Exhibit 4.13
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THIRD SUPPLEMENTAL INDENTURE
Dated as of March 18, 1998
among
BEAZER HOMES USA, INC.,
as Issuer,
BEAZER HOMES CORP. (formerly PHILLIPS BUILDERS, INC.),
BEAZER/SQUIRES REALTY, INC.,
BEAZER HOMES SALES ARIZONA INC.,
BEAZER REALTY CORP. (formerly BEAZER-COHN REALTY CORP.),
PANITZ HOMES REALTY, INC.,
BEAZER MORTGAGE CORPORATION,
BEAZER HOMES HOLDINGS CORP.,
BEAZER HOMES TEXAS HOLDINGS, INC., and
BEAZER HOMES TEXAS, L.P.
as Guarantors, and
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
to
INDENTURE
Dated as of March 2, 1994
Relating to
$115,000,000 Aggregate Principal Amount of
9% Senior Notes due 2004
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THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of March 18, 1998 (this
"Supplement"), by and among (i) Beazer Homes USA, Inc., a Delaware corporation
(the "Company"), (ii) Beazer Mortgage Corporation, a Delaware corporation,
Beazer Homes Corp. (f/k/a Phillips Builders, Inc.), a Tennessee corporation,
Beazer Homes Sales Arizona Inc., a Delaware corporation, Beazer Realty Corp., a
Georgia corporation, Beazer/Squires Realty, Inc., a North Carolina corporation,
and Panitz Homes Realty, Inc., a Florida corporation (collectively, the
"Existing Guarantors"), (iii) Beazer Homes Holdings Corp., a Delaware
corporation, Beazer Homes Texas Holdings, Inc., a Delaware corporation, and
Beazer Homes Texas, L.P., a Delaware limited partnership (collectively, the
"Additional Guarantors") and (iv) First Trust National Association, as trustee
(the "Trustee"). Capitalized terms used but not defined herein shall have the
meanings respectively ascribed thereto in the Indenture, dated as of March 2,
1994, as amended by the First Supplemental Indenture, dated as of June 13, 1995,
as further amended by the Second Supplemental Indenture, dated as of February 1,
1996, among the Company, as issuer, the guarantors of the Company's obligations
thereunder, and the Trustee (the "Indenture"), pursuant to which $115,000,000
aggregate principal amount of the Company's 9% Senior Notes due 2004 were issued
and with respect to which this Supplement relates.
RECITALS OF THE PARTIES:
WHEREAS, the parties hereto desire to amend the Indenture to add the
Additional Guarantors as Guarantors of the Company's obligations thereunder
pursuant to Section 11.03 thereof; and
WHEREAS, the parties hereto desire to amend the Indenture to
acknowledge the release of the Liquidating Guarantors (as defined below) as
Guarantors of the Company's obligations thereunder pursuant to Section 11.04
thereof.
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH:
1. The parties hereto agree to add, effective as of the date hereof,
the Additional Guarantors as Guarantors under the Indenture and the Additional
Guarantors agree to be subject to the provisions of the Indenture as Guarantors.
Each of the Additional Guarantors shall execute and deliver to the Trustee
contemporaneously herewith, for the equal and proportionate benefit of the
Holders of the Securities, its respective Guarantee set forth in Appendix A
hereto.
2. The parties hereto acknowledge that (a) each of Beazer Homes
Arizona Inc., a Delaware corporation, Beazer Homes California Inc., a Delaware
corporation, Beazer Homes Nevada Inc., a Nevada corporation, Beazer Homes, Inc.,
a Delaware corporation, Beazer Homes Georgia, Inc., a Georgia corporation,
Squires Homes, Inc., a Delaware corporation, Beazer Homes Florida, Inc., a
Delaware corporation, Beazer Homes Texas, Inc., a Texas corporation, BZH Inc.
(f/k/a Beazer Homes Holdings, Inc.), a Delaware corporation, BDWI-Sunridge,
Inc., a Delaware corporation, and Sunridge Country Classics, L.P., a California
limited partnership (collectively, the "Liquidating Guarantors"), were
liquidated, dissolved or merged into another guarantor of the Company's
obligations under the Indenture, as applicable, (b) the Liquidating Guarantors'
respective obligations under the
Indenture were assumed by (i) Beazer Homes Corp., with respect to Beazer Homes
Georgia, Inc. and Squires Homes, Inc., (ii) Beazer Homes Holdings Corp., with
respect to Beazer Homes Arizona, Inc., Beazer Homes California, Inc., Beazer
Homes Nevada, Inc., Beazer Homes, Inc. and BZH, Inc. and (iii) Beazer Homes
Texas, L.P., with respect to Beazer Homes Texas, Inc. and (c) in accordance with
Section 11.04 of the Indenture the Liquidating Guarantors have been
automatically and unconditionally released and discharged from all of their
respective obligations under the Indenture.
3. Except as set forth in Section 2 hereof, nothing contained herein
shall be deemed or construed to relieve any party to the Indenture of its
obligations thereunder as in effect immediately prior to the effectiveness of
this Supplement or to impair any of such obligations in any way and, except to
the extent the Indenture is amended hereby, the Indenture shall remain in full
force and effect and each of the parties hereto hereby confirms all the terms
and provisions of the Indenture as amended hereby.
4. This Supplement shall be governed by and construed in accordance
with the laws that govern the Indenture and its construction.
5. This Supplement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
[The remainder of this page was intentionally left blank]
IN WITNESS WHEREOF, each the parties hereto has caused this
Supplement to be duly executed by its representative, thereunto duly authorized,
as of the day and year first written above.
The Company: Beazer Homes USA, Inc.
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Executive Vice President, Chief
Financial Officer
The Existing Guarantors: Beazer Mortgage Corporation
Beazer Homes Corp.
Beazer Homes Sales Arizona Inc.
Beazer Realty Corp.
Beazer/Squires Realty, Inc.
Panitz Homes Realty, Inc.
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Vice President
The Additional Guarantors: Beazer Homes Holdings Corp.
Beazer Homes Texas Holdings, Inc.
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Vice President
Beazer Homes Texas, L.P.
By: Beazer Homes Texas Holdings, Inc.
its general partner
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Vice President
The Trustee: First Trust National Association, as trustee
By: /s/ Michael T. Goodwin
Name: Michael T. Goodwin
Title: Assistant Vice President
Appendix A-1
GUARANTEE
For value received, the undersigned hereby, jointly and severally
with the other Guarantors under the Indenture, unconditionally guarantees to the
Holder of this Security the payments of principal of, premium, if any, and
interest on this Security in the amounts and at the time when due and interest
on the overdue principal, premium, if any, and interest, if any, of this
Security, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture or the Securities, to the Holder of this
Security and the Trustee, all in accordance with and subject to the terms and
limitations of this Security, Article 11 of the Indenture and this Guarantee.
This Guarantee will become effective in accordance with Article 11 of the
Indenture and its terms shall be evidenced therein. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is not
affixed to any particular Security.
The obligations of the undersigned to the Holders of Securities and
to the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture and reference is hereby made to the
Indenture for the precise terms of this Guarantee and all of the other
provisions of the Indenture to which this Guarantee relates.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Dated: March 18, 1998 Beazer Homes Holdings Corp.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Appendix A-2
GUARANTEE
For value received, the undersigned hereby, jointly and severally with the
other Guarantors under the Indenture, unconditionally guarantees to the Holder
of this Security the payments of principal of, premium, if any, and interest on
this Security in the amounts and at the time when due and interest on the
overdue principal, premium, if any, and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security, Article 11 of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article 11 of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Dated: March 18, 1998 Beazer Homes Texas Holdings, Inc.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Appendix A-3
GUARANTEE
For value received, the undersigned hereby, jointly and severally with the
other Guarantors under the Indenture, unconditionally guarantees to the Holder
of this Security the payments of principal of, premium, if any, and interest on
this Security in the amounts and at the time when due and interest on the
overdue principal, premium, if any, and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security, Article 11 of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article 11 of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Dated: March 18, 1998 Beazer Homes Texas, L.P.
By: Beazer Homes Texas Holdings, Inc., its
general partner
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
GUARANTEE
For value received, the undersigned hereby, jointly and severally with the
other Guarantors under the Indenture, unconditionally guarantees to the Holder
of this Security the payments of principal of, premium, if any, and interest on
this Security in the amounts and at the time when due and interest on the
overdue principal, premium, if any, and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security, Article 11 of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article 11 of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Dated: March 18, 1998 Beazer Homes Holdings Corp.
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Vice President
GUARANTEE
For value received, the undersigned hereby, jointly and severally with the
other Guarantors under the Indenture, unconditionally guarantees to the Holder
of this Security the payments of principal of, premium, if any, and interest on
this Security in the amounts and at the time when due and interest on the
overdue principal, premium, if any, and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security, Article 11 of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article 11 of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Dated: March 18, 1998 Beazer Homes Texas Holdings, Inc.
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Vice President
GUARANTEE
For value received, the undersigned hereby, jointly and severally with the
other Guarantors under the Indenture, unconditionally guarantees to the Holder
of this Security the payments of principal of, premium, if any, and interest on
this Security in the amounts and at the time when due and interest on the
overdue principal, premium, if any, and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Securities, to the Holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security, Article 11 of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article 11 of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular
Security.
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to the Indenture for
the precise terms of this Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
Dated: March 18, 1998 Beazer Homes Texas, L.P.
By: Beazer Homes Texas Holdings, Inc., its
general partner
By: /s/ David S. Weiss
Name: David S. Weiss
Title: Vice President