UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20594
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1997
or
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 001-12822
--------------
BEAZER HOMES USA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2086934
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
5775 Peachtree Dunwoody Road, Suite C-550, Atlanta, Georgia 30342
(Address of principal executive offices) (Zip Code)
(404) 250-3420
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Sections 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding twelve months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject
to the filing requirements for the past 90 days.
YES X NO
------- --------
Class Outstanding at August 13, 1997
----- ------------------------------
Common Stock, $0.01 par value 6,048,180 shares
Series A Cumulative Convertible
Exchangeable Preferred Stock,
$0.01 par value 2,000,000 shares
Page 1 of 17 Pages
Exhibit Index Appears on Page 16
BEAZER HOMES USA, INC.
FORM 10-Q
INDEX Page No.
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PART I FINANCIAL INFORMATION
Item 1 Financial Statements
Condensed Consolidated Balance Sheets,
June 30, 1997 (unaudited) and September 30, 1996.................3
Unaudited Condensed Consolidated Statements of Operations,
Three and Nine Months Ended June 30, 1997 and 1996...............4
Unaudited Condensed Consolidated Statements of Cash Flows,
Nine Months Ended June 30, 1997 and 1996.........................5
Notes to Condensed Consolidated Financial Statements..............6
Item 2 Management's Discussion and Analysis
of Financial Condition and Results of
Operations.................................................10
PART II OTHER INFORMATION
Item 6 Exhibits and Reports on Form 8-K............................16
SIGNATURES...................................................................17
2
PART I. FINANCIAL INFORMATION
BEAZER HOMES USA, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
June 30, September 30,
1997 1996
---- ----
(UNAUDITED)
ASSETS
Cash and cash equivalents............................................................. $ -- $ 12,942
Accounts receivable................................................................... 3,687 6,473
Inventory............................................................................. 388,128 320,969
Property, plant and equipment, net.................................................... 3,840 2,823
Goodwill, net......................................................................... 5,798 6,204
Other assets.......................................................................... 14,975 7,232
----------- -------------
Total assets........................................................................ $ 416,428 $ 356,643
----------- -------------
----------- -------------
LIABILITIES AND STOCKHOLDERS' EQUITY
Trade accounts payable................................................................ $ 34,465 $ 31,431
Other payables and accrued liabilities................................................ 19,294 31,511
Revolving credit facility............................................................. 75,000 --
Senior notes.......................................................................... 115,000 115,000
----------- -------------
Total liabilities................................................................... 243,759 177,942
Stockholders' equity:
Preferred stock (par value $.01 per share, 5,000,000 shares
authorized, 2,000,000 issued and outstanding; $50,000
aggregate liquidation preference)................................................... 20 20
Common stock (par value $.01 per share, 30,000,000 shares
authorized, 9,339,957 and 9,305,200 issued,
6,048,180 and 6,530,933 outstanding)................................................ 93 93
Paid in capital....................................................................... 187,477 187,477
Retained earnings..................................................................... 38,265 37,613
Unearned restricted stock............................................................. (1,203) (1,446)
Less treasury stock, at cost (3,291,777 and 2,774,267 shares)......................... (51,983) (45,056)
----------- -------------
Total stockholders' equity............................................................ 172,669 178,701
----------- -------------
Total liabilities and stockholders' equity.......................................... $ 416,428 $ 356,643
----------- -------------
----------- -------------
See Notes to Condensed Consolidated Financial Statements
3
BEAZER HOMES USA, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
Three Months Nine Months
Ended June 30, Ended June 30,
---------------------- ----------------------
1997 1996 1997 1996
---------- ---------- ---------- ----------
Total revenue.................................................... $ 195,608 $ 217,065 $ 534,453 $ 571,800
Costs and expenses:
Home construction and land sales................................ 165,843 183,776 453,626 483,610
Interest........................................................ 3,609 3,860 9,523 10,637
Selling, general and administrative............................. 20,718 21,450 59,474 58,658
Write-down of inventory......................................... -- -- 6,326 --
---------- ---------- ---------- ----------
Operating income ................................................ 5,438 7,979 5,504 18,895
Other income..................................................... 190 50 481 71
---------- ---------- ---------- ----------
Income before income taxes....................................... 5,628 8,029 5,985 18,966
Provision for income taxes....................................... 2,194 3,212 2,334 7,587
---------- ---------- ---------- ----------
Net income ...................................................... $ 3,434 $ 4,817 $ 3,651 $ 11,379
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
Preferred dividends.............................................. $ 1,000 1,000 3,000 3,000
Net income applicable to common stockholders..................... $ 2,434 $ 3,817 $ 651 $ 8,379
Weighted average number of shares (in thousands):
Primary................................................. 6,069 6,481 6,334 6,487
Fully-diluted........................................... 8,693 9,105 N/A 9,111
Net income per common share:
Primary................................................. $ 0.40 $ 0.59 $ 0.10 $ 1.29
Fully-diluted........................................... $ 0.40 $ 0.53 N/A $ 1.25
See Notes to Condensed Consolidated Financial Statements
4
BEAZER HOMES USA, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
Nine Months Ended June 30,
----------------------------
1997 1996
--------- ---------
Cash flows from operating activities:
Net income................................................................................ $ 3,651 $ 11,379
Adjustments to reconcile net income to
net cash used by operating activities:
Depreciation and amortization........................................................... 1,545 1,080
Changes in operating assets and liabilities,
net of effects of acquisitions:
Write-down of inventory................................................................. 6,326
Increase in inventory................................................................... (73,485) (22,249)
Increase (Decrease) in trade accounts payable........................................... 3,034 (12,364)
Other changes........................................................................... (17,508) (25,375)
--------- ---------
Net cash used by operating activities....................................................... (76,437) (47,529)
--------- ---------
Cash flows from investing activities:
Acquisitions, net of cash acquired........................................................ (19,581)
Capital expenditures...................................................................... (1,578) (1,345)
--------- ---------
Net cash used by investing activities....................................................... (1,578) (20,926)
--------- ---------
Cash flows from financing activities:
Proceeds from revolving credit facility, net.............................................. 75,000 32,000
Treasury stock purchased.................................................................. (6,927) 0
Dividend paid on preferred stock.......................................................... (3,000) (3,000)
--------- ---------
Net cash provided by financing activities................................................... 65,073 29,000
--------- ---------
Decrease in cash and cash equivalents....................................................... (12,942) (39,455)
Cash and cash equivalents at beginning of period............................................ 12,942 40,407
--------- ---------
Cash and cash equivalents at end of period.................................................. $ 0 $ 952
--------- ---------
--------- ---------
See Notes to Condensed Consolidated Financial Statements
5
BEAZER HOMES USA, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements of
Beazer Homes USA, Inc. ("Beazer" or the "Company") have been prepared in
accordance with generally accepted accounting principles for interim financial
information and in accordance with the instructions to Form 10-Q and Article 10
of Regulation S-X, and consequently such financial statements do not include all
of the information and disclosures required by generally accepted accounting
principles for complete financial statements. Accordingly, for further
information, the reader of this Form 10-Q should refer to the audited
consolidated financial statements of the Company for the year ended September
30, 1996 incorporated by reference in the Company's Annual Report on Form 10-K.
In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included in the accompanying condensed financial statements.
(2) INVENTORY
A summary of inventory is as follows (dollars in thousands):
June 30, September 30,
1997 1996
----------- -------------
(unaudited)
Finished homes....................................... $ 65,221 $ 64,709
Development projects in progress..................... 267,126 197,984
Unimproved land held for future
development......................................... 27,621 34,040
Model homes.......................................... 28,160 24,236
----------- -------------
$ 388,128 $ 320,969
----------- -------------
----------- -------------
Development projects in progress consist principally of land, land
improvement costs and, if applicable, construction costs for houses which are in
various stages of development but not ready for sale. Certain of the finished
homes in inventory are reserved by a deposit or sales contract.
6
BEAZER HOMES USA, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(3) WRITE-DOWN OF INVENTORY
In March 1997, the Company recorded a pretax charge of $6.3 million ($3.9
million after tax) to write down two properties located in Nevada to their fair
market value (estimated based on the sales prices of comparable projects). The
two Nevada properties, Craig Ranch in North Las Vegas and Promontory in Reno,
had incurred significant development costs that were not anticipated at the
beginning of the projects. As a result, the estimated future undiscounted cash
flows of the projects were less than their respective current book values.
(4) INTEREST
The following table sets forth certain unaudited information regarding
interest (dollars in thousands):
Three Months Ended Nine Months Ended
June 30, June 30,
1997 1996 1997 1996
--------- --------- --------- ---------
During the period:
Interest incurred............................... $ 4,414 $ 3,980 $ 11,352 $ 10,729
--------- --------- --------- ---------
--------- --------- --------- ---------
Previously capitalized interest
amortized to costs and expenses................ $ 3,609 $ 3,860 $ 9,523 $ 10,637
--------- --------- --------- ---------
--------- --------- --------- ---------
At the end of the period:
Capitalized interest in ending
inventory...................................... $ 7,382 $ 6,603 $ 7,382 $ 6,603
--------- --------- --------- ---------
--------- --------- --------- ---------
(5) EARNINGS PER SHARE
The computation of primary earnings per common share is based upon the
weighted average number of common shares outstanding during the period plus (in
periods in which they have a dilutive effect) the effect of common stock
equivalents, primarily from stock options. Common share equivalents are computed
using the treasury stock method.
Fully diluted earnings per share, which further assumes the conversion of
2.0 million shares of Series A Cumulative Convertible Exchangeable Preferred
Stock ($50.0 million aggregate liquidation preference) issued in August 1995
into 2.6 million shares of common stock at the conversion price of $19.05, is
not presented in the accompanying condensed consolidated statements of
operations for the nine month period ended June 30, 1997 since the effect of
such conversion is antidilutive for such period.
7
BEAZER HOMES USA, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(6) CREDIT AGREEMENT
In October 1996, the Company entered into a $150 million unsecured,
revolving credit agreement (the "Credit Agreement") with a group of banks.
Borrowings under the Credit Agreement generally bear interest at a fluctuating
rate equal to (i ) the sum of a specified margin plus the higher of (a) the
corporate base rate of interest announced by the lead bank (the "Agent") from
time to time or (b) a specified spread above the Federal Funds Rate or (ii) the
sum of a specified margin plus a rate of interest based on LIBOR determined by
the Agent pursuant to a specified formula. All outstanding indebtedness under
the Credit Agreement will be due in October 1999. The Credit Agreement contains
various operating and financial covenants. Each of the Company's significant
subsidiaries is a guarantor under the Credit Agreement.
In July 1997, the Company amended the credit agreement to increase the
available borrowings to $200 million, increase the number of participating banks
from seven to eight, reduce the borrowing rates and increase the Company's
flexibility under certain operating and financial covenants.
(7) RECENT ACCOUNTING PRONOUNCEMENTS
In October 1995, the Financial Accounting Standards Board ("FASB") issued
Statement No. 123, "Accounting for Stock-Based Compensation," ("SFAS 123"). SFAS
123 encourages, but does not require companies to record compensation cost for
stock-based employee compensation plans at fair value. The Company has chosen to
continue to account for stock-based compensation using the intrinsic value
method prescribed in Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees," and related Interpretations. Accordingly,
compensation cost for stock options is generally measured as the excess, if any,
of the quoted market price of the Company's stock at the date of the grant over
the amount an employee must pay to acquire the stock. The Company will disclose
the pro-forma impact of adoption of SFAS 123 in its financial statements for the
fiscal year ending September 30, 1997.
In February 1997, the FASB issued Statement No. 128, "Earnings per Share,"
("SFAS 128"). SFAS 128 is effective for financial statements for both interim
and annual periods ending after December 15, 1997 and requires restatement of
all prior period earnings per share ("EPS") data. Earlier adoption of this
standard is not permitted. The implementation of SFAS 128 will not have a
material effect on the Company's reported EPS.
8
BEAZER HOMES USA, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
In June 1997, the FASB issued Statement No. 130, "Reporting Comprehensive
Income," ("SFAS 130"), and Statement No. 131, "Disclosures about Segments of an
Enterprise and Related Information," ("SFAS 131"). Both SFAS 130 and SFAS 131
become effective for fiscal periods beginning after December 15, 1997 with early
adoption permitted. The Company is evaluating the effects these statements will
have on its financial reporting and disclosures. The statements will have no
effect on the Company's results of operations, financial position, capital
resources or liquidity.
9
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
The following table presents certain operating and financial data for the
Company (dollars in thousands):
Three Months Ended Nine Months Ended
June 30, June 30,
----------------------------------- -----------------------------------
1997 1996 1997 1996
----------------------- ---------- ----------------------- ----------
% %
Amount Change Amount Amount Change Amount
---------- ----------- ---------- ---------- ----------- ----------
NUMBER OF NEW ORDERS,
NET OF CANCELLATIONS: (a)
Southeast Region.................................... 555 0.9% 550 1,497 (6.6)% 1,603
Southwest Region.................................... 789 (5.7) 837 2,067 (18.2) 2,526
Central Region...................................... 250 110.1 119 598 124.0 267
---------- ---------- ---------- ----------
Total............................................... 1,594 5.8 1,506 4,162 (5.3) 4,396
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
NUMBER OF CLOSINGS:
Southeast Region.................................... 493 (11.0)% 554 1,328 (11.6)% 1,503
Southwest Region.................................... 651 (25.0) 868 1,878 (18.3) 2,299
Central Region...................................... 171 131.1 74 449 152.2 178
---------- ---------- ---------- ----------
Total............................................... 1,315 (12.1) 1,496 3,655 (8.2) 3,980
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
TOTAL REVENUE:
Southeast Region.................................... $ 79,809 (4.0)% $ 83,162 $ 216,342 (2.0)% $ 220,651
Southwest Region.................................... 89,711 (26.7) 122,379 249,164 (22.9) 323,101
Central Region...................................... 26,088 126.4 11,524 68,947 145.8 28,048
---------- ---------- ---------- ----------
Total............................................... $ 195,608 (9.9) $ 217,065 $ 534,453 (6.5) $ 571,800
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
AVERAGE SALES PRICE PER HOME CLOSED:
Southeast Region.................................... $ 161.9 7.9% $ 150.1 $ 162.9 11.0% $ 146.8
Southwest Region.................................... 137.8 (2.3) 141.0 132.7 (5.6) 140.5
Central Region...................................... 152.6 (2.0) 155.7 153.6 (2.4) 157.4
Total............................................... 148.8 2.5 145.1 146.2 1.7 143.7
BACKLOG UNITS AT END OF PERIOD:
Southeast Region.................................... 749 (11.3)% 844
Southwest Region.................................... 869 (19.4) 1,078
Central Region...................................... 315 34.6 234
---------- ----------
Total............................................... 1,933 (10.3) 2,156
---------- ----------
---------- ----------
AGGREGATE SALES VALUE OF HOMES IN
BACKLOG AT END OF PERIOD:............................. $ 292,267 (12.0)% $ 332,254
---------- ----------
---------- ----------
NUMBER OF ACTIVE SUBDIVISIONS AT END OF PERIOD:
Southeast Region.................................... 112 7.7% 104
Southwest Region.................................... 64 4.9 61
Central Region...................................... 33 17.9 28
---------- ----------
Total............................................... 209 8.3 193
---------- ----------
---------- ----------
(a) New orders for the nine months ended June 30, 1996 does not include 129
homes in backlog acquired on December 27, 1995 from Del Mar Development,
Inc. New orders for the three and nine months ended June 30, 1996 does not
include 127 homes in backlog acquired on May 23, 1996 and June 26, 1996 with
Gulfcoast Homes and Trendmaker Homes--Dallas, respectively.
10
BEAZER HOMES USA, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW:
Beazer Homes USA, Inc. (the "Company" and "Beazer") designs, builds and sells
single family homes in the Southeast, Southwest and Central regions of the
United States. The Company's Southeast Region includes Georgia, North
Carolina, South Carolina, Tennessee and Florida, its Southwest Region
includes Arizona, California and Nevada and its Central Region includes
Texas. The Company intends, subject to market conditions, to expand in its
current markets and to consider entering new markets through expansion from
existing markets ("satellite expansion") or through acquisitions of
established regional homebuilders.
The Company's homes are designed to appeal primarily to entry-level and first
move-up home buyers, and are generally offered for sale in advance of their
construction. The majority of homes are sold pursuant to standard sales
contracts entered into prior to commencement of construction. Once a contract
has been signed, the Company classifies the transaction as a "new order."
Such sales contracts are usually subject to certain contingencies such as the
buyer's ability to qualify for financing. Homes covered by such sales
contracts are considered by the Company as its "backlog." The Company does
not recognize revenue on homes in backlog until the sales are closed and the
risk of ownership has been transferred to the buyer.
The Company began offering mortgage origination services for its local
homebuilders through branch offices of Beazer Mortgage Corp. ("Beazer
Mortgage") during 1996. Beazer Mortgage originates and processes mortgages on
behalf of third-party investors, but does not retain or service the mortgages
that it originates. Beazer Mortgage currently has branch offices in Arizona,
Florida, Georgia, North Carolina and Texas, and anticipates having branch
offices open in nearly all of the Company's markets by the end of calendar
year 1997. The results of operations for Beazer Mortgage were not significant
for the quarters ended June 30, 1997 and 1996.
NEW ORDERS AND BACKLOG: New orders increased by 5.8% for the three months
ended June 30, 1997 compared to the three months ended June 30, 1996. The
Company's Central region experienced the greatest increase in new orders. The
majority of this increase can be attributed to the expansion of operations in
Dallas through the acquisition of Trendmaker Homes--Dallas in late June 1996,
although new orders also increased significantly in Houston, where there was
no acquisition during the past year. New orders increased slightly in the
Southeast region and decreased slightly in the Southwest region for the
comparable quarters, with the most significant decline in new orders in
Nevada. The significant decrease in Nevada can be attributed to scaling back
operations slightly during a change in management structure in that market.
The Company believes that new subdivisions opened towards the end of the
previous quarter and improving economic conditions contributed to the
increase in new orders in the Southeast region and increased new orders in
Phoenix.
11
BEAZER HOMES USA, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
New orders decreased by 5.3% for the nine month period ending June 30, 1997
compared to the nine month period ended June 30, 1996. The most substantial
decrease for the nine month period was in the Southwest region where new
orders were down 18.2%. Most of this decrease can be attributed to decreases
in Arizona resulting from substantially reduced active subdivision counts
during the first six months of the fiscal year. There were 26 active
subdivisions in the Company's Arizona operation at the beginning of the
fiscal year, 16 at December 31, 1996 and 32 at June 30, 1997. Similar trends
in subdivision counts in the Southeast region contributed to the negative new
order comparisons for the nine month period ended June 30, 1997.
RESULTS OF OPERATIONS:
The following table shows certain items in the Company's statements of income
expressed as a percentage of total revenue.
Three Months Ended Nine Months Ended
June 30, June 30,
1997 1996 1997 1996
--------- --------- --------- ---------
Total revenue................................................................... 100.0% 100.0% 100.0% 100.0%
Costs of home construction and
land sales.................................................................... 84.8 84.7 84.9 84.6
Interest........................................................................ 1.9 1.8 1.8 1.9
Selling, general and administrative............................................. 10.6 9.9 11.1 10.3
Write-down of inventory......................................................... -- -- 1.2 --
Operating income (loss)......................................................... 2.8 3.7 1.0 3.3
REVENUES: The Company experienced decreases in revenues for the three and
nine month periods ended June 30, 1997 compared to the same periods ended
June 30, 1996. The decline in revenues for the Company's Southeast and
Southwest region is the result of lower backlog levels entering the 1997
periods and lower levels of new orders during the first two quarters of
fiscal 1997. The most significant decrease for the comparable periods was in
Arizona where closings and revenues were down 50.5% and 53.3% for the three
month period and 33.4% and 38.0% for the nine month periods. The revenue
growth experienced in the Company's Central region for the three and nine
month periods reflects growth in the Houston and Dallas operations (entered
via acquisition in April 1995) and the successful assimilation of the
acquired operations of Trendmaker Homes--Dallas (acquired in June 1996).
COST OF HOME CONSTRUCTION AND LAND SALES: The cost of home construction and
land sales as a percentage of revenues increased slightly for both the three
and nine month periods ended June 30, 1997 compared to the same periods in
1996. The principal reason for the increases relates to the Company's Nevada
operations where the cost of home construction and land sales as a percentage
of revenues represented 92.2% and 92.1% for the three and nine month period
ended June 30, 1997 compared to 88.7% and 87.6% for the same periods of 1996
respectively. The Company also believes that the increase in costs of home
construction and land sales as a
12
BEAZER HOMES USA, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
percentage of revenues results from a lower mix of closings from certain of
the Company's higher margin markets, such as Arizona.
WRITE-DOWN OF INVENTORY: During the quarter ended March 31, 1997, the Company
recorded a pretax charge of $6.3 million ($3.9 million after tax) to write
down two properties located in Nevada to their fair market value (estimated
based on the sales prices of comparable projects). The two Nevada properties,
Craig Ranch in North Las Vegas and Promontory in Reno, had incurred
significant development costs that were not anticipated at the beginning of
the project. As a result, the estimated future undiscounted cash flows of the
projects were less than their respective current book values.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE: Selling, general and
administrative expenses increased as a percentage of total
revenues for the three and nine month periods ended June 30, 1997 compared to
the prior year periods. This increase can be attributed to the initial costs
of profitability initiatives that the Company is in the process of
implementing (such as the set up of mortgage origination operations and
design centers and the development and implementation of new information
systems). Additionally, the Company incurred higher overhead costs in certain
key markets that the Company believes will provide higher closing volumes
in subsequent quarters, including the Arizona, Texas and Florida markets.
INCOME TAXES: The decrease in the Company's effective income tax rate from
40% for the three and nine month periods ended June 30, 1996 compared to 39% for
the same periods at June 30, 1997 is principally the result of a reduction in
the overall state effective income tax rate.
FINANCIAL CONDITION AND LIQUIDITY:
In October 1996, the Company entered into a $150 million unsecured, revolving
credit agreement (the "Credit Agreement") with a group of banks to replace a
similar $80 million unsecured, revolving credit agreement the Company had
utilized since January 1995. In July 1997, the Company amended the credit
agreement to increase the available borrowings to $200 million, increase the
number of participating banks from seven to eight, reduce the borrowing rates
and increase the Company's flexibility under certain covenants. The Credit
Agreement is used primarily to fund seasonal working capital needs.
At June 30, 1997, the Company had $75 million of borrowings outstanding under
the Credit Agreement, and had available additional borrowings of $46
million. Available borrowings under the Credit Agreement are limited to a
Borrowing Base, as defined in the Credit Agreement, based upon certain
percentages of homes under contract, unsold homes, substantially improved
lots and accounts receivable.
All significant subsidiaries of Beazer Homes USA, Inc. are guarantors of the
Senior Notes and are jointly and severally liable for the Company's
obligations under the Senior Notes. Separate financial statements and other
disclosures concerning each of the significant subsidiaries are not included,
as the aggregate assets, liabilities, earnings and equity of the subsidiaries
equal such amounts for the Company on a consolidated basis and separate
subsidiary financial statements are not considered material to investors. The
total assets, revenues and operating profit of the non-guarantor subsidiaries
are in the aggregate immaterial to the Company on a
13
BEAZER HOMES USA, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
consolidated basis. Neither the Credit Agreement nor the Senior Notes
restrict distributions to Beazer Homes USA, Inc. by its subsidiaries.
The Company has utilized, and will continue to utilize, land options as a
method of controlling and subsequently acquiring land. At June 30, 1997, the
Company had 10,630 lots under option. At June 30, 1997, the Company had
commitments with respect to option contracts with specific performance
obligations of approximately $54.5 million. The Company expects to exercise
all of its option contracts with specific performance obligations and,
subject to market conditions, substantially all of its options contracts
without specific performance obligations.
In June 1996, the Company's Board of Directors approved a stock repurchase
plan authorizing the repurchase of up to 10% of the Company's currently
outstanding common stock (the "Stock Repurchase Plan"). Such repurchases, if
completed, would be effected at various prices from time to time in the open
market. The timing of the purchase and the exact number of shares will depend
on market conditions. As of June 30, 1997 the Company had purchased 542,510
shares for an aggregate purchase price of approximately $7.2 million.
Management believes that the Company's current borrowing capacity and
anticipated cash flows from the operations is sufficient to meet liquidity
needs for the foreseeable future. There can be no assurance, however, that
amounts available in the future from the Company's sources of liquidity will
be sufficient to meet the Company's future capital needs. The amount and
types of indebtedness that the Company may incur may be limited by the terms
of the Indenture governing its Senior Notes and its Credit Agreement. The
Company continually evaluates expansion opportunities through acquisition of
established regional homebuilders and such opportunities may require the
Company to seek additional capital in the form of equity or debt financing
from a variety of potential sources, including additional bank financing
and/or securities offerings.
14
BEAZER HOMES USA, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
CAUTIONARY STATEMENT PURSUANT TO SAFE HARBOR PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995:
This quarterly report on Form 10-Q contains "forward-looking statements"
within the meaning of the federal securities laws. These forward-looking
statements include, among others, statements concerning the Company's outlook
for future quarters, overall and market specific volume trends, pricing
trends and forces in the industry, cost reduction strategies and their
results, the Company's expectations as to funding its capital expenditures
and operations during 1997, and other statements of expectations, beliefs,
future plans and strategies, anticipated events or trends, and similar
expressions concerning matters that are not historical facts. The
forward-looking statements in this report are subject to risks and
uncertainties that could cause actual results to differ materially from those
expressed in or implied by the statements. The most significant factors that
could cause actual results to differ materially from those expressed in the
forward-looking statements include, but are not limited to, the following:
- Economic changes nationally or in one of the Company's local markets
- Volatility of mortgage interest rates
- Increased competition in some of the Company's local markets
- Increased prices for labor, land and raw materials used in the production
of houses
- Increased cost in the development of raw land
- Any delays in reacting to changing consumer preference in home design
- Delays or difficulties in implementing the Company's initiatives to reduce
its production and overhead cost structure.
15
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits: 10.15 First Amendment dated July 29, 1997 to Credit
Agreement (filed herewith)
11 Statement Regarding Computation of Per Share Earnings
27 Financial Data Schedule
(b) Reports on Form 8-K:
The Company did not file any reports on Form 8-K during the quarter
ended June 30, 1997.
16
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Beazer Homes USA, Inc.
Date: August 13, 1997 By: /s/ David S. Weiss
----------------------- -----------------------------------
Name: David S. Weiss
Executive Vice President and
Chief Financial Officer
17
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment") is entered into
as of July 29, 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/SQUIRES REALTY,
INC., a North Carolina corporation, PANITZ 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 ("First 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), COMERICA BANK, and SUNTRUST BANK
(collectively, the "Original Banks"), AMSOUTH BANK ("AmSouth," and, collectively
with the Original Banks, the "Banks") and THE FIRST NATIONAL BANK OF CHICAGO as
Agent (the "Agent") for the Banks and as Issuing Bank (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Original Banks and the
Agent have entered into that certain Credit Agreement (the "Agreement") dated as
of October 22, 1996 providing for certain Loans to be made from time to time by
the Original Banks to the Borrower not to exceed, at any time outstanding, the
principal sum of $150,000,000; and
WHEREAS, the parties desire to amend the Agreement to increase the
Aggregate Commitment thereunder to $200,000,000, a portion of which shall
consist of a Commitment by AmSouth, to provide for the issuance of Facility
Letters of Credit (as hereinafter defined) and for other purposes herein
provided, all on the terms and conditions herein set forth;
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. EFFECTIVE DATE. (a) The provisions of Paragraphs 2 through 15 of
this Amendment shall be effective on a date (the "Effective Date"), selected
jointly by the Borrower and the
Agent, that is not less than one (1) Business Day nor more than three (3)
Business Days after the date as of which (i) all parties hereto have executed
and delivered this Amendment and (ii) all of the conditions precedent set forth
in Paragraph 15 of this Amendment have been satisfied (or, in the case of any
condition that the Agent, in its judgment reasonably exercised, determines not
to be material, waived). The Agent shall promptly (and, in any event, not later
than the Effective Date) notify the Borrower and the Banks of the Effective
Date.
(b) From and after the Effective Date, AmSouth shall be a "Bank"
under the Agreement and shall have all of the rights and obligations of a Bank
under the Agreement.
(c) On the Effective Date, AmSouth and any Original Bank whose
ratable share (based upon the proportion of its Commitment (as increased as of
the Effective Date) to the Aggregate Commitment (as so increased)) of the
aggregate principal balance of all Loans then outstanding exceeds the
outstanding principal balance of the Loans held by such Original Bank
immediately prior to the Effective Date (AmSouth and such Original Banks being
herein referred to as "Funding Banks"), shall make a payment to the Agent in an
amount sufficient, upon the application of such payments by all Funding Banks to
the reduction of the outstanding Loans held by the Original Banks that are not
Funding Banks ("Non-Funding Banks") to cause the principal amount outstanding
under the Loans held by each Bank (including AmSouth) to be in the proportion of
the ratio that each Bank's Commitment (as so increased on the Effective Date)
bears to the Aggregate Commitments (as so increased). The Borrower hereby
irrevocably authorizes each Funding Bank to fund to the Agent the payment
required to be made pursuant to the immediately preceding sentence for
application to the reduction of the outstanding Loans held by the Non-Funding
Banks, and each such payment shall constitute a Loan under the Agreement (as
amended hereby). If, as a result of the repayment of the Loans provided for in
this Paragraph 1(c), any payment of a LIBOR Loan occurs on a date that is not
the last day of the applicable Interest Period, the Borrower will pay to the
Agent for the benefit of the Original Banks any loss or cost incurred by the
Original Banks resulting therefrom in accordance with Section 2.17 of the
Agreement. Upon the Effective Date, all Loans outstanding under the Credit
Agreement (including any Loans made pursuant to this Paragraph 1(c) by the
Funding Banks on such date) shall be ABR Loans, subject to the Borrower's right
to convert the same to LIBOR Loans on or after the Effective Date in accordance
with the provisions of Section 2.06.
2
2. DEFINITIONS. (a) The following definitions of the following
terms contained in Article I of the Agreement are hereby amended and restated in
their entirety as follows:
"Housing Unit" means a single-family dwelling, including the Land on
which such dwelling is located, whether such dwelling is detached or
attached (including condominiums but excluding mobile homes), which
dwelling is either under construction or completed and is (or, upon
completion of construction thereof, will be) available for sale; the term
"Housing Unit" includes a Speculative Housing Unit.
"Loan Document(s)" means this Agreement, the Notes, the Reimbursement
Agreements, and any and all documents delivered hereunder or pursuant
hereto.
"Notes" has the meaning provided therefor in Paragraph 15(1) of the
First Amendment.
"Obligations" means (a) the due and punctual payment of principal of
and interest on the Loans and the Notes, (b) the due and punctual payment
of the Facility Letter of Credit Obligations, and (c) the due and punctual
payment of fees, expenses, reimbursements, indemnifications and other
present and future monetary obligations of the Borrower to the Banks or to
any Bank, the Agent, the Issuing Bank or any indemnified party under the
Loan Documents.
"Permitted Senior Debt" means the sum of all Debt of the Borrower and
its Subsidiaries referred to in Section 6.02(1) (including without
limitation the Facility Letter of Credit Obligations), Section 6.02(2) and
Section 6.02(8); provided, however, that, to the extent that any of the
Debt referred to in Section 6.02(8) is secured by assets that would have
been included in the Borrowing Base if such assets were not encumbered, the
Permitted Senior Debt shall be reduced by the lesser of (i) the amount of
such secured Debt or (ii) the amount by which the Borrowing Base would have
increased if such assets were not encumbered.
"Senior Debt Rating" means the second highest rating among the
publicly announced ratings of Moody's, S&P, D&P and/or Fitch of the
Borrower's unsecured long-term debt (including the Senior Debt and the
Obligations), provided, however, (i) at any time at which neither of the
two highest ratings is by Moody's or S&P, the Senior Debt Rating shall be
(x) the rating assigned by either Moody's or S&P at any
3
time at which only one of Moody's or S&P shall publicly announce a rating
of the Borrower's unsecured long-term debt, or (y) the higher of the two
ratings by Moody's and S&P at any time at which both shall publicly
announce a rating of the Borrower's unsecured long-term debt, and (ii) at
any time at which (A) none of Moody's, S&P, D&P or Fitch publicly announces
ratings of the Borrower's unsecured long-term debt, or (B) neither Moody's
nor S&P publicly announces ratings of the Borrower's unsecured long-term
debt, no Senior Debt Rating shall be deemed to exist. The Senior Debt
Rating shall change if and when such rating(s) change, and such change in
the Senior Debt Rating shall have the effect provided for in Section 2.05
and elsewhere in this Agreement.
"Swing Line Commitment" means the commitment of the Swing Line Bank to
make Swing Line Loans pursuant to Section 2.21(a) hereof. The Swing Line
Commitment is in the amount of $10,000,000.
"Termination Date" means February 28, 2001.
(b) The following additional definitions are added to the Agreement:
"Applicable Letter of Credit Rate" means, as at any date of
determination, a rate per annum equal to (i) the Applicable LIBOR Margin,
less (ii) 0.125% per annum.
"Banks" means the Banks that are signatories to the First Amendment,
and their respective successors and assigns.
"Coverage Test" has the meaning provided therefor in Section 7.03(a).
"D&P" means Duff & Phelps Credit Rating Co.
"Debt/Cap Ratio" means, as at any date of determination, the quotient
obtained by dividing (a) Consolidated Debt as at such date by (b) the sum
of Consolidated Debt and Consolidated Tangible Net Worth as at such date.
"Effective Date" has the meaning provided therefor in the First
Amendment.
"Facility Letter of Credit" means a Letter of Credit
4
issued by the Issuing Bank for the account of the Borrower in accordance
with Article XIII.
"Facility Letter of Credit Fee" means a fee, payable with respect to
each Facility Letter of Credit issued by the Issuing Bank, in an amount per
annum equal to the product of (i) the Applicable Letter of Credit Rate
(determined as of the date on which the quarterly installment of such fee
is due) and (ii) the face amount of such Facility Letter of Credit, which
fee shall be calculated in the manner provided in Section 13.7.
"Facility Letter of Credit Obligations" means, at any date, the sum of
(i) the aggregate undrawn face amount of all outstanding Facility Letters
of Credit, and (ii) the aggregate amount paid by an Issuing Bank on any
Facility Letters of Credit to the extent (if any) not reimbursed by the
Borrower or by the Banks under Section 13.4.
"FCCM" means First Chicago Capital Markets, Inc.
"First Amendment" means the First Amendment to Credit Agreement dated
as of July 29, 1997 among the Borrower, the Banks, the Issuing Bank and the
Agent.
"Fitch" means Fitch Investors Services, L.P.
"Interest Coverage Ratio" means the ratio, determined as of the last
day of each fiscal quarter for the four-quarter period ending on such day,
of (i) EBITDA for such period to (ii) interest incurred, whether
capitalized or expensed directly, by the Borrower and its Subsidiaries (on
a consolidated basis) during such period.
"Issuance Date" means the date on which a Facility Letter of Credit is
issued, amended or extended.
"Issuing Bank" means The First National Bank of Chicago or any other
Bank that may from time to time be designated as Issuing Bank in accordance
with the provisions of Section 13.10.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued by a financial institution upon the application
of such Person or upon which such Person is an account party or for which
such Person is in any way liable.
5
"Level" means the level of a Pricing Factor, Applicable Margin or
Applicable Commitment Rate (as applicable) as designated in the Table set
forth in Section 2.05. The five Levels in such Table are identified as
Levels I through V, and Level I shall constitute the lowest Level and Level
V shall constitute the highest Level.
"Maximum Leverage Ratio" has the meaning provided therefor in Section
7.02.
"Moody's" means Moody's Investors Service, Inc.
"Pricing Factor" means either the Debt/Cap Ratio or the Senior Debt
Rating.
"Reimbursement Agreement" means, with respect to a Facility Letter of
Credit, such form of application therefor and form of reimbursement
agreement therefor (whether in a single or several documents, taken
together) as the Issuing Bank may employ in the ordinary course of business
for its own account, with the modifications thereto as may be agreed upon
by such Issuing Bank and the Borrower and as are not materially adverse (in
the reasonable judgment of the Issuing Bank and the Agent) to the interests
of the Banks; provided, however, in the event of any conflict between the
terms of any Reimbursement Agreement and this Agreement, the terms of this
Agreement shall control.
"S&P" means Standard & Poors Rating Services.
3. INCREASE IN COMMITMENTS. Section 2.01(a) is hereby amended and
restated in its entirety as follows:
SECTION 2.01. REVOLVING CREDIT. (a) Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make Loans (other than
Swing Line Loans) to the Borrower from time to time during the period from
the date of this Agreement up to but not including the Termination Date,
and to purchase undivided interests and participations in Facility Letters
of Credit in accordance with Section 13.6, in an aggregate principal amount
of Loans and of such Bank's ratable share of Facility Letter of Credit
Obligations not to exceed at any time outstanding the amount set opposite
such Bank's name on the signature pages of the First Amendment (such Bank's
obligations to make Loans (other than Swing Line Loans) and to purchase
undivided interests and participations in Facility Letters of Credit in
accordance with Section 13.6 in such amounts,
6
as reduced or otherwise modified from time to time pursuant to the terms
of this Agreement, being herein referred to as such Bank's "Commitment"),
subject to the limitations set forth in Section 2.01(b) and Section 13.2.
4. AMENDMENT OF SECTION 2.02. Section 2.02 is hereby amended by
deleting from the end of the first sentence thereof the phrase "the outstanding
and unpaid principal amount of the Loans shall exceed the Aggregate Commitments"
and inserting in place thereof the following:
the sum of (i) the outstanding and unpaid principal amount of the
Loans and (ii) the Facility Letter of Credit Obligations shall exceed
the Aggregate Commitments.
5. AMENDMENT OF SECTION 2.05. Section 2.05 is hereby amended and
restated in its entirety as follows:
SECTION 2.05. DETERMINATION OF APPLICABLE MARGINS AND APPLICABLE
COMMITMENT RATE. (a) The Applicable Margins and the Applicable
Commitment Rate shall be determined by reference to the Senior Debt
Rating and the Debt/Cap Ratio in accordance with the following table
and the provisions of this Section 2.05:
Senior Applicable Applicable
Debt Debt/Cap LIBOR Applicable Commitment
Level Rating Ratio Margin ABR Margin Rate
- ----- --------- ------------- ---------- ---------- ----------
V BBB-/Baa3 less than 30% 0.80% -0- 0.20%
IV BB+/Ba1 30%/less than 35% 1.00% -0- 0.225%
III BB/Ba2 35%/less than 40% 1.15% -0- 0.25%
II BB-/Ba3 40%/less than 55% 1.35% 0.10% 0.30%
B+/B1
I B/B2 & Below 55% or more 1.55% 0.30% 0.35%
The Applicable Margins and Applicable Commitment Rate shall be
determined on the basis of the Levels of the Pricing Factors in
accordance with the following provisions:
7
(i) At any time at which the Pricing Factors are at the same
Level, the Applicable Margins and Applicable Commitment Rate shall
be at that Level;
(ii) At any time at which the Pricing Factors are at different
Levels, the Applicable Margins and the Applicable Commitment Rate
shall be at the Level that corresponds to (A) the Level of the
higher of the two Pricing Factors whenever the Pricing Factors
differ by one Level and (B) the Level that is one Level lower than
the higher of the two Pricing Factors whenever the Pricing Factors
differ by more than one Level;
(iii) At any time at which there is or is deemed to be no Senior
Debt Rating, the Applicable Margins and the Applicable Commitment
Rate shall be at the Level that is one Level lower than the Level of
the Debt/Cap Ratio; and
(iv) At any time at which (A) neither D&P nor Fitch publicly
announces a rating of the Borrower's unsecured long-term debt, and
(B) Moody's or S&P (but not both) publicly announces a rating of the
Borrower's unsecured long-term debt, the Applicable Margin and
Applicable Commitment Rate shall be determined in accordance with
subsections (i) and (ii) above (as applicable), except that (A) the
Applicable LIBOR Margin set forth in the Table above shall be
increased by 0.075% and (B) the Applicable Commitment Rate set forth
in the Table shall be increased by 0.025%.
(b) The Applicable Margin and the Applicable Commitment Rate
shall be adjusted, from time to time, effective (as applicable) on
the first Business Day after any change in the Senior Debt Ratings
that results in any change in the Applicable Margins or Applicable
Commitment Rate or the fifth (5th) Business Day after the Agent's
receipt of the Borrower's quarterly or annual financial statements
evidencing a change in the Debt/Cap Ratio that results in any change
in the Applicable Margins or Applicable Commitment Rates, provided,
however, that any change in the Applicable LIBOR Margin shall only
apply to LIBOR Loans for Interest Periods commencing after such
change in the Applicable LIBOR Margin is effective.
6. REPORTING REQUIREMENTS. (a) Subsections (2), (4)(b) and
(7) of Section 5.08 are hereby amended by deleting the term "ninety (90)
days" in each subsection and replacing it in
8
each subsection with the term "one hundred (100) days."
(b) Subsection (6) of Section 5.08 is hereby amended and
restated in its entirety as follows:
(6) BORROWING BASE CERTIFICATE. Within thirty-five (35) days
after the end of each fiscal quarter, a Borrowing Base Certificate,
with respect to the Inventory Valuation Date occurring on the last
day of such fiscal quarter.
(c) Subsection (8) of Section 5.08 is hereby amended by
deleting the introductory phrase "Within twenty (20) days after the end
of each calendar month" and replacing it with the phrase "Within thirty
(30) days after the end of each fiscal quarter."
7. LETTERS OF CREDIT AND PERFORMANCE BONDS. Section 6.02(7)
is hereby amended and restated in its entirety as follows:
(7) Debt of the Borrower or any Guarantor under Letters of
Credit (including Facility Letters of Credit) in the
ordinary course of business and performance bonds of the
Borrower or any Guarantor incurred in the ordinary course
of business, all of which shall not exceed in the
aggregate at any one time $100,000,000; and
8. LAND INVENTORY. Section 6.10 is hereby amended and
restated in its entirety as follows:
SECTION 6.10. LAND INVENTORY. Permit the ratio,
determined as at the end of any fiscal quarter, of (i) the sum of
the number of Finished Lots and the reasonably estimated number of
Finished Lots that will be developed on other Land, all determined
as at the end of such fiscal quarter, to (ii) the number of Housing
Unit Closings for the period of four (4) full fiscal quarters ending
with such fiscal quarter, to exceed 2.5 to 1.0.
9. NEGATIVE PLEDGES. The following Section 6.15 is added to
the Agreement:
SECTION 6.15. NEGATIVE PLEDGES. Directly or indirectly
enter into any agreement (other than this Agreement and the
Indenture) with any Person that prohibits or restricts or limits the
ability of the Borrower or any Guarantor to create, incur, pledge or
suffer to exist any Lien upon any assets of the Borrower or any
Guarantor
9
(except that agreements creating Liens permitted under Section 6.01(7)
or (8) may prohibit, restrict or limit other Liens on those assets
encumbered by the Liens created by such agreements).
10. AMENDMENT OF LEVERAGE RATIO AND INTEREST COVERAGE RATIO.
(a) Sections 7.02 and 7.03 are hereby amended and restated in their
entirety as follows:
SECTION 7.02. LEVERAGE RATIO. The Borrower will not at any
time permit the ratio of Consolidated Debt to Consolidated Tangible
Net Worth to exceed 2.0 to 1.0, subject to adjustment of such ratio
as provided in Section 7.03 (such ratio, as so adjusted, being
herein referred to as the "Maximum Leverage Ratio").
SECTION 7.03 INTEREST COVERAGE RATIO. (a) If at any time the
Borrower shall fail to maintain an Interest Coverage Ratio of at
least 1.75 to 1.0 (the "Coverage Test"), then the Maximum Leverage
Ratio, effective as of the first day of the fiscal quarter
immediately following any four-quarter period with respect to which
the Borrower shall have so failed to satisfy the Coverage Test,
shall be decreased by 0.10. By way of illustration and not in
limitation of the foregoing, on the first day of the fiscal quarter
following the first four-quarter period with respect to which the
Borrower fails to satisfy the Coverage Test, the Maximum Leverage
Ratio shall be decreased to 1.9 to 1.0, and the next subsequent
decrease (if applicable and if occurring prior to any increase
provided for in Section 7.03(c)) shall decrease the Maximum Leverage
Ratio to 1.8 to 1.0.
(b) If, at any time at which the Maximum Leverage Ratio is
less than 2.0 to 1.0, the Borrower shall satisfy the Coverage Test
(which for purposes of this Section 7.03(b) shall be deemed
satisfied only if, on the same day on which the Borrower maintains
an Interest Coverage Ratio of 1.75 to 1.0, the Borrower is also in
compliance with the covenant set forth in Section 7.02)), then the
Maximum Leverage Ratio, effective as of the first day of the fiscal
quarter immediately following the four-quarter period with respect
to which the Borrower shall have so satisfied the Coverage Test,
shall be increased by 0.10. In no event shall the Maximum Leverage
Ratio exceed 2.0 to 1.0.
(c) Any increase or decrease of the Maximum Leverage
10
Ratio provided for in this Section 7.03 shall be effective as of the
first day of a fiscal quarter as provided in Section 7.03(a) or (b) (as
applicable), and the Maximum Leverage Ratio (as adjusted) shall remain in
effect for the entire fiscal quarter and thereafter unless and until
adjusted as of the first day of any subsequent fiscal quarter as provided
in Section 7.03(a) or (b) (as applicable).
(d) A failure to satisfy the Coverage Test shall not
constitute a Default or Event of Default but a failure at any time
to comply with the covenant set forth in Section 7.02 shall
constitute a Default under Section 8.01(3).
11. FIXED CHARGE COVERAGE RATIO. Section 7.05 is hereby
amended by inserting, after the word "sum" in clause (ii), the
parenthetical phrase "(for the Borrower and its Subsidiaries on a
consolidated basis)."
12. LAND INVENTORY. Section 7.06 is hereby amended and
restated in its entirety as follows:
SECTION 7.06. LAND INVENTORY. The Borrower shall not permit
the book value of all Land (including all Lots and Finished Lots but
excluding (i) any Land upon which the construction of a Housing Unit
has commenced and (ii) Finished Lots as to which the Borrower or a
Subsidiary has a bona fide contract of sale on terms such that, upon
commencement of construction, the same will constitute a Housing
Unit Under Contract) to exceed Consolidated Tangible Net Worth.
13. AMENDMENTS, ETC. Section 11.01 is hereby amended by
adding the following provision at the end of such section:
; and, provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Bank in addition
to the Banks required above to take such action, affect the rights
or duties of the Issuing Bank under any of the Loan Documents.
14. NO WAIVER. Section 11.03 is hereby amended by inserting,
in the first sentence, after the phrase "or the Agent" the phrase "or the
Issuing Bank" and by restating the second sentence thereof in its
entirety as follows:
The making of a Loan or issuance, amendment or extension of a
Facility Letter of Credit notwithstanding the existence of
11
a Default or Event of Default shall not constitute any waiver or
acquiescence of such Default or Event of Default, and the making of any
Loan or issuance, amendment or extension of a Facility Letter of Credit
notwithstanding any failure or inability to satisfy the conditions
precedent to such Loan or issuance, amendment or extension of a Facility
Letter of Credit shall not constitute any waiver or acquiescence with
respect to such conditions precedent with respect to any subsequent Loans
or subsequent issuance, amendment or extension of a Facility Letter of
Credit.
15. LETTER OF CREDIT FACILITY. The following Article XIII is
added to the Agreement:
ARTICLE XIII
THE LETTER OF CREDIT FACILITY
SECTION 13.1. FACILITY LETTERS OF CREDIT. (a) The Issuing
Bank agrees, on the terms and conditions set forth in this
Agreement, to issue from time to time for the account of the
Borrower, through such offices or branches as it and the Borrower
may jointly agree, one or more Facility Letters of Credit in
accordance with this Article XIII, during the period commencing on
the Effective Date and ending on the sixtieth (60th) day prior to
the Termination Date.
(b) The Borrower shall not request, and the Issuing Bank shall
not issue, a Facility Letter of Credit for any purpose other than
for purposes for which Loan proceeds may by used.
SECTION 13.2. LIMITATIONS. The Issuing Bank shall not issue,
amend or extend, at any time, any Facility Letter of Credit:
(i) if the aggregate maximum amount then available for
drawing under Letters of Credit issued by such Issuing Bank,
after giving effect to the Facility Letter of Credit or
amendment or extension thereof requested hereunder, shall
exceed any limit imposed by law or regulation upon such Issuing
Bank;
(ii) if, after giving effect to the issuance, amendment or
extension of the Facility Letter of Credit
12
requested hereunder, the aggregate principal amount of the Facility
Letter of Credit Obligations would exceed $30,000,000;
(iii) if, after giving effect to the issuance, amendment or
extension of the Facility Letter of Credit requested hereunder,
Permitted Senior Debt would exceed the Borrowing Base as of the
most recent Inventory Valuation Date;
(iv) if, after giving effect to the issuance, amendment or
extension of the Facility Letter of Credit requested hereunder,
the sum of (A) the outstanding and unpaid principal amount of
the Loans and (B) the Facility Letter of Credit Obligations
would exceed the Aggregate Commitment;
(v) if the Issuing Bank receives written notice from the
Agent at or before 11:00 A.M. (Chicago time) on the proposed
Issuance Date of such Facility Letter of Credit that one or
more of the conditions precedent contained in Section 13.3
would not on such Issuance Date be satisfied, unless such
conditions are thereafter satisfied or waived and written
notice of such satisfaction is given to the Issuing Bank by the
Agent;
(vi) that has an expiration date (taking into account any
automatic renewal provisions thereof) later than thirty (30)
days prior to the scheduled Termination Date; or
(vii) that is in a currency other than U.S. Dollars.
SECTION 13.3. CONDITIONS. The issuance, amendment or
extension of any Facility Letter of Credit is subject to the
satisfaction in full of the following conditions on the Issuance
Date:
(i) the Borrower shall have delivered to the Issuing Bank
at such times and in such manner as the Issuing Bank may
reasonably prescribe a Reimbursement Agreement and such other
documents and materials as may be reasonably required pursuant
to the terms thereof, and the proposed Facility Letter of
Credit shall be reasonably satisfactory to such Issuing Bank in
form and content;
13
(ii) as of the Issuance Date no order, judgment or decree
of any court, arbitrator or governmental authority shall enjoin
or restrain the Issuing Bank from issuing the Facility Letter
of Credit and no law, rule or regulation applicable to the
Issuing Bank and no directive from any governmental authority
with jurisdiction over the Issuing Bank shall prohibit the
Issuing Bank from issuing Letters of Credit generally or from
issuing that Facility Letter or Credit;
(iii) The following statements shall be true, and the Agent
and Issuing Bank shall have received a certificate signed by a
duly authorized officer of the Borrower dated the Issuance Date
stating that:
(a) The representations and warranties contained in
Article IV of this Agreement are correct on and as of
such Issuance Date as though made on and as of such
Issuance Date; and
(b) No Default or Event of Default has occurred and is
continuing or would result from the issuance,
amendment or extension of such Facility Letter of
Credit; and
(iv) The Issuing Bank and the Agent shall have received
such other approvals, opinions, or documents as either may
reasonably request.
SECTION 13.4. PROCEDURE FOR ISSUANCE OF FACILITY LETTERS
OF CREDIT. (a) The Borrower shall give the Issuing Bank and the
Agent not less than two (2) Business Days' prior written notice of
any requested issuance of a Facility Letter of Credit under this
Agreement (except that, in lieu of such written notice, the Borrower
may give the Issuing Bank and the Agent telephonic notice of such
request if confirmed in writing by delivery to the Issuing Bank and
the Agent (i) immediately (A) of a telecopy of the written notice
required hereunder which has been signed by an authorized officer of
the Borrower or (B) of a telex containing all information required
to be contained in such written notice and (ii) promptly (but in no
event later than the requested Issuance Date) of the written notice
required hereunder containing the original signature of an
authorized officer of the Borrower). Such notice shall specify (i)
the stated amount of the Facility Letter of Credit requested,
14
which amount shall be in compliance with the requirements of Section
13.2, (ii) the requested Issuance Date, which shall be a Business Day,
(iii) the date on which such requested Facility Letter of Credit is to
expire, which date shall be in compliance with the requirements of
Section 13.2(vi), (iv) the purpose for which such Facility Letter of
Credit is to be issued, which purpose shall be in compliance with the
requirements of Section 13.1(b), and (v) the Person for whose benefit the
requested Facility Letter of Credit is to be issued. At the time such
request is made, the Borrower shall also provide the Agent with a copy of
the form of the Facility Letter of Credit it is requesting be issued.
Such notice, to be effective, must be received by the Issuing Bank and
the Agent not later than 2:00 p.m. (Chicago time) on the last Business
Day on which notice can be given under this Section 13.4(a).
(b) Promptly following receipt of a request for issuance
of a Facility Letter of Credit in accordance with Section 13.4(a),
the Issuing Bank shall approve or disapprove, in its reasonable
discretion, the issuance of such requested Facility Letter of
Credit, but the issuance of such approved Facility Letter of Credit
shall continue to be subject to the provisions of this Article XIII.
(c) Subject to the terms and conditions of this Article
XIII (including, without limitation, Sections 13.2 and 13.3), the
Issuing Bank shall, on the Issuance Date, issue the requested
Facility Letter of Credit in accordance with the Issuing Bank's
usual and customary business practices unless the Issuing Bank has
actually received written or telephonic notice from the Borrower
specifically revoking the request to issue such Facility Letter of
Credit. The Issuing Bank shall give the Agent written notice, or
telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Facility Letter of Credit, and the Agent shall
promptly thereafter so notify all Banks.
(d) The Issuing Bank shall not extend or amend any
Facility Letter of Credit unless the requirements of this Section
13.4 are met as though a new Facility Letter of Credit were being
requested and issued.
(e) Any Bank may, but shall not be obligated to, issue to
the Borrower or any of its Subsidiaries Letters of Credit (that are
not Facility Letters of Credit) for its own account, and at its own
risk. None of the provisions of this Article XIII shall apply to
any Letter of Credit that is not a Facility Letter of Credit.
15
SECTION 13.5. DUTIES OF ISSUING BANK. Any action taken
or omitted to be taken by the Issuing Bank under or in connection
with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the
Issuing Bank under any resulting liability to any Bank or, assuming
that the Issuing Bank has complied in all material respects with the
procedures specified in Section 13.4, relieve any Bank of its
obligations hereunder to the Issuing Bank. In determining whether
to pay under any Facility Letter of Credit, the Issuing Bank shall
have no obligation to the Banks other than to confirm that any
documents required to be delivered under such Facility Letter of
Credit appear to have been delivered in compliance and that they
appear to comply on their face with the requirements of such
Facility Letter of Credit.
SECTION 13.6. PARTICIPATION. (a) Immediately upon
issuance by the Issuing Bank of any Facility Letter of Credit in
accordance with Section 13.4, each Bank shall be deemed to have
irrevocably and unconditionally purchased and received from the
Issuing Bank, without recourse or warranty, an undivided interest
and participation ratably (in the proportion of such Bank's
Commitment to the Aggregate Commitments) in such Facility Letter of
Credit (including, without limitation, all obligations of the
Borrower with respect thereto other than amounts owing to the
Issuing Bank under Section 2.15).
(b) In the event that the Issuing Bank makes any payment
under any Facility Letter of Credit and the Borrower shall not have
repaid such amount to the Issuing Bank on or before the date of such
payment by the Issuing Bank, the Issuing Bank shall promptly so
notify the Agent, which shall promptly so notify each Bank. Upon
receipt of such notice, each Bank shall promptly and unconditionally
pay to the Agent for the account of the Issuing Bank the amount of
such Bank's ratable share (in the proportion of such Bank's
Commitment to the Aggregate Commitments) of such payment in same day
funds, and the Agent shall promptly pay such amount, and any other
amounts received by the Agent for the Issuing Bank's account
pursuant to this Section 13.6(b), to the Issuing Bank. If the Agent
so notifies such Bank prior to 11:00 A.M. (Chicago time) on any
Business Day, such Bank shall make available to the Agent for the
account of the Issuing Bank such Bank's ratable share of the amount
of such payment on such Business Day in same day funds. If and to
the extent such Bank shall not have so made its ratable share of the
amount of such payment available to the Agent for the account of the
Issuing Bank, such Bank agrees to pay
16
to the Agent for the account of the Issuing Bank forthwith on demand such
amount, together with interest thereon, for each day from the date such
payment was first due until the date such amount is paid to the Agent for
the account of the Issuing Bank, at the Federal Funds Rate. The failure
of any Bank to make available to the Agent for the account of the Issuing
Bank such Bank's ratable share of any such payment shall not relieve any
other Bank of its obligation hereunder to make available to the Agent for
the account of the Issuing Bank its ratable share of any payment on the
date such payment is to be made.
(c) The payments made by the Banks to the Issuing Bank in
reimbursement of amounts paid by it under a Facility Letter of
Credit shall constitute, and the Borrower hereby expressly
acknowledges and agrees that such payments shall constitute, Loans
hereunder (notwithstanding that the amounts thereof may not comply
with the provisions of Section 2.1). Such Loans shall be ABR Loans,
subject to the Borrower's rights under Article II hereof.
(d) Upon the request of the Agent or any Bank, the
Issuing Bank shall furnish to the requesting Agent or Bank copies of
any Facility Letter of Credit or Reimbursement Agreement to which
the Issuing Bank is party.
(e) The obligations of the Banks to make payments to the
Agent for the account of the Issuing Bank with respect to a Facility
Letter of Credit shall be irrevocable, not subject to any
qualification or exception whatsoever and shall be made in
accordance with, but not subject to, the terms and conditions of
this Agreement under all circumstances, including, without
limitation, the following:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a
beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Issuing Bank, the
Agent, any Bank, or any other Person, whether in connection
with this Agreement, any Facility Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the Borrower or
any Subsidiary and the beneficiary named in any Facility Letter
of Credit);
17
(iii) any draft, certificate or any other document
presented under the Facility Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect of
any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Loan Documents;
(v) any failure by the Agent or the Issuing Bank to make
any reports required pursuant to Section 13.8; or
(vi) the occurrence of any Default or Event of Default.
(f) For purposes of determining the unused portion of the
Aggregate Commitments and the unused portion of a Bank's Commitment
under Sections 2.02 and 2.09(b), the Aggregate Commitments shall be
deemed used to the extent of the aggregate undrawn face amount of
the outstanding Facility Letters of Credit and the Bank's Commitment
shall be deemed used to the extent of such Bank's ratable share (in
the proportion of such Bank's Commitment to the Aggregate
Commitment) of the aggregate undrawn face amount of the outstanding
Facility Letters of Credit.
SECTION 13.7. COMPENSATION FOR FACILITY LETTERS OF
CREDIT. (a) The Borrower agrees to pay to the Agent, in the case of
the issuance of each Facility Letter of Credit, the Facility Letter
of Credit Fee therefor, payable in quarterly installments in advance
on the Issuance Date (which installment shall be a pro rata portion
of the annual Facility Letter of Credit Fee for the period
commencing on the Issuance Date and ending on the last day of the
calendar quarter in which the Issuance Date occurs) and on the first
day of each calendar quarter after the Issuance Date (which
installment shall be a pro rata portion of the annual Facility
Letter of Credit Fee for the quarter in which such payment is due).
Facility Letter of Credit Fees shall be calculated, on a pro rata
basis for the period to which such payment applies, for actual days
that will elapse during such period, on the basis of a 360-day year.
The Agent shall promptly remit such Facility Letter of Credit Fees,
when paid, to the Banks ratably.
(b) The Borrower shall also pay to the Issuing Bank,
solely for its own account, a fee with respect to each Facility
Letter of Credit in an amount per annum equal to
18
the product of (i) 0.125% per annum and (ii) the face amount of such
Facility Letter of Credit, which fee shall be payable in advance on or
before the issuance of such Facility Letter of Credit. The Issuing Bank
shall also have the right to receive, solely for its own account, its
out-of-pocket costs of issuing and servicing Facility Letters of Credit,
as the Borrower may agree in writing.
SECTION 13.8. ISSUING BANK REPORTING REQUIREMENTS. The
Issuing Bank shall, no later than the tenth day following the last
day of each month, provide to the Agent a schedule of the Facility
Letters of Credit issued by it showing the Issuance Date, account
party, original face amount, amount (if any) paid thereunder,
expiration date and the reference number of each Facility Letter of
Credit outstanding at any time during such month and the aggregate
amount (if any) payable by the Borrower to the Issuing Bank during
the month pursuant to Section 3.2. Copies of such reports shall be
provided promptly to each Bank by the Agent.
SECTION 13.9. INDEMNIFICATION; NATURE OF ISSUING BANK'S
DUTIES. (a) In addition to amounts payable as elsewhere provided in
this Article XIII, the Borrower hereby agrees to protect, indemnify,
pay and save the Agent, the Issuing Bank and each Bank harmless from
and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys'
fees) arising from the claims of third parties against the Agent,
the Issuing Bank or any Bank as a consequence, direct or indirect,
of (i) the issuance of any Facility Letter of Credit other than, in
the case of the Issuing Bank, as a result of its willful misconduct
or gross negligence, or (ii) the failure of the Issuing Bank to
honor a drawing under a Facility Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any government,
court or other governmental agency or authority.
(b) As among the Borrower, the Banks, the Agent and the
Issuing Bank, the Borrower assumes all risks of the acts and
omissions of, or misuse of Facility Letters of Credit by, the
respective beneficiaries of such Facility Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the
Issuing Bank nor the Agent nor any Bank shall be responsible: (i)
for the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in connection with the
application for and issuance of the Facility Letters of Credit, even
if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or
19
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Facility
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of a
Facility Letter of Credit to comply fully with conditions required in
order to draw upon such Facility Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, facsimile transmission or
otherwise; (v) for errors in interpretation of technical terms; (vi) for
any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Facility Letter of Credit
or of the proceeds thereof; (vii) for the misapplication by the
beneficiary of a Facility Letter of Credit of the proceeds of any drawing
under such Facility Letter of Credit; or (viii) for any consequences
arising from causes beyond the control of the Agent, the Issuing Bank and
the Banks including, without limitation, any act or omission, whether
rightful or wrongful, of any government, court or other governmental
agency or authority. None of the above shall affect, impair, or prevent
the vesting of any of the Issuing Bank's rights or powers under this
Section 13.9.
(c) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Bank under or in connection with the Facility
Letters of Credit or any related certificates, if taken or omitted
in good faith, shall not put the Issuing Bank, the Agent or any Bank
under any resulting liability to the Borrower or relieve the
Borrower of any of its obligations hereunder to any such Person, but
the foregoing shall not relieve the Issuing Bank of its obligation
to confirm that any documents required to be delivered under a
Facility Letter of Credit appear to have been delivered in
compliance and that they appear to comply on their face with the
requirements of such Facility Letter of Credit.
(d) Notwithstanding anything to the contrary contained in
this Section 13.9, the Borrower shall have no obligation to
indemnify the Issuing Bank under this Section 13.9 in respect of any
liability incurred by the Issuing Bank arising primarily out of the
willful misconduct or gross negligence of the Issuing Bank, as
determined by a court of competent jurisdiction, or out of the
wrongful dishonor by the Issuing Bank of a proper demand for payment
made under the Facility Letters of Credit issued by the
20
Issuing Bank, unless such dishonor was made at the request of the
Borrower.
SECTION 13.10. RESIGNATION OF ISSUING BANK. The Issuing
Bank shall continue to be the Issuing Bank unless and until (i) it
shall have given the Borrower and the Agent notice that it has
elected to resign as Issuing Bank and (ii) another Bank shall have
agreed to be the replacement Issuing Bank and shall have been
approved in writing by the Agent and the Borrower. The resigning
Issuing Bank shall continue to have the rights and obligations of
the Issuing Bank hereunder solely with respect to Facility Letters
of Credit theretofore issued by it notwithstanding the designation
of a replacement Issuing Bank hereunder, but upon such designation
of a replacement Issuing Bank, the resigning Issuing Bank shall not
thereafter issue any Facility Letters of Credit (unless it shall
again thereafter be designated as the Issuing Bank in accordance
with the provisions of this Section 13.10). The assignment of, or
grant of a participation interest in, all or any part of its
Commitment or Loans by the Bank that is also the Issuing Bank shall
not constitute an assignment or transfer of any of its rights or
obligations as Issuing Bank.
SECTION 13.11. TERMINATION OF ISSUING BANK'S OBLIGATION.
In the event that the Banks' obligations to make Loans terminate or
are terminated as provided in Section 8.01, the Issuing Bank's
obligation to issue Facility Letters of Credit shall also terminate.
SECTION 13.12. OBLIGATIONS OF ISSUING BANK AND OTHER
BANKS. Except to the extent that a Bank shall have agreed to be
designated as the Issuing Bank, no Bank shall have any obligation to
accept or approve any request for, or to issue, amend or extend, any
Letter of Credit, and the obligations of the Issuing Bank to issue,
amend or extend any Facility Letter of Credit are expressly limited
by and subject to the provisions of this Article XIII.
SECTION 13.13. ISSUING BANK'S RIGHTS. All of the
representations, warranties, covenants and agreements of the
Borrower to the Banks under this Agreement and of the Borrower under
any other Loan Document shall inure to the benefit of the Issuing
Bank (unless the context otherwise indicates). Without limitation
of the foregoing, (a) the provisions of Section 2.15 (relating to
capital adequacy) shall apply with respect to the Issuing Bank and
its issuance of, or obligation to issue, Facility Letters of Credit;
(b) the provisions of Section 2.18 (relating to
21
statements of amounts payable and the survival of obligations) shall
apply to the Issuing Bank; and (c) the provisions of Section 11.04
(relating to the Borrower's payment of costs, expenses, taxes, fees and
other amounts) shall apply to such costs, expenses, taxes, fees and other
amounts relating to the Facility Letters of Credit.
16. CONDITIONS PRECEDENT TO AMENDMENT. This Amendment is subject
to the conditions precedent that (a) the Borrower shall have paid to FCCM
and the Agent the fees provided for in that certain letter agreement
dated May 23, 1997 among the Agent, FCCM and the Borrower (which fees
shall be payable by FCCM to the Banks in accordance with and to the
extent provided in FCCM's offer letter to the Banks dated June 19, 1997)
and (b) the Agent shall have received at the time of the execution of
this Amendment, each of the following, in form and substance satisfactory
to the Agent and its counsel and (except for the documents identified in
item (1)) in sufficient copies for each Bank:
(1) NOTES. For each Original Bank, an Amended and Restated
Note in the form of Exhibit A, and for AmSouth, a Note in the form of
Exhibit B (collectively, the "Notes"), all duly executed by the Borrower;
(2) EVIDENCE OF ALL CORPORATE ACTION BY THE BORROWER.
Certified copies of all corporate action taken by the Borrower, including
resolutions of its Board of Directors, authorizing the execution,
delivery and performance of this Amendment and each other document to be
delivered by it pursuant to this Amendment;
(3) INCUMBENCY AND SIGNATURE CERTIFICATE OF BORROWER. A
certificate of the Secretary or Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower
authorized to sign this Amendment and each other document to be delivered
by the Borrower pursuant to this Amendment;
(4) ARTICLES OF INCORPORATION OF BORROWER. Copies of the
articles of incorporation of the Borrower, together with all amendments,
and a certificate of good standing, all certified by the appropriate
governmental officer in its jurisdiction of incorporation;
(5) OPINIONS OF COUNSEL FOR BORROWER. A favorable opinion of
Paul, Hastings, Janofsky & Walker LLP, counsel for the Borrower and for
the Guarantors that are Delaware Persons, in substantially the form of
Exhibit C and as to such other matters as the Agent may reasonably
request and of Katten Muchin & Zavis,
22
Illinois counsel for the Borrower, in substantially the form of Exhibit D
and as to such other matters as the Agent may reasonably request;
(6) EVIDENCE OF ALL CORPORATE OR PARTNERSHIP ACTION BY
GUARANTORS. With respect to each corporate Guarantor, certified (as of
the date of this Amendment) copies of all corporate action taken by such
Guarantor, including resolutions of its Board of Directors, authorizing
the execution, delivery, and performance of this Amendment, and with
respect to each limited partnership Guarantor, partnership action taken
by such Guarantor, including any and all necessary partnership consents
authorizing the execution, delivery, and performance of this Amendment;
(7) ARTICLES OF INCORPORATION OF GUARANTORS. Copies of the
articles of incorporation of each corporate Guarantor, together with all
amendments, and a certificate of good standing, all certified by the
appropriate governmental officer in its jurisdiction of incorporation;
provided, however, that, (a) if any such articles of incorporation have
not been amended since the furnishing of a copy thereof pursuant to
Section 3.01 of the Agreement, such Guarantor may furnish a certificate
of the secretary or assistant secretary of such Guarantor so stating (in
lieu of furnishing such articles of incorporation) and (b) if a
certificate of good standing is not currently available, the Guarantor
shall deliver other reasonably satisfactory evidence of its good standing
and, within thirty (30) days, shall deliver a certificate of good
standing;
(8) INCUMBENCY AND SIGNATURE CERTIFICATE OF GUARANTORS. A
certificate (dated as of the date of this Amendment) of the Secretary or
Assistant Secretary of each corporate Guarantor or the general partner of
each partnership Guarantor certifying the names and true signatures of
the officers of each such corporate Guarantor and the representative of
each partnership Guarantor authorized to sign this Amendment;
(9) OPINION OF COUNSEL FOR CERTAIN GUARANTORS. With respect
to Beazer Homes Corp., a favorable opinion of Tennessee counsel in
substantially the form of Exhibit E hereto, and as to such other matters
as the Agent may reasonably request;
(10) PARTNERSHIP AGREEMENT. A true and complete copy of the
limited partnership agreement of each limited partnership Guarantor,
including without limitation, any and all amendments and modifications
thereto, and any and all filed partnership certificates provided,
however, that, if such partnership agreement or partnership certificates
have not been amended since the furnishing of a copy thereof pursuant to
Section 3.01 of the
23
Agreement, such Guarantor may furnish a certificate of an officer of its
general partner so stating (in lieu of furnishing the applicable
agreement or certificate);
(11) OTHER DOCUMENTS. Such other and further documents as any
Bank or its counsel may have reasonably requested;
17. GUARANTY. By executing this Amendment, the Guarantors
unconditionally and irrevocably agree and confirm that the Guaranty
applies and extends to the Obligations (as amended by the Amendment) and
that the Guaranty is ratified and remains in full force and effect.
18. RATIFICATION. The Agreement, as amended hereby, is hereby
ratified and remains in full force and effect.
19. 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.
24
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:________________________________
David S. Weiss
Executive Vice President and
Chief Financial Officer
GUARANTORS:
BEAZER MORTGAGE CORPORATION
By:________________________________
David S. Weiss
Vice President
BEAZER HOMES CORP.
By:________________________________
David S. Weiss
Vice President
BEAZER HOMES SALES ARIZONA INC.
By:________________________________
David S. Weiss
Vice President
BEAZER REALTY CORP.
By:________________________________
David S. Weiss
Vice President
BEAZER/SQUIRES REALTY, INC.
By:________________________________
David S. Weiss
Vice President
25
PANITZ HOMES REALTY INC.
By:________________________________
David S. Weiss
Vice President
BEAZER HOMES HOLDINGS CORP.
By:________________________________
David S. Weiss
Vice President
BEAZER TEXAS HOLDINGS, INC.
By:________________________________
David S. Weiss
Vice President
BEAZER HOMES TEXAS, L.P.
By: BEAZER TEXAS HOLDINGS, INC.
its general partner
By:________________________________
David S. Weiss
Vice President
26
BANKS:
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank, the Agent and the
Issuing Bank
Commitment:
By:_____________________
$33,000,000.00 Name:___________________
Vice President
BANK ONE, ARIZONA, N.A.
Commitment: By: ____________________
Name: __________________
$28,500,000.00 Title: _________________
GUARANTY FEDERAL BANK, F.S.B.
Commitment: By: _____________________
Name: ___________________
$28,500,000.00 Title: __________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (successor by
merger to Bank of America,
Illinois)
Commitment: By: ____________________
Name: __________________
$22,500,000.00 Title: _________________
BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston)
Commitment: By: ____________________
Name: __________________
$22,500,000.00 Title: _________________
27
AMSOUTH BANK
Commitment: By: ____________________
Name: __________________
$22,500,000.00 Title: _________________
ADDRESS FOR NOTICES:
AmSouth Bank
Sonat Tower
9th Floor - Commercial Real Estate
1900 5th Avenue North
Birmingham, AL 35203
Attn: Ronny Hudspeth
Telephone: (205) 307-4227
Telecopy: (205) 326-4075
ADDRESS FOR ABR LOANS AND LIBOR
LOANS:
AmSouth bank
Sonat Tower
9th Floor - Commercial Real Estate
1900 5th Avenue North
Birmingham, AL 35203
Attn: Ronny Hudspeth
Telephone: (205) 307-4227
Telecopy: (205) 326-4075
28
COMERICA BANK
Commitment: By: ____________________
Name: __________________
$22,500,000.00 Title: _________________
SUNTRUST BANK, ATLANTA
Commitment: By: ____________________
Name: __________________
$20,000,000.00 Title: _________________
By: ____________________
Name: __________________
Title: _________________
29
Exhibit A
AMENDED AND RESTATED
NOTE
$_______________________________ July 29, 1997
FOR VALUE RECEIVED, the undersigned, BEAZER HOMES USA, INC., a
Delaware corporation (the "Borrower") HEREBY PROMISES TO PAY to the order
of _______________________ (the "Bank") to THE FIRST NATIONAL BANK OF
CHICAGO, as Agent, at the Agent's Office located at One First National
Plaza, Chicago, IL, for the account of the applicable Lending Office of
the Bank, in lawful money of the United States and in immediately
available funds, the principal amount of _________________ Dollars
($_______) or the aggregate unpaid principal amount of all Loans made
to the Borrower by the Bank pursuant to the Credit Agreement and
outstanding on the Termination Date, whichever is less, and to pay
interest from the date of this Amended and Restated Note ("Note"), in
like money, at said office for the account of the applicable Lending
Office, at the time and at a rate per annum as provided in the Credit
Agreement. The Bank is hereby authorized by the Borrower to endorse on
the schedule attached to the Note held by it the amount and type of each
Loan and each renewal, conversion, and payment of principal amount
received by the Bank for the account of the applicable Lending Office on
account of its Loans, which endorsement shall, in the absence of manifest
error, be conclusive as to the outstanding balance of the Loans made by
the Bank; provided, however, that the failure to make such notation with
respect to any Loan or renewal, conversion, or payment shall not limit or
otherwise affect the obligations of the Borrower hereunder.
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, dated as of October 22, 1996,
between the Borrower, the Guarantors, the Bank and certain other banks
party thereto, as amended by First Amendment to Credit Agreement of even
date herewith between the Borrower, the Guarantors, the Bank and certain
other banks party thereto (which Credit Agreement, as so amended, and as
it may be amended, modified, renewed or extended from time to time, is
herein called the "Credit Agreement"). Terms used herein which are
defined in the Credit Agreement shall have their defined meanings when
used herein. The Credit Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity of this Note upon the terms and
conditions specified in the Credit Agreement.
This Note amends and restates in its entirety, and replaces, a
certain Note dated October 22, 1996 made by the Borrower payable to the
order of the Bank in the principal amount of $_____________.
The Borrower hereby agrees to pay all reasonable costs and
expenses (including reasonable attorney's fees and expenses) paid or
incurred by the holder of this Note in the collection of any principal or
interest payable under this Note or the enforcement of this Note or any
other Loan Documents.
This Note shall be governed by the laws of the State of
Illinois.
Beazer Homes USA, Inc.
By:______________________________
Name: ___________________________
Title: __________________________
Exhibit B
NOTE
$_______________________________ July 29, 1997
FOR VALUE RECEIVED, the undersigned, BEAZER HOMES USA, INC., a
Delaware corporation (the "Borrower") HEREBY PROMISES TO PAY to the order
of AMSOUTH BANK (the "Bank") to THE FIRST NATIONAL BANK OF CHICAGO, as
Agent, at the Agent's Office located at One First National Plaza,
Chicago, IL, for the account of the applicable Lending Office of the
Bank, in lawful money of the United States and in immediately available
funds, the principal amount of _________________ Dollars ($_______) or
the aggregate unpaid principal amount of all Loans made to the Borrower
by the Bank pursuant to the Credit Agreement and outstanding on the
Termination Date, whichever is less, and to pay interest from the date of
this Note, in like money, at said office for the account of the
applicable Lending Office, at the time and at a rate per annum as
provided in the Credit Agreement. The Bank is hereby authorized by the
Borrower to endorse on the schedule attached to the Note held by it the
amount and type of each Loan and each renewal, conversion, and payment of
principal amount received by the Bank for the account of the applicable
Lending Office on account of its Loans, which endorsement shall, in the
absence of manifest error, be conclusive as to the outstanding balance of
the Loans made by the Bank; provided, however, that the failure to make
such notation with respect to any Loan or renewal, conversion, or payment
shall not limit or otherwise affect the obligations of the Borrower
hereunder.
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, dated as of October 22, 1996,
between the Borrower, the Guarantors, and certain other banks party
thereto and amended by First Amendment to Credit Agreement of even date
herewith between the Borrower, the Guarantors, the Bank and certain other
banks party thereto (which Credit Agreement as so amended, and as it may
be amended, modified, renewed or extended from time to time, is herein
called the "Credit Agreement"). Terms used herein which are defined in
the Credit Agreement shall have their defined meanings when used herein.
The Credit Agreement, among other things, contains provisions for
acceleration of the maturity of this Note upon the happening of certain
stated events and also for prepayments on account of principal hereof
prior to the maturity of this Note upon the terms and conditions
specified in the Credit Agreement.
The Borrower hereby agrees to pay all reasonable costs and
expenses (including reasonable attorney's fees and expenses) paid or
incurred by the holder of this Note in the collection of any principal or
interest payable under this Note or the enforcement of this Note or any
other Loan Documents.
This Note shall be governed by the laws of the State of
Illinois.
Beazer Homes USA, Inc.
By:________________________________
Name: _____________________________
Title: ____________________________
