EX-99.1 3 a06-2400_1ex99d1.htm SIXTH SUPPLEMENTAL INDENTURE, DATED AS OF JANUARY 9, 2006

Exhibit 99.1

 

 

BEAZER HOMES USA, INC.,

 

as Issuer,

 

the Subsidiary Guarantors Signatory Hereto

 

and

 

U.S. BANK NATIONAL ASSOCIATION,

 

as Trustee

 

 

SIXTH SUPPLEMENTAL INDENTURE

 

Dated as of January 9, 2006

 

Supplementing the First Supplemental Indenture Dated as of May 21, 2001

to the Trust Indenture Dated as of May 21, 2001

 


 

THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of January 9, 2006, 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 guarantors listed on Exhibit A hereto (the “Subsidiary Guarantors”), in each case having its principal office at 1000 Abernathy Road, Suite 1200, Atlanta, Georgia 30328, and U.S. BANK NATIONAL ASSOCIATION (successor to U.S. BANK TRUST 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 (the “Trustee”), as Trustee under the Indenture, dated as of May 21, 2001 (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 “Sixth Supplemental Indenture”) being supplemental thereto;

 

Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture (as defined below);

 

RECITALS

 

WHEREAS, the Company has heretofore executed and delivered to the Trustee the Original Indenture (together with the First Supplemental Indenture, dated as of 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 Supplemental Indenture”) and this Sixth Supplemental Indenture, the “Indenture”), 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, Third, Fourth and Fifth Supplemental Indentures, certain additional subsidiaries of the Company became Guarantors of the 2011 Notes;

 

WHEREAS, as of the date of this Sixth Supplemental Indenture, there are $200,000,000 aggregate principal amount of 2011 Notes outstanding;

 

WHEREAS, the Issuer has identified a defect in Section 4.04 of the First Supplemental Indenture and wishes to make a correction pursuant to Section 5.02 of the First Supplemental Indenture and Section 9.01(9) of the Original Indenture;

 

WHEREAS, as permitted by Section 5.02 of the First Supplemental Indenture, the Company, in the exercise of the power and authority conferred upon and reserved to it under the

 

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provisions of the Original Indenture, has duly determined to make, execute and deliver to the Trustee this Sixth Supplemental Indenture to the Original Indenture in order to correct the defect identified in Section 4.04 of the First Supplemental Indenture; and

 

WHEREAS, all things necessary to make this Sixth Supplemental Indenture a valid supplement to the Original Indenture according to its terms and the terms of the Original Indenture have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

The Company covenants and agrees to and with the Trustee and its successors in said trust under the Original Indenture, as follows:

 

ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 101    Section References. Each reference to a particular section set forth in this Sixth Supplemental Indenture shall, unless the context otherwise requires, refer to this Sixth Supplemental Indenture.

 

ARTICLE TWO
AMENDMENT

 

Section 201    Amendment of First Supplemental Indenture.  Section 4.04 of the First Supplemental Indenture is hereby modified by renumbering Section 4.04(b) as 4.04(c) and adding a new Section 4.04(b) as follows:

 

“(b)      Upon the designation of a Subsidiary Guarantor, which is a Restricted Subsidiary, as an Unrestricted Subsidiary, in accordance with the terms of this Indenture, such Subsidiary Guarantor shall be deemed automatically and unconditionally released and discharged from its Subsidiary Guarantee and all obligations under this Article Four, without any further action required on the part of the Trustee or any Holder, provided that, such Subsidiary Guarantor shall remain and be liable under its Subsidiary Guarantee and its obligations under this Article Four, notwithstanding its designation as an Unrestricted Subsidiary, if the Company provides written notice to the Trustee stating that such Subsidiary Guarantor shall remain and be liable under its Subsidiary Guarantee and its obligations under this Article Four.”

 

ARTICLE THREE
MISCELLANEOUS PROVISIONS

 

Section 301    Confirmation of Original 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, and this Sixth 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, Fifth Supplemental Indenture and this Sixth Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.

 

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Section 302    Governing Law.  This Sixth Supplemental Indenture and the 2011 Notes shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.

 

Section 303    Separability.  In case any provision in this Sixth Supplemental Indenture or in the 2011 Notes shall for any reason be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Sixth Supplemental Indenture or the 2011 Notes shall not in any way be affected or impaired thereby.

 

Section 304    Counterparts.  This Sixth Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same document.

 

Section 305    Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction hereof.

 

 

[Remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.

 

 

ISSUER:

 

BEAZER HOMES USA, INC.

 

 

 

 

 

By:

 

/s/ James O’Leary

 

 

Name:

James O’Leary

 

 

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/ James O’Leary

 

 

Name:

James O’Leary

 

 

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/ James O’Leary

 

 

 

Name:

James O’Leary

 

 

 

Title:

Executive Vice President

 


 

 

BEAZER SPE, LLC

 

 

 

By:

BEAZER HOMES HOLDINGS CORP., its

 

 

Member

 

 

 

 

 

 

 

 

By:

 

  /s/ James O’Leary

 

 

 

Name:

James O’Leary

 

 

 

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/ James O’Leary

 

 

 

Name:

James O’Leary

 

 

 

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/ James O’Leary

 

 

 

Name:

James O’Leary

 

 

 

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/ James O’Leary

 

 

Name:

James O’Leary

 

 

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/ James O’Leary

 

 

Name:

James O’Leary

 

 

Title:

Executive Vice President

 


 

 

 

U.S. BANK NATIONAL ASSOCIATION,

 

 

 

as Trustee

 

 

 

 

 

 

 

 

 

By:

 

/s/ Richard Prokosch

 

 

 

Name:

Richard Prokosch

 

 

 

Title:

Vice President

 


 

EXHIBIT A

 

GUARANTORS

 

April Corporation

Arden Park Ventures, LLC

Beazer Allied Companies Holdings, Inc.

Beazer Clarksburg, LLC

Beazer Commercial Holdings, LLC

Beazer General Services, Inc.

Beazer Homes Corp.

Beazer Homes Holdings Corp.

Beazer Homes Indiana Holdings Corp.

Beazer Homes Indiana, LLP

Beazer Homes Investments, LLC

Beazer Homes Michigan, LLC

Beazer Homes Sales Arizona, Inc.

Beazer Homes Texas Holdings, Inc.

Beazer Homes Texas, L.P.

Beazer Mortgage Corporation

Beazer Realty Corp.

Beazer Realty Los Angeles, Inc.

Beazer Realty Sacramento, Inc.

Beazer Realty Services, LLC

Beazer Realty, Inc.

Beazer SPE, LLC

Beazer/Squires Realty, Inc.

BH Building Products, LP

Homebuilders Title Services of Virginia, Inc.

Homebuilders Title Services, Inc.

Paragon Title, LLC

Texas Lone Star Title, L.P.

Trinity Homes LLC