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: October 26, 2007
BEAZER
HOMES USA, INC.
(Exact
name of registrant as specified in its charter)
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DELAWARE
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001-12822
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54-2086934
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(State
or other jurisdiction
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(Commission
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(IRS
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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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:
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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Beazer
Homes USA, Inc. (the “Company”) amended its four-year revolving credit facility
(the “Credit Facility”) to provide that any adverse judgment entered in the
Company’s Senior Notes Litigation would not result in an event of default
thereunder if, to the extent such judgment has the effect of determining that
there has been a default with respect to one or more tranches of Senior
Notes based on the Company’s failure to make a filing with the SEC or deliver a
copy of an SEC filing to the applicable trustees or denying a motion for
preliminary injunction with respect to such a default, such defaults shall
have
been waived by the requisite holders of such applicable tranches of Senior
Notes
in accordance with the applicable Senior Indentures.
In
addition, the definition of Secured Borrowing Base was amended to provide that,
in the event of any adverse judgment entered in the Company’s Senior Notes
Litigation, certain of the collateral advance rates will be lowered during
the
period commencing on the date on which any such adverse judgment shall have
been
entered in the Senior Notes Litigation until the delivery of restated
financials.
A
copy of
the amendment is attached hereto as Exhibit 10.1 and incorporated herein by
reference.
The
disclosure contained in Item 3.03 below is also incorporated herein by
reference.
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Item
3.03
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Material
Modifications to Rights of Security
Holders.
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On
October 26, 2007, Beazer Homes USA, Inc. successfully completed its previously
announced solicitation of consents from the holders of its $1.525 billion of
outstanding Senior Notes and Senior Convertible Notes (the “Notes”) to approve
proposed amendments and a proposed waiver pursuant to the indentures under
which
the Notes were issued (the “Indentures”).
Beazer
received consents from holders of more than a majority of the aggregate
principal amount of each series of the Notes. Beazer and the trustee
have executed Supplemental Indentures amending the Indentures to effect the
Proposed Amendments. The Supplemental Indentures amend the definition
of Permitted Liens to restrict the ability of the Company to secure additional
debt in excess of $700,000,000 until the Company has four consecutive fiscal
quarters with a Consolidated Fixed Charge Coverage Ratio of at least 2.0 to
1.0,
after which time the limit will revert to the previous level of 40% of
Consolidated Tangible Assets, and amend the definition of Permitted Investments
to enable the Company to invest up to $50,000,000 in joint ventures or
unrestricted subsidiaries. In accordance with the Indentures, the
amendments are binding on all holders, including non-consenting
holders.
The
consents also provided Beazer with a waiver of any and all defaults under the
Indentures that may have occurred or may occur on or prior to May 15, 2008
due
to Beazer’s failure to file or deliver reports or other information it would be
required to file with the Securities and Exchange Commission.
The
Consent Solicitation provided that for each $1,000 principal amount of Notes,
the Consent Fee is the product of $12.50 multiplied by a fraction, the numerator
of which is the aggregate principal amount of the relevant series of Notes
outstanding on the Consent Date, and the denominator of which is the aggregate
principal amount of the relevant series of Notes as to which the Company has
received and accepted consents prior to the Consent Date, subject to a cap
equal
to the maximum Consent Fee that would not cause a “significant modification” of
the Notes for U.S. federal income tax purposes, as determined in the good faith
discretion of Beazer. Therefore, consenting Holders as of the record
date, October 5, 2007, will receive the Consent Fee for Notes they held as
of
that date as specified below.
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Title
of Security
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CUSIP
Numbers
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Aggregate
Principal
Amount
Consenting
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Consent
Fee
per
$1,000
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|||
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8
5/8% Senior Notes due May 2011
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07556QAE5
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$165,464,000
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$12.69
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|||
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8
3/8% Senior Notes due April 2012
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07556QAG0
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$246,961,000
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$15.06
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|||
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6
1/2% Senior Notes due November 2013
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07556QAJ4
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$196,368,000
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$12.73
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|||
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6
7/8% Senior Notes due July 2015
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07556QAN5
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$347,941,000
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$12.57
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8
1/8% Senior Notes due June 2016
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07556QAQ8
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$274,170,000
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$12.54
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|||
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4
5/8% Convertible Senior Notes Due 2024
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07556QAL9
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$178,085,000
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$12.63
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|||
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07556QAK1
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||||||
A
copy of
the supplemental indentures reflecting the amendments and waivers described
above are attached hereto as Exhibits 10.2, 10.3 and 10.4 and are incorporated
herein by reference.
The
Company issued a press release on Monday, October 29, 2007 announcing the
completion of the consent solicitation, which is attached hereto as Exhibit
99.1
and incorporated herein by reference,
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Item
9.01
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Financial
Statements and Exhibits
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(d)
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Exhibits
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10.1
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Second
Amendment, dated October 26, 2007, under the Credit Agreement, dated
as of
July 25, 2007, among Beazer Homes USA, Inc., the lenders parties
thereto,
and Wachovia Bank, National Association, as Agent.
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10.2
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Seventh
Supplemental Indenture, dated October 26, 2007, amending and supplementing
the Indenture, dated May 21, 2001, among Beazer Homes USA, Inc.,
US Bank
National Association, as trustee, and the subsidiary guarantors party
thereto.
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10.3
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Ninth
Supplemental Indenture, dated October 26, 2007, amending and supplementing
the Indenture, dated April 17, 2002, among Beazer Homes USA, Inc.,
US Bank
National Association, as trustee, and the subsidiary guarantors party
thereto.
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10.4
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Third
Supplemental Indenture, dated October 26, 2007, amending and supplementing
the Indenture, dated June 8, 2004, among Beazer Homes USA, Inc.,
SunTrust
Bank, as trustee, and the subsidiary guarantors party
thereto.
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99.1
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Press
Release issued October 29, 2007.
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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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Date:
October 30, 2007
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By:
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/s/Allan
P. Merrill
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Allan
P. Merrill
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||||
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Executive
Vice President and
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Chief
Financial Officer
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Exhibit
10.1
SECOND
AMENDMENT
SECOND
AMENDMENT, dated as of October 26, 2007 (this “Second Amendment”), to the
Credit Agreement, dated as of July 25, 2007 (as heretofore amended, supplemented
or otherwise modified, the “Credit Agreement”), among Beazer Homes USA,
Inc., a Delaware corporation (the “Borrower”), the several lenders from
time to time parties thereto (the “Lenders”) and Wachovia Bank, National
Association, as agent (in such capacity, the “Agent”).
W
I T
N E S S E T H :
WHEREAS,
the Borrower, the Lenders and the Agent are parties to the Credit
Agreement;
WHEREAS,
the Borrower has requested that the Lenders to amend the Credit Agreement,
and
the Lenders are agreeable to such request but only upon the terms and subject
to
the conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein, and for other valuable consideration the receipt of which is hereby
acknowledged, the Borrower, the Lenders, and the Agent agree as
follows:
SECTION
1. DEFINITIONS. Unless
otherwise defined herein, capitalized terms are used herein as defined in the
Credit Agreement.
SECTION
2. AMENDMENTS.
2.1 Amendment
to Section 1.01.
(a) Section
1.01 of the Credit Agreement is hereby amended by inserting the following new
definition in its appropriate alphabetical order:
“Interim
Period” means the period commencing the date on which any adverse judgment shall
have been entered in the Senior Notes Litigation until the Restated Financial
Statements Delivery Date.
(b) Section
1.01 of the Credit Agreement is hereby amended by deleting the definition of
Secured Borrowing Base in its entirety and inserting in lieu thereof the
following:
“Secured
Borrowing Base” means, with respect to any date of determination, an amount
equal to the sum of the following assets of the Loan Parties with respect which
the Borrower shall have satisfied the Secured Borrowing Base
Conditions: an amount equal to (i) 100% of the Unrestricted Cash
plus (ii) 100% (or at any time during the Interim Period, 90%)
of
the
book
value of Receivables from Housing Unit Closings plus (iii) 30%
(or at any time during the Interim Period, 20%) of the book value of Lots under
Development plus (iv) 50% (or at any time during the Interim Period, 40%)
of the book value of Finished Lots plus (v) 65% (or at any time during
the Interim Period, 45%) of the book value of Speculative Housing Units
plus (vi) 80% (or at any time during the Interim Period, 60%) of the book
value of Housing Units under Contract; provided that if the Agent has an
Acceptable Appraisal with respect to a Real Property (or any portion thereof)
that is included in the Secured Borrowing Base, then the amount of availability
includable in the Secured Borrowing Base attributable to such Real Property
(or
portion thereof) shall be equal to the lesser of (A) the amounts calculated
as
set forth above and (B) the amounts that would be calculated as set forth using
the Appraised Value of such Real Property (or portion thereof) instead of book
value. Notwithstanding anything to the contrary herein, (x) not more
than 30% of the total aggregate Secured Borrowing Base (including, without
limitation, Unrestricted Cash and Receivables) shall be comprised of Lots Under
Development and Finished Lots and (y) not more than 25% of the total aggregate
Secured Borrowing Base (including, without limitation, Unrestricted Cash and
Receivables) shall be comprised of Secured Borrowing Base Assets of the type
described in the foregoing clauses (iii) through (vi) that relate to property
located in a Single Market.
2.2 Amendments
to Section 2.01.2 Section 2.01.2 of the Credit Agreement is
hereby amended by deleting each reference in clause (b)(v) thereof to “Issuing
Lenders therefor” and inserting in lieu thereof “Issuer thereof”.
2.3 Amendments
to Section 2.11. Section 2.11(c) is hereby amended by deleting
the reference to “Borrowing Base” therein and substituting in lieu therein
“Secured Borrowing Base”.
2.4 Amendment
to Section 8.01. Section 8.01(13) of the Credit Agreement is
hereby amended by deleting such Section in its entirety and inserting in lieu
thereof:
“(13)
(A) Any adverse judgment shall
have been entered in the Senior Notes Litigation, and (B)(i) such adverse
judgment shall not have been stayed, annulled or rescinded within 60 days of
being entered and (ii) to the extent such judgment has the effect of determining
that there has been a default with respect to one or more tranches of Senior
Notes based on the Borrower’s failure to make a filing with the Securities and
Exchange Commission or to deliver a copy of a Securities and Exchange Commission
filing to the applicable trustees or denying a motion for preliminary injunction
with respect to such a default, such defaults shall not have been waived by
the
requisite holders of such applicable tranches of Senior Notes in accordance
with
the applicable Senior Indentures;”.
SECTION
3. CONDITIONS
PRECEDENT.
3.1 Effective
Date. This Second Amendment shall become effective as of the date
first set forth above (the “Second Amendment Effective Date”) following
the date on which all of the following conditions have been satisfied or
waived:
(a) Execution
and Delivery. The Agent shall have received:
2
(1) this
Second Amendment, executed and delivered by a duly authorized officer of the
Borrower and the Lenders constituting Required Lenders; and
(2) an
executed Acknowledgment and Consent, in the form set forth as Exhibit A hereto,
or a facsimile transmission thereof, from each Guarantor (such Acknowledgment
and Consent, together with this Second Amendment, the “Amendment
Documents”); and
(b) After
giving effect to this Second Amendment, there shall be no Default or Event
of
Default.
SECTION
4. GENERAL.
4.1 Representations
and Warranties.
(a) In
order
to induce the Agents and the Lenders to enter into this Second Amendment, the
Borrower hereby represents and warrants to the Agents, the Arrangers and the
Lenders that after giving effect to this Second Amendment, the representations
and warranties of the Borrower contained in the Credit Agreement and the other
Loan Documents are true and correct in all material respects on and as of the
Second Amendment Effective Date (after giving effect hereto) as if made on
and
as of the Second Amendment Effective Date (except where such representations
and
warranties expressly relate to an earlier date in which case such
representations and warranties were true and correct in all material respects
as
of such earlier date); provided that the representations and warranties
contained in Section 4.04 (Financial Statements), Section 4.06 (Other
Agreements), Section 4.07 (Litigation), Section 4.14 (Law; Environment) and
Section 4.17 (Accuracy of Information) shall be deemed to be made as set forth
in the Credit Agreement except that such representations and warranties shall
be
deemed to be made with an exception for the matters identified in the Audit
Committee Report giving rise to the Restatement.
(b) In
order
to induce the Agents and the Lenders to enter into this Second Amendment, the
Borrower hereby represents and warrants to the Agents, the Arrangers and the
Lenders that each of the Borrower and the Guarantors has all necessary corporate
power and authority to execute and deliver the Amendment Documents; the
execution and delivery by each such party of the Amendment Documents have been
duly authorized by all necessary corporate action on its part; and the Amendment
Documents have been duly executed and delivered by each such party and
constitute each such party’s legal, valid and binding obligation, enforceable in
accordance with its terms.
4.2 Notice
of Effectiveness. The Agent shall promptly advise the Lenders and
the Borrower that this Second Amendment has become effective and of the Second
Amendment Effective Date.
4.3 APPLICABLE
LAW AND JURISDICTION. THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NORTH CAROLINA.
3
4.4 Counterparts. This
Second Amendment may be executed by the parties hereto in any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
4.5 Successors
and Assigns. This Second Amendment shall be binding upon and
inure to the benefit of the Borrower and its successors and assigns, and upon
the Agents and the Lenders and each of their respective successors and
assigns. The execution and delivery of this Second Amendment by any
Lender prior to the Second Amendment Effective Date shall be binding upon its
successors and assigns and shall be effective as to any loans or commitments
assigned to it after such execution and delivery.
4.6 Continuing
Effect. Except as expressly amended hereby, the Credit Agreement
as amended by this Second Amendment shall continue to be and shall remain in
full force and effect in accordance with its terms. This Second
Amendment shall not constitute an amendment or waiver of any provision of the
Credit Agreement not expressly referred to herein and shall not be construed
as
an amendment, waiver or consent to any action on the part of the Borrower that
would require an amendment, waiver or consent of the Agent or the Lenders except
as expressly stated herein. Any reference to the “Credit Agreement”
in any Credit Document or any related documents shall be deemed to be a
reference to the Credit Agreement as amended by this Second
Amendment.
4.7 Headings. Section
headings used in this Second Amendment are for convenience of reference only,
are not part of this Second Amendment and are not to affect the constructions
o,
or to be taken into consideration in interpreting, this Second Amendment.
4
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
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BORROWER:
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BEAZER
HOMES USA, INC.,
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a
Delaware corporation
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By:
/s/ Allan P. Merrill
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Name:
Allan P. Merrill
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Title:
Executive Vice President
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
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as
Agent and as a Lender
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By:
/s/ R. Scott Holtzapple
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Name:
R. Scott Holtzapple
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Title:
Senior Vice President
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CITIBANK,
N.A.,
as a Lender
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By:
/s/ Marni McManus
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Name:
Marni McManus
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Title:
Director
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BNP
PARIBAS,
as a Lender
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By:
/s/ Duane Helkowski
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Name:
Duane Helkowski
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Title:
Managing Director
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By:
/s/ Melissa Bailey
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Name:
Melissa Bailey
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Title:
Vice President
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THE
ROYAL BANK OF
SCOTLAND,
as a Lender
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By:
/s/ William McGinty
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Name: William
McGinty
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Title: Senior
Vice President
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REGIONS
FINANCIAL
CORPORATION,
as
a
Lender
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By:
/s/ Ronny Hudspeth
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Name: Ronny
Hudspeth
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Title:
Senior Vice President
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JPMORGAN
CHASE BANK,
N.A.,
as a Lender
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By:
/s/ Wayne E. Olson
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Name:
Wayne E. Olson
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Title:
Vice President
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UBS
LOAN FINANCE, LLC, as a Lender
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By:
/s/ Richard L. Tavrow
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Name:
Richard L. Tavrow
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Title:
Director, Banking Product Services, US
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By:
/s/ Irja R. Otsa
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Name:
Irja R. Otsa
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Title:
Associate Director Banking, Products Services, US
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COMERICA
BANK, as a Lender
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By:
/s/ James Graycheck
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Name:
James Graycheck
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Title:
Vice President
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EXHIBIT
A
ACKNOWLEDGMENT
AND CONSENT
Reference
is made to the Second Amendment, dated as of October __, 2007 (the “Second
Amendment”), to and under the Credit Agreement, dated as of July 25, 2007
(as heretofore amended, supplemented or otherwise modified, the “Credit
Agreement”), among Beazer Homes USA, Inc., a Delaware corporation (the
“Borrower”), the several lenders from time to time parties thereto (the
“Lenders”) and Wachovia Bank, National Association, as agent (in
such
capacity, the “Agent”). Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement are used
herein as therein defined.
Each
of
the undersigned parties to the Guaranty hereby (a) consents to the
transactions contemplated by the Second Amendment and (b) acknowledges and
agrees that the guarantees and grants of security interests made by such party
contained in the Guaranty are, and shall remain, in full force and effect after
giving effect to the Second Amendment.
| GUARANTORS: |
APRIL
CORPORATION
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BEAZER
ALLIED COMPANIES HOLDINGS, INC.
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BEAZER
GENERAL SERVICES, INC.
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BEAZER
HOMES CORP.
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BEAZER
HOMES HOLDINGS CORP.
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BEAZER
HOMES INDIANA HOLDINGS CORP.
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BEAZER
HOMES SALES, INC.
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BEAZER
HOMES TEXAS HOLDINGS, INC.
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BEAZER
REALTY, INC.
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BEAZER
REALTY CORP.
|
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BEAZER
REALTY LOS ANGELES, INC.
|
|||
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BEAZER
REALTY SACRAMENTO, INC.
|
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BEAZER/SQUIRES
REALTY, INC.
|
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HOMEBUILDERS
TITLE SERVICES, INC.
|
|||
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HOMEBUILDERS
TITLE SERVICES OF VIRGINIA, INC.
|
|||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
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Title:
Executive Vice President
|
||||
|
ARDEN
PARK VENTURES, LLC
|
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BEAZER
CLARKSBURG, LLC
|
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BEAZER
COMMERCIAL HOLDINGS, LLC
|
|||
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BEAZER
HOMES INVESTMENTS, LLC
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BEAZER
HOMES MICHIGAN, LLC
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| By: |
BEAZER
HOMES CORP., its Managing Member
|
|||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
|
Title:
Executive Vice President
|
||||
|
BEAZER
SPE, LLC
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| By: | BEAZER HOMES HOLDINGS CORP., its Member | |||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
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Title:
Executive Vice President
|
||||
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BEAZER
HOMES INDIANA, LLP
|
|||
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BEAZER
REALTY SERVICES, LLC
|
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PARAGON
TITLE, LLC
|
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TRINITY
HOMES, LLC
|
| By: | BEAZER HOMES INVESTMENTS, LLC, | |||
| its Managing Member or Managing Partner | ||||
| By: | BEAZER HOMES CORP., its Managing Member | |||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
|
Title:
Executive Vice President
|
||||
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BEAZER
HOMES TEXAS, L.P.
|
|||
|
TEXAS
LONE STAR TITLE, L.P.
|
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner | |||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
|
Title:
Executive Vice President
|
||||
|
BH
BUILDING PRODUCTS, LP
|
| By: | BH PROCUREMENT SERVICES, LLC, its General Partner | |||
| By: | BEAZER HOMES TEXAS, L.P., its Managing Member | |||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner | |||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
|
Title:
Executive Vice President
|
||||
|
BH
PROCUREMENT SERVICES, LLC
|
| By: | BEAZER HOMES TEXAS, L.P., its Managing Member | |||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner | |||
| By: | /s/ Allan P. Merrill | |||
|
Name: Allan
P. Merrill
|
||||
|
Title:
Executive Vice President
|
||||
Exhibit
10.2
8-5/8%
Senior Notes Due 2011
Seventh
Supplemental Indenture
Dated
as of October 26, 2007
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
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 May 21, 2001, (the “First Supplemental Indenture”), the Second
Supplemental Indenture, dated as of November 6, 2001 (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 November 9, 2005 (the “Fifth Supplement Indenture”) and
the Sixth Supplemental Indenture, dated as of January 9, 2006 (the “Sixth
Supplemental Indenture”) (as so amended, the “Original Indenture”, and together
with this Seventh 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 $200,000,000
aggregate principal amount of its 8-5/8% Senior Notes due 2011 (the “2011
Notes”);
WHEREAS,
pursuant to the Second Supplemental Indenture, certain additional subsidiaries
of the Company became Guarantors of the 2011 Notes;
WHEREAS,
pursuant to the Third Supplemental Indenture, certain additional subsidiaries
of
the Company became Guarantors of the 2011 Notes;
WHEREAS,
pursuant to the Fourth Supplemental Indenture, certain additional subsidiaries
of the Company became Guarantors of the 2011 Notes;
WHEREAS,
pursuant to the Fifth Supplemental Indenture, certain additional subsidiaries
of
the Company became Guarantors of the 2011 Notes;
WHEREAS,
pursuant to the Sixth Supplemental Indenture, the Company corrected a defect
identified in Section 4.04 of the First Supplemental Indenture;
WHEREAS,
as of the date of this Seventh Supplemental Indenture, there are $180,000,000
aggregate principal amount of 2011 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,
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 the Solicitation, the Holders of at least a majority in aggregate
principal amount of the Securities outstanding have consented to the amendments
effected by this Seventh Supplemental Indenture in accordance with the
provisions of Section 9.02 of the Original Indenture and Section 5.02 of the
First Supplemental Indenture;
WHEREAS,
pursuant to Section 9.03 of the Indenture, there has been delivered to the
Trustee on the date hereof an Opinion of Counsel certifying, among other things,
that this Seventh 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 Seventh Supplemental Indenture shall have
the
specified meanings set forth in the Original Indenture.
Section
2. Amendments
to the Indenture.
(a) The
amendments set forth below will become effective upon the execution and delivery
of this Seventh 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 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.”
-
2
-
(ii) The
Indenture is hereby amended by adding clause (vii) to the definition of
“Permitted Investments” in Article Two of the First 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.
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 and this Seventh
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 and this
Seventh Supplemental Indenture and all indentures supplemental thereto shall
be
read, taken and construed as one and the same instrument.
Section
4. Governing
Law. This Seventh 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 Seventh 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.
-
3
-
Section
6. Counterparts. The
parties may sign any number of copies of this Seventh 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 Seventh
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 Seventh 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 Seventh Supplemental
Indenture to be duly executed all as of the day and year first above
written.
| ISSUER: | ||||
| BEAZER HOMES USA, INC. | ||||
|
By: /s/Allan
P. Merrill
|
||||
| Name: Allan P. Merrill | ||||
| 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 MORTGAGE CORP. | ||||
| BEAZER REALTY CORP. | ||||
| BEAZER REALTY, INC. | ||||
| BEAZER REALTY LOS ANGELES, INC. | ||||
| BEAZER REALTY SACRAMENTO, INC. | ||||
| BEAZER/SQUIRES REALTY, INC. | ||||
| HOMEBUILDERS TITLE SERVICES, INC. | ||||
| HOMEBUILDERS TITLE SERVICES OF VIRGINIA, INC. | ||||
| By: |
/s/Allan
P.
Merrill
|
|||
|
Name:
Allan P. Merrill
|
||||
|
Title:
Executive Vice President
|
||||
| ARDEN PARK VENTURES, LLC | |||||
| BEAZER CLARKSBURG, LLC | |||||
| BEAZER COMMERCIAL HOLDINGS, LLC | |||||
| BEAZER HOMES INVESTMENTS, LLC | |||||
| BEAZER HOMES MICHIGAN, LLC | |||||
| By: | BEAZER HOMES CORP., its Managing Member | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
|
Name:
Allan P. Merrill
|
|||||
|
Title:
Executive Vice President
|
|||||
|
BEAZER
SPE, LLC
|
|||||
| By: | BEAZER HOMES HOLDINGS CORP., its Member | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
| Name: Allan P. Merrill | |||||
| Title: Executive Vice President | |||||
|
BEAZER
HOMES INDIANA, LLP
|
|||||
|
BEAZER
REALTY SERVICES, LLC
|
|||||
|
PARAGON
TITLE, LLC
|
|||||
|
TRINITY
HOMES, LLC
|
|||||
| By: |
BEAZER
HOMES INVESTMENTS, LLC its
Managing Member or Managing Partner
|
||||
| By: | BEAZER HOMES CORP., its Managing Member | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
|
Name:
Allan P. Merrill
|
|||||
|
Title:
Executive Vice President
|
|||||
|
BEAZER
HOMES TEXAS, L.P.
|
|||||
|
TEXAS
LONE STAR TITLE, L.P.
|
|||||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its Managing partner | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
|
Name:
Allan P. Merrill
|
|||||
|
Title:
Executive Vice President
|
|||||
|
BH
BUILDING PRODUCTS, LP
|
|||||
| By: | BH PROCUREMENT SERVICES, LLC, its General Partner | ||||
|
By:
|
BEAZER HOMES TEXAS, L.P., its Managing Member | ||||
|
By:
|
BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
| Name: Allan P. Merrill | |||||
| Title: Executive Vice President | |||||
|
BH
PROCUREMENT SERVICES, LLC
|
|||||
| By: | BEAZER HOMES TEXAS, L.P., its Managing Member | ||||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
|
Name:
Allan P. Merrill
|
|||||
|
Title:
Executive Vice President
|
|||||
S - 1
[Signature
Page - Supplemental Indenture to Indenture, dated as of May 21,
2001]
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
|
||||
| By: | /s/Charles S. Hodges | |||
|
Name:
Charles S. Hodges
|
||||
|
Title: Vice
President
|
||||
S
-
2
[Signature
Page - Supplemental Indenture to Indenture, dated as of May 21,
2001]
Ninth
Supplemental Indenture
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
1000 Abernathy Road, Suite 1200, Atlanta, Georgia 30328, the Subsidiary
Guarantors signatory hereto, each having its principal office at 1000 Abernathy
Road, Suite 1200, Atlanta, Georgia 30328, and U.S. BANK NATIONAL ASSOCIATION,
a
national banking association, having an office at U.S. Bank Corporate Trust
Center, 180 East 5th Street, Suite 200, St. Paul, Minnesota 55101, 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/
Allan P. Merrill
<
/font>
Name: Allan P. Merrill
<
/font>
Title: Executive Vice President
SUBSIDIARY
GUARANTORS:
APRIL
CORPORATION
BEAZER
ALLIED
COMPANIES HOLDINGS, INC.
&
#160;
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/SQUIRES
REALTY, INC.
HOMEBUILDERS
TITLE
SERVICES OF
VIRGINIA,
INC.
HOMEBUILDERS
TITLE
SERVICES, INC.
By:
/s/
Allan P. Merrill
;
Name:
Allan P. Merrill
;
Title: Executive
Vice President
S-1
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
<
/font> BEAZER
HOMES INDIANA,
LLP
<
/font> By: BEAZER
HOMES INVESTMENTS, LLC,
<
/font>
its
Managing
Partner
<
/font> By: BEAZER
HOMES CORP., its Managing
;
Member
<
/font> By:
/s/
Allan P. Merrill
<
/font>
Name: Allan P. Merrill
&#
160;
Title: Executive Vice President
<
/font> BEAZER
HOMES
INVESTMENTS, LLC
&#
160;
By: BEAZER
HOMES CORP., its Managing
;
Member
&#
160;
By: /s/
Allan P. Merrill
&#
160;
Name: Allan P. Merrill
&#
160; Title: Executive
Vice President
&#
160;
BEAZER HOMES TEXAS, L.P.
&#
160;
By: BEAZER
HOMES TEXAS HOLDINGS,
;
INC., its Managing Partner
&#
160; By:
/s/
Allan P. Merrill
&#
160;
Name: Allan P. Merrill
&#
160;
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
<
/font> By:
/s/
Allan P. Merrill
&#
160;
Name: Allan P. Merrill
&#
160;
Title: Executive Vice President
BEAZER
SPE,
LLC
By:
; BEAZER
HOMES HOLDINGS CORP.,
its
Managing Member
<
/font> By:
/s/
Allan P. Merrill
<
/font> Name:
Allan P. Merrill
&#
160;
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
&
#160; By:
/s/
Allan P. Merrill
&#
160;
Name: Allan P. Merrill
<
/font>
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
&#
160; By:
/s/
Allan P. Merrill
&#
160;
Name: Allan P. Merrill
&#
160;
Title: Executive Vice President
PARAGON
TITLE,
LLC
By:
; BEAZER
HOMES INVESTMENTS, LLC,
0;
its Managing Member
By:
; BEAZER
HOMES CORP., its Managing
0;
Member
<
/font> By:
/s/
Allan P.
Merrill
<
/font>
Name: Allan P. Merrill
<
/font>
Title: Executive Vice President
<
/font> TEXAS
LONE STAR
TITLE, L.P.
By: BEAZER
HOMES TEXAS HOLDINGS,
0;
INC., its Managing Partner
<
/font> By:
/s/
Allan P. Merrill
<
/font>
Name: Allan P. Merrill
<
/font>
Title: Executive Vice President
S-4
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
<
/font> TRINITY
HOMES
LLC
By:
;BEAZER
HOMES INVESTMENTS, LLC,
0;
its
Manager
By: BEAZER
HOMES CORP., its Managing
Member
<
/font> By:
/s/
Allan P. Merrill
Name:
Allan P. Merrill
<
/font>
Title: Executive Vice President
<
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COMMERCIAL
HOLDINGS, LLC
By:
; BEAZER
HOMES CORP., its Managing
0;
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Allan P. Merrill
<
/font> Name:
Allan P.
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<
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CLARKSBURG,
LLC
0; By: BEAZER
HOMES CORP., its Managing
&#
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/s/
Allan P. Merrill
<
/font> Name:
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ARDEN
PARK VENTURES,
LLC
By:
; BEAZER
HOMES CORP., its Managing
0;
Member
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/font> By:
/s/
Allan P. Merrill
0; Name:
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Merrill
0; 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/Charles
S.
Hodges
Name:
Charles S. Hodges
Title: Vice
President
S-6
[Signature
Page - Supplemental Indenture to Indenture, dated as of April 17,
2002]
Exhibit
10.4
BEAZER
HOMES USA, INC. AND THE SUBSIDIARY GUARANTORS SIGNATORY
HERETO
4-5/8%
Convertible Senior Notes Due 2024
Third
Supplemental Indenture
Dated
as of October 26, 2007
U.S.
BANK NATIONAL ASSOCIATION,
(as
successor in interest to SunTrust Bank)
THIS
THIRD 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
1000 Abernathy Road, Suite 1200, Atlanta, Georgia 30328, the Subsidiary
Guarantors signatory hereto, each having its principal office at 1000 Abernathy
Road, Suite 1200, Atlanta, Georgia 30328, and U.S. BANK NATIONAL ASSOCIATION
(as
successor in interest to SunTrust Bank) a national banking association, having
an office at U.S. Bank Corporate Trust Center, 180 East 5th Street, Suite 200,
St. Paul, Minnesota 55101 (the “Trustee”), as Trustee under the Indenture, dated
as of June 8, 2004 (the “Original Indenture”), which Original Indenture was
executed and delivered by the Company to the Trustee to secure the payment
of
convertible 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
“First 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 February 18, 2005 (the “First Supplemental Indenture”)
and the Second Supplemental Indenture, dated as of November 9, 2005 (the “Second
Supplemental Indenture”) (the Original Indenture, as so amended, and together
with this Third 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 Original Indenture, the Company issued $180,000,000 aggregate
principal amount of its 4-5/8% Convertible Senior Notes due 2024 (the “2024
Notes”);
WHEREAS,
pursuant to the First Supplemental Indenture, certain additional subsidiaries
of
the Company became Guarantors of the 2024 Notes;
WHEREAS,
pursuant to the Second Supplemental Indenture, certain additional subsidiaries
of the Company became Guarantors of the 2024 Notes;
WHEREAS,
as of the date of this Third Supplemental Indenture, there are $180,000,000
aggregate principal amount of 2024 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 have consented to the amendments
effected by this Third Supplemental Indenture in accordance with the provisions
of Section 13.01 of the 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 13.06 and 14.04 of the 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 Third 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 Third Supplemental Indenture shall have
the
specified meanings set forth in the Original Indenture.
Section
2. Amendments
to the Indenture.
(a) The
amendments set forth below will become effective upon the execution and delivery
of this Third Supplemental Indenture by the Company, the Trustee and the
Subsidiary Guarantors signatory hereto.
(b) 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.
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, and this Third
Supplemental Indenture, is in all respects ratified and confirmed, and the
Original Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture, and this Third Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same
instrument.
Section
4. Governing
Law. This Third 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.
-
2
-
Section
5. Trustee
Makes No Representations. The Trustee makes no representation as
to the validity or sufficiency of this Third 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 Third 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 Third
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 Third 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]
-
3
-
IN
WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed, all as of the day and year first above
written.
| BEAZER HOMES USA, INC. | |||||
| By: | /s/Allan P. Merrill | ||||
| Name: Allan P. Merrill | |||||
| 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 MORTGAGE CORP. | |||||
| BEAZER REALTY CORP. | |||||
| BEAZER REALTY, INC. | |||||
| BEAZER REALTY LOS ANGELES, INC. | |||||
| BEAZER REALTY SACRAMENTO, INC. | |||||
| BEAZER/SQUIRES REALTY, INC. | |||||
| HOMEBUILDERS TITLE SERVICES OF VIRGINIA, INC. | |||||
| HOMEBUILDERS TITLE SERVICES, INC. | |||||
| By: | /s/Allan P. Merrill | ||||
| Name: Allan P. Merrill | |||||
| Title: Executive Vice President | |||||
|
ARDEN
PARK VENTURES, LLC
|
|||||
|
BEAZER
HOMES MICHIGAN, LLC
|
|||||
| By: | BEAZER HOMES CORP., its managing member | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
|
Name:
Allan P. Merrill
|
|||||
|
Title:
Executive Vice President
|
|||||
S- 1
[Signature
Page - Supplemental Indenture to
Indenture, dated as of June 8, 2004]
|
BH
PROCUREMENT SERVICES, LLC
|
|||||
| By: | BEAZER HOMES TEXAS, L.P., itsmanaging member | ||||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its general partner | ||||
| By: |
/s/Allan
P.
Merrill
|
||||
|
Name:
Allan P. Merrill
|
|||||
|
Title: Executive
Vice President
|
|||||
|
BH
BUILDING PRODUCTS, LP
|
|||||
| By: | BH PROCUREMENT SERVICES, LLC, its general partner | ||||
| By: | BEAZER HOMES TEXAS, L.P., its managing member | ||||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its general partner | ||||
| By: | /s/Allan P. Merrill | ||||
|
Name:
Allan P. Merrill
|
|||||
|
Title: Executive
Vice President
|
|||||
|
BEAZER
CLARKSBURG, LLC
|
|||||
|
BEAZER
COMMERCIAL HOLDINGS, LLC
|
|||||
|
BEAZER
HOMES INVESTMENTS, LLC
|
|||||
| By: | BEAZER HOMES CORP., its managing member | ||||
| By: | /s/Allan P. Merrill | ||||
| Name: Allan P. Merrill | |||||
| Title: Executive Vice President | |||||
S- 2
[Signature
Page - Supplemental Indenture to
Indenture, dated as of June 8, 2004]
| BEAZER SPE, LLC | |||||
| By: | BEAZER HOMES HOLDINGS CORP., its member | ||||
| By: | /s/Allan P. Merrill | ||||
| Name: Allan P. Merrill | |||||
| Title: Executive Vice President | |||||
|
BEAZER
HOMES INDIANA, LLP
|
|||||
|
BEAZER
REALTY SERVICES, LLC
|
|||||
|
PARAGON
TITLE, LLC
|
|||||
|
TRINITY
HOMES, LLC
|
|||||
| By: | BEAZER HOMES INVESTMENTS, LLC, its managing member or managing partner | ||||
| By: | BEAZER HOMES CORP., its managing member | ||||
| By: | /s/Allan P. Merrill | ||||
| Name: Allan P. Merrill | |||||
|
Title:
Executive Vice President
|
|||||
| BEAZER HOMES TEXAS, L.P. | |||||
|
TEXAS
LONE STAR TITLE, L.P.
|
|||||
| By: | BEAZER HOMES TEXAS HOLDINGS, INC., its managing partner | ||||
| By: | /s/Allan P. Merrill | ||||
|
Name:
Allan P. Merrill
|
|||||
|
Title: Executive
Vice President
|
|||||
S- 3
[Signature
Page - Supplemental Indenture to
Indenture, dated as of June 8, 2004]
|
U.S.
BANK NATIONAL ASSOCIATION, as
Trustee
|
||||
| By: | /s/Charles S. Hodges | |||
|
Name:
Charles S. Hodges
|
||||
|
Title:
Vice President
|
||||
S-
4
[Signature
Page - Supplemental Indenture to
Indenture, dated as of June 8,
2004]
Exhibit
99.1
Press
Release
For
Immediate Release
Beazer
Homes Successfully Completes Consent Solicitation
from
Holders
of Senior Notes and Senior Convertible Notes
ATLANTA,
October 29, 2007 -- Beazer Homes USA, Inc. (NYSE: BZH)
(www.beazer.com) announced today that it has successfully completed its
previously announced solicitation of consents from the holders of its $1.525
billion of outstanding Senior Notes and Senior Convertible Notes (the “Notes”)
to approve proposed amendments and a proposed waiver pursuant to the indentures
under which the Notes were issued (the “Indentures”).
Beazer
received consents from holders of more than a majority of the aggregate
principal amount of each series of the Notes. Beazer and the trustee
have executed Supplemental Indentures amending the Indentures to effect the
Proposed Amendments. The Supplemental Indentures amend the definition
of Permitted Liens to restrict the ability of the Company to secure additional
debt in excess of $700,000,000 until the Company has four consecutive fiscal
quarters with a Consolidated Fixed Charge Coverage Ratio of at least 2.0 to
1.0,
after which time the limit will revert to the previous level of 40% of
Consolidated Tangible Assets, and amend the definition of Permitted Investments
to enable the Company to invest up to $50,000,000 in joint ventures or
unrestricted subsidiaries. In accordance with the Indentures, the
amendments are binding on all holders, including non-consenting
holders.
The
consents also provided Beazer with a waiver of any and all defaults under the
Indentures that may have occurred or may occur on or prior to May 15, 2008
due
to Beazer’s failure to file or deliver reports or other information it would be
required to file with the Securities and Exchange Commission.
The
Consent Solicitation provided that for each $1,000 principal amount of Notes,
the Consent Fee is the product of $12.50 multiplied by a fraction, the numerator
of which is the aggregate principal amount of the relevant series of Notes
outstanding on the Consent Date, and the denominator of which is the aggregate
principal amount of the relevant series of Notes as to which the Company has
received and accepted consents prior to the Consent Date, subject to a cap
equal
to the maximum Consent Fee that would not cause a “significant modification” of
the Notes for U.S. federal income tax purposes, as determined in the good faith
discretion of Beazer. Therefore, consenting Holders as of the record
date, October 5, 2007, will receive the Consent Fee for Notes they held as
of
that date as specified below.
|
Title
of Security
|
CUSIP
Numbers
|
Aggregate
Principal
Amount
Consenting
|
Consent
Fee
per
$1,000
|
|||
|
8
5/8% Senior Notes due May 2011
|
07556QAE5
|
$165,464,000
|
$12.69
|
|||
|
|
||||||
|
8
3/8% Senior Notes due April 2012
|
07556QAG0
|
$246,961,000
|
$15.06
|
|||
|
6
1/2% Senior Notes due November 2013
|
07556QAJ4
|
$196,368,000
|
$12.73
|
|||
|
6
7/8% Senior Notes due July 2015
|
07556QAN5
|
$347,941,000
|
$12.57
|
|||
|
8
1/8% Senior Notes due June 2016
|
07556QAQ8
|
$274,170,000
|
$12.54
|
|||
|
4
5/8% Convertible Senior Notes Due 2024
|
07556QAL9
|
$178,085,000
|
$12.63
|
|||
|
07556QAK1
|
||||||
MacKenzie
Partners, Inc. served as Information Agent and Tabulation Agent for the consent
solicitation. Citi, Wachovia Securities and RBS Greenwich Capital
acted as solicitation agents for the consent solicitation.
About
Beazer Homes USA, Inc.
Beazer
Homes USA, Inc., headquartered in Atlanta, is one of the country’s ten largest
single-family homebuilders with operations in Arizona, California, Colorado,
Delaware, Florida, Georgia, Indiana, Kentucky, Maryland, Nevada, New Jersey,
New
Mexico, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee,
Texas, Virginia and West Virginia and also provides mortgage origination and
title services to its homebuyers. Beazer, a Fortune 500 Company, is listed
on
the New York Stock Exchange under the ticker symbol “BZH.”
Forward-Looking
Statements
This
press release contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements represent our expectations or beliefs concerning future events,
and
it is possible that the results described in this press release will not be
achieved. These forward-looking statements can generally be identified by the
use of statements that include words such as “estimate,” “project,” “believe,”
“expect,” “anticipate,” “intend,” “plan,” “foresee,” “likely,” “will,” “goal,”
“target” or other similar words or phrases. These forward-looking
statements are subject to risks, uncertainties and other factors, many of which
are outside of our control, that could cause actual results to differ materially
from the results discussed in the forward-looking statements, including, among
other things, (i) the risk that additional information may arise from the final
conclusions of the Audit Committee’s investigation, the preparation of the
Company’s restated financial statements, including the audit by our independent
auditors, or other subsequent events that would require us to make additional
adjustments; (ii) the risk that additional issues or matters may arise from
the
pending United States Attorney and the SEC investigations, or that additional
governmental proceedings may arise as a result of the matters subject to the
Audit Committee’s investigation or additional issues or matters, and the timing,
final outcome and consequences of these proceedings, including the risk that
a
settlement of these proceedings may not be achievable without the payment of
significant fines or penalties or the incurrence of significant sanctions;
(iii)
the timing, final outcome and consequences of the putative class action
lawsuits, derivative claims and similar proceedings, including the risk that
additional lawsuits, claims or proceedings may arise as a result of the matters
subject to the Audit Committee’s investigation and that the Company could be
subject to significant legal judgments, fines, penalties, settlements or
sanctions resulting therefrom; (iv) the risk that the Company may not be able
to
complete the restatement and file all sec filings it would be required to file
with the sec on or before May 15, 2008, which could result in a claim of default
by the trustees under the indentures or the requisite bondholders and, if such
default were not cured or waived within the applicable 60-day grace period,
could result in an attempt by the trustee, the requisite bondholders or the
Company’s other lenders to accelerate the repayment of our outstanding debt
obligations; (v) any adverse effect on the Company’s business and the market
price of its securities arising from the continuing negative publicity related
to the restatement; (vi) any breach by the Company of the continued listing
requirements of the New York Stock Exchange causing the New York Stock Exchange
to initiate suspension or delisting procedures; and (vii) the risk that the
Company’s credit ratings may be adversely affected due to the restatement of the
Company’s financial statements.
-
2 -
Any
forward-looking statement speaks only as of the date on which such statement
is
made, and, except as required by law, we do not undertake any obligation to
update or revise any forward-looking statement, whether as a result of new
information, future events or otherwise. New factors emerge from time to time
and it is not possible for management to predict all such factors.
|
Contact:
|
Leslie
H. Kratcoski
|
|
|
Vice
President, Investor Relations & Corporate
Communications
|
|
|
(770)
829-3700
|
|
|
lkratcos@beazer.com
|
-
3
-