SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment") is entered
into as of December 10, 1997 among BEAZER HOMES USA, INC., a Delaware
corporation (the "Borrower"), BEAZER MORTGAGE CORPORATION, a Delaware
corporation, BEAZER HOMES CORP., a Tennessee corporation, BEAZER HOMES SALES
ARIZONA INC., a Delaware corporation, BEAZER REALTY CORP., a Georgia
corporation, BEAZER/XXXXXXX REALTY, INC., a North Carolina corporation, XXXXXX
HOMES REALTY, Inc., a Florida corporation, BEAZER HOMES HOLDING CORP., a
Delaware corporation, BEAZER TEXAS HOLDINGS, INC., a Delaware corporation, and
BEAZER HOMES TEXAS, L.P., a Delaware limited partnership (collectively, the
"Guarantors") and THE FIRST NATIONAL BANK OF CHICAGO, BANKBOSTON, N.A. (formerly
known as The First National Bank of Boston), BANK ONE, ARIZONA, N.A., GUARANTY
FEDERAL BANK, F.S.B., BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(successor by merger to Bank of America Illinois), AMSOUTH BANK, COMERICA BANK
and SUNTRUST BANK (collectively, the "Banks") and THE FIRST NATIONAL BANK OF
CHICAGO as Agent (the "Agent") for the Banks and as Issuing Bank under the
Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks, the Agent and the
Issuing Bank are party to that certain Credit Agreement dated as of October 22,
1996, as amended by First Amendment to Credit Agreement dated as of July 29,
1997 (such Credit Agreement, as so amended, being herein referred to as the
"Agreement") providing for certain Loans to be made from time to time by the
Banks to the Borrower not to exceed, at any time outstanding, the principal sum
of $200,000,000; and
WHEREAS, the parties desire to amend the Agreement (a) to permit, at
the Borrower's election, or to require, at the Agent's or the Majority Banks'
election, the delivery of a Borrowing Base Certificate as of the last day of a
calendar month subsequent to the period covered by the most recently required
quarterly Borrowing Base Certificate, (b) to permit the Borrower to include,
within a Borrowing Base Certificate delivered in anticipation of a Permitted
Acquisition, assets to be acquired in such Permitted Acquisition and (c) to
permit the Borrower to make certain investments, all on and subject to the terms
set forth herein;
NOW, THEREFORE, for good and valuable consideration, the Borrower, the
Guarantors, the Banks, the Agent and the Issuing Bank hereby covenant and agree
as follows:
1. DEFINITIONS. (a) The definition of the term "Borrowing Base
Certificate" is hereby amended by inserting, after the words "fiscal quarter,"
the words "or (if applicable under Section 2.01(d) or (e)) calendar month."
(b) The definition of the term "EBIDTA" is hereby amended by
inserting, after the words "Net Income" the parenthetical phrase "(but
excluding from such Net Income for the applicable period any income derived
from any Investment referred to in Section 6.07(9) to the extent that such
income exceeds the cash distributions thereof received by the Borrower or
its Subsidiaries in such period)."
(c) The definition of the term "Inventory Valuation Date" is
hereby amended and restated in its entirety as follows:
"Inventory Valuation Date" means (a) the last day
of the most recent fiscal quarter of the Borrower with
respect to which the Borrower is required to have
delivered a Borrowing Base Certificate pursuant to
Section 5.08(6) hereof or (b) if the Borrower elects
pursuant to Section 2.01(d) or is required pursuant to
Section 2.01(e) to deliver a Borrowing Base Certificate
with respect to a calendar month subsequent to such
most recent fiscal quarter, the last day of such
subsequent calendar month.
2. BORROWING BASE CERTIFICATES. The following subsections (d),
(e) and (f) are hereby added at the end of Section 2.01 of the Agreement:
(d) The Borrower may elect to deliver to the
Agent a Borrowing Base Certificate setting forth the
Borrowing Base as of the last day of a calendar month
subsequent to the most recent fiscal quarter with
respect to which a Borrowing Base Certificate was
required to be delivered under Section 5.08(6) of the
Agreement.
(e) The Agent or the Majority Lenders may, upon
notice to the Borrower from the Agent, require the
Borrower to deliver a Borrowing Base Certificate
determined as of the last day of a calendar month (as
designated in such notice) subsequent to the fiscal
quarter with respect to which a Borrowing Base
Certificate was required to be delivered under Section
5.08(6) of the Agreement, provided that the Borrowing
Base Certificate under this Section 2.01(e) shall only
be required to be delivered on the later to occur of
(i) the tenth (10th) day following the Agent's notice
to the Borrower under this Section 2.01(e) or (ii) the
twenty-fifth (25th) day after the last day of the
applicable calendar month (as designated in such
notice).
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(f) The Borrower may elect to include in a
Borrowing Base Certificate delivered in anticipation of
a Permitted Acquisition all assets that would have been
included in the Borrowing Base had the Permitted
Acquisition been consummated as of the last day of the
most recent fiscal quarter or (if applicable under
Section 2.01(d) or (e)) calendar month, provided,
however, that such Borrowing Base Certificate shall
expressly state that it is delivered in anticipation
of, and shall only be effective hereunder for purposes
of Borrowings made on or after, the consummation of
such Permitted Acquisition (it being understood that,
until the consummation of such Permitted Acquisition,
the previously delivered Borrowing Base Certificate
shall remain in effect).
3. INVESTMENTS. Section 6.07 of the Agreement is hereby
amended by deleting (from the next-to-last line thereof) the words "or (9)"
and inserting in lieu thereof the following:
(9) any Investment in a Person that is not a
Subsidiary of the Borrower, provided that the amount of
all such Investments by the Borrower and its
Subsidiaries in all such Persons does not exceed
$15,000,000 in the aggregate; or (10)
4. RATIFICATION. The Agreement, as amended hereby, is hereby
ratified and remains in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by the different parties to this Amendment in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as
of the date first written.
BORROWER:
BEAZER HOMES USA, INC.
By:
------------------------------------------
Xxxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
GUARANTORS:
BEAZER MORTGAGE CORPORATION
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
BEAZER HOMES CORP.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
BEAZER HOMES SALES ARIZONA INC.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
BEAZER REALTY CORP.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
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BEAZER/XXXXXXX REALTY, INC.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXX HOMES REALTY INC.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
BEAZER HOMES HOLDINGS CORP.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
BEAZER TEXAS HOLDINGS, INC.
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
BEAZER HOMES TEXAS, L.P.
By:
------------------------------------------
BEAZER TEXAS HOLDINGS, INC.
its general partner
By:
------------------------------------------
Xxxxx X. Xxxxx
Vice President
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BANKS:
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank, the Agent and the
Issuing Bank
By:
--------------------------
Name:
------------------------
Vice President
BANK ONE, ARIZONA, N.A.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
GUARANTY FEDERAL BANK, F.S.B.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (successor by
merger to Bank of America
Illinois)
By:
--------------------------
Name:
------------------------
Title:
-----------------------
BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston)
By:
--------------------------
Name:
------------------------
Title:
-----------------------
6
AMSOUTH BANK
By:
--------------------------
Name:
------------------------
Title:
-----------------------
COMERICA BANK
By:
--------------------------
Name:
------------------------
Title:
-----------------------
SUNTRUST BANK, ATLANTA
By:
--------------------------
Name:
------------------------
Title:
-----------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
