ex10-3.htm


    
      

    

    
      EXHIBIT
        10.3

       

       

      BEAZER
        HOMES USA, INC. AND THE SUBSIDIARY GUARANTORS SIGNATORY
        HERETO

    

     

    
      

    


    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

                                                                                  
      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
      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]

          

        

      

      
        
        

      

       

    

                                                                            BEAZER
      HOMES INDIANA,
      LLP

     

                                                                            By:           BEAZER
      HOMES INVESTMENTS, LLC,

                                                                               
 its
      Managing
      Partner

     

                                                                            By:           BEAZER
      HOMES CORP., its Managing

                                                                                                                                                                                                                                            
      Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                                          
      Name: Allan P. Merrill

                                                                                                                                                                                                                                  
      Title:  Executive Vice President

     

                                                                            BEAZER
      HOMES
      INVESTMENTS, LLC


     

                                                                                                                                                                                                                           
      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.

     

                                                                                                                                                                                                                           
      By:           BEAZER
      HOMES TEXAS HOLDINGS,

                                                                                                                                                                                                                                            
      INC., its Managing Partner

     

                                                                                                                                                                                                                            By:
      /s/
      Allan P. Merrill

                                                                                                                                                                                                                                  
      Name: Allan P. Merrill

                                                                                                                                                                                                                                  
      Title:  Executive Vice President

     

    
      
        
        

      

      
        S-2

        
          

           

          
            [Signature
              Page - Supplemental Indenture to Indenture, dated as of April 17,
              2002]

          

        

      

      
        
        

      

    

     

                                            BEAZER
      REALTY
      SERVICES, LLC

     

                                            By:           BEAZER
      HOMES INVESTMENTS, LLC,

        
                            its
      Managing Member

     

                                            By:           BEAZER
      HOMES CORP., its Managing

                                                                                                                                            
      Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                                                                                                                                                                                  
      Name: Allan P. Merrill

                                                                                                                                                                                                                                  
      Title:  Executive Vice President

     

                                            BEAZER
      SPE,
      LLC

     

                                            By:           BEAZER
      HOMES HOLDINGS CORP.,

                                                                                                                                            
      its
      Managing Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                                   Name:
      Allan P. Merrill

                                                                                                                                                                                                                                  
      Title:  Executive Vice President

     

     

                                            BH
      BUILDING PRODUCTS,
      LP


     

                                            By:           BH
      PROCUREMENT SERVICES, LLC,

                                             its
      Managing Partner

     

                                                               
      By:           BEAZER
      HOMES TEXAS, L.P., its

                                            
Managing
      Member

     

                                                                                                                                                                                                                           
      By:           BEAZER
      HOMES TEXAS HOLDINGS,

                                            
INC.,
      its General
      Partner

     

     

                                                                                                                                                                                By:
      /s/
      Allan P. Merrill

                                                                                                                                                                                                                                  
      Name: Allan P. Merrill

                                                                              
      Title:  Executive Vice President

     

    
      
        
        

      

      
        S-3

        
          

           

          
            [Signature
              Page - Supplemental Indenture to Indenture, dated as of April 17,
              2002]

          

        

      

      
        
        

      

       

    

                                            BH
      PROCUREMENT
      SERVICES, LLC

     

    


     

                                            By:           BEAZER
      HOMES TEXAS, L.P., its

                                                                                                                             Managing
      Member

     

     

                                                                                                                           
      By:           BEAZER
      HOMES TEXAS HOLDINGS,

                                                                                                                                                                                                                                            
      INC., its General Partner

     

                                                                                                                                                                                                                            By:
      /s/
      Allan P. Merrill

                                                                                                                                                                                                                                  
      Name: Allan P. Merrill

                                                                                                                                                                                                                                  
      Title:  Executive Vice President

     

     

                                            PARAGON
      TITLE,
      LLC

     

     

                                            By:           BEAZER
      HOMES INVESTMENTS, LLC,

                                                                                    
      its Managing Member

     

     

                                            By:           BEAZER
      HOMES CORP., its Managing

                                                                                            
      Member

     

                                                                            By:
/s/
      Allan P.
      Merrill

                                                                                  
      Name: Allan P. Merrill

                                                                                          
      Title:  Executive Vice President

     

     

                                                                            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-4

        
          

           

          
            [Signature
              Page - Supplemental Indenture to Indenture, dated as of April 17,
              2002]

          

        

      

      
        
        

      

    

     

                                                                            TRINITY
      HOMES
      LLC

     

                                            By:          BEAZER
      HOMES INVESTMENTS, LLC,

                                                                               
its
      Manager

     

                                               
      By:           BEAZER
      HOMES CORP., its Managing

                                                                                                                                            
      Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                                                                  
                              Name:
      Allan P. Merrill

                                                                                          
      Title:  Executive Vice President

     

     

                                                                            BEAZER
      COMMERCIAL
      HOLDINGS, LLC


     

                                            By:           BEAZER
      HOMES CORP., its Managing

                                                                                            
      Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                            Name:
      Allan P.
      Merrill

                                                                            Title:  Executive
      Vice President

     

     

                                                                            BEAZER
      CLARKSBURG,
      LLC

     

                                                                            By:           BEAZER
      HOMES CORP., its Managing

                                                                                                                                                                                                                                             Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                            Name:
      Allan P.
      Merrill

                                                                            Title:  Executive
      Vice President

     

     

                                            ARDEN
      PARK VENTURES,
      LLC

     

                                            By:           BEAZER
      HOMES CORP., its Managing

                                                                                            
      Member

     

                                                                            By:
/s/
      Allan P. Merrill

                                                                            Name:
      Allan P.
      Merrill

                                                                            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]