Contract
EXHIBIT 4.26
THIS NOTE IS A GLOBAL SECURITY REFERRED TO IN THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-01
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Principal Amount: $300,000,000 | |
CUSIP No. 00000XXX0
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(or such other principal amount | |
ISIN No. US48666KAN90
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as is set forth on Schedule A hereto) |
71/4% Senior Notes due 2018
KB Home, a Delaware corporation (hereinafter called the “Company”, which term includes
any successor corporation under the Indenture referred to below), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of THREE HUNDRED MILLION
DOLLARS ($300,000,000) or such other principal amount as is set forth on Schedule A hereto on June
15, 2018, and to pay interest thereon from April 3, 2006, or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on June 15 and December 15 of
each year (each, an “Interest Payment Date”), commencing December 15, 2006, and at Maturity, at the
rate of 71/4% per annum, until the principal hereof is paid or duly made available for payment.
Interest on this Note shall be calculated on the basis of a 360-day year consisting of twelve
30-day months. The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the June 1 or December 1 (whether or not a Business Day), as
the case may be, immediately preceding such Interest Payment Date. Any such interest which is
payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Person who was the Holder hereof on the relevant Regular
Record Date by virtue of having been such Holder, and may be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to the Holder of this Note not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in such Indenture.
Payment of the principal of and premium, if any, and interest on this Note will be made at the
Office or Agency of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that, at the option of the
Company, interest may be paid by check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register
or by transfer to an account maintained by the payee with a bank located in the United States; and
provided, further, that if this Note is a global Note registered in the name of a Depository or its
nominee, then, anything in the Indenture or the Notes to the contrary notwithstanding, payments of
the principal of and premium, if any, and interest on this Note shall be made by wire transfer.
This Note is one of a duly authorized issue of Securities of the Company (herein called the
“Notes”) issued and to be issued in one or more series under an Indenture dated as of January 28,
2004 (the “Original Indenture”), as amended and supplemented by the First Supplemental Indenture
dated as of January 28, 2004 (the “First Supplemental Indenture”), and by the Second Supplemental
Indenture dated as of June 30, 2004 (the “Second Supplemental Indenture”; the Original Indenture,
as amended and supplemented by the First Supplemental Indenture and the Second Supplemental
Indenture and all other indentures supplemental thereto, is herein called the “Indenture”), each
among the Company, the Guarantors and SunTrust Bank, as trustee (herein called the “Trustee”, which
term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the
Holders of the Notes, and the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof, initially limited
(subject to exceptions provided in the Indenture and subject to the right of the Company to reopen
such series for issuance of additional Securities of such series upon the terms and subject to the
conditions specified in the Indenture) in aggregate principal amount to $300,000,000.
Payments of principal of and premium, if any, and interest on the Notes are fully, irrevocably
and unconditionally guaranteed, jointly and severally, by the Guarantors on the terms and subject
to the limitations set forth in the Indenture. A Guarantor may be released from its obligations
under the Indenture and those obligations may be reinstated, all on the terms and subject to the
conditions set forth in the Indenture.
The Notes may be redeemed, in whole at any time or from time to time in part, at the Company’s
option on any date (each, a “Redemption Date”) at a Redemption Price equal to the greater of: (a)
100% of the principal amount of the Notes to be redeemed, and (b) the sum of the present values of
the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive
of interest accrued to the applicable Redemption Date) discounted to such Redemption Date on a
semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate
plus 35 basis points, plus, in the case of both clause (a) and (b) above, accrued and unpaid
interest on the principal amount of the Notes being redeemed to such Redemption Date.
Notwithstanding the foregoing, installments of interest on Notes whose Stated Maturity is on or
prior to the relevant Redemption Date will be payable to the Holders of such Notes (or one or more
Predecessor Securities) registered as such at the close of business on the relevant Regular Record
Date according to their terms and the provisions of the Indenture.
As used in this Note, the following terms have the meanings set forth below:
“Treasury Rate” means, with respect to any Redemption Date for the Notes:
| (a) | the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Final Maturity Date for the Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding to the nearest month); or | ||
| (b) | if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. |
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The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption
Date. As used in the immediately preceding sentence and in the definition of “Reference Treasury
Dealer Quotations” below, the term “Business Day” means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New York are authorized
or obligated by law, regulation or executive order to close.
“Comparable Treasury Issue” means, with respect to any Redemption Date for the Notes, the
United States Treasury security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Notes to be redeemed.
“Independent Investment Banker” means, with respect to any Redemption Date for the Notes, Banc
of America Securities LLC and its successors or, if such firm or any successor to such firm, as the
case may be, is unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the Trustee after consultation
with the Company.
“Comparable Treasury Price” means, with respect to any Redemption Date for the Notes:
| (a) | the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or | ||
| (b) | if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations. |
“Reference Treasury Dealer” means Banc of America Securities LLC and its successors
(provided, however, that if such firm or any such successor, as the case may be, shall cease to be
a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the
Trustee, after consultation with the Company, will substitute therefor another Primary Treasury
Dealer) and three other Primary Treasury Dealers selected by the Trustee after consultation with
the Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date for the Notes, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
“Final Maturity Date” means June 15, 2018.
Notice of any redemption by the Company will be mailed at least 30 days but not more than 60
days before any Redemption Date to each Holder of Notes to be redeemed. If less than all the Notes
are to be redeemed at the option of the Company, the Trustee will select, in such manner as it
deems fair and appropriate, the Notes (or portions thereof) to be redeemed. Unless the Company
defaults in payment of the Redemption Price (including, without limitation, interest, if any,
accrued to the applicable Redemption Date), on and after the applicable Redemption Date interest
will cease to accrue on the Notes or portions thereof called for redemption on such Redemption
Date.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal
of and accrued and unpaid interest on the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantors and the rights of
the Holders of the Securities of each series issued under the Indenture at any time by the Company,
the Guarantors and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
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Outstanding of each series affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of the Securities of
any series at the time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company and the Guarantors with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and premium, if any, and interest on this Note, at the time, place and rate, and in
the coin or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth therein, the
transfer of this Note may be registered on the Security Register upon surrender of this Note for
registration of transfer at the Office or Agency of the Company maintained for the purpose in any
place where the principal of and interest on this Note are payable, duly endorsed, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed by the Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in fully registered form without coupons in the denominations of
$1,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations set forth therein, the Notes are exchangeable for a like aggregate
principal amount of Notes of authorized denominations as requested by the Holders surrendering the
same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith, other than in certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the Company, the
Guarantors, the Trustee and any agent of the Company, any Guarantor or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and none of the Company, the Guarantors or the Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company and the Guarantors may be discharged
from their obligations with respect to the Notes (subject to certain exceptions) or (ii) the
Company may be released from its obligations under specified covenants and agreements in the
Indenture, in each case if the Company irrevocably deposits with the Trustee money and/or
Government Obligations sufficient to pay and discharge the entire indebtedness on all Notes, and
satisfies certain other conditions, all as more fully provided in the Indenture. In addition, the
Indenture shall cease to be of further effect (subject to certain exceptions) with respect to the
Notes when (1) either (A) all Notes previously authenticated and delivered have been delivered
(subject to certain exceptions) to the Trustee for cancellation, or (B) all Notes (i) have become
due and payable or (ii) will become due and payable at their Stated Maturity within one year or
(iii) are to be called for redemption within one year and, in the case of (i), (ii) or (iii) above,
the Company has irrevocably deposited with the Trustee money in an amount sufficient to pay and
discharge the entire indebtedness on all such Notes not theretofore delivered to the Trustee for
cancellation in respect of principal, premium, if any, and interest to the date of such deposit (if
such Notes have become due and payable) or to the Stated Maturity or Redemption Date thereof, as
the case may be, and (2) the Company satisfies certain other conditions, all as more fully provided
in the Indenture.
This Note shall be governed by and construed in accordance with the laws of the State of New
York.
All terms used in this Note which are defined in the Indenture and not defined herein shall
have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee under the
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Indenture by the manual signature of one of its authorized signatories, this Note shall not be
entitled to any benefits under the Indenture (including, without limitation, the Guarantees) or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by the manual
or facsimile signatures of its duly authorized officers.
Dated: April 3, 2006
| KB HOME | ||||||||||||
By:
|
SPECIMEN | By: | SPECIMEN | |||||||||
| Name: | Xxxxxxx X. Xxxxxxx | Name: | Xxxxx Xxxxxx | |||||||||
| Title: | Vice President,
Deputy General Counsel and Corporate Secretary |
Title: | Senior Vice President and Treasurer | |||||||||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
SUNTRUST BANK, as Trustee
By:
|
SPECIMEN | |||
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
| TEN COM—as tenants in common | ||||||||||
| TEN ENT—as tenants by the entireties | ||||||||||
| JT TEN—as joint tenants with right of survivorship and not as tenants in common | ||||||||||
| UNIF GIFT MIN ACT— | Custodian | |||||||||
| (Cust) | (Minor) | |||||||||
| under the Uniform Gift to Minors Act |
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| (State) | ||||||||||
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
| PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE |
||||||||||
| PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE |
||||||||||
| the within security and all rights thereunder, hereby irrevocably constituting and appointing |
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| Attorney | ||||||||||
| to transfer said security on the books of the Company with full power of substitution in the premises. |
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Dated:
|
Signed: | |||||||||
Notice: The signature to this assignment must correspond with the name as it appears
upon the face of the within security in every particular, without alteration or enlargement
or any change whatever.
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SCHEDULE A
The initial principal amount of this global Note is Three Hundred Million Dollars
($300,000,000). The following increases or decreases in the principal amount of this global Note
have been made:
| Principal amount of | ||||||||
| this global Note | Signature of | |||||||
| Amount of increase | Amount of decrease | following such | authorized | |||||
| in principal amount | in principal amount | decrease or | signatory of | |||||
| Date made | of this global Note | of this global Note | increase | Trustee | ||||
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