Exhibit 10.1


    
      

    

    Exhibit
      10.1

    

      FIRST
        AMENDMENT TO CREDIT AGREEMENT

       

      THIS
        FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
        is
        made effective as of December 29, 2006, by and between BEAZER MORTGAGE
        CORPORATION, a Delaware corporation ("Borrower"),
        the
        banks
        identified on the signature pages hereof (individually referred to herein
        as a
        "
        Lender"
        and
        collectively as the "Lenders"),
        and
        GUARANTY BANK, a federal savings bank, as administrative and collateral agent
        for the Lenders ("Agent"),
        JPMORGAN CHASE BANK, N.A., as syndication agent, and U.S. BANK NATIONAL
        ASSOCIATION, as documentation agent.

       

      W
        I T N E
        S S E T H:

       

      WHEREAS,
        Borrower and Lender have entered into that certain Credit Agreement dated
        as of
        January 11, 2006 (the "Credit
        Agreement"),
        for
        the purposes and consideration therein expressed; and

       

      WHEREAS,
        Borrower and Lender desire to extend and amend the Credit Agreement as provided
        herein;

       

      NOW,
        THEREFORE, in consideration of the premises and the mutual covenants and
        agreements contained herein and in the Credit Agreement, in consideration
        of the
        loans which may hereafter be made by Lender to Borrower, and for other good
        and
        valuable consideration, the receipt and sufficiency of which are hereby
        acknowledged, the parties hereto do hereby agree as follows:

       

      ARTICLE
        I

       

      Definitions
        and References

       

      1.1  Terms
        Defined in the Credit Agreement.
        Unless
        the context otherwise requires or unless otherwise expressly defined herein,
        the
        terms defined in the Credit Agreement shall have the same meanings whenever
        used
        in this Amendment.

       

      ARTICLE
        II

       

      Amendments
        to Credit Agreement

       

      2.1  Definitions.
        The
        definition of "Drawdown
        Termination Date"
        in
Section
        1.1
        of the
        Credit Agreement is hereby amended in its entirety to read as
        follows:

       

      "'Drawdown
        Termination Date'
        means
        the earlier of February 9, 2007, or the day on which the Notes first become
        due
        and payable in full in accordance with the terms thereof or this
        Agreement."

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      2.2  Waiver
        of Comparative Audit Requirement.
        Agent
        and Lender, on a one-time basis only for the Fiscal Year 2005, and upon
        Borrower's satisfaction of the conditions precedent listed in Article
        III
        hereof,
        hereby agree to waive the comparative audit requirement in Section
        5.1(a)(i),(ii),
        whereby the Borrower is required to furnish the Borrower's audited Consolidated
        statements of income, stockholders' equity and cash flows for such Fiscal
        year
        in "comparative form" with the corresponding figures for the preceding Fiscal
        Year. Notwithstanding the foregoing, the execution of this Amendment shall
        not
        be deemed to be: (a) a waiver of Borrower's duty to provide both the Borrower's
        and Parent's audited Consolidated statements of income, stockholder's equity
        and
        cash flows for such Fiscal Year; rather, the execution of this Amendment
        is
        deemed a waiver solely with regard to the requirement to furnish the Borrower's
        audited Consolidated statements in "comparative form" with the corresponding
        figures for the Fiscal Year 2005; (b) a waiver by Lender of any of the
        Borrower's obligations under the Loan Documents, or (c) a waiver by Lender
        of
        any rights, remedies, offsets, claims, or other causes of action that Lender
        may
        have against Borrower under the Loan Documents, all of which rights Lender
        specifically reserves. 

       

      ARTICLE
        III  

       

      Conditions
        to Effectiveness

       

      3.1  Effective
        Date.
        Amendment
        shall become effective as of the date first above written when and only when
        Agent shall have received, at Agent's office, three (3) original duly executed
        counterparts of this Amendment.

       

      ARTICLE
        IV

       

      Miscellaneous

       

      4.1  Borrower
        Acknowledgment.
        Except
        as otherwise specified herein, the terms and provisions of the Credit Agreement
        are ratified and confirmed by Borrower and shall remain in full force and
        effect, enforceable in accordance with their terms. Borrower hereby
        acknowledges, agrees and represents that (i) contemporaneously with the
        effectiveness of this Amendment, the representations and warranties of Borrower
        contained in the Credit Agreement are true and correct representations and
        warranties, and (ii) Borrower has no set-offs, counterclaims, defenses or
        other causes of action against Lender arising out of the Credit Agreement,
        this
        Amendment, any other Loan Document or otherwise, and to the extent any such
        set-offs, counterclaims, defenses or other causes of action may exist, whether
        known or unknown, such items are hereby waived by Borrower. 

       

      4.2  Costs
        and Expenses.
        Borrower shall pay, or cause to be paid, by check or wire transfer, all costs
        and expenses related to the preparation for and the closing of the transaction
        contemplated by this Amendment, including, but not limited to, the fees and
        expenses of legal counsel to Lender (which
        fees and expenses, as to legal counsel of Lender, shall be paid directly
        to
        legal counsel of Lender immediately upon presentation of a bill for legal
        services rendered).

       

      4.3  CHOICE
        OF LAW; VENUE.
        THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
BORROWER
        HEREBY AGREES THAT THE OBLIGATIONS CONTAINED HEREIN ARE PERFORMABLE IN
DALLAS
        COUNTY, TEXAS.
        ALL PARTIES HERETO AGREE THAT (I) ANY ACTION ARISING OUT OF THIS TRANSACTION
        SHALL BE FILED IN DALLAS
        COUNTY, TEXAS,
        (II) VENUE FOR ENFORCEMENT OF ANY OF THE OBLIGATIONS CONTAINED IN THIS AMENDMENT
        SHALL BE IN DALLAS
        COUNTY, TEXAS
        (III) PERSONAL JURISDICTION SHALL BE IN DALLAS
        COUNTY, TEXAS,
        (IV) ANY ACTION OR PROCEEDING UNDER THIS 

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      AMENDMENT
        SHALL BE COMMENCED AGAINST BORROWER IN DALLAS
        COUNTY, TEXAS
        (V) SUCH ACTION SHALL BE INSTITUTED IN THE COURTS OF THE STATE OF TEXAS LOCATED
        IN DALLAS
        COUNTY, TEXAS
        OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
        LOCATED IN DALLAS COUNTY, TEXAS, AT THE OPTION OF LENDER AND (VI) BORROWER
        HEREBY WAIVES ANY OBJECTION TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
        AND ADDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO BE SUED ELSEWHERE. NOTHING
        HEREIN SHALL AFFECT THE RIGHT OF LENDER TO ACCOMPLISH SERVICE OF PROCESS
        IN ANY
        MANNER PERMITTED BY LAW.

       

      4.4  WAIVER
        OF JURY TRIAL.
        EACH OF THE PARTIES HERETO WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
        LAW, ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
        BASED UPON OR ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE CREDIT AGREEMENT,
        THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
        IN
        ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
        THE
        PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
        TORT
        CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM
        OR
        CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
        THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A
        TRIAL
        BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
        OR
        OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY
        OR
        ENFORCEABILITY OF THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN
        DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
        SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE CREDIT
        AGREEMENT AND ANY OTHER LOAN DOCUMENTS.

       

      4.5  Time
        is of the Essence.
        Time is
        of the essence in the performance of the covenants contained herein and in
        the
        Loan Documents.

       

      4.6  Binding
        Agreement.
        This
        Amendment shall be binding upon the heirs, executors, administrators, personal
        representatives, successors and assigns of the parties hereto; provided,
        however, the foregoing shall not be deemed or construed to (i) permit, sanction,
        authorize or condone the assignment of all or any part of any interest in
        and to
        Borrower or any Guarantor except as expressly authorized in the Loan Documents,
        or (ii) confer any right, title, benefit, cause of action or remedy upon
        any
        person or entity not a party hereto, which such party would not or did not
        otherwise possess.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      4.7  Headings.
        The
        section headings hereof are inserted for convenience of reference only and
        shall
        in no way alter, amend, define or be used in the construction or interpretation
        of the text of such section.

       

      4.8  Construction.
        Whenever the context hereof so required, reference to the singular shall
        include
        the plural and likewise, the plural shall include the singular; words denoting
        gender shall be construed to mean the masculine, feminine or neuter, as
        appropriate; and specific enumeration shall not exclude the general but shall
        be
        construed as cumulative of the general recitation.

       

      4.9  Counterparts;
        Fax.
        This
        Amendment may be separately executed in counterparts and by the different
        parties hereto in separate counterparts, each of which when so executed shall
        be
        deemed to constitute one and the same Amendment. This Amendment may be duly
        executed by facsimile or other electronic transmissions.

       

      4.10  No
        Reliance.
        In executing this Amendment, Borrower warrants and represents that Borrower
        is
        not relying on any statement or representation other than those in the Credit
        Agreement and this Amendment and is relying upon its own judgment and advice
        of
        its attorneys.

       

      4.11  ENTIRE
        AGREEMENT.
        THIS
        AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS COLLECTIVELY
        REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
        BY
        EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
        PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
        PARTIES.

       

      [SIGNATURE
        PAGE FOLLOWS]

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
        executed effective as of the date first above written.

       

      BORROWER:                                                                           BEAZER
        MORTGAGE CORPORATION,

      Borrower's
        Address:                      a
        Delaware corporation

      1000
        Abernathy Road, Suite 1200

      Atlanta,
        GA 30328

      Attention: Mr.
        Ron
        Kuhn

                                        By:
/s/
        Cory J. Boydston

      With
        a
        copy of all notices to:                  
        Name:
        Cory J. Boydston

                                                                                                           
        Title:
        Senior Vice President

      Mr.
        Kenneth J. Gary

      Executive
        Vice President & General Counsel

      Beazer
        Homes USA, Inc.

      1000
        Abernathy Road

      Atlanta,
        GA 30328

      


      


      


      


      STATE
        OF
        GEORGIA              
§

                                                            
        §

      COUNTY
        OF 
        FULTON           
§

      


      


      Before
        me, the undersigned notary public, on this 19th day of December, 2006,
        personally appeared Cory J. Boydston of Beazer Mortgage Corporation, a Delaware
        corporation, known to me (or proved to me by the production of a driver's
        license as identification) to be the person whose name is subscribed to the
        foregoing instrument and acknowledged to me that he executed the same on
        behalf
        of said corporation for the purposes and consideration therein
        expressed.

      


      


      


                        
        /s/ Teresa Rose Dietz

                        
        Notary Public - State of Georgia

      


      My
        Commission
        expires:                                                                       
Teresa
        Rose Dietz

      5
        -5
        -2007                                                                                                  
Printed
        Name of Notary

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      AGENT:                                 GUARANTY
        BANK,

      Address:                                a
        Federal
        savings bank

      8333
        Douglas Avenue, 11th
        Floor

      Dallas,
        Texas 75225

      Attention:
        Ms. Amy Satsky 

      Fax:
        214.360.3328

      Tel:
        214.360.2674                           By:
        /s/
        Amy Satsky

                                                                                                                      
        Name:
        Amy
        Satsky

                     
        Title: Vice President

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                               GUARANTY
        BANK,

      Address:                                a
        Federal
        savings bank,

      8333
        Douglas Avenue, 11th
        Floor                                                      as
        a
        Lender and as Swingline Lender

      Dallas,
        Texas 75225

      Attention:
        Ms. Amy Satsky

      Fax:
        214.360.3328

      Tel:
        214.360.2674                                                                                  
By:
        /s/
        Amy Satsky

                                                                                                                      
        Name:
        Amy
        Satsky

                                                                                                                      
        Title:
        Vice President

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                                      
        JPMORGAN
        CHASE BANK, N.A.

                                                                                                                      
        as
        a
        Lender

      


       

                                                                                                                      
        By:
        /s/
        R. Britt Langford

                                                                                                                      
        Name:
        R.
        Britt Langford

                                                                                                                      
        Title:
        Managing Director

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                               U.S.
        BANK NATIONAL ASSOCIATION

                                                                                                                       as
        a
        Lender

      


      


                                                                                                                      
        By: /s/
        William J. Umscheid

                                                                                                                      
        Name:
        William J. Umscheid

                                                                                                                      
        Title:
        Vice President 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                               BANK
        OF AMERICA, N.A.

                                                                                                                       as
        a
        Lender

      


      


                                                                                                                      
        By:
        /s/
        Elizabeth Kurilecz

                                                                                                                      
        Name:
        Elizabeth Kurilecz

                                                                                                                      
        Title:
        Senior Vice President 

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                                      
        WASHINGTON
        MUTUAL BANK

                                                                                                                       as
        a
        Lender

      


      


                                                                                                                      
        

                                                                                                                      
        By:
        /s/
        Anne D. Brehony

                                                                                                                      
        Name:
        Anne D. Brehony

                                                                                                                       Title:
        Vice President

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                                                                                              
        NATIONAL
        CITY BANK OF KENTUCKY

                                                                                                                      
        as
        a
        Lender

      


      


       

                                                                                                                      
        By:
        /s/
        Michael A. Johnson

                                                                                                                      
        Name:
        Michael A. Johnson

                                                                                                                      
        Title:
        Vice President 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      LENDER:                                      
        COMERICA
        BANK

      500
        Woodward
        Ave.                                                                           
as
        a
        Lender

      Detroit,
        MI 48226

      Attn:
        Paul G. Dufault MC 3256

      Fax:
        313.222.9295 

      Tel:
        313.222.9036                                                                                   By:
        /s/
        Paul G. Dufault

                                                                                                                      
        Name:
        Paul G. Dufault

                                                                                                                      
        Title:
        Vice President 

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                                                                                              
        COLONIAL
        BANK, N.A.

      Colonial
        Bank,
        N.A.                                                                             
as
        a
        Lender

      Mortgage
        Warehouse Lending

      201
        E.
        Pine Street, Suite 730

      Orlando,
        FL 32801

      Attn:
        Jennifer
        Branker                                                                         
By:
        /s/
        Jennifer M. Branker

      Fax:
        407.835.6690                                                                                  
Name:
        Jennifer M. Branker

      Tel:
        407.835.6700                                                                                   Title:
        Vice President

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                                                                                              
        CALYON
        NEW YORK BRANCH

                                                                                                                      
        as
        a
        Lender

      


      


       

                                                                                                                       By:
        /s/
        David Cagle

                                                                                                                      
        Name:
        David Cagle

                                                                                                                      
        Title:
        Managing Director 

      


       

                                                                                                                      
        By:
        /s/
        Robert Smith

                                                                                                                      
        Name:
        Robert Smith

                                                                                                                      
        Title:
        Managing Director 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      LENDER:                                                                                              
        BNP
        PARIBAS

                                                                                                                       as
        a
        Lender

      


      


       

                                                                                                                      
        By: /s/
        Duane Helkowski

                                                                                                                      
        Name:
        Duane Helkowski

                                                                                                                      
        Title:
        Managing Director 

       

                                                                                                                      
        By: /s/
        Berangere Allen

                                                                                                                      
        Name:
        Berangere Allen

                                                                                                                      
        Title:
        Vice President