UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of
Report: December 29, 2006
BEAZER
HOMES USA, INC.
(Exact
name of registrant as specified in its charter)
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DELAWARE
|
001-12822
|
54-2086934
|
|
(State
or other jurisdiction
|
(Commission
|
(IRS
Employer
|
|
of
incorporation)
|
File
Number)
|
Identification
No.)
|
1000
Abernathy Road, Suite 1200
Atlanta
Georgia 30328
(Address
of Principal
Executive
Offices)
(770)
829-3700
(Registrant's
telephone number, including area code)
None
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement
Effective
December 29, 2006, Beazer Mortgage Corporation (“Beazer Mortgage”), a subsidiary
of Beazer Homes USA, Inc. (the “Company”), amended (the “First Amendment”) its
364-day mortgage warehouse line credit facility (the “Credit Facility”) to
extend the maturity date to February 9, 2007. Beazer Mortgage is currently
in
the process of and anticipates entering into another 364-day credit agreement
prior to the expiration of this extension. The Credit Facility is secured
by
certain mortgage loans held for sale and related property and is not guaranteed
by the Company or any of its subsidiaries that are guarantors of other
indebtedness of the Company. There have been no other amendments to the Credit
Facility. The First Amendment is attached as Exhibit 10.1 hereto and is
incorporated herein by reference. The above description is qualified in its
entirety by reference to Exhibit 10.1.
Item
2.03. Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement
The
disclosure contained in Item 1.01 is incorporated herein by
reference.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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10.1
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First
Amendment to Credit Agreement dated as of December 29, 2006, by
and among
Beazer Mortgage Corporation as Borrower, the Lenders party thereto,
Guaranty Bank as Agent, JPMorgan Chase Bank, N.A. as Syndication
Agent and
U.S. Bank National Association as Documentation
Agent
|
2
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 hereunto
duly authorized.
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BEAZER
HOMES USA INC.
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|
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Date:
January 2, 2007
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By:
/s/
James O’Leary
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James O’Leary
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Executive Vice President and Chief Financial
Officer
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3
Exhibit
10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
is
made effective as of December 29, 2006, by and between BEAZER MORTGAGE
CORPORATION, a Delaware corporation ("Borrower"),
the
banks
identified on the signature pages hereof (individually referred to herein
as a
"
Lender"
and
collectively as the "Lenders"),
and
GUARANTY BANK, a federal savings bank, as administrative and collateral agent
for the Lenders ("Agent"),
JPMORGAN CHASE BANK, N.A., as syndication agent, and U.S. BANK NATIONAL
ASSOCIATION, as documentation agent.
W
I T N E
S S E T H:
WHEREAS,
Borrower and Lender have entered into that certain Credit Agreement dated
as of
January 11, 2006 (the "Credit
Agreement"),
for
the purposes and consideration therein expressed; and
WHEREAS,
Borrower and Lender desire to extend and amend the Credit Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Credit Agreement, in consideration
of the
loans which may hereafter be made by Lender to Borrower, and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE
I
Definitions
and References
1.1 Terms
Defined in the Credit Agreement.
Unless
the context otherwise requires or unless otherwise expressly defined herein,
the
terms defined in the Credit Agreement shall have the same meanings whenever
used
in this Amendment.
ARTICLE
II
Amendments
to Credit Agreement
2.1 Definitions.
The
definition of "Drawdown
Termination Date"
in
Section
1.1
of the
Credit Agreement is hereby amended in its entirety to read as
follows:
"'Drawdown
Termination Date'
means
the earlier of February 9, 2007, or the day on which the Notes first become
due
and payable in full in accordance with the terms thereof or this
Agreement."
2.2 Waiver
of Comparative Audit Requirement.
Agent
and Lender, on a one-time basis only for the Fiscal Year 2005, and upon
Borrower's satisfaction of the conditions precedent listed in Article
III
hereof,
hereby agree to waive the comparative audit requirement in Section
5.1(a)(i),(ii),
whereby the Borrower is required to furnish the Borrower's audited Consolidated
statements of income, stockholders' equity and cash flows for such Fiscal
year
in "comparative form" with the corresponding figures for the preceding Fiscal
Year. Notwithstanding the foregoing, the execution of this Amendment shall
not
be deemed to be: (a) a waiver of Borrower's duty to provide both the Borrower's
and Parent's audited Consolidated statements of income, stockholder's equity
and
cash flows for such Fiscal Year; rather, the execution of this Amendment
is
deemed a waiver solely with regard to the requirement to furnish the Borrower's
audited Consolidated statements in "comparative form" with the corresponding
figures for the Fiscal Year 2005; (b) a waiver by Lender of any of the
Borrower's obligations under the Loan Documents, or (c) a waiver by Lender
of
any rights, remedies, offsets, claims, or other causes of action that Lender
may
have against Borrower under the Loan Documents, all of which rights Lender
specifically reserves.
ARTICLE
III
Conditions
to Effectiveness
3.1 Effective
Date.
Amendment
shall become effective as of the date first above written when and only when
Agent shall have received, at Agent's office, three (3) original duly executed
counterparts of this Amendment.
ARTICLE
IV
Miscellaneous
4.1 Borrower
Acknowledgment.
Except
as otherwise specified herein, the terms and provisions of the Credit Agreement
are ratified and confirmed by Borrower and shall remain in full force and
effect, enforceable in accordance with their terms. Borrower hereby
acknowledges, agrees and represents that (i) contemporaneously with the
effectiveness of this Amendment, the representations and warranties of Borrower
contained in the Credit Agreement are true and correct representations and
warranties, and (ii) Borrower has no set-offs, counterclaims, defenses or
other causes of action against Lender arising out of the Credit Agreement,
this
Amendment, any other Loan Document or otherwise, and to the extent any such
set-offs, counterclaims, defenses or other causes of action may exist, whether
known or unknown, such items are hereby waived by Borrower.
4.2 Costs
and Expenses.
Borrower shall pay, or cause to be paid, by check or wire transfer, all costs
and expenses related to the preparation for and the closing of the transaction
contemplated by this Amendment, including, but not limited to, the fees and
expenses of legal counsel to Lender (which
fees and expenses, as to legal counsel of Lender, shall be paid directly
to
legal counsel of Lender immediately upon presentation of a bill for legal
services rendered).
4.3 CHOICE
OF LAW; VENUE.
THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
BORROWER
HEREBY AGREES THAT THE OBLIGATIONS CONTAINED HEREIN ARE PERFORMABLE IN
DALLAS
COUNTY, TEXAS.
ALL PARTIES HERETO AGREE THAT (I) ANY ACTION ARISING OUT OF THIS TRANSACTION
SHALL BE FILED IN DALLAS
COUNTY, TEXAS,
(II) VENUE FOR ENFORCEMENT OF ANY OF THE OBLIGATIONS CONTAINED IN THIS AMENDMENT
SHALL BE IN DALLAS
COUNTY, TEXAS
(III) PERSONAL JURISDICTION SHALL BE IN DALLAS
COUNTY, TEXAS,
(IV) ANY ACTION OR PROCEEDING UNDER THIS
2
AMENDMENT
SHALL BE COMMENCED AGAINST BORROWER IN DALLAS
COUNTY, TEXAS
(V) SUCH ACTION SHALL BE INSTITUTED IN THE COURTS OF THE STATE OF TEXAS LOCATED
IN DALLAS
COUNTY, TEXAS
OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
LOCATED IN DALLAS COUNTY, TEXAS, AT THE OPTION OF LENDER AND (VI) BORROWER
HEREBY WAIVES ANY OBJECTION TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
AND ADDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO BE SUED ELSEWHERE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF LENDER TO ACCOMPLISH SERVICE OF PROCESS
IN ANY
MANNER PERMITTED BY LAW.
4.4 WAIVER
OF JURY TRIAL.
EACH OF THE PARTIES HERETO WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE CREDIT AGREEMENT,
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE
PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT
CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM
OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A
TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY
OR
ENFORCEABILITY OF THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE CREDIT
AGREEMENT AND ANY OTHER LOAN DOCUMENTS.
4.5 Time
is of the Essence.
Time is
of the essence in the performance of the covenants contained herein and in
the
Loan Documents.
4.6 Binding
Agreement.
This
Amendment shall be binding upon the heirs, executors, administrators, personal
representatives, successors and assigns of the parties hereto; provided,
however, the foregoing shall not be deemed or construed to (i) permit, sanction,
authorize or condone the assignment of all or any part of any interest in
and to
Borrower or any Guarantor except as expressly authorized in the Loan Documents,
or (ii) confer any right, title, benefit, cause of action or remedy upon
any
person or entity not a party hereto, which such party would not or did not
otherwise possess.
3
4.7 Headings.
The
section headings hereof are inserted for convenience of reference only and
shall
in no way alter, amend, define or be used in the construction or interpretation
of the text of such section.
4.8 Construction.
Whenever the context hereof so required, reference to the singular shall
include
the plural and likewise, the plural shall include the singular; words denoting
gender shall be construed to mean the masculine, feminine or neuter, as
appropriate; and specific enumeration shall not exclude the general but shall
be
construed as cumulative of the general recitation.
4.9 Counterparts;
Fax.
This
Amendment may be separately executed in counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall
be
deemed to constitute one and the same Amendment. This Amendment may be duly
executed by facsimile or other electronic transmissions.
4.10 No
Reliance.
In executing this Amendment, Borrower warrants and represents that Borrower
is
not relying on any statement or representation other than those in the Credit
Agreement and this Amendment and is relying upon its own judgment and advice
of
its attorneys.
4.11 ENTIRE
AGREEMENT.
THIS
AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS COLLECTIVELY
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed effective as of the date first above written.
BORROWER: BEAZER
MORTGAGE CORPORATION,
Borrower's
Address: a
Delaware corporation
1000
Abernathy Road, Suite 1200
Atlanta,
GA 30328
Attention: Mr.
Ron
Kuhn
By:
/s/
Cory J. Boydston
With
a
copy of all notices to:
Name:
Cory J. Boydston
Title:
Senior Vice President
Mr.
Kenneth J. Gary
Executive
Vice President & General Counsel
Beazer
Homes USA, Inc.
1000
Abernathy Road
Atlanta,
GA 30328
STATE
OF
GEORGIA
§
§
COUNTY
OF
FULTON
§
Before
me, the undersigned notary public, on this 19th day of December, 2006,
personally appeared Cory J. Boydston of Beazer Mortgage Corporation, a Delaware
corporation, known to me (or proved to me by the production of a driver's
license as identification) to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same on
behalf
of said corporation for the purposes and consideration therein
expressed.
/s/ Teresa Rose Dietz
Notary Public - State of Georgia
My
Commission
expires:
Teresa
Rose Dietz
5
-5
-2007
Printed
Name of Notary
AGENT: GUARANTY
BANK,
Address: a
Federal
savings bank
8333
Douglas Avenue, 11th
Floor
Dallas,
Texas 75225
Attention:
Ms. Amy Satsky
Fax:
214.360.3328
Tel:
214.360.2674 By:
/s/
Amy Satsky
Name:
Amy
Satsky
Title: Vice President
LENDER: GUAR
ANTY
BANK,
Address: a
Federal
savings bank,
8333
Douglas Avenue, 11th
Floor as
a
Lender and as Swingline Lender
Dallas,
Texas 75225
Attention:
Ms. Amy Satsky
Fax:
214.360.3328
Tel:
214.360.2674
By:
/s/
Amy Satsky
Name:
Amy
Satsky
Title:
Vice President
LENDER:
JPMORGAN
CHASE BANK, N.A.
as
a
Lender
By:
/s/
R. Britt Langford
Name:
R.
Britt Langford
Title:
Managing Director
LENDER: U.S.
BANK NATIONAL ASSOCIATION
as
a
Lender
By: /s/
William J. Umscheid
Name:
William J. Umscheid
Title:
Vice President
LENDER: BANK
OF AMERICA, N.A.
as
a
Lender
By:
/s/
Elizabeth Kurilecz
Name:
Elizabeth Kurilecz
Title:
Senior Vice President
LENDER:
WASHINGTON
MUTUAL BANK
as
a
Lender
By:
/s/
Anne D. Brehony
Name:
Anne D. Brehony
Title:
Vice President
LENDER:
NATIONAL
CITY BANK OF KENTUCKY
as
a
Lender
By:
/s/
Michael A. Johnson
Name:
Michael A. Johnson
Title:
Vice President
LENDER:
COMERICA
BANK
500
Woodward
Ave.
as
a
Lender
Detroit,
MI 48226
Attn:
Paul G. Dufault MC 3256
Fax:
313.222.9295
Tel:
313.222.9036 By:
/s/
Paul G. Dufault
Name:
Paul G. Dufault
Title:
Vice President
LENDER:
COLONIAL
BANK, N.A.
Colonial
Bank,
N.A.
as
a
Lender
Mortgage
Warehouse Lending
201
E.
Pine Street, Suite 730
Orlando,
FL 32801
Attn:
Jennifer
Branker
By:
/s/
Jennifer M. Branker
Fax:
407.835.6690
Name:
Jennifer M. Branker
Tel:
407.835.6700 Title:
Vice President
LENDER:
CALYON
NEW YORK BRANCH
as
a
Lender
By:
/s/
David Cagle
Name:
David Cagle
Title:
Managing Director
By:
/s/
Robert Smith
Name:
Robert Smith
Title:
Managing Director
LENDER:
BNP
PARIBAS
as
a
Lender
By: /s/
Duane Helkowski
Name:
Duane Helkowski
Title:
Managing Director
By: /s/
Berangere Allen
Name:
Berangere Allen
Title:
Vice President