ex10-1.htm


    
      

    

    
      EXHIBIT
        10.1

       

      EXECUTION
        VERSION

    

     

    WAIVER
      AND FIRST AMENDMENT

     

    WAIVER
      AND FIRST AMENDMENT, dated as of October 10, 2007 (this “First
      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”).

     

     

    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 advised the Agent and the Lenders that it intends to restate
      its financial statements for the fiscal quarters ended June 30, 2007, March
      31,
      2007 and December 31, 2006 and each of the fiscal years ended September 30,
      2006, September 30, 2005, September 30, 2004, September 30, 2003 and September
      30, 2002 and each fiscal quarter occurring during such fiscal years (the
“Restatement”) in connection with the findings and conclusions made by
      the Borrower’s Audit Committee during its investigation of certain accounting
      matters described on Schedule I (the “Audit Committee
      Report”);

     

    WHEREAS,
      the Borrower has further advised, and hereby acknowledges to, the Agent and
      the
      Lenders that as a result of (x) the matters identified in the Audit Committee
      Report giving rise to the Restatement and (y) the alleged violation of the
      applicable Senior Indentures asserted by the applicable indenture trustee
      thereunder in the notices of default delivered to the Borrower on September
      6,
      2007 and September 7, 2007, (i) Events of Default have occurred and are
      continuing under Section 8.01(2) of the Credit Agreement by reason of the
      Borrower’s breach of the representations and warranties contained in Sections
      4.04 (Financial Statements) and Section 4.17 (Accuracy of Information) of the
      Credit Agreement, (ii) Events of Default may have occurred and be continuing
      under Section 8.01(2) of the Credit Agreement by reason of the Borrower’s breach
      of the representations and warranties contained in Section 4.06 (Other
      Agreements), Section 4.07 (Litigation) and Section 4.14 (Laws; Environment)
      of
      the Credit Agreement, (iii) Defaults and Events of Default have occurred and
      are
      continuing under Section 8.01(3) of the Credit Agreement by reason of the
      Borrower’s failure to comply with the covenants contained in Section 5.08(1)
      (Quarterly Financial Statements), Section 5.08(2) (Annual Financial Statements),
      Section 5.08(7) (Compliance Certificate), Section 5.08(11) (Notice of Defaults
      and Events of Default) and Section 5.09 (Subsidiary Reporting Requirements)
      of
      the Credit Agreement, (iv) Defaults and Events of Default may have occurred
      and
      be continuing under Section 8.01(3) of the Credit Agreement by reason of the
      Borrower’s failure to comply with the covenant contained in Section 5.06
      (Compliance with Laws) and Section 5.08(6) (Borrowing Base Certificate), (v)
      Defaults and Events of Default will occur and be continuing under Section
      8.01(3) of the Credit Agreement, but for the waivers contained in this First
      Amendment, by reason of the Borrower’s failure to comply with the requirements
      contained in Section 5.08(2) (Annual Financial Statements), Section 5.08(4)(b)
      (Variance Analysis), Section 5.08(7) (Compliance Certificate) and Section
      5.08(9) (Accountant’s Report) to deliver financial statements for the fiscal
      year of the Borrower ending September 30, 2007 and the required accompanying
      certificates and letter, (vi) Defaults and Events of Default will occur and
      be
      continuing under Section 8.01(3) of the Credit Agreement, but for the waivers
      contained in this First Amendment, by reason of the Borrower’s failure to comply
      with the requirements contained in Section 5.08(1) (Quarterly Financial
      Statements), Section 5.08(4)(a) (Variance Analysis) and Section 5.08(7)
      (Compliance Certificate) to deliver financial statements for the Borrower’s
      fiscal quarter ending December 31, 2007 and the required accompanying
      certificates, and (vii) Defaults and Events of Default will occur and be
      continuing under Section 8.01(3) of the Credit Agreement, but for the waivers
      contained in this First Amendment, by reason of the Borrower’s failure to comply
      with the requirements contained in Section 5.09 (Subsidiary Reporting
      Requirements) to deliver financial statements of the Borrower’s Subsidiaries;
      and

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    WHEREAS,
      the Borrower further acknowledges that as a result of the Defaults and Events
      of
      Default described in the immediately preceding paragraph, the Lenders have
      no
      obligation to make any further extensions of credit;

     

    WHEREAS,
      the Borrower has requested that the Lenders waive such Defaults and Events
      of
      Default to afford the Borrower an opportunity to restate its financial
      statements and the financial statements of its Subsidiaries, 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.  WAIVERS.

     

    2.1  The
      Lenders hereby waive:

     

    (a)
      any Defaults or Events of Default
      under Section 8.01(2) and (3) of the Credit Agreement arising solely (i) by
      reason of the representations and warranties contained in Sections 4.04
      (Financial Statements), 4.06 (Other Agreements), 4.07 (Litigation), 4.14 (Law;
      Environment) and 4.17 (Accuracy of Information) of the Credit Agreement having
      proven to have been incorrect, incomplete or misleading as a result of the
      matters identified in the Audit Committee Report giving rise to the Restatement
      and (ii) by reason of the Borrower’s failure to comply with the covenants
      contained in Section 5.06 (Compliance with Laws), Section 5.08(1) (Quarterly
      Financial Statements), Section 5.08(2) (Annual Financial Statements), Section
      5.08(4) (Variance Analysis), Section 5.08(6) (Borrowing Base Certificate),
      Section 5.08(7) (Compliance Certificate), Section 5.08(10) (Notice of
      Litigation), Section 5.08(11) (Notice of Defaults and Events of Default) and
      Section 5.09 (Subsidiary Reporting Requirements) of the Credit Agreement as
      a
      result of the matters identified in the Audit Committee Report giving rise
      to
      the Restatement;

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (b)
      compliance with the covenants
      contained in (i) Sections 5.08(2) (Annual Financial Statements), 5.08(4)(b)
      (Variance Analysis), 5.08(7) (Compliance Certificate), 5.08(9) (Accountant’s
      Report) and 5.09(2) (Annual Financial Statements) of the Credit Agreement for
      the fiscal year of the Borrower ended September 30, 2007 and (ii) Sections
      5.08(1) (Quarterly Financial Statements), 5.08(4)(a) (Variance Analysis),
      5.08(7) (Compliance Certificate) and 5.09(1) (Quarterly Financial Statements)
      of
      the Credit Agreement for the fiscal quarter of the Borrower ending December
      31,
      2007, in each case as a result of the matters identified in the Audit Committee
      Report giving rise to the Restatement; provided that the foregoing
      waivers in this clause (b) above shall be conditioned upon (x) until delivery
      of
      the Restated Financial Statements in accordance with clause (y) below, the
      Borrower furnishing to the Agent, within the time frames therefor set forth
      in
      Section 5.08(1), 5.08(2), 5.09(1) and 5.09(2) of the Credit Agreement, the
      financial statements required therein except that such financial statements
      shall not be required to be audited or reviewed by auditors and shall be
      accompanied by a certificate of the President or the Chief Financial Officer
      of
      the Borrower certifying (i) that such financial statements were prepared in
      good faith, based upon reasonable assumptions and fairly present, in all
      material respects, the financial position and results of operations of the
      Borrower for the period indicated, subject to the Restatement (such financial
      statements, the “Interim Financial Statements”), (ii) the Borrower’s
      compliance with all financial covenants, including without limitation those
      set
      forth in Section 6.10 and Article VII of the Credit Agreement, which certificate
      shall set forth in reasonable detail the computation thereof and (iii) that
      to
      the best of his knowledge no Default or Event of Default has occurred and is
      continuing, or if a Default or Event of Default has occurred and is continuing,
      a statement as to the nature thereof and the action which is proposed to be
      taken with respect thereto and (y) the Borrower furnishing to the Agent for
      delivery to each of the Lenders no later than 3:00 p.m. (New York City time)
      on
      May 15, 2008 (i) the annual financial statements and related materials required
      by Sections 5.08(2), 5.08(4)(b), 5.08(7), 5.08(9) and 5.09(2) of the Credit
      Agreement in respect of the fiscal year of the Borrower ended September 30,
      2007
      and (ii) the quarterly financial statements and related materials required
      by Sections 5.08(1), 5.08(4)(a), 5.08(7) and 5.09(1) of the Credit Agreement
      in
      respect of the fiscal quarter ending December 31, 2007 (all such financial
      statements described in clauses (i) and (ii), the “Restated Financial
      Statements”); and

     

    (c)
      any Defaults or Events of Default
      under Section 8.01(2), (3) and (4) of the Credit Agreement arising solely as
      a
      result of the violation of the applicable Senior Indentures asserted by the
      applicable indenture trustee thereunder in the notices of default delivered
      to
      the Borrower on September 6, 2007 and September 7, 2007 (it being understood
      that the Lenders shall not be deemed to have waived any Defaults or Events
      of
      Default hereunder arising from the acceleration of the obligations under any
      of
      the Senior Indentures, whether or not as a result of the matters asserted in
      such notices of default).

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    SECTION
      3.  AMENDMENTS
      AND OTHER AGREEMENTS.

     

    3.1  Amendment
      to Section 1.01.

     

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

     

    “Acceptable
      Appraisal” means an appraisal commissioned by and addressed to the Agent
      (reasonably acceptable to the Agent as to form, assumptions, substance, and
      appraisal date), prepared by a qualified professional appraiser reasonably
      acceptable to the Agent, and complying in all material respects with the
      requirements of the Federal Financial Institutions Reform, Recovery and
      Enforcement Act of 1989.

    


     “Aggregate
      Outstanding Extensions of Credit” means, at any time, the sum of the aggregate
      principal amount of all Loans (including all Swing Line Loans) and the Facility
      Letter of Credit Obligations, in each case outstanding at such
      time.

     

    “Appraised
      Value” means, with respect to any Real Property or any portion thereof, the
      appraised value of such Real Property or portion thereof set forth in the
      most-recent Acceptable Appraisal obtained by the Agent pursuant to the Loan
      Documents.  The Appraised Value of (a) a Real Property shall be
      adjusted to take into account any portion that has been sold or otherwise
      transferred, and (b) a portion of a Real Property shall be calculated based
      upon the Acceptable Appraisal for such Real Property and allocated to such
      portion of such Real Property by the Borrower based upon a reasonable
      methodology approved by the Agent, including a methodology to reflect the value
      of ongoing or completed construction of Housing Units and improvements to Lots
      under Development.

     

    “Adjusted
      Cash Flow from Operations” means, for any period of four consecutive fiscal
      quarters of the Borrower and its Subsidiaries (other than those Subsidiaries
      that are not Guarantors), the sum of (a) the cash generated by (or used in)
      operating activities, as calculated on the quarterly financial statements for
      the Borrower and its Subsidiaries, on a consolidated basis for such period,
      as
      determined in accordance with GAAP, such amount being reflected in the line
      item
      designated “Net Cash (used in) provided by operating activities” on the
      Borrower’s quarterly financial statements, plus (b) Interest Incurred of the
      Borrower and its Subsidiaries, on a consolidated basis for such four consecutive
      fiscal quarters, as determined in accordance with GAAP.

     

    “Audit
      Committee Report” has the meaning set forth in the First Amendment.

     

    “Cash
      Collateral Agreement” means the Cash Collateral Agreement to be executed and
      delivered by the Borrower in accordance with Section 5.16, in form and substance
      reasonably satisfactory to the Agent and the Borrower.

     

    “Collateral”
      means all property of the Loan Parties, now owned or hereafter acquired, upon
      which a Lien is purported to be created by any Security Document.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Collateral
      Agreement” means the Collateral Agreement to be executed and delivered by the
      Borrower and each Subsidiary Guarantor in accordance with Section 5.16, in
      form
      and substance reasonably satisfactory to the Agent and the
      Borrower.

     

    “Collateral
      Release Conditions” means the collective reference to the following conditions:
      (a) the Restated Financial Statements shall have been filed with the Securities
      and Exchange Commission, (b) no Default or Event of Default shall have occurred
      and be continuing under this Agreement, (c) the Senior Notes Resolution shall
      have occurred and (d) the Borrower shall have maintained an Interest Coverage
      Ratio (determined for the last four quarter period then most recently ended)
      of
      not less than 1.75 to 1.00 for two consecutive fiscal quarters then most
      recently ended.

     

    “Collateral
      Release Date” means the date on which the Collateral Release Conditions have
      been satisfied in accordance with Section 2.01.2(b)(v).

     

    “Construction
      Inspector” means the architectural or engineering firm or such party which the
      Agent shall designate to perform various services on behalf of the Agent and
      the
      Lenders.  The services to be performed by the Construction Inspector
      shall include inspections, review of the plans and all proposed changes to
      them,
      preparation of a “cost breakdown” construction analysis, periodic inspections of
      construction work for conformity with the plans, approval of draw requests
      and
      the issuance of reports and certifications solely for the benefit of the Agent
      and the Lenders and shall not impose upon the Agent or any Lender any obligation
      to make inspections, or to correct or require any other Person to correct any
      defects, or to notify any Person with respect to such defects,.

     

    “First
      Amendment” means the Waiver and First Amendment, dated as of October 10,
      2007, to and under this Agreement.

     

    “First
      Amendment Effective Date” means the date that the First Amendment becomes
      effective in accordance with its terms.

     

    “Interest
      Incurred” means, for any period, the sum (on a consolidated basis for the
      Borrower and its Subsidiaries (other than those Subsidiaries which are not
      Guarantors)) of all interest incurred (whether expensed or capitalized) of
      the
      Borrower and its Subsidiaries, less the amount of interest income for such
      period.

     

    “Loan
      Party” means the Borrower and each Guarantor.

     

    “Mortgaged
      Property” means the real estate of the Loan Parties, as to which the Agent for
      the benefit of the Lenders has been granted a Lien pursuant to a
      Mortgage.

     

    “Mortgages”
      means each of the mortgages, deeds of trust and similar instruments (including
      any spreader, amendment, restatement or similar modification of any existing
      Mortgage) made by any Loan Party in favor of the Agent or for the benefit of
      the
      Agent, for the benefit of the Lenders, in form and substance reasonably
      satisfactory to the Agent and the Borrower.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Mortgage
      Condition” means, as to any Qualified Real Property of the Loan Parties, (a) the
      Agent shall have received a Mortgage with respect to each Mortgaged Property
      encumbered by such Mortgage, executed and delivered by a duly authorized officer
      of each party thereto, (b) if requested by the Agent, the Agent shall have
      received, and the title insurance company issuing the policy referred to in
      clause (c) below (the “Title Insurance Company”) shall have received,
      maps or plats or an as-built survey of the sites of the Mortgaged Properties
      either certified to the Agent and the Title Insurance Company in a manner
      satisfactory to them, dated a date reasonably satisfactory to the Agent and
      the
      Title Insurance Company by an independent professional licensed land surveyor
      reasonably satisfactory to the Agent and the Title Insurance Company or
      otherwise acceptable to the Title Insurance Company to induce the Title
      Insurance Company to remove any survey exception from the policy referred to
      in
      clause (c) below and issue customary survey-dependent endorsements, (c) the
      Agent shall have received in respect of each Mortgaged Property a mortgagee’s
      title insurance policy (or policies) or marked up unconditional binder for
      such
      insurance, in each case in form and substance reasonably satisfactory to the
      Agent, (d) the Agent shall have received evidence satisfactory to it that all
      premiums in respect of each such policy referred to in clause (c) above, all
      charges for mortgage recording tax, and all related expenses, if any, have
      been
      paid, (e) if requested by the Agent, the Agent shall have received (A) a policy
      of flood insurance that (1) covers any parcel of improved real property that
      is
      encumbered by any Mortgage and (2) provides coverage in an amount not less
      than
      the outstanding principal amount of the indebtedness secured by such Mortgage
      that is reasonably allocable to such real property or the maximum limit of
      coverage made available with respect to the particular type of property under
      the National Flood Insurance Act of 1968, whichever is less, and (B)
      confirmation that the Borrower has received the notice required pursuant to
      Section 208(e)(3) of Regulation H of the Board, (f) the Agent shall have
      received a copy of all recorded documents referred to, or listed as exceptions
      to title in, the policy or policies referred to in clause (c) above and a copy
      of all other material documents affecting the Mortgaged Properties, (g) the
      Agent shall have received evidence that counterparts of such Mortgages have
      been
      filed in the offices that the Agent may reasonably deem necessary or desirable
      in order to create a valid Lien on the property described therein in favor
      of
      the Agent and evidence that all other actions that the Agent may reasonably
      deem
      necessary or desirable in order to create valid and perfected first priority
      Liens on the Mortgaged Properties has been taken, subject to Liens permitted
      by
      Section 6.01(1) through (6) to the extent such Liens are senior in priority
      to
      the Lien created by the Mortgage by operation of law and Liens that are
      exceptions to coverage in the title policies referred to in clause (c) above
      and
      (h) the Agent shall have received a letter of opinion of local counsel addressed
      to the Agent and the Lenders in states in which the Qualified Real Property
      is
      located with respect to the enforceability and validity of the Mortgages and
      any
      related fixture filings in form and substance reasonably satisfactory to the
      Administrative Agent.

     

    “Permitted
      Secured Debt Conditions” means, with respect to any Secured Debt permitted to be
      incurred under Section 6.02, the collective reference to the following
      conditions: (i) no Default or Event of Default shall have occurred and be
      continuing and (ii) all representations and warranties shall be true and correct
      in all material respects immediately prior to, and immediately after giving
      effect to, the incurrence of such Secured Debt.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Qualified
      Real Property” means, with respect to any Loan Party, all Real Property that is
      owned solely by such Person; provided that no Real Property shall be
      considered for inclusion as Qualified Real Property unless (a) the Agent shall
      have received an Acceptable Appraisal (the fees and expenses associated with
      such Acceptable Appraisal to be paid by the Borrower in accordance with the
      terms of this Agreement), (b) the Agent shall be satisfied that all actions
      necessary or desirable in order to create perfected first priority Lien on
      such
      real property have been taken, including, the filing and recording of Mortgages
      and (c) the Agent shall have received an environmental assessment report, in
      form and substance reasonably satisfactory to the Agent from an environmental
      consulting firm reasonably satisfactory to the Agent (it being understood that
      in satisfaction of this clause (c), the Agent shall accept Phase I environmental
      reports which have been prepared no more than two years prior to the date of
      delivery thereof or if any such report was prepared more than two years prior
      to
      the date of delivery thereof, an environmental database update with respect
      thereto, so long as each such report and update is in form and substance
      reasonably satisfactory to the Agent). 

     

    “Real
      Property” means all of those plots, pieces or parcels of land now owned, leased
      or hereafter acquired or leased by a Loan Party (the “Land”), together
      with the right, title and interest of such Loan Party in and to the streets,
      the
      land lying in the bed of any streets, roads or avenues, opened or proposed,
      in
      front of, the air space and development rights pertaining to the Land and the
      right to use such air space and development rights, all rights of way,
      privileges, liberties, tenements, hereditaments and appurtenances belonging
      or
      in any way appertaining thereto, all fixtures, all easements now or hereafter
      benefiting the Land and all royalties and rights appertaining to the use and
      enjoyment of the Land necessary for the residential development of such Land,
      together with all of the buildings and other improvements now or hereafter
      erected on the Land, and any fixtures appurtenant thereto.  It is
      understood that any calculation of the book value of Real Property shall be
      calculated as of the month end last reported in a Borrowing Base
      Certificate.

     

    “Restated
      Financial Statements” has the meaning set forth in the First
      Amendment.

     

    “Restated
      Financial Statements Delivery Date” means the date on which the Restated
      Financial Statements shall have been delivered in accordance with Section 2.1(b)
      of the First Amendment.

     

    “Restatement”
      has the meaning set forth in the First Amendment.

     

    “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% of the book value of Receivables from Housing Unit
      Closings plus  (iii) 30% of the book value of Lots under
      Development plus (iv) 50% of the book value of Finished Lots plus
      (v) 65% of the book value of Speculative Housing Units plus (vi) 80% 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.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Secured
      Borrowing Base Assets” means those assets of the Loan Parties with respect to
      which the Secured Borrowing Base Conditions shall have been
      satisfied.

     

    “Secured
      Borrowing Base Conditions” means those conditions set forth on Schedule
      IV.

     

    “Security
      Documents” means the collective reference to the Cash Collateral Agreement, the
      Collateral Agreement, the Mortgages and all other security documents hereafter
      delivered to the Agent granting a Lien on any property of any Person to secure
      the Obligations of the Loan Parties under any Loan Document.

     

    “Senior
      Notes Litigation” means the litigation captioned “Beazer Homes USA, Inc. v. U.S.
      Bank National Association and U.S. Bank Trust National Association”, Civil
      Action, File No. 1:07-CV-2006-JEC, pending in the United States District Court
      for the Northern District of Georgia (Atlanta Division), commenced on or about
      September 10, 2007.

     

    “Senior
      Notes Resolution” means, so long as no action has been taken by the applicable
      trustee under the Senior Indentures to exercise rights and remedies thereunder,
      the occurrence of either (i) a final and nonappealable order entered in favor
      of
      the Borrower in the Senior Notes Litigation or (ii) any settlement of the Senior
      Notes Litigation by entry of a final, nonappealable order dismissing the Senior
      Notes Litigation with prejudice.

     

    “Single
      Market” means the reference to each separate metropolitan statistical area
      identified on Schedule V, as updated by the Borrower from time to
      time.

     

    (b)  Section
      1.01 of the Credit Agreement is hereby amended by inserting in the definition
      of
“Borrowing Base Availability” after “Borrowing Base” therein the phrase “or the
      Secured Borrowing Base, as applicable,”.

     

    (c)  Section
      1.01 of the Credit Agreement is hereby amended by inserting in the definition
      of
“Borrowing Base Debt” after “means” the phrase: “(a) at any time prior to the
      Collateral Release Date, the Aggregate Outstanding Extensions of Credit and
      (b)
      at any time on and after the Collateral Release Date,”.

     

    (d)  Section
      1.01 of the Credit Agreement is hereby amended by inserting in the definition
      of
“Inventory Valuation Date” at the end thereof immediately before the period
      therein “and, at any time prior to the Collateral Release Date, Section
      2.01.2(b)(ix)”.

     

    (e)  Section
      1.01 of the Credit Agreement is hereby amended by deleting in its entirety
      the
      definition of “Loan Documents” inserting in lieu thereof the
      following:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    “Loan
      Documents” means this Agreement, the Notes, the Guaranties, the Security
      Documents, the Reimbursement Agreements, and any and all documents delivered
      hereunder or pursuant hereto.”.

     

    (f)  Section
      1.01 of the Credit Agreement is hereby amended by inserting in the definition
      of
“Secured Debt” immediately after the word “excluding” the phrase “the
      Obligations, the obligations under the Senior Indentures and”.

     

    (g)  Section
      1.01 of the Credit Agreement is hereby amended by inserting in the definition
      of
“Unrestricted Cash” at the end thereof immediately prior to the period therein
“, except to the extent such cash is identified as “restricted” as a result of
      the Liens pursuant to the Security Documents”.

     

    3.2  Amendments
      to Section 2.01.2

     

    (a)  Section
      2.01.2 of the Credit Agreement is hereby amended by deleting such Section in
      its
      entirety and inserting in lieu thereof the following:

     

     “Section
      2.01.2 Borrowing Bases.

     

    (a)
      Borrowing Base.  At any time after the Collateral Release Date
      when the Borrower’s senior unsecured long-term debt does not have a rating of
      BBB- or higher from S&P or Baa3 or higher from Moody’s, (i) the aggregate
      amount of Borrowing Base Debt at any one time outstanding may not exceed the
      Borrowing Base as of the most recent Inventory Valuation Date and (ii) no Loan
      shall be made, and no Facility Letter of Credit shall be issued or amended,
      that
      would have the effect of increasing the then outstanding amount of the Borrowing
      Base Debt to an amount exceeding such Borrowing Base, provided that a
      Loan shall not be deemed to have increased the amount of the Borrowing Base
      Debt
      to the extent that the proceeds of such Loan are immediately used to repay
      a
      Swing Line Loan theretofore included in the Borrowing Base Debt.

     

    (b)  Secured
      Borrowing Base.  (i) On and after the First Amendment Effective
      Date, (A) the aggregate amount of Aggregate Outstanding Extensions of Credit
      at
      any one time outstanding shall not exceed the Secured Borrowing Base as of
      the
      most recent date of determination and (B) no Loan shall be made, and no Facility
      Letter of Credit shall be issued or amended, if after giving effect to the
      incurrence of such Loan or the issuance or amendment of such Facility Letter
      of
      Credit, the then outstanding amount of the Aggregate Outstanding Extensions
      of
      Credit shall exceed the Secured Borrowing Base as of the most recent date of
      determination; provided that a Loan shall not be deemed to have increased
      the amount of the Aggregate Outstanding Extensions of Credit to the extent
      that
      the proceeds of such Loan are immediately used to repay a Swing Line Loan
      theretofore included in the calculation of Aggregate Outstanding Extensions
      of
      Credit.  On and after the Collateral Release Date, the Borrower shall
      no longer be required to comply with this Section 2.01.2(b), which Section
      shall
      have no further force and effect.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (ii)           The
      Borrower may, upon not less than seven days’ prior notice, request in writing
      that the Agent release its Liens on Mortgaged Properties or any portion thereof
      that the Borrower or the applicable Loan Party has a Housing Unit under Contract
      to be sold in the ordinary close of business with a closing date that is within
      thirty days of the requested release.  In the event that the Agent
      receives such request in accordance herewith, then the Agent shall release
      its
      Liens on such Mortgaged Property (or the portion thereof, including any related
      personal property) within five Business Days prior to the date of the Housing
      Unit Closing so long as the net proceeds of such sale are paid to the Agent
      to
      be applied to repay the outstanding Loans and/or cash collateralize outstanding
      Facility Letters of Credit.  Upon the release of the Agent’s Liens on
      any portion of the Mortgaged Properties, such portion of the Mortgaged
      Properties shall no longer be included in the calculation of the Secured
      Borrowing Base as reflected in the next Borrowing Base Certificate to be
      delivered by the Borrower.

     

    (iii)           With
      respect to Unrestricted Cash or Mortgaged Property included in the calculation
      of the Secured Borrowing Base, from time to time, the Borrower may request
      in
      writing (which in the case of any release of Unrestricted Cash in exchange
      for
      the pledge of Mortgaged Property, shall include a certification that any such
      Unrestricted Cash released shall be paid in immediately available funds to
      the
      Loan Party which shall have pledged such Mortgaged Property substituting
      therefor), that the Agent release its Lien on (x) such Unrestricted Cash, (y)
      such Mortgaged Property (or any portion thereof, including any related personal
      property) in order to substitute one or more Mortgaged Properties in lieu
      thereof or (z) on Unrestricted Cash or Mortgaged Property (or any portion
      thereof, including any related personal property), or any combination thereof
      as
      the Borrower may determine in its sole discretion at any time that the Secured
      Borrowing Base exceeds the Aggregate Outstanding Extensions of Credit as of
      the
      most recent date of determination in an amount not to exceed such
      excess.  In the event that the Agent receives such request in
      accordance herewith, then the Agent shall, (A) so long as no Event of Default
      has occurred and is continuing or would result therefrom and (B) either after
      giving effect to such release and any substitution of Mortgaged Properties
      (or
      any portion thereof) (I) the Aggregate Outstanding Extensions of Credit does
      not
      exceed the lesser of the Secured Borrowing Base and the Aggregate Commitment,
      or
      (II) the Required Lenders approve such release, then within ten days of such
      request, release its Lien on such Unrestricted Cash or such Mortgaged Property
      (or any portion thereof, including any related personal property);
provided that (X) if Unrestricted Cash is subject to the request for
      release, (Y) in the case of a release described in clause (z) above or (Z)
      if
      Mortgaged Property subject to the request for a release constitutes more than
      10% of the book value of the aggregate Secured Borrowing Base Assets used in
      the
      calculation of the Secured Borrowing Base, then the Borrower shall provide
      to
      the Agent an updated Borrowing Base Certificate evidencing compliance with
      the
      Secured Borrowing Base as described above.  Any Unrestricted Cash
      released hereunder in exchange for Mortgaged Property shall be paid in
      immediately available funds to the Loan Party which shall have pledged such
      Mortgaged Property substituting therefor.  Upon the release of the
      Agent’s Liens on any Unrestricted Cash or Mortgaged Property, such Unrestricted
      Cash or Mortgaged Property shall no longer be included in the calculation of
      the
      Secured Borrowing Base.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (iv)           A
      Loan Party may,
      without the consent of any Lender, the Agent or any other Person, (A) make
      immaterial dispositions (including, but not limited to, lot line
      adjustments) of portions of any Mortgaged Property for dedication or public
      use
      to, or permit the creation of Liens to secure the levy of special assessments
      in
      favor of, governmental authorities, community development districts and property
      owners’ associations, (B) make immaterial dispositions of portions of the
      Mortgaged Property to third parties for the purpose of resolving any
      encroachment issues, (C) grant easements, restrictions, covenants, reservations
      and rights-of-way for resolving minor encroachment issues or for access, water
      and sewer lines, telephone, cable and internet lines, electric lines or other
      utilities or for other similar purposes, and (D) consent to or join in any
      land
      use or other development approval documents (including subdivision plats,
      easements and the like) provided that such disposition, grant or consent is
      usual and customary in the normal course of the Borrower’s development business
      and otherwise does not materially impair the value, utility or operation of
      the
      applicable Mortgaged Property.  In connection with any disposition or
      creation of any Lien or any grant or consent permitted pursuant to this Section,
      the Agent shall execute and deliver or cause to be executed and delivered any
      instrument reasonably necessary or appropriate in the case of the dispositions
      referred to above to release the portion of the Mortgaged Property affected
      by
      such disposition from the Lien of the applicable Mortgage, or to subordinate
      the
      Lien of the applicable Mortgage, or acknowledge that the Lien of any Mortgage
      is
      subordinate, to such Liens, easements, restrictions, covenants, reservations
      and
      rights-of-way or other similar grants, or to evidence such consent or joinder,
      in each case upon receipt by the Agent of (x) five Business Days’ prior written
      notice thereof; (y) a copy of the applicable instrument or instruments of
      disposition or subordination; and (z) a certificate from an officer of the
      Borrower stating that such disposition is usual and customary in the normal
      course of the Borrower’s development business and otherwise does not materially
      impair the value, utility or operation of the applicable Mortgaged
      Property.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (v)           The
      Agent and the Lenders hereby agree that (A) upon satisfaction of the Collateral
      Release Conditions, all of the security interests in, and Liens on, the
      Collateral, shall be deemed to be forever released, discharged and terminated,
      (B) upon satisfaction of the Permitted Secured Debt Conditions, all of the
      security interests and Liens shall be deemed to be forever released, discharged
      and terminated on the applicable Collateral being pledged to the secured party
      providing the Secured Debt only to the extent such Secured Debt is permitted
      under Section 6.02 (it being understood that, in the case of this clause (B),
      no
      Liens shall be released, discharged or terminated on Collateral included in
      the
      Secured Borrowing Base and the proceeds thereof) and (C) upon the occurrence
      of
      the Termination Date prior to the Collateral Release Date and payment in full
      of
      all the outstanding Obligations (or, with respect to outstanding Facility
      Letters of Credit, cash collateralization or other arrangements reasonably
      satisfactory to Issuing Lenders therefor and the Agent) all of the security
      interests in, and Liens on, the Collateral, shall be deemed to be forever
      released, discharged and terminated.  In the case of the foregoing
      clause (A), all provisions herein related to the Secured Borrowing Base and
      Liens of the Agent on Collateral shall be deemed automatically terminated and
      of
      no further force and effect from and after the date that the Collateral Release
      Conditions shall have been satisfied. From and after the date
      that the Collateral Release Conditions or the Permitted Secured Debt Conditions,
      as the case may be, shall have been satisfied or the Termination Date shall
      have
      occurred and all outstanding Obligations shall have been paid in full (or,
      with
      respect to outstanding Facility Letters of Credit, cash collateralized or
      provided for pursuant to other arrangements reasonably satisfactory to Issuing
      Lenders therefor and the Agent), the Agent shall (x) execute (as applicable)
      and
      deliver Uniform Commercial Code termination statements (and to, the extent
      permitted under the Uniform Commercial Code in effect in any relevant
      jurisdiction, does hereby authorize the Loan Parties from and after the date
      that the Collateral Release Conditions or the Permitted Secured Debt Conditions,
      as the case may be, shall have been satisfied to file, or cause to be filed,
      such termination statements), intellectual property release documents and such
      other instruments of release and discharge pertaining to the security interests
      and other Liens granted to the Agent pursuant to the Security Documents in
      any
      of the Collateral being so released as the Borrower may reasonably request
      to
      effectuate, or reflect of public record, the release and discharge of all such
      security interests and Liens and (y) deliver promptly all Collateral in its
      possession to the extent that the Liens on such Collateral are being released,
      discharged or terminated.  All of the foregoing deliveries shall be at
      the expense of the Borrower, with no liability to the Agent or any Lender,
      and
      with no representation or warranty by or recourse to the Agent or any
      Lender.

     

    (vi)           The
      Agent will be entitled to obtain, and at the request of Required Lenders shall
      obtain, at Borrower’s expense a new Acceptable Appraisal of each Real Property
      (or any portion thereof) included in the Secured Borrowing Base, but not more
      than once every twelve (12) months during the term of this Agreement;
provided that, in addition to the foregoing, the Agent will be entitled
      to obtain, at the Borrower’s expense, additional Acceptable Appraisals of any
      such Real Property (or any portion thereof) if (x) an Event of Default
      exists or (y) an appraisal is required under applicable Law.

     

    (vii)           The
      Secured Borrowing Base shall be administered by the Agent in accordance with
      such requirements as may be established by the Agent from time to
      time.  Administration of the Secured Borrowing Base shall include,
      without limitation:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (A)           Inspections.  The
      Agent, Construction Inspector or their respective employees, agents or
      representatives shall be entitled to inspect the Collateral included in the
      Secured Borrowing Base from time to time, as follows: (I) at the Agent's option,
      but typically no more than once each quarter, the Construction Inspector may
      review the inventory status from the financial records of the Loan Parties,
      which will include sales reports, copies of contracts, paid invoices, etc.;
      (II)
      at the Agent's option, a portion of the vertical construction will be selected
      at random, but extensions will not be predicated upon satisfactory inspections
      prior to the extension of such credit; (III) at the Agent's option, at least
      once each quarter, the Construction Inspector may review up to 5% of the Housing
      Units of two divisions of the Loan Parties included in the Secured Borrowing
      Base; (IV) land development work for Mortgaged Properties in which Loan
      proceeds are requested to be advanced will be inspected periodically by the
      Construction Inspector at the Agent's sole discretion; and (V) material negative
      variances will be discussed with the Borrower and, if not satisfactorily
      resolved, will be reflected in the current month’s Borrowing Base
      Certificate.  All inspections made by the Agent, Construction
      Inspector or their respective employees, agents or representatives, shall be
      made solely and exclusively for the protection and benefit of the Lenders and
      neither the Borrower nor any other Person shall be entitled to claim any loss
      or
      damage against the Agent, the Construction Inspector, any Lender or any of
      their
      respective employees, agents or representatives for failure to properly
      discharge any alleged duties of the Agent.

    


    (B)           Work-in-Progress
      Documentation.  The Agent shall be

    entitled
      to inspect not more than once each quarter the documentation with respect to
      all
      work-in-progress including, without limitation, sales contracts, end loan
      commitments, buyer deposits, lot purchase closing statements, certificates
      of
      occupancy, notices of commencement, etc.  Further, the Agent may
      request such documentation monthly with respect to a random sample pool of
      such
      documentation.

    


    (C)           Budget.  Upon
      request of the Agent from time to time, a budget setting forth the estimates
      of
      the total cost of construction for specific Housing Units included in the
      Secured Borrowing Base shall be provided by the Borrower to the Agent, at the
      Borrower’s sole expense.

    


    (D)           Plan
      and Cost Review.  Upon request of the Agent from time to time,
      plans and cost budgets with respect to land development work in respect of
      Mortgaged Properties included in the Secured Borrowing Base shall be provided
      by
      the Borrower to the Agent, at the Borrower’s expense.

    


    (E)           Title
      Updates.  The Agent may require, from time to time, such title
      updates (including without limitation, ownership and encumbrance reports) with
      respect to the Collateral in the Secured Borrowing Base to confirm the lien
      status of such Collateral (in particular, that the Security Documents continue
      to constitute a first lien on and security interest in such Collateral subject
      only to Permitted Encumbrances), as the Agent deems reasonably prudent all
      at
      the Borrower’s sole expense.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (viii)                      The
      Borrower shall pay all reasonable fees and expenses associated with any of
      the
      actions taken under this Section 2.01.2(b) including, without limitation,
      (A) all reasonable fees and charges with respect to any appraisal,
      re-appraisal, and survey costs, (B) title insurance charges and premiums,
      (C) title search or examination costs, including abstracts, abstractors'
      certificates and uniform commercial code searches, (D) judgment and tax
      lien searches for each Loan Party, (E) reasonable fees and costs of
      environmental investigations site assessments and remediations,
      (F) recordation taxes, documentary taxes, transfer taxes and mortgage
      taxes, and (G) filing and recording fees.

     

    (ix)           The
      Secured Borrowing Base shall be calculated at the times and in the manner set
      forth below in this Section:

     

    (A)           Within
      thirty-five (35) days after the end of each calendar month, beginning with
      the
      calendar month ending October 31, 2007, and at such other times as the Agent
      or
      the Required Lenders may reasonably require, the Borrower shall provide the
      Agent with a Borrowing Base Certificate showing the Borrower’s calculations of
      the components of the Secured Borrowing Base together with all documentation
      and
      other data supporting such calculations as the Agent may require.  The
      Agent shall have a period of five Business Days following receipt of a Borrowing
      Base Certificate to notify the Borrower of its disapproval
      thereof.  Failure of the Agent to so notify the Borrower within such
      five Business Day period shall be deemed approval and such Secured Borrowing
      Base as set forth in such Borrowing Base Certificate shall be effective as
      of
      the date approved (or deemed approved) by the Agent.  The amount so
      approved (or deemed approved) shall constitute the Secured Borrowing Base until
      such time as a new Borrowing Base Certificate is delivered and approved in
      accordance with this Section.

     

    (B)           In
      the event that the Agent timely notifies the Borrower of its disapproval of
      a
      Borrowing Base Certificate, then the Agent shall notify the Borrower in writing
      of the amount of the Secured Borrowing Base as reasonably determined by the
      Agent and the basis of such determination, and the effective date thereof (which
      shall be the date of the giving of such notice by the Agent), and such amount
      shall thereupon and thereafter constitute the Secured Borrowing Base which
      shall
      remain in effect until such time as a new Borrowing Base Certificate is
      delivered and approved in accordance with this Section.

     

    (C)           Each
      determination of the Secured Borrowing Base in accordance with this Section
      shall be binding and conclusive upon the parties hereto, provided that
      the Lenders are not bound to rely on information and figures provided by the
      Borrower if the Agent reasonably determines in good faith that it would be
      inappropriate to do so.  Nothing contained herein shall be deemed to
      restrict the Borrower from submitting additional Borrowing Base Certificates
      to
      the Agent for its approval at times other than those required
      hereunder.”.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    3.3  Amendment
      to Section 2.05.  Sections 2.05(a) and (b) of the Credit Agreement are
      hereby amended by deleting the subsection in its entirety and inserting in
      lieu
      thereof the following:

     

    “(a)  On
      and after the First
      Amendment Effective Date, but prior to the date of the Senior Notes Resolution,
      the Applicable Eurodollar Margin shall be 3.50%.  On and after the
      date of the Senior Notes Resolution, the Applicable Eurodollar Margin shall
      be
      determined by reference to the Leverage Ratio in accordance with the following
      pricing grid and the provisions of this Section 2.05:

     

    
      	
              Leverage
                

              Ratio

            	
              Less
                than 

              1.00x

            	
              Greater
                than 

              or
                equal to 

              1.00x
                and less 

              than
                1.25x

            	
              Greater
                than or 

              equal
                to 1.25x 

              and
                less than 

              1.75x

            	
              Greater
                than 

              or
                equal to 

              1.75x

            
	
              Applicable
                

              Eurodollar
                

              Margin

            	
              1.50%

            	
              1.75%

            	
              2.00%

            	
              2.25%

            


    

    


     

    (b)  The
      Applicable
      Eurodollar Margin under the foregoing pricing grid shall be determined with
      reference to the Leverage Ratio as of the last day of each fiscal
      quarter.  The determination of the Leverage Ratio shall be made from
      the then most recent annual or quarterly financial statements of the Borrower
      delivered by the Borrower pursuant to Sections 5.08(1) and 5.08(2) or, at any
      time prior to delivery of the Restated Financial Statements in accordance with
      the First Amendment, pursuant to the Interim Financial Statements (as defined
      in
      the First Amendment) and the adjustment, if any, to the Applicable Eurodollar
      Margin shall take place on, and be effective from and after, the fifth Business
      Day after the date on which the Agent has received such financial
      statements.”.

     

    3.4  Amendments
      to Section 2.11.

     

    (a)  Section
      2.11 is hereby amended by adding immediately after Section 2.11(b) therein
      a new
      Section 2.11(c) as follows:

     

    “(c)  If
      at any time after
      the Borrower complies with Section 5.16 but prior to the Collateral Release
      Date, the Aggregate Outstanding Extensions of Credit exceeds the lesser of
      the
      Borrowing Base and the Aggregate Commitment, then the Borrower shall within
      two
      Business Days thereafter prepay Loans and/or cash collateralize the Facility
      Letter of Credit Obligations in an aggregate amount equal to any such
      excess.”.

     

    3.5  Amendment
      to Section 2.22.1.  Section 2.22.1(b) of the Credit Agreement is
      hereby amended by adding at the end of the sentence therein the
      following:  “, provided that as to any Facility Letter of
      Credit issued prior to the Collateral Release Date, the Borrower shall not
      request Facility Letters of Credit for any purposes other than for such purposes
      which are permitted to be secured by a “Permitted Lien” under, and as defined
      in, each of the Senior Indentures without regard to the provisions of clause
      (xi) thereunder”.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    3.6  Amendments
      to Section 2.22.3.  Section 2.22.3 of the Credit Agreement is
      hereby amended by (a) adding at the end of clause (iii)(a) of such Section
      the
      following proviso “; provided that as to any representations and
      warranties made prior to the Restated Financial Statements Delivery Date, this
      condition shall be deemed to have been waived solely to the extent 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) are incorrect,
      incomplete or misleading as a result of (or in the case of the representations
      and warranties contained in Section 4.07, directly resulting from) the matters
      identified in the Audit Committee Report giving rise to the restatement of
      the
      Borrower’s financial statements (it being understood that any certificate to be
      delivered pursuant to this Section may be so qualified)” and (b) adding after
      the phrase “If applicable under Section 7.03” at the beginning of clause
      (iii)(c) of such Section “at any time after the Collateral Release
      Date”.

     

    3.7  Amendment
      to Section 2.22.6.  Section 2.22.6 of the Credit Agreement is
      hereby amended by:

     

    (a)
      deleting the “The” at the
      beginning of paragraph (c) of such Section and substituting in lieu thereof
      “(i)  At any time after the Collateral Release Date, the”’
and

     

    (b)
      adding a new paragraph (ii) at the
      end of paragraph (c) of such Section as follows:

     

    “(ii)           At
      any time prior to the Collateral Release Date, if any draft is paid under any
      Facility Letter of Credit, the Borrower shall reimburse the Issuing Lender
      for
      the amount of (a) the draft so paid and (b) any taxes, fees, charges or other
      costs or expenses incurred by the Issuing Lender in connection with such
      payment, not later than 12:00 Noon, Charlotte, North Carolina time, on (i)
      the
      Business Day immediately following the day that the Borrower receives notice
      of
      such draft, if such notice is received on such day prior to 10:00 A.M.,
      Charlotte, North Carolina time, or (ii) if clause (i) above does not apply,
      the
      second Business Day following the day that the Borrower receives such
      notice.  Each such payment shall be made to the Issuing Lender at its
      address for notices referred to herein in Dollars and in immediately available
      funds.  Interest shall be payable on any such amounts from the date on
      which the relevant draft is paid until payment in full at the rate set forth
      in
      (x) until the Business Day next succeeding the date when such payment is
      required as set forth above, Section 2.07(a) and (y) thereafter, Section
      2.07(d).”.

     

    3.8  Amendments
      to Section 3.02.  Section 3.02 of the Credit Agreement is hereby
      amended by (a) adding at the end of clause (1)(a) of such Section the following
      proviso “; provided that this condition shall be deemed to have been
      waived solely to the extent 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) of the Credit Agreement are incorrect, incomplete or misleading
      as
      a result of (or in the case of the representations and warranties contained
      in
      Section 4.07, directly resulting from) the matters identified in the Audit
      Committee Report giving rise to the restatement of the Borrower’s financial
      statements (it being understood that any certificate to be delivered pursuant
      to
      this Section may be so qualified)” and (b) adding after the phrase “If
      applicable under Section 7.03” at the beginning of clause (1)(c) of such Section
“at any time after the Collateral Release Date”.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    3.9  Amendment
      to Article IV.  Article IV of the Credit Agreement is hereby
      amended by adding immediately after Section 4.17 the following new Sections
      4.18
      and 4.19:

     

    “4.18.                      Security
      Documents.  (a) After the execution and delivery thereof in
      accordance with Section 5.16 until the Collateral Release Date or other release
      thereof permitted under this Agreement, each of the Cash Collateral Agreement
      and the Collateral Agreement is effective to create in favor of the Agent,
      for
      the benefit of the Lenders, a legal, valid and enforceable security interest
      in
      the Collateral described therein and proceeds thereof.  In the case of
      the other Collateral described in the Collateral Agreement, when financing
      statements in appropriate form are filed in the appropriate jurisdictions,
      the
      Collateral Agreement shall constitute a fully perfected Lien on all right,
      title
      and interest of the Borrower and the Guarantors in such Collateral (other than
      such Collateral in which a security interest cannot be perfected by filing
      of a
      financing statement under the UCC as in effect at the relevant time in the
      relevant jurisdiction) and the proceeds thereof, as security for the Obligations
      (as defined in the Cash Collateral Agreement or the Collateral Agreement, as
      applicable), in each case prior and superior in right to any other Person except
      (other than with respect to the Cash Collateral Agreement), Liens permitted
      under Section 6.01(1) through (6) .

     

    (b)  Upon
      execution and delivery thereof until the Collateral Release Date or other
      release thereof permitted under this Agreement, each of the Mortgages is
      effective to create in favor of the Agent, for the benefit of the Lenders,
      a
      legal, valid and enforceable Lien on the Mortgaged Properties described therein
      and proceeds thereof, and when the Mortgages are filed in the appropriate
      recording offices, each such Mortgage shall constitute a fully perfected Lien
      on, and security interest in, all right, title and interest of Borrower and
      the
      Guarantors in the Mortgaged Properties and the proceeds thereof, as security
      for
      the Obligations (as defined in the relevant Mortgage), in each case prior and
      superior in right to any other Person (other than those exceptions to title
      set
      forth in the applicable title insurance policy described in clause (c) of the
      definition of Mortgage Conditions).

     

    4.19  Certain
      Representations and Warranties.  So long as waivers contained in
      Section 2.1(b) of the First Amendment are in effect, 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 this Agreement except that such representations and warranties shall be
      deemed to be made with an exception for (or in the case of the representations
      and warranties contained in Section 4.07, the matters directly resulting from)
      the matters identified in the Audit Committee Report giving rise to the
      Restatement.”.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    3.10  Amendment
      to Section 5.08.  Section 5.08(6) of the Credit Agreement is
      hereby amended by inserting the phrase “ending at any time after the Collateral
      Release Date” immediately after the words “calendar month” in the second line of
      such Section.

     

    3.11  Amendment
      to Section 5.15.  Section 5.15 of the Credit Agreement is hereby
      amended by inserting immediately after the defined term “Title Companies” in the
      last sentence therein the parenthetical “(other than Beazer Title Agency of
      Arizona, LLC)”.

     

    3.12  Amendment
      to Article V.  Article V of the Credit Agreement is hereby amended
      by adding immediately after Section 5.15 the following:

     

    “Section
      5.16 Post-Closing
      Matters.  Within five Business Days after the First
      Amendment Effective Date, deliver, and cause each Subsidiary to deliver, to
      the
      Agent evidence of the actions specified on Schedule 5.16(1), (2), (3), (5),
      (6),
      (7) and (8) and within ten Business Days after the First Amendment Effective
      Date, deliver, and cause each Subsidiary to deliver, to the Agent evidence
      of
      the actions specified on Schedule 5.16(4); provided that each such date
      may be extended by the Agent acting in its reasonable discretion and in each
      case upon terms and conditions reasonably satisfactory to the
      Agent.”.

     

    3.13  Amendment
      to Section 6.01.  Section 6.01 of the Credit Agreement is hereby
      amended by (i) deleting the period at the end of paragraph (7),
      (ii) inserting in lieu thereof “;” and (iii) adding at the end thereof
      immediately after paragraph (7) in such section the following:

     

    “(8)           Liens
      pursuant to the Security Documents.”

    


    3.14  Amendment
      to Section 6.11.  Section 6.11 of the Credit Agreement is hereby
      amended by (a) deleting the “and” immediately prior clause (d) therein and
      inserting in lieu thereof a comma and (b) adding immediately after clause (d)
      therein the following:  “and (e) any amendments of the Senior
      Indentures, in form and substance reasonably satisfactory to the Agent, in
      connection with a Senior Notes Resolution”.

     

    3.15  Amendments
      to Section 7.01.  Section 7.01 of the Credit Agreement is hereby
      amended by deleting the dollar amount “$1,000,000,000” in clause (i) in such
      Section and inserting in lieu thereof the dollar amount
“$900,000,000”.

     

    3.16  Amendment
      to Section 7.03.  Section 7.03 of the Credit Agreement is hereby
      amended by inserting the phrase “after the Collateral Release Date” immediately
      after the words “At any time” in the first line of such Section.

     

    3.17  Amendment
      to Section 7.04.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (a)  Section
      7.04 of the Credit Agreement is hereby amended by deleting the subsection in
      its
      entirety and inserting in lieu thereof the following:

     

    “Section
      7.04 Interest Coverage
      Ratio.  The Borrower shall maintain an Interest Coverage Ratio of
      not less than the ratio set forth below opposite such fiscal quarter, which
      ratio shall be determined as of the last day of each fiscal quarter for the
      four-quarter period ending on such day:

     

    
      	
              Fiscal
                Quarter

            	 	
              Interest
                Coverage Ratio

            
	 	 	 
	
              September
                30, 2007

            	 	
              1.00
                to 1.00

            
	
              December
                31, 2007

            	 	
              0.50
                to 1.00

            
	
              March
                31, 2008

            	 	
              0.25
                to 1.00

            
	
              June
                30, 2008

            	 	
              0.25
                to 1.00

            
	
              September
                30, 2008

            	 	
              0.25
                to 1.00

            
	
              December
                31, 2008

            	 	
              0.25
                to 1.00

            
	
              March
                31, 2009

            	 	
              0.50
                to 1:00

            
	
              June
                30, 2009

            	 	
              0.50
                to 1.00

            
	
              September
                30, 2009

            	 	
              0.75
                to 1.00

            
	
              December
                31, 2009

            	 	
              1.00
                to 1.00

            
	
              March
                31, 2010

            	 	
              1.25
                to 1.00

            
	
              June
                30, 2010

            	 	
              1.50
                to 1.00

            
	
              September
                30, 2010 and 

              each
                fiscal quarter 

              thereafter

            	 	
              1.75
                to 1.00

            


    

    


     

    3.18  Amendment
      to Section 7.06.  Section 7.06 of the Credit Agreement is hereby
      amended by deleting such Section in its entirety and inserting in lieu thereof
      the following:

     

    “Section
      7.06  Minimum Liquidity.  If as of
      the last day of the fiscal quarter most recently ended (a) the Interest Coverage
      Ratio is less than 1.75 to 1.00 and (b) the ratio of Adjusted Cash Flow From
      Operations for the last four quarters then ended to Interest Incurred by the
      Loan Parties for the last four quarters then ended is less than 1.75 to 1.00,
      on
      and after such day, the Borrower shall maintain Unrestricted Cash not included
      in the Secured Borrowing Base, together with any Borrowing Base Availability,
      in
      an amount of not less than $120,000,000.”.

     

    3.19  Amendment
      to Section 8.01.  Section 8.01 of the Credit Agreement is hereby
      amended by (a) adding at the end of Section 8.01(3) the phrase “except as
      otherwise provided in Section 8.01(12)” and (b) adding at the end of such
      Section immediately after paragraph (10) therein new paragraphs (11), (12)
      and
      (13) as follows:

     

    “(11)                      Except
      with respect to releases of Liens permitted under this Agreement, any of the
      Security Documents prior to the Collateral Release Date shall cease, for any
      reason, to be in full force and effect, or any Loan Party or any Affiliate
      of
      any Loan Party shall so assert, or prior to the Collateral Release Date any
      Lien
      created by any of the Security Documents shall cease to be enforceable and
      of
      the same effect and priority purported to be created thereby;

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (12)           Any
      Loan Party shall default in the observance or performance of (a) any covenant
      contained in Section 5.16 or (b) prior to the Collateral Release Date, any
      term,
      covenant or agreement contained in the Cash Collateral Agreement, the Collateral
      Agreement or any Mortgage, and such default contained in this clause (b) shall
      continue unremedied for 30 consecutive days;

    


    (13)           Any
      adverse judgment shall have been entered in the Senior Notes Litigation, and
      such adverse judgment shall not have been stayed, annulled or rescinded within
      60 days of being entered;”.

    


    3.20  Amendment
      to Credit Agreement.  The Credit Agreement is hereby amended
      by:

     

    (a)  adding
      new Schedules IV, V and 5.16 thereto in the form attached hereto as Exhibits
      A,
      B and C;

     

    (b)  deleting
      Exhibit D in its entirety and inserting in lieu thereof a new Exhibit D in
      the
      form attached hereto as Exhibit D; and

     

    (c)           deleting
      Schedules 4.07 and 4.14 in their entirety and inserting in lieu thereof new
      Schedules 4.07 and 4.14 attached hereto as Exhibits E and F.

     

    SECTION
      4.  CONDITIONS
      PRECEDENT.

     

    4.1  Effective
      Date.  This First Amendment shall become effective as of the date
      first set forth above (the “First 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:

     

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

     

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

     

    (3)  all
      fees
      required to be paid, and all reasonable out-of-pocket expenses for which
      invoices have been presented (including reasonable fees, disbursements and
      other
      charges of counsel to the Agent), on or before the First Amendment Effective
      Date;

     

    (4)  a
      certificate duly executed by the Chief Financial Officer of the Borrower
      certifying that no Default or Event of Default shall have occurred and be
      continuing on the First Amendment Effective Date after giving effect to this
      First Amendment.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (b)  The
      Agent
      shall have received for the account of each Lender entitled thereto, an
      amendment fee in an amount equal to 0.35% of such Lender’s Commitment calculated
      as of the First Amendment Effective Date, but such fees shall be payable (i)
      only to each Lender that has delivered (including by way of facsimile or
      electronic mail) its executed signature page to this Amendment to the attention
      of Robert Trust or Elisabeth Juterbock, of Simpson Thacher & Bartlett LLP,
      425 Lexington Ave., New York, New York 10017, telecopy number 212-455-2502,
      email rtrust@stblaw.com or ejuterbock@stblaw.com at or prior to 5:00
      P.M., New York time, on Wednesday, October 10, 2007, and (ii) only if the
      Borrower executes this Amendment; and

     

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

     

    SECTION
      5.  GENERAL.

     

    5.1  Representations
      and Warranties.

     

    (a)  In
      order
      to induce the Agents and the Lenders to enter into this Amendment, the Borrower
      hereby represents and warrants to the Agents, the Arrangers and the Lenders
      that
      after giving effect to this 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 First Amendment Effective
      Date (after giving effect hereto) as if made on and as of the First 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 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.

     

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

     

    5.3  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.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    5.4  Counterparts.  This
      First 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.

     

    5.5  Successors
      and Assigns.  This First 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 Amendment by any Lender
      prior to the First 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.

     

    5.6  Continuing
      Effect.  Except as expressly amended hereby, the Credit Agreement
      as amended by this First Amendment shall continue to be and shall remain in
      full
      force and effect in accordance with its terms.  This First 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 First
      Amendment.

     

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

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    IN
      WITNESS WHEREOF, the parties hereto have caused this First 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:
      Marina McMannus

    Title:  Vice
      President

    


    


    
      	
               

            	
              BNP
                PARIBAS,
                as a Lender

            


    

    


    


    By:  /s/
      Duane
      Helkowski                                                                      

    Name:  Duane
      Helkowski

    Title:  Managing
      Director

    


    By:  /s/
      Melissa
      Balley                                                                                 

    Name:  Melissa
      Balley

    Title:  Vice
      President

    


    


    
      	
               

            	
              THE
                ROYAL BANK OF
                SCOTLAND,
                as a Lender

            


    

    


    


    By:
      /s/ William
      McGinty                                                                      

    Name:  William
      McGinty

    Title:  Senior
      Vice President

    


    


    
      	
               

            	
              GUARANTY
                BANK,
                as a Lender

            


    

    


    


    By:
      /s/ Amy
      Satsky                                                                      

    Name:  Amy
      Satsky

    Title:  Senior
      Vice President

     

    
 

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    
      	
               

            	
              REGIONS
                FINANCIAL
                CORPORATION,
as
                a
                Lender

            


    

    


    


    By:
      /s/ Daniel
      McClurkin                                                                      

    Name:  Daniel
      McClurkin

    Title:  Assistant
      Vice President

    


    


    
      	
               

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

            


    

    


    


    By:
      /s/ Wayne E.
      Olson                                                                      

    Name:  Wayne
      E. Olson

    Title:  Vice
      President

    


    


    
      	
               

            	
              CITY
                NATIONAL BANK, a national banking association, as a
                Lender

            


    

    


    


    By:
      /s/ Xavier
      Barrera                                                                      

    Name:  Xavier
      Barrera

    Title:  Vice
      President

    


    


    PNC
      BANK, N.A., as a Lender

    


    By:
      /s/ Douglas G.
      Paul                                                                                 

    Name:  Douglas
      G. Paul

    Title:  Senior
      Vice President

    


    


    UBS
      LOAN FINANCE, LLC, as a Lender

    


    By:
      /s/ Irja R.
      Otsa                                                                      

    Name:  Irja
      R. Otsa

    Title:  Associate
      Director Banking Products Services, US

    


    By:
      /s/ Mary C.
      Evans                                                                                 

    Name:  Mary
      C. Evans

    Title:  Associate
      Director Banking Products Services, US

    


    


    COMERICA
      BANK, as a Lender

    


    By:
      /s/ James
      Graycheck                                                                                 

    Name:  James
      Graycheck

    Title:  Vice
      President