exv4w23





Exhibit 4.23




 

 








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

 






First Supplemental Indenture




Dated as of October 27, 2010



 





U.S. BANK NATIONAL ASSOCIATION,

as Trustee



 

 










 









 














          THIS FIRST SUPPLEMENTAL INDENTURE, dated as of October 27, 2010, 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 1349 West Peachtree Street NW,
Suite 1050, Atlanta, Georgia 30309, as Trustee (the “Trustee”), under the Indenture, dated
as of September 11, 2009 (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 “First
Supplemental Indenture”) being supplemental thereto;




RECITALS




          WHEREAS, the Company, the Trustee, Wilmington Trust FSB, as Notes Collateral Agent, and the
Subsidiary Guarantors party hereto are parties to the Original Indenture (the Original Indenture,
together with this First Supplemental Indenture, the “Indenture”), providing for the
issuance by the Company of its 12% Senior Secured Notes due 2017 (in the Original Indenture and
herein called the “Notes”);




          WHEREAS, Section 8.01 of the Original Indenture provides that the Indenture may be amended by
the Company, the Subsidiary Guarantors and the Trustee (without notice to or consent of any Holder
of Notes) for certain specified matters, including to cure any ambiguity, defect or inconsistency
in the Indenture and to make any change that does not adversely affect the legal rights of any
Holder under the Indenture;




          WHEREAS, the amendments to be effected by this First Supplemental Indenture are intended to
cure a defect in the Indenture and would not adversely affect the legal rights of any Holder under
the Indenture;




          WHEREAS, 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 8.06, 13.04 and 13.05 of the Original Indenture, there has been
delivered to the Trustee on the date hereof an Officers’ Certificate and an Opinion of Counsel
certifying, among other things, that this First 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 First Supplemental
Indenture shall have the specified meanings set forth in the Original Indenture.







 









 








          Section 2. Amendment to the Indenture.




          (a) The amendment set forth below will become effective upon the execution and delivery of
this First Supplemental Indenture by the Company, the Trustee and the Subsidiary Guarantors
signatory hereto.




          (b) The definition of “Permitted Liens” in the Indenture is hereby amended by replacing the
proviso at the end of clause (xi) thereof with the following:




“provided that, in the case of Liens incurred pursuant to clause (b) and (c)
(other than in the case of Junior Lien Obligations) that are on Collateral, the
holders of such secured Obligations (or a representative thereof) become party to
the Intercreditor Agreement;




          Section 3. Ratification of Indenture; Supplemental Indenture Part of Indenture. The Original
Indenture, as supplemented and amended by this First Supplemental Indenture, is in all respects
ratified and confirmed, and the Original Indenture and this First Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and the same instrument.




          Section 4. Governing Law. This First 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 First Supplemental Indenture. The recitals 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 First 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 First 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 First 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]









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          IN WITNESS WHEREOF, the parties hereto have caused this First 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 	 
	 
	 	BEAZER MORTGAGE CORPORATION

 	 
	 	By:  	/s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	President 	 
	 




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




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	 	BEAZER HOMES INDIANA LLP

 	 
	 	By:  	BEAZER HOMES INVESTMENTS, LLC,
 its Managing Partner
 	 
	 	 	 
	 	By:  	BEAZER HOMES CORP.,
 its Sole  Member
 	 
	 	 	 
	 	By:  	                /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARDEN PARK VENTURES, LLC

BEAZER CLARKSBURG, LLC

BEAZER COMMERCIAL HOLDINGS, LLC

DOVE BARRINGTON DEVELOPMENT LLC

BEAZER HOMES INVESTMENTS, LLC

BEAZER HOMES MICHIGAN, LLC

ELYSIAN HEIGHTS POTOMIA, LLC

 	 
	 	By:  	BEAZER HOMES CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 



[Signature Page — First Supplemental Indenture to Indenture, dated as of September 11, 2009]




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	 	BEAZER HOMES TEXAS, L.P.

 	 
	 	By:  	BEAZER HOMES TEXAS HOLDINGS, INC.,
 its General Partner
 	 
	 	 	 
	 	By:  	                                /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	BEAZER REALTY SERVICES, LLC

 	 
	 	By:  	BEAZER HOMES INVESTMENTS, LLC, 
its Sole Member
 	 
	 	 	 
	 	By:  	BEAZER HOMES CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	BEAZER SPE, LLC

 	 
	 	By:  	BEAZER HOMES HOLDINGS CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 



[Signature Page — First Supplemental Indenture to Indenture, dated as of September 11, 2009]





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	 	BH BUILDING PRODUCTS, LP

 	 
	 	By:  	BH PROCUREMENT SERVICES, LLC,
 its General Partner
 	 
	 	 	 
	 	By:  	                   BEAZER HOMES TEXAS, L.P.,
  its Sole 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 Sole Member
 	 
	 	 	 
	 	By:  	BEAZER
HOMES TEXAS HOLDINGS, INC.,
its General Partner
 	 
	 	 	 
	 	By:  	                    /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 



[Signature Page — First Supplemental Indenture to Indenture, dated as of September 11, 2009]




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	 	PARAGON TITLE, LLC

 	 
	 	By:  	BEAZER HOMES INVESTMENTS, LLC,
 its Sole Member and Manager
 	 
	 	 	 
	 	By:  	                    BEAZER HOMES CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	TRINITY HOMES, LLC

 	 
	 	By:  	BEAZER HOMES INVESTMENTS, LLC,
  its Member
 	 
	 	 	 
	 	By:  	                 BEAZER HOMES CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 



[Signature Page — First Supplemental Indenture to Indenture, dated as of September 11, 2009]









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	 	CLARKSBURG ARORA LLC

 	 
	 	By:  	BEAZER CLARKSBURG, LLC,
 its Sole Member
 	 
	 	 	 
	 	By:  	                       BEAZER HOMES CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	CLARKSBURG SKYLARK, LLC

 	 
	 	By:  	CLARKSBURG ARORA LLC,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     BEAZER CLARKSBURG, LLC,
 its Sole Member
 	 
	 	 	 
	 	By:  	                     BEAZER HOMES CORP.,
 its Sole Member
 	 
	 	 	 
	 	By:  	                                                             /s/ Allan P. Merrill
 	 
	 	 	Name:  	Allan P. Merrill 	 
	 	 	Title:  	Executive Vice President 	 
	 



[Signature Page — First Supplemental Indenture to Indenture, dated as of September 11, 2009]








S-6









 








	 	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION,

as Trustee

 	 	 
	By:  	/s/ William Bryan Echols
 	 	 
	 	Name:  	William Bryan Echols 	 	 
	 	Title:  	Vice President 	 	 
	 



[Signature Page — First Supplemental Indenture to Indenture, dated as of September 11, 2009]





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