THIRD
LIMITED WAIVER (this “ Limited Waiver ”) dated
effective as of May 4, 2009 executed by Beazer Homes USA,
Inc., a Delaware corporation (the “ Borrower ”),
the lenders party hereto (the “ Lenders ”) and
the other parties hereto.
WHEREAS,
the Borrower, Wachovia Bank, National Association, as agent (the
“ Agent ”), the Lenders and the other lenders
party thereto are party to that certain Credit Agreement dated as
of July 25, 2007 (as amended, supplemented, or modified from
time to time, the “ Credit Agreement ”; terms
defined in the Credit Agreement are used herein as defined
therein);
WHEREAS,
the Credit Agreement provides that the Minimum Consolidated
Tangible Net Worth Level drops to Level III if the Borrower’s
Consolidated Tangible Net Worth falls below
$250,000,000;
WHEREAS,
Sections 6.07 and 6.08 of the Credit Agreement restrict the
Borrower and the Guarantors from making Investments and guaranties
but provides for certain exceptions, including the exceptions set
forth in clauses (13) and (14) of Section 6.07 and
clause (3) of Section 6.08 (collectively, the “
CTNW Basket Exception ”); and
WHEREAS,
the Borrower has requested that the Required Lenders waive and
amend the Credit Agreement, and the Required 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 and the
Required Lenders agree as follows:
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 any Default or Event of Default that may have
occurred prior to the date hereof (or that may occur during the
Waiver Period (as defined below)) under Section 6.07 or 6.08
as a result of the CTNW Basket Exception being exceeded. The
“ Waiver Period ” shall be the period from and
including the date hereof through and excluding the earliest of
(i) the date of the occurrence of any other Default,
(ii) August 15, 2009 and (iii) the date that the
Borrower delivers financial statements for the quarter ending
June 30, 2009 pursuant to Section 5.08(1).
Section 2.
Future Investments . Notwithstanding anything to the
contrary in the Credit Agreement, during the Waiver Period, the
Borrower and the Guarantors shall, in addition to any other
exceptions provided for in the Credit Agreement, be permitted to
make Investments of the type set forth in clauses (13) and
(14) of Section 6.07 and to incur obligations of the type
set forth in clause (3) of Section 6.08 so long as the
aggregate amount of all such Investments
and other
obligations made or incurred in reliance on this exception during
the Waiver Period does not exceed $55,000,000.
Section 3.
Minimum CTNW Level . Notwithstanding anything to the
contrary in the Credit Agreement, during the Waiver Period, the
Minimum Consolidated Tangible Net Worth Level shall be Level II,
regardless of the actual level of the Borrower’s Consolidated
Tangible Net Worth.
Section 4.
Facility Size . The definition of Aggregate Commitment is
hereby permanently amended by replacing the reference therein to
“$250,000,000” with the amount
“$150,000,000”.
Section 5.
Minimum CTNW Covenant . (i) Section 7.01 shall be
amended by replacing the phrase “maintain at all times”
with the phrase “, as of the last day of each fiscal quarter,
maintain” and (ii) the definition of “Consolidated
Tangible Net Worth” shall be amended by replacing the phrase
“all determined as of such date” with the phrase
“all determined as of the last day of the most recently ended
fiscal quarter for which financial statements have been delivered
(or were required to have been delivered) pursuant to
Section 5.08(1) or (2)”.
Section 6.
Cash in Borrowing Base . Notwithstanding anything to the
contrary in the Credit Agreement (including
Section 2.01.2(b)(iii) thereof), during the Waiver Period, the
Borrower shall not be entitled to request the release of the
Agent’s Lien on any Unrestricted Cash included in the Secured
Borrowing Base.
Section 7.
Borrowing Restriction . Notwithstanding anything to the
contrary in the Credit Agreement, during the Waiver Period, the
Borrower shall not be entitled to make any Borrowing of Loans (it
being understood that this restriction shall not limit the
Borrower’s ability to request and obtain Facility Letters of
Credit).
Section 8.
Defaulting Lenders . The Credit Agreement shall be amended
by:
(i) Adding
the following new definition immediately following the definition
of Default in Section 1.01:
“‘Defaulting
Lender’ means any Lender that has (a) failed to fund any
portion of its Loans or participations in Facility Letters of
Credit within three (3) Business Days of the date required to
be funded by it hereunder, which failure has not been cured,
(b) otherwise failed to pay to the Agent or any other Lender
any other amount required to be paid by it hereunder within three
(3) Business Days of the date when due, unless the subject of a
good faith dispute, which failure has not been cured, or (c)
(i) become insolvent or has a parent company that has become
or is insolvent or (ii) become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee
or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent
company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or
custodian appointed for it, or has taken any
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