ex10-4.htm


    
      

    

    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.

     

    
      
        
        

      

      
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    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.

     

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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 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	 


    

     

    
      
        
        

      

      
        
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            [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

            	 


    

     

    
      
        
        

      

      
        
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            [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

            	 	 	 


    

    


     

     

     

     

     

                                                                             

    


    
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        [Signature
          Page - Supplemental Indenture to
          Indenture, dated as of June 8,
          2004]