BEAZER HOMES USA, INC. AND THE SUBSIDIARY GUARANTORS SIGNATORY HERETO
Dated
as of October 26, 2007
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
THIS
NINTH SUPPLEMENTAL INDENTURE, dated as of October 26, 2007, by and among
BEAZER HOMES USA, INC., a corporation duly incorporated and existing under
the
laws of the State of Delaware (the “Company”), having its principal office at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Subsidiary
Guarantors signatory hereto, each having its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and U.S. BANK NATIONAL ASSOCIATION,
a
national banking association, having an office at U.S. Bank Corporate Trust
Center, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Trustee
(the “Trustee”), under the Indenture, dated as of April 17, 2002 (the
“Original Indenture”), which Original Indenture was executed and delivered by
the Company to the Trustee to secure the payment of senior debt securities
issued or to be issued under and in accordance with the provisions of the
Original Indenture, reference to which Original Indenture is hereby made, this
instrument (hereinafter called the “Ninth Supplemental Indenture”) being
supplemental thereto;
RECITALS
WHEREAS,
the Company, the Trustee and the Subsidiary Guarantors party hereto are parties
to the Original Indenture, as amended and supplemented by the First Supplemental
Indenture, dated as of April 17, 2002 (the “First Supplemental Indenture”),
the Second Supplemental Indenture, dated as of November 13, 2003 (the “Second
Supplemental Indenture”), the Third Supplemental Indenture, dated as of January
9, 2004 (the “Third Supplemental Indenture”), the Fourth Supplemental Indenture,
dated as of February 18, 2005 (the “Fourth Supplemental Indenture”), the Fifth
Supplemental Indenture, dated as of June 8, 2005 (the “Fifth Supplemental
Indenture”), the Sixth Supplemental Indenture, dated as of January 9, 2006 (the
“Sixth Supplemental Indenture”), the Seventh Supplemental Indenture, dated as of
January 9, 2006 (the “Seventh Supplemental Indenture”) and the Eighth
Supplemental Indenture, dated as of June 6, 2006 (the “Eighth Supplemental
Indenture”) (the Original Indenture, as so amended, and together with this Ninth
Supplemental Indenture, the “Indenture”), among the Company, the Trustee and the
Subsidiary Guarantors signatory thereto, providing for the issuance by the
Company from time to time of its unsecured debt securities to be issued in
one
or more series (in the Original Indenture and herein called the
“Securities”);
WHEREAS,
pursuant to the First Supplemental Indenture, the Company issued $350,000,000
aggregate principal amount of its 8-3/8% Senior Notes due 2012 (the “2012
Notes”);
WHEREAS,
pursuant to the Second Supplemental Indenture, the Company issued $200,000,000
aggregate principal amount of its 6-1/2% Senior Notes due 2013 (the “2013
Notes”);
WHEREAS,
pursuant to the Third Supplemental Indenture, an additional subsidiary of the
Company became a Guarantor of the 2012 Notes and the 2013 Notes;
WHEREAS,
pursuant to the Fourth Supplemental Indenture, certain additional subsidiaries
of the Company became Guarantors of the 2012 Notes and the 2013
Notes;
WHEREAS,
pursuant to the Fifth Supplemental Indenture, the company issued $350,000,000
aggregate principal amount of its 6-7/8% Senior Notes due 2015 (the “2015
Notes”);
WHEREAS,
pursuant to the Sixth Supplemental Indenture, the Company corrected a defect
identified in Section 4.04 of the First Supplemental Indenture;
WHEREAS,
pursuant to the Seventh Supplemental Indenture, the Company corrected a defect
identified in Section 4.04 of the First, Second and Fifth Supplemental
Indentures;
WHEREAS,
pursuant to the Eighth Supplemental Indenture, the company issued $275,000,000
aggregate principal amount of its 8-1/8% Senior Notes due 2016 (the “2016
Notes”);
WHEREAS,
as of the date of this Ninth Supplemental Indenture, there are $340,000,000
aggregate principal amount of 2012 Notes outstanding, $200,000,000 aggregate
principal amount of 2013 Notes outstanding, $350,000,000 aggregate principal
amount of 2015 Notes outstanding and $275,000,000 aggregate principal amount
of
2016 Notes outstanding;
WHEREAS,
the Company has commenced a solicitation of consents (the “Solicitation”) from
the holders of the Securities (the “Holders”) to certain amendments to the
Original Indenture as set forth in the Consent Solicitation Statement, dated
as
of October 15, 2007 (the “Statement”) and the Supplemental Consent Solicitation
Statement, dated October 23, 2007;
WHEREAS,
pursuant to the Solicitation, the Holders of at least a majority in aggregate
principal amount of the Securities outstanding of each of the 2012 Notes, the
2013 Notes, the 2015 Notes and the 2016 Notes have consented to the amendments
effected by this Ninth Supplemental Indenture in accordance with the provisions
of Section 5.02 of each of the First Supplemental Indenture, the Second
Supplemental Indenture, the Fifth Supplemental Indenture and the Eighth
Supplemental Indenture, and Section 9.01 of the Original Indenture;
WHEREAS,
the amendments are consistent with the action of a majority in principal amount
of the Holders of the Securities as of October 26, 2007, and the amendments
are made without in any way affecting the interpretation or application of
any
provision of the Indenture for any reason other than the matter specifically
addressed herein;
WHEREAS,
pursuant to Sections 9.06 and 10.04 of the Original Indenture, there has been
delivered to the Trustee on the date hereof an Officer’s Certificate and an
Opinion of Counsel certifying, among other things, that this Ninth Supplemental
Indenture is authorized or permitted by the Indenture.
NOW
THEREFORE, in consideration of the foregoing and the mutual premises and
covenants contained herein and for other good and valuable consideration, the
parties hereto agree as follows:
Section
1. Definitions. Capitalized
terms used but not defined in this Ninth Supplemental Indenture shall have
the
specified meanings set forth in the Original Indenture.
-2-
Section
2. Amendments
to the Indenture.
(a) The
amendments set forth below will become effective upon the execution and delivery
of this Ninth Supplemental Indenture by the Company, the Trustee and the
Subsidiary Guarantors signatory hereto.
(b) The
sections of the Original Indenture identified below will be amended as
indicated.
(i) The
Indenture is hereby amended by replacing clause (xi) of the definition of
“Permitted Liens” in Article Two of the First Supplemental Indenture, the Second
Supplemental Indenture, the Fifth Supplemental Indenture and the Eighth
Supplemental Indenture with the following:
“(xi) Liens
securing Indebtedness of the Company and its Restricted Subsidiaries permitted
to be Incurred hereunder; provided that the aggregate amount of
Indebtedness secured by Liens (other than Non-Recourse Indebtedness secured
by
Liens) will not exceed (x) $700.0 million or (y) if the Company’s Consolidated
Fixed Charge Coverage Ratio is at least 2.0 to 1.0 for any four consecutive
fiscal quarters ended on or after September 30, 2007, 40 percent of Consolidated
Tangible Assets.”
(ii) The
Indenture is hereby amended by adding clause (vii) to the definition of
“Permitted Investments” in Article Two of the First Supplemental Indenture, the
Second Supplemental Indenture, the Fifth Supplemental Indenture and the Eighth
Supplemental Indenture as follows:
“(vii) Investments
in joint ventures or Unrestricted Subsidiaries having an aggregate fair market
value (with the fair market value of each Investment being measured at the
time
made and without giving effect to subsequent changes in value), taken together
with all other Investments made pursuant to this clause (vii) that are at the
time outstanding, net of any amounts paid to the Company or any Restricted
Subsidiary as a return of, or on, such Investments not to exceed $50.0
million.”
(c) The
Indenture is hereby amended such that, on and prior to May 15, 2008, any
failure by the Company to file any SEC Reports by the applicable SEC filing
deadlines or to deliver any SEC Reports to the Trustee or the Holders shall
not
constitute a Default or Event of Default.
“SEC
Filing Deadlines” means the applicable deadline under the Exchange Act
(including any permitted extensions) on or prior to which the Company is
required to file any SEC Report under the Exchange Act.
“SEC
Reports” means any reports or other information the Company would be required to
file with the Commission under Section 13(a) or 15(d) of the Exchange Act or
any
report or other information required pursuant to Section 314 of the TIA or
any
related notices or reports.
-3-
Section
3. Ratification
of Indenture; Supplemental Indenture Part of Indenture. The
Original Indenture, as heretofore supplemented and amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture and this Ninth
Supplemental Indenture, is in all respects ratified and confirmed, and the
Original Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture,
the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture and this Ninth
Supplemental Indenture and all indentures supplemental thereto shall be read,
taken and construed as one and the same instrument.
Section
4. Governing
Law. This Ninth Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the state of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required
thereby.
Section
5. Trustee
Makes No Representations. The Trustee makes no representation as
to the validity or sufficiency of this Ninth Supplemental
Indenture. The recitals of fact contained herein shall be taken as
the statements solely of the Company, and the Trustee assumes no responsibility
for the correctness thereof.
Section
6. Counterparts. The
parties may sign any number of copies of this Ninth Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section
7. Effect
of Headings. The section headings herein are for convenience
only and shall not effect the construction thereof.
Section
8. Successors
and Assigns. All covenants and agreements in this Ninth
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
Section
9. Separability
Clause. In case any provision in this Ninth Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality
and
enforceability of the remaining provisions shall not in any way be affected
or
impaired thereby.
[The
remainder of this page is intentionally left blank]
-4-
IN
WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental
Indenture to be duly executed, all as of the day and year first above
written.
BEAZER
HOMES USA,
INC.
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
SUBSIDIARY
GUARANTORS:
APRIL
CORPORATION
BEAZER
ALLIED
COMPANIES HOLDINGS, INC.
BEAZER GENERAL SERVICES, INC.
BEAZER HOMES CORP.
BEAZER
HOMES HOLDINGS
CORP.
BEAZER
HOMES INDIANA
HOLDINGS CORP.
BEAZER
HOMES SALES,
INC.
BEAZER
HOMES TEXAS
HOLDINGS, INC.
BEAZER
REALTY
CORP.
BEAZER
REALTY,
INC.
BEAZER
REALTY LOS
ANGELES, INC.
BEAZER
REALTY
SACRAMENTO, INC.
BEAZER/▇▇▇▇▇▇▇
REALTY, INC.
HOMEBUILDERS
TITLE
SERVICES OF
VIRGINIA,
INC.
HOMEBUILDERS
TITLE
SERVICES, INC.
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive
Vice President
S-1
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
BEAZER
HOMES INDIANA,
LLP
By: BEAZER
HOMES INVESTMENTS, LLC,
its
Managing
Partner
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
BEAZER
HOMES
INVESTMENTS, LLC
By: BEAZER
HOMES CORP., its Managing
Member
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive
Vice President
BEAZER HOMES TEXAS, L.P.
By: BEAZER
HOMES TEXAS HOLDINGS,
INC., its Managing Partner
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
S-2
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
BEAZER
REALTY
SERVICES, LLC
By: BEAZER
HOMES INVESTMENTS, LLC,
its
Managing Member
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
BEAZER
SPE,
LLC
By: BEAZER
HOMES HOLDINGS CORP.,
its
Managing Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
BH
BUILDING PRODUCTS,
LP
By: BH
PROCUREMENT SERVICES, LLC,
its
Managing Partner
By: BEAZER
HOMES TEXAS, L.P., its
Managing
Member
By: BEAZER
HOMES TEXAS HOLDINGS,
INC.,
its General
Partner
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
S-3
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
BH
PROCUREMENT
SERVICES, LLC
By: BEAZER
HOMES TEXAS, L.P., its
Managing
Member
By: BEAZER
HOMES TEXAS HOLDINGS,
INC., its General Partner
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
PARAGON
TITLE,
LLC
By: BEAZER
HOMES INVESTMENTS, LLC,
its Managing Member
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
TEXAS
LONE STAR
TITLE, L.P.
By: BEAZER
HOMES TEXAS HOLDINGS,
INC., its Managing Partner
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
S-4
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
TRINITY
HOMES
LLC
By: BEAZER
HOMES INVESTMENTS, LLC,
its
Manager
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
BEAZER
COMMERCIAL
HOLDINGS, LLC
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title: Executive
Vice President
BEAZER
CLARKSBURG,
LLC
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title: Executive
Vice President
▇▇▇▇▇
▇▇▇▇ VENTURES,
LLC
By: BEAZER
HOMES CORP., its Managing
Member
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title: Executive
Vice President
S-5
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By: /s/▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice
President
S-6
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]