BEAZER HOMES USA, INC. AND THE SUBSIDIARY GUARANTORS SIGNATORY HERETO 8-5/8% Senior Notes Due 2011
Exhibit
10.2
8-5/8%
Senior Notes Due 2011
Dated
as of October 26, 2007
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
THIS
SEVENTH SUPPLEMENTAL INDENTURE, dated as of October 26, 2007, 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 principal offices at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, having an office at U.S. Bank
Corporate Trust Center, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, as successor to U.S. Bank Trust National Association, as Trustee (the
“Trustee”), under the Indenture, dated as of May 21, 2001 (the “Original
Indenture”), which Original Indenture was executed and delivered by the Company
and Subsidiary Guarantors party thereto 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 “Seventh 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 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 ▇▇▇▇▇ (other than Non-Recourse Indebtedness secured
by
▇▇▇▇▇) 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.”
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(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.
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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.
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remainder of this page is intentionally left blank]
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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/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||||
| 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 MORTGAGE CORP. | ||||
| BEAZER REALTY CORP. | ||||
| BEAZER REALTY, INC. | ||||
| BEAZER REALTY LOS ANGELES, INC. | ||||
| BEAZER REALTY SACRAMENTO, INC. | ||||
| BEAZER/▇▇▇▇▇▇▇ REALTY, INC. | ||||
| HOMEBUILDERS TITLE SERVICES, INC. | ||||
| HOMEBUILDERS TITLE SERVICES OF VIRGINIA, INC. | ||||
| By: |
/s/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
||||
|
Title:
Executive Vice President
|
||||
| ▇▇▇▇▇ ▇▇▇▇ 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/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
||||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
|
Title:
Executive Vice President
|
|||||
|
BEAZER
SPE, LLC
|
|||||
| By: | BEAZER HOMES HOLDINGS CORP., its Member | ||||
| By: |
/s/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| 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/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
||||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
|
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/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
||||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
|
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/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
||||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| 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/▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
|
||||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
|
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/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||||
|
Title: Vice
President
|
||||
S
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[Signature
Page - Supplemental Indenture to Indenture, dated as of May 21,
2001]