dated as of May 13, 2008 executed by Beazer Homes
USA, Inc., a Delaware
corporation (the Borrower
), the lenders party hereto (the Lenders
Wachovia Bank, National Association, as agent (the Agent
The parties hereto are party to that certain Credit Agreement dated as of July 25, 2007 (as
amended by that certain Waiver
and First Amendment (the First Amendment
) dated as of
October 10, 2007 and by that certain Second Amendment dated as of October 26, 2007 and as further
amended, supplemented, or modified from time to time, the Credit Agreement
; terms defined
in the Credit Agreement are used herein as defined therein). Article VII of the Credit Agreement
requires the Borrower to comply with certain financial covenants. The Borrower has asked the Agent
and Lenders to waive noncompliance with Section 7.01 [Minimum Consolidated Tangible Net Worth] and
Section 7.02 [Leverage Ratio] of the Credit Agreement for the fiscal period ended March 31, 2008 in
accordance with the terms set forth in this Limited Waiver
Section 1. Limited Waiver
. Subject to the terms and conditions set forth herein, but
with effect on and after the date hereof, the Lenders hereby waive compliance with Sections 7.01
and 7.02 of the Credit Agreement, at all times for the period from and including January 1, 2008
through and excluding the earlier of (i) the date of the occurrence of any other Default and (ii)
June 30, 2008 (such period being the Waiver Period
); provided that (x) the Borrower shall
furnish to the Agent the Restated Financial Statements no later than 3:00 p.m. on May 15, 2008 in
accordance with Section 2.1(b) of the First Amendment, (y) at no time during the Waiver
shall Consolidated Tangible Net Worth of the Borrower be less than $700,000,000, and (z) at no time
during the Waiver
Period shall the Leverage Ratio of the Borrower exceed 2.50 to 1.00. Failure to
satisfy any of the terms in the foregoing proviso shall terminate the Limited Waiver
set forth in
this Section 1, end the Waiver
Period, and constitute an Event of Default under Section 8.01 of the
Section 2. Applicable Eurodollar Margin. Notwithstanding anything to the contrary in
the Credit Agreement, and regardless of whether the Senior Notes Resolution shall have occurred,
during the Waiver Period, the Applicable Eurodollar Margin shall be 3.50%. This Section 2 is not
meant to extend the Limited Waiver set forth in Section 1 nor is meant to modify Section 2.05 of
the Credit Agreement if the Senior Notes Resolution shall have not occurred.
Section 3. Audit Committee Report
. The parties hereto agree that Schedule 1 to the
First Amendment is hereby supplemented by the disclosures made in the draft of the Borrowers Form
10-K for the fiscal year ended September 30, 2007 provided to the Agent on April 29, 2008, dated
April 30, 2008 and the letter from Robert L. Salomon
of the Borrower to Darrell Perry of Wachovia
Bank dated May 9, 2008 regarding changes to be made to such draft Form 10-K and that references
therein to the Audit Committee Report shall be deemed to include such disclosures.
Section 4. Conditions Precedent. The waivers set forth in Section 1 hereof shall
become effective, as of the date hereof, upon (a) the execution and delivery of this Limited Waiver
by the Borrower, the Agent and the Required Lenders, (b) the execution and delivery of the
Acknowledgement and Consent in the form set forth in Exhibit A hereto from each Guarantor, and (c)
payment by the Borrower to the Agent on account of each Lender entitled thereto a fee in an
aggregate amount equal to 10 basis points times each such Lenders Commitment calculated as of
the date hereof, but such fees shall be payable only (i) to each Lender that has delivered
(including by way of facsimile or electronic mail) its executed signature page to this Limited
Waiver to the attention of Jolie Tenholder, of Womble Carlyle Sandridge & Rice, PLLC, 301 S.
College St., Charlotte, North Carolina
28202, facsimile 704-444-9969, email [email protected]
prior to 5:00 p.m., New York
time, on Tuesday, May 6, 2008, and (ii) if the Borrower executes this
Section 5. Representations. The Borrower hereby represents and warrants to the Agent
and the Lenders that (a) the representations and warranties contained in the Credit Agreement and
the other Loan Documents are true and correct in all material respects on and as of the date hereof
(after giving effect to this Limited Waiver) as if made on and as of the date hereof (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, and (b) after giving effect to this Limited Waiver, no Default has occurred and is
Section 6. Waiver of Claims. The Borrower acknowledges that the Agent and
Lenders have acted in good faith and have conducted themselves in a commercially reasonable manner
in their relationships with the Borrower and the Guarantors in connection with this Limited Waiver
and in connection with the Credit Agreement and the other Loan Documents, the Borrower hereby
waiving and releasing any claims to the contrary. The Borrower, on its own behalf and on behalf of
each of its Affiliates, releases and discharges the Agent and Lenders, all Affiliates of the Agent
and Lenders, all officers, directors, employees, attorneys and agents of the Agent and Lenders or
any of their Affiliates, and all of their predecessors in interest, from any and all claims,
defenses and causes of action, whether known or unknown, and whether now existing or hereafter
arising, including without limitation, any usury claims, that have at any time been owned, or that
are hereafter owned, in tort or in contract by the Borrower or any Affiliate of the Borrower and
that arise out of any one or more circumstances or events that occurred prior to the date of this
Section 7. Miscellaneous
. Except as herein provided, the Loan Documents shall remain
unchanged and in full force and effect. The waiver set forth in Section 1 hereof is not meant to
be a waiver of any other term or provision in Article VII of the Credit Agreement or any other term
or provision of the Credit Agreement. The Agent and the Lenders expressly reserve all of their
rights and remedies with respect to any other present or future Default arising under the Credit
Agreement (whether or not related to the matters addressed in this Limited Waiver). This Limited
Waiver may be executed in any number of counterparts, all of which taken together shall constitute
one and the same instrument and any of the parties hereto may execute this Limited Waiver by
signing any such counterpart. This Limited Waiver shall be construed in accordance with and
governed by the law of the State of North Carolina
, without regard to the conflict of laws
ACKNOWLEDGMENT AND CONSENT
Reference is made to the Limited Waiver, dated as of May ___, 2008 (the Limited
), 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
corporation (the Borrower
), the several lenders from time to time parties
thereto (the Lenders
) and Wachovia Bank, National Association, as agent (in such
capacity, the Agent
). Unless otherwise defined herein, capitalized terms used herein and
defined in the Credit Agreement are used herein as therein defined.
Each of the undersigned parties to the Guaranty hereby (a) consents to the transactions
contemplated by the Limited Waiver and (b) acknowledges and agrees that the guarantees and grants
of security interests made by such party contained in the Guaranty are, and shall remain, in full
force and effect after giving effect to the Limited Waiver.
BEAZER ALLIED COMPANIES HOLDINGS, INC.
BEAZER GENERAL SERVICES, INC.
BEAZER HOMES CORP.
BEAZER HOMES HOLDINGS CORP.
BEAZER HOMES INDIANA HOLDINGS CORP.
BEAZER HOMES SALES, INC.
BEAZER HOMES TEXAS HOLDINGS, INC.
BEAZER REALTY, INC.
BEAZER REALTY CORP.
BEAZER REALTY LOS ANGELES, INC.
BEAZER REALTY SACRAMENTO, INC.
BEAZER/SQUIRES REALTY, INC.
HOMEBUILDERS TITLE SERVICES, INC.
HOMEBUILDERS TITLE SERVICES OF VIRGINIA, INC.
||Allan P. Merrill
||Executive Vice President