	
              THE
                ROYAL BANK OF
                SCOTLAND,
                as a Lender 

            
	 	 	 	 
	 	 	 	 
	 	 	
              By:
                /s/ William McGinty

            
	 	 	
              Name:  William
                McGinty

            	 
	 	 	
              Title:    Senior
                Vice President  

            	 


    

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
       

      
        	 	 	
                REGIONS
                  FINANCIAL
                  CORPORATION,
as
                  a
                  Lender

              	 
	 	 	 	 
	 	 	 	 
	 	 	
                By:
                  /s/ Ronny Hudspeth

              
	 	 	
                Name: Ronny
                  Hudspeth

              	 
	 	 	
                Title:  
                  Senior Vice President

              	 
	 	 	 	 
	 	 	 	 
	 	 	
                JPMORGAN
                  CHASE BANK,
                  N.A.,
                  as a Lender

              	 
	 	 	 	 
	 	 	 	 
	 	 	
                By:
                  /s/ Wayne E. Olson

              
	 	 	
                Name: 
                  Wayne E. Olson

              	 
	 	 	
                Title:   
                  Vice President

              	 
	 	 	 	 
	 	 	 	 
	 	 	
                UBS
                  LOAN FINANCE, LLC, as a Lender

              	 
	 	 	 	 
	 	 	 	 
	 	 	
                By:
                  /s/ Richard L. Tavrow

              
	 	 	
                Name: 
                  Richard L. Tavrow

              	 
	 	 	
                Title:   
                  Director, Banking Product Services, US 

              
	 	 	 	 
	 	 	 	 
	 	 	
                By:
                  /s/ Irja R. Otsa

              	 
	 	 	
                Name: 
                  Irja R. Otsa

              	 
	 	 	
                Title:   
                  Associate Director Banking, Products Services, US 

              
	 	 	 	 
	 	 	 	 
	 	 	
                COMERICA
                  BANK, as a Lender

              	 
	 	 	 	 
	 	 	 	 
	 	 	
                By:
                  /s/ James Graycheck

              
	 	 	
                Name: 
                  James Graycheck

              	 
	 	 	
                Title:   
                  Vice President

              	 


      

       



    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    EXHIBIT
      A

     

    ACKNOWLEDGMENT
      AND CONSENT

     

    Reference
      is made to the Second Amendment, dated as of October __, 2007 (the “Second
      Amendment”), to and under the Credit Agreement, dated as of July 25, 2007
      (as heretofore amended, supplemented or otherwise modified, the “Credit
      Agreement”), among Beazer Homes USA, Inc., a Delaware corporation (the
“Borrower”), the several lenders from time to time parties thereto (the
“Lenders”) and Wachovia Bank, National Association, as agent (in
      such
      capacity, the “Agent”).  Unless otherwise defined herein,
      capitalized terms used herein and defined in the Credit Agreement are used
      herein as therein defined.

     

    Each
      of
      the undersigned parties to the Guaranty hereby (a) consents to the
      transactions contemplated by the Second Amendment and (b) acknowledges and
      agrees that the guarantees and grants of security interests made by such party
      contained in the Guaranty are, and shall remain, in full force and effect after
      giving effect to the Second Amendment.

     

    


    
      	GUARANTORS: 	 	
              APRIL
                CORPORATION 

            
	 	 	
              BEAZER
                ALLIED COMPANIES HOLDINGS, INC. 

            
	 	 	
              BEAZER
                GENERAL SERVICES, INC. 

            
	 	 	
              BEAZER
                HOMES CORP. 

            
	 	 	
              BEAZER
                HOMES HOLDINGS CORP. 

            
	 	 	
              BEAZER
                HOMES INDIANA HOLDINGS CORP. 

            
	 	 	
              BEAZER
                HOMES SALES, INC. 

            
	 	 	
              BEAZER
                HOMES TEXAS HOLDINGS, INC. 

            
	 	 	
              BEAZER
                REALTY, INC. 

            
	 	 	
              BEAZER
                REALTY CORP. 

            
	 	 	
              BEAZER
                REALTY LOS ANGELES, INC. 

            
	 	 	
              BEAZER
                REALTY SACRAMENTO, INC. 

            
	 	 	
              BEAZER/SQUIRES
                REALTY, INC. 

            
	 	 	
              HOMEBUILDERS
                TITLE SERVICES, INC. 

            
	 	 	
              HOMEBUILDERS
                TITLE SERVICES OF VIRGINIA, INC. 

            


    

     

    


    
      	 	 	By:	/s/
              Allan P. Merrill
	 	 	 	
              Name:  Allan
                P. Merrill 

            
	 	 	 	
              Title:   
                Executive Vice President 

            


    

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    


    
      	 	 	
              ARDEN
                PARK VENTURES, LLC

            	 
	 	 	
              BEAZER
                CLARKSBURG, LLC

            	 
	 	 	
              BEAZER
                COMMERCIAL HOLDINGS, LLC

            	 
	 	 	
              BEAZER
                HOMES INVESTMENTS, LLC

            	 
	 	 	
              BEAZER
                HOMES MICHIGAN, LLC

            	 


    

     

    
      
        	 	 	By:	
                BEAZER
                  HOMES CORP., its Managing Member

              
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/
                Allan P. Merrill
	 	 	 	
                Name:  Allan
                  P. Merrill 

              
	 	 	 	
                Title:   
                  Executive Vice President 

              


      

       

      
        	 	 	
                BEAZER
                  SPE, LLC

              	 


      

    

     

    
       

      
        
          	 	 	By:	BEAZER
                  HOMES HOLDINGS CORP., its
                  Member
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/
                  Allan P. Merrill
	 	 	 	
                  Name:  Allan
                    P. Merrill 

                
	 	 	 	
                  Title:   
                    Executive Vice President 

                


        

         

      

    

    


    
      	 	 	
              BEAZER
                HOMES INDIANA, LLP

            	 
	 	 	
              BEAZER
                REALTY SERVICES, LLC

            	 
	 	 	
              PARAGON
                TITLE, LLC

            	 
	 	 	
              TRINITY
                HOMES, LLC

            	 


    

     

     

    
      
        
          
            	 	 	By:	BEAZER HOMES INVESTMENTS,
                    LLC,
                    
	 	 	 	its
                    Managing Member or Managing Partner
	 	 	 	 
	 	 	 	 
	 	 	By:	BEAZER
                    HOMES CORP., its
                    Managing Member
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/
                    Allan P. Merrill
	 	 	 	
                    Name:  Allan
                      P. Merrill 

                  
	 	 	 	
                    Title:   
                      Executive Vice President 

                  


          

           

        

      

    

     

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

     

    
      


      


      
        	 	 	
                BEAZER
                  HOMES TEXAS, L.P.

              	 
	 	 	
                TEXAS
                  LONE STAR TITLE, L.P.

              	 


      

       

      
        
          	 	 	By:	BEAZER
                  HOMES TEXAS HOLDINGS, INC., its General Partner
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/
                  Allan P. Merrill
	 	 	 	
                  Name:  Allan
                    P. Merrill 

                
	 	 	 	
                  Title:   
                    Executive Vice President 

                


        

         

        
          	 	 	
                  BH
                    BUILDING PRODUCTS, LP

                	 


        

      

       

      
         

        
          
            	 	 	By:	BH PROCUREMENT SERVICES,
                    LLC, its
                    General Partner
	 	 	 	 
	 	 	 	 
	 	 	By:	BEAZER
                    HOMES TEXAS, L.P., its Managing Member
	 	 	 	 
	 	 	 	 
	 	 	By:	BEAZER
                    HOMES TEXAS HOLDINGS, INC., its General Partner
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/
                    Allan P. Merrill
	 	 	 	
                    Name:  Allan
                      P. Merrill 

                  
	 	 	 	
                    Title:   
                      Executive Vice President 

                  


          

           

        

      

      


      
        	 	 	
                BH
                  PROCUREMENT SERVICES, LLC

              	 


      

       

       

      
        
          
            
              	 	 	By:	BEAZER HOMES TEXAS,
                      L.P., its
                      Managing Member
	 	 	 	 
	 	 	 	 
	 	 	By:	BEAZER HOMES TEXAS
                      HOLDINGS, INC.,
                      its General Partner
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/
                      Allan P. Merrill
	 	 	 	
                      Name:  Allan
                        P. Merrill 

                    
	 	 	 	
                      Title:   
                        Executive Vice President