EXHIBIT 4.2
CUSIP
▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE CO.
No. $
9.5% SENIOR SUBORDINATED NOTE DUE 2015
▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C., a Nevada limited liability company (the
"Issuer"), and ▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE CO., a Delaware corporation (the "Co-Issuer"
and, together with the Issuer, the "Issuers"), for value received, promises to
pay to CEDE & CO. or registered assigns the principal sum of $ dollars on
October 1, 2015.
Interest Payment Dates: April 1 and October 1.
Record Dates: March 15 and September 15.
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by its duly authorized officers.
▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C.,
as Issuer
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE CO.,
as Co-Issuer
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
Dated:
Certificate of Authentication
This is one of the 9.5% Senior Subordinated Notes due 2015 referred to in
the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _________________________________
Dated:
[FORM OF REVERSE OF NOTE]
▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE CO.
9.5% SENIOR SUBORDINATED NOTE DUE 2015
1. Interest. ▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C., a Nevada limited liability company
(the "Issuer"), and ▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE CO., a Delaware corporation (the
"Co-Issuer" and, together with the Issuer, the "Issuers"), promises to pay,
until the principal hereof is paid or made available for payment, interest on
the principal amount set forth on the face hereof at a rate of 9.5% per annum.
Interest hereon will accrue from and including the most recent date to which
interest has been paid or, if no interest has been paid, from and including
September 21, 2005 to but excluding the date on which interest is paid. Interest
shall be payable in arrears on each April 1 and October 1, commencing April 1,
2006. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Issuers shall pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at a rate of 9.5% per annum.
2. Method of Payment. The Issuers will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on March 15 or September 15 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Issuers will pay principal and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association
(the "Trustee") will act as a Paying Agent and Registrar. The Issuers may change
any Paying Agent or Registrar without notice. Neither of the Issuers nor any of
their Affiliates may act as Paying Agent or Registrar.
4. Indenture and Subordination. The Issuers issued the Notes under an
Indenture dated as of September 21, 2005 (the "Indenture") among the Issuers,
the Guarantors (as defined in the Indenture) and the Trustee. This is one of an
issue of Notes of the Issuers issued, or to be issued, under the Indenture. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb), as amended from time to time. The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of them. The payment of the Notes will, to the extent set forth in the
Indenture, be subordinated in right of payment to the prior payment in full in
cash or cash equivalents of all Senior Debt. Capitalized and certain other terms
used herein and not otherwise defined have the meanings set forth in the
Indenture.
5. Optional Redemption. (a) The Issuer, at its option, may redeem the
Notes, in whole or in part, at any time on or after October 1, 2010 upon not
less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, together, in each case, with accrued and unpaid
interest thereon, if any, to the Redemption Date, if redeemed during the
12-month period beginning on October 1 of each year listed below:
Year Optional Redemption Price
-------------------------------------------- -------------------------
2010........................................ 104.750%
2011........................................ 103.167%
2012........................................ 101.583%
2013 and thereafter......................... 100.000%
(b) At any time or from time to time prior to October 1, 2008, the Issuer,
at its option, may redeem up to 35% of the aggregate principal amount of the
Notes with the net cash proceeds of one or more Qualified Equity Offerings at a
redemption price equal to 109.500% of the principal amount of the Notes to be
redeemed, plus accrued and unpaid interest thereon, if any, to the Redemption
Date; provided, however, that (1) at least 65% of the aggregate principal amount
of Notes issued under the Indenture remains outstanding immediately after the
occurrence of such redemption and (2) the redemption occurs within 90 days of
the date of the closing of any such Qualified Equity Offering.
(c) In the event of a redemption of fewer than all of the Notes, the
Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, while such
Notes are listed or, if such Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other manner as the Trustee
shall deem fair and appropriate; provided, however that no Notes of a principal
amount of $1,000 or less shall be redeemed in part. The Notes will be redeemable
in whole or in part upon not less than 30 nor more than 60 days' prior written
notice, mailed by first class mail to a Holder's last address as it shall appear
on the register maintained by the Registrar of the Notes. On and after any
redemption date, interest will cease to accrue on the Notes or portions thereof
called for redemption unless the Issuers shall fail to redeem any such Note.
6. Notice of Redemption. Notice of redemption will be mailed by
first-class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at his registered
address, except that redemption notices may be mailed more than 60 days prior to
a Redemption Date if the notice is issued in connection with a satisfaction and
discharge of the Indenture. On and after the Redemption Date, unless the Issuers
default in making the redemption payment, interest ceases to accrue on Notes or
portions thereof called for redemption.
7. Offers To Purchase. The Indenture provides that upon the occurrence of
a Change of Control or an Asset Sale and subject to further limitations
contained therein, the Issuers shall make an offer to purchase outstanding Notes
in accordance with the procedures set forth in the Indenture.
8. Registration Rights. Pursuant to a Registration Rights Agreement among
the Issuers, the Guarantors, and UBS Securities LLC and Wachovia Capital
Markets, LLC, the Issuers and the Guarantors will be obligated to consummate an
exchange offer pursuant to which
the Holder of this Note shall have the right to exchange this Note for notes of
a separate series issued under the Indenture (or a trust indenture substantially
identical to the Indenture in accordance with the terms of the Registration
Rights Agreement) which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes. The
Holders shall be entitled to receive certain additional interest payments in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Notes or portion of a Note selected for redemption,
or register the transfer of or exchange any Notes for a period of 15 days before
a mailing of notice of redemption.
10. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee will pay the money back to the
Issuers at its written request. After that, Holders entitled to the money must
look to the Issuers for payment as general creditors unless an "abandoned
property" law designates another Person.
12. Amendment, Supplement, Waiver, Etc. The Issuers, the Guarantors and
the Trustee (if a party thereto) may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, and making any change that does not
materially and adversely affect the rights of any Holder. Other amendments and
modifications of the Indenture or the Notes may be made by the Issuers, the
Guarantors and the Trustee with the consent of the Holders of not less than a
majority of the aggregate principal amount of the outstanding Notes or
two-thirds of such aggregate principal amount as to amendments or modifications
relating to provisions governing Change of Control Offers, subject to certain
exceptions requiring the consent of the Holders of the particular Notes to be
affected.
13. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Issuer and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of their Equity
Interests or certain Indebtedness, make certain Investments, create or incur
Liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions and on the ability of the Issuer to merge or consolidate with any
other Person or transfer all or substantially all of the Issuer's, the
Co-Issuer's or any Guarantor's assets. Such limitations are subject to a number
of important qualifications and exceptions. Pursuant to Section 4.04, the
Issuers must annually report to the Trustee on compliance with such limitations.
14. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article Five of the Indenture, the
predecessor corporation will, except as provided in Article Five, be released
from those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(7) or (8) with
respect to the Issuer) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the outstanding Notes may, by
written notice to the Trustee and the Issuers, and the Trustee upon the request
of the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes shall, declare all principal of and accrued interest on all
Notes to be immediately due and payable and such amounts shall become
immediately due and payable. If an Event of Default specified in Section 6.01(7)
or (8) occurs with respect to the Issuer, the principal amount of and interest
on, all Notes shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. Holders
may not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing default (except a default in payment of principal, premium, if
any, or interest on the Notes or a default in the observance or performance of
any of the obligations of the Issuers under Article Five of the Indenture) if it
determines that withholding notice is in their best interests.
16. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuers or their Affiliates, and may otherwise deal with the Issuers or
their Affiliates, as if it were not Trustee.
17. Discharge. The Issuers' obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Notes or upon the
irrevocable deposit with the Trustee of United States dollars or U.S. Government
Obligations sufficient to pay when due principal of and interest on the Notes to
maturity or redemption, as the case may be.
18. Guarantees. This Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
19. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
20. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within the State of New York. The Trustee, the Issuers, the
Guarantors and the Holders agree to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to the Indenture or the Notes.
21. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________________________
_______________________________________________________________________________
Agent to transfer this Note on the books of the Issuer. The Agent may substitute
another to act for him.
Date:________________ Your Signature:____________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:_________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Issuers pursuant to Section 4.09, Section 4.15 or Section 4.19 of the Indenture,
check the appropriate box:
[ ] Section 4.09 [ ] Section 4.15 [ ] Section 4.19
If you want to have only part of the Note purchased by the Issuers
pursuant to Section 4.09, Section 4.15 or Section 4.19 of the Indenture, state
the amount you elect to have purchased:
$______________________
(multiple of $1,000)
Date:__________________
Your Signature:_______________________________________________
(Sign exactly as your name appears on the face
of this Note)
________________________________
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
NOTATION OF GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and severally
unconditionally guarantees, to the extent set forth in the Indenture dated as of
September 21, 2005 by and among ▇▇▇▇▇▇ ▇▇▇▇▇ USA L.L.C., a Nevada limited
liability company (the "Issuer"), and ▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE CO., a Delaware
corporation (the "Co-Issuer" and, together with the Issuer, the "Issuers"), the
Guarantors, as guarantors, and U.S. Bank National Association, as trustee (the
"Trustee") (as amended, restated or supplemented from time to time, the
"Indenture"), and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of, and premium and, to the extent permitted by law, interest,
and the due and punctual performance of all other obligations of the Issuers to
the Holders or the Trustee, all in accordance with the terms set forth in
Article Ten of the Indenture, and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
Ten of the Indenture, and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee. Each Holder of the Note to
which this Guarantee is endorsed, by accepting such Note, agrees to and shall be
bound by such provisions.
[Signatures on Following Pages]
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be
signed by a duly authorized officer.
BLACK AMBER FLORIDA, INC.
ASHTON BROOKSTONE, INC
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
ASHTON ATLANTA RESIDENTIAL, L.L.C.
CANYON REALTY L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇ RESIDENTIAL L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ RESIDENTIAL L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DEVELOPMENT L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATE, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ RESIDENTIAL L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
▇▇▇▇▇▇ ▇▇▇▇▇ ARIZONA L.L.C.
ASHTON TAMPA RESIDENTIAL, LLC
ASHTON DENVER RESIDENTIAL, LLC
▇▇▇▇▇▇ ▇▇▇▇▇ FLORIDA L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇ LAKESIDE L.L.C.
ISLEWORTH WEST LIMITED PARTNERSHIP
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇ ▇▇▇▇▇ CONSTRUCTION, LLC
By: ▇▇▇▇▇▇ ▇▇▇▇▇ HOMES USA L.L.C., sole
member
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
PINERY JOINT VENTURE
By: ▇▇▇▇▇▇ ▇▇▇▇▇ HOMES USA L.L.C., partner
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
ISLEWORTH WEST LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ ▇▇▇▇▇ FLORIDA L.L.C., general
partner
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇ ▇▇▇▇▇ ORLANDO LIMITED
PARTNERSHIP
By: ▇▇▇▇▇▇ ▇▇▇▇▇ LAKESIDE L.L.C., general
partner
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager