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As filed with the Securities and Exchange Commission on September 19, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
| K. HOVNANIAN ENTERPRISES, INC. | HOVNANIAN ENTERPRISES, INC. | |
| (Exact Name of Registrant as Specified in Its Charter) | ||
California |
Delaware |
|
| (State or Other Jurisdiction of Incorporation or Organization) | ||
1520 |
1531 |
|
| (Primary Standard Industrial Classification Code Number) | ||
22-2423583 |
22-1851059 |
|
| (I.R.S. Employer Identification Number) | ||
110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 (732) 747-7800 |
110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 (732) 747-7800 |
|
| (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) | ||
SEE TABLE OF ADDITIONAL REGISTRANTS
J. Larry Sorsby
Hovnanian Enterprises, Inc.
110 West Front Street
P.O. Box 500
Red Bank, New Jersey 07701
(732) 747-7800
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Vincent Pagano Jr., Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. o
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ý | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
| Title Of Each Class Of Securities To Be Registered |
Amount To Be Registered |
Proposed Maximum Offering Price Per Unit |
Proposed Maximum Aggregate Offering Price |
Amount Of Registration Fee |
||||
|---|---|---|---|---|---|---|---|---|
111/2% Senior Secured Notes due 2013 |
$600,000,000 | 99.087%(1) | $594,524,000(1) | $23,365(2) | ||||
Guarantees of 111/2% Senior Secured Notes due 2013 |
N/A | N/A | N/A | None(3) | ||||
Total |
$600,000,000 | 99.087%(1) | $594,524,000(1) | $23,365(2) | ||||
- (1)
- Estimated
solely for the purpose of calculating the registration fee under Rule 457 of the Securities Act of 1933.
- (2)
- The
registration fee for the securities offered hereby has been calculated under Rule 457(f)(2) of the Securities Act of 1933.
- (3)
- No consideration will be received for the Guarantees.
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
TABLE OF ADDITIONAL REGISTRANTS
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
Alford, L.L.C. |
VA | 20-1532156 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
Auddie Enterprises, L.L.C. |
NJ |
26-1956909 |
110 West Front Street |
|||
Builder Services NJ, L.L.C. |
NJ |
20-1131408 |
110 West Front Street |
|||
Builder Services NY, L.L.C. |
NY |
20-5676716 |
110 West Front Street |
|||
Builder Services PA, L.L.C. |
PA |
20-5425686 |
110 West Front Street |
|||
Dulles Coppermine, L.L.C. |
VA |
31-1820770 |
110 West Front Street |
|||
Eastern Title Agency, Inc. |
NJ |
22-2822803 |
110 West Front Street |
|||
F & W Mechanical Services, L.L.C. |
NJ |
20-4186885 |
110 West Front Street |
|||
Founders Title Agency of Maryland, L.L.C. |
MD |
20-1480338 |
110 West Front Street |
|||
Founders Title Agency, Inc. |
VA |
22-3293533 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
Governor's Abstract Co., Inc. |
PA | 22-3278556 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
Greenway Farms Utility Associates, L.L.C. |
MD |
20-3749580 |
110 West Front Street |
|||
Homebuyers Financial Services, L.L.C. |
MD |
20-3529161 |
110 West Front Street |
|||
Hovnanian Developments of Florida, Inc. |
FL |
22-2416624 |
110 West Front Street |
|||
Hovnanian Land Investment Group of Georgia, L.L.C. |
GA |
20-3286439 |
110 West Front Street |
|||
Hovnanian Land Investment Group of Pennsylvania, L.L.C. |
PA |
20-4641720 |
110 West Front Street |
|||
Hudson Pointe Joint Development, L.L.C. |
DE |
20-2695750 |
110 West Front Street |
|||
K. Hov IP, Inc. |
CA |
95-4892009 |
110 West Front Street |
|||
K. Hov International, Inc. |
NJ |
22-3188610 |
110 West Front Street |
|||
K. Hov IP, II, Inc. |
CA |
57-1135061 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Acquisitions, Inc. |
NJ | 22-3406671 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at 3 Chapman, L.L.C. |
CA |
20-4359772 |
110 West Front Street |
|||
K. Hovnanian at Aberdeen Urban Renewal, L.L.C. |
NJ |
20-4397868 |
110 West Front Street |
|||
K. Hovnanian at Allenberry, L.L.C. |
PA |
20-5295827 |
110 West Front Street |
|||
K. Hovnanian at Allendale, L.L.C. |
NJ |
26-0581709 |
110 West Front Street |
|||
K Hovnanian at Barnegat III, L.L.C. |
NJ |
20-4135622 |
110 West Front Street |
|||
K. Hovnanian at Bernards IV, Inc. |
NJ |
22-3292171 |
110 West Front Street |
|||
K. Hovnanian at Branchburg III, Inc. |
NJ |
22-2961099 |
110 West Front Street |
|||
K. Hovnanian at Bridgeport, Inc. |
CA |
22-3547807 |
110 West Front Street |
|||
K. Hovnanian at Bridgewater VI, Inc. |
NJ |
22-3243298 |
110 West Front Street |
|||
K. Hovnanian at Broad and Walnut, L.L.C. |
PA |
20-3477133 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Burlington III, Inc. |
NJ | 22-3412130 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Burlington, Inc. |
NJ |
22-2949611 |
110 West Front Street |
|||
K. Hovnanian at Calabria, Inc. |
CA |
22-3324654 |
110 West Front Street |
|||
K. Hovnanian at Cameron Chase, Inc. |
VA |
22-3459993 |
110 West Front Street |
|||
K. Hovnanian at Camp Hill, L.L.C. |
PA |
20-4215810 |
110 West Front Street |
|||
K. Hovnanian at Carmel Del Mar, Inc. |
CA |
22-3320550 |
110 West Front Street |
|||
K. Hovnanian at Castile, Inc. |
CA |
22-3356308 |
110 West Front Street |
|||
K. Hovnanian at Chaparral, Inc. |
CA |
22-3565730 |
110 West Front Street |
|||
K. Hovnanian at Chesterfield II, L.L.C. |
NJ |
20-4135587 |
110 West Front Street |
|||
K. Hovnanian at Cielo, L.L.C. |
CA |
20-3393453 |
110 West Front Street |
|||
K. Hovnanian at Clarkstown, Inc. |
NY |
22-2618176 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Coastline, L.L.C. |
CA | 20-4751032 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Crestline, Inc. |
CA |
22-3493450 |
110 West Front Street |
|||
K. Hovnanian at Dominguez Hills, Inc. |
CA |
22-3602177 |
110 West Front Street |
|||
K. Hovnanian at East Brandywine, L.L.C. |
PA |
20-8353499 |
110 West Front Street |
|||
K. Hovnanian at East Whiteland I, Inc. |
PA |
22-3483220 |
110 West Front Street |
|||
K. Hovnanian at Elk Township, L.L.C. |
NJ |
20-5199963 |
110 West Front Street |
|||
K. Hovnanian at Evergreen, L.L.C. |
CA |
20-1618392 |
110 West Front Street |
|||
K. Hovnanian at Ewing, L.L.C. |
NJ |
20-8327131 |
110 West Front Street |
|||
K. Hovnanian at Fifth Avenue, L.L.C. |
NJ |
20-4594377 |
110 West Front Street |
|||
K. Hovnanian at Forks Twp. I, L.L.C. |
PA |
20-4202483 |
110 West Front Street |
|||
K. Hovnanian at Freehold Township I, Inc. |
NJ |
22-2459186 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Galloway, L.L.C. |
NJ | 26-0395034 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Hackettstown, Inc. |
NJ |
22-2765936 |
110 West Front Street |
|||
K. Hovnanian at Hazlet, L.L.C. |
NJ |
20-4568967 |
110 West Front Street |
|||
K. Hovnanian at Hershey's Mill, Inc. |
PA |
22-3445102 |
110 West Front Street |
|||
K. Hovnanian at Highland Vineyards, Inc. |
CA |
22-3309241 |
110 West Front Street |
|||
K. Hovnanian at Hilltop, L.L.C. |
NJ |
20-3476959 |
110 West Front Street |
|||
K. Hovnanian at Hopewell IV, Inc. |
NJ |
22-3345622 |
110 West Front Street |
|||
K. Hovnanian at Hopewell VI, Inc. |
NJ |
22-3465709 |
110 West Front Street |
|||
K. Hovnanian at Howell Township, Inc. |
NJ |
22-2859308 |
110 West Front Street |
|||
K. Hovnanian at Hudson Pointe, L.L.C. |
NJ |
20-2695809 |
110 West Front Street |
|||
K. Hovnanian at Keyport, L.L.C. |
NJ |
20-4918777 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Kings Grant I, Inc. |
NJ | 22-2601064 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at La Costa Greens, L.L.C. |
CA |
20-3920917 |
110 West Front Street |
|||
K. Hovnanian at La Terraza, Inc. |
CA |
22-3303807 |
110 West Front Street |
|||
K. Hovnanian at Lake Hills, L.L.C. |
CA |
20-3450108 |
110 West Front Street |
|||
K. Hovnanian at Lake Rancho Viejo, LLC |
CA |
20-1337056 |
110 West Front Street |
|||
K. Hovnanian at Lakewood, Inc. |
NJ |
22-2618178 |
110 West Front Street |
|||
K. Hovnanian at Little Egg Harbor III, L.L.C. |
NJ |
20-4861624 |
110 West Front Street |
|||
K. Hovnanian at Lower Macungie Township I, L.L.C. |
PA |
51-0427582 |
110 West Front Street |
|||
K Hovnanian at Lower Moreland III, L.L.C. |
PA |
20-4863743 |
110 West Front Street |
|||
K. Hovnanian at Lower Saucon, Inc. |
PA |
22-2961090 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Macungie, L.L.C. |
PA | 20-4863710 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Mahwah II, Inc. |
NJ |
22-2859315 |
110 West Front Street |
|||
K. Hovnanian at Mahwah VI, Inc. |
NJ |
22-3188612 |
110 West Front Street |
|||
K. Hovnanian at Mahwah VII, Inc. |
NJ |
22-2592139 |
110 West Front Street |
|||
K. Hovnanian at Manalapan, Inc. |
NJ |
22-2442998 |
110 West Front Street |
|||
K. Hovnanian at Maple Avenue, L.L.C. |
NJ |
20-4863855 |
110 West Front Street |
|||
K. Hovnanian at Marlboro II, Inc. |
NJ |
22-2748659 |
110 West Front Street |
|||
K. Hovnanian at Marlboro Township III, Inc. |
NJ |
22-2847875 |
110 West Front Street |
|||
K. Hovnanian at Marlboro Township IV, Inc. |
NJ |
22-3301196 |
110 West Front Street |
|||
K. Hovnanian at Matsu, L.L.C. |
CA |
20-4135542 |
110 West Front Street |
|||
K. Hovnanian at Middle Township II, L.L.C. |
NJ |
20-3832384 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Mockingbird Canyon, L.L.C. |
CA | 20-4106816 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Monroe II, Inc. |
NY |
22-2718071 |
110 West Front Street |
|||
K. Hovnanian at Monroe NJ, L.L.C. |
NJ |
20-3512199 |
110 West Front Street |
|||
K. Hovnanian at Montgomery I, Inc. |
PA |
22-3165601 |
110 West Front Street |
|||
K. Hovnanian at New Brunswick Urban Renewal, L.L.C. |
NJ |
20-4053097 |
110 West Front Street |
|||
K. Hovnanian at North Caldwell III, L.L.C. |
NJ |
20-4863775 |
110 West Front Street |
|||
K. Hovnanian at Northern Westchester, Inc. |
NY |
22-2814372 |
110 West Front Street |
|||
K. Hovnanian at Northlake, Inc. |
CA |
22-3336696 |
110 West Front Street |
|||
K. Hovnanian at Ocean Township, Inc. |
NJ |
22-3094742 |
110 West Front Street |
|||
K. Hovnanian at Ocean Walk, Inc. |
CA |
22-3565732 |
110 West Front Street |
|||
K. Hovnanian at Oceanport, L.L.C. |
NJ |
20-5811042 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Orange Heights, L.L.C. |
CA | 20-4996061 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Peapack-Gladstone, L.L.C. |
NJ |
20-5298728 |
110 West Front Street |
|||
K. Hovnanian at Perkiomen I, Inc. |
PA |
22-3094743 |
110 West Front Street |
|||
K. Hovnanian at Perkiomen II, Inc. |
PA |
22-3301197 |
110 West Front Street |
|||
K. Hovnanian at Philadelphia II, L.L.C. |
PA |
20-1706785 |
110 West Front Street |
|||
K. Hovnanian at Piazza D'Oro, L.L.C. |
CA |
11-3760903 |
110 West Front Street |
|||
K. Hovnanian at Port Imperial Urban Renewal IV, L.L.C. |
NJ |
20-2293457 |
110 West Front Street |
|||
K. Hovnanian at Port Imperial Urban Renewal V, L.L.C. |
NJ |
20-2293478 |
110 West Front Street |
|||
K. Hovnanian at Port Imperial Urban Renewal VI, L.L.C. |
NJ |
20-2909190 |
110 West Front Street |
|||
K. Hovnanian at Port Imperial Urban Renewal VII, L.L.C. |
NJ |
20-2909213 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Port Imperial Urban Renewal VIII, L.L.C. |
NJ | 20-2909227 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Princeton Landing, L.L.C. |
NJ |
20-4678083 |
110 West Front Street |
|||
K. Hovnanian at Princeton NJ, L.L.C. |
NJ |
20-3728840 |
110 West Front Street |
|||
K. Hovnanian at Rancho Cristianitos, Inc. |
CA |
22-3369102 |
110 West Front Street |
|||
K. Hovnanian at Reservoir Ridge, Inc. |
NJ |
22-2510587 |
110 West Front Street |
|||
K. Hovnanian at Ridgemont, L.L.C. |
NJ |
20-3375106 |
110 West Front Street |
|||
K. Hovnanian at Ridgestone, L.L.C. |
MN |
20-3563233 |
110 West Front Street |
|||
K. Hovnanian at Sage, L.L.C. |
CA |
20-3230547 |
110 West Front Street |
|||
K. Hovnanian at San Sevaine, Inc. |
CA |
22-3493454 |
110 West Front Street |
|||
K. Hovnanian at Saratoga, Inc. |
CA |
22-3547806 |
110 West Front Street |
|||
K. Hovnanian at Sawmill, Inc. |
PA |
22-3602924 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Scotch Plains II, Inc. |
NJ | 22-3464496 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Scotch Plains, L.L.C. |
NJ |
22-1149329 |
110 West Front Street |
|||
K. Hovnanian at Silver Spring, L.L.C. |
PA |
20-3230502 |
110 West Front Street |
|||
K. Hovnanian at Skye Isle, Inc. |
CA |
31-1820095 |
110 West Front Street |
|||
K. Hovnanian at Smithville, Inc. |
NJ |
22-1732674 |
110 West Front Street |
|||
K. Hovnanian at South Brunswick V, Inc. |
NJ |
22-2937570 |
110 West Front Street |
|||
K. Hovnanian at Sparta, L.L.C. |
NJ |
20-4326573 |
110 West Front Street |
|||
K. Hovnanian at Stone Canyon, Inc. |
CA |
22-3512641 |
110 West Front Street |
|||
K. Hovnanian at Stony Point, Inc. |
NY |
22-2758195 |
110 West Front Street |
|||
K. Hovnanian at Sycamore, Inc. |
CA |
22-3493456 |
110 West Front Street |
|||
K. Hovnanian at Tannery Hill, Inc. |
NJ |
22-3396608 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at The Bluff, Inc. |
NJ | 22-1841019 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at The Monarch, L.L.C. |
NJ |
20-3215837 |
110 West Front Street |
|||
K. Hovnanian at Thornbury, Inc. |
PA |
22-3462983 |
110 West Front Street |
|||
K. Hovnanian at Tierrasanta, Inc. |
CA |
22-3351875 |
110 West Front Street |
|||
K. Hovnanian at Trenton Urban Renewal, L.L.C. |
NJ |
20-4908853 |
110 West Front Street |
|||
K. Hovnanian at Trenton, L.L.C. |
NJ |
20-3728778 |
110 West Front Street |
|||
K. Hovnanian at Trovata, Inc. |
CA |
22-3369099 |
110 West Front Street |
|||
K. Hovnanian at Tuxedo, Inc. |
NJ |
22-3516266 |
110 West Front Street |
|||
K. Hovnanian at Union Township I, Inc. |
NJ |
22-3027952 |
110 West Front Street |
|||
K. Hovnanian at Upper Freehold Township I, Inc. |
NJ |
22-3415873 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Upper Makefield I, Inc. |
PA | 22-3302321 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Vail Ranch, Inc. |
CA |
22-3320537 |
110 West Front Street |
|||
K. Hovnanian at Verona Urban Renewal, L.L.C. |
NJ |
20-4359783 |
110 West Front Street |
|||
K. Hovnanian at Wall Township VI, Inc. |
NJ |
22-2859303 |
110 West Front Street |
|||
K. Hovnanian at Wall Township VIII, Inc. |
NJ |
22-3434643 |
110 West Front Street |
|||
K. Hovnanian at Washingtonville, Inc. |
NY |
22-2717887 |
110 West Front Street |
|||
K. Hovnanian at Wayne III, Inc. |
NJ |
22-2607669 |
110 West Front Street |
|||
K. Hovnanian at Wayne V, Inc. |
NJ |
22-2790299 |
110 West Front Street |
|||
K. Hovnanian at Wildrose, Inc. |
CA |
22-3312525 |
110 West Front Street |
|||
K. Hovnanian at Wildwood Bayside, L.L.C. |
NJ |
20-4385082 |
110 West Front Street |
|||
K. Hovnanian Chesterfield Investment, L.L.C. |
NJ |
20-1683566 |
110 West Front Street |
|||
K. Hovnanian Classics CIP, L.L.C. |
NJ |
20-3684969 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Classics, L.L.C. |
NJ | 20-3761401 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Communities, Inc. |
CA |
95-4892007 |
110 West Front Street |
|||
K. Hovnanian Companies Northeast, Inc. |
NJ |
22-2445216 |
110 West Front Street |
|||
K. Hovnanian Companies of California, Inc. |
CA |
22-3301757 |
110 West Front Street |
|||
K. Hovnanian Companies of Maryland, Inc. |
MD |
22-3331050 |
110 West Front Street |
|||
K. Hovnanian Companies of New York, Inc. |
NY |
22-2618171 |
110 West Front Street |
|||
K. Hovnanian Companies of Pennsylvania, Inc. |
PA |
22-2390174 |
110 West Front Street |
|||
K. Hovnanian Companies of Southern California, Inc. |
CA |
22-3493449 |
110 West Front Street |
|||
K. Hovnanian Companies of Virginia, Inc. |
VA |
22-3169584 |
110 West Front Street |
|||
K. Hovnanian Connecticut Acquisitions, L.L.C. |
CT |
20-3921070 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Construction II, Inc. |
NJ | 22-2246316 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Construction III, Inc. |
NJ |
22-1945444 |
110 West Front Street |
|||
K. Hovnanian Construction Management, Inc. |
NJ |
22-3406668 |
110 West Front Street |
|||
K. Hovnanian Craftbuilt Homes of South Carolina, L.L.C. |
SC |
20-4467887 |
110 West Front Street |
|||
K. Hovnanian Delaware Acquisitions, L.L.C. |
DE |
20-4823251 |
110 West Front Street |
|||
K. Hovnanian Developments of Arizona, Inc. |
AZ |
31-1825442 |
110 West Front Street |
|||
K. Hovnanian Developments of California, Inc. |
CA |
22-3303806 |
110 West Front Street |
|||
K. Hovnanian Developments of Connecticut, Inc. |
CT |
20-3920999 |
110 West Front Street |
|||
K. Hovnanian Developments of D.C., Inc. |
DC |
20-2377106 |
110 West Front Street |
|||
K. Hovnanian Developments of Delaware, Inc. |
DE |
20-1528466 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Developments of Georgia, Inc. |
GA | 20-3286085 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Developments of Illinois, Inc. |
IL |
20-2421053 |
110 West Front Street |
|||
K. Hovnanian Developments of Indiana, Inc. |
IN |
20-3278908 |
110 West Front Street |
|||
K. Hovnanian Developments of Kentucky, Inc. |
KY |
20-5156963 |
110 West Front Street |
|||
K. Hovnanian Developments of Maryland, Inc. |
MD |
22-3331045 |
110 West Front Street |
|||
K. Hovnanian Developments of Michigan, Inc. |
MI |
31-1826348 |
110 West Front Street |
|||
K. Hovnanian Developments of Minnesota, Inc. |
MN |
20-1073868 |
110 West Front Street |
|||
K. Hovnanian Developments of New Jersey II, Inc. |
CA |
59-3762294 |
110 West Front Street |
|||
K. Hovnanian Developments of New Jersey, Inc. |
CA |
22-2664563 |
110 West Front Street |
|||
K. Hovnanian Developments of New York, Inc. |
NY |
22-2626492 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Developments of North Carolina, Inc. |
NC | 22-2765939 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Developments of Ohio, Inc. |
OH |
32-0069375 |
110 West Front Street |
|||
K. Hovnanian Developments of Pennsylvania, Inc. |
PA |
22-1097670 |
110 West Front Street |
|||
K. Hovnanian Developments of South Carolina, Inc. |
SC |
58-2659968 |
110 West Front Street |
|||
K. Hovnanian Developments of Texas, Inc. |
TX |
22-3685786 |
110 West Front Street |
|||
K. Hovnanian Developments of Virginia, Inc. |
VA |
22-3188615 |
110 West Front Street |
|||
K. Hovnanian Developments of West Virginia, Inc. |
WV |
31-1826831 |
110 West Front Street |
|||
K. Hovnanian Florida Realty, L.L.C. |
FL |
26-0509482 |
110 West Front Street |
|||
K. Hovnanian Forecast Homes Northern, Inc. |
CA |
20-4996073 |
110 West Front Street |
|||
K. Hovnanian Franciscus Homes, L.L.C. |
VA |
20-3832432 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Homes—DFW, L.L.C. |
TX | 20-5856823 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Homes at Belmont Overlook, L.L.C. |
VA |
26-1345784 |
110 West Front Street |
|||
K. Hovnanian Homes at Cider Mill, L.L.C. |
MD |
26-1345910 |
110 West Front Street |
|||
K. Hovnanian Homes at Greenway Farm Park Towns, L.L.C. |
MD |
20-3921234 |
110 West Front Street |
|||
K. Hovnanian Homes at Greenway Farm, L.L.C. |
MD |
20-3921143 |
110 West Front Street |
|||
K. Hovnanian Homes at Jones Station 1, L.L.C. |
MD |
20-3882481 |
110 West Front Street |
|||
K. Hovnanian Homes at Jones Station 2, L.L.C. |
MD |
20-3882532 |
110 West Front Street |
|||
K. Hovnanian Homes at Nassau Grove, L.L.C. |
DE |
26-1345685 |
110 West Front Street |
|||
K. Hovnanian Homes at Payne Street, L.L.C. |
VA |
20-4215898 |
110 West Front Street |
|||
K. Hovnanian Homes at Primera, L.L.C. |
MD |
20-3749553 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Homes at Victoria Station, L.L.C. |
VA | 26-1345747 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Homes of Georgia, L.L.C. |
GA |
20-4467858 |
110 West Front Street |
|||
K. Hovnanian Homes of Houston, L.L.C. |
TX |
20-5856877 |
110 West Front Street |
|||
K. Hovnanian Homes of Indiana, L.L.C. |
IN |
20-3278918 |
110 West Front Street |
|||
K. Hovnanian Homes of North Carolina, Inc. |
NC |
56-1458833 |
110 West Front Street |
|||
K. Hovnanian Homes of Virginia, Inc. |
VA |
52-0898765 |
110 West Front Street |
|||
K. Hovnanian Hudson Pointe Investments, L.L.C. |
NJ |
20-2695696 |
110 West Front Street |
|||
K. Hovnanian International, L.L.C. |
CA |
20-1906844 |
110 West Front Street |
|||
K. Hovnanian Investments II, L.L.C. |
NJ |
20-2695548 |
110 West Front Street |
|||
K. Hovnanian PA Real Estate, Inc. |
PA |
22-3188608 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian of Houston II, L.L.C. |
TX | 20-5856770 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Poland, SP .Z.O.O. |
INT'L |
22-3376430 |
110 West Front Street |
|||
K. Hovnanian Port Imperial Urban Renewal, Inc. |
NJ |
22-3027956 |
110 West Front Street |
|||
K. Hovnanian Properties of North Brunswick V, Inc. |
NJ |
22-2057907 |
110 West Front Street |
|||
K. Hovnanian Properties of Red Bank, Inc. |
NJ |
22-3092532 |
110 West Front Street |
|||
K. Hovnanian Standing Entity, L.L.C. |
FL |
20-2751668 |
110 West Front Street |
|||
K. Hovnanian Summit Homes of Kentucky, L.L.C. |
KY |
20-5166566 |
110 West Front Street |
|||
K. Hovnanian T&C Homes at Florida, L.L.C. |
FL |
20-2387167 |
110 West Front Street |
|||
K. Hovnanian T&C Homes at Illinois, L.L.C. |
IL |
20-2421114 |
110 West Front Street |
|||
K. Hovnanian T&C Homes at Minnesota, L.L.C. |
MN |
20-2383651 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Venture I, L.L.C. |
NJ | 02-0572173 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian's Four Seasons at Bailey's Glenn, L.L.C. |
NC |
26-1180295 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at Beaumont, LLC |
CA |
31-1823029 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at Charlottesville, L.L.C. |
VA |
20-3375037 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at Hamptonburgh, L.L.C. |
NY |
26-1346213 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at Huntfield, L.L.C. |
WV |
20-3375034 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at New Kent Vineyards, L.L.C. |
VA |
20-3375087 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at Olde Liberty, L.L.C. |
NC |
20-8190485 |
110 West Front Street |
|||
K. Hovnanian's Four Seasons at Renaissance, L.L.C. |
NC |
20-8190357 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian's Four Seasons at Rush Creek, L.L.C. |
MN | 20-3923972 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian's Parkside at Towngate, L.L.C. |
CA |
20-3158839 |
110 West Front Street |
|||
KHC Acquisition, Inc. |
CA |
22-3303802 |
110 West Front Street |
|||
Landarama, Inc. |
NJ |
22-1978612 |
110 West Front Street |
|||
M & M at Kensington Woods, L.L.C. |
NJ |
31-1819907 |
110 West Front Street |
|||
M & M at Long Branch, Inc. |
NJ |
22-3359254 |
110 West Front Street |
|||
M&M at Copper Beech, L.L.C. |
NJ |
20-5355079 |
110 West Front Street |
|||
M&M at Crescent Court, L.L.C. |
NJ |
20-5085522 |
110 West Front Street |
|||
M&M at East Rutherford, L.L.C. |
NJ |
20-4514649 |
110 West Front Street |
|||
M&M at Station Square L.L.C. |
NJ |
20-8354517 |
110 West Front Street |
|||
M&M at The Chateau, L.L.C. |
NJ |
20-3375109 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
M&M at Union, L.L.C. |
NJ | 26-1628832 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
M&M at Westport, L.L.C. |
NJ |
20-3494593 |
110 West Front Street |
|||
MCNJ, Inc. |
NJ |
22-2722906 |
110 West Front Street |
|||
Midwest Building Products & Contractor Services of Kentucky, L.L.C. |
KY |
20-5166559 |
110 West Front Street |
|||
Midwest Building Products & Contractor Services of Michigan, L.L.C. |
MI |
20-5065088 |
110 West Front Street |
|||
Midwest Building Products & Contractor Services of Pennsylvania, L.L.C. |
PA |
20-5071295 |
110 West Front Street |
|||
Midwest Building Products & Contractor Services of West Virginia, L.L.C. |
WV |
20-5065126 |
110 West Front Street |
|||
Millennium Title Agency, LTD |
OH |
34-1921771 |
110 West Front Street |
|||
Natomas Central Neighborhood Housing, L.L.C. |
CA |
20-3882414 |
110 West Front Street |
|||
New Land Title Agency, L.L.C. |
AZ |
26-0598590 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
Park Title Company, LLC |
TX | 20-1293533 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
PI Investments II, L.L.C. |
DE |
20-2695596 |
110 West Front Street |
|||
Ridgemore Utility Associates of Pennsylvania, L.L.C. |
PA |
20-4202417 |
110 West Front Street |
|||
Seabrook Accumulation Corporation |
CA |
33-0989615 |
110 West Front Street |
|||
Stonebrook Homes, Inc. |
CA |
33-0553884 |
110 West Front Street |
|||
Terrapin Realty, L.L.C. |
NJ |
20-4415708 |
110 West Front Street |
|||
The Matzel & Mumford Organization, Inc. |
NJ |
22-3670677 |
110 West Front Street |
|||
Washington Homes, Inc. |
DE |
22-3774737 |
110 West Front Street |
|||
Westminster Homes of Tennessee, Inc. |
TN |
52-1973363 |
110 West Front Street |
|||
Westminster Homes, Inc. |
NC |
52-1874680 |
110 West Front Street |
|||
WH Land I, Inc. |
MD |
52-2073468 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
WH Properties, Inc. |
MD | 52-1662973 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
WH/PR Land Company, L.L.C. |
DE |
52-0818872 |
110 West Front Street |
|||
Hovnanian Land Investment Group, L.L.C. |
MD |
20-0581911 |
110 West Front Street |
|||
Hovnanian Land Investment Group of California, L.L.C. |
CA |
20-1471139 |
110 West Front Street |
|||
Hovnanian Land Investment Group of Florida, L.L.C. |
FL |
20-1379037 |
110 West Front Street |
|||
Hovnanian Land Investment Group of Maryland, L.L.C. |
MD |
20-1446859 |
110 West Front Street |
|||
Hovnanian Land Investment Group of New Jersey, L.L.C. |
NJ |
20-3002580 |
110 West Front Street |
|||
Hovnanian Land Investment Group of North Carolina, L.L.C. |
NC |
20-1309025 |
110 West Front Street |
|||
Hovnanian Land Investment Group of Texas, L.L.C. |
TX |
20-1442111 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
Hovnanian Land Investment Group of Virginia, L.L.C. |
VA | 20-1020023 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at 4S, L.L.C. |
CA |
73-1638455 |
110 West Front Street |
|||
K. Hovnanian at Acqua Vista, L.L.C. |
CA |
20-0464160 |
110 West Front Street |
|||
K. Hovnanian at Aliso, L.L.C. |
CA |
20-1218567 |
110 West Front Street |
|||
K. Hovnanian at Allentown, L.L.C. |
PA |
20-3215910 |
110 West Front Street |
|||
K. Hovnanian at Arbor Heights, LLC |
CA |
33-0890775 |
110 West Front Street |
|||
K. Hovnanian at Avenue One, L.L.C. |
CA |
65-1161801 |
110 West Front Street |
|||
K. Hovnanian at Barnegat I, L.L.C. |
NJ |
22-3804316 |
110 West Front Street |
|||
K. Hovnanian at Barnegat II, L.L.C. |
NJ |
20-3030275 |
110 West Front Street |
|||
K. Hovnanian at Bella Lago, L.L.C. |
CA |
20-1218576 |
110 West Front Street |
|||
K. Hovnanian at Berkeley, L.L.C. |
NJ |
22-3644632 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Bernards V, L.L.C. |
DE | 22-3618587 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Blue Heron Pines, L.L.C. |
NJ |
22-3630449 |
110 West Front Street |
|||
K. Hovnanian at Bridgewater I, L.L.C. |
NJ |
31-1820703 |
110 West Front Street |
|||
K. Hovnanian at Bridlewood, L.L.C. |
CA |
20-1454077 |
110 West Front Street |
|||
K. Hovnanian at Camden I, L.L.C. |
NJ |
22-3845575 |
110 West Front Street |
|||
K. Hovnanian at Capistrano, L.L.C. |
CA |
20-1618465 |
110 West Front Street |
|||
K. Hovnanian at Carmel Village, L.L.C. |
CA |
52-2147831 |
110 West Front Street |
|||
K. Hovnanian at Cedar Grove III, L.L.C. |
NJ |
22-3818491 |
110 West Front Street |
|||
K. Hovnanian at Cedar Grove IV, L.L.C. |
NJ |
20-1185029 |
110 West Front Street |
|||
K. Hovnanian at Chester I, L.L.C. |
DE |
22-3618347 |
110 West Front Street |
|||
K. Hovnanian at Chesterfield, L.L.C. |
NJ |
20-0916310 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Clifton II, L.L.C. |
NJ | 22-3862906 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Clifton, L.L.C. |
NJ |
22-3655976 |
110 West Front Street |
|||
K. Hovnanian at Cortez Hill, L.L.C. |
CA |
31-1822959 |
110 West Front Street |
|||
K. Hovnanian at Cranbury, L.L.C. |
NJ |
22-3814347 |
110 West Front Street |
|||
K. Hovnanian at Curries Woods, L.L.C. |
NJ |
22-3776466 |
110 West Front Street |
|||
K. Hovnanian at Denville, L.L.C. |
NJ |
03-0436512 |
110 West Front Street |
|||
K. Hovnanian at Deptford Township, L.L.C. |
NJ |
20-1254802 |
110 West Front Street |
|||
K. Hovnanian at Dover, L.L.C. |
NJ |
20-3072574 |
110 West Front Street |
|||
K. Hovnanian at Eastlake, LLC |
CA |
31-1820096 |
110 West Front Street |
|||
K. Hovnanian at Edgewater II, L.L.C. |
NJ |
20-0374534 |
110 West Front Street |
|||
K. Hovnanian at Edgewater, L.L.C. |
NJ |
31-1825623 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Egg Harbor Township, L.L.C. |
NJ | 31-1826606 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Egg Harbor Township II, L.L.C. |
NJ |
20-3158355 |
110 West Front Street |
|||
K. Hovnanian at Encinitas Ranch, L.L.C. |
CA |
33-0890770 |
110 West Front Street |
|||
K. Hovnanian at Florence I, L.L.C. |
NJ |
20-0982613 |
110 West Front Street |
|||
K. Hovnanian at Florence II, L.L.C. |
NJ |
20-0982631 |
110 West Front Street |
|||
K. Hovnanian at Forest Meadows, L.L.C. |
NJ |
16-1639755 |
110 West Front Street |
|||
K. Hovnanian at Franklin, L.L.C. |
NJ |
20-1822595 |
110 West Front Street |
|||
K. Hovnanian at Freehold Township, L.L.C. |
NJ |
31-1819075 |
110 West Front Street |
|||
K. Hovnanian at Gaslamp Square, L.L.C. |
CA |
20-1454058 |
110 West Front Street |
|||
K. Hovnanian at Great Notch, L.L.C. |
NJ |
31-1819076 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Guttenberg, L.L.C. |
NJ | 22-3653007 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Hackettstown II, L.L.C. |
NJ |
20-0412492 |
110 West Front Street |
|||
K. Hovnanian at Hamburg Contractors, L.L.C. |
NJ |
22-3814175 |
110 West Front Street |
|||
K. Hovnanian at Hamburg, L.L.C. |
NJ |
22-3795544 |
110 West Front Street |
|||
K. Hovnanian at Hawthorne, L.L.C. |
NJ |
20-0946954 |
110 West Front Street |
|||
K. Hovnanian at Highland Shores, L.L.C. |
MN |
20-2705991 |
110 West Front Street |
|||
K. Hovnanian at Highwater, L.L.C. |
CA |
20-1454037 |
110 West Front Street |
|||
K. Hovnanian at Jackson I, L.L.C. |
NJ |
56-2290802 |
110 West Front Street |
|||
K. Hovnanian at Jackson, L.L.C. |
NJ |
22-3630450 |
110 West Front Street |
|||
K. Hovnanian at Jersey City IV, L.L.C. |
NJ |
22-3655974 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Jersey City V Urban Renewal Company, L.L.C. |
NJ | 31-1818646 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at King Farm, L.L.C. |
MD |
22-3647924 |
110 West Front Street |
|||
K. Hovnanian at La Costa, L.L.C. |
CA |
31-1820094 |
110 West Front Street |
|||
K. Hovnanian at La Habra Knolls, LLC |
CA |
31-1819908 |
110 West Front Street |
|||
K. Hovnanian at Lafayette Estates, L.L.C. |
NJ |
22-3658926 |
110 West Front Street |
|||
K. Hovnanian at Lake Ridge Crossing, L.L.C. |
VA |
22-3778537 |
110 West Front Street |
|||
K. Hovnanian at Lake Terrapin, L.L.C. |
VA |
22-3647920 |
110 West Front Street |
|||
K. Hovnanian at Lawrence V, L.L.C. |
DE |
22-3638073 |
110 West Front Street |
|||
K. Hovnanian at Linwood, L.L.C. |
NJ |
22-3663731 |
110 West Front Street |
|||
K. Hovnanian at Little Egg Harbor Township II, L.L.C. |
NJ |
20-2689884 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Little Egg Harbor Contractors, L.L.C. |
NJ | 22-3832077 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Little Egg Harbor, L.L.C. |
NJ |
22-3795535 |
110 West Front Street |
|||
K. Hovnanian at Long Branch I, L.L.C. |
NJ |
56-2308030 |
110 West Front Street |
|||
K. Hovnanian at Lower Macungie Township I, L.L.C. |
PA |
51-0427582 |
110 West Front Street |
|||
K. Hovnanian at Lower Macungie Township II, L.L.C. |
PA |
65-1161803 |
110 West Front Street |
|||
K. Hovnanian at Lower Makefield Township I, L.L.C. |
PA |
22-3887471 |
110 West Front Street |
|||
K. Hovnanian at Lower Moreland I, L.L.C. |
PA |
22-3785544 |
110 West Front Street |
|||
K. Hovnanian at Lower Moreland II, L.L.C. |
PA |
22-3785539 |
110 West Front Street |
|||
K. Hovnanian at Manalapan III, L.L.C. |
NJ |
31-1819073 |
110 West Front Street |
|||
K. Hovnanian at Mansfield I, LLC |
DE |
22-3556345 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Mansfield II, LLC |
DE | 22-3556346 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Mansfield III, L.L.C. |
NJ |
22-3683839 |
110 West Front Street |
|||
K. Hovnanian at Marlboro Township IX, L.L.C. |
NJ |
20-1005879 |
110 West Front Street |
|||
K. Hovnanian at Marlboro Township V, L.L.C. |
NJ |
31-1819074 |
110 West Front Street |
|||
K. Hovnanian at Marlboro Township VIII, L.L.C. |
NJ |
22-3802594 |
110 West Front Street |
|||
K. Hovnanian at Marlboro VI, L.L.C. |
NJ |
22-3791976 |
110 West Front Street |
|||
K. Hovnanian at Marlboro VII, L.L.C. |
NJ |
22-3791977 |
110 West Front Street |
|||
K. Hovnanian at Mendham Township, L.L.C. |
NJ |
20-2033800 |
110 West Front Street |
|||
K. Hovnanian at Menifee, L.L.C. |
CA |
52-2147832 |
110 West Front Street |
|||
K. Hovnanian at Menifee Valley Condominiums, L.L.C. |
CA |
20-1618446 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Middle Township, L.L.C. |
NJ | 03-0473330 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Middletown II, L.L.C. |
NJ |
04-3695371 |
110 West Front Street |
|||
K. Hovnanian at Middletown, L.L.C. |
DE |
22-3630452 |
110 West Front Street |
|||
K. Hovnanian at Millville I, L.L.C. |
NJ |
20-1562308 |
110 West Front Street |
|||
K. Hovnanian at Millville II, L.L.C. |
NJ |
20-2221380 |
110 West Front Street |
|||
K. Hovnanian at Millville III, L.L.C. |
NJ |
20-2977971 |
110 West Front Street |
|||
K. Hovnanian at Monroe III, L.L.C. |
NJ |
20-0876393 |
110 West Front Street |
|||
K. Hovnanian at Monroe IV, L.L.C. |
NJ |
20-2364423 |
110 West Front Street |
|||
K. Hovnanian at Montvale, L.L.C. |
NJ |
20-1584680 |
110 West Front Street |
|||
K. Hovnanian at Mosaic, LLC |
CA |
55-0820915 |
110 West Front Street |
|||
K. Hovnanian at Mt. Olive Township, L.L.C. |
NJ |
22-3813043 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at New Windsor, L.L.C. |
NY | 20-3158568 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at North Bergen, L.L.C. |
NJ |
31-1818663 |
110 West Front Street |
|||
K. Hovnanian at North Brunswick VI, L.L.C. |
DE |
22-3627814 |
110 West Front Street |
|||
K. Hovnanian at North Caldwell II, L.L.C. |
NJ |
20-1185057 |
110 West Front Street |
|||
K. Hovnanian at North Caldwell, L.L.C. |
NJ |
20-0412508 |
110 West Front Street |
|||
K. Hovnanian at North Haledon, L.L.C. |
NJ |
22-3770598 |
110 West Front Street |
|||
K. Hovnanian at North Wildwood, L.L.C. |
NJ |
59-3769684 |
110 West Front Street |
|||
K. Hovnanian at Northampton. L.L.C. |
PA |
22-3785527 |
110 West Front Street |
|||
K. Hovnanian at Northfield, L.L.C. |
NJ |
22-3665826 |
110 West Front Street |
|||
K. Hovnanian at Old Bridge, L.L.C. |
NJ |
55-0787042 |
110 West Front Street |
|||
K. Hovnanian at Olde Orchard, LLC |
CA |
51-0453906 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Pacific Bluffs, L.L.C. |
CA | 33-0890774 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Paramus, L.L.C. |
NJ |
22-3687884 |
110 West Front Street |
|||
K. Hovnanian at Park Lane, L.L.C. |
CA |
33-0896285 |
110 West Front Street |
|||
K. Hovnanian at Parsippany-Troy Hills, L.L.C. |
NJ |
20-2769490 |
110 West Front Street |
|||
K. Hovnanian at Philadelphia III, L.L.C. |
PA |
20-3216099 |
110 West Front Street |
|||
K. Hovnanian at Philadelphia IV, L.L.C. |
PA |
20-3216000 |
110 West Front Street |
|||
K. Hovnanian at Pittsgrove, L.L.C. |
NJ |
20-1562254 |
110 West Front Street |
|||
K. Hovnanian at Prado, L.L.C. |
CA |
20-3158762 |
110 West Front Street |
|||
K. Hovnanian at Rancho Santa Margarita, L.L.C. |
CA |
33-0890773 |
110 West Front Street |
|||
K. Hovnanian at Randolph I, L.L.C. |
NJ |
01-0712196 |
110 West Front Street |
|||
K. Hovnanian at Rapho, L.L.C. |
PA |
20-2293515 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Readington II, L.L.C. |
NJ | 31-1818662 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Red Bank, L.L.C. |
NJ |
20-2489028 |
110 West Front Street |
|||
K. Hovnanian at Riverbend, L.L.C. |
CA |
33-0890777 |
110 West Front Street |
|||
K. Hovnanian at Roderuck, L.L.C. |
MD |
22-3756336 |
110 West Front Street |
|||
K. Hovnanian at Rosemary Lantana, L.L.C. |
CA |
20-1786974 |
110 West Front Street |
|||
K. Hovnanian at Rowland Heights, L.L.C. |
CA |
22-2147833 |
110 West Front Street |
|||
K. Hovnanian at Sayreville, L.L.C. |
NJ |
22-3815459 |
110 West Front Street |
|||
K. Hovnanian at Smithville III, L.L.C. |
NJ |
31-1818661 |
110 West Front Street |
|||
K. Hovnanian at Somers Point, LLC |
NJ |
16-1639761 |
110 West Front Street |
|||
K. Hovnanian at South Brunswick, L.L.C. |
NJ |
01-0618098 |
110 West Front Street |
|||
K. Hovnanian at Springco, L.L.C. |
NJ |
65-1161805 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Springfield, L.L.C. |
NJ | 20-2892866 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Sunsets, L.L.C. |
CA |
33-0890768 |
110 West Front Street |
|||
K. Hovnanian at Teaneck, L.L.C. |
NJ |
20-1584240 |
110 West Front Street |
|||
K. Hovnanian at the Crosby, L.L.C. |
CA |
20-0936364 |
110 West Front Street |
|||
K. Hovnanian at the Gables, L.L.C. |
CA |
33-0890769 |
110 West Front Street |
|||
K. Hovnanian at The Preserve, L.L.C. |
CA |
20-1337079 |
110 West Front Street |
|||
K. Hovnanian at Thompson Ranch, L.L.C. |
CA |
20-1599518 |
110 West Front Street |
|||
K. Hovnanian at Trail Ridge, L.L.C. |
CA |
33-0990615 |
110 West Front Street |
|||
K. Hovnanian at Union Township II, L.L.C. |
NJ |
20-2828805 |
110 West Front Street |
|||
K. Hovnanian at Upper Freehold Township II, L.L.C. |
NJ |
22-3655975 |
110 West Front Street |
|||
K. Hovnanian at Upper Freehold Township III, L.L.C. |
NJ |
22-3666680 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Upper Uwchlan II, L.L.C. |
PA | 31-1820731 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Upper Uwchlan, L.L.C. |
PA |
59-3763798 |
110 West Front Street |
|||
K. Hovnanian at Vineland, L.L.C. |
NJ |
34-1997435 |
110 West Front Street |
|||
K. Hovnanian at Wanaque, L.L.C. |
DE |
22-3626037 |
110 West Front Street |
|||
K. Hovnanian at Warren Township, L.L.C. |
NJ |
20-2594932 |
110 West Front Street |
|||
K. Hovnanian at Washington, L.L.C. |
NJ |
22-3743403 |
110 West Front Street |
|||
K. Hovnanian at Wayne IX, L.L.C. |
NJ |
22-3828775 |
110 West Front Street |
|||
K. Hovnanian at Wayne VIII, L.L.C. |
DE |
22-3618348 |
110 West Front Street |
|||
K. Hovnanian at West Bradford, L.L.C. |
PA |
20-2560211 |
110 West Front Street |
|||
K. Hovnanian at West Milford, L.L.C. |
NJ |
22-3740951 |
110 West Front Street |
|||
K. Hovnanian at West Windsor, L.L.C. |
DE |
22-3618242 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian at Willow Brook, L.L.C. |
MD | 22-3709105 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian at Winchester, L.L.C. |
CA |
52-2147836 |
110 West Front Street |
|||
K. Hovnanian at Woodhill Estates, L.L.C. |
NJ |
01-0550781 |
110 West Front Street |
|||
K. Hovnanian at Woolwich I, L.L.C. |
NJ |
22-3828777 |
110 West Front Street |
|||
K. Hovnanian Cambridge Homes, L.L.C. |
FL |
20-2387077 |
110 West Front Street |
|||
K. Hovnanian Central Acquisitions, L.L.C. |
DE |
22-3556343 |
110 West Front Street |
|||
K. Hovnanian Companies of Metro D.C. North, L.L.C. |
MD |
22-3683159 |
110 West Front Street |
|||
K. Hovnanian Companies, LLC |
CA |
59-3762298 |
110 West Front Street |
|||
K. Hovnanian Eastern Pennsylvania, L.L.C. |
PA |
04-3630089 |
110 West Front Street |
|||
K. Hovnanian First Homes, L.L.C. |
FL |
20-3198237 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Four Seasons at Historic Virginia, L.L.C. |
VA | 22-3647925 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Four Seasons at Gold Hill, L.L.C. |
SC |
31-1820161 |
110 West Front Street |
|||
K. Hovnanian Great Western Building Company, L.L.C. |
AZ |
31-1825443 |
110 West Front Street |
|||
K. Hovnanian Great Western Homes, L.L.C. |
AZ |
31-1825441 |
110 West Front Street |
|||
K. Hovnanian Holdings NJ, L.L.C. |
NJ |
02-0651173 |
110 West Front Street |
|||
K. Hovnanian Homes at Cameron Station, L.L.C. |
VA |
20-1169628 |
110 West Front Street |
|||
K. Hovnanian Homes at Camp Springs, L.L.C. |
MD |
20-0812020 |
110 West Front Street |
|||
K. Hovnanian Homes at Fairwood, L.L.C. |
MD |
47-0880125 |
110 West Front Street |
|||
K. Hovnanian Homes at Forest Run, L.L.C. |
MD |
20-0812109 |
110 West Front Street |
|||
K. Hovnanian Homes at Maxwell Place, L.L.C. |
MD |
37-1493190 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Homes at Renaissance Plaza, L.L.C. |
MD | 20-0364144 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Homes at Russett, L.L.C. |
MD |
20-1526150 |
110 West Front Street |
|||
K. Hovnanian Homes of D.C., L.L.C. |
DC |
20-2377153 |
110 West Front Street |
|||
K. Hovnanian Homes of Delaware, L.L.C. |
DE |
20-1528482 |
110 West Front Street |
|||
K. Hovnanian Homes of Maryland, L.L.C. |
MD |
01-0737098 |
110 West Front Street |
|||
K. Hovnanian Homes of Minnesota, L.L.C. |
MN |
20-1200484 |
110 West Front Street |
|||
K. Hovnanian Homes of Pennsylvania, L.L.C. |
PA |
20-2376938 |
110 West Front Street |
|||
K. Hovnanian Homes of South Carolina, L.L.C. |
SC |
58-2660293 |
110 West Front Street |
|||
K. Hovnanian Homes of West Virginia, L.L.C. |
WV |
20-2828654 |
110 West Front Street |
|||
K. Hovnanian North Central Acquisitions, L.L.C. |
DE |
22-3554986 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian North Jersey Acquisitions, L.L.C. |
DE | 22-3556344 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
K. Hovnanian Northeast Services, L.L.C. |
NJ |
16-1639452 |
110 West Front Street |
|||
K. Hovnanian Ohio Realty, L.L.C. |
OH |
32-0069376 |
110 West Front Street |
|||
K. Hovnanian Oster Homes, L.L.C. |
OH |
20-3198273 |
110 West Front Street |
|||
K. Hovnanian Pennsylvania Acquisitions, L.L.C. |
PA |
54-2064618 |
110 West Front Street |
|||
K. Hovnanian Shore Acquisitions, L.L.C. |
DE |
22-3556342 |
110 West Front Street |
|||
K. Hovnanian South Jersey Acquisitions, L.L.C. |
DE |
22-3556341 |
110 West Front Street |
|||
K. Hovnanian Southern New Jersey, L.L.C. |
NJ |
01-0648280 |
110 West Front Street |
|||
K. Hovnanian Summit Holdings, L.L.C. |
VA |
31-1818027 |
110 West Front Street |
|||
K. Hovnanian Summit Homes of Michigan, L.L.C. |
MI |
31-1826351 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
K. Hovnanian Summit Homes of Pennsylvania, L.L.C. |
PA | 20-0310776 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
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K. Hovnanian Summit Homes of West Virginia, L.L.C. |
WV |
31-1826832 |
110 West Front Street |
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K. Hovnanian Summit Homes, L.L.C. |
OH |
32-0069379 |
110 West Front Street |
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K. Hovnanian T & C Investment, L.L.C. |
NJ |
20-2364394 |
110 West Front Street |
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K. Hovnanian T & C Management Co., L.L.C. |
CA |
20-2393546 |
110 West Front Street |
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K. Hovnanian Windward Homes, L.L.C. |
FL |
20-0301995 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Ashburn Village, L.L.C. |
VA |
20-0385213 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Bakersfield, L.L.C. |
CA |
20-1454116 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Dulles Discovery Condominium, L.L.C. |
VA |
20-1442155 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
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|---|---|---|---|---|---|---|
K. Hovnanian's Four Seasons at Dulles Discovery, L.L.C. |
VA | 20-1169675 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
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K. Hovnanian's Four Seasons at Hemet, L.L.C. |
CA |
47-0884181 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Kent Island, L.L.C. |
MD |
22-3668315 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Kent Island Condominiums, L.L.C. |
MD |
20-1727101 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Menifee Valley, L.L.C. |
CA |
20-1454143 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Palm Springs, L.L.C. |
CA |
57-1145579 |
110 West Front Street |
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K. Hovnanian's Four Seasons at St. Margarets Landing, L.L.C. |
MD |
22-3688864 |
110 West Front Street |
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K. Hovnanian's Four Seasons at Vint Hill, L.L.C. |
VA |
31-1828049 |
110 West Front Street |
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K. Hovnanian's Four Seasons, L.L.C. |
CA |
52-2147837 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
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|---|---|---|---|---|---|---|
K. Hovnanian's Private Home Portfolio, L.L.C. |
NJ | 22-3766856 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
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KHIP, LLC |
NJ |
01-0752776 |
110 West Front Street |
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M&M at Apple Ridge, L.L.C. |
NJ |
22-3824654 |
110 West Front Street |
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M&M at Chesterfield, LLC |
NJ |
56-2290506 |
110 West Front Street |
|||
M&M at East Mill, L.L.C. |
NJ |
80-0036068 |
110 West Front Street |
|||
M&M at Morristown, L.L.C. |
NJ |
22-3834775 |
110 West Front Street |
|||
M&M at Sheridan, L.L.C. |
NJ |
22-3825357 |
110 West Front Street |
|||
M&M at Spinnaker Pointe, L.L.C. |
NJ |
22-3825041 |
110 West Front Street |
|||
M&M at Spruce Hollow, L.L.C. |
NJ |
22-3825064 |
110 West Front Street |
|||
M&M at Spruce Run, L.L.C. |
NJ |
22-3825037 |
110 West Front Street |
|||
M&M at Tamarack Hollow, L.L.C. |
NJ |
20-2033836 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
M&M at The Highlands, L.L.C. |
NJ | 22-3824649 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
M&M at West Orange, L.L.C. |
NJ |
55-0820919 |
110 West Front Street |
|||
M&M at Wheatena Urban Renewal, L.L.C. |
NJ |
20-1516521 |
110 West Front Street |
|||
Matzel & Mumford at Egg Harbor, L.L.C. |
NJ |
20-1706817 |
110 West Front Street |
|||
Matzel & Mumford at Montgomery, L.L.C. |
NJ |
22-3500542 |
110 West Front Street |
|||
Matzel & Mumford at South Bound Brook Urban Renewal, L.L.C. |
NJ |
20-0489677 |
110 West Front Street |
|||
Midwest Building Products & Contractor Services, L.L.C |
OH |
20-2882866 |
110 West Front Street |
|||
MMIP, L.L.C. |
NJ |
02-0651174 |
110 West Front Street |
|||
Paddocks, L.L.C. |
MD |
20-0027663 |
110 West Front Street |
|||
Pine Ayr, L.L.C. |
MD |
20-2229495 |
110 West Front Street |
Exact Name of Registrant As Specified in Its Charter |
State or Other Jurisdiction of Incorporation or Organization |
IRS Employer Identification Number |
Address Including Zip Code, and Telephone Number Including Area Code, of Registrant's Principal Executive Offices |
|||
|---|---|---|---|---|---|---|
Ridgemore Utility, L.L.C. |
MD | 31-1820672 | 110 West Front Street P.O. Box 500 Red Bank, New Jersey 07701 732-747-7800 |
|||
The Landings at Spinnaker Pointe, L.L.C. |
NJ |
22-3825040 |
110 West Front Street |
|||
Washington Homes at Columbia Town Center, LLC |
MD |
22-3757772 |
110 West Front Street |
|||
Westminster Homes of Alabama, L.L.C. |
MD |
63-1222540 |
110 West Front Street |
|||
Westminster Homes of Mississippi, L.L.C. |
MS |
64-0907820 |
110 West Front Street |
|||
Woodland Lakes Condos at Bowie Newtown, L.L.C. |
MD |
06-1643401 |
110 West Front Street |
|||
K. Hovnanian of Houston, L.P. |
TX |
01-0750780 |
110 West Front Street |
|||
M&M Investments, L.P. |
NJ |
22-3685183 |
110 West Front Street |
Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
Subject to completion, dated September 19, 2008
PRELIMINARY PROSPECTUS
$600,000,000
K. Hovnanian Enterprises, Inc.
Guaranteed by
Hovnanian Enterprises, Inc.
Offer to Exchange All Outstanding
111/2% Senior Secured Notes due 2013
($600,000,000 aggregate principal amount outstanding)
for 111/2% Senior Secured Notes due 2013, which have been registered
under the Securities Act of 1933
The Exchange Offer Will Expire at 5:00 p.m., New York City Time, on , 2008, Unless Extended
The Exchange Offer:
- •
- We will exchange all outstanding notes that are validly tendered and not validly withdrawn for an equal principal amount
of exchange notes that are freely tradeable.
- •
- You may withdraw tenders of outstanding notes at any time prior to the expiration date of the exchange offer.
- •
- The exchange offer expires at 5:00 p.m., New York City time,
on , 2008, unless extended. We do
not
currently intend to extend the expiration date.
- •
- The exchange of outstanding notes for exchange notes in the exchange offer will not be a taxable event for U.S. federal
income tax purposes.
- •
- We will not receive any proceeds from the exchange offer.
The
Exchange Notes:
- •
- The exchange notes are being offered in order to satisfy some of our obligations under the registration rights agreement
entered into in connection with the placement of the outstanding notes.
- •
- The terms of the exchange notes to be issued in the exchange offer are substantially identical to the outstanding notes, except that the exchange notes will be freely tradeable.
Resales
of Exchange Notes:
- •
- The exchange notes may be sold in the over-the counter market, in negotiated transactions or through a combination of such methods. We do not plan to list the exchange notes on a national market.
You should consider carefully the "Risk Factors" beginning on page 14 of this prospectus before participating in the exchange offer.
Each broker-dealer that receives exchange notes for its own account in the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of those exchange notes. The letter of transmittal states that, by so acknowledging and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act of 1933.
This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding notes where the outstanding notes were acquired by the broker-dealer as a result of market-making activities or other trading activities.
We have agreed that, for a period of up to 180 days after the consummation of this exchange offer, we will use our best efforts to make this prospectus available to any broker-dealer for use in connection with the resale of exchange notes. See "Plan of Distribution."
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the exchange notes to be distributed in the exchange offer or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
This prospectus is dated , 2008.
| |
Page | |
|---|---|---|
Prospectus Summary |
1 | |
Risk Factors |
14 | |
Ratio of Earnings to Fixed Charges |
30 | |
Use of Proceeds |
31 | |
Capitalization |
32 | |
Selected Historical Consolidated Financial Data |
33 | |
The Exchange Offer |
34 | |
Description of Notes |
46 | |
Exchange Offer; Registration Rights |
88 | |
Book-Entry, Delivery and Form |
91 | |
United States Federal Income Tax Consequences of the Exchange Offer |
94 | |
Plan of Distribution |
95 | |
Legal Matters |
96 | |
Experts |
96 | |
Available Information |
96 | |
Incorporation of Certain Documents by Reference |
96 |
The information contained in this prospectus speaks only as of the date of this prospectus unless the information specifically indicates that another date applies. No dealer, salesperson or other person has been authorized to give any information or to make any representations other than those contained in this prospectus in connection with the offer contained herein and, if given or made, such information or representations must not be relied upon as having been authorized by us. Neither the delivery of this prospectus nor any sale made hereunder shall under any circumstances create an implication that there has been no change in our affairs or that of our subsidiaries since the date hereof.
In
this prospectus and except as the context otherwise requires or indicates:
- •
- "Issuer" or "K. Hovnanian" means K. Hovnanian Enterprises, Inc., a California corporation;
- •
- "Hovnanian," "us," "we," "our" or "Company" means Hovnanian Enterprises, Inc., a Delaware corporation, together
with its consolidated subsidiaries, including K. Hovnanian;
- •
- "Revolving Credit Agreement" means our Seventh Amended and Restated Credit Agreement dated as of March 7, 2008,
as
amended by Amendment No. 1 thereto dated as of May 16, 2008; and
- •
- "notes" means both the outstanding notes and the exchange notes offered hereby.
This prospectus incorporates important business and financial information about the company that is not included in or delivered with the document. Hovnanian will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the information incorporated by reference in this prospectus, other than exhibits to such information (unless such exhibits are specifically incorporated by reference into the information that this prospectus incorporates). Requests for such copies should be directed to Paul W. Buchanan, Senior Vice President and Chief Accounting Officer, Hovnanian Enterprises, Inc., 110 West Front Street, P.O. Box 500, Red Bank, New Jersey 07701, (telephone:
i
(732) 747-7800). To obtain timely delivery, security holders must request the information no later than five business days before , 2008, the expiration date of the exchange offer.
This prospectus includes "forward-looking statements" including, in particular, the statements about our plans, strategies and prospects. Such statements involve known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Although we believe that our plans, intentions and expectations reflected in, or suggested by such forward-looking statements are reasonable, we can give no assurance that such plans, intentions or expectations will be achieved. Such risks, uncertainties and other factors include, but are not limited to, (1) changes in general and local economic and industry and business conditions, (2) adverse weather conditions and natural disasters, (3) changes in market conditions and seasonality of the Company's business, (4) changes in home prices and sales activity in the markets where the Company builds homes, (5) government regulation, including regulations concerning development of land, the home building, sales and customer financing process, and the environment, (6) fluctuations in interest rates and the availability of mortgage financing, (7) shortages in, and price fluctuations of, raw materials and labor, (8) the availability and cost of suitable land and improved lots, (9) levels of competition, (10) availability of financing to the Company, (11) utility shortages and outages or rate fluctuations, (12) levels of indebtedness and restrictions on the Company's operations and activities imposed by the agreements governing the Company's outstanding indebtedness; (13) operations through joint ventures with third parties; (14) product liability litigation and warranty claims; (15) successful identification and integration of acquisitions; (16) significant influence of the Company's controlling stockholders; (17) geopolitical risks, terrorist acts and other acts of war; and (18) other factors described in detail in our Form 10-K for the year ended October 31, 2007 and in this prospectus under "Risk Factors". All forward-looking statements attributable to the Company or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements and risk factors contained throughout this prospectus. Except as otherwise required by applicable securities laws, we undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events, changed circumstances or any other reason.
ii
The following summary contains information about Hovnanian and the exchange offer. It does not contain all of the information that may be important to you in making a decision to participate in the exchange offer. For a more complete understanding of Hovnanian and the exchange offer, we urge you to read this prospectus carefully, including the "Risk Factors" section and our financial statements and the notes to those statements incorporated by reference herein.
The Company
We design, construct, market and sell single-family detached homes, attached townhomes and condominiums, mid-rise and high-rise condominiums, urban infill and active adult homes in planned residential developments and are one of the nation's largest builders of residential homes. Founded in 1959 by Kevork Hovnanian, Hovnanian Enterprises, Inc. was incorporated in New Jersey in 1967 and reincorporated in Delaware in 1983. Since the incorporation of our predecessor company and including unconsolidated joint ventures, we have delivered in excess of 277,000 homes, including 8,802 homes in the nine months ended July 31, 2008. The Company consists of two distinct operations: homebuilding and financial services. Our homebuilding operations consist of six segments: Northeast, Mid-Atlantic, Midwest, Southeast, Southwest and West. Our financial services operations provide mortgage loans and title services to the customers of our homebuilding operations.
We are currently, excluding unconsolidated joint ventures, offering homes for sale in 354 communities in 44 markets in 18 states throughout the United States. We market and build homes for first-time buyers, first-time and second-time move-up buyers, luxury buyers, active adult buyers and empty nesters. We offer a variety of home styles at base prices ranging from $36,000 (low income housing) to $3,000,000 with an average sales price, including options, of $338,000 nationwide in fiscal 2007.
Our operations span all significant aspects of the home-buying process—from design, construction and sale, to mortgage origination and title services.
The following is a summary of our growth history:
1959—Founded by Kevork Hovnanian as a New Jersey homebuilder.
1983—Completed initial public offering.
1986—Entered the North Carolina market through the investment in New Fortis Homes.
1992—Entered the greater Washington, D.C. market.
1994—Entered the Coastal Southern California market.
1998—Expanded in the greater Washington, D.C. market through the acquisition of P.C. Homes.
1999—Entered the Dallas, Texas market through our acquisition of Goodman Homes. Further diversified and strengthened our position as New Jersey's largest homebuilder through the acquisition of Matzel & Mumford.
2001—Continued expansion in the greater Washington, D.C. and North Carolina markets through the acquisition of Washington Homes. This acquisition further strengthened our operations in each of these markets.
2002—Entered the Central Valley market in Northern California and Inland Empire region of Southern California through the acquisition of Forecast Homes.
2003—Expanded operations in Texas and entered the Houston market through the acquisition of Parkside Homes and Brighton Homes. Entered the greater Ohio market through our acquisition of
1
Summit Homes and entered the greater metro Phoenix market through our acquisition of Great Western Homes.
2004—Entered the greater Tampa, Florida market through the acquisition of Windward Homes, and started operations in the Minneapolis/St. Paul, Minnesota market.
2005—Entered the Orlando, Florida market through our acquisition of Cambridge Homes and entered the greater Chicago, Illinois market and expanded our position in Florida and Minnesota through the acquisition of the operations of Town & Country Homes, which occurred concurrently with our entering into a joint venture with affiliates of Blackstone Real Estate Advisors to own and develop Town & Country's existing residential communities. We also entered the Fort Myers, Florida market through the acquisition of First Home Builders of Florida, and the Cleveland, Ohio market through the acquisition of Oster Homes.
2006—Entered the coastal markets of South Carolina and Georgia through the acquisition of Craftbuilt Homes.
Hovnanian markets and builds homes that are constructed in 23 of the nation's top 50 housing markets. We segregate our homebuilding operations geographically into the following six segments:
Northeast: New Jersey, New York, Pennsylvania
Mid-Atlantic: Delaware, Maryland, Virginia, West Virginia, Washington, D.C.
Midwest: Illinois, Kentucky, Michigan, Minnesota, Ohio
Southeast: Florida, Georgia, North Carolina, South Carolina
Southwest: Arizona, Texas
West: California
We employed approximately 4,318 full-time employees (which we refer to as associates) as of October 31, 2007.
Our corporate offices are located at 110 West Front Street, P. O. Box 500, Red Bank, New Jersey 07701, our telephone number is (732) 747-7800, and our Internet website address is www.khov.com. Information on our website is not a part of, or incorporated by reference in, this prospectus.
2
Summary of the Terms of the Exchange Offer
On May 27, 2008, K. Hovnanian completed a private offering of the outstanding notes.
General |
In connection with the private offering of the outstanding notes, we entered into a registration rights agreement with the initial purchasers of the outstanding notes in which the Issuer and the guarantors agreed, among other things, to deliver this prospectus to you and to complete an exchange offer for the outstanding notes within the time period specified in the registration rights agreement. See "Exchange Offer; Registration Rights." |
|||
You are entitled to exchange in the exchange offer your outstanding notes for exchange notes, which are identical in all material respects to the outstanding notes except: |
||||
• |
the exchange notes have been registered under the Securities Act of 1933, as amended, which we refer to as the "Securities Act"; |
|||
• |
the exchange notes are not entitled to certain registration rights which are applicable to the outstanding notes under the registration rights agreement; and |
|||
• |
certain additional interest rate provisions are no longer applicable. |
|||
Outstanding Notes |
$600,000,000 aggregate principal amount of 111/2% Senior Secured Notes due 2013, which were issued on May 27, 2008, and which we refer to in this prospectus as the "outstanding notes." |
|||
Exchange Notes |
$600,000,000 aggregate principal amount of 111/2% Senior Secured Notes due 2013, which we are offering in this exchange offer and which we refer to in this prospectus as the "exchange notes." |
|||
The Exchange Offer |
We are offering to exchange up to $600,000,000 aggregate principal amount of our exchange notes, which have been registered under the Securities Act, for a like aggregate principal amount of the outstanding notes. You may only exchange outstanding notes in denominations of $2,000 and higher integral multiples of $1,000. |
|||
Subject to the satisfaction or waiver of specified conditions, we will exchange the exchange notes for all outstanding notes that are validly tendered and not validly withdrawn prior to the expiration of the exchange offer. We will cause the exchange to be effected promptly after the expiration of the exchange offer. |
||||
Upon completion of the exchange offer, there may be no market for the outstanding notes and you may have difficulty selling them. |
||||
Resales |
Based on interpretations by the staff of the Securities and Exchange Commission, or the "SEC," set forth in no-action letters issued to third parties referred to below, we believe that you may resell or otherwise transfer exchange notes issued in the exchange offer without complying with the |
|||
3
registration and prospectus delivery requirements of the Securities Act, if: |
||||
(1) |
you are not an "affiliate" of K. Hovnanian or any guarantor of the notes within the meaning of Rule 405 under the Securities Act; |
|||
(2) |
you are not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the exchange notes; and |
|||
(3) |
you are acquiring the exchange notes in the ordinary course of your business. |
|||
If you are an affiliate of K. Hovnanian or the guarantors of the notes, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the exchange notes, or are not acquiring the exchange notes in the ordinary course of your business: |
||||
(1) |
you cannot rely on the position of the staff of the SEC enunciated in Morgan Stanley & Co., Inc. (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling (available July 2, 1993), or similar no-action letters; and |
|||
(2) |
in the absence of an exception from the position of the SEC stated in (1) above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale or other transfer of the exchange notes. |
|||
If you are a broker-dealer and receive exchange notes for your own account in exchange for outstanding notes that you acquired as a result of market-making or other trading activities, you must acknowledge that you will deliver a prospectus, as required by law, in connection with any resale or other transfer of the exchange notes that you receive in the exchange offer. See "Plan of Distribution." |
||||
Expiration Date |
The exchange offer will expire at 5:00 p.m., New York City time, on , 2008 unless extended by us. We do not currently intend to extend the expiration date. |
|||
Withdrawal |
You may withdraw the tender of your outstanding notes at any time prior to the expiration date. We will return to you any of your outstanding notes that are not accepted for any reason for exchange, without expense to you, promptly after the expiration or termination of the exchange offer. |
|||
Interest on the Exchange Notes and the Outstanding Notes |
Each exchange note will bear interest at the rate per annum set forth on the cover page of this prospectus from the most recent date to which interest has been paid on the outstanding notes or, if no interest has been paid on the outstanding notes, from May 27, 2008. The interest will be payable semi-annually on each May 1 and November 1, beginning November 1, 2008. No interest will be paid on outstanding notes following their acceptance for exchange. |
|||
4
Conditions to the Exchange Offer |
The exchange offer is subject to customary conditions, which we may assert or waive. See "The Exchange Offer—Conditions to the Exchange Offer." |
|||
Procedures for Tendering Outstanding Notes |
If you wish to participate in the exchange offer, you must complete, sign and date the accompanying letter of transmittal, or a facsimile of the letter of transmittal, according to the instructions contained in this prospectus and the letter of transmittal. You must then mail or otherwise deliver the letter of transmittal, or a facsimile of the letter of transmittal, together with the outstanding notes and any other required documents, to the exchange agent at the address set forth on the cover page of the letter of transmittal. If you hold outstanding notes through The Depository Trust Company, or "DTC," and wish to participate in the exchange offer, you must comply with the Automated Tender Offer Program procedures of DTC, by which you will agree to be bound by the letter of transmittal. By signing, or agreeing to be bound by, the letter of transmittal, you will represent to us that, among other things: |
|||
(1) |
you are not an "affiliate" of K. Hovnanian or the guarantors of the notes within the meaning of Rule 405 under the Securities Act; |
|||
(2) |
you are not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the exchange notes; |
|||
(3) |
you are acquiring the exchange notes in the ordinary course of your business; and |
|||
(4) |
if you are a broker-dealer and receive exchange notes for your own account in exchange for outstanding notes that you acquired as a result of market-making or other trading activities, that you will deliver a prospectus, as required by law, in connection with any resale or other transfer of such exchange notes. |
|||
If you are an affiliate of K. Hovnanian or the guarantors of the notes or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the exchange notes, or are not acquiring the exchange notes in the ordinary course of your business, you cannot rely on the applicable positions and interpretations of the staff of the SEC and you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale or other transfer of the exchange notes. |
||||
Special Procedures for Beneficial Owners |
If you are a beneficial owner of outstanding notes that are held in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender those outstanding notes in the exchange offer, you should contact such person promptly and instruct such person to tender those outstanding notes on your behalf. |
|||
5
Guaranteed Delivery Procedures |
If you wish to tender your outstanding notes and your outstanding notes are not immediately available or you cannot deliver your outstanding notes, the letter of transmittal and any other documents required by the letter of transmittal or you cannot comply with the DTC procedures for book-entry transfer prior to the expiration date, you must tender your outstanding notes according to the guaranteed delivery procedures set forth in this prospectus under "The Exchange Offer—Guaranteed Delivery Procedures." |
|||
Effect on Holders of Outstanding Notes |
In connection with the sale of the outstanding notes, we entered into a registration rights agreement with the initial purchasers of the outstanding notes, which grants the holders of outstanding notes registration rights. By making this exchange offer, we will have fulfilled most of our obligations under the registration rights agreement. Accordingly, we will not be obligated to pay additional interest as described in the registration rights agreement. If you do not tender your outstanding notes in the exchange offer, you will continue to be entitled to all the rights and limitations applicable to the outstanding notes as set forth in the indenture, except we will not have any further obligation to you to provide for the registration of the outstanding notes under the registration rights agreement and we will not be obligated to pay additional interest as described in the registration rights agreement, except in certain limited circumstances. See "Exchange Offer; Registration Rights." |
|||
To the extent that outstanding notes are tendered and accepted in the exchange offer, the trading market for outstanding notes could be adversely affected. |
||||
Consequences of Failure to Exchange |
All untendered outstanding notes will continue to be subject to the restrictions on transfer set forth in the outstanding notes and in the indenture. In general, the outstanding notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently anticipate that we will register the outstanding notes under the Securities Act. |
|||
Certain Income Tax Considerations |
The exchange of outstanding notes for exchange notes in the exchange offer will not be a taxable event for United States federal income tax purposes. See "United States Federal Income Tax Consequences of the Exchange Offer." |
|||
Use of Proceeds |
We will not receive any cash proceeds from the issuance of exchange notes in the exchange offer. |
|||
Exchange Agent |
Wilmington Trust Company, whose address and telephone number is set forth in the section captioned "The Exchange Offer—Exchange Agent" of this prospectus, is the exchange agent for the exchange offer. |
|||
6
Summary of the Terms of the Exchange Notes
The terms of the exchange notes are identical in all material respects to the terms of the outstanding notes, except that the exchange notes will not contain terms with respect to transfer restrictions or additional interest upon a failure to fulfill certain of our obligations under the registration rights agreement. The exchange notes will evidence the same debt as the outstanding notes. The exchange notes will be governed by the same indenture under which the outstanding notes were issued and the exchange notes and the outstanding notes will constitute a single class and series of notes for all purposes under the indenture.
| Issuer | K. Hovnanian Enterprises, Inc. | |||
Notes Offered |
We are offering $600.0 million aggregate principal amount of 111/2% Senior Secured Notes due 2013. |
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Maturity Date |
May 1, 2013. |
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Interest Payment Dates |
Each May 1 and November 1, beginning November 1, 2008. |
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Optional Redemption |
We may redeem some or all of the notes at any time on or after November 1, 2010, at the redemption prices specified under the section "Description of Notes—Redemption" plus accrued and unpaid interest. In addition, we may redeem up to 35% of the aggregate principal amount of the notes before May 1, 2011 with the net cash proceeds from certain equity offerings at a price equal to 111.50% of the principal amount thereof plus accrued and unpaid interest. |
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Change of Control |
Upon a Change of Control as described in the section "Description of Notes," you will have the right to require us to purchase some or all of the notes at 101% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase. We can give no assurance that, upon such an event, we will have sufficient funds to purchase any of the notes. |
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Guarantees |
The guarantors are Hovnanian Enterprises, Inc., the parent corporation of the Issuer, and substantially all of the parent's existing and future restricted subsidiaries. If the Issuer cannot make payments on the notes when they are due, the guarantors must make the payments instead. As of the date of this prospectus, our home mortgage subsidiaries, our joint ventures and certain of our title insurance subsidiaries are not guarantors or restricted subsidiaries. |
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Ranking |
The exchange notes will be the Issuer's and the guarantors' general senior secured obligations and will: |
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• |
rank senior in right of payment to the Issuer's and the guarantors' existing and future debt and other obligations that expressly provide for their subordination to the notes and the guarantees; |
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7
| • | rank equally in right of payment to all of the Issuer's and the guarantors' existing and future unsubordinated debt and, together with indebtedness under our Revolving Credit Agreement and any other secured obligations, effectively senior in right of payment to all the Issuer's and the guarantors' existing and future unsecured debt to the extent of the value of the collateral; | |||
• |
be effectively junior to the Issuer's and the guarantors' debt that is secured by priority liens on the collateral, including indebtedness under our Revolving Credit Agreement to the extent of the value of the collateral; and |
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• |
be structurally subordinated to all of the existing and future liabilities, including trade payables, of our subsidiaries that do not guarantee the Notes. |
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At July 31, 2008, the Issuer and the guarantors had: |
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• |
approximately $627.3 million of secured indebtedness outstanding, including the outstanding notes; |
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• |
$1.5 billion of senior unsecured notes; |
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• |
$0.4 billion of senior subordinated notes; and |
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• |
an aggregate outstanding face amount of letters of credit under our Revolving Credit Agreement of approximately $219.7 million and no outstanding revolving loans. |
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In addition, as of July 31, 2008, our non-guarantor subsidiaries had approximately $89.1 million of liabilities, including trade payables, but excluding intercompany obligations. |
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See the section "Description of Notes—Ranking." |
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Collateral |
The exchange notes and the guarantees thereof will be secured by a second-priority lien on substantially all the assets owned by the Issuer and guarantors on May 27, 2008 or thereafter acquired to the extent such assets secure obligations under the Revolving Credit Agreement and certain other permitted indebtedness. The lenders under our Revolving Credit Agreement and certain other indebtedness will benefit from first-priority liens on the collateral. |
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The collateral will not include: |
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• |
the pledge of stock of subsidiaries to the extent such pledge would result in separate financial statements of such subsidiary being filed with the SEC; |
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• |
personal property where the cost of obtaining a security interest or perfection thereof exceeds its benefits; |
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• |
real property subject to a lien securing indebtedness incurred for the purpose of financing the acquisition thereof; |
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8
| • | real property located outside of the United States; | |||
• |
unentitled land; |
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• |
real property which is leased or held for the purpose of leasing to unaffiliated third parties; |
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• |
equity interests in subsidiaries other than restricted subsidiaries, subject to future grants under certain circumstances as required under the indenture; |
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any real property in a community under development with a dollar amount of investment as of the most recent month-end (determined in accordance with GAAP) of less than $2.0 million or with less than 10 lots remaining; |
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• |
up to $50.0 million of assets received in certain asset dispositions or asset swaps or exchanges made in accordance with the indenture; |
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• |
assets with respect to which any applicable law or contract prohibits the creation or perfection of security interests therein; and |
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• |
any other assets excluded from the collateral securing the Revolving Credit Agreement and any other indebtedness or obligations secured by first-priority liens on the collateral. |
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In addition, the Issuer and the guarantors will not be required to provide control agreements with respect to certain deposit, checking or securities accounts with average balances below a certain dollar amount. |
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For more details, see the section "Description of Notes—Security." |
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Intercreditor Agreement |
Pursuant to an intercreditor agreement, the liens securing the notes will be second-priority liens that will be expressly junior in priority to the liens that secure (1) obligations under our Revolving Credit Agreement, (2) certain other future indebtedness permitted to be incurred under the indenture governing the notes and (3) certain obligations under our hedging arrangements. Pursuant to the intercreditor agreement, the liens securing the notes may not be enforced at any time when obligations secured by priority liens are outstanding, except for certain limited exceptions. Any release (except in connection with repayment in full of the priority lien obligations) of priority liens upon any collateral approved by holders of such priority liens will also release the liens securing the notes on the same collateral. The holders of the priority liens will receive all proceeds from any realization on the collateral or from the collateral or proceeds thereof in any insolvency or liquidation proceeding until the obligations secured by the priority liens are paid in full. |
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9
| Sharing of Liens | In certain circumstances, we may secure specified indebtedness permitted to be incurred under the indenture governing the notes by granting liens upon any or all of the collateral securing the notes, including on an equal basis with the first-priority liens securing the Revolving Credit Agreement or on a junior basis. | |||
Certain Covenants |
The exchange notes will be issued under the same indenture as the outstanding notes were issued. The indenture contains covenants that, among other things, restrict the Issuer's ability and the ability of the guarantors to: |
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• |
borrow money; |
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• |
pay dividends and distributions on our common and preferred stock; |
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• |
repurchase our senior and senior subordinated notes and our common and preferred stock; |
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make investments in subsidiaries and joint ventures that are not restricted; |
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• |
sell certain assets; |
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incur certain liens; |
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merge with or into other companies; and |
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enter into certain transactions with our affiliates. |
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For more details, see the section "Description of Notes—Certain covenants." |
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Absence of a Public Market |
The exchange notes will generally be freely transferable (subject to certain restrictions discussed in "Exchange Offer; Registration Rights") but will be a new issue of securities for which there will not initially be a market. Accordingly, there can be no assurance as to the development or liquidity of any market for the exchange notes. The initial purchasers in the private offering of the outstanding notes have advised us that they currently intend to make a market for the exchange notes, as permitted by applicable laws and regulations. However, they are not obligated to do so and may discontinue any such market making activities at any time without notice. We do not intend to apply for a listing of the exchange notes on any securities exchange or automated dealer quotation system. |
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Use of Proceeds |
We will not receive any cash proceeds from the issuance of the exchange notes in the exchange offer. For a description of the use of proceeds from the private offering of the outstanding notes, see "Use of Proceeds." |
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10
The following table presents summary historical consolidated financial and other data of Hovnanian Enterprises, Inc. and subsidiaries as of and for the years ended October 31, 2007, 2006 and 2005 and the nine months ended July 31, 2008 and 2007. The consolidated financial and other data for the years ended October 31, 2007, 2006 and 2005 have been derived from Hovnanian Enterprises, Inc.'s audited consolidated financial statements and the consolidated financial and other data for the nine months ended July 31, 2008 and 2007 have been derived from Hovnanian Enterprises, Inc.'s unaudited consolidated financial statements. Operating results for the nine months ended July 31, 2008 are not necessarily indicative of the results that may be expected for the entire year ending October 31, 2008. You should read this data in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" incorporated by reference herein and our consolidated financial statements and related notes incorporated by reference herein.
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Year Ended | Nine Months Ended | |||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Summary Consolidated Income Statement and Other Data (In Thousands, Except Per Share Data) |
October 31, 2007 |
October 31, 2006 |
October 31, 2005 |
July 31, 2008 | July 31, 2007 | ||||||||||||
Revenues |
$ | 4,798,921 | $ | 6,148,235 | $ | 5,348,417 | $ | 2,586,681 | $ | 3,407,052 | |||||||
Inventory impairment loss and land option write-offs |
$ | 457,773 | $ | 336,204 | $ | 5,360 | $ | 446,961 | $ | 184,420 | |||||||
(Loss) income from unconsolidated joint ventures |
$ | (28,223 | ) | $ | 15,385 | $ | 35,039 | $ | (9,356 | ) | $ | (2,934 | ) | ||||
Pre-tax (loss) income excluding land related charges and intangible impairments(l) |
$ | (20,887 | ) | $ | 581,360 | $ | 785,945 | $ | (254,747 | ) | $ | 6,249 | |||||
(Loss) income before income taxes |
$ | (646,966 | ) | $ | 233,106 | $ | 780,585 | $ | (711,585 | ) | $ | (234,195 | ) | ||||
State and Federal income tax (benefit) provision |
(19,847 | ) | 83,573 | 308,738 | (37,454 | ) | (73,669 | ) | |||||||||
Net (loss) income |
(627,119 |
) |
149,533 |
471,847 |
(674,131 |
) |
(160,526 |
) |
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Less: preferred stock dividends |
10,674 | 10,675 | 2,758 | — | 8,006 | ||||||||||||
Net (loss) income available to common stockholders |
$ | (637,793 | ) | $ | 138,858 | $ | 469,089 | $ | (674,131 | ) | $ | (168,532 | ) | ||||
Per share data: |
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Basic: |
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(Loss) income per common share |
$ | (10.11 | ) | $ | 2.21 | $ | 7.51 | $ | (9.98 | ) | $ | (2.67 | ) | ||||
Weighted average number of common shares outstanding |
63,079 | 62,822 | 62,490 | 67,574 | 63,036 | ||||||||||||
Assuming dilution: |
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(Loss) income per common share |
$ | (10.11 | ) | $ | 2.14 | $ | 7.16 | $ | (9.98 | ) | $ | (2.67 | ) | ||||
Weighted average number of common shares outstanding |
63,079 | 64,838 | 65,549 | 67,574 | 63,036 | ||||||||||||
- (1)
- Pre-tax (loss) income excluding land related charges and intangible impairments is not a financial measure calculated in accordance with generally accepted accounting principles (GAAP). The most directly comparable GAAP financial measure is (loss) income before income taxes. The reconciliation of pre-tax (loss) income excluding land related charges and intangible impairments to (loss) income before income taxes is presented below. Pre-tax (loss) income excluding land related charges and intangible impairments should be considered in addition to, but not as a substitute for, (loss) income before income taxes, net (loss) income and other measures of financial performance prepared in accordance with GAAP that are presented on the financial statements
11
and
notes incorporated by reference herein. Additionally, our calculation of pre-tax (loss) income excluding land related charges and intangible impairments may be different than the
calculation used by other companies, and, therefore, comparability may be affected. Management believes pre-tax (loss) income excluding land related charges to be relevant and useful
information because it provides a better metric for our operating performance.
Reconciliation of pre-tax (loss) income excluding land related charges and intangible impairments to (loss) income before income taxes (in thousands):
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Year Ended | Nine Months Ended | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
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October 31, 2007 |
October 31, 2006 |
October 31, 2005 |
July 31, 2008 | July 31, 2007 | |||||||||||
(Loss) income before income taxes |
$ | (646,966 | ) | $ | 233,106 | $ | 780,585 | $ | (711,585 | ) | $ | (234,195 | ) | |||
Inventory impairment loss and land option write-offs |
$ | 457,773 | $ | 336,204 | $ | 5,360 | $ | 446,961 | $ | 184,420 | ||||||
Intangible impairments |
$ | 135,206 | $ | 4,241 | $ | — | $ | — | $ | 54,707 | ||||||
Unconsolidated joint venture intangible and land related charges |
$ | 33,100 | $ | 7,809 | — | $ | 9,877 | $ | 1,317 | |||||||
Pre-tax (loss) income excluding land related charges and intangible impairments |
$ | (20,887 | ) | $ | 581,360 | $ | 785,945 | $ | (254,747 | ) | $ | 6,249 | ||||
Summary Consolidated Balance Sheet Data (In Thousands) |
October 31, 2007 |
October 31, 2006 |
October 31, 2005 |
July 31, 2008 | July 31, 2007 | |||||||||||
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Total assets |
$ | 4,540,548 | $ | 5,480,035 | $ | 4,726,138 | $ | 4,101,708 | $ | 5,362,762 | ||||||
Mortgages, term loans, revolving credit agreements, and notes payable |
$ | 410,298 | $ | 319,943 | $ | 271,868 | $ | 110,458 | $ | 636,796 | ||||||
Senior secured notes, senior notes and senior subordinated notes |
$ | 1,910,600 | $ | 2,049,778 | $ | 1,498,739 | $ | 2,505,474 | $ | 2,050,628 | ||||||
Stockholders' equity |
$ | 1,321,803 | $ | 1,942,163 | $ | 1,791,357 | $ | 777,894 | $ | 1,785,734 | ||||||
12
Important indicators of our future results are recently signed contracts and home contract backlog for future deliveries. Our sales contracts and homes in contract backlog, which primarily use base sales prices by segment, are set forth below:
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Net Contracts(1) for the Nine Months Ended July 31, |
Contract Backlog as of July 31, |
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|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
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2008 | 2007 | 2008 | 2007 | |||||||||
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(Dollars in Thousands) |
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Northeast: |
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Dollars |
$ | 315,020 | $ | 584,035 | $ | 329,914 | $ | 571,495 | |||||
Homes |
766 | 1,202 | 733 | 1,066 | |||||||||
Mid-Atlantic: |
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Dollars |
$ | 262,928 | $ | 558,393 | $ | 247,309 | $ | 497,697 | |||||
Homes |
723 | 1,212 | 570 | 1,015 | |||||||||
Midwest: |
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Dollars |
$ | 88,021 | $ | 177,066 | $ | 95,418 | $ | 157,594 | |||||
Homes |
413 | 779 | 474 | 762 | |||||||||
Southeast: |
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Dollars |
$ | 118,931 | $ | 235,619 | $ | 84,899 | $ | 702,385 | |||||
Homes |
493 | 801 | 300 | 2,437 | |||||||||
Southwest: |
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Dollars |
$ | 414,939 | $ | 589,900 | $ | 146,282 | $ | 255,498 | |||||
Homes |
1,817 | 2,644 | 636 | 1,129 | |||||||||
West: |
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Dollars |
$ | 355,260 | $ | 668,963 | $ | 91,666 | $ | 299,153 | |||||
Homes |
1,109 | 1,587 | 263 | 717 | |||||||||
Consolidated total: |
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Dollars |
$ | 1,555,099 | $ | 2,813,976 | $ | 995,488 | $ | 2,483,822 | |||||
Homes |
5,321 | 8,225 | 2,976 | 7,126 | |||||||||
Unconsolidated joint ventures: |
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Dollars |
$ | 177,088 | $ | 156,047 | $ | 179,937 | $ | 352,265 | |||||
Homes |
418 | 500 | 326 | 737 | |||||||||
Totals: |
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Dollars |
$ | 1,732,187 | $ | 2,970,023 | $ | 1,175,425 | $ | 2,836,087 | |||||
Homes |
5,739 | 8,725 | 3,302 | 7,863 | |||||||||
- (1)
- Net contracts are defined as new contracts during the period for the purchase of homes, less cancellations of prior contracts.
13
In addition to the other information included in this prospectus and the documents incorporated by reference in this prospectus, you should carefully consider the following risk factors before you decide to participate in the exchange offer.
Risks Related to the Exchange Offer
If you choose not to exchange your outstanding notes in the exchange offer, the transfer restrictions currently applicable to your outstanding notes will remain in force and the market price of your outstanding notes could decline.
If you do not exchange your outstanding notes for exchange notes in the exchange offer, then you will continue to be subject to the transfer restrictions on the outstanding notes as set forth in the offering circular distributed in connection with the private offering of the outstanding notes. In general, the outstanding notes may not be offered or sold unless they are registered or exempt from registration under the Securities Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding notes under the Securities Act. You should refer to "Prospectus Summary—Summary of the Terms of the Exchange Offer" and "The Exchange Offer" for information about how to tender your outstanding notes.
The tender of outstanding notes under the exchange offer will reduce the principal amount of the outstanding notes outstanding, which may have an adverse effect upon, and increase the volatility of, the market price of the outstanding notes due to reduction in liquidity.
You must follow the exchange offer procedures carefully in order to receive the exchange notes.
If you do not follow the procedures described herein, you will not receive any exchange notes. The exchange notes will be issued to you
in exchange for outstanding notes only after timely receipt by the exchange agent of:
- •
- your outstanding notes and either:
- •
- a properly completed and executed letter of transmittal and all other required documents;
or
- •
- a book-entry delivery by electronic transmittal of an agent's message through the Automated Tender Offer Program of DTC.
If you want to tender your outstanding notes in exchange for exchange notes, you should allow sufficient time to ensure timely delivery. No one is under any obligation to give you notification of defects or irregularities with respect to tenders of outstanding notes for exchange. For additional information, see the section captioned "The Exchange Offer" in this prospectus.
Risks Related to Our Business
The homebuilding industry is significantly affected by changes in general and local economic conditions, real estate markets and weather conditions, which could affect our ability to build homes at prices our customers are willing or able to pay, could reduce profits that may not be recaptured, could result in cancellation of sales contracts and could affect our liquidity.
The homebuilding industry is cyclical, has from time to time experienced significant difficulties and is significantly affected by
changes in general and local economic conditions such as:
- •
- employment levels and job growth;
- •
- availability of financing for home buyers;
14
- •
- interest rates;
- •
- foreclosure rates;
- •
- inflation;
- •
- adverse changes in tax laws;
- •
- consumer confidence;
- •
-
housing demand; and
- •
- population growth.
Turmoil in the financial markets could affect our liquidity. In addition, our cash balances are held at numerous financial institutions and may, at times, exceed insurable amounts. We believe we help to mitigate this risk by depositing our cash in major financial institutions and diversifying our investments. We also depend upon the lenders under our Revolving Credit Agreement to be able to perform under their commitments.
Weather conditions and natural disasters such as hurricanes, tornadoes, earthquakes, floods and fires can harm the local homebuilding business. Our business in Florida was adversely affected in late 2005 and into 2006 due to the impact of Hurricane Wilma on materials and labor availability and pricing.
The difficulties described above could cause us to take longer and incur more costs to build our homes. We may not be able to recapture increased costs by raising prices in many cases because we fix our prices up to twelve months in advance of delivery by signing home sales contracts. In addition, some home buyers may cancel or not honor their home sales contracts altogether.
The homebuilding industry is undergoing a significant and sustained downturn which has, and could continue to, materially and adversely affect our business, liquidity and results of operations.
The homebuilding industry is now experiencing a significant and sustained downturn. An industry-wide softening of demand for new homes has resulted from a lack of consumer confidence, decreased housing affordability, decreased availability of mortgage financing, and large supplies of resale and new home inventories. In addition, an oversupply of alternatives to new homes, such as rental properties and resale homes, has depressed prices and reduced margins for the sale of new homes. Industry conditions had a material adverse effect on our business and results of operations during fiscal year 2007 and are continuing to materially adversely affect our business and results of operations in fiscal 2008. For example, we are continuing to experience slower sales, reductions in our margins and higher cancellations which impact most of our markets. Further, we substantially increased our inventory in recent years, which required significant cash outlays and which has increased our price and margin exposure as we continue to work through this inventory. Continuation of this downturn would continue to have a material adverse effect on our business, liquidity and results of operations.
Leverage places burdens on our ability to comply with the terms of our indebtedness, may restrict our ability to operate, may prevent us from fulfilling our obligations and may adversely affect our financial condition.
We have a significant amount of debt:
- •
- our debt, as of July 31, 2008, including the debt of the subsidiaries that guarantee our debt, was $2,515.0 million ($2,505.5 million net of discount);
15
- •
- as of July 31, 2008, the aggregate outstanding face amount of letters of credit under our Revolving Credit
Agreement was $219.7 million and we had no outstanding revolving loans; and
- •
- our debt service payments for the 12-month period ended July 31, 2008, which include interest incurred and mandatory principal payments on our corporate debt under the terms of our indentures (but which do not include principal and interest on non-recourse secured debt and debt of our financial subsidiaries), were $292.2 million ($140.3 million of which relates to principal payments on our 101/2% Senior Notes due 2007).
In addition, we had substantial contractual commitments and contingent obligations, including $671.5 million of performance bonds as of July 31, 2008. See "Management's Discussion of Financial Condition and Results of Operations—Contractual Obligations" in our Annual Report on Form 10-K for the year ended October 31, 2007 incorporated by reference herein.
Our
significant amount of debt could have important consequences. For example, it could:
- •
- limit our ability to obtain future financing for working capital, capital expenditures, acquisitions, debt service
requirements or other requirements;
- •
- require us to dedicate a substantial portion of our cash flow from operations to the payment of our debt and reduce our
ability to use our cash flow for other purposes;
- •
- limit our flexibility in planning for, or reacting to, changes in our
business;
- •
- place us at a competitive disadvantage because we have more debt than some of our competitors; and make us more vulnerable to downturns in our business and general economic conditions.
Our ability to meet our debt service and other obligations will depend upon our future performance. We are engaged in businesses that are substantially affected by changes in economic cycles. Our revenues and earnings vary with the level of general economic activity in the markets we serve. Our businesses are also affected by customer sentiment and financial, political, business and other factors, many of which are beyond our control. The factors that affect our ability to generate cash can also affect our ability to raise additional funds for these purposes through the sale of equity securities, the refinancing of debt, or the sale of assets. Changes in prevailing interest rates may affect our ability to meet our debt service obligations, because borrowings under our Revolving Credit Agreement bear interest at floating rates. A higher interest rate on our debt service obligations could result in lower earnings.
Our business may not generate sufficient cash flow from operations and borrowings may not be available to us under our Revolving Credit Agreement in an amount sufficient to enable us to pay our indebtedness or to fund our other liquidity needs. Under the Revolving Credit Agreement, the amount available for revolving loans is limited to $25 million until the borrowing base is deemed effective by the Administrative Agent (expected no later than October 31, 2008), and to $100 million thereafter, with the remaining amounts available for the issuance of letters of credit. We may need to refinance all or a portion of our debt on or before maturity, which we may not be able to do on favorable terms or at all.
Restrictive covenants in our debt instruments may restrict our ability to operate and if our financial performance worsens, we may not be able to maintain compliance with the financial covenants of our debt instruments.
The indentures governing our outstanding debt securities and our Revolving Credit Agreement impose restrictions on our operations and activities. The most significant restrictions relate to debt incurrence, sales of assets, cash distributions, including paying dividends on common and preferred stock, capital stock and debt repurchases, and investments by us and certain of our subsidiaries. The
16
covenants in our Revolving Credit Agreement also include a borrowing base covenant and a covenant requiring either a minimum operating cash flow coverage ratio or minimum liquidity as of the last day of each fiscal quarter but do not contain any other financial covenants. Our level of home deliveries, amount of impairments and other financial performance factors negatively impacted the borrowing base and financial covenants under the Revolving Credit Agreement prior to its amendment in May 2008 and there can be no assurance that we will not violate the financial or other covenants under our debt instruments in the future or that the amount available under our revolving credit line would not be reduced.
In addition, as a result of the restrictions in our indentures, which would require our fixed charge coverage ratio to be at least 2.0 to 1.0, we are currently restricted from paying dividends on our Series A Preferred Stock and will continue to be restricted during the remainder of fiscal 2008. If current market trends continue or worsen, we anticipate that we will continue to be restricted from paying dividends into fiscal 2009.
If we fail to comply with any of the restrictions or covenants of our debt instruments, and are unable to amend the instrument or obtain a waiver, or make timely payments on this debt and other material indebtedness, we could be precluded from incurring additional borrowings under our Revolving Credit Agreement and the trustees or the banks, as appropriate, could cause our debt to become due and payable prior to maturity. In such a situation, there can be no assurance that we would be able to obtain alternative financing. In addition, if we are in default of these agreements, we may be prohibited from drawing additional funds under the Revolving Credit Agreement, which could impair our ability to maintain sufficient working capital. Either situation could have a material adverse effect on the solvency of the Company.
The terms of our debt instruments allow us to incur additional indebtedness.
Under the terms of our indebtedness under our indentures and under the Revolving Credit Agreement, we have the ability, subject to our debt covenants, to incur additional amounts of debt. The incurrence of additional indebtedness could magnify the risks described above. In addition, certain obligations such as standby letters of credit and performance bonds issued in the ordinary course of business are not considered indebtedness under our indentures (and may be secured) and are therefore not subject to limits in our debt covenants.
We could be adversely affected by a negative change in our credit rating.
Our ability to access capital on favorable terms is a key factor in continuing to grow our business and operations in a profitable manner. Recently, Moody's and S&P lowered our credit ratings, which may make it more difficult and costly for us to access capital. A further downgrade by any of the principal credit agencies may exacerbate these difficulties.
Our business is seasonal in nature and our quarterly operating results can fluctuate.
Our quarterly operating results generally fluctuate by season. Historically, a large percentage of our agreements of sale have been entered into in the winter and spring. The construction of a customer's home typically begins after signing the agreement of sale and can take 12 months or more to complete. Weather-related problems, typically in the late winter and early spring, can delay starts or closings and increase costs and thus reduce profitability. In addition, delays in opening communities could have an adverse impact on our sales and revenues. Due to these factors, our quarterly operating results may continue to fluctuate.
17
Our success depends on the availability of suitable undeveloped land and improved lots at acceptable prices.
Our success in developing land and in building and selling homes depends in part upon the continued availability of suitable undeveloped land and improved lots at acceptable prices. The availability of undeveloped land and improved lots for purchase at favorable prices depends on a number of factors outside of our control, including the risk of competitive over-bidding on land and lots and restrictive governmental regulation. Should suitable land opportunities become less available, the number of homes we may be able to build and sell would be reduced, which would reduce revenue and profits.
Raw material and labor shortages and price fluctuations could delay or increase the cost of home construction and adversely affect our operating results.
The homebuilding industry has from time to time experienced raw material and labor shortages. In particular, shortages and fluctuations in the price of lumber or in other important raw materials could result in delays in the start or completion of, or increase the cost of, developing one or more of our residential communities. In addition, we contract with subcontractors to construct our homes. Therefore, the timing and quality of our construction depends on the availability, skill and cost of our subcontractors. Delays or cost increases caused by shortages and price fluctuations could harm our operating results, the impact of which may be further affected depending on our ability to raise sales prices.
Changes in economic and market conditions could result in the sale of homes at a loss or holding land in inventory longer than planned, the cost of which can be significant.
Land inventory risk can be substantial for homebuilders. We must continuously seek and make acquisitions of land for expansion into new markets and for replacement and expansion of land inventory within our current markets. The market value of undeveloped land, buildable lots and housing inventories can fluctuate significantly as a result of changing economic and market conditions. In the event of significant changes in economic or market conditions, we may have to sell homes at a loss or hold land in inventory longer than planned. In the case of land options, we could choose not to exercise them, in which case we would write off the value of these options. Inventory carrying costs can be significant and can result in losses in a poorly performing project or market. For example, during 2007 and 2006 we decided not to exercise many option contracts and walked away from land option deposits and predevelopment costs, which resulted in land option write-offs of $126.0 million and $159.1 million, respectively. Also, in 2007 and 2006, as a result of the slowing market, we recorded inventory impairment losses on owned property of $331.8 million and $177.1 million, respectively. For the nine months ended July 31, 2008, we recorded inventory impairment losses on owned property of $380.4 million and we further recorded $66.6 million of land option write-offs.
Home prices and sales activities in the California, New Jersey, Texas, North Carolina, Virginia, Maryland, Florida and Arizona markets have a large impact on our profitability because we conduct a significant portion of our business in these markets.
We presently conduct a significant portion of our business in the California, New Jersey, Texas, North Carolina, Virginia, Maryland, Florida and Arizona markets. Home prices and sales activities in these markets, and in most of the other markets in which we operate, have declined from time to time, particularly as a result of slow economic growth. In particular, Arizona, California, Florida, New Jersey, Virginia and Maryland have continued to slow since the end of 2006. Furthermore, precarious economic and budget situations at the state government level may adversely affect the market for our homes in those affected areas. If home prices and sales activity decline in one or more of the markets in which we operate, our costs may not decline at all or at the same rate and profits may be reduced.
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Because almost all of our customers require mortgage financing, increases in interest rates or the decreased availability of mortgage financing could impair the affordability of our homes, lower demand for our products, limit our marketing effectiveness, and limit our ability to fully realize our backlog.
Virtually all of our customers finance their acquisitions through lenders providing mortgage financing. Increases in interest rates or decreases in availability of mortgage financing could lower demand for new homes because of the increased monthly mortgage costs to potential home buyers. Even if potential customers do not need financing, changes in interest rates and mortgage availability could make it harder for them to sell their existing homes to potential buyers who need financing. This could prevent or limit our ability to attract new customers as well as our ability to fully realize our backlog because our sales contracts generally include a financing contingency. Financing contingencies permit the customer to cancel his obligation in the event mortgage financing at prevailing interest rates, including financing arranged or provided by us, is unobtainable within the period specified in the contract. This contingency period is typically four to eight weeks following the date of execution of the sales contract.
Over the last several quarters, many lenders have significantly tightened their underwriting standards, and many subprime and other alternative mortgage products are no longer being made available in the marketplace. If these trends continue and mortgage loans continue to be difficult to obtain, the ability and willingness of prospective buyers to finance home purchases or to sell their existing homes will be adversely affected, which will adversely affect our operating results.
In addition, we believe that the availability of FNMA, FHLMC, FHA and VA mortgage financing is an important factor in marketing many of our homes. Any limitations or restrictions on the availability of those types of financing could reduce our sales.
We conduct certain of our operations through unconsolidated joint ventures with independent third parties in which we do not have a controlling interest. These investments involve risks and are highly illiquid.
We currently operate through a number of unconsolidated homebuilding and land development joint ventures with independent third parties in which we do not have a controlling interest. At July 31, 2008, we had invested an aggregate of $164.1 million in these joint ventures, which had borrowings outstanding of approximately $335.8 million. In addition, as part of our strategy, we intend to continue to evaluate additional joint venture opportunities.
These investments involve risks and are highly illiquid. There are a limited number of sources willing to provide acquisition, development and construction financing to land development and homebuilding joint ventures, and as the use of joint venture arrangements by us and our competitors increases and as market conditions become more challenging, it may be difficult or impossible to obtain financing for our joint ventures on commercially reasonable terms. In addition, we lack a controlling interest in these joint ventures and therefore are usually unable to require that our joint ventures sell assets or return invested capital, make additional capital contributions or take any other action without the vote of at least one of our venture partners. Therefore, absent partner agreement, we will be unable to liquidate our joint venture investments to generate cash.
Homebuilders are subject to a number of federal, local, state and foreign laws and regulations concerning the development of land, the home building, sales and customer financing processes and protection of the environment, which can cause us to incur delays and costs associated with compliance and which can prohibit or restrict our activity in some regions or areas.
We are subject to extensive and complex regulations that affect the development and home building, sales and customer financing processes, including zoning, density, building standards and mortgage financing. These regulations often provide broad discretion to the administering governmental authorities. This can delay or increase the cost of development or homebuilding. In addition, some
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state and local governments in markets where we operate have approved, and others may approve, slow growth or no growth initiatives that could negatively impact the availability of land and building opportunities within those areas. Approval of these initiatives could adversely affect our ability to build and sell homes in the affected markets and/or could require the satisfaction of additional administrative and regulatory requirements, which could result in slowing the progress or increasing the costs of our homebuilding operations in these markets. Any such delays or costs could have a negative effect on our future revenues and earnings.
We also are subject to a variety of local, state, federal and foreign laws and regulations concerning protection of health and the environment. The particular environmental laws which apply to any given community vary greatly according to the community site, the site's environmental conditions and the present and former uses of the site. These environmental laws may result in delays, may cause us to incur substantial compliance, remediation, and/or other costs, and can prohibit or severely restrict development and homebuilding activity in certain environmentally sensitive regions or areas.
For example, during 2005, we received requests for information from the Environmental Protection Agency (the "EPA") pursuant to provisions of the Clean Water Act. These requests sought information concerning storm water discharge practices in connection with completed, ongoing and planned homebuilding projects in the states and district that comprise EPA Region 3. We provided the EPA with information in response to its requests. The Department of Justice ("DOJ") subsequently also has become involved in the review of our storm water discharge practices and enforcement with respect to them. We have subsequently received a notification with respect to another development from the EPA alleging violations of storm water discharge practices and requesting related information. We cannot predict the outcome of the review of these practices or estimate the costs that may be involved in resolving the matter. To the extent that the EPA or the DOJ asserts violations of regulatory requirements and request injunctive relief or penalties, we will defend and attempt to resolve such asserted violations.
It can be anticipated that increasingly stringent requirements will be imposed on developers and homebuilders in the future. Although we cannot predict the effect of these requirements, they could result in time-consuming and expensive compliance programs and in substantial expenditures, which could cause delays and increase our cost of operations. In addition, the continued effectiveness of permits already granted or approvals already obtained is dependent upon many factors, some of which are beyond our control, such as changes in policies, rules and regulations and their interpretation and application.
Product liability litigation and warranty claims that arise in the ordinary course of business may be costly.
As a homebuilder, we are subject to construction defect and home warranty claims arising in the ordinary course of business. Such claims are common in the homebuilding industry and can be costly. In addition, the amount and scope of coverage offered by insurance companies is currently limited and this coverage may be further restricted and become more costly. If we are not able to obtain adequate insurance against such claims, we may experience losses that could hurt our financial results. Our financial results could also be adversely affected if we were to experience an unusually high number of claims or unusually severe claims.
We compete on several levels with homebuilders that may have greater sales and financial resources, which could hurt future earnings.
We compete not only for home buyers but also for desirable properties, financing, raw materials and skilled labor often within larger subdivisions designed, planned and developed by other homebuilders. Our competitors include other local, regional and national homebuilders, some of which have greater sales and financial resources.
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The
competitive conditions in the homebuilding industry together with current market conditions have, and could continue to, result in:
- •
- difficulty in acquiring suitable land at acceptable prices;
- •
- increased selling incentives;
- •
- lower sales; or
- •
- delays in construction.
Any of these problems could increase costs and/or lower profit margins.
We may have difficulty in obtaining the additional financing required to operate and develop our business.
Our operations require significant amounts of cash, and we may be required to seek additional capital, whether from sales of equity or borrowing additional money, for the future growth and development of our business. The terms or availability of additional capital is uncertain. Moreover, the indentures for our outstanding debt securities and our Revolving Credit Agreement contain provisions that restrict the debt we may incur and the equity we may issue in the future. If we are not successful in obtaining sufficient capital, it could reduce our sales and may hinder our future growth and results of operations. In addition, pledging substantially all of our assets to support the Revolving Credit Agreement and the notes may make it more difficult to raise additional financing in the future.
Our future growth may include additional acquisitions of companies that may not be successfully integrated and may not achieve expected benefits.
Acquisitions of companies have contributed to our growth and are a component of our growth strategy. In March 2005, we acquired Cambridge Homes and Town & Country Homes; in August 2005, we acquired Oster Homes and First Home Builders of Florida and in April 2006, we acquired Craftbuilt Homes. In the future, we may acquire other businesses, some of which may be significant. As a result of acquisitions of companies, we may need to seek additional financing and integrate product lines, dispersed operations and distinct corporate cultures. These integration efforts may not succeed or may distract our management from operating our existing business. Additionally, we may not be able to enhance our earnings as a result of acquisitions. Our failure to successfully identify and manage future acquisitions could harm our operating results.
Our controlling stockholders are able to exercise significant influence over us.
Kevork S. Hovnanian, the Chairman of our Board of Directors, and Ara K. Hovnanian, our President and Chief Executive Officer, have voting control, through personal holdings and family-owned entities, of Class A and Class B common stock that enables them to cast approximately 71.6% of the votes that may be cast by the holders of our outstanding Class A and Class B common stock combined. Their combined stock ownership enables them to exert significant control over us, including power to control the election of our Board of Directors and to approve matters presented to our stockholders. This concentration of ownership may also make some transactions, including mergers or other changes in control, more difficult or impossible without their support. Also, because of their combined voting power, circumstances may occur in which their interests could be in conflict with the interests of other stakeholders.
Our net operating loss carryforwards could be substantially limited if we experience an ownership change as defined in the Internal Revenue Code.
Based on recent impairments and our current financial performance, we expect to generate net operating loss carryforwards for the year ending October 31, 2008, and possibly future years.
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Section 382 of the Internal Revenue Code contains rules that limit the ability of a company that undergoes an ownership change, which is generally any change in ownership of more than 50% of its stock over a three-year period, to utilize its net operating loss carryforwards and certain built in losses recognized in years after the ownership change. These rules generally operate by focusing on ownership changes among stockholders owning directly or indirectly 5% or more of the stock of a company or any change in ownership arising from a new issuance of stock by the company.
If we undergo an ownership change for purposes of Section 382 as a result of future transactions involving our common stock, including purchases or sales of stock between 5% shareholders, our ability to use our net operating loss carryforwards and recognize certain built in losses would be subject to the limitations of Section 382. Depending on the resulting limitation, a significant portion of our net operating loss carryforwards could expire before we would be able to use them. Our inability to utilize our net operating loss carryforwards could have a negative impact on our financial position and results of operations.
Utility shortages and outages or rate fluctuations could have an adverse effect on our operations.
In prior years, the areas in which we operate in California have experienced power shortages, including periods without electrical power, as well as significant fluctuations in utility costs. We may incur additional costs and may not be able to complete construction on a timely basis if such power shortages/outages and utility rate fluctuations continue. Furthermore, power shortages and outages, such as the blackout that occurred in 2003 in the Northeast, and rate fluctuations may adversely affect the regional economies in which we operate, which may reduce demand for our homes. Our operations may be adversely affected if further rate fluctuations and/or power shortages and outages occur in California, the Northeast or in our other markets.
Geopolitical risks and market disruption could adversely affect our operating results and financial condition.
Geopolitical events, such as the aftermath of the war with Iraq and the continuing involvement in Iraq, may have a substantial impact on the economy and the housing market. The terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001 had an impact on our business and the occurrence of similar events in the future cannot be ruled out. The war and the continuing involvement in Iraq, terrorism and related geopolitical risks have created many economic and political uncertainties, some of which may have additional material adverse effects on the U.S. economy, and our customers and, in turn, our results of operations and financial condition.
Risks Related to the Notes
After completion of the offering, we will have a significant amount of indebtedness and we may incur additional indebtedness.
At July 31, 2008, the Issuer and the guarantors had approximately $2,515.0 million of debt (including the outstanding notes) outstanding. We and our subsidiaries may incur additional indebtedness in the future. Subject to certain conditions, the terms of the indenture under which the outstanding notes were, and the exchange notes will be, issued and our other existing debt instruments do not prohibit us or our subsidiaries from incurring additional indebtedness. If indebtedness is added to our current debt levels, the risks related to the notes and our indebtedness generally that we and our subsidiaries now face could intensify.
The notes will be structurally junior to indebtedness of our non-guarantor subsidiaries and joint ventures.
You will not have any claim as a creditor against any of our non-guarantor subsidiaries and joint ventures, and indebtedness and other liabilities, including trade payables, of those subsidiaries and joint ventures will effectively be senior to your claims against those subsidiaries and joint ventures. At
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July 31, 2008, our non-guarantor subsidiaries and joint ventures had $89.1 million and $395.4 million, respectively, of outstanding liabilities, including trade payables. In addition, the indenture under which the outstanding notes were, and the exchange notes will be, issued will, subject to certain limitations, permit these subsidiaries and joint ventures to incur additional indebtedness and will not contain any limitation on the amount of other liabilities, such as trade payables, that may be incurred by these subsidiaries.
Certain of our subsidiaries and all of our joint venture operations are not subject to the restrictive covenants in the indenture under which the outstanding notes were, and the exchange notes will be, issued.
Certain of our subsidiaries and all of our joint venture operations are not subject to the restrictive covenants in the indenture under which the outstanding notes were, and the exchange notes will be, issued. This means that these entities will be able to engage in many of the activities that we and our restricted subsidiaries are prohibited or limited from doing under the terms of such indenture, such as incurring additional debt, securing assets in priority to the claims of the holders of the notes, paying dividends, making investments, selling assets and entering into mergers or other business combinations. These actions could be detrimental to our ability to make payments of principal and interest when due and to comply with our other obligations under the notes, and could reduce the amount of our assets that would be available to satisfy your claims should we default on the notes.
All obligations under our Revolving Credit Agreement will be secured by first-priority liens on collateral that will also secure the notes. As a result, the notes will be effectively junior to all such obligations, to the extent of the value of such collateral.
All obligations under our Revolving Credit Agreement will be secured by first-priority liens on collateral that will also secure the notes, which will be secured by a second-priority lien on such collateral. As a result, the notes will be effectively junior to all of the obligations under the Revolving Credit Agreement to the extent of the value of such collateral. The effect of this subordination is that upon a default in payment on, or the acceleration of, any obligations under our Revolving Credit Agreement, or in the event of our, or our subsidiary guarantors', bankruptcy, insolvency, liquidation, dissolution, reorganization or similar proceeding, the proceeds from the sale of the assets that secure our Revolving Credit Agreement will be available to pay obligations on the notes only after all obligations under our Revolving Credit Agreement have been paid in full.
The notes will be secured only to the extent of the value of the assets that have been granted as security for the notes and in the event that the security is enforced against the collateral, the holders of the notes will receive proceeds from the collateral only after the lenders under our Revolving Credit Agreement and certain holders of additional secured debt.
Substantially all the assets owned by us and the guarantors on the date of the indenture or thereafter acquired, and all proceeds therefrom, will be subject to first-priority liens in favor of the lenders under our Revolving Credit Agreement. The holders of the notes will have second-priority liens on such assets, excluding pledges of stock of subsidiaries to the extent they would result in the filing of separate financial statements in SEC filings. Because obligations under our Revolving Credit Agreement will be secured on a first-priority basis, our failure to comply with the terms of that agreement would entitle those lenders to declare all funds borrowed under it to be immediately due and payable. If we were unable to service the indebtedness under the Revolving Credit Agreement, the lenders could foreclose on our assets that serve as collateral. As a result, upon any distribution to our creditors, liquidation, reorganization or similar proceedings, or following acceleration of any of our indebtedness or an event of default under our indebtedness and enforcement of the collateral, the lenders under our Revolving Credit Agreement will be entitled to be repaid in full from the proceeds of all the pledged assets owned by the Issuer and guarantors on the date of the indenture or thereafter
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acquired securing the indebtedness to them before any payment is made to you from the proceeds of that collateral.
In addition, the collateral securing the notes will be subject to liens permitted under the terms of the indenture governing the notes and the intercreditor agreement, whether arising on or after the date the notes are issued. The existence of any permitted liens could adversely affect the value of the collateral securing the notes as well as the ability of the collateral agent to realize or foreclose on such collateral.
Furthermore, all of the collateral has not been appraised in connection with this offering of exchange notes. As of July 31, 2008 the aggregate book value of the real property collateral was approximately $1.9 billion, which does not include the impact of inventory investments, home deliveries or impairments thereafter. The fair market value of this collateral is subject to fluctuations based on factors that include, among others, the condition of the homebuilding industry, our ability to implement our business strategy, the ability to sell the collateral in an orderly sale, general economic conditions, the availability of buyers and similar factors. The amount to be received upon a sale of the collateral would be dependent on numerous factors, including but not limited to the actual fair market value of the collateral at such time and the timing and the manner of the sale. By its nature, some or all of the collateral may be illiquid and may have no readily ascertainable market value. In the event that a bankruptcy case is commenced by or against us, if the value of the collateral is less than the amount of principal and accrued and unpaid interest on the notes and all other senior secured obligations, interest may cease to accrue on the notes from and after the date the bankruptcy petition is filed. In the event of a foreclosure, liquidation, bankruptcy or similar proceeding, we cannot assure you that the proceeds from any sale or liquidation of the collateral will be sufficient to pay our obligations under the notes.
In
addition, not all of our assets secure the notes. See "Description of Notes—Security." For example, the collateral will not
include:
- •
- pledges of stock of subsidiaries to the extent they would result in the filing of separate financial statements in SEC
filings;
- •
- personal property where the cost of obtaining a security interest or perfection thereof exceeds its benefits;
- •
- real property subject to a lien securing indebtedness incurred for the purpose of financing the acquisition thereof;
- •
- real property located outside of the United States;
- •
- unentitled land;
- •
- real property which is leased or held for the purpose of leasing to unaffiliated third parties;
- •
- equity interests in subsidiaries other than restricted subsidiaries, subject to future grants under certain circumstances
as required under the indenture;
- •
- any real property in a community under development with a dollar amount of investment as of the most recent
month-end (determined in accordance with GAAP) of less than $2.0 million or with less than 10 lots remaining;
- •
- up to $50.0 million of assets received in certain asset
dispositions or asset swaps or exchanges made in accordance
with the indenture;
- •
- assets with respect to which any applicable law or contract prohibits the creation or perfection of security interests
therein; and
- •
- any other assets excluded from the collateral securing the Revolving Credit Agreement and any other indebtedness securing first-priority liens on the collateral.
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In addition, the Issuer and the guarantors will not be required to provide control agreements with respect to certain deposit, checking or securities accounts with average balances below a certain dollar amount.
In the future, the obligation to grant additional security over assets, or a particular type or class of assets, whether as a result of the acquisition or creation of future assets or subsidiaries, the designation of a previously unrestricted subsidiary as a restricted subsidiary or otherwise, is subject to the provisions of the intercreditor agreement. The intercreditor agreement sets out a number of limitations on the rights of the holders of the notes to require security in certain circumstances, which may result in, among other things, the amount recoverable under any security provided by any subsidiary being limited and/or security not being granted over a particular type or class of assets. Accordingly, this may affect the value of the security provided by us and our subsidiaries.
To the extent that the claims of the holders of the notes exceed the value of the assets securing those notes and other liabilities, those claims will rank equally with the claims of the holders of our outstanding unsecured senior notes and any other indebtedness ranking pari passu with those unsecured notes. As a result, if the value of the assets pledged as security for the notes is less than the value of the claims of the holders of the notes, those claims may not be satisfied in full before the claims of our unsecured creditors are paid. Furthermore, upon enforcement against any collateral or in insolvency, under the terms of the intercreditor agreement the claims of the holders of the notes to the proceeds of such enforcement will rank behind the claims of the holders of obligations under our Revolving Credit Agreement, which are first-priority obligations, and holders of additional secured indebtedness (to the extent permitted to have priority by the indenture).
In addition, the security interest of the collateral agent will be subject to practical problems generally associated with the realization of security interests in collateral. For example, the collateral agent may need to obtain the consent of a third party to obtain or enforce a security interest in a contract. We cannot assure you that the collateral agent will be able to obtain any such consent. We also cannot assure you that the consents of any third parties will be given when required to facilitate a foreclosure on such assets. Accordingly, the collateral agent may not have the ability to foreclose upon those assets and the value of the collateral may significantly decrease.
The rights of holders of notes to the collateral will be governed, and materially limited, by the intercreditor agreement.
The rights of holders of notes to the collateral will be governed, and materially limited, by the intercreditor agreement. The holders of indebtedness under our Revolving Credit Agreement, which is secured on a first-priority basis, will control substantially all matters related to the collateral securing such indebtedness and the notes pursuant to the terms of the intercreditor agreement. Under the intercreditor agreement, at any time that the indebtedness secured on a first- priority basis remains outstanding, any actions that may be taken in respect of the collateral, including the ability to commence enforcement proceedings against the collateral and to control the conduct of such proceedings, and the approval of amendments to, releases of collateral from the lien of, and waivers of past defaults under, the collateral documents, will be at the direction of the holders of such indebtedness, and the trustee on behalf of the holders of the notes, with limited exceptions, will not have the ability to control or direct such actions, even if the rights of the holders of the notes are adversely affected. Any release (unless the release is in connection with termination of the Revolving Credit Agreement) of all first-priority liens upon any collateral approved by the holders of first-priority liens will also release the second-priority liens securing the notes on the same collateral. See "Description of Notes—Security—Release of Liens"
Because the lenders under the Revolving Credit Agreement will control the disposition of the collateral securing the Revolving Credit Agreement and the notes, if there were an event of default
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under the notes, the lenders could decide not to proceed against the collateral, regardless of whether or not there is a default under the Revolving Credit Agreement. In such event, the only remedy available to the holders of the notes would be to sue for payment on the notes and the guarantees. By virtue of the direction of the administration of the pledges and security interests and the release of collateral, actions may be taken under the collateral documents that may be adverse to you.
Your rights in the collateral may be adversely affected by the failure to perfect security interests in collateral.
Applicable law requires that a security interest in certain tangible and intangible assets can only be properly perfected and its priority retained through certain actions undertaken by the secured party. The liens in the collateral securing the notes may not be perfected with respect to the claims of the notes if the collateral agent is not able to take the actions necessary to perfect any of these liens on or prior to the date of the indenture governing the notes. In addition, applicable law requires that certain property and rights acquired after the grant of a general security interest, such as real property, can only be perfected at the time such property and rights are acquired and identified. We and the guarantors have limited obligations to perfect the security interest of the holders of the notes in specified collateral. There can be no assurance that the trustee or the collateral agent for the notes will monitor, or that we will inform such trustee or collateral agent of, the future acquisition of property and rights that constitute collateral, and that the necessary action will be taken to properly perfect the security interest in such after-acquired collateral. The collateral agent for the notes has no obligation to monitor the acquisition of additional property or rights that constitute collateral or the perfection of any security interest. Such failure may result in the loss of the security interest in the collateral or the priority of the security interest in favor of the notes against third parties.
In the event of our bankruptcy, the ability of the holders of the notes to realize upon the collateral will be subject to certain bankruptcy law limitations and limitations under the intercreditor agreement.
The ability of holders of the notes to realize upon the collateral will be subject to certain bankruptcy law limitations in the event of our bankruptcy. Under federal bankruptcy law, secured creditors are prohibited from repossessing their security from a debtor in a bankruptcy case, or from disposing of security repossessed from such a debtor, without bankruptcy court approval, which may not be given. Moreover, applicable federal bankruptcy laws generally permit the debtor to continue to use and expend collateral, including cash collateral, and to provide liens senior to the collateral agent for the notes' liens to secure indebtedness incurred after the commencement of a bankruptcy case, provided that the secured creditor either consents or is given "adequate protection." "Adequate protection" could include cash payments or the granting of additional security, if and at such times as the presiding court in its discretion determines, for any diminution in the value of the collateral as a result of the stay of repossession or disposition of the collateral during the pendency of the bankruptcy case, the use of collateral (including cash collateral) and the incurrence of such senior indebtedness. However, pursuant to the terms of the intercreditor agreement, the holders of the notes will agree not to seek or accept "adequate protection" consisting of cash payments and will not object to the incurrence of additional indebtedness secured by liens senior to the collateral agent for the notes' liens in an aggregate principal amount, together with the aggregate principal amount of first-priority lien obligations, of up to $400 million. In view of the lack of a precise definition of the term "adequate protection" and the broad discretionary powers of a U.S. bankruptcy court, we cannot predict whether or when the collateral agent under the indenture for the notes could foreclose upon or sell the collateral, and as a result of the limitations under the intercreditor agreement, the holders of the notes will not be compensated for any delay in payment or loss of value of the collateral through the provision of "adequate protection," except to the extent of any grant of additional liens that are junior to the first-priority obligations.
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In addition to the waiver with respect to adequate protection set forth above, under the terms of the intercreditor agreement, the holders of the notes will also waive certain other important rights that secured creditors may be entitled to in a bankruptcy proceeding, as described in "Description of Notes—Security—Intercreditor Agreement." These waivers could adversely impact the ability of the holders to recover amounts owed to them in a bankruptcy proceeding.
The collateral securing the notes may be diluted under certain circumstances.
The collateral that will secure the notes will also secure obligations under the $300.0 million Revolving Credit Agreement. In addition, the collateral securing the notes will secure obligations under interest rate and currency agreements with lenders or their affiliates as permitted by the terms of the Revolving Credit Agreement. This collateral may secure additional senior indebtedness that the Company or certain of its subsidiaries incurs in the future, subject to restrictions on their ability to incur debt and liens under the Revolving Credit Agreement and the indenture governing the notes. Your rights to the collateral would be diluted by any increase in the indebtedness secured by this collateral.
Any future grant of collateral might be avoidable by a trustee in bankruptcy.
Any future grant of collateral in favor of the collateral agent for the benefit of the trustee might be avoidable by the grantor (as debtor in possession) or by its trustee in bankruptcy if certain events or circumstances exist or occur, including, among others, if the grantor is insolvent at the time of the grant, the grant permits the holders of the notes to receive a greater recovery than if the grant had not been given and a bankruptcy proceeding in respect of the grantor is commenced within 90 days following the grant or, in certain circumstances, a longer period. A substantial portion of the collateral will constitute inventory of real estate. As the inventory is sold and new inventory is acquired, the granting of liens on the new inventory will trigger a new 90 day "preference" period. It is possible, particularly during a time when our inventory is turning over quickly, that liens on a substantial portion of the collateral at any time may have been granted during the preceding 90 day period.
Corporate benefit laws and other limitations on the guarantees and security may adversely affect the validity and enforceability of the guarantees of the notes and security granted by the guarantors.
The guarantees of the notes by the guarantors and security granted by such guarantors provide the holders of the notes with a direct claim against the assets of the guarantors. Each of the guarantees and the amount recoverable under the security documents, however, will be limited to the maximum amount that can be guaranteed or secured by a particular guarantor without rendering the guarantee or security, as it relates to that guarantor, voidable or otherwise ineffective under applicable law. In addition, enforcement of any of these guarantees or security against any guarantor will be subject to certain defenses available to guarantors and security providers generally. These laws and defenses include those that relate to fraudulent conveyance or transfer, voidable preference, corporate purpose or benefit, preservation of share capital, thin capitalization and regulations or defenses affecting the rights of creditors generally. If one or more of these laws and defenses are applicable, a guarantor may have no liability or decreased liability under its guarantee or the security documents to which it is a party.
Federal and state laws allow courts, under specific circumstances, to void guarantees and grants of security and to require you to return payments received from guarantors.
Under U.S. federal bankruptcy law or comparable provisions of state fraudulent transfer laws, future creditors of any guarantor could void the issuance of the guarantees and the grant of security by
27
the
guarantors or subordinate such obligations or liens to all of their other debts and liabilities if they were successful in establishing that:
- •
- the guarantee or grant of security was incurred with fraudulent intent; or
- •
- the guarantor did not receive fair consideration or
reasonably equivalent value for issuing its guarantee or grant of
security and
- •
- was insolvent at the time of the guarantee or grant;
- •
- was rendered insolvent by reason of the guarantee or grant;
- •
- was engaged in a business or transaction for which its assets constituted unreasonably small capital to carry on its
business; or
- •
- intended to incur, or believed that it would incur, debt beyond its ability to pay such debt as it matured.
The
measures of insolvency for purposes of determining whether a fraudulent conveyance occurred vary depending upon the laws of the relevant jurisdiction and upon the valuation
assumptions and methodology applied by the court. Generally, however, a company would be considered insolvent for purposes of the foregoing if:
- •
- the sum of the company's debts, including contingent, unliquidated and unmatured liabilities, is greater than all of such
company's property at a fair valuation, or
- •
- if the present fair saleable value of the company's assets is less than the amount that will be required to pay the probable liability on its existing debts as they become absolute and matured.
We cannot assure you as to what standard a court would apply in order to determine whether a guarantor was "insolvent" as of the date its guarantee or grant was issued, and we cannot assure you that, regardless of the method of valuation, a court would not determine that any guarantors were insolvent on that date. The subsidiary guarantees could be subject to the claim that, since the guarantees and grant of security were incurred for the benefit of Hovnanian and the Issuer, and only indirectly for the benefit of the other guarantors, the obligations of the guarantors thereunder were incurred for less than reasonably equivalent value or fair consideration.
Federal and state environmental laws may decrease the value of the collateral securing the notes and may result in you being liable for environmental cleanup costs at our facilities.
The notes and guarantees are secured by liens on real property that may be subject to both known and unforeseen environmental risks, and these risks may reduce or eliminate the value of the real property pledged as collateral for the notes or adversely affect the ability of the debtor to repay the notes. See "Homebuilders are subject to a number of federal, local, state and foreign laws and regulations concerning the development of land, the home building, sales and customer financing processes and protection of the environment, which can cause us to incur delays and costs associated with compliance and which can prohibit or restrict our activity in some regions or areas" and "Business—Regulation and Environmental Matters" in our Annual Report on Form 10-K for the year ended October 31, 2007, which is incorporated by reference herein.
Moreover, under some federal and state environmental laws, a secured lender may in some situations become subject to its debtor's environmental liabilities, including liabilities arising out of contamination at or from the debtor's properties. Such liability can arise before foreclosure, if the secured lender becomes sufficiently involved in the management of the affected facility. Similarly, when a secured lender forecloses and takes title to a contaminated facility or property, the lender could become subject to such liabilities, depending on the circumstances. Before taking some actions, the collateral agent for the notes may request that you provide for its reimbursement for any of its costs,
28
expenses and liabilities. Cleanup costs could become a liability of the collateral agent for the notes, and, if you agreed to provide for the collateral agent's costs, expenses and liabilities, you could be required to help repay those costs. You may agree to indemnify the collateral agent for the notes for its costs, expenses and liabilities before you or the collateral agent knows what those amounts ultimately will be. If you agreed to this indemnification without sufficient limitations, you could be required to pay the collateral agent an amount that is greater than the amount you paid for the notes. In addition, rather than acting through the collateral agent, you may in some circumstances act directly to pursue a remedy under the indenture. If you exercise that right, you could be considered to be a lender and be subject to the risks discussed above.
Exercise of Change of Control Rights—We may not have the ability to raise funds necessary to finance any change of control offer required by the indenture.
If a change of control occurs as described in the section "Description of Notes—Certain covenants" we would be required to offer to purchase your notes at 101% of their principal amount together with all accrued and unpaid interest, if any, to the date of purchase. If a purchase offer obligation arises under the indenture governing your notes, a change of control will have also occurred under the indentures governing our other debt. Our Revolving Credit Agreement will provide that certain change of control events will constitute a default and could result in the acceleration of the indebtedness outstanding thereunder. Any of our future debt agreements may contain similar restrictions and provisions. If a purchase offer were required under the indentures for our debt, we may not have sufficient funds to pay the purchase price for all debt that we are required to repurchase or repay. We do not currently have sufficient funds available to purchase all of such outstanding debt.
An active trading market may not develop for the exchange notes.
We are offering the exchange notes to the holders of the outstanding notes. The exchange notes are a new issue of securities. There is no active public trading market for the exchange notes. We do not intend to apply for listing of the exchange notes on a security exchange. The initial purchasers of the outstanding notes have informed us that they intend to make a market in the exchange notes. However, the initial purchasers may cease their market-making at any time. We cannot assure you that an active trading market will develop for the exchange notes or that the exchange notes will trade as one class with the outstanding notes. In addition, the liquidity of the trading market in the exchange notes and the market prices quoted for the exchange notes may be adversely affected by changes in the overall market for this type of security and by changes in our financial performance or prospects or in the prospects for companies in our industry generally. As a consequence, an active trading market may not develop for your exchange notes, you may not be able to sell your exchange notes, or, even if you can sell your exchange notes, you may not be able to sell them at an acceptable price.
29
RATIO OF EARNINGS TO FIXED CHARGES
For purposes of computing the ratio of earnings to fixed charges, earnings consist of earnings from continuing operations before income taxes and income or loss from equity investees, plus fixed charges and distributed income of equity investees, less interest capitalized. Fixed charges consist of all interest incurred plus the amortization of debt issuance costs and bond discounts.
The following table sets forth the ratio of earnings to fixed charges for Hovnanian for each of the periods indicated.
| |
|
Year Ended October 31, | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
Nine Months Ended July 31, 2008 |
||||||||||||||||||
| |
2007 | 2006 | 2005 | 2004 | 2003 | ||||||||||||||
Ratio of earnings to fixed charges |
(a) | (a) | 2.0 | 7.8 | 6.3 | 6.7 | |||||||||||||
- (a)
- Earnings for the nine months ended July 31, 2008 and the year ended October 31, 2007 were insufficient to cover fixed charges for such period by $724.5 million and $667.5 million, respectively.
30
The exchange offer is intended to satisfy our obligations under the registration rights agreement that we entered into in connection with the private offering of the outstanding notes. We will not receive any cash proceeds from the issuance of the exchange notes in the exchange offer. As consideration for issuing the exchange notes as contemplated in this prospectus, we will receive in exchange a like principal amount of outstanding notes, the terms of which are identical in all material respects to the exchange notes, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions or additional interest upon a failure to fulfill certain of our obligations under the registration rights agreement. The outstanding notes that are surrendered in exchange for the exchange notes will be retired and cancelled and cannot be reissued. As a result, the issuance of the exchange notes will not result in any increase or decrease in our capitalization.
We offered the outstanding notes as part of a refinancing in which we (1) used a portion of the net proceeds from the private offering of the outstanding notes to repay amounts outstanding under our revolving credit facility and (2) entered into an amendment to our revolving credit agreement and decreased commitments thereunder from $900 million to $300 million. We used the remainder of the net proceeds from the private offering of the outstanding notes for general corporate purposes. Availability under our revolving credit facility equals the lesser of $300 million or the amount available pursuant to our borrowing base and our sub-limit for revolving liens is $100 million. Amounts available under the revolving credit facility may be borrowed, repaid and reborrowed, and letters of credit may be issued until the maturity of our revolving credit facility on May 31, 2011 and may be used for general corporate purposes and working capital.
31
The following table sets forth our capitalization as of July 31, 2008. This table should be read in conjunction with our consolidated financial statements and the related notes thereto and the other financial information included and incorporated by reference in this prospectus.
| |
As of July 31, 2008 |
||||||
|---|---|---|---|---|---|---|---|
| |
(unaudited) (In thousands) |
||||||
Homebuilding Cash and Cash Equivalents, Excluding Restricted Cash |
$ | 677,213 | |||||
Debt(1): |
|||||||
Revolving Credit Facility |
$ | — | |||||
Nonrecourse Land Mortgages |
4,824 | ||||||
Nonrecourse Mortgages Secured by Operating Property |
22,492 | ||||||
111/2% Senior Secured Notes due 2013 |
594,524 | ||||||
8% Senior Notes due 2012 |
99,604 | ||||||
61/2% Senior Notes due 2014 |
215,000 | ||||||
63/8% Senior Notes due 2014 |
150,000 | ||||||
61/4% Senior Notes due 2015 |
200,000 | ||||||
61/4% Senior Notes due 2016 |
296,346 | ||||||
71/2% Senior Notes due 2016 |
300,000 | ||||||
85/8% Senior Notes due 2017 |
250,000 | ||||||
6% Senior Subordinated Notes due 2010 |
100,000 | ||||||
87/8% Senior Subordinated Notes due 2012 |
150,000 | ||||||
73/4% Senior Subordinated Notes due 2013 |
150,000 | ||||||
Total Debt |
$ | 2,532,790 | |||||
Stockholders' Equity: |
|||||||
Preferred Stock, $.01 par value; 100,000 Shares Authorized; 5,600 Shares of 7.625% Series A Preferred Stock issued at July 31, 2008 with a liquidation preference of $140,000(2) |
$ | 135,299 | |||||
Common Stock, Class A, $.01 par value; 200,000,000 Shares Authorized; 73,796,543 Shares issued at July 31, 2008 (including 11,694,720 Shares Held in Treasury at July 31, 2008) |
738 | ||||||
Common Stock, Class B, $.01 par value (Convertible to Class A at time of sale); 30,000,000 Shares Authorized; 15,335,394 Shares issued at July 31, 2008 (including 691,748 Shares Held in Treasury at July 31, 2008) |
153 | ||||||
Paid in Capital |
415,797 | ||||||
Retained Earnings |
341,164 | ||||||
Treasury Stock—at Cost |
(115,257 | ) | |||||
Total Stockholders' Equity |
$ | 777,894 | |||||
Total Capitalization |
$ | 3,310,684 | |||||
- (1)
- References
to our consolidated debt in this prospectus exclude debt of $83.1 million under our secured master repurchase agreement as of
July 31, 2008, a short-term borrowing facility used by our mortgage banking subsidiary. In addition, debt amounts reflected in this table are net of
discount.
- (2)
- On July 29, 2008, Hovnanian's Board of Directors declared a dividend of one Preferred Stock Purchase Right for each outstanding share of Class A and Class B Common Stock. The dividend was paid to stockholders of record on August 15, 2008. Subject to the terms, provisions and conditions of the Rights Plan, if the Preferred Stock Purchase Rights become exercisable, each Preferred Stock Purchase Right would initially represent the right to purchase from Hovnanian one ten-thousandth of a share of Series B Junior Preferred Stock for a purchase price of $35.00. However, prior to exercise, a Preferred Stock Purchase Right does not give its holder any rights as a stockholder, including without limitation, any dividend, voting or liquidation rights.
32
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The following selected historical consolidated financial data for each of the fiscal years ended October 31, 2007, 2006, 2005, 2004 and 2003 have been derived from the audited consolidated financial statements of Hovnanian Enterprises, Inc.
The following selected historical consolidated financial data for the nine month periods ended July 31, 2008 and 2007 have been derived from the unaudited condensed consolidated financial statements of Hovnanian Enterprises, Inc. The unaudited condensed consolidated financial statements include all adjustments, consisting of normal recurring accruals and deferrals, which management considers necessary for a fair presentation of the consolidated financial position and the results of operations for these periods. Operating results for the nine month period ended July 31, 2008 are not necessarily indicative of the results that may be expected for the entire year ending October 31, 2008. Per common share data and weighted average number of common shares outstanding reflect all stock splits.
You should read the following data in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" included in our Annual Report on Form 10-K for the fiscal year ended October 31, 2007, and in our Quarterly Report on Form 10-Q for the quarter ended July 31, 2008, which are incorporated by reference herein, and with the consolidated financial statements, related notes, and other financial information included and incorporated by reference herein.
| |
Nine Months Ended July 31, | Year Ended October 31, | |||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
2008 | 2007 | 2007 | 2006 | 2005 | 2004 | 2003 | ||||||||||||||||
| |
(unaudited) |
|
|
|
|
|
|||||||||||||||||
| |
(Dollars in thousands, except per share data) |
||||||||||||||||||||||
Income Statement Data |
|||||||||||||||||||||||
Revenues |
$ | 2,586,681 | $ | 3,407,052 | $ | 4,798,921 | $ | 6,148,235 | $ | 5,348,417 | $ | 4,153,890 | $ | 3,201,944 | |||||||||
Expenses |
3,288,910 | 3,638,313 | 5,417,664 | 5,930,514 | 4,602,871 | 3,608,909 | 2,790,339 | ||||||||||||||||
(Loss) income from unconsolidated joint ventures |
(9,356 | ) | (2,934 | ) | (28,223 | ) | 15,385 | 35,039 | 4,791 | (87 | ) | ||||||||||||
(Loss) income before income taxes |
(711,585 | ) | (234,195 | ) | (646,966 | ) | 233,106 | 780,585 | 549,772 | 411,518 | |||||||||||||
State and federal income taxes (benefit)/provision |
(37,454 | ) | (73,669 | ) | (19,847 | ) | 83,573 | 308,738 | 201,091 | 154,138 | |||||||||||||
Net (loss) income |
(674,131 | ) | (160,526 | ) | (627,119 | ) | 149,533 | 471,847 | 348,681 | 257,380 | |||||||||||||
Less: preferred stock dividends |
— | 8,006 | 10,674 | 10,675 | 2,758 | — | — | ||||||||||||||||
Net (loss) income available to common stockholders |
$ | (674,131 | ) | $ | (168,532 | ) | $ | (637,793 | ) | $ | 138,858 | $ | 469,089 | $ | 348,681 | $ | 257,380 | ||||||
Per Share Data |
|||||||||||||||||||||||
Basic: |
|||||||||||||||||||||||
(Loss) net income per common share |
$ | (9.98 | ) | $ | (2.67 | ) | $ | (10.11 | ) | $ | 2.21 | $ | 7.51 | $ | 5.63 | $ | 4.16 | ||||||
Weighted average number of common shares outstanding |
67,574 | 63,036 | 63,079 | 62,822 | 62,490 | 61,892 | 61,920 | ||||||||||||||||
Assuming Dilution: |
|||||||||||||||||||||||
(Loss) income per common share |
$ | (9.98 | ) | $ | (2.67 | ) | $ | (10.11 | ) | $ | 2.14 | $ | 7.16 | $ | 5.35 | $ | 3.93 | ||||||
Weighted average number of common shares outstanding |
67,574 | 63,036 | 63,079 | 64,838 | 65,549 | 65,133 | 65,538 | ||||||||||||||||
Balance sheet data |
|||||||||||||||||||||||
Total assets |
$ | 4,101,708 | $ | 5,362,762 | $ | 4,540,548 | $ | 5,480,035 | $ | 4,726,138 | $ | 3,156,267 | $ | 2,332,371 | |||||||||
Mortgages, term loans, revolving credit agreements and notes payable |
$ | 110,458 | $ | 636,796 | $ | 410,298 | $ | 319,943 | $ | 271,868 | $ | 354,055 | $ | 326,216 | |||||||||
Senior secured notes, senior notes and senior subordinated notes |
$ | 2,505,474 | $ | 2,050,628 | $ | 1,910,600 | $ | 2,049,778 | $ | 1,498,739 | $ | 902,737 | $ | 687,166 | |||||||||
Stockholders' equity |
$ | 777,894 | $ | 1,785,734 | $ | 1,321,803 | $ | 1,942,163 | $ | 1,791,357 | $ | 1,192,394 | $ | 819,712 | |||||||||
33
General
K. Hovnanian hereby offers to exchange a like principal amount of exchange notes for any or all outstanding notes on the terms and subject to the conditions set forth in this prospectus and accompanying letter of transmittal. We refer to this offer as the "exchange offer." You may tender some or all of your outstanding notes pursuant to the exchange offer.
As of the date of this prospectus, $600,000,000 aggregate principal amount of the outstanding notes is outstanding. This prospectus, together with the letter of transmittal, is first being sent to all holders of outstanding notes known to us on or about , 2008. K. Hovnanian's obligation to accept outstanding notes for exchange pursuant to the exchange offer is subject to certain conditions set forth under "—Conditions to the Exchange Offer" below. K. Hovnanian currently expects that each of the conditions will be satisfied and that no waivers will be necessary.
Purpose and Effect of the Exchange Offer
We entered into a registration rights agreement with the initial purchasers of the outstanding notes in which we agreed, under certain circumstances, to file a registration statement relating to an offer to exchange the outstanding notes for exchange notes by September 24, 2008. We also agreed to use our reasonable best efforts to cause such offer to be consummated on or prior to 30 business days after the registration statement has become effective but in no event later than 40 business days thereafter. The exchange notes will have terms substantially identical to the terms of the outstanding notes, except that the exchange notes will not contain terms with respect to transfer restrictions or additional interest upon a failure to fulfill certain of our obligations under the registration rights agreement. The outstanding notes were issued on May 27, 2008.
Under
the circumstances set forth below, we will use our reasonable best efforts to cause the Securities and Exchange Commission, or the SEC, to declare effective a shelf registration
statement with respect to the resale of the outstanding notes within the time periods specified in the registration rights
agreement and to keep the shelf registration statement effective at least one year after the effective date of the shelf registration statement or such shorter period as will terminate when all
securities covered by such shelf registration statement have been sold pursuant thereto. These circumstances include:
- •
- if applicable law or interpretations of the staff of the SEC do not permit K. Hovnanian and the guarantors to effect this
exchange offer after we have sought a no-action letter or other favorable decision from the SEC and after we have taken all such other actions as may be requested by the SEC or otherwise
required in connection with such decision; and
- •
- if any holder of the outstanding notes notifies us within 20 business days following the consummation deadline of the
exchange offer that:
- •
- based on an opinion of counsel, such holder was prohibited by law or SEC policy from participating in the exchange offer;
or
- •
- such holder is a broker-dealer and holds the outstanding notes acquired directly from us or our affiliates.
If we fail to comply with certain obligations under the registration rights agreement, we will be required to pay additional interest to holders of the outstanding notes and the exchange notes required to be registered on a shelf registration statement. Please read the section "Exchange Offer; Registration Rights" for more details regarding the registration rights agreement.
34
Each
holder of outstanding notes that wishes to exchange their outstanding notes for exchange notes in the exchange offer will be required to make the following written
representations:
- •
- such holder is not an affiliate of K. Hovnanian or the guarantors within the meaning of Rule 144 of the Securities
Act, or, if it is an affiliate, it will comply with all applicable registration and prospectus delivery requirements of the Securities Act;
- •
- such holder is not engaged in, does
not intend to engage in, and has no arrangement or understanding with any person to
participate in, a distribution (within the meaning of the Securities Act) of the exchange notes in violation of the provisions of the Securities Act; and
- •
- such holder is acquiring the exchange notes in the ordinary course of its business.
Each broker-dealer that receives exchange notes for its own account in exchange for outstanding notes, where the broker-dealer acquired the outstanding notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. See "Plan of Distribution."
Resale of Exchange Notes
Based on interpretations by the staff of the SEC set forth in no-action letters issued to third parties referred to below,
we believe that you may resell or otherwise transfer exchange notes issued in the exchange offer without complying with the registration and prospectus delivery provisions of the Securities Act,
if:
- •
- you are acquiring the exchange notes in your ordinary course of business;
- •
- you do not have an arrangement or understanding
with any person to participate in a distribution of the exchange notes;
- •
- you are not an affiliate of K. Hovnanian or any guarantor as defined by Rule 405 of the Securities Act; and
- •
- you are not engaged in, and do not intend to engage in, a distribution of the exchange notes.
If
you are an affiliate of K. Hovnanian or any guarantor, or are engaged in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a
distribution of the exchange notes, or are not acquiring the exchange notes in the ordinary course of your business:
- •
- you cannot rely on the position of the staff of the SEC enunciated in Morgan
Stanley & Co., Inc. (available June 5, 1991), Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling (available July 2, 1993), or similar no-action
letters; and
- •
- in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes.
This prospectus may be used for an offer to resell, for resale or for other retransfer of exchange notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the outstanding notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives exchange notes for its own account in exchange for outstanding notes, where such outstanding notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. Please read "Plan of Distribution" for more details regarding the transfer of exchange notes.
35
Terms of the Exchange Offer
On the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we will accept for exchange in the exchange offer outstanding notes that are validly tendered and not validly withdrawn prior to the expiration date. Outstanding notes may only be tendered in denominations of $2,000 and higher integral multiples of $1,000. We will issue $2,000 principal amount of exchange notes in exchange for each $2,000 principal amount of outstanding notes surrendered in the exchange offer.
The form and terms of the exchange notes will be substantially identical to the form and terms of the outstanding notes, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions or additional interest upon a failure to fulfill certain of our obligations under the registration rights agreement. The exchange notes will evidence the same debt as the outstanding notes. The exchange notes will be issued under and entitled to the benefits of the same indenture under which the outstanding notes were issued and the exchange notes and the outstanding notes will constitute a single class and series of notes for all purposes under the indenture. For a description of the indenture, see "Description of Notes."
The exchange offer is not conditioned upon any minimum aggregate principal amount of outstanding notes being tendered for exchange.
As of the date of this prospectus, $600,000,000 aggregate principal amount of the outstanding notes is outstanding. This prospectus and a letter of transmittal are being sent to all registered holders of outstanding notes. There will be no fixed record date for determining registered holders of outstanding notes entitled to participate in the exchange offer.
We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the SEC. Outstanding notes that are not tendered for exchange in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits that such holders have under the indenture relating to such holders' outstanding notes, except for any rights under the registration rights agreement that by their terms terminate upon the consummation of the exchange offer.
We will be deemed to have accepted for exchange properly tendered outstanding notes when we have given notice of the acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the exchange notes from us and delivering exchange notes to holders. Subject to the terms of the registration rights agreement, we expressly reserve the right to amend or terminate the exchange offer and to refuse to accept outstanding notes not previously accepted upon the occurrence of any of the conditions specified below under "—Conditions to the Exchange Offer."
Holders who tender outstanding notes in the exchange offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of outstanding notes. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the exchange offer. It is important that you read "—Fees and Expenses" below for more details regarding fees and expenses incurred in the exchange offer.
Expiration Date; Extensions, Amendments
As used in this prospectus, the term "expiration date" means 5:00 p.m., New York City time, on , 2008. However, if we, in our sole discretion, extend the period of time for which the exchange offer is open, the term "expiration date" will mean the latest time and date to which we shall have extended the expiration of the exchange offer.
36
To extend the period of time during which the exchange offer is open, we will notify the exchange agent of any extension, followed by notification to the registered holders of the outstanding notes no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date.
We
reserve the right, in our sole discretion:
- •
- to delay accepting for exchange any outstanding notes;
- •
- to extend the exchange offer or to terminate the exchange offer and to
refuse to accept outstanding notes not previously
accepted if any of the conditions set forth below under "—Conditions to the Exchange Offer" have not been satisfied, by giving notice of such delay, extension or termination to the
exchange agent; and
- •
- subject to the terms of the registration rights agreement, to amend the terms of the exchange offer in any manner.
Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by notice to the registered holders of the outstanding notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly disclose the amendment in a manner reasonably calculated to inform the holders of outstanding notes of that amendment.
Conditions to the Exchange Offer
Despite any other term of the exchange offer, we will not be required to accept for exchange, or to issue exchange notes in exchange
for, any outstanding notes, and we may terminate or amend the exchange offer as provided in this prospectus before accepting any outstanding notes for exchange
if:
- •
- the exchange offer, or the making of any exchange by a holder of outstanding notes, violates any applicable law or
interpretation of the staff of the SEC;
- •
- any action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might
materially impair our ability to proceed with the exchange offer, and any material adverse development shall have occurred in any existing action or proceeding with respect to us; or
- •
- all governmental approvals shall not have been obtained, which approvals we deem necessary for the consummation of the exchange offer.
In
addition, we will not be obligated to accept for exchange the outstanding notes of any holder that has not made to us:
- •
- the representations described under "—Purpose and Effect of the Exchange Offer" and "—Procedures
for Tendering"; and
- •
- any other representations as may be reasonably necessary under applicable SEC rules, regulations, or interpretations to make available to us an appropriate form for registration of the exchange notes under the Securities Act.
We expressly reserve the right at any time or at various times to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any outstanding notes by giving notice of such extension to their holders. During any such extensions, all outstanding notes previously tendered will remain subject to the exchange offer and we may accept them for exchange. We will return any outstanding notes that we do not accept for exchange for any reason without expense to their tendering holders as promptly as practicable after the expiration or termination of the exchange offer.
37
We expressly reserve the right to amend or terminate the exchange offer and to reject for exchange any outstanding notes not previously accepted for exchange upon the occurrence of any of the conditions of the exchange offer specified above. We will give notice of any extension, amendment, non-acceptance or termination to the holders of the outstanding notes as promptly as practicable. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration date.
These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times in our sole discretion. If we fail at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times.
Procedures for Tendering
Only a holder of outstanding notes may tender their outstanding notes in the exchange offer. To tender in the exchange offer, a holder
must comply with either of the following:
- •
- complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal, have the signature on the
letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal or facsimile to the exchange agent prior to the expiration date; or
- •
- comply with DTC's Automated Tender Offer Program procedures described below.
In
addition, either:
- •
- the exchange agent must receive outstanding notes along with the letter of transmittal; or
- •
- prior to the expiration date, the exchange agent must receive a timely confirmation of book-entry transfer of
outstanding notes into the exchange agent's account at DTC according to the procedure for book-entry transfer described below or a properly transmitted agent's message; or
- •
- the holder must comply with the guaranteed delivery procedures described below.
To be tendered effectively, the exchange agent must receive any physical delivery of the letter of transmittal and other required documents at the address set forth below under "—Exchange Agent" prior to the expiration date.
A tender to us that is not withdrawn prior to the expiration date constitutes an agreement between us and the tendering holder upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.
The method of delivery of outstanding notes, letter of transmittal, and all other required documents to the exchange agent is at the holder's election and risk. Rather than mail these items, we recommend that holders use an overnight or hand delivery service. In all cases, holders should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. Holders should not send letters of transmittal or certificates representing outstanding notes to us. Holders may request that their respective brokers, dealers, commercial banks, trust companies or other nominees effect the above transactions for them.
If you are a beneficial owner whose outstanding notes are held in the name of a broker, dealer, commercial bank, trust company, or other nominee and you wish to participate in the exchange offer, you should promptly contact such party and instruct such person to tender outstanding notes on your behalf.
38
You must make these arrangements or follow these procedures before completing and executing the letter of transmittal and delivering your outstanding notes.
Signatures
on the letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by a member firm of a registered national securities exchange or of the NASD, a
commercial bank or trust company having an office or correspondent in the United States or another "Eligible Guarantor Institution" within the meaning of Rule 17Ad-15 under the
Exchange Act unless the outstanding notes surrendered for exchange are tendered:
- •
- by a registered holder of the outstanding notes who has not completed the box entitled "Special Registration Instructions"
or "Special Delivery Instructions" on the letter of transmittal; or
- •
- for the account of an Eligible Guarantor Institution.
If the letter of transmittal is signed by a person other than the registered holder of any outstanding notes listed on the outstanding notes, such outstanding notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder's name appears on the outstanding notes and an Eligible Guarantor Institution must guarantee the signature on the bond power.
If the letter of transmittal or any certificates representing outstanding notes, or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations, or others acting in a fiduciary or representative capacity, those persons should also indicate when signing and, unless waived by us, they should also submit evidence satisfactory to us of their authority to so act.
Book-Entry Delivery Procedures
Promptly after the date of this prospectus, the exchange agent will establish an account with respect to the outstanding notes at DTC for purposes of the exchange offer. Any financial institution that is a participant in DTC's systems may make book-entry delivery of the outstanding notes by causing DTC to transfer those outstanding notes into the exchange agent's account at DTC in accordance with DTC's procedures for such transfer. To be timely, book-entry delivery of outstanding notes requires receipt of a confirmation of a book-entry transfer, a "book-entry confirmation," prior to the expiration date. In addition, although delivery of outstanding notes may be effected through book-entry transfer into the exchange agent's account at DTC, the letter of transmittal or a manually signed facsimile thereof, together with any required signature guarantees and any other required documents, or an "agent's message," as defined below, in connection with a book-entry transfer, must, in any case, be delivered or transmitted to and received by the exchange agent at its address set forth on the cover page of the letter of transmittal prior to the expiration date to receive exchange notes for tendered outstanding notes, or the guaranteed delivery procedure described below must be complied with. Tender will not be deemed made until such documents are received by the exchange agent. Delivery of documents to DTC does not constitute delivery to the exchange agent. Holders of outstanding notes who are unable to deliver confirmation of the book-entry tender of their outstanding notes into the exchange agent's account at DTC or all other documents required by the letter of transmittal to the exchange agent on or prior to the expiration date must tender their outstanding notes according to the guaranteed delivery procedures described below.
Tender of Outstanding Notes Held Through The Depository Trust Company
The exchange agent and DTC have confirmed that any financial institution that is a participant in DTC's system may use DTC's Automated Tender Offer Program to tender. Participants in the program may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their acceptance of the exchange offer by causing DTC to transfer the outstanding notes to the exchange agent in accordance with DTC's Automated Tender
39
Offer
Program procedures for transfer. DTC will then send an agent's message to the exchange agent. The term "agent's message" means a message transmitted by DTC, received by the exchange agent and
forming part of the book-entry confirmation, which states that:
- •
- DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that it is tendering
outstanding notes that are the subject of the book-entry confirmation;
- •
- the participant has received and agrees to be bound by the terms of the letter of transmittal, or, in the
case of an
agent's message relating to guaranteed delivery, that such participant has received and agrees to be bound by the applicable notice of guaranteed delivery; and
- •
- we may enforce that agreement against such participant.
Acceptance of Exchange Notes
In all cases, we will issue exchange notes for outstanding notes that we have accepted for exchange under the exchange offer only after
the exchange agent timely receives:
- •
- outstanding notes or a timely book-entry confirmation of such outstanding notes into the exchange agent's
account at DTC; and
- •
- a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent's message.
By
tendering outstanding notes pursuant to the exchange offer, each holder will represent to us that, among other things:
- •
- the holder is not an affiliate of K. Hovnanian or the guarantors within the meaning of Rule 405 of the Securities
Act;
- •
- the holder is not engaged in, does not intend to engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the exchange notes; and
- •
- the holder is acquiring the exchange notes in the ordinary course of its business.
If
the holder is an affiliate of K. Hovnanian or any guarantor, or is engaging in, or intends to engage in, or has any arrangement or understanding with any person to participate in, a
distribution of the exchange notes, or is not acquiring the exchange notes in the ordinary course of its business:
- •
- the holder cannot rely on the position of the staff of the SEC enunciated in Morgan
Stanley & Co., Inc. (available June 5, 1991), Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling (available July 2, 1993), or similar no-action
letters; and
- •
- in the absence of an exception from the position stated immediately above, the holder must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes.
In addition, each broker-dealer that is to receive exchange notes for its own account in exchange for outstanding notes must represent that such outstanding notes were acquired by that broker-dealer as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the exchange notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. See "Plan of Distribution."
40
We will interpret the terms and conditions of the exchange offer, including the letter of transmittal and the instructions to the letter of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt, and acceptance of outstanding notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of any particular outstanding notes not properly tendered or to not accept any particular outstanding notes if the acceptance might, in our or our counsel's judgment, be unlawful. We also reserve the absolute right to waive any defects or irregularities or conditions of the exchange offer as to any particular outstanding notes either before or after the expiration date, including the right to waive the ineligibility of any holder who seeks to tender outstanding notes in the exchange offer.
Unless waived, any defects or irregularities in connection with tenders of outstanding notes for exchange must be cured within a reasonable period of time as we determine. Neither we, the exchange agent, nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of outstanding notes for exchange, nor will any of them incur any liability for any failure to give notification. Any outstanding notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, without cost to the holder, unless otherwise provided in the letter of transmittal, as soon as practicable after the expiration date.
Guaranteed Delivery Procedures
Holders wishing to tender their outstanding notes but whose outstanding notes are not immediately available or who cannot deliver their
outstanding notes, the letter of transmittal or any other required documents to the exchange agent or comply with the applicable procedures under DTC's Automatic Tender Offer Program prior to the
expiration date may still tender if:
- •
- the tender is made through an Eligible Guarantor Institution;
- •
- prior to the expiration date, the exchange agent receives from
such Eligible Guarantor Institution either (i) a
properly completed and duly executed notice of guaranteed delivery by facsimile transmission, mail or hand delivery or (ii) a properly transmitted agent's message and notice of guaranteed
delivery:
- •
- setting forth the name and address of the holder, the registered number(s) of such outstanding notes and the principal
amount of outstanding notes tendered;
- •
- stating that the tender is being made thereby;
- •
- guaranteeing that,
within three New York Stock Exchange trading days after the expiration date, the letter of transmittal,
or facsimile thereof, together with the outstanding notes or a book-entry confirmation, and any other documents required by the letter of transmittal, will be deposited by the Eligible
Guarantor Institution with the exchange agent; and
- •
- the exchange agent receives the properly completed and executed letter of transmittal or facsimile thereof, as well as certificate(s) representing all tendered outstanding notes in proper form for transfer or a book-entry confirmation of transfer of the outstanding notes into the exchange agent's account at DTC, and all other documents required by the letter of transmittal within three New York Stock Exchange trading days after the expiration date.
Withdrawal Rights
Except as otherwise provided in this prospectus, holders of outstanding notes may withdraw their tender of outstanding notes at any time prior to 5:00 p.m., New York City time, on the expiration date.
41
For
a withdrawal to be effective:
- •
- the exchange agent must receive a written notice, which may be by telegram, telex, facsimile or letter, of withdrawal at
one of the addresses set forth below under "—Exchange Agent"; or
- •
- holders must comply with the appropriate procedures of DTC's Automated Tender Offer Program system.
Any
notice of withdrawal must:
- •
- specify the name of the person who tendered the outstanding notes to be withdrawn;
- •
- identify the outstanding notes to be withdrawn, including the principal amount of the outstanding notes; and
- •
- where certificates for outstanding notes have been transmitted, specify the name in which such outstanding notes were registered, if different from that of the withdrawing holder.
If
certificates for outstanding notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, the withdrawing holder must also
submit:
- •
- the serial numbers of the particular certificates to be withdrawn; and
- •
- a signed notice of withdrawal with signatures guaranteed by an Eligible Guarantor Institution unless such holder is an Eligible Guarantor Institution.
If outstanding notes have been tendered pursuant to the procedures for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn outstanding notes and otherwise comply with the procedures of the facility. We will determine all questions as to the validity, form, and eligibility, including time of receipt, of notices of withdrawal, and our determination will be final and binding on all parties. Any outstanding notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any outstanding notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder, without cost to the holder or, in the case of book-entry transfer, will be credited to an account maintained with DTC, as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn outstanding notes may be retendered by following the procedures described under "—Procedures for Tendering" above at any time on or prior to the expiration date.
Exchange Agent
Wilmington Trust Company has been appointed as the exchange agent for the exchange offer. Wilmington Trust Company also acts as trustee under the indenture governing the outstanding notes, which is the same indenture that will govern the exchange notes. You should direct all executed letters of transmittal and all questions and requests for assistance, for additional copies of this prospectus or
42
the letter of transmittal, or for notices of guaranteed delivery to the exchange agent addressed as follows:
Delivery to: Wilmington Trust Company, Exchange Agent
| By Mail: | By Overnight Mail or Courier Delivery: | By Hand: | ||
| Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
||
| For Facsimile Transmission: (302) 636-4139 |
||||
| Confirm By Telephone: (302) 636-6181 |
||||
| For Information: (302) 636-4184 |
IF YOU DELIVER THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMIT INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, THAT DELIVERY OR THOSE INSTRUCTIONS WILL NOT BE EFFECTIVE.
Fees and Expenses
We will bear the expenses of soliciting tenders. The principal solicitation is being made by mail by the exchange agent. We may make additional solicitations by facsimile, telephone or in person by our officers and regular employees and our affiliates.
We have not retained any dealer-manager in connection with the exchange offer and will not make any payment to broker-dealers or others for soliciting acceptances of the exchange offer. We will, however, pay the exchange agent reasonable and customary fees for its services and reimburse it for its related, reasonable out-of-pocket expenses.
We
will pay the estimated cash expenses to be incurred in connection with the exchange offer. The expenses are estimated in the aggregate to be approximately $190,000. They
include:
- •
- SEC registration fees;
- •
- fees and expenses of the exchange agent and trustee;
- •
- accounting and legal fees and printing costs; and
- •
- related fees and expenses.
Accounting Treatment
We will record the exchange notes in our accounting records at the same carrying value as the outstanding notes, which is the aggregate principal amount as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the consummation of the exchange offer. We will capitalize the expenses of the exchange offer and amortize them over the life of the notes.
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Transfer Taxes
We will pay all transfer taxes, if any, applicable to the exchange of outstanding notes under the exchange offer. The tendering holder,
however, will be required to pay any transfer taxes, whether imposed on the registered holder or any other person, if:
- •
- certificates representing outstanding notes for principal amounts not tendered or accepted for exchange are to be
delivered to, or are to be issued in the name of, any person other than the registered holder of outstanding notes tendered; or
- •
- tendered outstanding notes are registered in the
name of any person other than the person signing the letter of
transmittal; or
- •
- a transfer tax is imposed for any reason other than the exchange of outstanding notes under the exchange offer.
If satisfactory evidence of payment of such taxes is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed to that tendering holder.
Holders who tender their outstanding notes for exchange will not be required to pay any transfer taxes. However, holders who instruct us to register exchange notes in the name of, or request that outstanding notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder will be required to pay any applicable transfer tax.
Consequences of Failure to Exchange
Holders of outstanding notes who do not exchange their outstanding notes for exchange notes under the exchange offer will remain
subject to the restrictions on transfer of such outstanding notes:
- •
- as set forth in the legend printed on the notes as a consequence of the issuance of the outstanding notes pursuant to the
exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws; and
- •
- otherwise set forth in the offering circular distributed in connection with the private offering of the outstanding notes.
In
general, you may not offer or sell the outstanding notes unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities
Act and applicable state securities laws. Except as required by the registration rights agreement, we do not intend to register resales of the outstanding notes under the Securities Act. Based on
interpretations of the staff of the SEC, exchange notes issued pursuant to the exchange offer may be offered for resale, resold or otherwise transferred by their holders without compliance with the
registration and prospectus delivery provisions of the Securities Act, provided that:
- •
- the holder is not an affiliate of K. Hovnanian or any guarantor within the meaning of Rule 405 of the Securities
Act;
- •
- the holder is not engaged in, does not intend to engage in, and does not have an arrangement or understanding with any
person to participate in, a distribution of the exchange notes; and
- •
- the holder is acquiring the exchange notes in the ordinary course of its business.
Any
holder who tenders outstanding notes in the exchange offer for the purpose of participating in a distribution of the exchange notes:
- •
- cannot rely on the position of the staff of the SEC enunciated in Morgan Stanley & Co., Inc. (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), as
44
- •
- in the absence of an exception from the position stated immediately above, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the exchange notes.
interpreted
in the SEC's letter to Shearman & Sterling (available July 2, 1993), or similar no-action letters; and
Other
Participating in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.
We may in the future seek to acquire untendered outstanding notes in open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any outstanding notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered outstanding notes.
45
In this section, references to the "Company" mean Hovnanian Enterprises, Inc., a Delaware corporation, and do not include K. Hovnanian Enterprises, Inc. or any of its subsidiaries, and references to the "Issuer," "us," "we" or "our" mean K. Hovnanian Enterprises, Inc., a California corporation. References to "Notes" in this section are references to the outstanding 111/2% Senior Secured Notes due 2013 and the exchange 111/2% Senior Secured Notes due 2013 offered hereby, collectively.
The Issuer issued the outstanding notes, and will issue the exchange notes described in this prospectus, under an indenture (the "Indenture"), dated as of May 27, 2008, among the Issuer, the Guarantors and Wilmington Trust Company (as successor trustee, to Deutsche Bank National Trust Company, a national banking association), as trustee (the "Trustee"). The following is a summary of the material terms and provisions of the Notes. 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, as amended (the "Trust Indenture Act"), as in effect on the date of the Indenture. The Notes are subject to all such terms, and prospective participants in the exchange offer should refer to the Indenture and the Trust Indenture Act for a statement of such terms. The form and terms of the exchange notes and the outstanding notes are identical in all material respects, except that the exchange notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions or additional interest upon a failure to fulfill certain of our obligations under the registration rights agreement.
This description of the Notes contains definitions of terms, including those defined under the caption "—Definitions of certain terms used in the Indenture." Capitalized terms that are used but not otherwise defined herein have the meanings assigned to them in the Indenture.
Any outstanding notes that remain outstanding after consummation of this exchange offer and the exchange notes will constitute a single series of debt securities under the Indenture. Holders of outstanding notes who do not exchange their notes in this exchange offer will vote together with the holders of exchange notes for all relevant purposes under the Indenture. Accordingly, when determining whether the required holders have given notice, consent or waiver or taken any other action permitted under the Indenture, any outstanding notes that are not exchanged pursuant to the exchange offer will be aggregated with the exchange notes. All references herein to specified percentages in aggregate principal amount of Notes outstanding shall be deemed to mean, at any time after this exchange offer is consummated, percentages in aggregate principal amount of outstanding notes and exchange notes outstanding.
General
The Notes will bear interest from the most recent date to which interest has been paid or, if no interest has been paid, from May 27, 2008 at the rate per annum shown on the cover page of this prospectus. Interest is payable semi-annually on May 1 and November 1 of each year, commencing November 1, 2008, to Holders of record at the close of business on April 15 or October 15, as the case may be, immediately preceding each such interest payment date. The Notes will mature on May 1, 2013, and will be issued in denominations of $2,000 and higher integral multiples of $1,000. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.
The Indenture limits the principal amount of securities that the Issuer may issue thereunder to the amount offered hereby.
The outstanding notes are, and the exchange notes will be, guaranteed by the Company and each of the Guarantors (together, the "Guarantors") pursuant to the Guarantees (the "Guarantees") described below.
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Ranking
The outstanding notes are, and the exchange notes will be, general secured obligations of the Issuer and rank senior in right of payment to all existing and future Indebtedness of the Issuer that is, by its terms, expressly subordinated in right of payment to the Notes and pari passu in right of payment with all existing and future Indebtedness of the Issuer that is not so subordinated, effectively senior to all unsecured Indebtedness to the extent of the value of the Collateral referred to below and effectively junior to any obligations of the Issuer that are either (i) secured by a Lien on the Collateral (as defined below) that is senior or prior to the second-priority Liens securing the Notes, including the first-priority Liens securing obligations under the Revolving Credit Agreement referred to below, and potentially any Permitted Liens, or (ii) secured by assets that are not part of the Collateral securing the Notes, in each case to the extent of the value of the assets securing such obligations. Under specified circumstances, the Issuer may be released from its obligations under the Notes and the Indenture. See "—Condition for Release of the Issuer." The Guarantees of the outstanding notes are, and of the exchange notes will be, general secured obligations of the Guarantors and will rank senior in right of payment to all existing and future Indebtedness of the Guarantors that is, by its terms, expressly subordinated in right of payment to the Guarantees and pari passu in right of payment with all existing and future Indebtedness of the Guarantors that is not so subordinated, effectively senior to all unsecured Indebtedness of the Guarantors to the extent of the value of the Collateral and effectively junior to any obligations of any Guarantor that are either (i) secured by a Lien on the Collateral that is senior or prior to the second-priority Liens securing the Guarantees, including the first-priority Liens securing obligations of the guarantors under the Revolving Credit Agreement, and potentially any Permitted Liens, or (ii) secured by assets that are not part of the Collateral securing the Notes, in each case, to the extent of the value of the assets securing such Indebtedness.
At July 31, 2008, the Issuer and the Guarantors had approximately $627.3 million of secured Indebtedness outstanding, including the outstanding notes, $1,515.0 million of senior unsecured notes and $400.0 million senior subordinated notes. In addition, at July 31, 2008 the aggregate outstanding face amount of letters of credit under the Revolving Credit Agreement was $219.7 million and there were no outstanding revolving loans.
Security
General
The Notes will be secured by second-priority Liens (the "Second-Priority Liens") granted by the Issuer, the existing Guarantors and any future Guarantor on substantially all of assets of the Issuer and the Guarantors (whether now owned or hereafter arising or acquired) to the extent such assets secure obligations under the Revolving Credit Agreement or other First-Priority Lien Obligations and subject to certain Permitted Liens and encumbrances described in the Security Documents (collectively, the "Collateral").
The Collateral will not include (collectively, the "Excluded Property") (a) any pledges of stock of a Guarantor to the extent that Rule 3-16 of Regulation S-X under the Securities Act requires or would require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, that would require) the filing with the SEC of separate financial statements of such Guarantor that are not otherwise required to be filed, but only to the extent necessary to not be subject to such requirement, (b) up to $50.0 million of assets received in connection with Asset Dispositions and asset swaps or exchanges as permitted by paragraph (3) of the definition of "Permitted Investments," (c) personal property where the cost of obtaining a security interest or perfection thereof exceeds its benefits, (d) real property subject to a Lien securing Indebtedness incurred for the purpose of financing the acquisition thereof, (e) real property located outside the United States, (f) unentitled land, (g) real property that is leased or held for the purpose of leasing to unaffiliated third parties, (h) equity
47
interests in Unrestricted Subsidiaries (subject to future grants under the terms of the Indenture), (i) any real property in a community under development with a dollar amount of investment as of the most recent month-end (as determined in accordance with GAAP) of less than $2.0 million or with less than 10 lots remaining), (j) assets, with respect to which any applicable law or contract prohibits the creation or perfection of security interests therein and (k) any other assets excluded from the Collateral securing the First-Priority Lien Obligations, if any. In addition, under the terms of the Security Documents, the Issuer and the Guarantors will not be required to provide control agreements with respect to certain deposit, checking or securities accounts with average balances below a certain dollar amount.
If property (other than Excluded Property) is acquired by the Issuer or a Guarantor that is not automatically subject to a perfected security interest under the Security Documents or a Restricted Subsidiary becomes a Guarantor, then the Issuer or Guarantor will, as soon as practical after such property's acquisition or it no longer being Excluded Property, provide security over such property (or, in the case of a new Guarantor, all of its assets except Excluded Property) in favor of the Administrative Agent and the Collateral Agent and deliver certain certificates and opinions in respect thereof as required by the Indenture or the Security Documents.
In addition, the obligations under our Revolving Credit Agreement, and the guarantees thereof by each of the Guarantors will be secured by a First-Priority Lien on the Collateral. As set out in more detail below, upon an enforcement event or insolvency proceeding, proceeds from the Collateral will be applied first to satisfy such other obligations and then to satisfy obligations on the Notes. In addition, the Indenture will permit the Issuer and the Guarantors to create additional Liens under specified circumstances, including certain additional senior Liens on the Collateral. See the definition of "Permitted Liens."
The Collateral will be pledged to (1) the administrative agent under the Revolving Credit Agreement (together with any successor, the "Administrative Agent"), on a first-priority basis, for the benefit of the "Secured Parties" (as defined in the security documents relating to the Revolving Credit Agreement) and (2) Wilmington Trust Company, as collateral agent (together with any successor, the "Collateral Agent"), on a second-priority basis, for the benefit of the Trustee and the Holders of the Notes. The Second-Priority Lien Obligations will constitute claims separate and apart from (and of a different class from) the First-Priority Lien Obligations and will be junior to the First-Priority Liens. In certain states, mortgages will be granted solely to a single collateral agent, which will hold such mortgages for the benefit of the holders of the First-Priority Liens and the Second-Priority Liens.
Control Over Collateral and Enforcement of Liens
The Security Documents provide that, while any First-Priority Lien Obligations (or any commitments or letters of credit in respect thereof) are outstanding, the holders of the First-Priority Liens will control at all times all remedies and other actions related to the Collateral and the Second-Priority Liens will not entitle the Collateral Agent, the Trustee or the holders of any Notes to take any action whatsoever (other than limited actions to preserve and protect the Second-Priority Liens that do not impair the First-Priority Liens) with respect to the Collateral. As a result, while any First-Priority Lien Obligations (or any commitments or letters of credit in respect thereof) are outstanding, none of the Collateral Agent, the Trustee or the Holders of the Notes will be able to force a sale of the Collateral or otherwise exercise remedies normally available to secured creditors without the concurrence of the holders of the First-Priority Liens or challenge any decisions in respect thereof by the holders of the First-Priority Liens.
48
Proceeds
realized by the Administrative Agent or the Collateral Agent from the Collateral or in an insolvency proceeding will be applied:
- •
- first, to amounts owing to the holders of the First-Priority Liens in accordance with the terms of the First-Priority Lien
Obligations until they are paid in full (which term includes a requirement that letters of credit be cash collateralized at 105% of the face amount thereof);
- •
- second, to amounts owing to the Collateral Agent in its capacity as such in accordance with the terms of the Security
Documents;
- •
- third, to amounts owing to the Trustee in its capacity as such in accordance with the terms of the Indenture and to the
representatives of any other holders of debt, in their capacity as such, secured on a second-priority basis;
- •
- fourth, ratably to amounts owing to the Holders of the Notes in
accordance with the terms of the Indenture;
- •
- fifth, ratably to amounts owing to the holders of any obligations secured by third-priority Liens on the Collateral; and
- •
- sixth, to the Company and/or other persons entitled thereto.
All of the Collateral has not been appraised in connection with the offering of the Notes. The consolidated book value of the real property Collateral as of July 31, 2008 was approximately $1.9 billion, which does not include the impact of inventory investments, home deliveries or impairments thereafter. The fair market value of the Collateral is subject to fluctuations based on factors that include, among others, the condition of the homebuilding industry, our ability to implement our business strategy, the ability to sell the Collateral in an orderly sale, general economic conditions, the availability of buyers and similar factors. The amount to be received upon a sale of the Collateral would be dependent on numerous factors, including but not limited to the actual fair market value of the Collateral at such time and the timing and the manner of the sale. By its nature, portions of the Collateral may be illiquid and may have no readily ascertainable market value. Likewise, there can be no assurance that the Collateral will be saleable, or, if saleable, that there will not be substantial delays in its liquidation. In the event of a foreclosure, liquidation, bankruptcy or similar proceeding, we cannot assure you that the proceeds from any sale or liquidation of the Collateral will be sufficient to pay our obligations under the Notes. In addition, the fact that the lenders under the Revolving Credit Agreement will receive proceeds from enforcement of the Collateral before Holders of the Notes, and that other Persons may have first-priority Liens in respect of assets subject to Permitted Liens could have a material adverse effect on the amount that would be realized upon a liquidation of the Collateral. Accordingly, there can be no assurance that proceeds of any sale of the Collateral pursuant to the Indenture and the related Security Documents following an Event of Default would be sufficient to satisfy, or would not be substantially less than, amounts due under the Notes.
If the proceeds of any of the Collateral were not sufficient to repay all amounts due on the Notes, the Holders of the Notes (to the extent not repaid from the proceeds of the sale of the Collateral) would have only an unsecured claim against the remaining assets of the Issuer and the Guarantors. By its nature, some or all of the Collateral will be illiquid and may have no readily ascertainable market value. Likewise, there can be no assurance that the Collateral will be saleable, or, if saleable, that there will not be substantial delays in its liquidation. To the extent that Liens (including Permitted Liens), rights or easements granted to third parties encumber assets located on property owned by the Issuer or the Guarantors, including the Collateral, such third parties may exercise rights and remedies with respect to the property subject to such Liens that could adversely affect the value of the Collateral and the ability of the Collateral Agent, the Trustee or the Holders of the Notes to realize or foreclose on Collateral.
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Release of Liens
The Security Documents provide that, to the extent that the holders of the First-Priority Liens release their First-Priority Liens (including with respect to the disposition of Collateral) on all or any portion of the Collateral, the Second-Priority Liens on such Collateral will likewise be released.
However, if the First-Priority Liens are released in connection with the repayment (or cash collateralization of letters of credit) of the First-Priority Lien Obligations and termination of the commitments thereunder, the Second-Priority Liens on the Collateral will not be released, except to the extent the Collateral or any portion thereof was disposed of in order to repay the First-Priority Lien Obligations secured by the Collateral, and thereafter, the Trustee (acting at the direction of the holders of a majority of outstanding principal amount of Notes) will have the right to direct the Collateral Agent to exercise remedies and to take other actions with respect to the Collateral.
If, after the Second-Priority Liens on any Collateral are released as contemplated above, the First-Priority Lien Obligations (or any portion thereof) are thereafter secured by assets (other than assets of the type referred to under clauses (a) or (b) of Excluded Property), the Notes will then be secured by a Second-Priority Lien on such assets, to the same extent as they were prior to such release, as provided pursuant to the Security Documents. If the Issuer subsequently incurs obligations under a new Credit Facility or other First-Priority Lien Obligations that are secured by Liens on assets of the Issuer and the Guarantors of the type constituting Collateral, then the Notes will be secured at such time by a Second-Priority Lien on the collateral securing such obligations under the new Credit Facility or First-Priority Lien Obligations to the same extent provided by the Security Documents on the terms and conditions of the security documents relating to the new Credit Facility or such other First-Priority Lien Obligations, with the Second-Priority Liens held either by the Administrative Agent under such new Credit Facility or by a collateral agent designated by the Issuer to hold the Second-Priority Liens for the benefit of the holders of Second-Priority Lien Obligations and subject to an intercreditor agreement that provides the Administrative Agent under such new Credit Facility substantially the same rights and powers as afforded under the Security Documents.
The Security Documents and the Indenture also provide that the Second-Priority Liens securing the Guarantee of any Guarantor will be automatically released when such Guarantor's Guarantee is released in accordance with the terms of the Indenture. In addition, the Second-Priority Liens securing the Notes will be released (a) upon discharge or defeasance of the Notes as set forth below under "—Discharge and defeasance of Indenture," (b) upon payment in full of principal, interest and all other Obligations on the Notes issued under the Indenture, (c) with the consent of the requisite Holders of the Notes in accordance with the provisions under "—Amendment, supplement and waiver," including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes and (d) in connection with any disposition of Collateral to any Person other than the Company, the Issuer or any of the Restricted Subsidiaries (but excluding any transaction subject to "Certain covenants—Limitations on mergers, consolidations and sales of assets" where the recipient is required to become the obligor on the Notes or a Guarantee) that is permitted by the Indenture (with respect to the Lien on such Collateral).
To the extent applicable, the Issuer will comply with Section 313(b) of the TIA, relating to reports, and, following qualification of the Indenture under the Trust Indenture Act, Section 314(d) of the TIA, relating to the release of property and to the substitution therefor of any property to be pledged as Collateral for the Notes. Any certificate or opinion required by Section 314(d) of the TIA may be made by an Officer of the Issuer except in cases where Section 314(d) requires that such certificate or opinion be made by an independent engineer, appraiser or other expert, who shall be reasonably satisfactory to the Trustee. Notwithstanding anything to the contrary herein, the Issuer and the Guarantors will not be required to comply with all or any portion of Section 314(d) of the TIA if they determine, in good faith based on advice of counsel (which may be internal counsel), that under the
50
terms of that section and/or any interpretation or guidance as to the meaning thereof of the SEC and its staff, including "no action" letters or exemptive orders, all or any portion of Section 314(d) of the TIA is inapplicable to the released Collateral. Without limiting the generality of the foregoing, certain no-action letters issued by the SEC have permitted an indenture qualified under the TIA to contain provisions permitting the release of collateral from Liens under such indenture in the ordinary course of the issuer's business without requiring the issuer to provide certificates and other documents under Section 314(d) of the TIA. In addition, under interpretations provided by the SEC, to the extent that a release of a Lien is made without the need for consent by the Holders or the Trustee, the provisions of Section 314(d) may be inapplicable to the release.
Amendments to Security Documents
So long as the First-Priority Lien Obligations (or any commitments or letters of credit in respect thereof) are outstanding, the holders of the First-Priority Liens may change, waive, modify or vary the security documents of such holders and the Intercreditor Agreement and such changes will automatically apply to the Security Documents; provided that any such change, waiver, modification or variance that is prejudicial to the rights of the Collateral Agent, the Trustee and the Holders of the Notes and does not affect the holders of the First-Priority Liens in a like or similar manner shall not apply to the Security Documents without the consent of the Collateral Agent and the Trustee (acting at the direction of the Holders of a majority of the aggregate principal amount of the applicable noteholder claims); provided, further, however, that notwithstanding the foregoing, the holders of the First-Priority Liens may agree to modify the security documents of such holders and the Intercreditor Agreement, without the consent of the Holders of the Second-Priority Liens, to secure additional extensions of credit and add additional secured creditors so long as such modifications do not expressly violate the provisions of the Indenture, including that after so securing any such additional extensions of credit and additional secured creditors, the amount of First-Priority Lien Obligations does not exceed the amount set forth under clause 9(b) of the definition of "Permitted Liens". In any case, notice of such amendment, waiver or consent shall be given to the Trustee.
Intercreditor Agreement
The Issuer, the Guarantors, the Trustee (including in its capacity as Collateral Agent) and the Administrative Agent under the
Revolving Credit Agreement (including in its capacity as collateral agent for the First-Priority Lien Obligations) and Wilmington Trust Company (as collateral agent with respect to Liens in certain
states, for the First-Priority Lien Obligations and the Second-Priority Lien Obligations with respect to such Liens) will enter into the Intercreditor Agreement which will establish the second
priority status of the Second-Priority Liens. In addition to the provisions described above with respect to control of remedies, release of Collateral and amendments to the Security Documents, the
Intercreditor Agreement also imposes certain other customary restrictions and agreements, including the restrictions and agreements described below.
- •
- Pursuant to the Intercreditor Agreement, the Trustee and the Holders of the Notes agree that the Administrative Agent and the lenders under the Revolving Credit Agreement have no fiduciary duties to them in respect of the maintenance or preservation of the Collateral (other than, in the case of the Administrative Agent, a duty to hold certain possessory collateral as bailee of the Trustee and the Holders of the Notes for purposes of perfecting the Second-Priority Liens thereon). In addition, the Trustee and the Holders of the Notes waive, to the fullest extent permitted by law, any claim against the Administrative Agent and the lenders under the Revolving Credit Agreement in connection with any actions they may take under the Revolving Credit Agreement or with respect to the Collateral. They further waive, to the fullest extent permitted by law, any right to assert, or request the benefit of, any marshalling or similar rights that may otherwise be available to them.
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- •
- Pursuant to the Intercreditor Agreement, the Collateral Agent and the Trustee, for itself and on behalf of the Holders of
the Notes, irrevocably constitute and appoint the Administrative Agent and any officer or agent of the Administrative Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place of the Trustee or Holder of the Notes or in the Administrative Agent's own name, from time to time in
the Administrative Agent's discretion, for the purpose of carrying out the terms of certain sections of the Intercreditor Agreement (including those relating to the release of the Second-Priority
Liens as permitted thereby, including releases upon sales due to enforcement of remedies), to take any and all appropriate action and to execute any and all releases, documents and instruments which
may be necessary or desirable to accomplish the purposes of such section of the Intercreditor Agreement, including any financing statements, mortgage releases,
intellectual property releases, endorsements or other instruments or transfer or release of such liens.
- •
- So long as the First-Priority Lien Obligations are outstanding, the
Issuer and the Guarantors will agree that if the
Collateral Agent and/or the Trustee holds any Lien on any assets of the Issuer or any Guarantor securing any Second-Priority Lien Obligations that are not also subject to First-Priority Liens, the
Trustee, at the request of the Administrative Agent or the Issuer, will assign such Lien to the Administrative Agent as security for the First-Priority Lien Obligations (in which case the Trustee will
retain a Second-Priority Lien on such assets subject to the terms of the Intercreditor Agreement).
- •
- The Trustee and the Holders agree that (i) in certain circumstances the
holders under the Revolving Credit
Agreement are required by the terms thereof to be repaid with proceeds of dispositions prior to repayment of the Indenture and (ii) they will not accept payments from such dispositions until
applied to repayment of the Revolving Credit Agreement as so required.
- •
- The Trustee and the Holders generally agree that if they receive payments from the Collateral in
contravention of the
Intercreditor Agreement, they will turn such payments over to First Lien Obligation holders.
- •
- The Trustee and the Holders of the Notes will consent to the creation of third-priority Liens to the extent permitted under the Indenture so long as such Liens are junior to the Second-Priority Liens on substantially similar terms to that set out in the Intercreditor Agreement with respect to the Second-Priority Liens in relation to the First-Priority Liens.
In
addition, if the Issuer or any Guarantor is subject to any insolvency or liquidation proceeding, the Trustee and the Holders agree that:
- •
- they will consent to the Issuer's use of cash collateral if the First-Priority Lien Obligation holders consent to such
usage and the Second-Priority Lien Obligation holders receive adequate protection as set out below;
- •
- they shall not seek or require the Issuer to provide any adequate protection,
or accept any such adequate protection, for
Second-Priority Lien Obligations except replacement or additional Liens that are fully junior and subordinate to the Liens securing the First-Priority Lien Obligations, and except for the foregoing,
will not seek or accept any payments pursuant to Section 362(d)(3)(B) of Title 11 of the United States Code;
- •
- if the First-Priority Lien Obligation holders consent to a debtor-in-possession ("DIP") financing that provides for priming of the First-Priority Lien Obligations, the Trustee and the holders of the Second-Priority Lien Obligations will be deemed to have consented to priming of their Liens and will not object to the DIP financing (provided that the aggregate principal amount of the DIP financing, plus the aggregate principal amount of First-Priority Lien Obligations, do not exceed $400.0 million) or any adequate protection provided to the First-Priority Lien Obligation holders, except that if the lenders under the Revolving Credit Agreement and the Administrative
52
- •
- without the consent of the Administrative Agent and the required lenders under the Revolving Credit Agreement, they will
not seek relief from the automatic stay so long as any amounts are outstanding under the Revolving Credit Agreement or any other first-lien indebtedness;
- •
- they will not oppose any sale or other disposition of the Collateral consented to by the First-Priority Lien Obligation
holders; and
- •
- they will not vote in favor of any plan of reorganization unless (1) such plan provides for the payment in full in cash on the effective date of such plan of reorganization of all claims of the Administrative Agent and the lenders under the Revolving Credit Agreement and the cash collateralization at 105% of the face amount thereof of the letters of credit issued under the Revolving Credit Agreement, (2) such plan provides for treatment of such claims of the Administrative Agent and the holders of the First-Priority Liens in a manner that would result in such claims having relative Lien (or, if the obligations, property or assets to be distributed in respect of such clauses under such plan are unsecured, other) priority over the claims of the Trustee and the Holders of the Notes to at least the same extent as the First-Priority Liens have priority over the Second-Priority Liens, whether or not such obligations, property or assets are, in fact secured by any Liens, or (3) such plan is approved by the Administrative Agent and the required lenders under the Revolving Credit Agreement.
Agent
are granted adequate protection in the form of additional collateral, the Trustee may seek or request adequate protection in the form of a replacement Lien on such additional collateral, which
Lien is fully junior and subordinate to the Lien granted to the lenders under the Revolving Credit Agreement and the Administrative Agent and the DIP financing providers;
No Impairment of the Security Interests
Neither the Issuer nor any of the Guarantors will be permitted to take any action, or knowingly or negligently omit to take any action, which action or omission might or would have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee and the Holders of the Notes.
The Indenture will provide that any release of Collateral in accordance with the provisions of the Indenture and the Security Documents will not be deemed to impair the security under the Indenture, and that any engineer, appraiser or other expert may rely on such provision in delivering a certificate requesting release so long as all other provisions of the Indenture with respect to such release have been complied with.
The Guarantees
The Company and each of the Guarantors will (so long, in the case of a Restricted Subsidiary, as it remains a Restricted Subsidiary) unconditionally guarantee on a joint and several basis all of our obligations under the Notes, including our obligations to pay principal, premium, if any, and interest with respect to the Notes. The obligations of each Guarantor other than the Company are limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under the Indenture, will result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Guarantor other than the Company that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Guarantor in an amount pro rata, based on the net assets of each Guarantor, determined in accordance with GAAP. Except as provided in "—Certain covenants" below, the Company is not restricted from selling or otherwise disposing of any of the Guarantors.
53
The Indenture requires that each existing and future Restricted Subsidiary of the Company (other than the Issuer (for so long as it remains the Issuer) and K. Hovnanian Poland, sp.zo.o.) be a Guarantor. The Company is permitted to cause any Unrestricted Subsidiary to be a Guarantor.
The Indenture will provide that if all or substantially all of the assets of any Guarantor other than the Company or all of the Capital Stock of any Guarantor other than the Company is sold (including by consolidation, merger, issuance or otherwise) or disposed of (including by liquidation, dissolution or otherwise) by the Company or any of its Subsidiaries, or, unless the Company elects otherwise, if any Guarantor other than the Company is designated an Unrestricted Subsidiary in accordance with the terms of the Indenture, then such Guarantor (in the event of a sale or other disposition of all of the Capital Stock of such Guarantor or a designation as an Unrestricted Subsidiary) or the Person acquiring such assets (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) shall be deemed automatically and unconditionally released and discharged from any of its obligations under the Indenture without any further action on the part of the Trustee or any Holder of the Notes.
An Unrestricted Subsidiary that is a Guarantor shall be deemed automatically and unconditionally released and discharged from all obligations under its Guarantee upon notice from the Company to the Trustee to such effect, without any further action required on the part of the Trustee or any Holder.
A sale of assets or Capital Stock of a Guarantor may constitute an Asset Disposition subject to the "Limitations on dispositions of assets" covenant.
Redemption
Except as set forth in the next two paragraphs, the Notes are not redeemable at the option of the Issuer.
At any time and from time to time on or after November 1, 2010, the Issuer may redeem the Notes, in whole or in part, at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest to the redemption date.
Period commencing
|
Percentage | |||
|---|---|---|---|---|
November 1, 2010 |
102 | % | ||
May 1, 2011 |
101 | % | ||
May 1, 2012 |
100 | % | ||
At any time and from time to time prior to May 1, 2011, the Issuer may redeem Notes with the net cash proceeds received by the Issuer from any Equity Offering of the Company at a redemption price equal to 111.50% of the principal amount plus accrued and unpaid interest to the redemption date, in an aggregate principal amount for all such redemptions not to exceed 35% of the original aggregate principal amount of the Notes, provided that:
- (1)
- in
each case the redemption takes place not later than 60 days after the closing of the related Equity Offering, and
- (2)
- not less than 65% of the original aggregate principal amount of the Notes remains outstanding immediately thereafter.
There is no sinking fund for, or mandatory redemption of, the Notes.
54
If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem appropriate and fair.
No Notes of $2,000 in original principal amount or less shall be redeemed in part. Notices of redemption may not be conditional.
If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption.
Certain covenants
The following is a summary of certain covenants that are contained in the Indenture. Such covenants are applicable (unless waived or amended as permitted by the Indenture) so long as any of the Notes are outstanding or until the Notes are defeased pursuant to provisions described under "—Discharge and defeasance of Indenture."
Repurchase of Notes upon change of control.
In the event that there shall occur a Change of Control, each Holder of Notes shall have the right, at such Holder's option, to require the Issuer to purchase all or any part of such Holder's Notes on a date (the "Repurchase Date") that is no later than 90 days after notice of the Change of Control, at 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the Repurchase Date.
On or before the thirtieth day after any Change of Control, the Issuer is obligated to mail or cause to be mailed, to all Holders of record of Notes, a notice regarding the Change of Control and the repurchase right. The notice shall state the Repurchase Date, the date by which the repurchase right must be exercised, the price for the Notes and the procedure which the Holder must follow to exercise such right. Substantially simultaneously with mailing of the notice, the Issuer shall cause a copy of such notice to be published in a newspaper of general circulation in the Borough of Manhattan, The City of New York. To exercise such right, the Holder of such Note must deliver, at least ten days prior to the Repurchase Date, written notice to the Issuer (or an agent designated by the Issuer for such purpose) of the Holder's exercise of such right, together with the Note with respect to which the right is being exercised, duly endorsed for transfer; provided, however, that if mandated by applicable law, a Holder may be permitted to deliver such written notice nearer to the Repurchase Date than may be specified by the Issuer.
The Issuer will comply with applicable law, including Section 14(e) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 14e-1 thereunder, if applicable, if the Issuer is required to give a notice of a right of repurchase as a result of a Change of Control.
With respect to any disposition of assets, the phrase "all or substantially all" as used in the Indenture (including as set forth under "—Certain covenants—Limitations on mergers, consolidations and sales of assets" below) varies according to the facts and circumstances of the subject transaction, has no clearly established meaning under New York law (which governs the Indenture) and is subject to judicial interpretation. Accordingly, in certain circumstances there may be a degree of uncertainty in ascertaining whether a particular transaction would involve a disposition of "all or substantially all" of the assets of the Company, and therefore it may be unclear as to whether a Change of Control has occurred and whether the Holders have the right to require the Issuer to repurchase Notes.
55
None of the provisions relating to a repurchase upon a Change of Control is waivable by the Board of Directors of the Issuer or the Company. The Company could, in the future, enter into certain transactions, including certain recapitalizations of the Company, that would not result in a Change of Control, but would increase the amount of Indebtedness outstanding at such time.
The Indenture will require the payment of money for Notes or portions thereof validly tendered to, and accepted for payment by, the Issuer pursuant to a Change of Control offer. In the event that a Change of Control has occurred under the Indenture, a change of control will also have occurred under the indentures governing the Issuer's other outstanding notes and under the Issuer's Revolving Credit Agreement. If a Change of Control were to occur, there can be no assurance that the Issuer would have sufficient funds to pay the purchase price for all Notes and amounts due under other Indebtedness that the Company may be required to repurchase or repay or that the Company or the other Guarantors would be able to make such payments. In the event that the Issuer were required to purchase outstanding Notes pursuant to a Change of Control offer, the Company expects that it would need to seek third-party financing to the extent it does not have available funds to enable the Issuer to meet its purchase obligations. However, there can be no assurance that the Company would be able to obtain such financing.
Failure by the Issuer to purchase the Notes when required upon a Change of Control will result in an Event of Default with respect to the Notes.
These provisions could have the effect of deterring hostile or friendly acquisitions of the Company where the Person attempting the acquisition views itself as unable to finance the purchase of the principal amount of Notes which may be tendered to the Issuer upon the occurrence of a Change of Control.
Limitations on indebtedness.
The Indenture will provide that the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary, directly or indirectly, to create, incur, assume, become liable for or guarantee the payment of (collectively, an "incurrence") any Indebtedness (including Acquired Indebtedness) unless, after giving effect thereto and the application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio on the date thereof would be at least 2.0 to 1.0.
Notwithstanding the foregoing, the provisions of the Indenture will not prevent the incurrence of:
- (1)
- Permitted
Indebtedness,
- (2)
- Refinancing
Indebtedness,
- (3)
- Non-Recourse
Indebtedness,
- (4)
- any
Guarantee of Indebtedness represented by the Notes, and
- (5)
- any guarantee of Indebtedness incurred under Credit Facilities in compliance with the Indenture.
For purposes of determining compliance with this covenant, in the event that an item of Indebtedness may be incurred through the first paragraph of this covenant or by meeting the criteria of one or more of the types of Indebtedness described in the second paragraph of this covenant (or the definitions of the terms used therein), the Company, in its sole discretion,
- (1)
- may
classify such item of Indebtedness under and comply with either of such paragraphs (or any of such definitions), as applicable,
- (2)
- may classify and divide such item of Indebtedness into more than one of such paragraphs (or definitions), as applicable, and
56
- (3)
- may elect to comply with such paragraphs (or definitions), as applicable, in any order.
The Company and the Issuer will not, and will not cause or permit any Guarantor to, directly or indirectly, in any event incur any Indebtedness that purports to be by its terms (or by the terms of any agreement governing such Indebtedness) subordinated to any other Indebtedness of the Company or of such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinated to the Notes or the Guarantee of such Guarantor, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated to such other Indebtedness of the Company or such Guarantor, as the case may be.
Limitations on restricted payments.
The Indenture will provide that the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless:
- (1)
- no
Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment;
- (2)
- immediately
after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to the first paragraph of the
"Limitations on indebtedness" covenant; and
- (3)
- immediately
after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any
non-cash Restricted Payment) declared or made on or after the Issue Date does not exceed the sum of:
- (a)
- 50%
of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including May 1,
2008 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of
such deficit), plus
- (b)
- 100%
of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Company from (1) any capital contribution to the
Company after the Issue Date or any issue or sale after the Issue Date of Qualified Stock (other than (i) to any Subsidiary of the Company or (ii) any Excluded Contribution) and
(2) the issue or sale after the Issue Date of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted
or exercised, as the case may be, plus
- (c)
- in
the case of the disposition or repayment of any Investment constituting a Restricted Payment (or if the Investment was made prior to the Issue Date, that
would have constituted a Restricted Payment if made after the Issue Date, if such disposition or repayment results in cash received by the Company, the Issuer or any Restricted Subsidiary), an amount
(to the extent not included in the calculation of Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by
dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated (or would have been treated when made) as a Restricted Payment, in either case, less the
cost of the disposition or repayment of such Investment (to the extent not included in the calculation of Consolidated Net Income referred to in (a)), plus
- (d)
- with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after the Issue Date, in accordance with the definition of "Unrestricted Subsidiary" (so
57
long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after the Issue Date, and only to the extent not included in the calculation of Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary
The foregoing clauses (2) and (3) will not prohibit:
- (A)
- the
payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation
of the provisions of the Indenture;
- (B)
- the
purchase, repayment, repurchase, redemption, defeasance or other acquisition or retirement of any Subordinated Indebtedness of the Issuer, the Company
or any Restricted Subsidiary or shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company or
constituting an Excluded Contribution) of, other shares of Qualified Stock;
- (C)
- (i) the
purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of
the Issuer, the Company or any Restricted Subsidiary in exchange for, or out of proceeds of, Refinancing Indebtedness;
- (ii)
- the
purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer, the
Company or any Restricted Subsidiary or the making of Restricted Investments in joint ventures:
- (a)
- in
an aggregate amount not to exceed $50.0 million (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a
joint venture made pursuant to this clause (a) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to
this clause (a)); or
- (b)
- in
an aggregate amount made under this clause (ii)(b) not to exceed Excluded Contributions (after giving effect to all subsequent reductions in the
amount of any Restricted Investment in a joint venture made pursuant to this clause (b) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted
Investment previously made pursuant to this clause (b)); and
- (iii)
- following receipt of a Qualified Collateral Appraisal (as defined below), the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer, the Company or any Restricted Subsidiary or the making of Restricted Investments in joint ventures (after giving effect to all subsequent reductions in the amount of any Restricted Investment in a joint venture made pursuant to this clause (iii) as a result of the repayment or disposition thereof for cash, not to exceed the amount of such Restricted Investment previously made pursuant to this clause (iii)), in an aggregate amount not to exceed $400.0 million less the aggregate amount of Restricted Payments previously made under clause (C))(ii)(a) above; provided that, on a pro forma basis after giving effect to any such Restricted Payment, the aggregate fair market value of the Collateral (as determined in good faith by the Company's chief financial officer) is equal to at least 200% of the aggregate principal amount of Collateralized Debt as of such date (or, in the case of a Restricted Investment in a joint venture, on the date the Company determines to make such Investment, so long as the Investment is completed within 120 days of such determination date), such fair
58
- (D)
- the
payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10 million in any fiscal year; provided that immediately after giving effect to any declaration of such
dividend, the Company could incur at least $1.00 of Indebtedness pursuant to
the first paragraph under the "Limitations on indebtedness" covenant; and
- (E)
- the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Company or any Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $10 million in the aggregate since the Issue Date;
market value to be determined by the most recent appraisal of the Collateral required to be provided under the Revolving Credit Agreement;
provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (3) of the immediately preceding paragraph.
For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted.
In determining the "Fair Market Value of Property" for purposes of clause (3) of the first paragraph of this covenant, Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The equity value of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq Stock Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value (if more than $10 million) of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.
Solely for the purpose of permitting Restricted Payments under clause (C)(iii) above, the Indenture will provide that, as soon as commercially reasonable, but in no event later than 180 days from Issue Date, the Company will be required to have received appraisals from an independent appraiser. Such appraisal must establish that the Collateral includes at least $1.8 billion of market value of Collateral (an appraisal establishing such value, a "Qualified Collateral Appraisal"). If the initial Qualified Collateral Appraisal does not establish such market value but the Company determines, at its option, to obtain additional appraisals from an independent appraiser at a later date that do establish such valuation, then from and after receipt of such new appraisals (which shall be deemed Qualified Collateral Appraisals), the Company shall be permitted to utilize clause (C)(iii) above.
Limitations on transactions with affiliates.
The Indenture will provide that the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, make any loan, advance, guarantee or capital contribution to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any property or assets to or for the benefit of, or purchase or lease any property or assets from, or enter into or amend any contract, agreement or
59
understanding with, or for the benefit of, any Affiliate of the Company or any Affiliate of any of the Company's Subsidiaries or any holder of 10% or more of the Common Equity of the Company (including any Affiliates of such holders), in a single transaction or series of related transactions (each, an "Affiliate Transaction"), except for any Affiliate Transaction the terms of which are at least as favorable as the terms which could be obtained by the Company, the Issuer or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis with Persons who are not such a holder, an Affiliate of such a holder or an Affiliate of the Company or any of the Company's Subsidiaries.
In addition, the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, enter into an Affiliate Transaction unless:
- (1)
- with
respect to any such Affiliate Transaction involving or having a value of more than $1 million, the Company shall have (x) obtained the
approval of a majority of the Board of Directors of the Company and (y) either obtained the approval of a majority of the Company's disinterested directors or obtained an opinion of a qualified
independent financial advisor to the effect that such Affiliate Transaction is fair to the Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view, and
- (2)
- with respect to any such Affiliate Transaction involving or having a value of more than $10 million, the Company shall have (x) obtained the approval of a majority of the Board of Directors of the Company and (y) delivered to the Trustee an opinion of a qualified independent financial advisor to the effect that such Affiliate Transaction is fair to the Company, the Issuer or such Restricted Subsidiary, as the case may be, from a financial point of view.
The Indenture will also provide that notwithstanding the foregoing, an Affiliate Transaction will not include:
- (1)
- any
contract, agreement or understanding with, or for the benefit of, or plan for the benefit of, employees of the Company or its Subsidiaries generally (in
their capacities as such) that has been approved by the Board of Directors of the Company,
- (2)
- Capital
Stock issuances to directors, officers and employees of the Company or its Subsidiaries pursuant to plans approved by the stockholders of the
Company,
- (3)
- any
Restricted Payment otherwise permitted under the "Limitations on restricted payments" covenant,
- (4)
- any
transaction between or among the Company and one or more Restricted Subsidiaries or between or among Restricted Subsidiaries
(provided, however, no such transaction shall involve any other Affiliate of the Company (other than an Unrestricted Subsidiary to the extent the
applicable amount constitutes a Restricted Payment permitted by the Indenture)),
- (5)
- any
transaction between one or more Restricted Subsidiaries and one or more Unrestricted Subsidiaries where all of the payments to, or other benefits
conferred upon, such Unrestricted Subsidiaries are substantially contemporaneously dividended, or otherwise distributed or transferred without charge, to the Company or a Restricted Subsidiary,
- (6)
- issuances,
sales or other transfers or dispositions of mortgages and collateralized mortgage obligations in the ordinary course of business between
Restricted Subsidiaries and Unrestricted Subsidiaries of the Company, and
- (7)
- the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company, the Issuer or any Restricted Subsidiary.
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Limitations on dispositions of assets.
The Indenture will provide that the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, make any Asset Disposition unless:
- (a)
- the
Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the Fair
Market Value thereof, and
- (b)
- not less than 70% of the consideration received by the Company (or such Restricted Subsidiary, as the case may be) is in the form of cash, Cash Equivalents and Marketable Securities (which must be pledged as Collateral if the assets disposed of constituted Collateral).
The amount of (i) any Indebtedness (other than any Subordinated Indebtedness) of the Company or any Restricted Subsidiary that is actually assumed by the transferee in such Asset Disposition and (ii) the fair market value (as determined in good faith by the Board of Directors of the Company) of any property or assets (including Capital Stock of any Person that will be a Restricted Subsidiary following receipt thereof) received that are used or useful in a Real Estate Business (provided that (except as permitted by clause (3) under the definition of "Permitted Investment") to the extent that the assets disposed of in such Asset Disposition were Collateral, such property or assets are pledged as Collateral under the Security Documents substantially simultaneously with such sale, with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of), shall be deemed to be consideration required by clause (b) above for purposes of determining the percentage of such consideration received by the Company or the Restricted Subsidiaries.
The Net Cash Proceeds of an Asset Disposition shall, within one year, at the Company's election, (a) be used by the Company or a Restricted Subsidiary to invest in assets (including Capital Stock of any Person that is or will be a Restricted Subsidiary following investment therein) used or useful in the business of the construction and sale of homes conducted by the Company and the Restricted Subsidiaries (provided that (except as permitted by clause (3) under the definition of "Permitted Investment") to the extent that the assets disposed of in such Asset Disposition were Collateral, such assets are pledged as Collateral under the Security Documents with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of), (b) be used to permanently prepay or permanently repay any (1) Indebtedness (or cash collateralize letters of credit) constituting First-Priority Lien Obligations, (2) Indebtedness which had been secured by the assets sold in the relevant Asset Disposition, to the extent the assets sold were not Collateral or (3) Indebtedness of a Restricted Subsidiary that is not a Guarantor, to the extent the assets sold were not Collateral, or (c) be applied to make an Offer to Purchase Notes and, if the Company or a Restricted Subsidiary elects or is required to do so and the assets disposed of were not Collateral repay, purchase or redeem any other unsubordinated Indebtedness (on a pro rata basis if the amount available for such repayment, purchase or redemption is less than the aggregate amount of (i) the principal amount of the Notes tendered in such Offer to Purchase and (ii) the lesser of the principal amount, or accreted value, of such other unsubordinated Indebtedness, plus, in each case accrued interest to the date of repayment, purchase or redemption) at 100% of the principal amount or accreted value thereof, as the case may be, plus accrued and unpaid interest, if any, to the date of repurchase or repayment. Pending any such application under this paragraph, Net Cash Proceeds may be used to temporarily reduce Indebtedness or otherwise be invested in any manner not prohibited by the Indenture.
Notwithstanding the foregoing, (A) the Company will not be required to apply such Net Cash Proceeds in accordance with clauses (b) or (c) of the preceding sentence except to the extent that such Net Cash Proceeds, together with the aggregate Net Cash Proceeds of prior Asset Dispositions (other than those so used) which have not been applied in accordance with this provision and as to which no
61
prior prepayments or repayments shall have been made and no Offer to Purchase shall have been made, exceed $25 million and (B) in connection with an Asset Disposition, the Company and the Restricted Subsidiaries will not be required to comply with the requirements of clause (b) of the first sentence of the first paragraph of this covenant to the extent that the non-cash consideration received in connection with such Asset Disposition, together with the sum of all non-cash consideration received in connection with all prior Asset Dispositions that has not yet been converted into cash, Cash Equivalents or Marketable Securities, does not exceed $25 million; provided, however, that when any non-cash consideration is converted into cash, Cash Equivalents or Marketable Securities, such cash shall constitute Net Cash Proceeds and be subject to the preceding sentence.
Limitations on liens.
The Indenture will provide that the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Liens, other than Permitted Liens, on any of its Property, or on any shares of Capital Stock or Indebtedness of any Restricted Subsidiary.
Limitations on restrictions affecting restricted subsidiaries.
The Indenture will provide that the Company and the Issuer will not, and will not cause or permit any Restricted Subsidiary to, create, assume or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction (other than encumbrances or restrictions imposed by law or by judicial or regulatory action or by provisions of agreements that restrict the assignability thereof) on the ability of any Restricted Subsidiary to:
- (1)
- pay
dividends or make any other distributions on its Capital Stock or any other interest or participation in, or measured by, its profits, owned by the
Company or any other Restricted Subsidiary, or pay interest on or principal of any Indebtedness owed to the Company or any other Restricted Subsidiary,
- (2)
- make
loans or advances to the Company or any other Restricted Subsidiary, or
- (3)
- transfer
any of its property or assets to the Company or any other Restricted Subsidiary, except for:
- (a)
- encumbrances
or restrictions existing under or by reason of applicable law,
- (b)
- contractual
encumbrances or restrictions in effect at or entered into on the Issue Date and any amendments, modifications, restatements, renewals,
supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, supplements,
refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such contractual encumbrances
or restrictions, as in effect at or entered into on the Issue Date,
- (c)
- any
restrictions or encumbrances arising under Acquired Indebtedness; provided, that such encumbrance or
restriction applies only to either the assets that were subject to the restriction or encumbrance at the time of the acquisition or the obligor on such Indebtedness and its Subsidiaries prior to such
acquisition,
- (d)
- any restrictions or encumbrances arising in connection with Refinancing Indebtedness; provided, however, that any restrictions and encumbrances of the type described in this clause (d) that arise under such Refinancing Indebtedness shall not be materially more restrictive or apply to additional assets than those under the agreement creating or evidencing the Indebtedness being refunded, refinanced, replaced or extended,
62
- (e)
- any
Permitted Lien, or any other agreement restricting the sale or other disposition of property, securing Indebtedness permitted by the Indenture if such
Permitted Lien or agreement does not expressly restrict the ability of a Subsidiary of the Company to pay dividends or make or repay loans or advances prior to default thereunder,
- (f)
- reasonable
and customary borrowing base covenants set forth in agreements evidencing Indebtedness otherwise permitted by the Indenture,
- (g)
- customary
non-assignment provisions in leases, licenses, encumbrances, contracts or similar assets entered into or acquired in the ordinary
course of business,
- (h)
- any
restriction with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition,
- (i)
- encumbrances
or restrictions existing under or by reason of the Indenture, the Notes or the Guarantees,
- (j)
- purchase
money obligations that impose restrictions on the property so acquired of the nature described in clause (3) of this covenant,
- (k)
- Liens
permitted under the Indenture securing Indebtedness that limit the right of the debtor to dispose of the assets subject to such Lien,
- (l)
- provisions
with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements
and other similar agreements,
- (m)
- customary
provisions of any franchise, distribution or similar agreements,
- (n)
- restrictions
on cash or other deposits or net worth imposed by contracts entered into in the ordinary course of business, and
- (o)
- any encumbrance or restrictions of the type referred to in clauses (1), (2) or (3) of this covenant imposed by any amendments, modifications, restatements, renewals, supplements, refinancings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (a) through (n) of this paragraph, provided, that such amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company's Board of Directors, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, supplement, refunding, replacement or refinancing.
Limitations on mergers, consolidations and sales of assets.
The Indenture will provide that neither the Issuer nor any Guarantor will consolidate or merge with or into, or sell, lease, convey or otherwise dispose of all or substantially all of its assets (including, without limitation, by way of liquidation or dissolution), or assign any of its obligations under the Notes, the Guarantees or the Indenture (as an entirety or substantially as an entirety in one transaction or in a series of related transactions), to any Person (in each case other than in a transaction in which the Company, the Issuer or a Restricted Subsidiary is the survivor of a consolidation or merger, or the transferee in a sale, lease, conveyance or other disposition) unless:
- (1)
- the Person formed by or surviving such consolidation or merger (if other than the Company, the Issuer or the Guarantor, as the case may be), or to which such sale, lease, conveyance or other disposition or assignment will be made (collectively, the "Successor"), is a corporation
63
- (2)
- immediately
after giving effect to such transaction, no Default or Event of Default has occurred and is continuing, and
- (3)
- immediately after giving effect to such transaction, the Company (or its Successor) could incur at least $1.00 of Indebtedness pursuant to the first paragraph of the "Limitations on indebtedness" covenant.
or other legal entity organized and existing under the laws of the United States or any state thereof or the District of Columbia, and the Successor assumes by supplemental indenture in a form reasonably satisfactory to the Trustee all of the obligations of the Company, the Issuer or the Guarantor, as the case may be, under the Notes or a Guarantee, as the case may be, and the Indenture and the Security Documents,
The foregoing provisions shall not apply to:
- (a)
- a
transaction involving the sale or disposition of Capital Stock of a Guarantor, or the consolidation or merger of a Guarantor, or the sale, lease,
conveyance or other disposition of all or substantially all of the assets of a Guarantor, that in any such case results in such Guarantor being released from its Guarantee as provided under
"—The Guarantees" above, or
- (b)
- a transaction the purpose of which is to change the state of incorporation of the Company, the Issuer or any Guarantor.
Reports to holders of Notes.
The Company shall file with the Commission the annual reports and the information, documents and other reports required to be filed pursuant to Section 13 or 15(d) of the Exchange Act. The Company shall file with the Trustee and mail to each Holder of record of Notes such reports, information and documents within 15 days after it files them with the Commission. In the event that the Company is no longer subject to these periodic requirements of the Exchange Act, it will nonetheless continue to file reports with the Commission and the Trustee and mail such reports to each Holder of Notes as if it were subject to such reporting requirements. Regardless of whether the Company is required to furnish such reports to its stockholders pursuant to the Exchange Act, the Company will cause its consolidated financial statements and a "Management's Discussion and Analysis of Results of Operations and Financial Condition" written report, similar to those that would have been required to appear in annual or quarterly reports, to be delivered to Holders of Notes.
Condition for Release of the Issuer
The Indenture provides that the Issuer may be released from its obligations under the Indenture and the Notes, without the consent of the Holders of the Notes, if (1) the Company or any successor to the Company has assumed the obligations of the Issuer under the Indenture and the Notes, (2) the Company delivers an opinion of counsel to the Trustee to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of the release and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise and (3) the Issuer becomes a Guarantor of the Notes at such time, until such time, if any, as such Guarantee may be released as described above under the caption "—The Guarantees."
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Events of default
The following are Events of Default under the Indenture:
- (1)
- the
failure by the Company, the Issuer and the Guarantors to pay interest on any Note when the same becomes due and payable and the continuance of any such
failure for a period of 30 days;
- (2)
- the
failure by the Company, the Issuer and the Guarantors to pay the principal or premium of any Note when the same becomes due and payable at maturity,
upon acceleration or otherwise;
- (3)
- the
failure by the Company, the Issuer or any Restricted Subsidiary to comply with any of its agreements or covenants in, or provisions of, the Notes, the
Guarantees or the Indenture and such failure continues for the period and after the notice specified below (except in the case of a default under covenants described under "Certain
covenants—Repurchase of Notes upon change of control" and "Certain covenants—Limitations on mergers, consolidations and sales of assets," which will constitute Events of
Default with notice but without passage of time);
- (4)
- the
acceleration of any Indebtedness (other than Non-Recourse Indebtedness) of the Company, the Issuer or any Restricted Subsidiary that has an
outstanding principal amount of $10 million or more, individually or in the aggregate, and such acceleration does not cease to exist, or such Indebtedness is not satisfied, in either case
within 30 days after such acceleration;
- (5)
- the
failure by the Company, the Issuer or any Restricted Subsidiary to make any principal or interest payment in an amount of $10 million or more,
individually or in the aggregate, in respect of Indebtedness (other than Non-Recourse Indebtedness) of the Company or any Restricted Subsidiary within 30 days of such principal or
interest becoming due and payable (after giving effect to any applicable grace period set forth in the documents governing such Indebtedness);
- (6)
- a
final judgment or judgments that exceed $10 million or more, individually or in the aggregate, for the payment of money having been entered by a
court or courts of competent jurisdiction against the Company, the Issuer or any of its Restricted Subsidiaries and such judgment or judgments is not satisfied, stayed, annulled or rescinded within
60 days of being entered;
- (7)
- the
Company, the Issuer or any Restricted Subsidiary that is a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
- (a)
- commences
a voluntary case,
- (b)
- consents
to the entry of an order for relief against it in an involuntary case,
- (c)
- consents
to the appointment of a Custodian of it or for all or substantially all of its property, or
- (d)
- makes
a general assignment for the benefit of its creditors;
- (8)
- a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
- (a)
- is
for relief against the Company, the Issuer or any Restricted Subsidiary that is a Significant Subsidiary as debtor in an involuntary case,
- (b)
- appoints a Custodian of the Company, the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or a Custodian for all or substantially all of the property of the Company or any Restricted Subsidiary that is a Significant Subsidiary, or
65
- (c)
- orders the liquidation of the Company, the Issuer or any Restricted Subsidiary that is a Significant Subsidiary,
- (9)
- any
Guarantee of a Guarantor which is a Significant Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such
Guarantee and the Indenture) or is declared null and void and unenforceable or found to be invalid or any Guarantor denies its liability under its Guarantee (other than by reason of release of a
Guarantor from its Guarantee in accordance with the terms of the Indenture and the Guarantee); or
- (10)
- the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation or possession is required by the Indenture or the Security Documents) other than in accordance with the terms of the relevant Security Document and the Indenture and other than the satisfaction in full of all Obligations under the Indenture or the release or amendment of any such Lien in accordance with the terms of the Indenture or the Security Documents, or, except for expiration in accordance with its terms or amendment, modification, waiver, termination or release in accordance with the terms of the Indenture and the relevant Security Document, any of the Security Documents shall for whatever reason be terminated or cease to be in full force and effect, if in either case, such default continues for 30 days after notice, or the enforceability thereof shall be contested by the Issuer or any Guarantor.
and the order or decree remains unstayed and in effect for 60 days;
A Default as described in subclause (3) above will not be deemed an Event of Default until the Trustee notifies the Company, or the Holders of at least 25 percent in principal amount of the then outstanding Notes notify the Company and the Trustee, of the Default and (except in the case of a default with respect to covenants described under "Certain covenants—Repurchase of Notes upon change of control" and "Certain covenants—Limitations on mergers, consolidations and sales of assets") the Company does not cure the Default within 60 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a "Notice of Default." If such a Default is cured within such time period, it ceases.
If an Event of Default (other than an Event of Default with respect to the Company or the Issuer resulting from subclauses (7) or (8) above), shall have occurred and be continuing under the Indenture, the Trustee by notice to the Company, or the Holders of at least 25 percent in principal amount of the Notes then outstanding by notice to the Company and the Trustee, may declare all Notes to be due and payable immediately. Upon such declaration of acceleration, the amounts due and payable on the Notes will be due and payable immediately. If an Event of Default with respect to the Company or the Issuer specified in subclauses (7) or (8) above occurs, such an amount will ipso facto become and be immediately due and payable without any declaration, notice or other act on the part of the Trustee and the Company or any Holder.
The Holders of a majority in principal amount of the Notes then outstanding by written notice to the Trustee and the Company may waive any Default or Event of Default (other than any Default or Event of Default in payment of principal or interest) on the Notes under the Indenture. Holders of a majority in principal amount of the then outstanding Notes may rescind an acceleration and its consequence (except an acceleration due to nonpayment of principal or interest on the Notes) if the rescission would not conflict with any judgment or decree and if all existing Events of Default (other than the non-payment of accelerated principal) have been cured or waived.
The Holders may not enforce the provisions of the Indenture, the Notes or the Guarantees except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power, provided,
66
however, that such direction does not conflict with the terms of the Indenture. The Trustee may withhold from the Holders notice of any continuing Default or Event of Default (except any Default or Event of Default in payment of principal or interest on the Notes or that resulted from the failure to comply with the covenant entitled "Repurchase of Notes upon change of control") if the Trustee determines that withholding such notice is in the Holders' interest.
The Company is required to deliver to the Trustee an annual statement regarding compliance with the Indenture and include in such statement if any officer of the Company is aware of any Default or Event of Default, a statement specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. In addition, the Company is required to deliver to the Trustee prompt written notice of the occurrence of any Default or Event of Default.
Discharge and defeasance of Indenture
The Company, the Issuer and the Guarantors may discharge their obligations under the Notes, the Guarantees, the Indenture and the Security Documents and cause the release of all Liens on the Collateral granted under the Security Documents by irrevocably depositing in trust with the Trustee money or U.S. Government Obligations sufficient to pay principal of, premium and interest on the Notes to maturity or redemption and the Notes mature or are to be called for redemption within one year, subject to meeting certain other conditions.
The Indenture will permit the Company, the Issuer and the Guarantors to terminate all of their respective obligations under the Indenture with respect to the Notes and the Guarantees and under the Security Documents and cause the release of all Liens on the Collateral granted under the Security Documents, other than the obligation to pay interest on and the principal of the Notes and certain other obligations ("legal defeasance"), at any time by:
- (1)
- depositing
in trust with the Trustee, under an irrevocable trust agreement, money or U.S. government obligations in an amount sufficient to pay principal of
and premium and interest on the Notes to their maturity or redemption, as the case may be, and
- (2)
- complying with certain other conditions, including delivery to the Trustee of an opinion of counsel or a ruling received from the Internal Revenue Service, to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of such right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise, which opinion of counsel is based upon a change in the applicable federal tax law since the Issue Date.
In addition, the Indenture will permit the Company, the Issuer and the Guarantors to terminate all of their obligations under the Indenture with respect to certain covenants and Events of Default specified in the Indenture, and the Guarantors and the Liens on the Collateral granted under the Security Documents will be released ("covenant defeasance"), at any time by:
- (1)
- depositing
in trust with the Trustee, under an irrevocable trust agreement, money or U.S. government obligations in an amount sufficient to pay principal
of, premium and interest on the Notes to their maturity or redemption, as the case may be, and
- (2)
- complying with certain other conditions, including delivery to the Trustee of an opinion of counsel or a ruling received from the Internal Revenue Service, to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of the Company's exercise of such right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise.
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Notwithstanding
the foregoing, no discharge, legal defeasance or covenant defeasance described above will affect the following obligations to, or rights of, the Holders of the
Notes:
- •
- rights of registration of transfer and exchange of Notes;
- •
- rights of substitution of mutilated, defaced, destroyed, lost or
stolen Notes;
- •
- rights of Holders of the Notes to receive payments of principal thereof, premium, if any, and interest thereon, upon the
original due dates therefor, but not upon acceleration;
- •
- rights, obligations, duties and immunities of the Trustee;
- •
- rights of Holders of Notes that are beneficiaries with respect to property so deposited with the Trustee payable to all or
any of them; and
- •
- obligations of the Company, the Issuer or the Guarantors to maintain an office or agency in respect of the Notes.
The Company, the Issuer or the Guarantors may exercise the legal defeasance option with respect to the Notes notwithstanding the prior exercise of the covenant defeasance option with respect to the Notes. If the Company, the Issuer or the Guarantors exercise the legal defeasance option with respect to the Notes, payment of the Notes may not be accelerated due to an Event of Default with respect to the Notes. If the Company, the Issuer or the Guarantors exercise the covenant defeasance option with respect to the Notes, payment of the Notes may not be accelerated due to an Event of Default with respect to the covenants to which such covenant defeasance is applicable. However, if acceleration were to occur by reason of another Event of Default, the realizable value at the acceleration date of the cash and U.S. Government Obligations in the defeasance trust could be less than the principal of, premium, if any, and interest then due on the Notes, in that the required deposit in the defeasance trust is based upon scheduled cash flow rather than market value, which will vary depending upon interest rates and other factors.
Transfer and exchange
A Holder may transfer or exchange Notes only in accordance with the provisions of the Indenture. The Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
Amendment, supplement and waiver
Subject to certain exceptions, the Indenture, the Notes, the Guarantees or the Security Documents may be amended or supplemented with the consent (which may include written consents obtained in connection with a tender offer or exchange offer for Notes) of the Holders of at least a majority in principal amount of the Notes then outstanding, and future compliance with any provision of the Indenture, the Notes or the Security Documents may be waived (other than any continuing Default or Event of Default in the payment of interest on or the principal of the Notes) with the consent (which may include waivers obtained in connection with a tender offer or exchange offer for Notes) of the Holders of a majority in principal amount of the Notes then outstanding. Without the consent of, or notice to, any Holder, the Company, the Issuer, the Guarantors, the Trustee, the Collateral Agent, Administrative Agent and Wilmington Trust Company may amend or supplement the Indenture, the Notes, the Guarantees or the Security Documents to cure any ambiguity, defect or inconsistency; to comply with the "Limitations on mergers, consolidations and sales of assets" covenant set forth in the Indenture; to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act; to evidence and provide for the acceptance of appointment under the Indenture by a successor or replacement Trustee or under the Security Documents of a successor or replacement Collateral Agent; to provide for uncertificated Notes in
68
addition to or in place of certificated Notes; to provide for any Guarantee of the Notes; to add security to or for the benefit of the Notes and, in the case of the Security Documents, to or for the benefit of the other secured parties named therein or to confirm and evidence the release, termination or discharge of any Guarantee of or Lien securing the Notes when such release, termination or discharge is permitted by the Indenture and the Security Documents; to make any change that does not adversely affect the legal rights of any Holder; to evidence the assumption by the Company (or its successor entity) or a successor entity of the Issuer of the obligations of the Issuer under the Indenture and the Notes; to add covenants or new events of default for the protection of the Holders of the Notes; or to conform any provision of the Indenture, the Notes, the Guarantees or the Security Documents to this "Description of Notes" to the extent that this "Description of Notes" was intended to be a verbatim recitation of a provision in the Indenture, the Notes, the Guarantees or the Security Documents. In addition, the Collateral Agent, the Administrative Agent, Wilmington Trust Company and the Trustee will be authorized to amend the Security Documents to add additional secured parties to the extent Liens securing Obligations held by such parties are permitted under the Indenture and that after so securing any such additional secured parties, the amount of First-Priority Lien Obligations does not exceed the amount set forth under clause 9(b) of the definition of "Permitted Liens".
Without the consent of each Holder affected, the Company, the Issuer, the Guarantors, the Trustee, the Collateral Agent, the Administrative Agent and Wilmington Trust Company may not:
- (1)
- reduce
the amount of Notes whose Holders must consent to an amendment, supplement or waiver,
- (2)
- reduce
the rate of or extend the time for payment of interest, including default interest, on any Note,
- (3)
- reduce
the principal of or change the fixed maturity of any Note or alter the provisions (including related definitions) with respect to redemptions
described under "—Redemption" or with respect to mandatory offers to repurchase Notes described under "—Certain covenants—Limitations on dispositions of assets" or
"—Certain covenants—Repurchase of Notes upon change of control,"
- (4)
- make
any Note payable in money other than that stated in the Note,
- (5)
- make
any change in the "Waiver of Defaults by Majority of Holders" or the "Proceedings by Holders" sections set forth in the Indenture,
- (6)
- modify
the ranking or priority of the Notes or any Guarantee,
- (7)
- release
any Guarantor from any of its obligations under its Guarantee or the Indenture otherwise than in accordance with the Indenture,
- (8)
- waive
a continuing Default or Event of Default in the payment of principal of or interest on the Notes, or
- (9)
- effect a release of all or substantially all of the Collateral other than pursuant to the terms of the Security Documents or as otherwise permitted by the Indenture.
The right of any Holder to participate in any consent required or sought pursuant to any provision of the Indenture (and our obligation to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Notes with respect to which such consent is required or sought as of a date identified by the Trustee in a notice furnished to Holders in accordance with the terms of the Indenture.
69
Governing law
The Indenture, the Notes, the Guarantees and the Security Documents will be governed by the laws of the State of New York.
Definitions of certain terms used in the Indenture
Set forth below is a summary of certain of the defined terms used in the Indenture. Reference is made to the Indenture for the full definition of all terms used in the Indenture.
"Acquired Indebtedness" means (1) with respect to any Person that becomes a Restricted Subsidiary (or is merged into the Company, the Issuer or any Restricted Subsidiary) after the Issue Date, Indebtedness of such Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary (or is merged into the Company, the Issuer or any Restricted Subsidiary) that was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary (or being merged into the Company, the Issuer or any Restricted Subsidiary) and (2) with respect to the Company, the Issuer or any Restricted Subsidiary, any Indebtedness expressly assumed by the Company, the Issuer or any Restricted Subsidiary in connection with the acquisition of any assets from another Person (other than the Company, the Issuer or any Restricted Subsidiary), which Indebtedness was not incurred by such other Person in connection with or in contemplation of such acquisition. Indebtedness incurred in connection with or in contemplation of any transaction described in clause (1) or (2) of the preceding sentence shall be deemed to have been incurred by the Company or a Restricted Subsidiary, as the case may be, at the time such Person becomes a Restricted Subsidiary (or is merged into the Company, the Issuer or any Restricted Subsidiary) in the case of clause (1) or at the time of the acquisition of such assets in the case of clause (2), but shall not be deemed Acquired Indebtedness.
"Affiliate" means, when used with reference to a specified Person, any Person directly or indirectly controlling, or controlled by or under direct or indirect common control with the Person specified.
"Asset Acquisition" means (1) an Investment by the Company, the Issuer or any Restricted Subsidiary in any other Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary or shall be consolidated or merged with or into the Company, the Issuer or any Restricted Subsidiary or (2) the acquisition by the Company, the Issuer or any Restricted Subsidiary of the assets of any Person, which constitute all or substantially all of the assets or of an operating unit or line of business of such Person or which is otherwise outside the ordinary course of business.
"Asset Disposition" means any sale, transfer, conveyance, lease or other disposition (including, without limitation, by way of merger, consolidation or sale and leaseback or sale of shares of Capital Stock in any Subsidiary) (each, a "transaction") by the Company, the Issuer or any Restricted Subsidiary to any Person of any Property having a Fair Market Value in any transaction or series of related transactions of at least $5 million. The term "Asset Disposition" shall not include:
- (1)
- a
transaction between the Company, the Issuer and any Restricted Subsidiary or a transaction between Restricted Subsidiaries,
- (2)
- a
transaction in the ordinary course of business, including, without limitation, sales (directly or indirectly), dedications and other donations to
governmental authorities, leases and sales and leasebacks of (A) homes, improved land and unimproved land and (B) real estate (including related amenities and improvements),
- (3)
- a
transaction involving the sale of Capital Stock of, or the disposition of assets in, an Unrestricted Subsidiary,
- (4)
- any exchange or swap of assets of the Company, the Issuer or any Restricted Subsidiary for assets (including Capital Stock of any Person that is or will be a Restricted Subsidiary
70
- (5)
- any
sale, transfer, conveyance, lease or other disposition of assets and properties that is governed by the provisions set forth under "Limitations on
mergers, consolidation and sales of assets,"
- (6)
- dispositions
of mortgage loans and related assets and mortgage-backed securities in the ordinary course of a mortgage lending business, or
- (7)
- the creation of a Permitted Lien and dispositions in connection with Permitted Liens.
following receipt thereof) that (x) are to be used by the Company, the Issuer or any Restricted Subsidiary in the ordinary course of its Real Estate Business and (y) have a Fair Market Value not less than the Fair Market Value of the assets exchanged or swapped (provided that (except as permitted by clause (3) under the definition of "Permitted Investment") to the extent that the assets exchanged or swapped were Collateral, the assets received are pledged as Collateral under the Security Documents substantially simultaneously with such sale, with the Lien on such assets received being of the same priority with respect to the Notes as the Lien on the assets disposed of),
"Attributable Debt" means, with respect to any Capitalized Lease Obligations, the capitalized amount thereof determined in accordance with GAAP.
"Bankruptcy Law" means title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
"Capital Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of or in such Person's capital stock or other equity interests, and options, rights or warrants to purchase such capital stock or other equity interests, whether now outstanding or issued after the Issue Date, including, without limitation, all Disqualified Stock and Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of such Person to pay rent or other amounts under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP, and the amount of such obligations will be the capitalized amount thereof determined in accordance with GAAP.
- (1)
- U.S.
dollars;
- (2)
- securities
issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof having maturities of one year
or less from the date of acquisition;
- (3)
- certificates
of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities
not exceeding six months and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus in excess of $500 million;
- (4)
- repurchase
obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) entered
into with any financial institution meeting the qualifications specified in clause (3) above;
- (5)
- commercial
paper rated P-1, A-1 or the equivalent thereof by Moody's or S&P, respectively, and in each case maturing within six
months after the date of acquisition; and
- (6)
- investments in money market funds substantially all of the assets of which consist of securities described in the foregoing clauses (1) through (5).
"Cash Equivalents" means
71
"Change of Control" means
- (1)
- any
sale, lease or other transfer (in one transaction or a series of transactions) of all or substantially all of the consolidated assets of the Company and
its Restricted Subsidiaries to any Person (other than a Restricted Subsidiary); provided, however, that a transaction where the holders of all classes
of Common Equity of the Company immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of such Person immediately after such transaction shall
not be a Change of Control;
- (2)
- a
"person" or "group" (within the meaning of Section 13(d) of the Exchange Act (other than (x) the Company or (y) the Permitted
Hovnanian Holders)) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Common Equity of the Company representing more than 50% of the voting power
of the Common Equity of the Company;
- (3)
- Continuing
Directors cease to constitute at least a majority of the Board of Directors of the Company;
- (4)
- the
stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; provided,
however, that a liquidation or dissolution of the Company which is part of a transaction that does not constitute a Change of Control under the proviso contained in
clause (1) above shall not constitute a Change of Control; or
- (5)
- a change of control shall occur as defined in the instrument governing any publicly traded debt securities of the Company or the Issuer which requires the Company or the Issuer to repay or repurchase such debt securities.
"Collateralized Debt" means (i) the aggregate principal amount of all Indebtedness and all letters of credit secured by Liens on the Collateral and (ii) the aggregate amount of all unfunded commitments under all credit facilities or lines of credit secured by Liens on the Collateral but excluding Indebtedness, letters of credit and unfunded commitments secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Notes.
"Common Equity" of any Person means Capital Stock of such Person that is generally entitled to (1) vote in the election of directors of such Person or (2) if such Person is not a corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
"Consolidated Cash Flow Available for Fixed Charges" means, for any period, Consolidated Net Income for such period plus (each to the extent deducted in calculating such Consolidated Net Income and determined in accordance with GAAP) the sum for such period, without duplication, of:
- (1)
- income
taxes,
- (2)
- Consolidated
Interest Expense,
- (3)
- depreciation
and amortization expenses and other non-cash charges to earnings, and
- (4)
- interest and financing fees and expenses which were previously capitalized and which are amortized to cost of sales, minus
all other non-cash items (other than the receipt of notes receivable) increasing such Consolidated Net Income.
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"Consolidated Fixed Charge Coverage Ratio" means, with respect to any determination date, the ratio of (x) Consolidated Cash Flow Available for Fixed Charges for the prior four full fiscal quarters (the "Four Quarter Period") for which financial results have been reported immediately preceding the determination date (the "Transaction Date"), to (y) the aggregate Consolidated Interest Incurred for the Four Quarter Period. For purposes of this definition, "Consolidated Cash Flow Available for Fixed Charges" and "Consolidated Interest Incurred" shall be calculated after giving effect on a pro forma basis for the period of such calculation to:
- (1)
- the
incurrence or the repayment, repurchase, defeasance or other discharge or the assumption by another Person that is not an Affiliate (collectively,
"repayment") of any Indebtedness of the Company, the Issuer or any Restricted Subsidiary (and the application of the proceeds thereof) giving rise to
the need to make such calculation, and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), at any time on or after the first day of the Four Quarter Period
and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period,
except that Indebtedness under revolving credit facilities shall be deemed to be the average daily balance of such Indebtedness during the Four Quarter Period (as reduced on such pro forma basis by the
application of any proceeds of the incurrence of Indebtedness giving rise to the need to make such calculation);
- (2)
- any
Asset Disposition or Asset Acquisition (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of the Company, the Issuer or any Restricted Subsidiary (including any Person that becomes a Restricted Subsidiary as a result of any such Asset Acquisition) incurring Acquired Indebtedness at
any time on or after the first day of the Four Quarter Period and on or prior to the Transaction Date), as if such Asset Disposition or Asset Acquisition (including the incurrence or repayment of any
such Indebtedness) and the inclusion, notwithstanding clause (2) of the definition of "Consolidated Net Income," of any Consolidated Cash Flow Available for Fixed Charges associated with such
Asset Acquisition as if it occurred on the first day of the Four Quarter Period; provided, however, that the Consolidated Cash Flow Available for Fixed
Charges associated with any Asset Acquisition shall not be included to the extent the net income so associated would be excluded pursuant to the definition of "Consolidated Net Income," other than
clause (2) thereof, as if it applied to the Person or assets involved before they were acquired; and
- (3)
- the Consolidated Cash Flow Available for Fixed Charges and the Consolidated Interest Incurred attributable to discontinued operations, as determined in accordance with GAAP, shall be excluded.
Furthermore, in calculating "Consolidated Cash Flow Available for Fixed Charges" for purposes of determining the denominator (but not the numerator) of this "Consolidated Fixed Charge Coverage Ratio,"
- (a)
- interest
on Indebtedness in respect of which a pro forma calculation is required that is determined on a fluctuating basis as of the Transaction Date
(including Indebtedness actually incurred on the Transaction Date) and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date, and
- (b)
- notwithstanding clause (a) above, interest on such Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Protection Agreements, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.
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"Consolidated Interest Expense" of the Company for any period means the Interest Expense of the Company, the Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Incurred" for any period means the Interest Incurred of the Company, the Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" for any period means the aggregate net income (or loss) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided, that there will be excluded from such net income (loss) (to the extent otherwise included therein), without duplication:
- (1)
- the
net income (or loss) of (x) any Unrestricted Subsidiary (other than a Mortgage Subsidiary) or (y) any Person (other than a Restricted
Subsidiary or a Mortgage Subsidiary) in which any Person other than the Company, the Issuer or any Restricted Subsidiary has an ownership interest, except, in each case, to the extent that any such
income has actually been received by the Company, the Issuer or any Restricted Subsidiary in the form of cash dividends or similar cash distributions during such period, which dividends or
distributions are not in excess of the Company's, the Issuer's or such Restricted Subsidiary's (as applicable) pro rata share of such Unrestricted
Subsidiary's or such other Person's net income earned during such period,
- (2)
- except
to the extent includable in Consolidated Net Income pursuant to the foregoing clause (1), the net income (or loss) of any Person that accrued
prior to the date that (a) such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company, the Issuer or any of its Restricted Subsidiaries (except, in
the case of an Unrestricted Subsidiary that is redesignated a Restricted Subsidiary during such period, to the extent of its retained earnings from the beginning of such period to the date of such
redesignation) or (b) the assets of such Person are acquired by the Company or any Restricted Subsidiary,
- (3)
- the
net income of any Restricted Subsidiary to the extent that (but only so long as) the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary of that income is not permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary during such period,
- (4)
- the
gains or losses, together with any related provision for taxes, realized during such period by the Company, the Issuer or any Restricted Subsidiary
resulting from (a) the acquisition of securities, or extinguishment of Indebtedness, of the Company or any Restricted Subsidiary or (b) any Asset Disposition by the Company or any
Restricted Subsidiary, and
- (5)
- any extraordinary gain or loss together with any related provision for taxes, realized by the Company, the Issuer or any Restricted Subsidiary;
provided, further, that for purposes of calculating Consolidated Net Income solely as it relates to clause (3) of the first paragraph of the "Limitations on Restricted Payments" covenant, clause (4)(b) above shall not be applicable.
"Continuing Director" means a director who either was a member of the Board of Directors of the Company on the Issue Date or who became a director of the Company subsequent to such date and whose election or nomination for election by the Company's stockholders was duly approved by a majority of the Continuing Directors on the Board of Directors of the Company at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on
74
behalf of the entire Board of Directors of the Company in which such individual is named as nominee for director.
"control" when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Credit Facilities" means, collectively, each of the credit facilities and lines of credit of the Company or one or more Restricted Subsidiaries in existence, or entered into, on the Issue Date, including, without limitation, the Revolving Credit Agreement, and one or more other facilities and lines of credit among or between the Company or one or more Restricted Subsidiaries and one or more lenders pursuant to which the Company or one or more Restricted Subsidiaries may incur indebtedness for working capital and general corporate purposes (including acquisitions), as any such facility or line of credit may be amended, restated, supplemented or otherwise modified from time to time, and includes any agreement extending the maturity of, increasing the amount of, or restructuring, all or any portion of the Indebtedness under such facility or line of credit or any successor facilities or lines of credit and includes any facility or line of credit with one or more lenders refinancing or replacing all or any portion of the Indebtedness under such facility or line of credit or any successor facility or line of credit.
"Currency Agreement" of any Person means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
"Designation Amount" has the meaning provided in the definition of "Unrestricted Subsidiary."
"Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the final maturity date of the Notes or (2) is convertible into or exchangeable or exercisable for (whether at the option of the issuer or the holder thereof) (a) debt securities or (b) any Capital Stock referred to in (1) above, in each case, at any time prior to the final maturity date of the Notes; provided, however, that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a change in control or asset disposition occurring prior to the final maturity date of the Notes shall not constitute Disqualified Stock if the change in control or asset disposition provision applicable to such Capital Stock are no more favorable to such holders than the provisions described under the captions "—Certain covenants—Repurchase of Notes upon change of control" or "—Certain covenants—Limitations on dispositions of assets," as applicable, and such Capital Stock specifically provides that the Company will not repurchase or redeem any such Capital Stock pursuant to such provisions prior to the Company's repurchase of the Notes as are required pursuant to the provisions described under the captions "—Certain covenants—Repurchase of Notes upon change of control" or "—Certain covenants—Limitations on depositions of assets," as applicable.
"Equity Offering" means any public or private sale, after the Issue Date, of Qualified Stock of the Company, other than (i) an Excluded Contribution, (ii) public offerings registered on Form S-4 or S-8
75
or any successor form thereto or (iii) any issuance pursuant to employee benefit plans or otherwise in compensation to officers, directors or employees.
"Event of Default" has the meaning set forth in "Events of Default."
"Excluded Contribution" means cash or Cash Equivalents received by the Company as capital contributions to its equity (other than through the issuance of Disqualified Stock) or from the issuance or sale (other than to a Subsidiary) of Qualified Stock of the Company, in each case, after January 31, 2008 and to the extent designated as an Excluded Contribution pursuant to an Officer's Certificate of the Company.
"Fair Market Value" means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) that would be negotiated in an arm's-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction, as such price is determined in good faith by the Board of Directors of the Company or a duly authorized committee thereof, as evidenced by a resolution of such Board or committee.
"First-Priority Lien Obligations" has the meaning set forth in "Permitted Liens."
"First-Priority Liens" means all Liens that secure the First-Priority Lien Obligations.
"GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect on the Issue Date.
"guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person: (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part; provided that the term "guarantee" does not include endorsements for collection or deposit in the ordinary course of business. The term "guarantee" used as a verb has a corresponding meaning.
"Guarantee" means the guarantee of the Notes by the Company and each other Guarantor under the Indenture.
"Guarantors" means (i) initially, the Company and each of the Company's Restricted Subsidiaries in existence on the Issue Date, other than the Issuer and K. Hovnanian Poland, sp.z.o.o., and (ii) each of the Company's Subsidiaries which becomes a Guarantor of the Notes pursuant to the provisions of the Indenture, and their successors, in each case until released from its respective Guarantee pursuant to the Indenture.
"Holder" or "Holder(s) of Notes" means the Person in whose name a Note is registered in the books of the Registrar for the Notes.
"Indebtedness" of any Person means, without duplication,
- (1)
- any liability of such Person (a) for borrowed money or under any reimbursement obligation relating to a letter of credit or other similar instruments (other than standby letters of credit or similar instruments issued for the benefit of, or surety, performance, completion or
76
- (2)
- any
Indebtedness of others that such Person has guaranteed to the extent of the guarantee; provided, however, that Indebtedness of the Company and its
Restricted Subsidiaries will not include the obligations of the Company or a Restricted Subsidiary under warehouse lines of credit of Mortgage Subsidiaries to repurchase mortgages at prices no greater
than 98% of the principal amount thereof, and upon any such purchase the excess, if any, of the purchase price thereof over the Fair Market Value of the mortgages acquired, will constitute Restricted
Payments subject to the "Limitations on restricted payments" covenant,
- (3)
- to
the extent not otherwise included, the obligations of such Person under Currency Agreements or Interest Protection Agreements to the extent recorded as
liabilities not constituting Interest Incurred, net of amounts recorded as assets in respect of such agreements, in accordance with GAAP, and
- (4)
- all Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;
payment bonds, earnest money notes or similar purpose undertakings or indemnifications issued by, such Person in the ordinary course of business), (b) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any businesses, properties or assets of any kind or with services incurred in connection with capital expenditures (other than any obligation to pay a contingent purchase price which, as of the date of incurrence thereof, is not required to be recorded as a liability in accordance with GAAP), or (c) in respect of Capitalized Lease Obligations (to the extent of the Attributable Debt in respect thereof),
provided, that Indebtedness shall not include accounts payable, liabilities to trade creditors of such Person or other accrued expenses arising in the ordinary course of business. The amount of Indebtedness of any Person at any date shall be (a) the outstanding balance at such date of all unconditional obligations as described above, net of any unamortized discount to be accounted for as Interest Expense, in accordance with GAAP, (b) the maximum liability of such Person for any contingent obligations under clause (1) above at such date, net of an unamortized discount to be accounted for as Interest Expense in accordance with GAAP, and (c) in the case of clause (4) above, the lesser of (x) the fair market value of any asset subject to a Lien securing the Indebtedness of others on the date that the Lien attaches and (y) the amount of the Indebtedness secured.
"Intercreditor Agreement" means the Intercreditor Agreement dated on or about the Issue Date among the Collateral Agent, the Administrative Agent, the Trustee, Wilmington Trust Company, the Issuer, the Company and each other Guarantor named therein, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
"Interest Expense" of any Person for any period means, without duplication, the aggregate amount of (i) interest which, in conformity with GAAP, would be set opposite the caption "interest expense" or any like caption on an income statement for such Person (including, without limitation, imputed interest included in Capitalized Lease Obligations, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, the net costs (but reduced by net gains) associated with Currency Agreements and Interest Protection Agreements, amortization of other financing fees and expenses, the interest portion of any deferred payment obligation, amortization of discount or premium, if any, and all other noncash interest expense (other than interest and other charges amortized to cost of sales)), and (ii) all interest actually paid by the Company or a Restricted Subsidiary under any guarantee of Indebtedness (including, without limitation, a guarantee of principal, interest or any combination thereof) of any Person other than the Company, the Issuer or any Restricted Subsidiary during such period; provided, that Interest Expense shall exclude any expense associated with the complete write-off of financing fees and expenses in connection with the repayment of any Indebtedness.
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"Interest Incurred" of any Person for any period means, without duplication, the aggregate amount of (1) Interest Expense and (2) all capitalized interest and amortized debt issuance costs.
"Interest Protection Agreement" of any Person means any interest rate swap agreement, interest rate collar agreement, option or futures contract or other similar agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in interest rates with respect to Indebtedness permitted to be incurred under the Indenture.
"Investments" of any Person means (i) all investments by such Person in any other Person in the form of loans, advances or capital contributions, (ii) all guarantees of Indebtedness or other obligations of any other Person by such Person, (iii) all purchases (or other acquisitions for consideration) by such Person of Indebtedness, Capital Stock or other securities of any other Person and (iv) all other items that would be classified as investments in any other Person (including, without limitation, purchases of assets outside the ordinary course of business) on a balance sheet of such Person prepared in accordance with GAAP.
"Issue Date" means May 27, 2008.
"Lien" means, with respect to any Property, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such Property. For purposes of this definition, a Person shall be deemed to own, subject to a Lien, any Property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such Property.
"Marketable Securities" means (a) equity securities that are listed on the New York Stock Exchange, the American Stock Exchange or The Nasdaq Stock Market and (b) debt securities that are rated by a nationally recognized rating agency, listed on the New York Stock Exchange or the American Stock Exchange or covered by at least two reputable market makers.
"Moody's" means Moody's Investors Service, Inc. or any successor to its debt rating business.
"Mortgage Subsidiary" means any Subsidiary of the Company substantially all of whose operations consist of the mortgage lending business.
"Net Cash Proceeds" means with respect to an Asset Disposition, payments received in cash (including any such payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise (including any cash received upon sale or disposition of such note or receivable), but only as and when received), excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the Property disposed of in such Asset Disposition or received in any other non-cash form unless and until such non-cash consideration is converted into cash therefrom, in each case, net of all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all federal, state and local taxes required to be accrued as a liability under GAAP as a consequence of such Asset Disposition, and in each case net of a reasonable reserve for the after-tax cost of any indemnification or other payments (fixed and contingent) attributable to the seller's indemnities or other obligations to the purchaser undertaken by the Company, the Issuer or any of its Restricted Subsidiaries in connection with such Asset Disposition, and net of all payments made on any Indebtedness which is secured by or relates to such Property (other than Indebtedness secured by Liens on the Collateral) in accordance with the terms of any Lien or agreement upon or with respect to such Property or which such Indebtedness must by its terms or by applicable law be repaid out of the proceeds from such Asset Disposition, and net of all contractually required distributions and payments made to minority interest holders in Restricted Subsidiaries or joint ventures as a result of such Asset Disposition.
"Non-Recourse Indebtedness" with respect to any Person means Indebtedness of such Person for which (1) the sole legal recourse for collection of principal and interest on such Indebtedness is against
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the specific property identified in the instruments evidencing or securing such Indebtedness and such property was acquired with the proceeds of such Indebtedness or such Indebtedness was incurred within 90 days after the acquisition of such property and (2) no other assets of such Person may be realized upon in collection of principal or interest on such Indebtedness. Indebtedness which is otherwise Non-Recourse Indebtedness will not lose its character as Non-Recourse Indebtedness because there is recourse to the borrower, any guarantor or any other Person for (a) environmental warranties and indemnities, or (b) indemnities for and liabilities arising from fraud, misrepresentation, misapplication or non-payment of rents, profits, insurance and condemnation proceeds and other sums actually received by the borrower from secured assets to be paid to the lender, waste and mechanics' liens.
"Notes" means the 111/2% Senior Secured Notes due 2013 offered pursuant to this prospectus.
"Obligations" means with respect to any Indebtedness, all obligations (whether in existence on the Issue Date or arising afterwards, absolute or contingent, direct or indirect) for or in respect of principal (when due, upon acceleration, upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory offer to purchase, or otherwise), premium, interest, penalties, fees, indemnification, reimbursement and other amounts payable and liabilities with respect to such Indebtedness, including all interest accrued or accruing after the commencement of any bankruptcy, insolvency or reorganization or similar case or proceeding at the contract rate (including, without limitation, any contract rate applicable upon default) specified in the relevant documentation, whether or not the claim for such interest is allowed as a claim in such case or proceeding.
"Permitted Hovnanian Holders" means, collectively, Kevork S. Hovnanian, Ara K. Hovnanian, the members of their immediate families, the respective estates, spouses, heirs, ancestors, lineal descendants, legatees and legal representatives of any of the foregoing and the trustee of any bona fide trust of which one or more of the foregoing are the sole beneficiaries or the grantors thereof, or any entity of which any of the foregoing, individually or collectively, beneficially own more than 50% of the Common Equity.
- (1)
- Indebtedness
under Credit Facilities which does not exceed $300.0 million principal amount outstanding at any one time;
- (2)
- Indebtedness
in respect of obligations of the Company and its Subsidiaries to the trustees under indentures for debt securities;
- (3)
- intercompany
debt obligations of (i) the Company to the Issuer, (ii) the Issuer to the Company, (iii) the Company or the Issuer to any
Restricted Subsidiary and (iv) any Restricted Subsidiary to the Company or the Issuer or any other Restricted Subsidiary; provided, however, that
any Indebtedness of any Restricted Subsidiary or the Issuer or the Company owed to any Restricted Subsidiary or the Issuer that ceases to be a Restricted Subsidiary shall be deemed to be incurred and
shall be treated as an incurrence for purposes of the first paragraph of the covenant described under "Limitations on indebtedness" at the time the Restricted Subsidiary in question ceases to be a
Restricted Subsidiary;
- (4)
- Indebtedness
of the Company or the Issuer or any Restricted Subsidiary under any Currency Agreements or Interest Protection Agreements in a notional amount
no greater than the payments due (at the time the related Currency Agreement or Interest Protection Agreement is entered into) with respect to the Indebtedness or currency being hedged;
- (5)
- Purchase Money Indebtedness and Capitalized Lease Obligations in an aggregate principal amount outstanding at any one time not to exceed $25.0 million;
"Permitted Indebtedness" means
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- (6)
- obligations
for, pledge of assets in respect of, and guaranties of, bond financings of political subdivisions or enterprises thereof in the ordinary course
of business;
- (7)
- Indebtedness
secured only by office buildings owned or occupied by the Company or any Restricted Subsidiary, which Indebtedness does not exceed
$10 million aggregate principal amount outstanding at any one time;
- (8)
- Indebtedness
under warehouse lines of credit, repurchase agreements and Indebtedness secured by mortgage loans and related assets of mortgage lending
Subsidiaries in the ordinary course of a mortgage lending business; and
- (9)
- Indebtedness of the Company or any Restricted Subsidiary which, together with all other Indebtedness under this clause (9), does not exceed $50 million aggregate principal amount outstanding at any one time.
"Permitted Investment" means
- (1)
- Cash
Equivalents;
- (2)
- any
Investment in the Company, the Issuer or any Restricted Subsidiary or any Person that becomes a Restricted Subsidiary as a result of such Investment or
that is consolidated or merged with or into, or transfers all or substantially all of the assets of it or an operating unit or line of business to, the Company or a Restricted Subsidiary;
- (3)
- any
receivables, loans or other consideration taken by the Company, the Issuer or any Restricted Subsidiary in connection with any asset sale otherwise
permitted by the Indenture; provided that non-cash consideration received in an Asset Disposition or an exchange or swap of assets shall be
pledged as Collateral under the Security Documents to the extent the assets subject to such Asset Disposition or exchange or swap of assets constituted Collateral, with the Lien on such Collateral
securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of; provided further that notwithstanding the
foregoing clause, up to an aggregate of $50.0 million of (x) non-cash consideration and consideration received as referred to in clause (ii) of the second paragraph
under "—Certain covenants—Limitations on dispositions of assets," (y) assets invested in pursuant to the third paragraph under "Certain covenants—Limitations
on dispositions of assets" and (z) assets received pursuant to clause (4) under the definition of "Asset Disposition" may be designated by the Company or the Issuer as Excluded Property
not required to be pledged as Collateral;
- (4)
- Investments
received in connection with any bankruptcy or reorganization proceeding, or as a result of foreclosure, perfection or enforcement of any Lien or
any judgment or settlement of any Person in exchange for or satisfaction of Indebtedness or other obligations or other property received from such Person, or for other liabilities or obligations of
such Person created, in accordance with the terms of the Indenture;
- (5)
- Investments
in Currency Agreements or Interest Protection Agreements described in the definition of "Permitted Indebtedness";
- (6)
- any
loan or advance to an executive officer, director or employee of the Company or any Restricted Subsidiary made in the ordinary course of business or in
accordance with past practice; provided, however, that any such loan or advance exceeding $1 million shall have been approved by the Board of
Directors of the Company or a committee thereof consisting of disinterested members;
- (7)
- Investments in interests in issuances of collateralized mortgage obligations, mortgages, mortgage loan servicing, or other mortgage related assets;
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- (8)
- obligations
of the Company or a Restricted Subsidiary under warehouse lines of credit of Mortgage Subsidiaries to repurchase mortgages; and
- (9)
- Investments in an aggregate amount outstanding not to exceed $10 million.
"Permitted Liens" means
- (1)
- Liens
for taxes, assessments or governmental or quasi-government charges or claims that (a) are not yet delinquent, (b) are being contested in
good faith by appropriate proceedings and as to which appropriate reserves have been established or other provisions have been made in accordance with GAAP, if required, or (c) encumber solely
property abandoned or in the process of being abandoned,
- (2)
- statutory
Liens of landlords and carriers', warehousemen's, mechanics', suppliers', materialmen's, repairmen's or other Liens imposed by law and arising in
the ordinary course of business and with respect to amounts that, to the extent applicable, either (a) are not yet delinquent or (b) are being contested in good faith by appropriate
proceedings and as to which appropriate reserves have been established or other provisions have been made in accordance with GAAP, if required,
- (3)
- Liens
(other than any Lien imposed by the Employer Retirement Income Security Act of 1974, as amended) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and other types of social security,
- (4)
- Liens
incurred or deposits made to secure the performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, development obligations,
progress payments, government contacts, utility services, developer's or other obligations to make on-site or off-site improvements and other obligations of like nature
(exclusive of obligations for the payment of borrowed money but including the items referred to in the parenthetical in clause (1)(a) of the definition of "Indebtedness"), in each case incurred
in the ordinary course of business of the Company, the Issuer and the Restricted Subsidiaries,
- (5)
- attachment
or judgment Liens not giving rise to a Default or an Event of Default,
- (6)
- easements,
dedications, assessment district or similar Liens in connection with municipal or special district financing,
rights-of-way, restrictions, reservations and other similar charges, burdens, and other similar charges or encumbrances not materially interfering with the ordinary course of
business of the Company, the Issuer and the Restricted Subsidiaries,
- (7)
- zoning
restrictions, licenses, restrictions on the use of real property or minor irregularities in title thereto, which do not materially impair the use of
such real property in the ordinary course of business of the Company, the Issuer and the Restricted Subsidiaries,
- (8)
- Liens
securing Indebtedness incurred pursuant to clause (7) or (8) of the definition of Permitted Indebtedness,
- (9)
- Liens
on the Collateral and other assets not constituting Collateral pursuant to clauses (a) and (b) of the definition of "Excluded Property"
securing:
- (a)
- the
Notes, the Guarantees thereof and other Obligations under the Indenture and the Security Documents and in respect thereof and any obligations owing to
the Trustee or the Collateral Agent under the Indenture or the Security Documents;
- (b)
- (i) Indebtedness incurred under clause (1) of the definition of "Permitted Indebtedness" and the Security Documents (and all Obligations, including letters of credit and similar instruments, incurred, issued or arising under such secured Credit Facilities that permit borrowings not in excess of the limit set out in such clause (1)) and Liens securing
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- (c)
- other
Indebtedness permitted to be incurred under the Indenture (and all Obligations in respect thereof); provided that (i) such Indebtedness is Refinancing Indebtedness issued in exchange for or to
refinance Indebtedness of the Issuer outstanding on
the Issue Date and (ii) the Liens securing such Indebtedness rank junior to the Liens on the Collateral securing the Notes on a basis substantially the same as the basis on which the Liens
securing the Notes are treated under the Intercreditor Agreement with respect to the First-Priority Liens,
- (10)
- Liens
securing Non-Recourse Indebtedness of the Company, the Issuer or any Restricted Subsidiary; provided, that such Liens apply only to the
property financed out of the net proceeds of such Non-Recourse Indebtedness within 90 days after the incurrence of such Non-Recourse Indebtedness,
- (11)
- Liens
securing Purchase Money Indebtedness; provided, that such Liens apply only to the property acquired,
constructed or improved with the proceeds of such Purchase Money Indebtedness within 90 days after the incurrence of such Purchase Money Indebtedness,
- (12)
- Liens
on property or assets of the Company, the Issuer or any Restricted Subsidiary securing Indebtedness of the Company, the Issuer or any Restricted
Subsidiary owing to the Company, the Issuer or one or more Restricted Subsidiaries (other than K. Hovnanian Poland, sp.z.o.o.),
- (13)
- leases
or subleases granted to others not materially interfering with the ordinary course of business of the Company and the Restricted Subsidiaries,
- (14)
- purchase
money security interests (including, without limitation, Capitalized Lease Obligations); provided,
that such Liens apply only to the Property acquired and the related Indebtedness is incurred within 90 days after the acquisition of such Property,
- (15)
- any
right of first refusal, right of first offer, option, contract or other agreement to sell an asset; provided that such sale is not otherwise prohibited under the Indenture,
- (16)
- any
right of a lender or lenders to which the Company, the Issuer or a Restricted Subsidiary may be indebted to offset against, or appropriate and apply to
the payment of such, Indebtedness any and all balances, credits, deposits, accounts or money of the Company, the Issuer or a Restricted Subsidiary with or held by such lender or lenders or its
Affiliates,
- (17)
- any
pledge or deposit of cash or property in conjunction with obtaining surety, performance, completion or payment bonds and letters of credit or other
similar instruments or providing earnest money obligations, escrows or similar purpose undertakings or indemnifications in the ordinary course of business of the Company, the Issuer and the Restricted
Subsidiaries,
- (18)
- Liens
for homeowner and property owner association developments and assessments,
- (19)
- Liens securing Refinancing Indebtedness; provided, that such Liens extend only to the assets securing the Indebtedness being refinanced and have the same or junior priority as the initial
Refinancing Indebtedness in respect thereof (which Refinancing Indebtedness is incurred under such clause (1)), (ii) up to an additional $25.0 million of Indebtedness otherwise permitted to be incurred under the Indenture (and all Obligations, including letters of credit and similar instruments, incurred, issued or arising thereunder) and Liens securing Refinancing Indebtedness in respect thereof and (iii) Obligations under Currency Agreements and Interest Protection Agreements entered into with agents or lenders under the Indebtedness referred to in clause (i) or their affiliates, which Liens incurred under this clause (b) may be on a first-lien priority basis compared to the Notes on terms as set forth in the Intercreditor Agreement (collectively, "First-Priority Lien Obligations"); and
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- (20)
- Liens
incurred in the ordinary course of business as security for the obligations of the Company, the Issuer and the Restricted Subsidiaries with respect
to indemnification in respect of title insurance providers,
- (21)
- Liens
on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Subsidiary of the Company or
becomes a Subsidiary of the Company; provided, that such Liens were in existence prior to the contemplation of such merger or consolidation or
acquisition and do not extend to any assets other than those of the Person merged into or consolidated with the Company or the Subsidiary or acquired by the Company or its Subsidiaries,
- (22)
- Liens
on property existing at the time of acquisition thereof by the Company or any Subsidiary of the Company, provided, that such Liens were in existence prior to the contemplation of such acquisition,
- (23)
- Liens
existing on the Issue Date (other than Liens securing Obligations under the Revolving Credit Agreement or the Notes) and any extensions, renewals or
replacements thereof, and
- (24)
- Liens on specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods.
Liens; provided, further, that no Liens may be incurred under this clause (19) in respect of Refinancing Indebtedness incurred to refinance Indebtedness that is secured by Liens incurred under clause (9)(b)(i) or (ii) above (it being understood that Liens incurred in respect of such Indebtedness may only be refinanced under such clause (9)(b)(i) or (ii)),
"Person" means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Preferred Stock" of any Person means all Capital Stock of such Person which has a preference in liquidation or with respect to the payment of dividends.
"Property" of any Person means all types of real, personal, tangible, intangible or mixed property owned by such Person, whether or not included in the most recent consolidated balance sheet of such Person and its Subsidiaries under GAAP.
"Purchase Money Indebtedness" means Indebtedness of the Company, the Issuer or any Restricted Subsidiary incurred for the purpose of financing all or any part of the purchase price, or the cost of construction or improvement, of any property to be used in the ordinary course of business by the Company, the Issuer and the Restricted Subsidiaries; provided, however, that (1) the aggregate principal amount of such Indebtedness shall not exceed such purchase price or cost and (2) such Indebtedness shall be incurred no later than 90 days after the acquisition of such property or completion of such construction or improvement.
"Qualified Stock" means Capital Stock of the Company other than Disqualified Stock.
"Real Estate Business" means homebuilding, housing construction, real estate development or construction and the sale of homes and related real estate activities, including the provision of mortgage financing or title insurance.
"Refinancing Indebtedness" means Indebtedness (to the extent not Permitted Indebtedness) that refunds, refinances or extends any Indebtedness of the Company, the Issuer or any Restricted Subsidiary (to the extent not Permitted Indebtedness) outstanding on the Issue Date or other
83
Indebtedness (to the extent not Permitted Indebtedness) permitted to be incurred by the Company, the Issuer or any Restricted Subsidiary pursuant to the terms of the Indenture, but only to the extent that:
- (1)
- the
Refinancing Indebtedness is subordinated, if at all, to the Notes or the Guarantees, as the case may be, to the same extent as the Indebtedness being
refunded, refinanced or extended (provided that Refinancing Indebtedness issued to refund, refinance or extend Subordinated Indebtedness outstanding as
of the Issue Date ("Existing Subordinated Debt") need not be subordinated to the Notes or the Guarantees, as the case may, so long as any Liens securing
such Indebtedness are junior to the Liens securing the Notes or the Guarantees, as the case may be),
- (2)
- the
Refinancing Indebtedness is scheduled to mature either (a) no earlier than the Indebtedness being refunded, refinanced or extended or
(b) after the maturity date of the Notes (unless the Refinancing Indebtedness is in respect of Existing Subordinated Debt and is secured by Liens on the Collateral, in which case the
Refinancing Indebtedness must be scheduled to mature after the maturity date of the Notes),
- (3)
- the
portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or prior to the maturity date of the Notes has a Weighted Average Life
to Maturity at the time such Refinancing Indebtedness is incurred that is equal to or greater than the Weighted Average Life to Maturity of the portion of the Indebtedness being refunded, refinanced
or extended that is scheduled to mature on or prior to the maturity date of the Notes, and
- (4)
- such Refinancing Indebtedness is in an aggregate principal amount that is equal to or less than the aggregate principal amount then outstanding under the Indebtedness being refunded, refinanced or extended.
"Restricted Investment" means any Investment other than a Permitted Investment.
"Restricted Payment" means any of the following:
- (1)
- the
declaration or payment of any dividend or any other distribution on Capital Stock of the Company, the Issuer or any Restricted Subsidiary or any payment
made to the direct or indirect holders (in their capacities as such) of Capital Stock of the Company, the Issuer or any Restricted Subsidiary (other than (a) dividends or distributions payable
solely in Qualified Stock and (b) in the case of the Issuer or Restricted Subsidiaries, dividends or distributions payable to the Company, the Issuer or a Restricted Subsidiary);
- (2)
- the
purchase, redemption or other acquisition or retirement for value of any Capital Stock of the Company, the Issuer or any Restricted Subsidiary (other
than a payment made to the Company, the Issuer or any Restricted Subsidiary);
- (3)
- any
Investment (other than any Permitted Investment), including any Investment in an Unrestricted Subsidiary (including by the designation of a Subsidiary
of the Company as an Unrestricted Subsidiary) and any amounts paid in accordance with clause (2) of the definition of Indebtedness; and
- (4)
- the purchase, repurchase, redemption, acquisition or retirement for value, prior to the date for any scheduled maturity, sinking fund or amortization or other principal installment payment, of any Subordinated Indebtedness (other than (a) Indebtedness permitted under clause (3) of the definition of Permitted Indebtedness or (b) the purchase, repurchase, redemption, defeasance, or other acquisition or retirement of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, amortization or principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement).
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"Restricted Subsidiary" means any Subsidiary of the Company which is not an Unrestricted Subsidiary.
"Revolving Credit Agreement" means that certain Seventh Amended and Restated Credit Agreement dated as of March 7, 2008, as amended by Amendment No. 1 thereto dated May 16, 2008 among the Issuer, the Company, the Administrative Agent, and a syndicate of lenders, as may be amended, restated, renewed, modified, refunded, replaced, revised, restructured or refinanced in whole or in part from time to time, including to extend the maturity thereof, to increase the amount of commitments thereunder (provided that any such increase is permitted under the covenant described under "—Certain covenants—Limitations on indebtedness"), or to add Restricted Subsidiaries as additional borrowers or guarantors thereunder, whether by the same or any other agent, lender or group of lenders or investors and whether such revision, restructuring, amendment, restatement, refunding, renewal, modification, replacement or refinancing is under one or more credit facilities or commercial paper facilities, indentures or other agreements, in each case with banks or other institutional lenders or trustees or investors providing for revolving credit loans, term loans, notes or letters or credit, together with related documents thereto (including, without limitation, any guaranty agreements and security documents).
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., a New York corporation, or any successor to its debt rating business.
"Second-Priority Lien Obligations" means all Indebtedness and other obligations with respect to the Notes and the Guarantees.
"Security Documents" means (i) the Intercreditor Agreement and (ii) the security documents granting a security interest in any assets of any Person to secure the Obligations under the Notes and the Guarantees as each may be amended, restated, supplemented or otherwise modified from time to time.
"Significant Subsidiary" means any Subsidiary of the Company which would constitute a "significant subsidiary" as defined in Rule 1-02(w)(1) or (2) of Regulation S-X under the Securities Act and the Exchange Act as in effect on the Issue Date.
"Subordinated Indebtedness" means Indebtedness subordinated in right of payment to the Notes pursuant to a written agreement and includes any Indebtedness ranking equally in right of payment to the Notes but unsecured or secured by the Collateral on a basis entirely junior to that of the Notes.
"Subsidiary" of any Person means any corporation or other entity of which a majority of the Capital Stock having ordinary voting power to elect a majority of the Board of Directors or other persons performing similar functions is at the time directly or indirectly owned or controlled by such Person.
"Trustee" means the party named as such above until such time, if any, a successor replaces such party in accordance with the applicable provisions of the Indenture and thereafter means the successor serving as trustee under the Indenture in respect of the Notes.
"Unrestricted Subsidiary" means any Subsidiary of the Company so designated by a resolution adopted by the Board of Directors of the Company or a duly authorized committee thereof as provided below; provided that (a) the holders of Indebtedness thereof do not have direct or indirect recourse against the Company, the Issuer or any Restricted Subsidiary, and neither the Company, the Issuer nor any Restricted Subsidiary otherwise has liability for, any payment obligations in respect of such Indebtedness (including any undertaking, agreement or instrument evidencing such Indebtedness), except, in each case, to the extent that the amount thereof constitutes a Restricted Payment permitted by the Indenture, in the case of Non-Recourse Indebtedness, to the extent such recourse or liability is for the matters discussed in the last sentence of the definition of "Non-Recourse Indebtedness," or to
85
the extent such Indebtedness is a guarantee by such Subsidiary of Indebtedness of the Company, the Issuer or a Restricted Subsidiary and (b) no holder of any Indebtedness of such Subsidiary shall have a right to declare a default on such Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity as a result of a default on any Indebtedness of the Company, the Issuer or any Restricted Subsidiary. As of the Issue Date, our home mortgage subsidiaries, our joint ventures and certain of our title insurance subsidiaries are designated as Unrestricted Subsidiaries under the Indenture.
Subject to the foregoing, the Board of Directors of the Company or a duly authorized committee thereof may designate any Subsidiary in addition to those named above to be an Unrestricted Subsidiary; provided, however, that (1) the net amount (the "Designation Amount") then outstanding of all previous Investments by the Company and the Restricted Subsidiaries in such Subsidiary will be deemed to be a Restricted Payment at the time of such designation and will reduce the amount available for Restricted Payments under the "Limitations on restricted payments" covenant set forth in the Indenture, to the extent provided therein, (2) the Company must be permitted under the "Limitations on restricted payments" covenant set forth in the Indenture to make the Restricted Payment deemed to have been made pursuant to clause (1), and (3) after giving effect to such designation, no Default or Event of Default shall have occurred or be continuing. In accordance with the foregoing, and not in limitation thereof, Investments made by any Person in any Subsidiary of such Person prior to such Person's merger with the Company or any Restricted Subsidiary (but not in contemplation or anticipation of such merger) shall not be counted as an Investment by the Company or such Restricted Subsidiary if such Subsidiary of such Person is designated as an Unrestricted Subsidiary.
The Board of Directors of the Company or a duly authorized committee thereof may also redesignate an Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that (1) the Indebtedness of such Unrestricted Subsidiary as of the date of such redesignation could then be incurred under the "Limitations on indebtedness" covenant and (2) immediately after giving effect to such redesignation and the incurrence of any such additional Indebtedness, the Company and the Restricted Subsidiaries could incur $1.00 of additional Indebtedness under the first paragraph of the "Limitations on indebtedness" covenant. Any such designation or redesignation by the Board of Directors of the Company or a committee thereof will be evidenced to the Trustee by the filing with the Trustee of a certified copy of the resolution of the Board of Directors of the Company or a committee thereof giving effect to such designation or redesignation and an Officers' Certificate certifying that such designation or redesignation complied with the foregoing conditions and setting forth the underlying calculations of such Officers' Certificate. The designation of any Person as an Unrestricted Subsidiary shall be deemed to include a designation of all Subsidiaries of such Person as Unrestricted Subsidiaries; provided, however, that the ownership of the general partnership interest (or a similar member's interest in a limited liability company) by an Unrestricted Subsidiary shall not cause a Subsidiary of the Company of which more than 95% of the equity interest is held by the Company or one or more Restricted Subsidiaries to be deemed an Unrestricted Subsidiary.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness or portion thereof at any date, the number of years obtained by dividing (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including, without limitation, payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the sum of all such payments described in clause (i)(a) above.
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Concerning the Trustee
The Indenture contains certain limitations on the rights of the Trustee, should it become a creditor of the Company, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest during the continuance of any Default, it must, so long as such Default has not been cured or duly waived, eliminate that conflicting interest within 90 days, apply to the Commission for permission to continue or resign.
The holders of a majority in principal amount of the Notes then outstanding will have the right to direct the Trustee, subject to certain exceptions. The Indenture provides that in case an Event of Default shall occur (which shall not be cured), the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any holder of Notes, unless that holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
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EXCHANGE OFFER; REGISTRATION RIGHTS
The Issuer, the Company, the other guarantors party thereto and the initial purchasers of the outstanding notes entered into a registration rights agreement on May 27, 2008, which we refer to as the "Registration Rights Agreement." Pursuant to the Registration Rights Agreement, the Issuer, the Company and the other guarantors party thereto agreed to file with the SEC the Exchange Offer Registration Statement on the appropriate form under the Securities Act with respect to the exchange offer. Upon the effectiveness of the Exchange Offer Registration Statement and pursuant to the exchange offer, the Issuer will offer to the holders of Transfer Restricted Securities (as defined below) who are able to make certain representations the opportunity to exchange their Transfer Restricted Securities for exchange notes. Capitalized terms used in this section but not otherwise defined have the meanings given to them in the Registration Rights Agreement.
Under the Registration Rights Agreement:
- (1)
- the
Issuer, the Company and the other guarantors agreed to file an Exchange Offer Registration Statement with the SEC on or prior to 120 days after
May 27, 2008;
- (2)
- the
Issuer, the Company and the other guarantors agreed to use their reasonable best efforts to have the Exchange Offer Registration Statement declared
effective by the SEC on or prior to 180 days after May 27, 2008;
- (3)
- unless
the exchange offer would not be permitted by applicable law or SEC policy, the Issuer, the Company and the other guarantors agreed to commence the
exchange offer, keep the exchange offer open for a period of not less than 20 business days and use their reasonable best efforts to issue, on or prior to 30 business days after the date on which the
Exchange Offer Registration Statement was declared effective by the SEC, but in no event later than 40 business days thereafter, exchange notes in exchange for all outstanding notes tendered prior
thereto in the exchange offer; and
- (4)
- if obligated to file the Shelf Registration Statement, the Issuer, the Company and the other guarantors will file the Shelf Registration Statement with the SEC on or prior to 30 days after that filing obligation arises and use their reasonable best efforts to cause the Shelf Registration Statement to be declared effective by the SEC on or prior to 90 days after that obligation arises.
In the event that:
- (1)
- the
Issuer is not permitted to file the Exchange Offer Registration Statement or permitted to consummate the exchange offer because the exchange offer is
not permitted by applicable law or SEC policy; or
- (2)
- any
holder of Transfer Restricted Securities notifies the Issuer in writing prior to the 20th business day following consummation of the exchange
offer that:
- (a)
- based
on an opinion of counsel, it is prohibited by law or SEC policy from participating in the exchange offer; or
- (b)
- it is a broker-dealer and owns notes acquired directly from the Issuer,
then, the Issuer, the Company and the other guarantors have agreed to file with the SEC a Shelf Registration Statement to cover resales of the notes by the holders thereof who satisfy certain conditions relating to the provisions of information in connection with the Shelf Registration Statement.
The Company, the Issuer and the other guarantors have agreed to use their reasonable best efforts to cause the applicable registration statement to be declared effective as promptly as possible by the SEC.
88
For purposes of the preceding, "Transfer Restricted Securities" means:
- (1)
- each
outstanding note, until the earliest to occur of:
- (a)
- the
date on which that outstanding note is exchanged in the exchange offer for an exchange note which is entitled to be resold to the public by the holder
thereof without complying with the prospectus delivery requirements of the Securities Act;
- (b)
- the
date on which that outstanding note has been disposed of in accordance with a Shelf Registration Statement (and purchasers thereof have been issued new
exchange notes); or
- (c)
- the
date on which the outstanding note is distributed to the public pursuant to Rule 144 or Regulation S under the Securities Act (and
purchasers thereof have been issued new exchange notes); and
- (2)
- new exchange notes issued to a broker-dealer until the date on which those exchange notes are disposed of by that broker-dealer pursuant to the "Plan of Distribution" contemplated by the Exchange Offer Registration Statement (including the delivery of the prospectus contained therein).
The Issuer, the Company and other guarantors have agreed to pay additional interest to each holder of Transfer Restricted Securities upon the occurrence of any of the following:
- (1)
- the
Issuer, the Company and the other guarantors fail to file any of the Registration Statements required by the Registration Rights Agreement on or before
the date specified for that filing;
- (2)
- any
of such Registration Statements is not declared effective by the SEC on or prior to the date specified for that effectiveness, which we refer to as the
"Effectiveness Target Date";
- (3)
- the
Issuer, the Company and the other guarantors fail to consummate the exchange offer within 40 business days of the Effectiveness Target Date with respect
to the Exchange Offer Registration Statement; or
- (4)
- the Shelf Registration Statement or the Exchange Offer Registration Statement is declared effective but thereafter ceases to be effective or usable (without being succeeded immediately by a post-effective amendment to such Registration Statement) in connection with resales of Transfer Restricted Securities during the periods specified in the Registration Rights Agreement.
We refer to each event referred to in clauses (1) through (4) above as a "Registration Default."
Such additional interest shall be:
- (1)
- with
respect to the first 90-day period immediately following the occurrence of the first Registration Default, an amount equal to $.05 per week
per $1,000 principal amount of Transfer Restricted Securities held by that holder; and
- (2)
- an additional $.05 per week per $1,000 principal amount of Transfer Restricted Securities held by that holder with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of additional interest for all Registration Defaults of $.25 per week per $1,000 principal amount of Transfer Restricted Securities.
All accrued additional interest will be paid on each Interest Payment Date at the same time and in the same manner as interest. Following the cure of all Registration Defaults, the accrual of additional interest will cease. Additional interest will only be payable in respect of one Registration Default at any time.
89
Holders of Transfer Restricted Securities will be required to make certain representations to the Issuer, the Company and the other guarantors (as described in the Registration Rights Agreement) in order to participate in the Exchange Offer and will be required to deliver certain information to be used in connection with the Shelf Registration Statement and to provide comments on the Shelf Registration Statement within the time periods set forth in the Registration Rights Agreement in order to have their notes included in the Shelf Registration Statement and to benefit from the provisions regarding additional interest set forth above with respect to the Shelf Registration Statement.
The outstanding notes and the exchange notes will constitute a single series of debt securities under the Indenture. If an Exchange Offer is consummated, holders of outstanding notes who do not exchange their outstanding notes in that Exchange Offer will vote together with the holders of the exchange notes for all relevant purposes under the Indenture. Accordingly, when determining whether the required holders have given notice, consent or waiver or taken any other action permitted under the Indenture, any outstanding notes that remain outstanding after the Exchange Offer will be aggregated with the exchange notes. All references herein to specified percentages in aggregate principal amount of notes outstanding shall be deemed to mean, at any time after the Exchange Offer is consummated, percentages in aggregate principal amount of outstanding notes and exchange notes outstanding.
90
Book-Entry Procedures for the Global Notes
The exchange notes will initially be represented in the form of one or more global notes in fully-registered book-entry form without interest coupons that will be deposited upon issuance with the trustee under the indenture, Wilmington Trust Company, as custodian for The Depository Trust Company, or "DTC," and registered in the name of DTC or its nominee, in each case for credit to an account of a direct or indirect participant as described below.
Except as set forth below, the global notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the global notes may not be exchanged for notes in certificated form except in the limited circumstances described below. See "—Exchange of Global Notes for Certificated Notes." In addition, transfer of beneficial interests in the global notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants, which may change from time to time. The notes may be presented for registration of transfer and exchange at the Corporate Trust Office of the trustee.
Depositary Procedures
DTC has advised the Issuer that it is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the "Participants") and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of Participants. The Participants include securities brokers and dealers (including the initial purchasers of the outstanding notes), banks, trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the "Indirect Participants"). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interest and transfer of ownership interest of each actual purchaser of each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Issuer that, pursuant to procedures established by it,
- (1)
- upon
deposit of the global notes, DTC will credit the accounts of Participants with an interest in the global notes; and
- (2)
- ownership of such interests in the global notes will be shown on, and the transfer of ownership thereof, will be effected only through, records maintained by DTC (with respect to Participants) or by Participants and the Indirect Participants (with respect to other owners of beneficial interests in the global notes).
The laws of some states require that certain persons take physical delivery in definitive form of securities they own. Consequently, the ability to transfer beneficial interest in a global note to such persons may be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants and certain banks, the ability of a person having a beneficial interest in a global note to pledge such interest to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of physical certificate evidencing such interests. For certain other restrictions on the transferability of the notes, see "—Exchange of Global Notes for Certificated Notes."
Except as described below, owners of interests in the global notes will not have notes registered in their names, will not receive physical delivery of notes in certificated form and will not be considered the registered owners or holders thereof under the indenture for any purpose.
Payments in respect of the principal and premium and additional interest, if any, and interest on a global note registered in the name of DTC or its nominee will be payable by the trustee to DTC or its
91
nominee in its capacity as the registered holder under the indenture. Under the terms of the indenture, the indenture and the trustee will treat the persons in whose names the notes, including the global notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever.
Consequently, none of the Issuer, the trustee nor any agent of the Issuer or the trustee has or will have any responsibility or liability for:
- (1)
- any
aspect of DTC's records or any Participant's or Indirect Participant's records relating to or payments made on account of beneficial ownership interests
in the global notes, or for maintaining, supervising or reviewing any of DTC's records or any Participant's or Indirect Participant's records relating to the beneficial ownership interests in the
global notes; or
- (2)
- any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.
DTC has advised the Issuer that its current practice, upon receipt of any payment in respect of securities such as the exchange notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe that it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by Participants and the Indirect Participants to the beneficial owners of exchange notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the trustee or the Issuer. Neither the Issuer nor the trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the exchange notes, and the Issuer and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
Except for trades involving only Euroclear and Clearstream participants, interests in the global notes will trade in DTC's Same-Day Funds Settlement System and secondary market trading activity in such interests will therefore settle in immediately available funds, subject in all cases to the rules and procedures of DTC and its participants.
Transfers between Participants in DTC will be effected in accordance with DTC's procedures, and will be settled in same-day funds. Transfers between participants in Euroclear and Clearstream will be effected in the ordinary way in accordance with their respective rules and operating procedures.
Subject to compliance with the transfer restrictions applicable to the notes described herein, crossmarket transfers between Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC's rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depositary; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant global note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the depositaries for Euroclear or Clearstream.
Because of time zone differences, the securities accounts of a Euroclear or Clearstream Participant purchasing an interest in a note from a Participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream Participant, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in
92
an exchange note by or through a Euroclear or Clearstream Participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC's settlement date. DTC has advised the Issuer that it will take any action permitted to be taken by a holder of exchange notes only at the direction of one or more Participants to whose account DTC interests in the global notes are credited and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given direction. However, if there is an Event of Default under the notes, DTC reserves the right to exchange global notes for legended exchange notes in certificated form, and to distribute such exchange notes to its Participants.
The information in this section concerning DTC, Euroclear and Clearstream and their book-entry systems has been obtained from sources that the Issuer believes to be reliable, but the Issuer takes no responsibility for the accuracy thereof.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the global notes among Participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and such procedures may be discontinued at any time. None of the Issuer, the initial purchasers of the outstanding notes or the trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective Participants or Indirect Participants of their respective obligations under the rules and procedures governing their operations.
Exchange of Global Notes for Certificated Notes
A global note is exchangeable for a certificated exchange note if:
- (1)
- DTC
(a) notifies the Issuer that it is unwilling or unable to continue as depositary for the global notes and the Issuer thereupon fails to appoint a
successor depositary within 90 days or (b) has ceased to be a clearing agency registered under the Exchange Act;
- (2)
- the
Issuer, at its option, notifies the trustee in writing that it elects to cause the issuance of the notes in certificated form (provided that the Issuer
understands that under current industry practices, DTC would notify Participants of the Issuer's determination in this clause (2), but would only withdraw beneficial interests from a global
note at the request of Participants); or
- (3)
- there shall have occurred and be continuing to occur a default or an event of default with respect to the notes.
In addition, beneficial interests in a global note may be exchanged for certificated exchange notes upon request but only upon at least 20 days' prior written notice given to the trustee by or on behalf of DTC in accordance with customary procedures. In all cases, certificated exchange notes delivered in exchange for any global note or beneficial interest therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures).
Same Day Settlement And Payment
The indenture requires that payments in respect of notes represented by the global notes (including principal, premium, if any, interest and additional interest, if any) be made by wire transfer of immediately available funds to the accounts specified by DTC or its nominee. With respect to certificated notes, we will make all payments of principal, premium, if any, interest and additional interest, if any, by wire transfer of immediately available funds to the accounts specified by the holders thereof or, if no such account is specified, by mailing a check to each such holder's registered address. The notes represented by the global notes are expected to be eligible to trade in PORTAL and to trade in DTC's Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. We expect that secondary trading in any certificated notes will also be settled in immediately available funds.
93
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
OF THE EXCHANGE OFFER
The exchange of outstanding notes for exchange notes in the exchange offer will not constitute a taxable event to holders for United States federal income tax purposes. Consequently, no gain or loss will be recognized by a holder upon receipt of an exchange note, the holding period of the exchange note will include the holding period of the outstanding note exchanged therefor, and the basis of the exchange note will be the same as the basis of the outstanding note immediately before the exchange.
In any event, persons considering the exchange of outstanding notes for exchange notes should consult their own tax advisors concerning the United States federal income tax consequences in light of their particular situations as well as any consequences arising under the laws of any other taxing jurisdiction.
94
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding notes where the outstanding notes were acquired as a result of market-making activities or other trading activities. To the extent that any such broker-dealer participates in the exchange offer and so notifies us, or causes us to be so notified in writing, we have agreed that for a period of up to 180 days after the consummation of this offer to use our best efforts to make this prospectus, as amended or supplemented, available to such broker-dealer for use in connection with any such resale and will deliver as many additional copies of this prospectus and each amendment or supplement to this prospectus and any documents incorporated by reference in this prospectus as such broker-dealer may reasonably request.
We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own accounts pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of these methods of resale at market prices prevailing at the time of resale, at prices related to the prevailing market prices or at negotiated prices. Any resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer or the purchasers of any exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of the exchange notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any resale of exchange notes and any commissions or concessions received by these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
We have also agreed to pay all expenses incident to the exchange offer, including the expenses of one counsel for the holders of all of the sellers of the outstanding notes, and will indemnify the holders of the outstanding notes, including any broker-dealers, against certain liabilities under the Securities Act.
95
The validity of the exchange notes offered hereby will be passed upon for us by Simpson Thacher & Bartlett LLP, New York, New York.
The consolidated financial statements of Hovnanian Enterprises, Inc. appearing in Hovnanian Enterprises, Inc.'s Annual Report (Form 10-K) for the year ended October 31, 2007 and the effectiveness of Hovnanian Enterprises, Inc.'s internal control over financial reporting as of October 31, 2007, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
We are subject to the informational requirements of the Securities Exchange Act of 1934, and file reports, proxy statements and other information with the SEC. We have also filed a registration statement on Form S-4 with the SEC. This prospectus, which forms a part of the registration statement, does not have all the information contained in the registration statement. You may read, free of charge, and copy, at the prescribed rates, any reports, proxy statements and other information, including the registration statement, at the SEC's public reference room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Copies of such material also can be obtained by mail from the Public Reference Section of the SEC, at 100 F Street, N.E., Washington, D.C. 20549, at the prescribed rates. The SEC also maintains a website that contains reports, proxy and information statements and other information, including the registration statement. The website address is: http://www.sec.gov. Hovnanian's Class A common stock is listed on the New York Stock Exchange, and reports, proxy statements and other information also can be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus is part of a registration statement filed with the SEC. The SEC allows us to "incorporate by reference" selected
documents we file with it, which means that we can disclose important information to you by referring you to those documents. The information in the documents incorporated by reference is considered
to be part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed
below filed by Hovnanian under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
- •
- Annual Report on Form 10-K for the fiscal year ended October 31, 2007, Registration File
No. 1-8551 (including information specifically incorporated by reference into the Annual Report on Form 10-K from Hovnanian's definitive proxy statement filed on
February 19, 2008, Registration File Nos. 1-8551);
- •
- Quarterly Reports on Form 10-Q for the quarters ended January 31, 2008, April 30, 2008
and July 31, 2008 Registration File Nos. 1-8551 and;
- •
- Current Reports on Form 8-K filed on February 4, 2008, April 3, 2008, May 9, 2008, May 22, 2008, June 2, 2008 and August 4, 2008, Registration File Nos. 1-8551.
All documents filed by Hovnanian pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of the offering made by this
96
prospectus are to be incorporated herein by reference. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
97
$600,000,000
K. Hovnanian Enterprises, Inc.
Guaranteed by
Hovnanian Enterprises, Inc.
Offer to Exchange All Outstanding
111/2% Senior Secured Notes due 2013
($600,000,000 aggregate principal amount outstanding)
for 111/2% Senior Secured Notes due 2013, which have been registered
under the Securities Act of 1933
Until , all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters with respect to their unsold allotments or subscriptions.
PROSPECTUS
, 2008
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Hovnanian is a Delaware corporation. Section 145 of the General Corporation Law of the State of Delaware grants each corporation organized thereunder the power to indemnify any person who is or was a director, officer, employee or agent of a corporation or enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of being or having been in any such capacity, if he acted in good faith in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 102(b)(7) of the General Corporation Law of the State of Delaware enables a corporation in its certificate of incorporation or an amendment thereto validly approved by stockholders to limit or eliminate the personal liability of the members of its board of directors for violations of the directors' fiduciary duty of care.
Article FOUR of Hovnanian's Restated By-Laws contains the following provisions with respect to indemnification:
The Corporation shall indemnify any current or former Director or officer of the Corporation and his heirs, executors and administrators, and may, at the discretion of the Board of Directors, indemnify any current or former employee or agent of the Corporation and his heirs, executors and administers, against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonable incurred by him or by his heirs, executors and administrators in connection with any threatened, pending or completed action, suit or proceeding (brought by or in tire right of the Corporation or otherwise), whether civil, criminal, administrative or investigative, and whether formal or informal, including appeals, to which he was or is a party or is threatened to be made a party by reason of his current or former position with the Corporation or by reason of the fact that he is or was serving, at the request of the Corporation, as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
K. Hovnanian is a California corporation. Section 317 of the California Corporations Code provides that a corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding, other than in an action by or on behalf of the corporation to obtain a favorable judgment for itself, because such person is or was an agent of the corporation, against expenses actually and reasonably incurred in connection with the proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation and, in the case of criminal proceedings, had no reasonable cause to believe that the conduct was unlawful. In the case of suits by or on behalf of a corporation to obtain a judgment in its favor, a corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to such proceeding because such person is or was the corporation's agent, against expenses actually and reasonably incurred if the person acted in good faith in a manner the person believed to be in the best interests of the corporation and its shareholders, except that no such indemnification may be made for claims as to which the person shall have been adjudged to be liable to the corporation in the performance of that person's duty to the corporation, unless and then only to the extent a court determines otherwise.
II-1
Article FIFTH of K. Hovnanian's Articles of Incorporation contains the following provisions with respect to indemnification:
The Corporation is authorized, to the fullest extent permissible under California law, to indemnify its agents (as defined by Section 317 of the California Corporations Code) whether by bylaw, agreement or otherwise, for breach of duty to the Corporation and its shareholders in excess of that expressly permitted by California Code Section 317, and to advance defense expenses to its agents in connection with such matters as those expenses are incurred; provided, indemnification shall not be provided for any acts or omissions or transactions from which pursuant to applicable statute(s) a director may not be relieved of liability nor under circumstances in which indemnity is expressly prohibited by the statute covering the indemnification of agents.
Hovnanian maintains a liability insurance policy providing coverage for its directors and officers, the directors and officers of K. Hovnanian and the directors and officers of certain of its other subsidiaries in an amount up to $50,000,000.
| 3.1 | Articles of Incorporation of K. Hovnanian Enterprises, Inc.(1) | ||
3.2 |
By-Laws of K. Hovnanian Enterprises, Inc. (filed herewith) |
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3.3 |
Certificate of Incorporation of Hovnanian Enterprises, Inc.(13) |
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3.4 |
Restated By-Laws of Hovnanian Enterprises, Inc.(7) |
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3.5 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in New Jersey.(1) |
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3.6 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in New York.(1) |
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3.7 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Pennsylvania.(1) |
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3.8 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in North Carolina.(1) |
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3.9 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in South Carolina.(1) |
||
3.10 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Virginia.(1) |
||
3.11 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Maryland.(1) |
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3.12 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Delaware.(1) |
||
3.13 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in California.(1) |
||
3.14 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Texas.(1) |
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3.15 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Arizona.(1) |
II-2
3.16 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Ohio.(1) |
||
3.17 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in West Virginia.(1) |
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3.18 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Florida.(1) |
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3.19 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Michigan.(1) |
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3.20 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Tennessee.(1) |
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3.21 |
Form of Articles of Organization for Subsidiary Registrant limited liability companies.(1) |
||
3.22 |
Form of Certificate of Limited Partnership for Subsidiary Registrant limited partnerships.(1) |
||
3.23 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in New Jersey.(1) |
||
3.24 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in New York.(1) |
||
3.25 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Pennsylvania.(1) |
||
3.26 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in North Carolina.(1) |
||
3.27 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in South Carolina.(1) |
||
3.28 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Maryland.(1) |
||
3.29 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Virginia.(1) |
||
3.30 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Delaware.(1) |
||
3.31 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in California.(1) |
||
3.32 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Texas.(1) |
||
3.33 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Arizona.(1) |
||
3.34 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Ohio.(1) |
||
3.35 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in West Virginia.(1) |
||
3.36 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Florida.(1) |
||
3.37 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Michigan.(1) |
||
3.38 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Tennessee.(1) |
||
3.39 |
Form of Limited Liability Company Agreement for Subsidiary Registrant limited liability companies.(1) |
||
3.40 |
Form of Limited Partnership Agreement for Subsidiary Registrant limited partnerships.(1) |
||
3.41 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Minnesota.(4) |
||
3.42 |
Form of Certificate of Incorporation for Subsidiary Registrant corporations incorporated in Connecticut. (filed herewith) |
||
3.43 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Georgia. (filed herewith) |
II-3
3.44 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Illinois. (filed herewith) |
||
3.45 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Indiana. (filed herewith) |
||
3.46 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Kentucky. (filed herewith) |
||
3.47 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Washington, DC. (filed herewith) |
||
3.48 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Connecticut. (filed herewith) |
||
3.49 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Georgia. (filed herewith) |
||
3.50 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Illinois. (filed herewith) |
||
3.51 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Indiana. (filed herewith) |
||
3.52 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Kentucky. (filed herewith) |
||
3.53 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Washington, DC. (filed herewith) |
||
3.54 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Minnesota. (filed herewith) |
||
4.1 |
Indenture dated as of May 27, 2008, relating to 111/2% Senior Secured Notes due 2013, among K. Hovnanian Enterprises, Inc., Hovnanian Enterprises, Inc. and the other Guarantors named therein and Deutsche Bank National Trust Company, as Trustee, including form of 111/2% Senior Secured Notes due 2013.(9) |
||
4.2 |
Registration Rights Agreement, dated as of May 27, 2008, by and among K. Hovnanian Enterprises, Inc., Hovnanian Enterprises, Inc., certain of its subsidiaries and Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC on behalf of themselves and the several other initial purchasers. (filed herewith) |
||
4.3 |
Certificate of Designations, Powers, Preferences and Rights of the 7.625% Series A Preferred Stock of Hovnanian Enterprises, Inc., dated July 12, 2005.(6) |
||
4.4 |
Certificate of Designations of the Series B Junior Preferred Stock of Hovnanian Enterprises, Inc., dated August 14, 2008.(13) |
||
4.5 |
Rights Agreement, dated as of August 14, 2008, between Hovnanian Enterprises, Inc. and National City Bank, as Rights Agent, which includes the Form of Certificate of Designation as Exhibit A, Form of Right Certificate as Exhibit B and the Summary of Rights as Exhibit C.(3) |
||
5.1 |
Opinion of Simpson Thacher & Bartlett LLP. (filed herewith) |
||
10.1 |
Seventh Amended and Restated Credit Agreement dated March 7, 2008.(8) |
||
10.2 |
Amendment No. 1 to Seventh Amended and Restated Credit Agreement dated as of May 16, 2008.(9) |
II-4
10.3 |
Guaranty and Suretyship Agreement, dated March 7, 2008.(8) |
||
10.4 |
Pledge Agreement, relating to the Amended Credit Agreement, dated as of March 7, 2008.(8) |
||
10.5 |
Amended and Restated Security Agreement, relating to the Amended Credit Agreement, dated as of May 27, 2008. (9) |
||
10.6 |
Intellectual Property Security Agreement, relating to the Amended Credit Agreement, dated as of May 27, 2008. (9) |
||
10.7 |
Intercreditor Agreement dated as of May 27, 2008.(9) |
||
10.8 |
Second Lien Pledge Agreement, relating to the 111/2% Senior Secured Notes due 2013, dated as of May 27, 2008.(9) |
||
10.9 |
Second Lien Security Agreement, relating to the 111/2% Senior Secured Notes due 2013, dated as of May 27, 2008.(9) |
||
10.10 |
Intellectual Property Security Agreement, relating to the 111/2% Senior Secured Notes due 2013, dated as of May 27, 2008.(9) |
||
10.11 |
Amended and Restated Hovnanian Enterprises, Inc. Senior Executive Short-Term Incentive Plan.(10) |
||
10.12 |
2008 Hovnanian Enterprises, Inc. Stock Incentive Plan.(11) |
||
10.13 |
Amended and Restated Hovnanian Enterprises, Inc. 1983 Stock Option Plan.(12) |
||
10.14 |
Description of Non-Employee Director Compensation.(13) |
||
10.15 |
Base Salaries of Executive Officers.(7) |
||
10.16 |
Description of Management Bonus Arrangements.(5) |
||
10.17 |
Description of Savings and Investment Retirement Plan.(2) |
||
10.18 |
Management Agreement dated August 12, 1983, for the management of properties by K. Hovnanian Investment Properties, Inc.(2) |
||
10.19 |
Management Agreement dated December 15, 1985, for the management of properties by K. Hovnanian Investment Properties, Inc.(5) |
||
10.20 |
Description of Deferred Compensation Plan.(5) |
||
10.21 |
Death and Disability Agreement between Hovnanian Enterprises, Inc. and Ara K. Hovnanian.(14) |
||
10.22 |
Form of Hovnanian Deferred Share Policy for Senior Executives.(14) |
||
10.23 |
Form of Hovnanian Deferred Share Policy.(14) |
||
10.24 |
Form of Non-Qualified Stock Option Agreement.(14) |
||
10.25 |
Form of Incentive Stock Option Agreement.(14) |
||
10.26 |
Form of Stock Option Agreement for Directors.(14) |
||
10.27 |
Form of Restricted Share Unit Agreement.(14) |
||
12.1 |
Statement re: Computation of Ratio of Earnings to Fixed Charges. (filed herewith) |
||
21.1 |
Subsidiaries of Hovnanian Enterprises, Inc. (filed herewith) |
||
23.1 |
Consent of Simpson Thacher & Bartlett LLP. (contained in Exhibit 5.1) |
II-5
23.2 |
Consent of Ernst & Young LLP. (filed herewith) |
||
24.1 |
Powers of Attorney of the Boards of Directors of K. Hovnanian Enterprises, Inc., Hovnanian Enterprises, Inc. and Subsidiary Registrants. (included on signature pages) |
||
25.1 |
Statement of Eligibility of Trustee under the Indenture filed as Exhibit 4.1 hereto. (filed herewith) |
||
99.1 |
Form of Letter of Transmittal. (filed herewith) |
||
99.2 |
Form of Letter to Dealers, Commercial Banks, Trust Companies and Other Nominees. (filed herewith) |
||
99.3 |
Form of Letter to Clients. (filed herewith) |
||
99.4 |
Form of Notice of Guaranteed Delivery. (filed herewith) |
- (1)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 333-106761) on Form S-3 of Hovnanian
Enterprises, Inc.
- (2)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 2-85198) on Form S-1 of Hovnanian
Enterprises, Inc.
- (3)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 001-08551) on Form 8-A of Hovnanian
Enterprises, Inc. filed August 14, 2008.
- (4)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 333-122175) on Form S-4 of Hovnanian
Enterprises, Inc.
- (5)
- Incorporated
by reference to Exhibits to the Annual Report on Form 10-K of Hovnanian Enterprises, Inc. for the year ended
October 31, 2003.
- (6)
- Incorporated
by reference to Exhibits to the Current Report on Form 8-K of Hovnanian Enterprises, Inc., filed on July 13,
2005.
- (7)
- Incorporated
by reference to Exhibits to the Annual Report on Form 10-K of Hovnanian Enterprises, Inc., for the year ended
October 31, 2007.
- (8)
- Incorporated
by reference to Exhibits to Quarterly Report on Form 10-Q of Hovnanian Enterprises, Inc., for the quarter ended
January 31, 2008.
- (9)
- Incorporated
by reference to Exhibits to Current Report on Form 8-K of Hovnanian Enterprises, Inc., filed on June 2, 2008.
- (10)
- Incorporated
by reference to Appendix A of the definitive Proxy Statement of Hovnanian Enterprises, Inc. on Schedule 14A filed on
February 19, 2008
- (11)
- Incorporated
by reference to Appendix B of the definitive Proxy Statement of Hovnanian Enterprises, Inc. on Schedule 14A filed on
February 19, 2008.
- (12)
- Incorporated
by reference to Appendix C of the definitive Proxy Statement of Hovnanian Enterprises, Inc. on Schedule 14A filed on
February 19, 2008.
- (13)
- Incorporated
by reference to Exhibits to Quarterly Report on Form 10-Q of Hovnanian Enterprises, Inc. for the quarter ended
July 31, 2008.
- (14)
- Incorporated by reference to Exhibits to Quarterly Report on Form 10-Q of Hovnanian Enterprises, Inc. for the quarter ended January 31, 2006.
II-6
The undersigned registrants hereby undertake:
- (1)
- To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration
statement:
- (i)
- To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
- (ii)
- To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration
statement;
- (iii)
- To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement.
- (2)
- That,
for the purpose of determining any liability under the Securities Act of 1933 each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
- (3)
- To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
- (4)
- That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
- (i)
- Any
preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424;
- (ii)
- Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned
registrants;
- (iii)
- The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or its
securities provided by or on behalf of the undersigned registrants; and
- (iv)
- Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of Hovnanian Enterprises, Inc.'s annual report pursuant to
II-7
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The undersigned registrants hereby undertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
The undersigned registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-8
Pursuant to the requirements of the Securities Act of 1933, as amended, K. Hovnanian Enterprises, Inc. has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Red Bank, State of New Jersey, on September 19, 2008.
K. HOVNANIAN ENTERPRISES, INC. |
||||
By: |
/s/ J. LARRY SORSBY |
|||
|
J. Larry Sorsby Executive Vice President and Chief Financial Officer |
||||
Each person whose signature appears below hereby constitutes and appoints J. Larry Sorsby and Paul W. Buchanan and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, including any filings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on September 19, 2008.
Signature
|
Title
|
|
|---|---|---|
/s/ ARA K. HOVNANIAN |
President, Chief Executive Officer and Director |
|
/s/ PAUL W. BUCHANAN |
Senior Vice President, Chief Accounting Officer and Director |
|
/s/ NICK PAPPAS |
Senior Vice President and Director |
|
/s/ J. LARRY SORSBY |
Executive Vice President, Chief Financial Officer and Director |
|
/s/ JOSEPH MANISCO |
Assistant Secretary and Director |
|
/s/ JOHN HADLEY |
Vice President, Finance & Administration and Director |
|
/s/ JIM REX |
Region President and Director |
II-9
Pursuant to the requirements of the Securities Act of 1933, as amended, Hovnanian Enterprises, Inc. has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Red Bank, State of New Jersey, on September 19, 2008.
HOVNANIAN ENTERPRISES, INC. |
||||
By: |
/s/ J. LARRY SORSBY |
|||
|
J. Larry Sorsby Executive Vice President and Chief Financial Officer |
||||
Each person whose signature appears below hereby constitutes and appoints J. Larry Sorsby and Paul W. Buchanan and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, including any filings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on September 19, 2008.
Signature
|
Title
|
|
|---|---|---|
| /s/ KEVORK S. HOVNANIAN Kevork S. Hovnanian |
Chairman of the Board and Director | |
/s/ ARA K. HOVNANIAN Ara K. Hovnanian |
President, Chief Executive Officer, Vice-Chairman of the Board and Director |
|
/s/ J. LARRY SORSBY J. Larry Sorsby |
Executive Vice President, Chief Financial Officer, Treasurer and Director |
|
/s/ PAUL W. BUCHANAN Paul W. Buchanan |
Senior Vice President and Chief Accounting Officer |
|
/s/ JOSEPH A. MARENGI Joseph A. Marengi |
Director |
II-10
Signature
|
Title
|
|
|---|---|---|
| Robert B. Coutts |
Director | |
/s/ EDWARD A. KANGAS Edward A. Kangas |
Director |
|
/s/ JOHN J. ROBBINS John J. Robbins |
Director |
|
/s/ STEPHEN D. WEINROTH Stephen D. Weinroth |
Director |
II-11
Pursuant to the requirements of the Securities Act of 1933, as amended, K HOV IP, Inc. has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Red Bank, State of New Jersey, on September 19, 2008.
| K HOV IP, INC. | |||
By: |
/s/ PAUL W. BUCHANAN Paul W. Buchanan Senior Vice President, Chief Financial Officer, Chief Accounting Officer, Treasurer and Secretary |
||
Each person whose signature appears below hereby constitutes and appoints J. Larry Sorsby and Paul W. Buchanan and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, including any filings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on September 19, 2008.
Signature
|
Title
|
|
|---|---|---|
| /s/ JIM REX Jim Rex |
President and Chief Executive Officer | |
/s/ NICK PAPPAS Nick Pappas |
Senior Vice President and Director |
|
/s/ PAUL W. BUCHANAN Paul W. Buchanan |
Senior Vice President, Chief Financial Officer, Chief Accounting Officer, Treasurer, Secretary and Director |
|
/s/ JOHN HADLEY John Hadley |
Vice President—Finance & Administration and Director |
|
/s/ JOSEPH MANISCO Joseph Manisco |
Assistant Secretary and Director |
|
/s/ MARCIA WINES Marcia Wines |
Vice President—Tax and Director |
II-12
Pursuant to the requirements of the Securities Act of 1933, as amended, K HOV IP, II, Inc. has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Red Bank, State of New Jersey, on September 19, 2008.
| K HOV IP, II, INC. | |||
By: |
/s/ PAUL W. BUCHANAN Paul W. Buchanan Senior Vice President, Chief Financial Officer, Chief Accounting Officer, Treasurer and Secretary |
||
Each person whose signature appears below hereby constitutes and appoints J. Larry Sorsby and Paul W. Buchanan and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, including any filings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on September 19, 2008.
Name
|
Title
|
|
|---|---|---|
/s/ JIM REX |
President and Chief Executive Officer |
|
/s/ NICK PAPPAS |
Senior Vice President and Director |
|
/s/ PAUL W. BUCHANAN |
Senior Vice President, Chief Financial Officer, Chief |
|
/s/ JOHN HADLEY |
Vice President—Finance & Administration and Director |
|
/s/ JOSEPH MANISCO |
Assistant Secretary and Director |
|
/s/ MARCIA WINES |
Vice President—Tax and Director |
II-13
Pursuant to the requirements of the Securities Act of 1933, as amended, each of the Registrants, as listed on the attached Schedule of Subsidiary Registrants, has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Red Bank, State of New Jersey, on September 19, 2008.
| REGISTRANTS (as listed on the attached Schedule of Subsidiary Registrants) | |||
By: |
/s/ J. LARRY SORSBY J. Larry Sorsby Executive Vice President and Chief Financial Officer |
||
Each person whose signature appears below hereby constitutes and appoints J. Larry Sorsby and Paul W. Buchanan and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, including any filings pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and anything necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute, or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on the date and in the capacities indicated on September 19, 2008.
Signature
|
Title
|
|||
|---|---|---|---|---|
/s/ KEVORK S. HOVNANIAN |
Chairman of the Board and Director |
|||
/s/ |
President, Chief Executive Officer and Director |
|||
/s/ |
Senior Vice President, Chief Accounting Officer and Director |
|||
/s/ |
Senior Vice President, General Counsel and Director |
|||
/s/ |
Executive Vice President, Chief Financial Officer and Director |
|||
II-14
SCHEDULE OF SUBSIDIARY REGISTRANTS
Exact Name of Registrant As Specified in Its Charter
ALFORD, L.L.C. |
||||
AUDDIE ENTERPRISES, L.L.C. |
||||
BUILDER SERVICES NJ, L.L.C. |
||||
BUILDER SERVICES NY, L.L.C. |
||||
BUILDER SERVICES PA, L.L.C. |
||||
DULLES COPPERMINE, L.L.C. |
||||
EASTERN TITLE AGENCY, INC. |
||||
F&W MECHANICAL SERVICES, L.L.C. |
||||
FOUNDERS TITLE AGENCY OF MARYLAND, L.L.C. |
||||
FOUNDERS TITLE AGENCY, INC. |
||||
GOVERNOR'S ABSTRACT CO., INC. |
||||
GREENWAY FARMS UTILITY ASSOCIATES, L.L.C. |
||||
HOMEBUYERS FINANCIAL SERVICES, L.L.C. |
||||
HOVNANIAN DEVELOPMENTS OF FLORIDA, INC. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF CALIFORNIA, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF FLORIDA, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF GEORGIA, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF MARYLAND, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF NEW JERSEY, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF NORTH CAROLINA, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF PENNSYLVANIA, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF TEXAS, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP OF VIRGINIA, L.L.C. |
||||
HOVNANIAN LAND INVESTMENT GROUP, L.L.C. |
||||
HUDSON POINTE JOINT DEVELOPMENT, L.L.C. |
||||
K. HOV INTERNATIONAL, INC. |
||||
K. HOVNANIAN ACQUISITIONS, INC. |
||||
K. HOVNANIAN AT 3 CHAPMAN, L.L.C. |
||||
K. HOVNANIAN AT 4S, LLC |
||||
K. HOVNANIAN AT ABERDEEN URBAN RENEWAL, L.L.C. |
||||
K. HOVNANIAN AT ACQUA VISTA, LLC |
||||
K. HOVNANIAN AT ALISO, LLC |
II-15
K. HOVNANIAN AT ALLENBERRY, L.L.C. |
||||
K. HOVNANIAN AT ALLENDALE, L.L.C. |
||||
K. HOVNANIAN AT ALLENTOWN, L.L.C. |
||||
K. HOVNANIAN AT ARBOR HEIGHTS, LLC |
||||
K. HOVNANIAN AT AVENUE ONE, L.L.C. |
||||
K. HOVNANIAN AT BARNEGAT I, L.L.C. |
||||
K. HOVNANIAN AT BARNEGAT II, L.L.C. |
||||
K. HOVNANIAN AT BARNEGAT III, L.L.C. |
||||
K. HOVNANIAN AT BELLA LAGO, LLC |
||||
K. HOVNANIAN AT BERKELEY, L.L.C. |
||||
K. HOVNANIAN AT BERNARDS IV, INC. |
||||
K. HOVNANIAN AT BERNARDS V, L.L.C. |
||||
K. HOVNANIAN AT BLUE HERON PINES, L.L.C. |
||||
K. HOVNANIAN AT BRANCHBURG III, INC. |
||||
K. HOVNANIAN AT BRIDGEPORT, INC. |
||||
K. HOVNANIAN AT BRIDGEWATER I, L.L.C. |
||||
K. HOVNANIAN AT BRIDGEWATER VI, INC. |
||||
K. HOVNANIAN AT BRIDLEWOOD, L.L.C. |
||||
K. HOVNANIAN AT BROAD AND WALNUT, L.L.C. |
||||
K. HOVNANIAN AT BURLINGTON III, INC. |
||||
K. HOVNANIAN AT BURLINGTON, INC. |
||||
K. HOVNANIAN AT CALABRIA, INC. |
||||
K. HOVNANIAN AT CAMDEN I, L.L.C. |
||||
K. HOVNANIAN AT CAMERON CHASE, INC. |
||||
K. HOVNANIAN AT CAMP HILL, L.L.C. |
||||
K. HOVNANIAN AT CAPISTRANO, L.L.C. |
||||
K. HOVNANIAN AT CARMEL DEL MAR, INC. |
||||
K. HOVNANIAN AT CARMEL VILLAGE, LLC |
||||
K. HOVNANIAN AT CASTILE, INC. |
||||
K. HOVNANIAN AT CEDAR GROVE III, L.L.C. |
||||
K. HOVNANIAN AT CEDAR GROVE IV, L.L.C. |
||||
K. HOVNANIAN AT CHAPARRAL, INC. |
||||
K. HOVNANIAN AT CHESTER I, L.L.C. |
||||
K. HOVNANIAN AT CHESTERFIELD II, L.L.C. |
II-16
K. HOVNANIAN AT CHESTERFIELD, L.L.C. |
||||
K. HOVNANIAN AT CIELO, L.L.C. |
||||
K. HOVNANIAN AT CLARKSTOWN, INC. |
||||
K. HOVNANIAN AT CLIFTON II, L.L.C. |
||||
K. HOVNANIAN AT CLIFTON, L.L.C. |
||||
K. HOVNANIAN AT COASTLINE, L.L.C. |
||||
K. HOVNANIAN AT CORTEZ HILL, LLC |
||||
K. HOVNANIAN AT CRANBURY, L.L.C. |
||||
K. HOVNANIAN AT CRESTLINE, INC. |
||||
K. HOVNANIAN AT CURRIES WOODS, L.L.C. |
||||
K. HOVNANIAN AT DENVILLE, L.L.C. |
||||
K. HOVNANIAN AT DEPTFORD TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT DOMINGUEZ HILLS, INC. |
||||
K. HOVNANIAN AT DOVER, L.L.C. |
||||
K. HOVNANIAN AT EAST BRANDYWINE, L.L.C. |
||||
K. HOVNANIAN AT EAST WHITELAND I, INC. |
||||
K. HOVNANIAN AT EASTLAKE, LLC |
||||
K. HOVNANIAN AT EDGEWATER II, L.L.C. |
||||
K. HOVNANIAN AT EDGEWATER, L.L.C. |
||||
K. HOVNANIAN AT EGG HARBOR TOWNSHIP II, L.L.C. |
||||
K. HOVNANIAN AT EGG HARBOR TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT ELK TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT ENCINITAS RANCH, LLC |
||||
K. HOVNANIAN AT EVERGREEN, L.L.C. |
||||
K. HOVNANIAN AT EWING, L.L.C. |
||||
K. HOVNANIAN AT FIFTH AVENUE, L.L.C. |
||||
K. HOVNANIAN AT FLORENCE I, L.L.C. |
||||
K. HOVNANIAN AT FLORENCE II, L.L.C. |
||||
K. HOVNANIAN AT FOREST MEADOWS, L.L.C. |
||||
K. HOVNANIAN AT FORKS TWP. I, L.L.C. |
||||
K. HOVNANIAN AT FRANKLIN, L.L.C. |
||||
K. HOVNANIAN AT FREEHOLD TOWNSHIP I, INC. |
||||
K. HOVNANIAN AT FREEHOLD TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT GALLOWAY, L.L.C. |
II-17
K. HOVNANIAN AT GASLAMP SQUARE, L.L.C. |
||||
K. HOVNANIAN AT GREAT NOTCH, L.L.C. |
||||
K. HOVNANIAN AT GUTTENBERG, L.L.C. |
||||
K. HOVNANIAN AT HACKETTSTOWN II, L.L.C. |
||||
K. HOVNANIAN AT HACKETTSTOWN, INC. |
||||
K. HOVNANIAN AT HAMBURG CONTRACTORS, L.L.C. |
||||
K. HOVNANIAN AT HAMBURG, L.L.C. |
||||
K. HOVNANIAN AT HAWTHORNE, L.L.C |
||||
K. HOVNANIAN AT HAZLET, L.L.C. |
||||
K. HOVNANIAN AT HERSHEY'S MILL, INC. |
||||
K. HOVNANIAN AT HIGHLAND SHORES, L.L.C. |
||||
K. HOVNANIAN AT HIGHLAND VINEYARDS, INC. |
||||
K. HOVNANIAN AT HIGHWATER, L.L.C. |
||||
K. HOVNANIAN AT HILLTOP, L.L.C. |
||||
K. HOVNANIAN AT HOPEWELL IV, INC. |
||||
K. HOVNANIAN AT HOPEWELL VI, INC. |
||||
K. HOVNANIAN AT HOWELL TOWNSHIP, INC. |
||||
K. HOVNANIAN AT HUDSON POINTE, L.L.C. |
||||
K. HOVNANIAN AT JACKSON I, L.L.C. |
||||
K. HOVNANIAN AT JACKSON, L.L.C. |
||||
K. HOVNANIAN AT JERSEY CITY IV, L.L.C. |
||||
K. HOVNANIAN AT JERSEY CITY V URBAN RENEWAL COMPANY, L.L.C. |
||||
K. HOVNANIAN AT KEYPORT, L.L.C. |
||||
K. HOVNANIAN AT KING FARM, L.L.C. |
||||
K. HOVNANIAN AT KINGS GRANT I, INC. |
||||
K. HOVNANIAN AT LA COSTA GREENS, L.L.C. |
||||
K. HOVNANIAN AT LA COSTA, LLC |
||||
K. HOVNANIAN AT LA HABRA KNOLLS, LLC |
||||
K. HOVNANIAN AT LA TERRAZA, INC. |
||||
K. HOVNANIAN AT LAFAYETTE ESTATES, L.L.C. |
||||
K. HOVNANIAN AT LAKE HILLS, L.L.C. |
||||
K. HOVNANIAN AT LAKE RANCHO VIEJO, LLC |
||||
K. HOVNANIAN AT LAKE RIDGE CROSSING, L.L.C. |
||||
K. HOVNANIAN AT LAKE TERRAPIN, L.L.C. |
II-18
K. HOVNANIAN AT LAKEWOOD, INC. |
||||
K. HOVNANIAN AT LAWRENCE V, L.L.C. |
||||
K. HOVNANIAN AT LINWOOD, L.L.C. |
||||
K. HOVNANIAN AT LITTLE EGG HARBOR CONTRACTORS, L.L.C. |
||||
K. HOVNANIAN AT LITTLE EGG HARBOR III, L.L.C. |
||||
K. HOVNANIAN AT LITTLE EGG HARBOR TOWNSHIP II, L.L.C. |
||||
K. HOVNANIAN AT LITTLE EGG HARBOR, L.L.C. |
||||
K. HOVNANIAN AT LONG BRANCH I, L.L.C. |
||||
K. HOVNANIAN AT LOWER MACUNGIE TOWNSHIP I, L.L.C. |
||||
K. HOVNANIAN AT LOWER MACUNGIE TOWNSHIP II, L.L.C. |
||||
K. HOVNANIAN AT LOWER MAKEFIELD TOWNSHIP I, L.L.C. |
||||
K. HOVNANIAN AT LOWER MORELAND I, L.L.C. |
||||
K. HOVNANIAN AT LOWER MORELAND II, L.L.C. |
||||
K. HOVNANIAN AT LOWER MORELAND III, L.L.C. |
||||
K. HOVNANIAN AT LOWER SAUCON, INC. |
||||
K. HOVNANIAN AT MACUNGIE, L.L.C. |
||||
K. HOVNANIAN AT MAHWAH II, INC. |
||||
K. HOVNANIAN AT MAHWAH VI, INC. |
||||
K. HOVNANIAN AT MAHWAH VII, INC. |
||||
K. HOVNANIAN AT MANALAPAN III, L.L.C. |
||||
K. HOVNANIAN AT MANALAPAN, INC. |
||||
K. HOVNANIAN AT MANSFIELD I, L.L.C. |
||||
K. HOVNANIAN AT MANSFIELD II, L.L.C. |
||||
K. HOVNANIAN AT MANSFIELD III, L.L.C. |
||||
K. HOVNANIAN AT MAPLE AVENUE, L.L.C. |
||||
K. HOVNANIAN AT MARLBORO II, INC. |
||||
K. HOVNANIAN AT MARLBORO TOWNSHIP III, INC. |
||||
K. HOVNANIAN AT MARLBORO TOWNSHIP IV, INC. |
||||
K. HOVNANIAN AT MARLBORO TOWNSHIP IX, L.L.C. |
||||
K. HOVNANIAN AT MARLBORO TOWNSHIP V, L.L.C. |
||||
K. HOVNANIAN AT MARLBORO TOWNSHIP VIII, L.L.C. |
||||
K. HOVNANIAN AT MARLBORO VI, L.L.C. |
||||
K. HOVNANIAN AT MARLBORO VII, L.L.C. |
||||
K. HOVNANIAN AT MATSU, L.L.C. |
II-19
K. HOVNANIAN AT MENDHAM TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT MENIFEE VALLEY CONDOMINIUMS, L.L.C. |
||||
K. HOVNANIAN AT MENIFEE, L.L.C. |
||||
K. HOVNANIAN AT MIDDLE TOWNSHIP II, L.L.C. |
||||
K. HOVNANIAN AT MIDDLE TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT MIDDLETOWN II, L.L.C. |
||||
K. HOVNANIAN AT MIDDLETOWN, L.L.C. |
||||
K. HOVNANIAN AT MILLVILLE I, L.L.C. |
||||
K. HOVNANIAN AT MILLVILLE II, L.L.C. |
||||
K. HOVNANIAN AT MILLVILLE III, L.L.C. |
||||
K. HOVNANIAN AT MOCKINGBIRD CANYON, L.L.C. |
||||
K. HOVNANIAN AT MONROE II, INC. |
||||
K. HOVNANIAN AT MONROE III, L.L.C. |
||||
K. HOVNANIAN AT MONROE IV, L.L.C. |
||||
K. HOVNANIAN AT MONROE NJ, L.L.C. |
||||
K. HOVNANIAN AT MONTGOMERY I, INC. |
||||
K. HOVNANIAN AT MONTVALE, L.L.C. |
||||
K. HOVNANIAN AT MOSAIC, LLC |
||||
K. HOVNANIAN AT MT. OLIVE TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT NEW BRUNSWICK URBAN RENEWAL, L.L.C. |
||||
K. HOVNANIAN AT NEW WINDSOR, L.L.C. |
||||
K. HOVNANIAN AT NORTH BERGEN, L.L.C. |
||||
K. HOVNANIAN AT NORTH BRUNSWICK VI, L.L.C. |
||||
K. HOVNANIAN AT NORTH CALDWELL II, L.L.C. |
||||
K. HOVNANIAN AT NORTH CALDWELL III, L.L.C. |
||||
K. HOVNANIAN AT NORTH CALDWELL, L.L.C. |
||||
K. HOVNANIAN AT NORTH HALEDON, L.L.C. |
||||
K. HOVNANIAN AT NORTH WILDWOOD, L.L.C. |
||||
K. HOVNANIAN AT NORTHAMPTON, L.L.C. |
||||
K. HOVNANIAN AT NORTHERN WESTCHESTER, INC. |
||||
K. HOVNANIAN AT NORTHFIELD, L.L.C. |
||||
K. HOVNANIAN AT NORTHLAKE, INC. |
||||
K. HOVNANIAN AT OCEAN TOWNSHIP, INC. |
||||
K. HOVNANIAN AT OCEAN WALK, INC. |
II-20
K. HOVNANIAN AT OCEANPORT, L.L.C. |
||||
K. HOVNANIAN AT OLD BRIDGE, L.L.C. |
||||
K. HOVNANIAN AT OLDE ORCHARD, LLC |
||||
K. HOVNANIAN AT ORANGE HEIGHTS, L.L.C. |
||||
K. HOVNANIAN AT PACIFIC BLUFFS, LLC |
||||
K. HOVNANIAN AT PARAMUS, L.L.C. |
||||
K. HOVNANIAN AT PARK LANE, LLC |
||||
K. HOVNANIAN AT PARSIPPANY-TROY HILLS, L.L.C. |
||||
K. HOVNANIAN AT PEAPACK-GLADSTONE, L.L.C. |
||||
K. HOVNANIAN AT PERKIOMEN I, INC. |
||||
K. HOVNANIAN AT PERKIOMEN II, INC. |
||||
K. HOVNANIAN AT PHILADELPHIA II, L.L.C. |
||||
K. HOVNANIAN AT PHILADELPHIA III, L.L.C. |
||||
K. HOVNANIAN AT PHILADELPHIA IV, L.L.C. |
||||
K. HOVNANIAN AT PIAZZA D'ORO, L.L.C. |
||||
K. HOVNANIAN AT PITTSGROVE, L.L.C. |
||||
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL IV, L.L.C. |
||||
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL V, L.L.C. |
||||
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VI, L.L.C. |
||||
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VII, L.L.C. |
||||
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VIII, L.L.C. |
||||
K. HOVNANIAN AT PRADO, L.L.C. |
||||
K. HOVNANIAN AT PRINCETON LANDING, L.L.C. |
||||
K. HOVNANIAN AT PRINCETON NJ, L.L.C. |
||||
K. HOVNANIAN AT RANCHO CRISTIANITOS, INC. |
||||
K. HOVNANIAN AT RANCHO SANTA MARGARITA, LLC |
||||
K. HOVNANIAN AT RANDOLPH I, L.L.C. |
||||
K. HOVNANIAN AT RAPHO, L.L.C. |
||||
K. HOVNANIAN AT READINGTON II, L.L.C. |
||||
K. HOVNANIAN AT RED BANK, L.L.C. |
||||
K. HOVNANIAN AT RESERVOIR RIDGE, INC. |
||||
K. HOVNANIAN AT RIDGEMONT, L.L.C. |
||||
K. HOVNANIAN AT RIDGESTONE, L.L.C. |
||||
K. HOVNANIAN AT RIVERBEND, LLC |
II-21
K. HOVNANIAN AT RODERUCK, L.L.C. |
||||
K. HOVNANIAN AT ROSEMARY LANTANA, L.L.C. |
||||
K. HOVNANIAN AT ROWLAND HEIGHTS, LLC |
||||
K. HOVNANIAN AT SAGE, L.L.C. |
||||
K. HOVNANIAN AT SAN SEVAINE, INC. |
||||
K. HOVNANIAN AT SARATOGA, INC. |
||||
K. HOVNANIAN AT SAWMILL, INC. |
||||
K. HOVNANIAN AT SAYREVILLE, L.L.C. |
||||
K. HOVNANIAN AT SCOTCH PLAINS II, INC. |
||||
K. HOVNANIAN AT SCOTCH PLAINS, L.L.C. |
||||
K. HOVNANIAN AT SILVER SPRING, L.L.C. |
||||
K. HOVNANIAN AT SKYE ISLE, LLC |
||||
K. HOVNANIAN AT SMITHVILLE III, L.L.C. |
||||
K. HOVNANIAN AT SMITHVILLE, INC. |
||||
K. HOVNANIAN AT SOMERS POINT, L.L.C. |
||||
K. HOVNANIAN AT SOUTH BRUNSWICK V, INC. |
||||
K. HOVNANIAN AT SOUTH BRUNSWICK, L.L.C. |
||||
K. HOVNANIAN AT SPARTA, L.L.C. |
||||
K. HOVNANIAN AT SPRINGCO, L.L.C. |
||||
K. HOVNANIAN AT SPRINGFIELD, L.L.C. |
||||
K. HOVNANIAN AT STONE CANYON, INC. |
||||
K. HOVNANIAN AT STONY POINT, INC. |
||||
K. HOVNANIAN AT SUNSETS, LLC |
||||
K. HOVNANIAN AT SYCAMORE, INC. |
||||
K. HOVNANIAN AT TANNERY HILL, INC. |
||||
K. HOVNANIAN AT TEANECK, L.L.C. |
||||
K. HOVNANIAN AT THE BLUFF, INC. |
||||
K. HOVNANIAN AT THE CROSBY, LLC |
||||
K. HOVNANIAN AT THE GABLES, LLC |
||||
K. HOVNANIAN AT THE MONARCH, L.L.C. |
||||
K. HOVNANIAN AT THE PRESERVE, L.L.C. |
||||
K. HOVNANIAN AT THOMPSON RANCH, LLC |
||||
K. HOVNANIAN AT THORNBURY, INC. |
||||
K. HOVNANIAN AT TIERRASANTA, INC. |
II-22
K. HOVNANIAN AT TRAIL RIDGE, LLC |
||||
K. HOVNANIAN AT TRENTON URBAN RENEWAL, L.L.C. |
||||
K. HOVNANIAN AT TRENTON, L.L.C. |
||||
K. HOVNANIAN AT TROVATA, INC. |
||||
K. HOVNANIAN AT TUXEDO, INC. |
||||
K. HOVNANIAN AT UNION TOWNSHIP I, INC. |
||||
K. HOVNANIAN AT UNION TOWNSHIP II, L.L.C. |
||||
K. HOVNANIAN AT UPPER FREEHOLD TOWNSHIP I, INC. |
||||
K. HOVNANIAN AT UPPER FREEHOLD TOWNSHIP II, L.L.C. |
||||
K. HOVNANIAN AT UPPER FREEHOLD TOWNSHIP III, L.L.C. |
||||
K. HOVNANIAN AT UPPER MAKEFIELD I, INC. |
||||
K. HOVNANIAN AT UPPER UWCHLAN II, L.L.C. |
||||
K. HOVNANIAN AT UPPER UWCHLAN, L.L.C. |
||||
K. HOVNANIAN AT VAIL RANCH, INC. |
||||
K. HOVNANIAN AT VERONA URBAN RENEWAL, L.L.C. |
||||
K. HOVNANIAN AT VINELAND, L.L.C. |
||||
K. HOVNANIAN AT WALL TOWNSHIP VI, INC. |
||||
K. HOVNANIAN AT WALL TOWNSHIP VIII, INC. |
||||
K. HOVNANIAN AT WANAQUE, L.L.C. |
||||
K. HOVNANIAN AT WARREN TOWNSHIP, L.L.C. |
||||
K. HOVNANIAN AT WASHINGTON, L.L.C. |
||||
K. HOVNANIAN AT WASHINGTONVILLE, INC. |
||||
K. HOVNANIAN AT WAYNE III, INC. |
||||
K. HOVNANIAN AT WAYNE IX, L.L.C. |
||||
K. HOVNANIAN AT WAYNE V, INC. |
||||
K. HOVNANIAN AT WAYNE VIII, L.L.C. |
||||
K. HOVNANIAN AT WEST BRADFORD, L.L.C. |
||||
K. HOVNANIAN AT WEST MILFORD, L.L.C. |
||||
K. HOVNANIAN AT WEST WINDSOR, L.L.C. |
||||
K. HOVNANIAN AT WILDROSE, INC. |
||||
K. HOVNANIAN AT WILDWOOD BAYSIDE, L.L.C. |
||||
K. HOVNANIAN AT WILLOW BROOK, L.L.C. |
||||
K. HOVNANIAN AT WINCHESTER, LLC |
||||
K. HOVNANIAN AT WOODHILL ESTATES, L.L.C. |
II-23
K. HOVNANIAN AT WOOLWICH I, L.L.C. |
||||
K. HOVNANIAN CAMBRIDGE HOMES, L.L.C. |
||||
K. HOVNANIAN CENTRAL ACQUISITIONS, L.L.C. |
||||
K. HOVNANIAN CHESTERFIELD INVESTMENT, L.L.C. |
||||
K. HOVNANIAN CLASSICS CIP, L.L.C. |
||||
K. HOVNANIAN CLASSICS, L.L.C. |
||||
K. HOVNANIAN COMMUNITIES, INC. |
||||
K. HOVNANIAN COMPANIES METRO D.C. NORTH, L.L.C. |
||||
K. HOVNANIAN COMPANIES NORTHEAST, INC. |
||||
K. HOVNANIAN COMPANIES OF CALIFORNIA, INC. |
||||
K. HOVNANIAN COMPANIES OF MARYLAND, INC. |
||||
K. HOVNANIAN COMPANIES OF NEW YORK, INC. |
||||
K. HOVNANIAN COMPANIES OF PENNSYLVANIA, INC. |
||||
K. HOVNANIAN COMPANIES OF SOUTHERN CALIFORNIA, INC. |
||||
K. HOVNANIAN COMPANIES OF VIRGINIA, INC. |
||||
K. HOVNANIAN COMPANIES, LLC |
||||
K. HOVNANIAN CONNECTICUT ACQUISITIONS, L.L.C. |
||||
K. HOVNANIAN CONSTRUCTION II, INC |
||||
K. HOVNANIAN CONSTRUCTION III, INC |
||||
K. HOVNANIAN CONSTRUCTION MANAGEMENT, INC. |
||||
K. HOVNANIAN CRAFTBUILT HOMES OF SOUTH CAROLINA, L.L.C. |
||||
K. HOVNANIAN DELAWARE ACQUISITIONS, L.L.C. |
||||
K. HOVNANIAN DEVELOPMENTS OF ARIZONA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF CALIFORNIA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF CONNECTICUT, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF D.C., INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF DELAWARE, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF GEORGIA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF ILLINOIS, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF INDIANA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF KENTUCKY, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF MARYLAND, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF MICHIGAN, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF MINNESOTA, INC. |
II-24
K. HOVNANIAN DEVELOPMENTS OF NEW JERSEY II, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF NEW JERSEY, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF NEW YORK, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF NORTH CAROLINA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF OHIO, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF PENNSYLVANIA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF SOUTH CAROLINA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF TEXAS, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF VIRGINIA, INC. |
||||
K. HOVNANIAN DEVELOPMENTS OF WEST VIRGINIA, INC. |
||||
K. HOVNANIAN EASTERN PENNSYLVANIA, L.L.C. |
||||
K. HOVNANIAN FIRST HOMES, L.L.C. |
||||
K. HOVNANIAN FLORIDA REALTY, L.L.C. |
||||
K. HOVNANIAN FORECAST HOMES NORTHERN, INC. |
||||
K. HOVNANIAN FOUR SEASONS @ HISTORIC VIRGINIA, LLC |
||||
K. HOVNANIAN FOUR SEASONS AT GOLD HILL, LLC |
||||
K. HOVNANIAN FRANCISCUS HOMES, L.L.C. |
||||
K. HOVNANIAN GREAT WESTERN BUILDING COMPANY, LLC |
||||
K. HOVNANIAN GREAT WESTERN HOMES, LLC |
||||
K. HOVNANIAN HOLDINGS NJ, L.L.C. |
||||
K. HOVNANIAN HOMES—DFW, L.L.C. |
||||
K. HOVNANIAN HOMES AT BELMONT OVERLOOK, L.L.C. |
||||
K. HOVNANIAN HOMES AT CAMERON STATION, LLC |
||||
K. HOVNANIAN HOMES AT CAMP SPRINGS, L.L.C. |
||||
K. HOVNANIAN HOMES AT CIDER MILL, L.L.C. |
||||
K. HOVNANIAN HOMES AT FAIRWOOD, L.L.C. |
||||
K. HOVNANIAN HOMES AT FOREST RUN, L.L.C. |
||||
K. HOVNANIAN HOMES AT GREENWAY FARM PARK TOWNS, L.L.C. |
||||
K. HOVNANIAN HOMES AT GREENWAY FARM, L.L.C. |
||||
K. HOVNANIAN HOMES AT JONES STATION 1, L.L.C. |
||||
K. HOVNANIAN HOMES AT JONES STATION 2, L.L.C. |
||||
K. HOVNANIAN HOMES AT MAXWELL PLACE. L.L.C. |
||||
K. HOVNANIAN HOMES AT NASSAU GROVE, L.L.C. |
||||
K. HOVNANIAN HOMES AT PAYNE STREET, L.L.C. |
II-25
K. HOVNANIAN HOMES AT PRIMERA, L.L.C. |
||||
K. HOVNANIAN HOMES AT RENAISSANCE PLAZA, L.L.C. |
||||
K. HOVNANIAN HOMES AT RUSSETT, L.L.C. |
||||
K. HOVNANIAN HOMES AT VICTORIA STATION, L.L.C. |
||||
K. HOVNANIAN HOMES OF D.C., L.L.C. |
||||
K. HOVNANIAN HOMES OF DELAWARE, L.L.C. |
||||
K. HOVNANIAN HOMES OF GEORGIA, L.L.C. |
||||
K. HOVNANIAN HOMES OF HOUSTON, L.L.C. |
||||
K. HOVNANIAN HOMES OF INDIANA, L.L.C. |
||||
K. HOVNANIAN HOMES OF MARYLAND, L.L.C. |
||||
K. HOVNANIAN HOMES OF MINNESOTA, L.L.C. |
||||
K. HOVNANIAN HOMES OF NORTH CAROLINA, INC. |
||||
K. HOVNANIAN HOMES OF PENNSYLVANIA, L.L.C. |
||||
K. HOVNANIAN HOMES OF SOUTH CAROLINA, LLC |
||||
K. HOVNANIAN HOMES OF VIRGINIA, INC. |
||||
K. HOVNANIAN HOMES OF WEST VIRGINIA, L.L.C. |
||||
K. HOVNANIAN HUDSON POINTE INVESTMENTS, L.L.C. |
||||
K. HOVNANIAN INTERNATIONAL, L.L.C. |
||||
K. HOVNANIAN INVESTMENTS II, L.L.C. |
||||
K. HOVNANIAN NORTH CENTRAL ACQUISITIONS, L.L.C. |
||||
K. HOVNANIAN NORTH JERSEY ACQUISITIONS, L.L.C. |
||||
K. HOVNANIAN NORTHEAST SERVICES, L.L.C. |
||||
K. HOVNANIAN OF HOUSTON II, L.L.C. |
||||
K. HOVNANIAN OHIO REALTY, L.L.C. |
||||
K. HOVNANIAN OSTER HOMES, L.L.C. |
||||
K. HOVNANIAN PA REAL ESTATE, INC. |
||||
K. HOVNANIAN PENNSYLVANIA ACQUISITIONS, L.L.C. |
||||
"K. HOVNANIAN POLAND, SP .Z.O.O. |
||||
K. HOVNANIAN PORT IMPERIAL URBAN RENEWAL, INC. |
||||
K. HOVNANIAN PROPERTIES OF NORTH BRUNSWICK V, INC. |
||||
K. HOVNANIAN PROPERTIES OF RED BANK, INC. |
||||
K. HOVNANIAN SHORE ACQUISITIONS, L.L.C. |
||||
K. HOVNANIAN SOUTH JERSEY ACQUISITIONS, L.L.C. |
II-26
K. HOVNANIAN SOUTHERN NEW JERSEY, L.L.C. |
||||
K. HOVNANIAN STANDING ENTITY, L.L.C. |
||||
K. HOVNANIAN SUMMIT HOLDINGS, L.L.C. |
||||
K. HOVNANIAN SUMMIT HOMES OF KENTUCKY, L.L.C. |
||||
K. HOVNANIAN SUMMIT HOMES OF MICHIGAN, L.L.C. |
||||
K. HOVNANIAN SUMMIT HOMES OF PENNSYLVANIA, L.L.C. |
||||
K. HOVNANIAN SUMMIT HOMES OF WEST VIRGINIA, L.L.C. |
||||
K. HOVNANIAN SUMMIT HOMES, L.L.C. |
||||
K. HOVNANIAN T&C HOMES AT FLORIDA, L.L.C. |
||||
K. HOVNANIAN T&C HOMES AT ILLINOIS, L.L.C. |
||||
K. HOVNANIAN T&C HOMES AT MINNESOTA, L.L.C. |
||||
K. HOVNANIAN T&C INVESTMENT, L.L.C. |
||||
K. HOVNANIAN T&C MANAGEMENT CO., L.L.C. |
||||
K. HOVNANIAN VENTURE I, L.L.C. |
||||
K. HOVNANIAN WINDWARD HOMES, LLC |
||||
K. HOVNANIAN'S FOUR SEASONS AT ASHBURN VILLAGE, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT BAILEY'S GLENN, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT BAKERSFIELD, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT BEAUMONT, LLC |
||||
K. HOVNANIAN'S FOUR SEASONS AT CHARLOTTESVILLE, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT DULLES DISCOVERY CONDOMINIUM, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT DULLES DISCOVERY, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT HAMPTONBURGH, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT HEMET, LLC |
||||
K. HOVNANIAN'S FOUR SEASONS AT HUNTFIELD, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT KENT ISLAND CONDOMINIUMS, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT KENT ISLAND, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT MENIFEE VALLEY, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT NEW KENT VINEYARDS, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT OLDE LIBERTY, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT PALM SPRINGS, LLC |
||||
K. HOVNANIAN'S FOUR SEASONS AT RENAISSANCE, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT RUSH CREEK, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS AT ST. MARGARETS LANDING, L.L.C. |
II-27
K. HOVNANIAN'S FOUR SEASONS AT VINT HILL, L.L.C. |
||||
K. HOVNANIAN'S FOUR SEASONS, LLC |
||||
K. HOVNANIAN'S PARKSIDE AT TOWNGATE, L.L.C. |
||||
K. HOVNANIAN'S PRIVATE HOME PORTFOLIO, L.L.C. |
||||
KHC ACQUISITION, INC. |
||||
KHIP, L.L.C. |
||||
LANDARAMA, INC. |
||||
M & M AT KENSINGTON WOODS, L.L.C. |
||||
M & M AT LONG BRANCH, INC |
||||
M&M AT APPLE RIDGE, L.L.C. |
||||
M&M AT CHESTERFIELD, L.L.C. |
||||
M&M AT COPPER BEECH, L.L.C. |
||||
M&M AT CRESCENT COURT, L.L.C. |
||||
M&M AT EAST MILL, L.L.C. |
||||
M&M AT EAST RUTHERFORD, L.L.C. |
||||
M&M AT MORRISTOWN, L.L.C. |
||||
M&M AT SHERIDAN, L.L.C. |
||||
M&M AT SPINNAKER POINTE, L.L.C. |
||||
M&M AT SPRUCE HOLLOW, L.L.C. |
||||
M&M AT SPRUCE RUN, L.L.C. |
||||
M&M AT STATION SQUARE, L.L.C. |
||||
M&M AT TAMARACK HOLLOW, L.L.C. |
||||
M&M AT THE CHATEAU, L.L.C. |
||||
M&M AT THE HIGHLANDS, L.L.C. |
||||
M&M AT UNION, L.L.C. |
||||
M&M AT WEST ORANGE, L.L.C. |
||||
M&M AT WESTPORT, L.L.C. |
||||
M&M AT WHEATENA URBAN RENEWAL, L.L.C. |
||||
M&M INVESTMENTS, L.P. |
||||
MATZEL & MUMFORD AT EGG HARBOR, L.L.C. |
||||
MATZEL & MUMFORD AT MONTGOMERY, L.L.C. |
||||
MATZEL & MUMFORD AT SOUTH BOUND BROOK URBAN RENEWAL, L.L.C. |
||||
MCNJ, INC. |
II-28
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF KENTUCKY, L.L.C. |
||||
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF MICHIGAN, L.L.C. |
||||
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF PENNSYLVANIA, L.L.C. |
||||
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF WEST VIRGINIA, L.L.C. |
||||
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES, L.L.C. |
||||
MILLENNIUM TITLE AGENCY, LTD |
||||
MMIP, L.L.C. |
||||
NATOMAS CENTRAL NEIGHBORHOOD HOUSING, L.L.C. |
||||
NEW LAND TITLE AGENCY, L.L.C. |
||||
PADDOCKS, L.L.C. |
||||
PARK TITLE COMPANY, LLC |
||||
PI INVESTMENTS II, L.L.C. |
||||
PINE AYR, LLC |
||||
RIDGEMORE UTILITY ASSOCIATES OF PENNSYLVANIA, L.L.C. |
||||
RIDGEMORE UTILITY L.L.C. |
||||
SEABROOK ACCUMULATION CORPORATION |
||||
STONEBROOK HOMES, INC. |
||||
TERRAPIN REALTY, L.L.C. |
||||
THE LANDINGS AT SPINNAKER POINTE, L.L.C. |
||||
THE MATZEL & MUMFORD ORGANIZATION, INC |
||||
WASHINGTON HOMES AT COLUMBIA TOWN CENTER, L.L.C. |
||||
WASHINGTON HOMES, INC. |
||||
WESTMINSTER HOMES OF ALABAMA, L.L.C. |
||||
WESTMINSTER HOMES OF MISSISSIPPI, LLC |
||||
WESTMINSTER HOMES OF TENNESSEE, INC. |
||||
WESTMINSTER HOMES, INC. |
||||
WH LAND I, INC |
||||
WH PROPERTIES, INC. |
||||
WH/PR LAND COMPANY, L.L.C. |
||||
WOODLAND LAKE CONDOMINIUMS AT BOWIE NEW TOWN, L.L.C. |
II-29
| 3.1 | Articles of Incorporation of K. Hovnanian Enterprises, Inc.(1) | ||
3.2 |
By-Laws of K. Hovnanian Enterprises, Inc. (filed herewith) |
||
3.3 |
Certificate of Incorporation of Hovnanian Enterprises, Inc.(13) |
||
3.4 |
Restated By-Laws of Hovnanian Enterprises, Inc.(7) |
||
3.5 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in New Jersey.(1) |
||
3.6 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in New York.(1) |
||
3.7 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Pennsylvania.(1) |
||
3.8 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in North Carolina.(1) |
||
3.9 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in South Carolina.(1) |
||
3.10 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Virginia.(1) |
||
3.11 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Maryland.(1) |
||
3.12 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Delaware.(1) |
||
3.13 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in California.(1) |
||
3.14 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Texas.(1) |
||
3.15 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Arizona.(1) |
||
3.16 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Ohio.(1) |
||
3.17 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in West Virginia.(1) |
||
3.18 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Florida.(1) |
||
3.19 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Michigan.(1) |
||
3.20 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Tennessee.(1) |
||
3.21 |
Form of Articles of Organization for Subsidiary Registrant limited liability companies.(1) |
||
3.22 |
Form of Certificate of Limited Partnership for Subsidiary Registrant limited partnerships.(1) |
II-30
| 3.23 | Form of By-Laws for Subsidiary Registrant corporations incorporated in New Jersey.(1) | ||
3.24 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in New York.(1) |
||
3.25 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Pennsylvania.(1) |
||
3.26 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in North Carolina.(1) |
||
3.27 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in South Carolina.(1) |
||
3.28 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Maryland.(1) |
||
3.29 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Virginia.(1) |
||
3.30 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Delaware.(1) |
||
3.31 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in California.(1) |
||
3.32 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Texas.(1) |
||
3.33 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Arizona.(1) |
||
3.34 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Ohio.(1) |
||
3.35 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in West Virginia.(1) |
||
3.36 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Florida.(1) |
||
3.37 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Michigan.(1) |
||
3.38 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Tennessee.(1) |
||
3.39 |
Form of Limited Liability Company Agreement for Subsidiary Registrant limited liability companies.(1) |
||
3.40 |
Form of Limited Partnership Agreement for Subsidiary Registrant limited partnerships.(1) |
||
3.41 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Minnesota.(4) |
||
3.42 |
Form of Certificate of Incorporation for Subsidiary Registrant corporations incorporated in Connecticut. (filed herewith) |
||
3.43 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Georgia. (filed herewith) |
||
3.44 |
Form of Certificate of Incorporation for Subsidiary Registrant corporations incorporated in Illinois. (filed herewith) |
||
3.45 |
Form of Certificate of Incorporation for Subsidiary Registrant corporations incorporated in Indiana. (filed herewith) |
||
3.46 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Kentucky. (filed herewith) |
||
3.47 |
Form of Articles of Incorporation for Subsidiary Registrant corporations incorporated in Washington, DC. (filed herewith) |
||
3.48 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Connecticut. (filed herewith) |
||
3.49 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Georgia. (filed herewith) |
II-31
| 3.50 | Form of By-Laws for Subsidiary Registrant corporations incorporated in Illinois. (filed herewith) | ||
3.51 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Indiana. (filed herewith) |
||
3.52 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Kentucky. (filed herewith) |
||
3.53 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Washington, DC. (filed herewith) |
||
3.54 |
Form of By-Laws for Subsidiary Registrant corporations incorporated in Minnesota. (filed herewith) |
||
4.1 |
Indenture dated as of May 27, 2008, relating to 111/2% Senior Secured Notes due 2013, among K. Hovnanian Enterprises, Inc., Hovnanian Enterprises, Inc. and the other Guarantors named therein and Deutsche Bank National Trust Company, as Trustee, including form of 111/2% Senior Secured Notes due 2013.(9) |
||
4.2 |
Registration Rights Agreement, dated as of May 27, 2008, by and among K. Hovnanian Enterprises, Inc., Hovnanian Enterprises, Inc., certain of its subsidiaries and Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC on behalf of themselves and the several other initial purchasers. (filed herewith) |
||
4.3 |
Certificate of Designations, Powers, Preferences and Rights of the 7.625% Series A Preferred Stock of Hovnanian Enterprises, Inc., dated July 12, 2005.(6) |
||
4.4 |
Certificate of Designations of the Series B Junior Preferred Stock of Hovnanian Enterprises, Inc., dated August 14, 2008.(13) |
||
4.5 |
Rights Agreement, dated as of August 14, 2008, between Hovnanian Enterprises, Inc. and National City Bank, as Rights Agent, which includes the Form of Certificate of Designation as Exhibit A, Form of Right Certificate as Exhibit B and the Summary of Rights as Exhibit C.(3) |
||
5.1 |
Opinion of Simpson Thacher & Bartlett LLP. (filed herewith) |
||
10.1 |
Seventh Amended and Restated Credit Agreement dated March 7, 2008.(8) |
||
10.2 |
Amendment No. 1 to Seventh Amended and Restated Credit Agreement dated as of May 16, 2008.(9) |
||
10.3 |
Guaranty and Suretyship Agreement, dated March 7, 2008.(8) |
||
10.4 |
Pledge Agreement, relating to the Amended Credit Agreement, dated as of March 7, 2008.(8) |
||
10.5 |
Amended and Restated Security Agreement, relating to the Amended Credit Agreement, dated as of May 27, 2008.(9) |
||
10.6 |
Intellectual Property Security Agreement, relating to the Amended Credit Agreement, dated as of May 27, 2008.(9) |
||
10.7 |
Intercreditor Agreement dated as of May 27, 2008.(9) |
||
10.8 |
Second Lien Pledge Agreement, relating to the 111/2% Senior Secured Notes due 2013, dated as of May 27, 2008.(9) |
II-32
| 10.9 | Second Lien Security Agreement, relating to the 111/2% Senior Secured Notes due 2013, dated as of May 27, 2008.(9) | ||
10.10 |
Intellectual Property Security Agreement, relating to the 111/2% Senior Secured Notes due 2013, dated as of May 27, 2008.(9) |
||
10.11 |
Amended and Restated Hovnanian Enterprises, Inc. Senior Executive Short-Term Incentive Plan.(10) |
||
10.12 |
2008 Hovnanian Enterprises, Inc. Stock Incentive Plan.(11) |
||
10.13 |
Amended and Restated Hovnanian Enterprises, Inc. 1983 Stock Option Plan.(12) |
||
10.14 |
Description of Non-Employee Director Compensation.(13) |
||
10.15 |
Base Salaries of Executive Officers.(7) |
||
10.16 |
Description of Management Bonus Arrangements.(5) |
||
10.17 |
Description of Savings and Investment Retirement Plan.(2) |
||
10.18 |
Management Agreement dated August 12, 1983, for the management of properties by K. Hovnanian Investment Properties, Inc.(2) |
||
10.19 |
Management Agreement dated December 15, 1985, for the management of properties by K. Hovnanian Investment Properties, Inc.(5) |
||
10.20 |
Description of Deferred Compensation Plan.(5) |
||
10.21 |
Death and Disability Agreement between Hovnanian Enterprises, Inc. and Ara K. Hovnanian.(14) |
||
10.22 |
Form of Hovnanian Deferred Share Policy for Senior Executives.(14) |
||
10.23 |
Form of Hovnanian Deferred Share Policy.(14) |
||
10.24 |
Form of Non-Qualified Stock Option Agreement.(14) |
||
10.25 |
Form of Incentive Stock Option Agreement.(14) |
||
10.26 |
Form of Stock Option Agreement for Directors.(14) |
||
10.27 |
Form of Restricted Share Unit Agreement.(14) |
||
12.1 |
Statement re: Computation of Ratio of Earnings to Fixed Charges. (filed herewith) |
||
21.1 |
Subsidiaries of Hovnanian Enterprises, Inc. (filed herewith) |
||
23.1 |
Consent of Simpson Thacher & Bartlett LLP. (contained in Exhibit 5.1) |
||
23.2 |
Consent of Ernst & Young LLP. (filed herewith) |
||
24.1 |
Powers of Attorney of the Boards of Directors of K. Hovnanian Enterprises, Inc., Hovnanian Enterprises, Inc. and Subsidiary Registrants. (included on signature pages) |
||
25.1 |
Statement of Eligibility of Trustee under the Indenture filed as Exhibit 4.1 hereto. (filed herewith) |
||
99.1 |
Form of Letter of Transmittal. (filed herewith) |
||
99.2 |
Form of Letter to Dealers, Commercial Banks, Trust Companies and Other Nominees. (filed herewith) |
||
99.3 |
Form of Letter to Clients. (filed herewith) |
II-33
| 99.4 | Form of Notice of Guaranteed Delivery. (filed herewith) |
- (1)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 333-106761) on Form S-3 of Hovnanian
Enterprises, Inc.
- (2)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 2-85198) on Form S-1 of Hovnanian
Enterprises, Inc.
- (3)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 001-08551) on Form 8-A of Hovnanian
Enterprises, Inc. filed August 14, 2008.
- (4)
- Incorporated
by reference to Exhibits to the Registration Statement (No. 333-122175) on Form S-4 of Hovnanian
Enterprises, Inc.
- (5)
- Incorporated
by reference to Exhibits to the Annual Report on Form 10-K of Hovnanian Enterprises, Inc. for the year ended
October 31, 2003.
- (6)
- Incorporated
by reference to Exhibits to the Current Report on Form 8-K of Hovnanian Enterprises, Inc., filed on July 13,
2005.
- (7)
- Incorporated
by reference to Exhibits to the Annual Report on Form 10-K of Hovnanian Enterprises, Inc., for the year ended
October 31, 2007.
- (8)
- Incorporated
by reference to Exhibits to Quarterly Report on Form 10-Q of Hovnanian Enterprises, Inc., for the quarter ended
January 31, 2008.
- (9)
- Incorporated
by reference to Exhibits to Current Report on Form 8-K of Hovnanian Enterprises, Inc., filed on June 2, 2008.
- (10)
- Incorporated
by reference to Appendix A of the definitive Proxy Statement of Hovnanian Enterprises, Inc. on Schedule 14A filed on
February 19, 2008
- (11)
- Incorporated
by reference to Appendix B of the definitive Proxy Statement of Hovnanian Enterprises, Inc. on Schedule 14A filed on
February 19, 2008.
- (12)
- Incorporated
by reference to Appendix C of the definitive Proxy Statement of Hovnanian Enterprises, Inc. on Schedule 14A filed on
February 19, 2008.
- (13)
- Incorporated
by reference to Exhibits to Quarterly Report on Form 10-Q of Hovnanian Enterprises, Inc. for the quarter ended
July 31, 2008.
- (14)
- Incorporated by reference to Exhibits to Quarterly Report on Form 10-Q of Hovnanian Enterprises, Inc. for the quarter ended January 31, 2006.
II-34
TABLE OF ADDITIONAL REGISTRANTS
TABLE OF CONTENTS
FORWARD-LOOKING STATEMENTS
PROSPECTUS SUMMARY
Summary of the Terms of the Exchange Offer
Summary of the Terms of the Exchange Notes
Summary Financial Information
RISK FACTORS
RATIO OF EARNINGS TO FIXED CHARGES
USE OF PROCEEDS
CAPITALIZATION
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
THE EXCHANGE OFFER
DESCRIPTION OF NOTES
EXCHANGE OFFER; REGISTRATION RIGHTS
BOOK-ENTRY, DELIVERY AND FORM
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER
PLAN OF DISTRIBUTION
LEGAL MATTERS
EXPERTS
AVAILABLE INFORMATION
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
POWER OF ATTORNEY
SIGNATURES
POWER OF ATTORNEY
SIGNATURES
POWER OF ATTORNEY
SIGNATURES
POWER OF ATTORNEY
SIGNATURES
SCHEDULE OF SUBSIDIARY REGISTRANTS Exact Name of Registrant As Specified in Its Charter
EXHIBIT INDEX
Exhibit 3.2
BYLAWS OF
K. Hovnanian Enterprises, Inc.,
a California corporation
ARTICLE I OFFICES
Section 1. PRINCIPAL OFFICE. The board of directors shall fix the location of the principal executive office of the corporation at any place within or outside the State of California. If the principal executive office is located outside the State of California, and the corporation has one or more business office(s) in the State of California, the board of directors shall fix and designate a principal business office in California.
ARTICLE II MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any place within or outside of the State of California designated by the board of directors or by the written consent of all persons entitled to vote thereat, which written consent is filed with the Secretary either before or after the meeting.
Section 2. ANNUAL MEETING. The annual meeting of shareholders shall be held each year on a date and at a time designated by the board of directors. The date so designated shall be within 15 months following the last annual meeting. At each annual meeting directors shall be elected, and any other proper business may be transacted.
Section 3. SPECIAL MEETING. A special meeting of the shareholders may be called at any time, subject to the provisions of Sections 4 and 5 of Article II of these Bylaws, by the board of directors, the chairman of the board, the president, or by holders of shares entitled to cast not less than 10% of the votes at such meeting.
If a special meeting is called by any person or persons other than the board of directors, the request shall be in writing, specifying the place, date and hour of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president, any vice president, or the secretary of the corporation. The officer receiving the request shall cause notice to be promptly given to the shareholders entitled to vote that a meeting will be held at the time requested by the person or persons calling the meeting, not less than 35
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nor more than 60 days after the receipt of the request. If the notice is not given within 20 days after receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of Section 3 shall be construed as limiting, fixing or affecting the time when a meeting of shareholders called by action of the board of directors may be held.
Section 4. NOTICE OF SHAREHOLDERS’ MEETINGS. Subject to the provisions of the foregoing Section 3, all notices of meetings of shareholders shall be sent or otherwise given in accordance with Article II, Section 5 of these Bylaws not less than 10 (or, if sent by third-class mail, not less than 30) nor more than 60 days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, and no business other than that specified in the notice may be transacted, or (ii) in the case of the annual meeting, those matters which the board of directors, at the time of mailing the notice, intends to present for action by the shareholders, but subject to the provisions of the next paragraph of this Section 4, any proper matter may be presented at the meeting for such action. The notice of any meeting at which directors are to be elected shall include the names of nominees intended at the time of the notice to be presented by the board for election.
If action is proposed to be taken at any meeting for approval of (i) a contract or transaction in which a director has a direct or indirect financial interest, pursuant to Section 310 of the California Corporations Code (the “Code”), (ii) an amendment of the articles of incorporation, pursuant to Section 902 of the Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of the Code, (iv) a voluntary dissolution of the corporation, pursuant to Section 1900 of the Code, or (v) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of the Code, the notice shall also state the general nature of that proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of shareholders shall be given either personally or by first-class mail, or, if the corporation has outstanding shares held of record by 500 or more persons (determined as provided in Section 605 of the Code) on the record date for the shareholders’ meeting, notice may be sent by third-class mail, or other means of written communication, addressed to the shareholder at the address of that shareholder appearing on the books of the corporation or given by the shareholder to the corporation for the purpose of notice. If no such address appears on the corporation’s books or is given, notice shall be deemed to have been given if sent to that shareholder at the corporation’s principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by other means of written communication.
If any notice or report addressed to the shareholder at the address of such shareholder appearing on the books of the corporation is returned to the corporation by the United States
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Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice or report to the shareholder at such address, all future notices or reports shall be deemed to have been duly given without further mailing if the same shall be available for the shareholder upon written demand of the shareholder at the principal executive office of the corporation for a period of one year from the date of the giving of the notice or report to all other shareholders.
An affidavit of the mailing of any notice or report in accordance with the provisions of this Section 5, executed by the secretary, assistant secretary, or any transfer agent of the corporation shall be prima facie evidence of the giving of the notice or report and shall be filed and maintained in the minute book of the corporation.
Section 6. QUORUM. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting of shareholders shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.
Section 7. ADJOURNED MEETING; NOTICE. Any shareholders meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at that meeting, either in person or by proxy, but in the absence of a quorum (except as set forth in Section 6 of this Article), no other business may be transacted at that meeting. Notice need not be given of the adjourned meeting if the time and place are announced at the meeting at which the adjournment is taken, unless a new record date for the adjourned meeting is fixed, or unless the adjournment is for more than 45 days from the date set for the original meeting, in which case notice of any such adjourned meeting shall be given in the same manner as notice of the original meeting. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting.
Section 8. VOTING. The shareholders entitled to vote at any meeting of shareholders shall be determined in accordance with the provisions of Section 11 of this Article II, subject to the provisions of Section 702 to 704, inclusive, of the Code (relating to voting shares held by a fiduciary, in the name of a corporation, or in joint ownership). The shareholders’ vote may be by voice vote or by ballot; provided, however, that any election for directors must be by ballot if demanded by any shareholder at the meeting and before the voting has begun. On any matter other than elections of directors, any shareholder may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but, if the shareholder fails to specify the number of shares which he is voting affirmatively, it will be conclusively presumed that the shareholder’s approving vote is with respect to all shares that the shareholder is entitled to vote.
The affirmative vote of the majority of the shares represented and voting at a duly held
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meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum) shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by the Code or by the articles of incorporation.
At a shareholders’ meeting at which directors are to be elected, a shareholder shall be entitled to cumulate votes either (i) by giving one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which that shareholder’s shares are normally entitled or (ii) by distributing the shareholder’s votes on the same principle among as many candidates as the shareholder thinks fit if the candidates’ names have been placed in nomination prior to commencement of the voting and the shareholder has given notice at the meeting and prior to the voting of the shareholder’s intention to cumulate the shareholder’s votes. If any one shareholder has given such notice, all shareholders may so cumulate their votes for the candidates in nomination. The candidates receiving the highest number of affirmative votes, up to the number of directors to be elected, shall be elected; votes against any candidate and votes withheld shall have no legal effect.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of any meeting of shareholders, either annual or special, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, not present in person or by proxy, signs a written waiver of notice or a consent to the holding of the meeting, or an approval of the minutes. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any annual or special meeting of shareholders, except that if action is taken or proposed to be taken for approval of any of those matters specified in the second paragraph of Section 4 of this Article, the waiver of notice or consent shall state the general nature of the proposal. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters required by the Code to be included in the notice of the meeting, but not so included, if that objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted.
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In the case of election of directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors; provided, however, that a director may be elected at any time to fill a vacancy on the board of directors (that has not been filled by action of the directors) by the written consent of the holders of a majority of the outstanding shares entitled to vote for the election of directors.
All such consents shall be filed with the secretary of the corporation and shall be maintained in the corporate records. Any shareholder giving a written consent, or the shareholder’s proxy holders, or a transferee of the shares or a personal representative of the shareholder or their respective proxy holders, may revoke the consent by a writing received by the secretary of the corporation before written consents of the number of shares required to authorize the proposed action have been filed with the secretary of the corporation, but may not do so thereafter. Such revocation is effective upon its receipt by the secretary of the corporation.
If the consents of all shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such shareholders shall not have been required, the secretary shall give prompt notice (in the same manner specified in Section 5 of this Article II) of the corporate action approved by the shareholders without a meeting to those shareholders entitled to vote who have not consented to in writing. In the case of approval of (i) contracts or transactions in which a director has a direct or indirect financial interest, pursuant to Section 310 of the Code, (ii) indemnification of “agents” of the corporation, pursuant to Section 317 of the Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of the Code, and (iv) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of the Code, the notice shall be given at least 10 days before the consummation of any action authorized by that approval, unless the consents of all shareholders entitled to vote have been solicited in writing.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING AND GIVING CONSENTS. For purposes of determining the shareholders entitled to notice of any meeting or to vote or entitled to give consent to corporate action without a meeting, the board of directors may fix, in advance, a record date, which shall not be more than 60 days nor less than 10 days before the date of any such meeting nor more than 60 days before any such action without a meeting, and in such event only shareholders of record at the close of business on the date so fixed are entitled to notice and to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders entitled to notice or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the
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date on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.
(b) The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, (i) when no prior action by the board has been taken, shall be the day on which the first written consent is given, or (ii) when prior action of the board has been taken, shall be at the close of business on the day on which the board adopts the resolution relating to that action, or the 60th day before the date of such other action, whichever is later.
A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the board fixes a new record date for the adjourned meeting, but the board shall fix a new record date if the meeting is adjourned for more than 45 days from the date set for the original meeting. The record date for any other purpose shall be as provided in Article VII, Section 1 of these bylaws.
Section 12. PROXIES. Every person entitled to vote shares shall have the right to do so either in person or by one or more agents authorized by a written proxy signed or an electronic transmission authorized by the person and filed with the secretary of the corporation. A proxy shall be deemed signed if the shareholder’s name or other authorization is placed on the proxy (whether by manual signature, typewriting, telegraphic or electronic transmission or otherwise) by the shareholder or the shareholder’s attorney-in-fact. A proxy may be transmitted by an oral telephonic transmission if it is submitted with information from which it may be determined that the proxy was authorized by the shareholder, or his or her attorney in fact.
A duly executed proxy shall continue in full force and effect unless revoked by the person executing it before the vote pursuant to that proxy, by a writing delivered to the corporation stating that the proxy is revoked, or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the proxy; or if written notice of the death or incapacity of the maker of that proxy is received by the corporation before the vote pursuant to that proxy is counted; provided, however, that no proxy shall be valid after the expiration of 11 months from the date of the proxy, unless otherwise expressly provided in the proxy. The revocability of a proxy that states on its face it is irrevocable shall be governed by the provisions of Section 705(e) and 705(f) of the Code.
Section 13. INSPECTORS OF ELECTION. Prior to any meeting of shareholders, the board of directors may appoint any persons to act as inspectors of election at the meeting and any adjournment thereof. If no inspectors of election are so appointed, the chairman of the meeting may, and on the request of any shareholder or a shareholder’s proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares represented in person or by proxy shall determine whether one or three inspectors are to be appointed. If any person appointed as inspector fails to appear or fails or refuses to act, the chairman of the
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meeting may, and upon the request of any shareholder or a shareholder’s proxy shall, appoint a person to fill that vacancy.
The duties of the inspectors shall include:
(a) Determining the number of shares outstanding and the voting power of each; the shares represented at the meeting; the existence of a quorum; and the authenticity, validity, and effect of proxies;
(b) Receiving votes, ballots, or consents;
(c) Hearing and determining all challenges and questions in any way arising in connection with the right to vote;
(d) Counting and tabulating all votes or consents;
(e) Determining when the polls shall close;
(f) Determining the result; and
(g) Doing any other acts that may be proper to conduct the election or vote with fairness to all shareholders.
The inspectors of election shall perform their duties impartially, in good faith, to the best of their ability and as expeditiously as is practical. If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein.
ARTICLE III DIRECTORS
Section 1. POWERS. Subject to the Code and any limitations in the articles of incorporation and these bylaws relating to action required to be approved by the shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors. Without prejudice to such general powers, and subject to the same limitations, the board shall have the power to:
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(a) Select and remove all officers, agents and employees of the corporation; prescribe any powers and duties for them that are consistent with the law, with the articles of incorporation, and with these bylaws; fix their compensation; and require from them security for faithful service;
(b) Conduct, manage and control the affairs and business of the corporation;
(c) Adopt, make, and use a corporate seal; prescribe the forms of certificates of stock; and alter the form of the seal and certificates;
(d) Authorize the issuance of shares of stock of the corporation from time to time, upon such terms and for such consideration as may be lawful; and
(e) Borrow money and incur indebtedness on behalf of the corporation, and cause to be executed and delivered for the corporation’s purposes, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecation’s, and other evidences of debt and securities.
Section 2. NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized number of directors shall be five (5). After the issuance of shares, this number may be changed only by an amendment to the articles of incorporation or the bylaws approved by the affirmative vote or written consent of a majority of the outstanding shares entitled to vote. After the issuance of shares, a bylaw specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa may only be adopted by approval of the outstanding shares; provided, further, that an amendment to these bylaws reducing the fixed number or the minimum number of directors from a number greater than or equal to 5 to a number less than 5 cannot be adopted if the votes cast against the adoption at a meeting, or the shares not consenting in the case of action by written consent, are equal to more than 16-2/3% of the outstanding shares entitled to vote.
Section 3. ELECTION AND TERM OF OFFICE. Directors shall be elected at each annual meeting of the shareholders. If any such annual meeting is not held or the directors are not elected at an annual meeting, the directors may be elected at any special meeting of shareholders held for that purpose. Each director shall hold office until the expiration of the term for which elected and until a successor has been elected and qualified.
Section 4. REMOVAL. The entire board of directors or any individual director may be removed from office without cause by the affirmative vote of a majority of the outstanding shares entitled to vote on such removal; provided, however, that unless the entire board is removed, no individual director may be removed when the votes cast against such director’s
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removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election at which the same total number of votes cast were (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of such director’s most recent election were then being elected.
Section 5. RESIGNATION AND VACANCIES. Any director may resign effective upon giving written notice to the chairman of the board, the president, the secretary, or the board of directors, unless the notice specifies a later time for that resignation to become effective. If the resignation is effective at a future time, the board of directors may elect a successor to take office when the resignation becomes effective. Vacancies on the board of directors may be filled by a majority of the remaining directors, or if the number of directors then in office is less than a quorum by (i) unanimous written consent of the directors then in office, (ii) the affirmative vote of a majority of the directors then in office at a meeting held pursuant to notice or waivers of notice, or (iii) a sole remaining director; however, a vacancy created by the removal of a director by the vote or written consent of the shareholders or by court order may be filled only by the affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum), or by the unanimous written consent of all shares entitled to vote thereon. Each director so elected shall hold office until the next annual meeting of the shareholders and until a successor has been elected and qualified, or until the director’s death, resignation or removal.
A vacancy or vacancies in the board of directors shall be deemed to exist in the event of the death, resignation, or removal of any director, if the board of directors by resolution declares vacant the office of a director who has been declared of unsound mind by an order of court or convicted of a felony, or if the authorized number of directors is increased, or if the shareholders fail, at any meeting of shareholders at which any director or directors are elected, to elect the full authorized number of directors to be elected at that meeting.
The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors, but any such election by written consent, other than to fill a vacancy created by removal, shall require the consent of a majority of the outstanding shares entitled to vote. A director may not be elected by written consent to fill a vacancy created by removal except by unanimous consent of all shares entitled to vote for the election of directors.
No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.
Section 6. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Regular and special meetings of the board of directors may be held at any place within or outside of the State of California which has been designated from time to time by the board or by the person calling the meeting. In the absence of such designation, meetings shall be held at the principal executive
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office of the corporation. Any meeting, regular or special, may be held by conference telephone or similar communications equipment, so long as all directors participating in the meeting can hear one another. Participation in a meeting pursuant to this paragraph constitutes presence in person at such meeting.
Section 7. ANNUAL MEETING. Immediately following each annual meeting of shareholders, the board of directors shall hold a regular meeting for the purpose of organization, election of officers, and the transaction of other business. Notice of this meeting shall not be required.
Section 8. OTHER REGULAR MEETINGS. Other regular meetings of the board of directors shall be held without notice at such place and time as shall from time to time be fixed by the board of directors.
Section 9. SPECIAL MEETINGS. Special meetings of the board for any purpose or purposes may be called at any time by the chairman of the board, the president, the secretary or any two directors. Special meetings shall be held upon four days’ written notice by mail, or 48 hours’ notice given personally or by telephone, telegraph, telex, or other similar means, addressed or delivered to each director as appears on the records of the corporation or as may have been designated by the director for purposes of notice. Such notice need not specify the purpose of the meeting.
Section 10. QUORUM. A majority of the authorized number of directors constitutes a quorum for the transaction of business, except to adjourn as provided in Section 12 of this Article. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the board subject to the provisions of Section 310 of the Code (as to approval of contracts or transactions in which a director has a direct or indirect material financial interest), Section 311 of the Code (as to appointment of committees), and Section 317(e) of the Code (as to indemnification of directors). A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for such meeting.
Section 11. WAIVER OF NOTICE. Notice of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. A waiver of notice need not specify the purpose of any regular or special meeting of the board of directors.
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Section 12. ADJOURNMENT. A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.
Section 13. NOTICE OF ADJOURNMENT. If the meeting is adjourned for more than 24 hours, notice of any adjournment to another time and place shall be given before the time of the adjourned meeting to the directors who were not present at the time of the adjournment.
Section 14. ACTION WITHOUT MEETING. Any action required or permitted to be taken by the board may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to such action. Such written consent or consents shall have the same force and effect as a unanimous vote of the board of directors and shall be filed with the minutes of the proceedings of the board.
Section 15. FEES AND COMPENSATION OF DIRECTORS. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement of expenses, as may be fixed or determined by the board from time to time.
Section 16. COMMITTEES OF DIRECTORS. The board may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of two or more directors, to serve at the pleasure of the board. The board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors. The board may delegate to such committees any of the authority of the board, except with respect to:
(a) The approval of any action which, under the Code, also requires shareholders’ approval or approval of the outstanding shares;
(b) The filling of vacancies on the board or on any committee;
(c) The fixing of compensation of the directors for serving on the board or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board of directors which by its express terms is not so amendable or repealable;
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(f) A distribution to the shareholders of the corporation, except at a rate or in a periodic amount or within a price range determined by the board; or
(g) The appointment of any other committees of the board or the members thereof.
ARTICLE IV OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a president, a secretary, and a chief financial officer. The corporation may also have, at the discretion of the board, a chairman of the board, one or more vice presidents, one or more assistant secretaries, a treasurer, one or more assistant treasurers, and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article. Any number of offices may be held by the same person.
Section 2. ELECTION OF OFFICERS. The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article, shall be chosen by the board of directors, and each shall serve at the pleasure of the board, subject to the rights, if any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The board may appoint, and may empower the president to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the bylaws or as the board may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Without prejudice to the rights, if any, under any contract of employment, any officer may be removed, either with or without cause, by the board of directors or, except in case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred by the board.
Any officer may resign at any time by giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.
Section 5. VACANCIES IN OFFICES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these bylaws for regular appointments to that office.
Section 6. CHAIRMAN OF THE BOARD. The chairman of the board, if such an
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officer be elected, shall, if present, preside at meetings of the board and exercise and perform such other powers and duties as may from time to time be assigned to him by the board. If there is no president, the chairman of the board shall also be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 7 of this Article.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be given by the board of directors to the chairman of the board, if there be such an officer, the president is the general manager and chief executive officer of the corporation, and subject to the control of the board of directors, has general supervision, direction, and control of the business and the officers of the corporation. The president shall preside at all meetings of the shareholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the board. The president shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the board.
Section 8. VICE PRESIDENTS. In the absence or disability of the president, the vice presidents, if any, in order of their rank as fixed by the board or, if not ranked, the vice president designated by the board, shall perform all the duties of the president, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors.
Section 9. SECRETARY. The secretary shall keep or cause to be kept, at the principal executive office and such other place as the board may direct, a copy of these Bylaws and a book of minutes of all meetings of directors, committees of directors, and shareholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice given, the names of those present at directors’ meetings or committee meetings, the number of shares present or represented at shareholders’ meetings, and the proceedings.
The secretary shall keep or cause to be kept at the principal executive office or at the office of the corporation’s transfer agent or registrar, as determined by the board, a share register, or a duplicate share register, showing the names of all shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the board required by these bylaws or by law to be given, and shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the board of directors.
Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall keep and
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maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, and shall send or cause to be sent to the shareholders such financial statements as are required by law or these Bylaws.
The chief financial officer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the board. The chief financial officer shall disburse the funds of the corporation as may be ordered by the board, shall render to the president and directors, whenever they request it, an account of all of his or her transactions as chief financial officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors.
The chief financial officer shall, unless otherwise designated by the Board, be the Treasurer of the corporation.
ARTICLE V INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
Section 1. DEFINITIONS. For the purposes of this Article V, “agent” means any person who is or was a director, officer, employee or other agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation; “proceeding” means any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative; and “expenses” includes without limitation attorneys’ fees and any expenses of establishing a right to indemnification under Section 4 of this Article V or paragraph (3) of Section 5 of this Article V.
Section 2. ACTIONS BY THIRD PARTIES. The corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the corporation or that the person had reasonable cause to believe that the person’s conduct was
14
unlawful.
Section 3. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith and in a manner such person believed to be in the best interests of the corporation and its shareholders.
No indemnification shall be made pursuant to this Section 3:
(1) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation in the performance of such person’s duty to the corporation and its shareholders, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for expenses and then only to the extent that the court shall determine;
(2) Of amounts paid in settling or otherwise disposing of a pending action without court approval; or
(3) Of expenses incurred in defending a pending action which is settled or otherwise disposed of without court approval.
Section 4. MANDATORY INDEMNIFICATION. To the extent that an agent of the corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or Section 3 of this Article V or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith.
Section 5. AUTHORIZATION OF INDEMNIFICATION. With respect to indemnification under Section 2 or Section 3 of this Article V (but not with respect to indemnification under Section 4 of this Article V), a determination whether indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or Section 3 of this Article V, shall be made by any of the following within ninety (90) days following the conclusion, termination, settlement or other resolution of a proceeding with respect to an agent:
15
(1) A majority vote of a quorum consisting of directors who were not parties to such proceeding; or
(2) If such a quorum of directors is not obtainable, by independent legal counsel in a written opinion; or
(3) Approval of the shareholders (as defined in Section 153 of the Code), with the shares owned by the person to be indemnified not being entitled to vote thereon; or
(4) The court in which such proceeding is or was pending upon application made by the corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the corporation.
Section 6. ADVANCED EXPENSES. Expenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount if it shall be determined ultimately that the agent is not entitled to be indemnified as authorized in this Article V.
Section 7. LIMITATIONS. Except as provided in Section 4 of this Article V or paragraph (3) of Section 5 of this Article V, no indemnification or advance shall be made by the corporation in any circumstance where it appears:
(1) That it would be inconsistent with a provision of the articles of incorporation of the corporation, these bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
Section 8. OTHER RIGHTS AND REMEDIES. The indemnification provided by this Article V shall not be deemed exclusive of, and shall not affect, any other rights to which an agent seeking indemnification may be entitled under any law, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office; provided, however, that no indemnification shall be provided pursuant to this Article V or otherwise for any acts or
16
omissions or transactions from which a director may not be relieved of liability as set forth in Section 204(a)(10) of the Code or as to circumstances in which indemnification is expressly prohibited by Section 317 of the Code. The indemnification provided by this Article V shall continue as to a person who has ceased to be an agent and shall inure to the benefit of the heirs, executors and administrators of such person. All rights to indemnification under this Article V shall be deemed to be provided by a contract between the corporation and the agent who serves in such capacity at any time while these bylaws and other relevant provisions of the Code and other applicable law, if any, are in effect. Any repeal or modification of these bylaws or any such law shall not affect any rights or obligations existing at the time of such repeal or modification.
Section 9. FUNDING OF INDEMNIFICATION. The corporation shall have power to purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent’s status as such whether or not the corporation would have the power to indemnify the agent against such liability under the provisions of this Article V. The company issuing such a policy of insurance may be owned in whole or in part by the corporation if:
(1) The policy issued is limited to the extent provided by Section 204(a)(11) of the Code; or
(2) (A) The company issuing the insurance policy is organized, licensed, and operated in a manner that complies with the insurance laws and regulations applicable to its jurisdiction of organization, (B) the company issuing the policy provides procedures for processing claims that do not permit that company to be subject to the direct control of the corporation that purchased the policy, and (C) the policy issued provides for some manner of risk sharing between the issuer and purchaser of the policy, on the one hand, and some unaffiliated person or persons, on the other hand, such as by providing for more than one unaffiliated owner of the company issuing the policy or by providing that a portion of the coverage furnished will be obtained from some unaffiliated insurer or reinsurer. The corporation may create a trust fund, grant a security interest or use other means (including, but not limited to, a letter of credit or a pledge of cash or cash equivalent) to ensure the payment of such sums as may be needed to fund indemnification as provided herein.
Section 10. INDEMNIFICATION OF THIRD PARTIES. Nothing contained in this Article V shall affect any right to indemnification to which persons other than directors and officers of the corporation may be entitled by contract or otherwise.
Section 11. SAVINGS CLAUSE. If this Article V or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent as to expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, including an action by or in the right of the corporation to procure a judgment in its favor, to the full extent permitted by any
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applicable portion of this Article V or as permitted by any other applicable law, agreement, vote of stockholders or disinterested directors or otherwise.
ARTICLE VI RECORDS AND REPORTS
Section 1. INSPECTION OF SHARE REGISTER. The corporation shall keep either at its principal executive office or at the office of its transfer agent or registrar (if either be appointed), as determined by resolution of the board of directors, a record of its shareholders listing the names and addresses of all shareholders and the number and class of shares held by each shareholder.
A shareholder or shareholders of the corporation holding at least 5% in the aggregate of the outstanding voting shares of the corporation (or who hold at least 1% of such voting shares and have filed a schedule 14-B with the S.E.C.) relating to the election of directors of the corporation can (i) inspect and copy the records of shareholders’ names and addresses and shareholdings during usual business hours on five business days’ prior written demand upon the corporation, and/or (ii) obtain from the transfer agent of the corporation, upon written demand and upon the tender of such transfer agent’s usual charges for such list, a list of the shareholders’ names and addresses, who are entitled to vote for election of directors, and their shareholdings, as of the most recent record date for which that list has been compiled or as of a date specified by the shareholder after the date of demand. This list shall be made available to any such shareholder by the transfer agent on or before the later of five business days after the demand is received or the date specified in the demand as the date as of which the list is to be compiled. The record of shareholders shall also be open to inspection and copying on the written demand of any shareholder or holder of a voting trust certificate, at any time during usual business hours, for a purpose reasonably related to the holder’s interests as a shareholder or as the holder of a voting trust certificate. Any inspection and copying under this Section may be made in person or by an agent or attorney of the shareholder or holder of a voting trust certificate making the demand.
Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall keep at its principal executive office, or if its principal executive office is not in the State of California, at its principal business office in the State of California, the original or a copy of these Bylaws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours. If the principal executive office of the corporation is outside the State of California and the corporation has no principal business office in the State of California, the secretary of the corporation shall, upon the written request of any shareholder, furnish to that shareholder a copy of these Bylaws as amended to date.
Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The accounting books and records and minutes of proceedings of the shareholders and the board of directors and any committee or committees of the board shall be kept at the
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principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar. The minutes shall be kept in written form and the accounting books and records shall be kept either in written form or in any other form capable of being converted into written form. The minutes and accounting books and records shall be open to inspection upon the written demand of any shareholder or holder of a voting trust certificate, at any reasonable time during usual business hours, for a purpose reasonably related to the holder’s interest as a shareholder or as a holder of a voting trust certificate. The inspection may be made in person or by an agent or attorney, and shall include the right to copy and make extracts. These rights of inspection shall extend to the records of each subsidiary corporation of the corporation
Section 4. INSPECTION BY DIRECTORS. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of every kind and the physical properties of the corporation and each of its subsidiary corporations. This inspection by a director may be made in person or by an agent or attorney and the right of inspection includes the right to copy and make extracts of documents.
Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders referred to in Section 1501 of the California Corporations Code is expressly waived (so long as this corporation has less than 100 shareholders), but nothing herein shall be interpreted as prohibiting the board from issuing annual or other periodic reports to shareholders of the corporation.
ARTICLE VII GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes of determining the shareholders entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action (other than with respect to notice or voting at a shareholders meeting or action by shareholders by written consent without a meeting), the board of directors may fix, in advance, a record date, which shall not be more than 60 days before any such action, and in that case only shareholders of record at the close of business on the date so fixed are entitled to receive the dividend, distribution, or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided in the Code.
If the board of directors does not so fix a record date, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the board adopts the applicable resolution or the 60th day before the date of that action, whichever is later.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts, or other orders for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons
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and in such manner as, from time to time, shall be determined by the board of directors.
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED. The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and this authority may be general or confined to specific instances; and, unless so authorized or ratified by the board or within the agency power of an officer, no officer, agent, or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purposes or for any amount.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for shares of the capital stock of the corporation shall be issued to each shareholder when any of these shares are fully paid, and the board may authorize the issuance of certificates for shares as partly paid provided that these certificates shall state the amount of the consideration to be paid for them and the amount paid. All certificates shall be signed in the name of the corporation by the chairman of the board, president, or vice president, and by the chief financial officer or an assistant treasurer or the secretary or any assistant secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any or all of the signatures on the certificate may be by facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed on a certificate shall have ceased to be that officer, transfer agent, or registrar before that certificate is issued, it may be issued by the corporation with the same effect as if that person were an officer, transfer agent, or registrar at the date of issue.
Section 5. LOST CERTIFICATES. Except as provided in this Section, no new certificates for shares shall be issued to replace an old certificate unless the latter is surrendered to the corporation and cancelled at the same time. The board, in case any share certificate or certificate for any other security is lost, stolen or destroyed, may authorize the issuance of a replacement certificate on such terms and conditions as the board may require, including provision for indemnification of the corporation secured by a bond or other adequate security sufficient to protect the corporation against any claim that may be made against it, including any expense or liability, on account of the alleged loss, theft, or destruction of the certificate or the issuance of the replacement certificate.
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chairman of the board, the president, or any vice president, or any other person authorized by resolution of the board of directors or by any of the foregoing designated officers, is authorized to vote on behalf of the corporation any and all shares of any other corporation or corporations, foreign or domestic, standing in the name of the corporation. The authority granted to these officers to vote or represent on behalf of the corporation any and all shares held by the corporation in any other corporation or corporations may be exercised by any of these officers in
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person or by any person authorized to do so by a proxy duly executed by these officers.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the Code shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.
ARTICLE VIII AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these bylaws may be amended or repealed by the vote or written consent of holders of a majority of the outstanding shares entitled to vote; provided, however, that if the articles of incorporation of the corporation set forth the number of authorized directors of the corporation, the authorized number of directors may be changed only by an amendment of the articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the shareholders as provided in Section 1 of this Article, bylaws, other than a bylaw or an amendment of bylaws changing the authorized number of directors (except to fix the authorized number of directors pursuant to a bylaw providing for a variable number of directors), may be adopted, amended, or repealed by the board of directors.
Section 3. RECORD OF AMENDMENTS. Whenever an amendment or new bylaw is adopted, it shall be copied in the minute book with the original bylaws. If any bylaw is repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted or written consent was filed, shall be stated in the minute book.
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ADOPTION BY INCORPORATOR
The undersigned is the sole Incorporator of this corporation and hereby adopts the foregoing Bylaws, comprising in addition to the index and this page, 21 numbered pages, as the initial Bylaws of this corporation.
DATED: October 28, 2002
P. Jerold Walsh,
Sole Incorporator
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CERTIFICATE OF SECRETARY
I, the undersigned, certify that I am the duly elected and acting Secretary of K. Hovnanian Enterprises, Inc., a California corporation, and that the foregoing Bylaws, comprising 22 pages, constitute the Bylaws of said corporation as duly adopted by the Incorporator of this corporation on October 28, 2002.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 28th day of October 28, 2002.
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/s/ Peter S. Reinhart |
, Secretary |
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Peter S. Reinhart |
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23
BYLAWS OF
K. Hovnanian Enterprises, Inc.,
a California Corporation
INDEX
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Article I - OFFICES |
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Section 1 - |
PRINCIPAL OFFICE |
1 |
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Article II - MEETINGS OF SHAREHOLDERS |
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Section 1 - |
PLACE OF MEETINGS |
1 |
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Section 2 - |
ANNUAL MEETING |
1 |
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Section 3 - |
SPECIAL MEETING |
1 |
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Section 4 - |
NOTICE OF SHAREHOLDERS’ MEETINGS |
2 |
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Section 5 - |
MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE |
2 |
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Section 6 - |
QUORUM |
3 |
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Section 7 - |
ADJOURNED MEETING; NOTICE |
3 |
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Section 8 - |
VOTING |
3 |
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Section 9 - |
WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS |
4 |
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Section 10 - |
SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
4 |
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Section 11 - |
RECORD DATE FOR SHAREHOLDER NOTICE; VOTING AND GIVING CONSENTS |
5 |
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Section 12 - |
PROXIES |
6 |
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Section 13 - |
INSPECTORS OF ELECTION |
6 |
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Article III - DIRECTORS |
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Section 1 - |
POWERS |
7 |
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Section 2 - |
NUMBER AND QUALIFICATIONS OF DIRECTORS |
8 |
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Section 3 - |
ELECTION AND TERM OF OFFICE |
8 |
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Section 4 - |
REMOVAL |
8 |
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Section 5 - |
RESIGNATION AND VACANCIES |
9 |
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Section 6 - |
PLACE OF MEETINGS AND MEETINGS BY TELEPHONE |
9 |
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Section 7 - |
ANNUAL MEETING |
10 |
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Section 8 - |
OTHER REGULAR MEETINGS |
10 |
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Section 9 - |
SPECIAL MEETINGS |
10 |
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Section 10 - |
QUORUM |
10 |
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Section 11 - |
WAIVER OF NOTICE |
10 |
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1
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Section 12 - |
ADJOURNMENT |
11 |
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Section 13 - |
NOTICE OF ADJOURNMENT |
11 |
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Section 14 - |
ACTION WITHOUT MEETING |
11 |
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Section 15 - |
FEES AND COMPENSATION OF DIRECTORS |
11 |
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Section 16 - |
COMMITTEES OF DIRECTORS |
11 |
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Article IV - OFFICERS |
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Section 1 - |
OFFICERS |
12 |
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Section 2 - |
ELECTION OF OFFICERS |
12 |
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Section 3 - |
SUBORDINATE OFFICERS |
12 |
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Section 4 |
REMOVAL AND RESIGNATION OF OFFICERS |
12 |
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Section 5 - |
VACANCIES IN OFFICES |
12 |
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Section 6 - |
CHAIRMAN OF THE BOARD |
12 |
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Section 7 - |
PRESIDENT |
13 |
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Section 8 - |
VICE PRESIDENTS |
13 |
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Section 9 - |
SECRETARY |
13 |
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Section 10 - |
CHIEF FINANCIAL OFFICER |
13 |
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Article V - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS |
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Section 1 - |
DEFINITIONS |
14 |
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Section 2 - |
ACTIONS BY THIRD PARTIES |
14 |
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Section 3 - |
ACTIONS BY OR IN THE RIGHT OF THE CORPORATION |
15 |
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Section 4 - |
MANDATORY INDEMNIFICATION |
15 |
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Section 5 - |
AUTHORIZATION OF INDEMNIFICATION |
15 |
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Section 6 - |
ADVANCED EXPENSES |
16 |
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Section 7 - |
LIMITATIONS |
16 |
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Section 8 - |
OTHER RIGHTS AND REMEDIES |
16 |
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Section 9 - |
FUNDING OF INDEMNIFICATION |
17 |
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Section 10 - |
INDEMNIFICATION OF THIRD PARTIES |
17 |
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Section 11 - |
SAVINGS CLAUSE |
17 |
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Article VI - RECORDS AND REPORTS |
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Section 1 - |
INSPECTION OF SHARE REGISTER |
18 |
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Section 2 - |
MAINTENANCE AND INSPECTION OF BYLAWS |
18 |
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Section 3 - |
MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS |
18 |
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Section 4 - |
INSPECTION BY DIRECTORS |
19 |
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Section 5 - |
ANNUAL REPORT TO SHAREHOLDERS |
19 |
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Article VII - GENERAL CORPORATE MATTERS |
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Section 1 - |
RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING |
19 |
2
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Section 2 - |
CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS |
19 |
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Section 3 - |
CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED |
20 |
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Section 4 - |
CERTIFICATES FOR SHARES |
20 |
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Section 5 - |
LOST CERTIFICATES |
20 |
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Section 6 - |
REPRESENTATION OF SHARES OF OTHER CORPORATIONS |
20 |
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Section 7 - |
CONSTRUCTION AND DEFINITIONS |
21 |
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Article VIII - AMENDMENTS |
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Section 1 - |
AMENDMENT BY SHAREHOLDERS |
21 |
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Section 2 - |
AMENDMENT BY DIRECTORS. |
21 |
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Section 3 - |
RECORD OF AMENDMENTS |
21 |
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ADOPTION BY INCORPORATOR |
22 |
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CERTIFICATE OF SECRETARY |
23 |
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3
Exhibit 3.42
CERTIFICATE OF INCORPORATION
OF
[ ],
INC.
The name of the corporation is [ ], Inc. (hereinafter, the “Corporation”).
[The corporation shall not have members.]
[The corporation shall only have members, which are not entitled to vote.]
[The corporation shall have one class of members.]
[The corporation shall have multiple classes of members which classes are designated as follows: [ ].]
The name and address of the Registered Agent are [ ].
Acceptance of the appointment of the Registered Agent
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Signature of Agent |
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The purpose of the Corporation is [ ].
Dated this day of , 20 .
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Signature of incorporator |
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Printed name |
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Address |
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Signature of incorporator |
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Printed name |
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Address |
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Signature of incorporator |
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Printed name |
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Address |
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Signature of incorporator |
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Printed name |
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Address |
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Exhibit 3.43
Articles of Incorporation
Of
[ ], Inc.
Article 1.
The name of the corporation is [ ], Inc.
Article 2.
The corporation is authorized to issue [ ] shares. [Number may not be “0”.]
Article 3.
The street address of the registered office is [ ], Georgia [ ]. The registered agent at such address is [ ]. [The registered office address must be a street address at which the agent may be personally located.] The county of the registered office is [ ].
Article 4.
The name and address of each incorporator is:
[ ]
[ ]
Article 5.
The principal mailing address of the corporation is [ ], GA [ ].
IN WITNESS WHEREOF, the undersigned has executed these Articles of Incorporation.
This [ ] day of [ ], 200[ ].
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Exhibit 3.44
ARTICLES OF INCORPORATION
OF
[ ],
INC.
The name of the corporation is [ ], Inc. (hereinafter, the “Corporation”).
The Initial Registered Agent is [ ].
Initial Registered Agent’s address is [ ].
The purpose of the Corporation is [ ].
Authorized Shares, Issued Shares and Consideration Received:
Class: [ ]
Number of Shares Authorized: [ ]
Number of Shares Proposed to be Issued: [ ]
Consideration to be Received Thereof: [ ]
Total: [ ]
The preferences, qualifications, limitations, restrictions and special or relative rights in respect of the shares of each class are: [ ].
The number of Directors constituting the initial board of directors of the corporation is [ ].
The names and Addresses of persons serving as directors until the first annual meeting of shareholders or until their successors are elected and qualify are as follows:
[ ]
[ ]
It is estimated that the value of the property to be owned by the corporation for the following year wherever located will be $[ ].
It is estimated that the value of the property to be located within the State of Illinois during the following year will be $[ ].
It is estimated that the gross amount of business that will be transacted by the corporation during the following year will be $ [ ].
It is estimated that the gross amount of business that will be transacted from places of business in the State of Illinois during the following year will be $[ ].
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the statements made in the foregoing Articles of Incorporation are true.
Dated [ ]
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Exhibit 3.45
ARTICLES OF INCORPORATION
OF
[ ],
INC.
The undersigned, desiring to form a corporation (hereinafter referred to as “Corporation”) pursuant to the provisions of [Indiana Business Corporation Law/ Indiana Professional Corporation Act 1983, Indiana Code 23-1.5-1-1, et seq. (Professional corporations must include Certificate of Registration.)] as amended, executes the following Articles of Incorporation:
ARTICLE I - NAME AND PRINCIPAL OFFICE
The name of the corporation is [ ], Inc. (hereinafter, the “Corporation”).
The principal office is [ ].
ARTICLE II - REGISTERED OFFICE AND AGENT
The name and street address of the Corporation’s Registered Agent and Registered Office for service of process are [ ].
ARTICLE III - AUTHORIZED SHARES
Number of shares the Corporation is authorized to issue:
ARTICLE IV - INCORPORATORS
The names of and addresses of each of the Incorporators are [ ].
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This instrument was prepared by:[ ]
Address: [ ]
Exhibit 3.46
ARTICLES OF INCORPORATION
OF
[ ],
INC.
Article I: The name of the corporation is [ ]
Article II: The number of shares the corporation is authorized to issue is [ ].
Article III: The street address of the corporation’s initial registered office in Kentucky is [ ], and the name of the initial registered agent at that office is [ ].
Article IV: The mailing address of the corporation’s principal office is [ ].
Article V: The name and mailing address of each incorporator is
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I, [ ], consent to serve as the registered agent on behalf of the corporation.
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Exhibit 3.47
ARTICLES OF INCORPORATION
OF
[ ],
INC.
The name of the business corporation is [ ], Inc. (hereinafter, the “Corporation”).
The purpose of the Corporation is [ ].
The aggregate number of shares which the corporation is authorized to issue is [ ].
NUMBER OF SHARES [ ], CLASS OF SHARES [ ], PAR VALUE OF SHARES [ ], TOTAL AMOUNT [ ].
The preferences, qualifications, limitations, restrictions, and special or relative rights of the shares of each class are [ ].
The provisions limiting or denying to shareholders the preemptive right to acquire additional shares of the corporation are [ ].
The provisions for the regulation of the internal affairs of the corporation are [ ]
The name and address of the Registered Agent are [ ].
The number of directors constituting the initial board of directors and the name and address of the person who is to serve as director until the first annual meeting of shareholders or until successor is elected are [ ].
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Exhibit 3.48
BYLAWS
OF
[ ]
(A Connecticut Corporation)
ARTICLE I. OFFICE.
The principal office of the Corporation in the State of Connecticut is at [ ], Connecticut, County of [ ].
ARTICLE II. SHAREHOLDERS’ MEETINGS.
Section 1. Annual Meetings.
(a) The annual meeting of the shareholders of the Corporation, commencing with the year 200[ ] shall be held at the principal office of the Corporation in the State of Connecticut or at any other place within or without the State of Connecticut as may be determined by the Board of Directors and as may be designated in the notice of that meeting.
The meeting shall be held on the 28th of February of each year. If that day is a legal holiday, the meeting shall be held on the next succeeding day not a legal holiday. The business to be transacted at the meeting shall be the election of directors and such other business as properly brought before the meeting.
(b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the shareholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held.
(c) No change in the time or place for a meeting for the election of directors shall be made within 20 days preceding the day on which the election is to be held. Written notice of any change shall be given each shareholder at least 20 days before the election is held, either in person or by letter mailed to the shareholder at the address last shown on the books of the Corporation.
(d) In the event the annual meeting is not held at the time prescribed in Article II, Section I(a) above, and if the Board of Directors shall not call a special meeting as prescribed in Article II, Section l(b) above within three months after the date prescribed for the annual meeting, then any shareholder may call that meeting, and at that meeting the shareholders may elect the directors and transact other business with the same force and effect as at an annual meeting duly called and held.
Section 2. Special Meetings.
Special meetings of the shareholders may be called by the Board of Directors or by the holders of at least ten percent (10%) of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Secretary to send out notices of the meeting, to be held within or without the State of Connecticut and at such time, but not less than 10 days nor more than 60 days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Secretary within the above limits.
Section 3. Notice and Purpose of Meeting;, Waiver.
Each shareholder of record entitled to vote at any meeting shall be given in person, or by mail, or by prepaid telegram, written or printed notice of the purpose or purposes, and the time and place within or outside the State of Connecticut of every meeting of shareholders. This notice shall be delivered not less than 10 days no more than 60 days before the meeting. If mailed or telegraphed, it should be directed to the shareholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A shareholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the shareholders.
Section 4. Quorum.
Except as otherwise provided by law, a quorum at all meetings of shareholders shall consist of the holders of record of a majority of the shares entitled to vote present in person or by proxy.
Section 5. Closing of Transfer Books; Record Date.
(a) In order to determine the holders of record of the Corporation’s stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the shareholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the Stock Transfer Books be closed for a period not to exceed sixty days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the Stock Transfer Books
shall be closed for at least thirty days preceding such meeting.
(b) In lieu of closing the Stock Transfer Books, the Board of Directors may fix a date as the record date for the determination of shareholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a shareholders’ meeting, shall it be less than thirty days in advance of such meeting.
(c) If the Stock Transfer Books are not closed and no record date is fixed for the determination of the shareholders of record, the date of which notice of the meeting is mailed, or on which the resolution of the Board of Directors declaring a dividend is adopted, as the case may be, shall be the record date for the determination of shareholders.
(d) When a determination of shareholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the Stock Transfer Books and the stated period of closing has expired.
Section 6. Presiding Officer; Order of Business.
(a) Meetings of the shareholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the Chief Executive Officer, or if not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board nor the Chief Executive Officer nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the shareholders entitled to vote at the meeting who are present in person or by proxy. The Secretary of the Corporation, or, in her or his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the shareholders present at the meeting shall choose any person present to act as secretary of the meeting.
(b) The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 7. Voting.
(a) Except in the election of directors, at which time the shareholders shall be entitled to cumulate their votes, and except as otherwise provided in the Articles of Incorporation, the Bylaws, or the laws of the State of Connecticut at every meeting of the shareholders, each shareholder of the Corporation entitled to vote at the meeting shall have, as to each matter
submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A shareholder may vote his or her shares through a proxy appointed by a written instrument signed by the shareholder or by a duly authorized attorney-in-fact and delivered to the secretary of the meeting. No proxy shall be valid after three months from the date of its execution unless a longer period is expressly provided.
(b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect.
(c) At all elections of directors, the voting shall be by ballot.
Section 8. List of Shareholders.
(a) A complete list of the shareholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each shareholder shall be prepared by the Secretary or other officer of the Corporation having charge of the Stock Transfer Books. This list shall be kept on file for a period of at least ten days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any shareholder. This list shall also be available at the meeting and shall be open to inspection by any shareholder at any time during the meeting.
(b) The original Stock Transfer Books shall be prima facie evidence as to who are the shareholders entitled to examine the list or to vote at any meeting of the shareholders.
(c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the shareholders.
ARTICLE III. DIRECTORS.
Section 1. Number, Qualification, Term, Quorum, and Vacancies.
(a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of [number of directors] persons. Except as provided, directors shall be elected at the annual meeting of the shareholders and each director shall serve for one year and/or until his or her successor shall be elected and qualify.
(b) The number of directors may be increased or decreased from time to time by an amendment to these Bylaws. Any increased number of directors shall be elected by the shareholders at the next regular annual meeting or at a special meeting called for that purpose. The number of directors shall never be less than one.
(c) Directors need not be shareholders of the Corporation.
(d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, other than vacancies created by the removal of a director or directors by the shareholders or by an increase in the number of directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms.
Section 2. Meetings.
Meetings of the Board of Directors may be held either within or without the State of Connecticut. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the Chief Executive Officer, the President, or a Vice-President, or a majority of directors, upon written or telegraphic notice deposited in the U.S. mail or delivered to the telegraph company at least thirty days prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the shareholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting.
Section 3. Removal.
(a) At any meeting of the shareholders, any director or directors may be removed from office, without assignment of any reason, by a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, provided, however, that if less than all the directors are to be removed, no individual director shall be removed if the number of votes cast against her or his removal would be sufficient, if cumulatively voted at an election of the entire board, to elect one or more directors.
(b) When any director or directors are removed, new directors may be elected at the same meeting of the shareholders for the unexpired term of the director or directors removed. If the shareholders fail to elect persons to fill the unexpired term or terms of the director or directors removed, these unexpired terms shall be considered vacancies on the board to be filled by the remaining directors.
Section 4. Indemnification.
(a) The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which the individual may have been made a party because he or she is or was a director, officer or employee of the Corporation. The individual shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties, or was derelict in the performance of his or her duty as director, officer or employee by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the duties of his or her office or employment. The right to indemnity for expenses shall also apply to the expenses of suits which are compromised or settled if the court having jurisdiction of the matter shall approve such settlement.
(b) The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to that which such director, officer or employee may be entitled.
Section 5. Compensation.
Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.
Section 6. Committees.
(a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of at least three members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee.
(b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided.
Section 7. Dividends.
Subject always to the provisions of law and the Articles of Incorporation, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the shareholders of the Corporation. The Board of Directors may fix a sum which may be set aside or reserved over and above the paid-in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary this fund in the Board’s absolute judgment and discretion.
ARTICLE IV. OFFICERS.
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice-Presidents, a Treasurer, a Controller, a Secretary, and one or more Assistant Secretaries. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Any person may hold two, but no more than two, offices.
Section 2. Term of Office.
The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the shareholders’ annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his, death, resignation, or removal.
Section 3. Removal.
Any officer may be removed from office with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Such removal shall not prejudice the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5. Duties.
(a) The Chairman of the Board shall preside at all meetings of the shareholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors.
(b) The Chief Executive Officer shall have general active management of the business of the corporation, and in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors; and shall see that all orders and resolutions of the Board of Directors are carried into effect.
(c) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and shareholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors.
(d) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors.
(e) The Secretary, the Treasurer, and the Controller shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Incorporation or these Bylaws. The Assistant Secretaries, in the order of their seniority, shall, in the absence of the Secretary, perform the duties and exercise the powers of the Secretary, and shall perform any other duties as may be assigned by the Board of Directors.
(f) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time.
(g) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select.
Section 6. Salaries.
The salaries of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefore.
ARTICLE V. CERTIFICATES OF STOCK.
Section 1. Form.
(a) The interest of each shareholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Incorporation as the Board of Directors may from time to time prescribe.
(b) The certificates of stock shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer, and sealed with the seal of the corporation. This seal may be a facsimile, engraved or printed. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Secretary, Assistant Secretary, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue.
Section 2. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class.
Section 3. Transfers.
(a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid.
(b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Secretary of the Corporation, or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer may record that fact.
Section 4. Lost, Destroyed, or Stolen Certificates
No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require.
Section 5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.
ARTICLE VI. CORPORATE ACTIONS.
Section 1. Deposits.
The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation.
Section 2. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII. CORPORATE SEAL.
The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center of which shall be inscribed the year of its incorporation and the words “Corporate Seal, State of Connecticut”.
ARTICLE VIII. AMENDMENT OF BYLAWS.
The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted, provided that notice of the proposal to make, alter, amend, or repeal the Bylaws was included in the notice of the directors’ meeting at which such action takes place. At the next shareholders’ meeting following any action by the Board of Directors, the shareholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such shareholders’ meeting shall include notice that the shareholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws.
I hereby certify that the foregoing is a full, true and correct copy of the Bylaws of [ ], a corporation of the State of Connecticut, as in effect on the date hereof.
WITNESS my hand and the seal of the corporation this [ ].
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[ ] |
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(SEAL)
Exhibit 3.49
BYLAWS
OF
[ ]
(A Georgia Corporation)
ARTICLE I. OFFICE.
The principal office of the Corporation in the State of Georgia is at [ ], Georgia [ ], County of [ ].
ARTICLE II. STOCKHOLDERS’ MEETINGS.
Section 1. Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation, commencing with the year 200[ ], shall be held at the principal office of the Corporation in the State of Georgia or at any other place within or without the State of Georgia as may be determined by the Board of Directors and as may be designated in the notice of that meeting.
The meeting shall be held on the 28th day of February of each year. If that day is a legal holiday, the meeting shall be on the next succeeding day not a legal holiday. The business to be transacted at the meeting shall be the election of directors and such other business as properly brought before the meeting.
(b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the stockholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held.
(c) No change in the time or place for a meeting for the election of directors shall be made within 20 days proceeding the day on which the election is to be held. Written notice of any change shall be given each stockholder at least 20 days before the election is held, either in person or by letter mailed to the stockholder at the address last shown on the books of the Corporation.
(d) In the event the annual meeting is not held at the time prescribed in Article II, Section I(a) above, and if the Board of Directors shall not call a special meeting as prescribed in Article II, Section l(b) above within three months after the date prescribed for the annual meeting, then any stockholder may call that meeting, and at that meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual meeting duly called and held.
Section 2. Special Meetings.
Special meetings of the stockholders may be called by the President or by the holders of at least 10 percent (%) of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Secretary to send out notices of the meeting, to be held within or without the State of Georgia and at such time, but not less than 20 days nor more than 45 days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Secretary within the above limits.
Section 3. Notice and Purpose of Meetings; Waiver.
Each stockholder of record entitled to vote at any meeting shall be given in person, or by mail, or by prepaid telegram, written or printed notice of the purpose or purposes, and the time and place within or outside the State of Georgia of every meeting of stockholders. This notice shall be delivered not less than 10 days nor more than 60 days before the meeting. If mailed or telegraphed, it should be directed to the stockholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the stockholders.
Section 4. Quorum.
Except as otherwise provided by law, a quorum at all meetings of stockholders shall consist of the holders of record of a majority of the shares entitled to vote present in person or by proxy.
Section 5. Closing of Transfer Books; Record Date.
(a) In order to determine the holders of record of the Corporation’s stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the stockholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the Stock Transfer Books be closed for a period not to exceed sixty days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the Stock Transfer Books shall be closed for at least thirty days preceding such meeting.
(b) In lieu of closing the Stock Transfer Books, the Board of Directors may fix a date as the record date for the determination of stockholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a stockholders’ meeting, shall it be less then thirty days in advance of such meeting.
(c) If the Stock Transfer Books are not closed and no record date is fixed for the determination of the stockholders of record, the date of which notice of the meeting is mailed, or on which the resolution of the Board of Directors declaring a dividend is adopted, as the case may be, shall be the record date for the determination of stockholders.
(d) When a determination of stockholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the Stock Transfer Books and the stated period of closing has expired.
Section 6. Presiding Officer; Order of Business.
(a) Meetings of the stockholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the Chief Executive Officer, or if not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board nor the Chief Executive Officer nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Secretary of the Corporation, or, in her or his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the stockholders present at the meeting shall choose any person present to act as secretary of the meeting.
(b) The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 7. Voting.
(a) Except in the election of directors, at which time the stockholders shall be entitled to cumulate their votes, and except as otherwise provided in the Articles of Incorporation, the Bylaws, or the laws of the State of Georgia at every meeting of the stockholders, each stockholder of the Corporation entitled to vote at the meeting shall have, as to each matter submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A stockholder may vote his or her shares through a proxy appointed by a written instrument signed by the stockholder or by a duly authorized attorney-in-fact and delivered to the secretary of the meeting. No proxy shall be valid after three months from the date of its execution unless a longer period is expressly provided.
(b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect.
(c) At all elections of directors, the voting shall be by ballot.
Section 8. List of Stockholders.
(a) A complete list of the stockholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each stockholder shall be prepared by the Secretary, or other officer of the Corporation having charge of the Stock Transfer Books. This list shall be kept on file for a period of at least thirty days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any stockholder. This list shall also be available at the meeting and shall be open to inspection by any stockholder at any time during the meeting.
(b) The original Stock Transfer Books shall be prima facie evidence as to who are the stockholders entitled to examine the list or to vote at any meeting of the stockholders.
(c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the stockholders.
ARTICLE III. DIRECTORS.
Section 1. Number, Qualification, Term, Quorum, and Vacancies.
(a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of five (5) persons. Except as provided, directors shall be elected at the annual meeting of the stockholders and each director shall serve for one year and/or until his or her successor shall be elected and qualify.
(b) The number of directors may be increased or decreased from time to time by an amendment to these Bylaws. Any increased number of directors shall be elected by the stockholders at the next regular annual meeting or at a special meeting called for that purpose. The authorized number of directors constituting the Board shall be at least three; provided, however, that so long as the corporation has only one shareholder, the number may be one or two, and so long as the corporation has only two shareholders, the number may be two. Subject to the aforementioned provisions and subject to the provisions of Section 212 of the General Corporation Law, the number of directors may be changed by an amendment of the Bylaws. No decrease in the authorized number of directors shall have the effect of limiting or ending the term of any sitting director.
(c) Directors need not be stockholders of the Corporation.
(d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, other than vacancies created by the removal of a director or directors by the stockholders or by an increase in the number of directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms.
Section 2. Meetings.
Meetings of the Board of Directors may be held either within or without the State of Georgia. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the Chief Executive Officer, the President, or a Vice-President, or a majority of directors, upon written or telegraphic notice deposited in the U.S. mail or delivered to the telegraph company at least thirty days prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting.
Section 3. Removal.
(a) At any meeting of the stockholders, any director or directors may be removed from office, without assignment of any reason, by a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, provided, however, that if less than all the directors are to be removed, no individual director shall be removed if the
number of votes cast against her or his removal would be sufficient, if cumulatively voted at an election of the entire board, to elect one or more directors.
(b) When any director or directors are removed, new directors may be elected at the same meeting of the stockholders for the unexpired term of the director or directors removed. If the stockholders fail to elect persons to fill the unexpired term or terms of the director or directors removed, these unexpired terms shall be considered vacancies on the board to be filled by the remaining directors.
Section 4. Indemnification.
(a) The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which the individual may have been made a party because he or she is or was a director, officer or employee of the Corporation. The individual shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties, or was derelict in the performance of his or her duty as director, officer or employee by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the duties of his or her office or employment. The right to indemnity for expenses shall also apply to the expenses of suits which are compromised or settled if the court having jurisdiction of the matter shall approve such settlement.
(b) The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to that which such director, officer or employee may be entitled.
Section 5. Compensation.
Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.
Section 6. Committees.
(a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of at least three members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each
committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee.
(b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided.
Section 7. Dividends.
Subject always to the provisions of law and the Articles of Incorporation, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the stockholders of the Corporation. The Board of Directors may fix a sum which may be set aside or reserved over and above the paid-in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary this fund in the Board’s absolute judgment and discretion.
ARTICLE IV. OFFICERS.
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice-Presidents, a Treasurer, a Controller, a Secretary, and one or more Assistant Secretaries. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Any person may hold two, but no more than two, offices.
Section 2. Term of Office.
The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the stockholders’ annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his, death, resignation, or removal.
Section 3. Removal.
Any officer may be removed from office with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Such removal shall not prejudice the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5. Duties.
(a) The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors.
(b) The Chief Executive Officer shall have general active management of the business of the corporation, and in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors; and shall see that all orders and resolutions of the Board of Directors are carried into effect.
(c) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the stockholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors.
(d) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors.
(e) The Secretary, the Treasurer, and the Controller shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Incorporation or these Bylaws. The Assistant Secretaries, in the order of their seniority, shall, in the absence of the Secretary, perform the duties and exercise the powers of the Secretary, and shall perform any other duties as may be assigned by the Board of Directors.
(f) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time.
(g) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select.
Section 6. Salaries.
The salaries of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefore.
ARTICLE V. CERTIFICATES OF STOCK.
Section 1. Form.
(a) The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Incorporation as the Board of Directors may from time to time prescribe.
(b) The certificates of stock shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer, and sealed with the seal of the corporation. This seal may be a facsimile, engraved or printed. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Secretary, Assistant Secretary, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue.
Section 2. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class.
Section 3. Transfers.
(a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid.
(b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made
known to the Secretary of the Corporation, or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer may record that fact.
Section 4. Lost, Destroyed, or Stolen Certificates.
No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require.
Section 5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.
ARTICLE VI. CORPORATE ACTIONS.
Section 1. Deposits.
The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation.
Section 2. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII. CORPORATE SEAL.
The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center of which shall be inscribed the year of its incorporation and the words “Corporate Seal, State of Georgia”.
ARTICLE VIII. AMENDMENT OF BYLAWS.
The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt
new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted, provided that notice of the proposal to make, alter, amend, or repeal the Bylaws was included in the notice of the directors’ meeting at which such action takes place. At the next stockholders’ meeting following any action by the Board of Directors, the stockholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such stockholders’ meeting shall include notice that the stockholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws.
I hereby certify that the foregoing is a full, true and correct copy of the Bylaws of [ ]. a corporation of the State of Georgia as in effect on the date hereof.
WITNESS my hand and the seal of the corporation this [ ].
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Peter S. Reinhart, Secretary of |
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(SEAL)
Exhibit 3.50
BYLAWS
OF
[ ]
(An Illinois Corporation)
ARTICLE I. OFFICE.
The principal office of the Corporation in the State of Illinois is at [ ] in the County of [ ].
ARTICLE II. STOCKHOLDERS’ MEETINGS.
Section 1. Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation, commencing with the year 2006, shall be held at the principal office of the Corporation in the State of Illinois or at any other place within or without the State of Illinois as may be determined by the Board of Directors and as may be designated in the notice of that meeting.
The meeting shall be held on the 28th day of February of each year. If that day is a legal holiday, the meeting shall be on the next succeeding day not a legal holiday. The business to be transacted at the meeting shall be the election of directors and such other business as properly brought before the meeting.
(b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the stockholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held.
(c) No change in the time or place for a meeting for the election of directors shall be made within 20 days proceeding the day on which the election is to be held. Written notice of any change shall be given each stockholder at least 20 days before the election is held, either in person or by letter mailed to the stockholder at the address last shown on the books of the Corporation.
(d) In the event the annual meeting is not held at the time prescribed in Article II, Section I(a) above, and if the Board of Directors shall not call a special meeting as prescribed in Article II, Section l(b) above within three months after the date prescribed for the annual meeting, then any stockholder may call that meeting, and at that meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual
meeting duly called and held.
Section 2. Special Meetings.
Special meetings of the stockholders may be called by the President or by the holders of at least 10 percent (%) of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Secretary to send out notices of the meeting, to be held within or without the State of Illinois and at such time, but not less than 20 days nor more than 45 days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Secretary within the above limits.
Section 3. Notice and Purpose of Meetings; Waiver.
Each stockholder of record entitled to vote at any meeting shall be given in person, or by mail, or by prepaid telegram, written or printed notice of the purpose or purposes, and the time and place within or outside the State of Illinois of every meeting of stockholders. This notice shall be delivered not less than 10 days nor more than 60 days before the meeting. If mailed or telegraphed, it should be directed to the stockholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the stockholders.
Section 4. Quorum.
Except as otherwise provided by law, a quorum at all meetings of stockholders shall consist of the holders of record of a majority of the shares entitled to vote present in person or by proxy.
Section 5. Closing of Transfer Books; Record Date.
(a) In order to determine the holders of record of the Corporation’s stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the stockholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the Stock Transfer Books be closed for a period not to exceed sixty days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the Stock Transfer Books shall be closed for at least thirty days preceding such meeting.
(b) In lieu of closing the Stock Transfer Books, the Board of Directors may fix a date as the record date for the determination of stockholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a
stockholders’ meeting, shall it be less then thirty days in advance of such meeting.
(c) If the Stock Transfer Books are not closed and no record date is fixed for the determination of the stockholders of record, the date of which notice of the meeting is mailed, or on which the resolution of the Board of Directors declaring a dividend is adopted, as the case may be, shall be the record date for the determination of stockholders.
(d) When a determination of stockholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the Stock Transfer Books and the stated period of closing has expired.
Section 6. Presiding Officer; Order of Business.
(a) Meetings of the stockholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the Chief Executive Officer, or if not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board nor the Chief Executive Officer nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Secretary of the Corporation, or, in her or his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the stockholders present at the meeting shall choose any person present to act as secretary of the meeting.
(b) The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 7. Voting.
(a) Except in the election of directors, at which time the stockholders shall be entitled to cumulate their votes, and except as otherwise provided in the Articles of Incorporation, the Bylaws, or the laws of the State of Illinois at every meeting of the stockholders, each stockholder of the Corporation entitled to vote at the meeting shall have, as to each matter submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A stockholder may vote his or her shares through a proxy appointed by a written instrument signed by the stockholder or by a duly authorized attorney-in-fact and delivered to the secretary of the meeting. No proxy shall be valid after three months from the date of its execution unless a longer period is
expressly provided.
(b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect.
(c) At all elections of directors, the voting shall be by ballot.
Section 8. List of Stockholders.
(a) A complete list of the stockholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each stockholder shall be prepared by the Secretary, or other officer of the Corporation having charge of the Stock Transfer Books. This list shall be kept on file for a period of at least thirty days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any stockholder. This list shall also be available at the meeting and shall be open to inspection by any stockholder at any time during the meeting.
(b) The original Stock Transfer Books shall be prima facie evidence as to who are the stockholders entitled to examine the list or to vote at any meeting of the stockholders.
(c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the stockholders.
ARTICLE III. DIRECTORS.
Section 1. Number, Qualification, Term, Quorum, and Vacancies.
(a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of five (5) persons. Except as provided, directors shall be elected at the annual meeting of the stockholders and each director shall serve for one year and/or until his or her successor shall be elected and qualify.
(b) The number of directors may be increased or decreased from time to time by an amendment to these Bylaws. Any increased number of directors shall be elected by the stockholders at the next regular annual meeting or at a special meeting called for that purpose. The authorized number of directors constituting the Board shall be at least three; provided, however, that so long as the corporation has only one shareholder, the number may be one or two, and so long as the corporation has only two shareholders, the number may be two. Subject to the aforementioned provisions and subject to the provisions of Section 212 of the General Corporation Law, the number of directors may be changed by an amendment of the Bylaws. No decrease in the authorized number of directors shall have the effect of limiting or ending the term of any sitting director.
(c) Directors need not be stockholders of the Corporation.
(d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, other than vacancies created by the removal of a director or directors by the stockholders or by an increase in the number of directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms.
Section 2. Meetings.
Meetings of the Board of Directors may be held either within or without the State of Illinois. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the Chief Executive Officer, the President, or a Vice-President, or a majority of directors, upon written or telegraphic notice deposited in the U.S. mail or delivered to the telegraph company at least thirty days prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting.
Section 3. Removal.
(a) At any meeting of the stockholders, any director or directors may be removed from office, without assignment of any reason, by a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, provided, however, that if less than all the directors are to be removed, no individual director shall be removed if the number of votes cast against her or his removal would be sufficient, if cumulatively voted at an election of the entire board, to elect one or more directors.
(b) When any director or directors are removed, new directors may be elected at the same meeting of the stockholders for the unexpired term of the director or directors removed. If the stockholders fail to elect persons to fill the unexpired term or terms of the director or directors removed, these unexpired terms shall be considered vacancies on the board to be filled by the remaining directors.
Section 4. Indemnification.
(a) The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which the individual may have been made a party because he or she is or was a director, officer or employee of the Corporation. The individual shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties, or was derelict in the performance of his or her duty as director, officer or employee by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the duties of his or her office or employment. The right to indemnity for expenses shall also apply to the expenses of suits which are compromised or settled if the court having jurisdiction of the matter shall approve such settlement.
(b) The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to that which such director, officer or employee may be entitled.
Section 5. Compensation.
Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.
Section 6. Committees.
(a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of at least three members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee.
(b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided.
Section 7. Dividends.
Subject always to the provisions of law and the Articles of Incorporation, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the stockholders of the Corporation. The Board of Directors may fix a sum which may be set aside or reserved over and above the paid-in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary this fund in the Board’s absolute judgment and discretion.
ARTICLE IV. OFFICERS.
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice-Presidents, a Treasurer, a Controller, a Secretary, and one or more Assistant Secretaries. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Any person may hold two, but no more than two, offices.
Section 2. Term of Office.
The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the stockholders’ annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his, death, resignation, or removal.
Section 3. Removal.
Any officer may be removed from office with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Such removal shall not prejudice the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5. Duties.
(a) The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors.
(b) The Chief Executive Officer shall have general active management of the business of the corporation, and in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors; and shall see that all orders and resolutions of the Board of Directors are carried into effect.
(c) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the stockholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors.
(d) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors.
(e) The Secretary, the Treasurer, and the Controller shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Incorporation or these Bylaws. The Assistant Secretaries, in the order of their seniority, shall, in the absence of the Secretary, perform the duties and exercise the powers of the Secretary, and shall perform any other duties as may be assigned by the Board of Directors.
(f) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time.
(g) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select.
Section 6. Salaries.
The salaries of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefore.
ARTICLE V. CERTIFICATES OF STOCK.
Section 1. Form.
(a) The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Incorporation as the Board of Directors may from time to time prescribe.
(b) The certificates of stock shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer, and sealed with the seal of the corporation. This seal may be a facsimile, engraved or printed. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Secretary, Assistant Secretary, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue.
Section 2. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class.
Section 3. Transfers.
(a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid.
(b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Secretary of the Corporation, or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer may record that fact.
Section 4. Lost, Destroyed, or Stolen Certificates.
No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require.
Section 5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.
ARTICLE VI. CORPORATE ACTIONS.
Section 1. Deposits.
The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation.
Section 2. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII. CORPORATE SEAL.
The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center of which shall be inscribed the year of its incorporation and the words “Corporate Seal, State of Illinois”.
ARTICLE VIII. AMENDMENT OF BYLAWS.
The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted, provided that notice of the proposal to make, alter, amend, or repeal the Bylaws was included in the notice of the directors’ meeting at which such action takes place. At the next stockholders’ meeting following any action by the Board of Directors, the stockholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such stockholders’ meeting shall include notice that the stockholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws.
I hereby certify that the foregoing is a full, true and correct copy of the Bylaws of [ ], a
corporation of the State of Illinois as in effect on the date hereof.
WITNESS my hand and the seal of the corporation this [ ].
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Peter S. Reinhart, Secretary of |
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[ ] |
(SEAL)
Exhibit 3.51
BYLAWS
OF
[ ]
(An Indiana Corporation)
ARTICLE I. OFFICE.
The principal office of the Corporation is 110 West Front Street, Red Bank, N.J. 07701 and the registered agent address is [ ], Indiana [ ].
ARTICLE II. STOCKHOLDERS’ MEETINGS.
Section 1. Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation shall be held at the principal office of the Corporation in the State of Indiana or at any other place within or without the State of Indiana as may be determined by the Board of Directors and as may be designated in the notice of that meeting.
The meeting shall be held on the last business day in February of each year or around that date. The business to be transacted at the meeting shall be the election of directors and such other business as properly brought before the meeting.
(b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the stockholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held.
(c) No change in the time or place for a meeting for the election of directors shall be made within 20 days preceding the day on which the election is to be held. Written notice of any change shall be given each stockholder at least 20 days before the election is held, either in person or by letter mailed to the stockholder at the address last shown on the books of the Corporation.
(d) In the event the annual meeting is not held at the time prescribed in Article II, Section I(a) above, and if the Board of Directors shall not call a special meeting as prescribed in Article II, Section l(b) above within three months after the date prescribed for the annual meeting, then any stockholder may call that meeting, and at that meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual meeting duly called and held.
Section 2. Special Meetings.
Special meetings of the stockholders may be called by the President or by the holders of at least 10 percent (%) of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Secretary to send out notices of the meeting, to be held within or without the State of Indiana and at such time, but not less than 20 days nor more than 45 days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Secretary within the above limits.
Section 3. Notice and Purpose of Meetings; Waiver.
Each stockholder of record entitled to vote at any meeting shall be given in person, or by mail, or by prepaid telegram, written or printed notice of the purpose or purposes, and the time and place within or outside the State of Indiana of every meeting of stockholders. This notice shall be delivered not less than 10 days nor more than 60 days before the meeting. If mailed or telegraphed, it should be directed to the stockholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the stockholders.
Section 4. Quorum.
Except as otherwise provided by law, a quorum at all meetings of stockholders shall consist of the holders of record of a majority of the shares entitled to vote present in person or by proxy.
Section 5. Closing of Transfer Books; Record Date.
(a) In order to determine the holders of record of the Corporation’s stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the stockholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the Stock Transfer Books be closed for a period not to exceed sixty days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the Stock
Transfer Books shall be closed for at least thirty days preceding such meeting.
(b) In lieu of closing the Stock Transfer Books, the Board of Directors may fix a date as the record date for the determination of stockholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a stockholders’ meeting, shall it be less then thirty days in advance of such meeting.
(c) If the Stock Transfer Books are not closed and no record date is fixed for the determination of the stockholders of record, the date of which notice of the meeting is mailed, or on which the resolution of the Board of Directors declaring a dividend is adopted, as the case may be, shall be the record date for the determination of stockholders.
(d) When a determination of stockholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the Stock Transfer Books and the stated period of closing has expired.
Section 6. Presiding Officer; Order of Business.
(a) Meetings of the stockholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the Chief Executive Officer, or if not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board nor the Chief Executive Officer nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Secretary of the Corporation, or, in her or his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the stockholders present at the meeting shall choose any person present to act as secretary of the meeting.
(b) The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 7. Voting.
(a) Except in the election of directors, at which time the stockholders shall be entitled to cumulate their votes, and except as otherwise provided in the Articles of Incorporation, the Bylaws, or the laws of the State of Indiana at every meeting of the stockholders, each stockholder of the Corporation entitled to vote at the meeting shall have, as to each matter
submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A stockholder may vote his or her shares through a proxy appointed by a written instrument signed by the stockholder or by a duly authorized attorney-in-fact and delivered to the secretary of the meeting. No proxy shall be valid after three months from the date of its execution unless a longer period is expressly provided.
(b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect.
(c) At all elections of directors, the voting shall be by ballot.
Section 8. List of Stockholders.
(a) A complete list of the stockholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each stockholder shall be prepared by the Secretary, or other officer of the Corporation having charge of the Stock Transfer Books. This list shall be kept on file for a period of at least thirty days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any stockholder. This list shall also be available at the meeting and shall be open to inspection by any stockholder at any time during the meeting.
(b) The original Stock Transfer Books shall be prima facie evidence as to who are the stockholders entitled to examine the list or to vote at any meeting of the stockholders.
(c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the stockholders.
ARTICLE III. DIRECTORS.
Section 1. Number, Qualification, Term, Quorum, and Vacancies.
(a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of five (5) persons. Except as provided, directors shall be elected at the annual meeting of the stockholders and each director shall serve for one year and/or until his or her successor shall be elected and qualify.
(b) The number of directors may be increased or decreased from time to time by an amendment to these Bylaws. Any increased number of directors shall be elected by the stockholders at the next regular annual meeting or at a special meeting called for that purpose. The authorized number of directors constituting the Board shall be at least three; provided, however, that so long as the corporation has only one shareholder, the number may be one or two, and so long as the corporation has only two shareholders, the number
may be two. Subject to the aforementioned provisions and subject to the provisions of Section 212 of the General Corporation Law, the number of directors may be changed by an amendment of the Bylaws. No decrease in the authorized number of directors shall have the effect of limiting or ending the term of any sitting director.
(c) Directors need not be stockholders of the Corporation.
(d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, other than vacancies created by the removal of a director or directors by the stockholders or by an increase in the number of directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms.
Section 2. Meetings.
Meetings of the Board of Directors may be held either within or without the State of Indiana. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the Chief Executive Officer, the President, or a Vice-President, or a majority of directors, upon written or telegraphic notice deposited in the U.S. mail or delivered to the telegraph company at least thirty days prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting.
Section 3. Removal.
(a) At any meeting of the stockholders, any director or directors may be removed from office, without assignment of any reason, by a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, provided, however, that if less than all the directors are to be removed, no individual director shall be removed if the number of votes cast against her or his removal would be sufficient, if cumulatively voted at an election of the entire board, to elect one or more directors.
(b) When any director or directors are removed, new directors may be elected at the same meeting of the stockholders for the unexpired term of the director or directors removed. If the stockholders fail to elect persons to fill the unexpired term or terms of the director
or directors removed, these unexpired terms shall be considered vacancies on the board to be filled by the remaining directors.
Section 4. Indemnification.
(a) The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which the individual may have been made a party because he or she is or was a director, officer or employee of the Corporation. The individual shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties, or was derelict in the performance of his or her duty as director, officer or employee by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the duties of his or her office or employment. The right to indemnity for expenses shall also apply to the expenses of suits which are compromised or settled if the court having jurisdiction of the matter shall approve such settlement.
(b) The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to that which such director, officer or employee may be entitled.
Section 5. Compensation.
Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.
Section 6. Committees.
(a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of at least three members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee.
(b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided.
Section 7. Dividends.
Subject always to the provisions of law and the Articles of Incorporation, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the stockholders of the Corporation. The Board of Directors may fix a sum which may be set aside or reserved over and above the paid-in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary this fund in the Board’s absolute judgment and discretion.
ARTICLE IV. OFFICERS.
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice-Presidents, a Treasurer, a Controller, a Secretary, and one or more Assistant Secretaries. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Any person may hold two, but no more than two, offices.
Section 2. Term of Office.
The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the stockholders’ annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his, death, resignation, or removal.
Section 3. Removal.
Any officer may be removed from office with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Such removal shall not prejudice the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5. Duties.
(a) The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors.
(b) The Chief Executive Officer shall have general active management of the business of the corporation, and in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors; and shall see that all orders and resolutions of the Board of Directors are carried into effect.
(c) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the stockholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors.
(d) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors.
(e) The Secretary, the Treasurer, and the Controller shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Incorporation or these Bylaws. The Assistant Secretaries, in the order of their seniority, shall, in the absence of the Secretary, perform the duties and exercise the powers of the Secretary, and shall perform any other duties as may be assigned by the Board of Directors.
(f) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time.
(g) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select.
Section 6. Salaries.
The salaries of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefore.
ARTICLE V. CERTIFICATES OF STOCK.
Section 1. Form.
(a) The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Incorporation as the Board of Directors may from time to time prescribe.
(b) The certificates of stock shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer, and sealed with the seal of the corporation. This seal may be a facsimile, engraved or printed. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Secretary, Assistant Secretary, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue.
Section 2. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class.
Section 3. Transfers.
(a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid.
(b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Secretary of the Corporation, or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer may record that fact.
Section 4. Lost, Destroyed, or Stolen Certificates.
No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require.
Section 5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.
ARTICLE VI. CORPORATE ACTIONS.
Section 1. Deposits.
The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation.
Section 2. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII. CORPORATE SEAL.
The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center of which shall be inscribed the year of its incorporation and the words “Corporate Seal, State of Indiana”.
ARTICLE VIII. AMENDMENT OF BYLAWS.
The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted, provided that notice of the proposal to make, alter, amend, or repeal the Bylaws was included in the notice of the directors’ meeting at which such action takes place. At the next stockholders’ meeting following any action by the Board of Directors, the stockholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such stockholders’ meeting shall include notice that the stockholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws.
I hereby certify that the foregoing is a full, true and correct copy of the Bylaws of [ ], a corporation of the State of Indiana as in effect on the date hereof.
WITNESS my hand and the seal of the corporation this [ ].
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Peter S. Reinhart, Secretary of |
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(SEAL)
Exhibit 3.52
BYLAWS
OF
[ ]
(A Kentucky Corporation)
ARTICLE I. OFFICE.
The principal office of the Corporation in the State of Kentucky is at [ ], KY [ ], County of [ ].
ARTICLE II. STOCKHOLDERS’ MEETINGS.
Section 1. Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation, commencing with the year 200[ ] shall be held at the principal office of the Corporation in the State of Kentucky or at any other place within or without the State of Kentucky as may be determined by the Board of Directors and as may be designated in the notice of that meeting.
The meeting shall be held on the first [day of week] in [month] of each year. If that day is a legal holiday, the meeting shall be held on the next succeeding day not a legal holiday. The business to be transacted at the meeting shall be the election of directors and such other business as properly brought before the meeting.
(b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the stockholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held.
(c) No change in the time or place for a meeting for the election of directors shall be made within 20 days preceding the day on which the election is to be held. Written notice of any change shall be given each stockholder at least 20 days before the election is held, either in person or by letter mailed to the stockholder at the address last shown on the books of the Corporation.
(d) In the event the annual meeting is not held at the time prescribed in Article II, Section I(a) above, and if the Board of Directors shall not call a special meeting as prescribed in Article II, Section l(b) above within three months after the date prescribed for the annual meeting, then any stockholder may call that meeting, and at that meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual meeting duly called and held.
Section 2. Special Meetings.
Special meetings of the stockholders may be called by the Board of Directors or by the holders of at least thirty-three and a third percent (33.3%) of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Secretary to send out notices of the meeting, to be held within or without the State of Kentucky and at such time, but not less than ten days nor more than sixty days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Secretary within the above limits.
Section 3. Notice and Purpose of Meetings; Waiver.
Each stockholder of record entitled to vote at any meeting shall be given in person, or by mail, or by prepaid telegram, written or printed notice of the purpose or purposes, and the time and place within or outside the State of Kentucky of every meeting of stockholders. This notice shall be delivered not less than ten days nor more than sixty days before the meeting. If mailed or telegraphed, it should be directed to the stockholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the stockholders.
Section 4. Quorum.
Except as otherwise provided by law, a quorum at all meetings of stockholders shall consist of the holders of record of a majority of the shares entitled to vote present in person or by proxy.
Section 5. Closing of Transfer Books; Record Date.
(a) In order to determine the holders of record of the Corporation’s stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the stockholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the Stock Transfer Books be closed for a period not to exceed seventy days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the Stock
Transfer Books shall be closed for at least thirty days preceding such meeting.
(b) In lieu of closing the Stock Transfer Books, the Board of Directors may fix a date as the record date for the determination of stockholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a stockholders’ meeting, shall it be less than thirty days in advance of such meeting.
(c) If the Stock Transfer Books are not closed and no record date is fixed for the determination of the stockholders of record, the date of which notice of the meeting is mailed, or on which the resolution of the Board of Directors declaring a dividend is adopted, as the case may be, shall be the record date for the determination of stockholders.
(d) When a determination of stockholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the Stock Transfer Books and the stated period of closing has expired.
Section 6. Presiding Officer; Order of Business
(a) Meetings of the stockholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the Chief Executive Officer, or if not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board nor the Chief Executive Officer nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Secretary of the Corporation, or, in her or his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the stockholders present at the meeting shall choose any person present to act as secretary of the meeting.
(b) The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 7. Voting.
(a) Except in the election of directors, at which time the stockholders shall be entitled to cumulate their votes, and except as otherwise provided in the Articles of Incorporation, the Bylaws, or the laws of the State of Kentucky at every meeting of the stockholders, each stockholder of the Corporation entitled to vote at the meeting shall have, as to each matter
submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A stockholder may vote his or her shares through a proxy appointed by a written instrument signed by the stockholder or by a duly authorized attorney-in-fact and delivered to the secretary of the meeting. No proxy shall be valid after three months from the date of its execution unless a longer period is expressly provided.
(b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect.
(c) At all elections of directors, the voting shall be by ballot.
Section 8. List of Stockholders.
(a) A complete list of the stockholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each stockholder shall be prepared by the Secretary, or other officer of the Corporation having charge of the Stock Transfer Books. This list shall be kept on file for a period of at least ten days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any stockholder. This list shall also be available at the meeting and shall be open to inspection by any stockholder at any time during the meeting.
(b) The original Stock Transfer Books shall be prima facie evidence as to who are the stockholders entitled to examine the list or to vote at any meeting of the stockholders.
(c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the stockholders.
ARTICLE III. DIRECTORS.
Section 1. Number, Qualification, Term, Quorum, and Vacancies.
(a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of [number of directors] persons. Except as provided, directors shall be elected at the annual meeting of the stockholders and each director shall serve for one year and/or until his or her successor shall be elected and qualify.
(b) The number of directors may be increased or decreased from time to time by an amendment to these Bylaws. Any increased number of directors shall be elected by the stockholders at the next regular annual meeting or at a special meeting called for that purpose. The number of directors shall never be less than one.
(c) Directors need not be stockholders of the Corporation.
(d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, other than vacancies created by the removal of a director or directors by the stockholders or by an increase in the number of directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms.
Section 2. Meetings.
Meetings of the Board of Directors may be held either within or without the State of Kentucky. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the Chief Executive Officer, the President, or a Vice-President, or a majority of directors, upon written or telegraphic notice deposited in the U.S. mail or delivered to the telegraph company at least thirty days prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting.
Section 3. Removal.
(a) At any meeting of the stockholders, any director or directors may be removed from office, without assignment of any reason, by a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, provided, however, that if less than all the directors are to be removed, no individual director shall be removed if the number of votes cast against her or his removal would be sufficient, if cumulatively voted at an election of the entire board, to elect one or more directors.
(b) When any director or directors are removed, new directors may be elected at the same meeting of the stockholders for the unexpired term of the director or directors removed. If the stockholders fail to elect persons to fill the unexpired term or terms of the director or directors removed, these unexpired terms shall be considered vacancies on the board to be filled by the remaining directors.
Section 4. Indemnification.
(a) The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which the individual may have been made a party because he or she is or was a director, officer or employee of the Corporation. The individual shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties, or was derelict in the performance of his or her duty as director, officer or employee by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the duties of his or her office or employment. The right to indemnity for expenses shall also apply to the expenses of suits which are compromised or settled if the court having jurisdiction of the matter shall approve such settlement.
(b) The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to that which such director, officer or employee may be entitled.
Section 5. Compensation.
Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.
Section 6. Committees.
(a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of at least (insert number of directors required for committee) of members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee.
(b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided.
Section 7. Dividends.
Subject always to the provisions of law and the Articles of Incorporation, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available for the payment of dividends shall be declared in dividends and paid to the stockholders of the Corporation. The Board of Directors may fix a sum which may be set aside or reserved over and above the paid-in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary this fund in the Board’s absolute judgment and discretion.
ARTICLE IV. OFFICERS.
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice-Presidents, a Treasurer, a Controller, a Secretary, and one or more Assistant Secretaries. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Any person may hold three, but no more than three offices.
Section 2. Term of Office.
The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the stockholders’ annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his, death, resignation, or removal.
Section 3. Removal.
Any officer may be removed from office with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Such removal shall not prejudice the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5. Duties.
(a) The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors.
(b) The Chief Executive Officer shall have general active management of the business of the corporation, and in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors; and shall see that all orders and resolutions of the Board of Directors are carried into effect.
(c) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the stockholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors.
(d) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors.
(e) The Secretary, the Treasurer, and the Controller shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Incorporation or these Bylaws. The Assistant Secretaries, in the order of their seniority, shall, in the absence of the Secretary, perform the duties and exercise the powers of the Secretary, and shall perform any other duties as may be assigned by the Board of Directors.
(f) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time.
(g) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select.
Section 6. Salaries
The salaries of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefore.
ARTICLE V. CERTIFICATES OF STOCK.
Section 1. Form.
(a) The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Incorporation as the Board of Directors may from time to time prescribe.
(b) The certificates of stock shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer, and sealed with the seal of the corporation. This seal may be a facsimile, engraved or printed. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Secretary, Assistant Secretary, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue.
Section 2. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class.
Section 3. Transfers.
(a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid.
(b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Secretary of the Corporation, or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer may record that fact.
Section 4. Lost, Destroyed, or Stolen Certificates
No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require.
Section 5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.
ARTICLE VI. CORPORATE ACTIONS.
Section 1. Deposits.
The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation.
Section 2. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII. CORPORATE SEAL.
The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center of which shall be inscribed the year of its incorporation and the words “Corporate Seal, State of Kentucky”.
ARTICLE VIII. AMENDMENT OF BYLAWS.
The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted, provided that notice of the proposal to make, alter, amend, or repeal the Bylaws was included in the notice of the directors’ meeting at which such action takes place. At the next stockholders’ meeting following any action by the Board of Directors, the stockholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such stockholders’ meeting shall include notice that the stockholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws.
I hereby certify that the foregoing is a full, true and correct copy of the Bylaws of [ ], a corporation of the State of Kentucky, as in effect on the date hereof.
WITNESS my hand and the seal of the corporation this [ ].
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Secretary of |
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Exhibit 3.53
BYLAWS
OF
[ ]
(A District of Columbia Corporation)
ARTICLE I. OFFICE.
The principal office of the Corporation in the District of Columbia is at [ ].
ARTICLE II. STOCKHOLDERS’ MEETINGS.
Section 1. Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation, commencing with the year 200[ ], shall be held at the principal office of the Corporation in the District of Columbia or at any other place within or without the District of Columbia as may be determined by the Board of Directors and as may be designated in the notice of that meeting.
The meeting shall be held on the 28th day of February of each year. If that day is a legal holiday, the meeting shall be on the next succeeding day not a legal holiday. The business to be transacted at the meeting shall be the election of directors and such other business as properly brought before the meeting.
(b) If the election of directors shall not be held on the day herein designated for any annual meeting, or at any adjournment of that meeting, the Board of Directors shall call a special meeting of the stockholders as soon as possible thereafter.
At this meeting the election of directors shall take place, and the election and any other business transacted shall have the same force and effect as at an annual meeting duly called and held.
(c) No change in the time or place for a meeting for the election of directors shall be made within 20 days proceeding the day on which the election is to be held. Written notice of any change shall be given each stockholder at least 20 days before the election is held, either in person or by letter mailed to the stockholder at the address last shown on the books of the Corporation.
(d) In the event the annual meeting is not held at the time prescribed in Article II, Section I(a) above, and if the Board of Directors shall not call a special meeting as prescribed in Article II, Section l(b) above within three months after the date prescribed for the annual meeting, then any stockholder may call that meeting, and at that meeting the stockholders may elect the directors and transact other business with the same force and effect as at an annual meeting duly called and held.
Section 2. Special Meetings.
Special meetings of the stockholders may be called by the President or by the holders of at least 10 percent (%) of the stock entitled to vote at that meeting. At any time, upon the written request of any person or persons entitled to call a special meeting, it shall be the duty of the Secretary to send out notices of the meeting, to be held within or without the District of Columbia and at such time, but not less than 20 days nor more than 45 days after receipt of the request, as may be fixed by the Board of Directors. If the Board of Directors fails to fix a time or place, the meeting shall be held at the principal office of the Corporation at a time as shall be fixed by the Secretary within the above limits.
Section 3. Notice and Purpose of Meetings; Waiver.
Each stockholder of record entitled to vote at any meeting shall be given in person, or by mail, or by prepaid telegram, written or printed notice of the purpose or purposes, and the time and place within or outside the District of Columbia of every meeting of stockholders. This notice shall be delivered not less than 10 days nor more than 60 days before the meeting. If mailed or telegraphed, it should be directed to the stockholder at the address last shown on the books of the Corporation. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance, either in person or by proxy, at the meeting, or by so stating in writing, either before or after the meeting. Attendance at a meeting for the express purpose of objecting that the meeting was not lawfully called or convened shall not, however, constitute a waiver of notice. Except where otherwise required by law, notice need not be given of any adjourned meeting of the stockholders.
Section 4. Quorum.
Except as otherwise provided by law, a quorum at all meetings of stockholders shall consist of the holders of record of a majority of the shares entitled to vote present in person or by proxy.
Section 5. Closing of Transfer Books; Record Date.
(a) In order to determine the holders of record of the Corporation’s stock who are entitled to notice of meetings, to vote at a meeting or its adjournment, to receive payment of any dividend, or to make a determination of the stockholders of record for any other proper purpose, the Board of Directors of the Corporation may order that the Stock Transfer Books be closed for a period not to exceed sixty days. If the purpose of this closing is to determine who is entitled to notice of a meeting and to vote at such meeting, the Stock Transfer Books shall be closed for at least thirty days preceding such meeting.
(b) In lieu of closing the Stock Transfer Books, the Board of Directors may fix a date as the record date for the determination of stockholders. This date shall be no more than sixty days prior to the date of the action which requires the determination, nor, in the case of a stockholders’ meeting, shall it be less then thirty days in advance of such meeting.
(c) If the Stock Transfer Books are not closed and no record date is fixed for the determination of the stockholders of record, the date of which notice of the meeting is mailed, or on which the resolution of the Board of Directors declaring a dividend is adopted, as the case may be, shall be the record date for the determination of stockholders.
(d) When a determination of stockholders entitled to vote at any meeting has been made as provided in this section, this determination shall apply to any adjournment of the meeting, except when the determination has been made by the closing of the Stock Transfer Books and the stated period of closing has expired.
Section 6. Presiding Officer; Order of Business.
(a) Meetings of the stockholders shall be presided over by the Chairman of the Board, or, if he or she is not present, by the Chief Executive Officer, or if not present, by the President, or if he or she is not present, by a Vice-President, or if neither the Chairman of the Board nor the Chief Executive Officer nor the President nor a Vice-President is present, by a chairman to be chosen by a majority of the stockholders entitled to vote at the meeting who are present in person or by proxy. The Secretary of the Corporation, or, in her or his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the stockholders present at the meeting shall choose any person present to act as secretary of the meeting.
(b) The order of business shall be as follows:
1. Call of meeting to order.
2. Proof of notice of meeting.
3. Reading of minutes of last previous annual meeting.
4. Reports of officers.
5. Reports of committees.
6. Election of directors.
7. Miscellaneous business.
Section 7. Voting.
(a) Except in the election of directors, at which time the stockholders shall be entitled to cumulate their votes, and except as otherwise provided in the Articles of Incorporation, the Bylaws, or the laws of the District of Columbia at every meeting of the stockholders, each stockholder of the Corporation entitled to vote at the meeting shall have, as to each matter submitted to a vote, one vote in person or by proxy for each share of stock having voting rights registered in his or her name on the books of the Corporation. A stockholder may vote his or her shares through a proxy appointed by a written instrument signed by the stockholder or by a duly authorized attorney-in-fact and delivered to the secretary of the meeting. No proxy shall be valid after three months from the date of its execution unless a longer period is expressly provided.
(b) A majority vote of those shares entitled to vote and represented at the meeting, a quorum being present, shall be the act of the meeting except that in electing directors a plurality of the votes cast shall elect.
(c) At all elections of directors, the voting shall be by ballot.
Section 8. List of Stockholders.
(a) A complete list of the stockholders of the Corporation entitled to vote at the ensuing meeting, arranged in alphabetical order, and showing the address of, and number of shares owned by, each stockholder shall be prepared by the Secretary, or other officer of the Corporation having charge of the Stock Transfer Books. This list shall be kept on file for a period of at least thirty days prior to the meeting at the principal office of the Corporation and shall be subject to inspection during the usual business hours of such period by any stockholder. This list shall also be available at the meeting and shall be open to inspection by any stockholder at any time during the meeting.
(b) The original Stock Transfer Books shall be prima facie evidence as to who are the stockholders entitled to examine the list or to vote at any meeting of the stockholders.
(c) Failure to comply with the requirements of this section shall not affect the validity of any action taken at any meetings of the stockholders.
ARTICLE III. DIRECTORS.
Section 1. Number, Qualification, Term, Quorum, and Vacancies.
(a) The property, affairs and business of the Corporation shall be managed by a Board of Directors of five (5) persons. Except as provided, directors shall be elected at the annual meeting of the stockholders and each director shall serve for one year and/or until his or her successor shall be elected and qualify.
(b) The number of directors may be increased or decreased from time to time by an amendment to these Bylaws. Any increased number of directors shall be elected by the stockholders at the next regular annual meeting or at a special meeting called for that purpose. The authorized number of directors constituting the Board shall be at least three; provided, however, that so long as the corporation has only one shareholder, the number may be one or two, and so long as the corporation has only two shareholders, the number may be two. Subject to the aforementioned provisions and subject to the provisions of Section 212 of the General Corporation Law, the number of directors may be changed by an amendment of the Bylaws. No decrease in the authorized number of directors shall have the effect of limiting or ending the term of any sitting director.
(c) Directors need not be stockholders of the Corporation.
(d) A majority of the directors in office shall be necessary to constitute a quorum for the transaction of business. If, at any meeting of the Board of Directors, there shall be less than a quorum present, a majority of those present may adjourn the meeting, without further notice, from time to time until a quorum shall have been obtained. In case there are vacancies on the Board of Directors, other than vacancies created by the removal of a director or directors by the stockholders or by an increase in the number of directors, the remaining directors, although less than a quorum, may by a majority vote elect a successor or successors for the unexpired term or terms.
Section 2. Meetings.
Meetings of the Board of Directors may be held either within or without the District of Columbia. Meetings of the Board of Directors shall be held at those times as are fixed from time to time by resolution of the Board. Special meetings may be held at any time upon call of the Chairman of the Board, the Chief Executive Officer, the President, or a Vice-President, or a majority of directors, upon written or telegraphic notice deposited in the U.S. mail or delivered to the telegraph company at least thirty days prior to the day of the meetings. A meeting of the Board of Directors may be held without notice immediately following the annual meeting of the stockholders. Notice need not be given of regular meetings of the Board of Directors held at times fixed by resolution of the Board of Directors nor need notice be given of adjourned meetings. Meetings may be held at any time without notice if all the directors are present or if, before the meeting, those not present waive such notice in writing. Notice of a meeting of the Board of Directors need not state the purpose of, nor the business to be transacted at, any meeting.
Section 3. Removal.
(a) At any meeting of the stockholders, any director or directors may be removed from office, without assignment of any reason, by a majority vote of the shares or class of shares, as the case may be, which elected the director or directors to be removed, provided, however, that if less than all the directors are to be removed, no individual director shall be removed if the number of votes cast against her or his removal would be sufficient, if cumulatively voted at an election of the entire board, to elect one or more directors.
(b) When any director or directors are removed, new directors may be elected at the same meeting of the stockholders for the unexpired term of the director or directors removed. If the stockholders fail to elect persons to fill the unexpired term or terms of the director or directors removed, these unexpired terms shall be considered vacancies on the board to be filled by the remaining directors.
Section 4. Indemnification.
(a) The Corporation shall indemnify each of its directors, officers, and employees whether or not then in service as such (and his or her executor, administrator and heirs), against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which the individual may have been made a party because he or
she is or was a director, officer or employee of the Corporation. The individual shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties, or was derelict in the performance of his or her duty as director, officer or employee by reason of willful misconduct, bad faith, gross negligence or reckless disregard of the duties of his or her office or employment. The right to indemnity for expenses shall also apply to the expenses of suits which are compromised or settled if the court having jurisdiction of the matter shall approve such settlement.
(b) The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to that which such director, officer or employee may be entitled.
Section 5. Compensation.
Directors, and members of any committee of the Board of Directors, shall be entitled to any reasonable compensation for their services as directors and members of any committee as shall be fixed from time to time by resolution of the Board of Directors, and shall also be entitled to reimbursement for any reasonable expense incurred in attending those meetings. The compensation of directors may be on any basis as determined in the resolution of the Board of Directors. Any director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services.
Section 6. Committees.
(a) The Board of Directors, by a resolution or resolutions adopted by a majority of the members of the whole Board, may appoint an Executive Committee, an Audit Committee, and any other committees as it may deem appropriate. Each committee shall consist of at least three members of the Board of Directors. Each committee shall have and may exercise any and all powers as are conferred or authorized by the resolution appointing it. A majority of each committee may determine its action and may fix the time and place of its meetings, unless provided otherwise by the Board of Directors. The Board of Directors shall have the power at any time to fill vacancies in, to change the size of membership of, and to discharge any committee.
(b) Each committee shall keep a written record of its acts and proceedings and shall submit that record to the Board of Directors at each regular meeting and at any other times as requested by the Board of Directors. Failure to submit the record, or failure of the Board to approve any action indicated therein will not, however, invalidate the action to the extent it has been carried out by the Corporation prior to the time the record of such action was, or should have been, submitted to the Board of Directors as provided.
Section 7. Dividends.
Subject always to the provisions of law and the Articles of Incorporation, the Board of Directors shall have full power to determine whether any, and, if so, what part, of the funds legally available
for the payment of dividends shall be declared in dividends and paid to the stockholders of the Corporation. The Board of Directors may fix a sum which may be set aside or reserved over and above the paid-in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish, and vary this fund in the Board’s absolute judgment and discretion.
ARTICLE IV. OFFICERS.
Section 1. Number.
The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more Vice-Presidents, a Treasurer, a Controller, a Secretary, and one or more Assistant Secretaries. In addition, there may be such subordinate officers as the Board of Directors may deem necessary. Any person may hold two, but no more than two, offices.
Section 2. Term of Office.
The principal officers shall be chosen annually by the Board of Directors at the first meeting of the Board following the stockholders’ annual meeting, or as soon as is conveniently possible. Subordinate officers may be elected from time to time. Each officer shall serve until his or her successor shall have been chosen and qualified, or until his, death, resignation, or removal.
Section 3. Removal.
Any officer may be removed from office with or without cause, at any time by the affirmative vote of a majority of the Board of Directors then in office. Such removal shall not prejudice the contract rights, if any, of the person so removed.
Section 4. Vacancies.
Any vacancy in any office from any cause may be filled for the unexpired portion of the term by the Board of Directors.
Section 5. Duties.
(a) The Chairman of the Board shall preside at all meetings of the stockholders and the Board of Directors. Except where, by law, the signature of the President is required, the Chairman shall possess the same power as the President to sign all certificates, contracts, and other instruments of the Corporation which may be authorized by the Board of Directors.
(b) The Chief Executive Officer shall have general active management of the business of the corporation, and in the absence of the Chairman of the Board, shall preside at all meetings of the shareholders and the Board of Directors; and shall see that all orders and resolutions of the Board of Directors are carried into effect.
(c) The President, in the absence of the Chairman of the Board, shall preside at all meetings of the stockholders and the Board of Directors. She or he shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts, or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders, and shall perform any and all other duties as are incident to her or his office or are properly required of him or her by the Board of Directors.
(d) The Vice-Presidents, in the order designated by the Board of Directors, shall exercise the functions of the President during the absence or disability of the President. Each Vice-President shall have any other duties as are assigned from time to time by the Board of Directors.
(e) The Secretary, the Treasurer, and the Controller shall perform those duties as are incident to their offices, or are properly required of them by the Board of Directors, or are assigned to them by the Articles of Incorporation or these Bylaws. The Assistant Secretaries, in the order of their seniority, shall, in the absence of the Secretary, perform the duties and exercise the powers of the Secretary, and shall perform any other duties as may be assigned by the Board of Directors.
(f) Other subordinate officers appointed by the Board of Directors shall exercise any powers and perform any duties as may be delegated to them by the resolutions appointing them, or by subsequent resolutions adopted from time to time.
(g) In case of the absence or disability of any officer of the Corporation and of any person authorized to act in his or her place during such period of absence or disability, the Board of Directors may from time to time delegate the powers and duties of that officer to any other officer, or any director, or any other person whom it may select.
Section 6. Salaries.
The salaries of all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be ineligible to receive such salary by reason of the fact that he is also a Director of the Corporation and receiving compensation therefore.
ARTICLE V. CERTIFICATES OF STOCK.
Section 1. Form.
(a) The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock, certifying the number of shares represented thereby and in such form not inconsistent with the Articles of Incorporation as the Board of Directors may from time to time prescribe.
(b) The certificates of stock shall be signed by the President or a Vice-President and by the Secretary or an Assistant Secretary or the Treasurer, and sealed with the seal of the
corporation. This seal may be a facsimile, engraved or printed. Where any certificate is manually signed by a transfer agent or a transfer clerk and by a registrar, the signatures of the President, Vice-President, Secretary, Assistant Secretary, or Treasurer upon that certificate may be facsimiles, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be an officer before the certificate is issued, it may be issued by the corporation with the same effect as if that officer had not ceased to be so at the time of its issue.
Section 2. Subscriptions for Shares.
Unless the subscription agreement provides otherwise, subscriptions for shares, regardless of the time when they are made, shall be paid in full at that time, or in installments and at any periods, as shall be specified by the Board of Directors. All calls for payments on subscriptions shall carry the same terms with regard to all shares of the time class.
Section 3. Transfers.
(a) Transfers of shares of the capital stock of the Corporation shall be made only on the books of the Corporation by the registered owner, or by his or her duly authorized attorney, with a transfer clerk or transfer agent appointed as provided in Section 5 of this Article of the Bylaws, and on surrender of the certificate or certificates for those shares properly endorsed with all taxes paid.
(b) The person in whose name shares of stock stand on the books of the Corporation shall be deemed by the Corporation to be the owner thereof for all purposes. However, if any transfer of shares is made only for the purpose of furnishing collateral security, and that fact is made known to the Secretary of the Corporation, or to the Corporation’s transfer clerk or transfer agent, the entry of the transfer may record that fact.
Section 4. Lost, Destroyed, or Stolen Certificates.
No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed, or stolen except on production of evidence, satisfactory to the Board of Directors, of that loss, destruction or theft, and, if the Board of Directors so requires, upon the furnishing of an indemnity bond in such amount (but not to exceed twice the value of the shares represented by the certificate) and with such terms and surety as the Board of Directors, if any, in its discretion, require.
Section 5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or more registrars, and may require all certificates for shares to bear the signature or signatures of any of them.
ARTICLE VI. CORPORATE ACTIONS.
Section 1. Deposits.
The Board of Directors shall select banks, trust companies, or other depositories in which all funds of the Corporation not otherwise employed shall, from time to time, be deposited to the credit of the Corporation.
Section 2. Voting Securities Held by the Corporation.
Unless otherwise ordered by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act, and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At that meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of those securities which the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII. CORPORATE SEAL.
The corporate seal of the Corporation shall consist of two concentric circles, between which shall be the name of the Corporation, and in the center of which shall be inscribed the year of its incorporation and the words “Corporate Seal, District of Columbia”.
ARTICLE VIII. AMENDMENT OF BYLAWS.
The Board of Directors shall have the power to amend, alter or repeal these Bylaws, and to adopt new Bylaws, from time to time, by an affirmative vote of a majority of the whole Board as then constituted, provided that notice of the proposal to make, alter, amend, or repeal the Bylaws was included in the notice of the directors’ meeting at which such action takes place. At the next stockholders’ meeting following any action by the Board of Directors, the stockholders, by a majority vote of those present and entitled to vote, shall have the power to alter or repeal Bylaws newly adopted by the Board of Directors, or to restore to their original status Bylaws which the Board may have altered or repealed, and the notice of such stockholders’ meeting shall include notice that the stockholders will be called on to ratify the action taken by the Board of Directors with regard to the Bylaws.
I hereby certify that the foregoing is a full, true and correct copy of the Bylaws of [ ], a corporation of the District of Columbia as in effect on the date hereof.
WITNESS my hand and the seal of the corporation this [ ].
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Peter S. Reinhart, Secretary of |
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(SEAL) |
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Exhibit 3.54
BYLAWS
OF
[ ]
ARTICLE I
OFFICES
The Corporation may have such other offices, either within or without the State of Minnesota, as the Board of Directors may designate or as the business of the corporation may require from time to time.
The registered office of the corporation, required by the Minnesota Business Corporation Code to be maintained in the State of Minnesota may be, but need not be, identical with the principal office in the State of Minnesota, and the address of the registered office may be changed from time to time by the Board of Directors.
ARTICLE II
SHAREHOLDERS
Section 1. Regular Meeting. The regular meeting of the shareholders shall be held at a date, time and place fixed by the Board of Directors and stated in the notice of meeting, for the purpose of electing directors and for the transaction of such other business as may come before the meeting.
If a regular meeting of the shareholders has not been held during the immediately preceding 15 months, a shareholder or shareholders holding one percent (1%) or more of all voting shares may demand a regular meeting of shareholders by written notice of demand given to the President or the Treasurer of the corporation. Within thirty (30) days after receipt of the demand by one of those officers, the board shall cause a regular meeting of shareholders to be called and held on notice no later than ninety (90) days after receipt of the demand, all at the expense of the corporation. If the board fails to cause a regular meeting to be called and held, the shareholder or shareholders making the demand may call the meeting by giving notice as required by law, all at the expense of the corporation.
Section 2. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, may be called at any time by:
(a) The President;
(b) One or more directors;
(c) A shareholder or shareholders holding twenty-five percent (25%) or more of the voting shares by written notice or demand given to the President or Treasurer of the corporation and containing the purposes of the meeting. Within thirty (30) days after
receipt of the demand by one of those officers, the board shall cause a special meeting of shareholders to be called and held on notice no later than ninety (90) days after receipt of the demand, all at the expense of the corporation. If the board fails to cause a special meeting to be called and held, the shareholder or shareholders making the demand may call the meeting by giving notice as required by law, all at the expense of the corporation.
Section 3. Place of Meeting. The Board of Directors may designate any place, either within or without the State of Minnesota, as the place of meeting for a regular meeting or for any special meeting called by the Board of Directors. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or without the State of Minnesota, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation in the State of Minnesota.
Section 4. Notice of Meeting. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall, unless otherwise prescribed by statute, be delivered not less than seven (7) nor more than sixty (60) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the officer or other persons calling the meeting, to each shareholder of record entitled to vote at such meeting, If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his or her address as it appears on the stock transfer books of the corporation, with postage thereon prepaid.
The business transacted at a special meeting is limited to the purposes stated in the notice of the meeting. Any business transacted at a special meeting that is not included in those stated purposes is voidable by or on behalf of the corporation, unless all of the shareholders have waived notice of the meeting in accordance with the law or these Bylaws.
Section 5. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or shareholders entitled to receive payment of any distribution, or in order to make a determination of shareholders for any other purpose, the Board of Directors of the corporation may provide that the stock transfer books shall be closed for a stated period, but not to exceed, in any case, fifty (50) days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten (10) days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty (50) days and, in case of a meeting of shareholders, not less than ten (10) days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a distribution, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such distribution is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof.
Section 6. Voting Record. The officer or agent having charge of the stock transfer books for shares of the corporation shall make a complete record of the shareholders entitled to vote at each meeting of shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purposes thereof.
Section 7. Quorum. A majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. A majority of such quorum shall decide any questions that may come before the meeting, except as otherwise specified by law. If less than majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum.
Section 8. Proxies. A shareholder may cast or authorize the casting of a vote by filing a written appointment of a proxy with an officer of the corporation at or before the meeting at which the appointment is to be effective. An appointment of a proxy for shares held jointly by two or more shareholders is valid if signed by any one of them, unless the corporation receives from any one of those shareholders either written notice denying the authority of that person to appoint a proxy or appointing a different proxy. The appointment of a proxy is valid for eleven (11) months, unless a longer period is expressly provided in the appointment. No appointment is irrevocable unless the appointment is coupled with an interest in the shares or in the corporation. An appointment may be terminated at will, unless the appointment is coupled with an interest, in which case it shall not be terminated except in accordance with the terms of an agreement, if any, between the parties to the appointment. Termination may be made by filing written notice of the termination of the appointment with an officer of the corporation, or by filing a new written appointment of a proxy with an officer of the corporation. Termination in either manner revokes all prior proxy appointments and is effective when filed with an officer of the corporation. The death or incapacity of a person appointing a proxy does not revoke the authority of the proxy, unless written notice of the death or incapacity is received by an officer of the corporation before the proxy exercises the authority under that appointment. Unless the appointment specifically
provides otherwise, if two or more persons are appointed as proxies for a shareholder, any one of them may vote the shares on each item of business in accordance with specific instructions contained in the appointment; and if no specific instructions are contained in the appointment with respect to voting the shares on a particular item of business, the shares shall be voted as a majority of the proxies determine. If the proxies are equally divided, the shares shall not be voted. Unless the appointment of a proxy contains a restriction, limitation, or specific reservation of authority, the corporation may accept a vote or action taken by a person named in the appointment. The vote of a proxy is final, binding, and not subject to challenge.
Section 9. Voting of Shares. Unless otherwise provided by these Bylaws, each outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of shareholders.
Section 10. Voting of Shares by Certain Shareholders. Shares standing in the name of another corporation may be voted by such officer, agent or proxy as the Bylaws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such other corporation may determine. Except for shares held in a fiduciary capacity, shares of a corporation registered in the name of a subsidiary are not entitled to vote on any matter. Shares of a corporation in the name of or under the control of thefl corporation or a subsidiary in a fiduciary capacity are not entitled to vote on any matter; except to the extent that the settlor or beneficial owner possesses and exercises a right to vote or gives the corporation binding instructions of how to vote the shares, Shares under the control of a person in a capacity as a personal representative, an administrator, executor, guardian, conservator, or attorney-in-fact may be voted by the person, either in person or by proxy, without registration of those shares in the name of the person. Shares registered in the name of a trustee of a trust or in the name of a custodian may be voted by the person, either in person or by proxy, but a trustee of a trust or a custodian shall not vote shares held by the person unless they are registered in the name of the person. Shares registered in the name of a trustee in bankruptcy or a receiver may be voted by the trustee or receiver either in person or by proxy. Shares under the control of a trustee in bankruptcy or a receiver may be voted by the trustee or receiver without registering the shares in the name of the trustee or receiver, if authority to do so is contained in an appropriate order of the court by which the trustee or receiver was appointed. Shares registered in the name of an organization not described above may be voted either in person or by proxy by the legal representative of that organization. A shareholder whose shares are pledged may vote those shares until the shares are registered in the name of the pledgee.
Section 11. Informal Action by Shareholders. Any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. The written action is effective when it has been signed by all of those shareholders, unless a different effective time is provided in the written action.
Section 12. Cumulative Voting. There shall be no cumulative voting.
Section 13. Action Without a Meeting. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if consent in writing signed by all of the shareholders who would be entitled to vote on such action at a meeting is executed and filed with or entered upon the records of the corporation.
Section 14. Ratification of Acts of Officers and Directors. Any contract, action or transaction, past or present, of the corporation or the Board of Directors or any director or officer may be approved or ratified by the affirmative vote of the holders of a majority of the shares held by persons not interested in the contract) action or transaction and entitled to vote in the election of directors, which approval or ratification shall be as valid and binding as though affirmatively voted for or consented to by every shareholder of the corporation.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the corporation shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of directors of the corporation shall be not less than three (3), except that if al I the shares of the corporation ore owned by fewer than three (3) shareholders, the number of Directors may be equal to (but not less than) the number of shareholders. Each director shall hold office for an indefinite term until the next regular meeting of shareholders and until his or her successor shall have been elected and qualified. Directors need not be residents of the State of Minnesota or shareholders of the corporation.
Section 3. Regular Meetings. A regular meeting of the Board of Directors shall be held without other notice than this bylaw immediately after, and at the same place as the regular meeting of shareholders. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Minnesota, for the holding of additional regular meetings without other notice than such resolution. If no resolution is passed, the meeting shall be held at the principal executive office of the corporation.
Section 4. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President or any two directors, The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Minnesota, as the place for holding any special meeting of the Board of Directors called by them.
Section 5. Electronic Communications. A conference among directors by any means of communication through which the directors may simultaneously hear each other during the conference constitutes a board meeting, if the same notice is given of the conference as would be required by law or these Bylaws for a meeting, and if the number
of directors participating in the conference would be sufficient to constitute a quorum at a meeting. Participation in a meeting by that means constitutes presence in person at the meeting. A director may participate in a board meeting not described above by any means of communication through which the director, other directors so participating, and all directors physically present at the meeting may simultaneously hear each other during the meeting. Participation in a meeting by that means constitutes presence in person at the meeting.
Section 6. Notice. Notice of any special meeting shall be given at least two (2) days previously thereto by written notice delivered personally or mailed to each director at his or her business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section 7. Quorum. A majority of the number of directors fixed by Section 2 of this Article Ill shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice.
Section 8. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors,
Section 9. Action Without a Meeting. Any action required or permitted to be taken by the Board of Directors at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors.
Section 10. Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office. Any directorship to be filled by reason of an increase in the number of directors may be filled by election by the Board of Directors for a term of office continuing only until the next election of directors by the shareholders.
Section 11. Compensation. By resolution of the Board of Directors, each director may be paid his or her expenses, if any, of attendance at each meeting of the Board of Directors, any may be paid a stated salary as director or a fixed sum for attendance at each meeting of the Board of Directors or both. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation
therefor.
Section 12. Absent Directors. A director may give advance written consent or opposition to a proposal to be acted on at a board meeting. If the director is not present at the meeting, consent or opposition to a proposal does not constitute presence for purposes of determining the existence of a quorum, but consent or opposition shall be counted as a vote in favor of or against the proposal and shall be entered in the minutes or other record of action at the meeting, if the proposal acted on at the meeting is substantially the same effect as the proposal to which the director has consented or objected.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the corporation shall be a President, one or more Vice Presidents, one or more of whom may be designated as an Executive Vice President, Secretary and Treasurer, each of whom shall be elected by the Board of Directors. Such other officers and assistant officers as may be deemed advisable may be elected or appointed by the Board of Directors. The Chairman of the Board, if any, shall be a director, but no other officers need to be a director. Any one or more offices may be held by the same person.
Section 2. Election and Term of Office. The officers of the corporation to be elected by the Board of Directors shall be elected by the Board of Directors at the first meeting of the Board of Directors held after each regular meeting of the shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Each officer shall hold office until his or her successor shall have been duly elected and shall have qualified or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent may be removed by a majority vote of the Board of Directors with or without cause, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itself create contract rights.
Section 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the Board of Directors for the unexpired portion of the term.
Section 5. Chairman of the Board. Should the directors elect a Chairman of the Board, such Chairman shall preside at all meetings of the Board of Directors and all meetings of Shareholders. The Chairman shall have such additional authority and shall perform such other duties as may be determined by the Board of Directors.
Section 6. President. The President shall be the principal executive officer of the corporation and, subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the corporation. He or she shall, in the event of the Chairman’s absence, preside at all meetings of the shareholders and of the Board of Directors. He or she may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except where such documents are executed in the normal business of the corporation which the President may sign alone, and except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Board of Directors from time to time.
Section 7. Vice President. The Vice President, if any, shall have such powers and perform such duties as the President or the Board of Directors may from time to time prescribe. In the absence of the President or in the event of his or her death, inability, or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice President designated by the Board of Directors) shall perform the duties of the President and, when so acting, shall have all the powers of and be subject to all of the restrictions upon the President.
Section 8. Secretary. The Secretary shall: (a) keep the minutes of the proceedings of the shareholders and of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all documents the execution of which on behalf of the corporation under its seal is duly authorized; (d) keep a register of the post office address of each shareholder which shall be furnished to the Secretary by such shareholder; (e) sign with the President certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board of Directors; (U have general charge of the stock transfer books of the corporation; and (g) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors.
Section 9. Treasurer. The Treasurer shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Article V of these Bylaws; and (c) in general, perform all of the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the President or by the Board of Directors. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors shall determine.
Section 10. Other Offices. The Board of Directors shall have the authority, in its sole discretion, to establish such other offices and to assign appropriate responsibilities and duties to such offices as it deems necessary and appropriate for the conduct of the corporation’s business.
Section 11. Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that he or she is also a director of the corporation,
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the Board of Directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates representing shares of the Corporation shall be in such form as shall be determined by the Board of Directors. Such certificates shall be signed by the President and by the Secretary. The signatures of such officers upon a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar, other than the corporation itself or one of its employees. Each certificate for shares shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be canceled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefor upon such terms and indemnity to the corporation as the Board of Directors may
prescribe.
Section 2. Transfer of Shares. Transfer of shares of the corporation shall be made only on the stock transfer books of the corporation by the holder of record thereof by his or her legal representative, who shall furnish proper evidence of authority to transfer, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation, and on surrender for cancellation of the certificate for such shares. The person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes.
ARTICLE VII
FISCAL YEAR
The fiscal year of the corporation shall begin on the 1st day of November and end on the 31st day of October in each year.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may, from Ume to time, declare and the corporation may pay distributions on its outstanding shares in the manner and upon the terms and conditions provided by law and its Articles of Incorporation.
ARTICLE IX
CORPORATE SEAT
There shall be no corporate seal.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Articles of Incorporation or under the provisions of the Minnesota Business Corporation Code, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XI
AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be adopted by the Board of Directors subject to the final authority of the shareholders to ratify such action.
ARTICLE XII
EXECUTIVE COMMITTEE
Section 1. Appointment. The Board of Directors, by resolution adopted by a majority of the full board, may designate two (2) or more of its members to constitute an executive committee, The designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law.
Section 2. Authority. The executive committee, when the Board of Directors is not in session, shall have and may exercise all of the authority of the Board of Directors except to the extent, if any, that such authority shall be limited by the resolution appointing the executive committee and except also that the executive committee shall not have the authority of the Board of Directors in reference to amending the Articles of Incorporation, adopting a plan or merger or consolidation, recommending to the shareholders the sale, lease or other disposition of all or substantially all of the property and assets of the corporation otherwise than in the usual and regular course of its business, recommending to the shareholders a voluntary dissolution of the corporation or a revocation thereof, or amending the Bylaws of the corporation.
Section 3. Tenure and Qualifications. Each member of the executive committee shall hold office until the next regular annual meeting of the Board of Directors following his or her designation and until his or her successor is designated as a member of the executive committee and is elected and qualified.
Section 4. Meetings. Regular meetings of the executive committee may be held without notice at such times and places as the executive committee may fix from time to time by resolution. Special meetings of the executive committee may be called by any member thereof upon not less than one day’s notice stating the place, date and hour of the meeting, which notice may be written or oral, and if mailed, shall be deemed to be delivered when deposited in the United States mail addressed to the member of the executive committee at his or her business address. Any member of the executive committee may waive notice of any meeting and no notice of any meeting need be given to any member thereof who attends in person. The notice of a meeting of the executive committee need not state the business proposed to be transacted at the meeting.
Section 5. Quorum. A majority of the members of the executive committee shall constitute a quorum for the transaction of business at any meeting thereof, and action of the executive committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present.
Section 6. Action Without Meeting. Any action required or permitted to be taken by the executive committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the members of the executive committee.
Section 7. Vacancies. Any vacancy in the executive committee may be filled by a resolution adopted by a majority of the full Board of Directors.
Section 8. Resignations and Removal. Any member of the executive committee may be removed at any time with or without cause by resolution adopted by a majority of the full Board of Directors. Any member of the executive committee may resign from the executive committee at any time by giving written notice to the President of the corporation, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9. Procedure. The executive committee shall elect a presiding officer from its members and may fix its own rules of procedure which shall not be inconsistent with these Bylaws. It shall keep regular minutes of its proceedings and report the same to the Board of Directors for its information at the meeting thereof held next after the proceedings shall have been taken.
ARTICLE XIII
INDEMNIFICATION
Section 1. Definitions. For purposes of this Article XIII, the following definitions shall apply:
(a) “Director’ means an individual who is or was a director of the corporation or an individual who, while a director of the corporation, is or was serving at the corporation’s request as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A director is considered to be serving an employee benefit plan at the corporation’s request if such director’s duties to the corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. “Director’ includes, unless the context requires otherwise, the estate or personal representative of a director.
(b) “Expenses” means expenses of every kind incurred in defending a proceeding, including counsel fees.
(c) “Indemnified Office” shall mean each officer of the corporation who is also a director of the corporation and each other officer of the corporation (an “Indemnified Officer”). An Indemnified Officer shall be entitled to indemnification hereunder to the same extent as a director, including, without Fmitation, indemnification with respect to service by the Indemnified Officer at the corporation’s request as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
(d) “Liability” means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan) or reasonable
expenses incurred with respect to a proceeding.
(e) “Proceeding” means any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, whether formal or informal, and any appeal therein (and any inquiry or investigation that could lead to such a proceeding).
Section 2. Indemnification. In addition to the indemnification otherwise provided by law, the corporation shall indemnify and hold harmless its directors and Indemnified Officers (as defined herein) against all liability and expenses, including reasonable attorneys’ fees, in any proceeding (including without limitation a proceeding brought by or on behalf of the corporation itself) arising out of their status as directors or officers, or their activities in any such capacity; provided, however, that the corporation shall not indemnify a director of Indemnified Officer against liability or litigation expense that such person may incur on account of activities of such person which at the time taken were known or believed by him or her to be clearly in conflict with the best interests of the corporation. The corporation shall also indemnify each director and Indemnified Officer for reasonable costs, expenses and attorneys’ fees incurred in connection with the enforcement of the rights to indemnification granted herein, if it is determined in accordance with Section 3 of this Article XIII that the director or Indemnified Officer is entitled to indemnification hereunder.
Section 3. Determination. Any indemnification under Section 2 of this Article XIII shall be paid by the corporation in a specific case only after a determination that the director or Indemnified Officer has met the standard of conduct set forth in such Section 2. Such determination shall be made:
(a) by the Board of Directors by a majority vote of a quorum consisting of directors not at the time parties to the proceeding;
(b) if a quorum cannot be obtained under subparagraph (a), by a majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not a the time parties to the proceeding;
(c) by special legal counsel (i) selected by the Board of Directors or its committee in the manner prescribed in subparagraphs (a) or (b); or (N) if a quorum of the Board of Directors cannot be obtained under subparagraph (a) and a committee cannot be designated under subparagraph (b), selected by a majority vote of the full Board of Directors (in which selection directors who are parties may participate); or
(d) by the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination.
The Board of Directors shall take all such action as may be necessary and appropriate to
enable the corporation to pay the indemnification required by this Article XIII.
Section 4. Advance for Expenses. The expenses incurred by a director or Indemnified Officer in defending a proceeding may be paid by the corporation in advance of the final disposition of such proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director or Indemnified Officer to repay such amount unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation against such expenses. Subject to receipt of such undertaking, the corporation shall make reasonable periodic advances for expenses pursuant to this Section, unless the Board of Directors shall determine, in the manner provided in Section 3 of this Article XIII and based on the facts then known, that indemnification under this Article is or will be precluded.
Section 5. Reliance and Consideration. Any director or Indemnified Officer who at any time after the adoption of this Article XIII serves or has served in any of the aforesaid capacities for or on behalf of the corporation shall be deemed to be doing or to have done so in reliance upon, and as consideration for, the right of indemnification provided herein, Such right, however, shall not be exclusive of any other rights to which such person may be entitled apart from the provisions of this Article XIII. No amendment, modification or repeal of this Article XIII shall adversely affect the right of any director or Indemnified Officer to indemnification hereunder with respect to any activities occurring prior to the time of such amendment, modification or repeal.
Section 6. Insurance. The corporation may purchase and maintain insurance on behalf of its directors, officers, employees and agents and those persons who were serving at the request of the corporation in any capacity in another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against or incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of this Article XIII or otherwise. Any full or partial payment made by an insurance company under any insurance policy covering any director, officer, employee or agent made to or on behalf of a person entitled to indemnification under this Article XIII shall relieve the corporation of its liability for indemnification provided for in the Article or otherwise to the extent of such payment, and no insurer shall have a right of subrogation against the corporation with respect to such payment.
ARTICLE XIV
EMERGENCY BYLAWS
The Emergency Bylaws provided in this Article XIV shall be operative during any emergency in the Conduct of the business of the corporation resulting from an attack on the United States or any nuclear or atomic disaster, notwithstanding any different provision in the preceding Articles of the Bylaws or in the Articles of Incorporation of the corporation, or in the Minnesota Business Corporation Act. To the extent not inconsistent with the provisions of this Article, the Bylaws provided in the preceding
Articles shall remain in effect during such emergency and upon its termination the Emergency Bylaws shall cease to be operative.
During any such emergency:
(a) A meeting of the Board of Directors may be called by any officer or director of the corporation. Notice of the time and place of the meeting shall be given by the person calling the meeting to such of the directors as it may be feasible to reach by any available means of communication. Such notice shall be given at such time in advance of the meeting as circumstances permit in the judgment of the person calling the meeting.
(b) At any such meeting of the Board of Directors, a quorum shall consist of two (2).
(c) The Board of Directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such an emergency any or all officers or agents of the corporation shall for any reason be rendered incapable of discharging their duties.
(d) The Board of Directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers to do so.
No officer, director or employee acting in accordance with these emergency Bylaws shall be liable except for willful misconduct.
These Emergency Bylaws shall be subject to repeal or change by further action of the Board of Directors or by action of the shareholders, but no such repeal or change shall modify the provisions of the next preceding paragraph with regard to action taken prior to the time of such repeal or change. Any amendment of these Emergency Bylaws may make any further or different provision that may be practical and necessary for the circumstances of the emergency.
Duly adopted by the Board of Directors on the day of , 200[ ].
WITNESS my hand and the seal of the corporation this [ ].
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Peter S. Reinhart, Secretary of |
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Exhibit 4.2
111/2% SENIOR SECURED NOTES DUE 2013
REGISTRATION RIGHTS AGREEMENT
Dated as of May 27, 2008
by and among
K. Hovnanian Enterprises, Inc.
Hovnanian Enterprises, Inc.
And Certain of its Subsidiaries
and
CREDIT SUISSE SECURITIES (USA) LLC
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
WACHOVIA
CAPITAL MARKETS, LLC,
as Representatives of the Initial Purchasers
This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 27, 2008 by and among K. Hovnanian Enterprises, Inc., a California corporation (the “Company”), Hovnanian Enterprises, Inc., a Delaware corporation (“Hovnanian”), and certain subsidiary guarantors of Hovnanian party hereto (together with Hovnanian, the “Guarantors”) and Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, J.P. Morgan Securities Inc., and Wachovia Capital Markets, LLC, as Representatives of the several initial purchasers listed in Schedule A to the Purchase Agreement (as defined below) (each an “Initial Purchaser” and, collectively, the “Initial Purchasers”), each of whom has agreed to purchase the Company’s 111/2% Senior Secured Notes due 2013 (the “Notes”) pursuant to the Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated May 16, 2008 (the “Purchase Agreement”), by and among the Company, the Guarantors party thereto and the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Notes, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchasers set forth in Section 7 of the Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Indenture, dated as of May 27, 2008, among the Company, the Guarantors and Deutsche Bank National Trust Company, as trustee (the “Trustee”), relating to the Notes and the Exchange Notes (as defined below) (the “Indenture”).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Certificated Notes, as defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon the occurrence of (a) the filing and effectiveness
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under the Act of the Exchange Offer Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (b) the maintenance of such Exchange Offer Registration Statement as continuously effective and the keeping of the Exchange Offer open for a period not less than the period required pursuant to Section 3(b) hereof and (c) the delivery by the Company to the Trustee under the Indenture of Exchange Notes in the same aggregate principal amount as the aggregate principal amount of Notes tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) or 4(a) hereof, as applicable.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company’s 111/2% Senior Secured Notes due 2013 to be issued under the Indenture: (i) in the Exchange Offer or (ii) as contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Company of a principal amount of Exchange Notes (which shall be registered pursuant to the Exchange Offer Registration Statement) equal to the outstanding principal amount of Notes that are tendered by Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related Prospectus.
Filing Deadline: As defined in Sections 3(a) or 4(a) hereof, as applicable.
Holders: As defined in Section 2 hereof.
Participating Broker-Dealer: As defined in Section 3(c) hereof.
Prospectus: The prospectus included in a Registration Statement at the time such Registration Statement is declared effective, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: The Exchange Offer Registration Statement or the Shelf Registration Statement, as applicable, and, in each case, including the Prospectus and exhibits included therein.
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Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Selling Holders: As defined in Section 6(c)(xi).
Shelf Registration Statement: As defined in Section 4(a) hereof.
Shelf Underwriters: As defined in Section 6(c)(xi)(A)(1).
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to occur of (a) the date on which such Note is exchanged in the Exchange Offer for an Exchange Note which is entitled to be resold to the public by the Holder thereof without complying with the prospectus delivery requirements of the Act, (b) the date on which such Note has been disposed of in accordance with a Shelf Registration Statement or (c) the date on which such Note is distributed to the public pursuant to Rule 144 or Regulation S under the Act and each Exchange Security issued to a Broker-Dealer until the date on which such Exchange Security is disposed of by such Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer Registration Statement (including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities (a “Holder”) whenever such person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal law (after the procedures set forth in Section 6(a)(i) below have been complied with), the Company and the Guarantors shall (i) cause the Exchange Offer Registration Statement to be filed with the Commission as soon as practicable after the Closing Date, but in no event later than 120 days after the Closing Date (such 120th day being the “Filing Deadline”), (ii) use their reasonable best efforts to cause such Exchange Offer Registration Statement to become effective at the earliest possible time, but in no event later than 180 days after the Closing Date (such 180th day being the “Effectiveness Deadline”), (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order to cause it to become effective, (B) file, if applicable, a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause all necessary filings, if any, in connection with the registration and
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qualification of the Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer, provided, however, that neither the Company nor any Guarantor shall be required to register or qualify as a foreign corporation or other entity, as applicable, where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Exchange Offer Registration Statement, in any jurisdiction where it is not now so subject; (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting (i) registration of the Exchange Notes to be offered in exchange for the Notes that are Transfer Restricted Securities and (ii) resales of Exchange Notes by Broker-Dealers that tendered into the Exchange Offer Notes that such Broker-Dealer acquired for its own account as a result of market making activities or other trading activities (other than Notes acquired directly from the Company, the Guarantors or any of their Affiliates) as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their respective reasonable best efforts to cause the Exchange Offer Registration Statement to be effective continuously for the period specified in Section 3(c) below and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 20 Business Days. The Company and the Guarantors shall cause the Exchange Offer to comply with all applicable federal and state securities laws. No securities other than the Exchange Notes and the guarantees thereof shall be included in the Exchange Offer Registration Statement. The Company and the Guarantors shall use their reasonable best efforts to cause the Exchange Offer to be Consummated on or prior to 30 Business Days after the Exchange Offer Registration Statement has become effective, but in no event later than 40 Business Days thereafter (such 40th day being the “Consummation Deadline”).
(c) The Company shall include a “Plan of Distribution” section in the Prospectus contained in the Exchange Offer Registration Statement and indicate therein that any Broker-Dealer who holds Transfer Restricted Securities that were acquired for the account of such Broker-Dealer as a result of market-making activities or other trading activities (other than Notes acquired directly from the Company, the Guarantors or any of their Affiliates) (a “Participating Broker-Dealer”) may exchange such Transfer Restricted Securities pursuant to the Exchange Offer. Such “Plan of Distribution” section shall also contain all other information with respect to such sales by such Participating Broker-Dealers that the Commission may require in order to permit such sales pursuant thereto, but such “Plan of Distribution” shall not name any such Participating Broker-Dealer or disclose the amount of Transfer Restricted Securities held by any such Participating Broker-Dealer, except to the extent required by the Commission as a
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result of a change in policy, rules or regulations after the date of this Agreement. See the Shearman & Sterling No-Action Letter (available July 2, 1993).
Because such Participating Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Act and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with its initial sale of any Exchange Notes received by such Participating Broker-Dealer in the Exchange Offer, the Company and Guarantors shall permit the use of the Prospectus contained in the Exchange Offer Registration Statement by such Participating Broker-Dealer to satisfy such prospectus delivery requirement. In light of the foregoing, if requested by any Participating Broker-Dealer and to the extent necessary to ensure that the prospectus contained in the Exchange Offer Registration Statement is available for sales of Exchange Notes by Broker-Dealers, the Company and the Guarantors agree to use their respective best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented, amended and current as required by and subject to the provisions of Sections 6(a) and (c) hereof and in conformity with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time for a period of 180 days from the Consummation Deadline or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold pursuant thereto. The Company and the Guarantors shall provide sufficient copies of the latest version of such Prospectus to such Broker-Dealers promptly upon request and in no event later than one Business Day after such request at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by applicable law (after the Company and the Guarantors have complied with the procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer Restricted Securities shall notify the Company within 20 Business Days following the Consummation Deadline that (A) based on an opinion of counsel, such Holder was prohibited by law or Commission policy from participating in the Exchange Offer or (B) such Holder is a Broker-Dealer and holds Notes acquired directly from the Company or any of its Affiliates, then the Company and the Guarantors shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i) the date on which the Company determines that the Exchange Offer Registration Statement cannot be filed as a result of clause (a)(i) above and (ii) the date on which the Company receives the notice specified in clause (a)(ii) above, (such earlier date, the “Filing Deadline”), a shelf registration statement pursuant to Rule 415 under the Act (which may be an amendment to the Exchange Offer Registration Statement) (the “Shelf Registration Statement”), relating to all Transfer Restricted Securities, and
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(y) shall use their respective reasonable best efforts to cause such Shelf Registration Statement to become effective on or prior to 90 days after the Filing Deadline for the Shelf Registration Statement (such 90th day being the “Effectiveness Deadline”).
If, after the Company has filed an Exchange Offer Registration Statement that satisfies the requirements of Section 3(a) above, the Company is required to file and make effective a Shelf Registration Statement solely because the Exchange Offer is not permitted under applicable federal law (i.e., clause (a)(i) above), then the filing of the Exchange Offer Registration Statement shall be deemed to satisfy the requirements of clause (x) above; provided that, in such event, the Company shall remain obligated to meet the Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is available for sales of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section 4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and the Guarantors shall use their respective reasonable best efforts to keep any Shelf Registration Statement required by this Section 4(a) continuously effective, supplemented, amended and current as required by and subject to the provisions of Sections 6(b) and (c) hereof and in conformity with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least one year (as extended pursuant to Section 6(d)) following the Closing Date, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 days after receipt of a request therefor, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder of Transfer Restricted Securities shall be entitled to additional interest pursuant to Section 5 hereof unless and until such Holder shall have provided all such information. Each selling Holder agrees to promptly furnish additional information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
If (i) any Registration Statement required by this Agreement is not filed with the Commission on or prior to the applicable Filing Deadline, (ii) any such Registration Statement has not been declared effective by the Commission on or
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prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the Consummation Deadline or (iv) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded immediately by a post-effective amendment to such Registration Statement that cures such failure and that is itself declared effective within 5 days of filing such post-effective amendment to such Registration Statement (each such event referred to in clauses (i) through (iv), a “Registration Default”), then the Company and the Guarantors hereby jointly and severally agree to pay to each Holder of Transfer Restricted Securities affected thereby additional interest in an amount equal to $.05 per week per $1,000 in principal amount of Transfer Restricted Securities held by such Holder for each week or portion thereof that the Registration Default continues for the first 90-day period immediately following the occurrence of such Registration Default. The amount of additional interest shall increase by an additional $.05 per week per $1,000 in principal amount of Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of additional interest of $.25 per week per $1,000 in principal amount of Transfer Restricted Securities; provided that the Company and the Guarantors shall in no event be required to pay additional interest for more than one Registration Default at any given time. Notwithstanding anything to the contrary set forth herein, (1) upon the filing of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon the filing of a post-effective amendment to the Registration Statement or an additional Registration Statement that causes the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement) to again be declared effective or made usable in the case of (iv) above, the additional interest payable with respect to the Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued additional interest shall be paid to the Holders entitled thereto in the manner provided for the payment of interest in the Indenture on each Interest Payment Date as more fully set forth in the Indenture and the Notes. Notwithstanding the fact that any securities for which additional interest is due cease to be Transfer Restricted Securities, all obligations of the Company and the Guarantors to pay additional interest with respect to securities shall survive until such time as such obligations with respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company and the Guarantors shall (x) comply with all
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applicable provisions of Section 6(c) below, (y) use their respective reasonable best efforts to effect such exchange and to permit the resale of Exchange Notes by Broker-Dealers that tendered in the Exchange Offer Notes that such Broker-Dealer acquired for its own account as a result of its market making activities or other trading activities (other than Notes acquired directly from the Company, the Guarantors or any of their Affiliates) being sold in accordance with the intended method or methods of distribution thereof and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change in Commission policy with respect to exchange offers such as the Exchange Offer that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Exchange Offer is permitted by applicable federal law, the Company and the Guarantors hereby agree to seek a no-action letter or other favorable decision from the Commission allowing the Company and the Guarantors to Consummate an Exchange Offer for Transfer Restricted Securities. The Company and the Guarantors hereby agree to pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company and the Guarantors hereby agree to take all such other actions as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including, without limitation, (A) participating in telephonic conferences with the Commission, (B) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that such an Exchange Offer should be permitted and (C) diligently pursuing a resolution (which need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each Holder of Transfer Restricted Securities (including, without limitation, any Holder who is a Broker-Dealer) shall furnish, upon the request of the Company, prior to the Consummation of the Exchange Offer, a written representation to the Company and the Guarantors (which may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an Affiliate of the Company or the Guarantors, (B) it is not engaged in, does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course of business. As a condition to its participation in the Exchange Offer each Holder using the Exchange Offer to participate in a distribution of the Exchange Notes shall acknowledge and agree that, if the resales are of Exchange Notes obtained by such Holder in exchange for Notes acquired directly from the Company, the Guarantors or an Affiliate thereof, it (1) could not, under Commission policy as in effect on the date of this Agreement, rely on the position of the Commission enunciated in
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the Morgan Stanley and Company Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation No-Action Letters (available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling (available July 2, 1993) and similar No-Action Letters (including, if applicable, any No-Action Letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Act in connection with a secondary resale transaction and that such a secondary resale transaction must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall provide a supplemental letter to the Commission (A) stating that the Company and the Guarantors are registering the Exchange Offer in reliance on the position of the Commission enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B) including a representation that neither the Company nor any Guarantor has entered into any arrangement or understanding with any Person to distribute the Exchange Notes to be received in the Exchange Offer and that, to the best of the Company’s and each Guarantor’s information and belief, each Holder participating in the Exchange Offer is acquiring the Exchange Notes in its ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes received in the Exchange Offer and (C) any other undertaking or representation required by the Commission as set forth in any no-action letter obtained pursuant to clause (i) above, if applicable.
(iv) If requested by any Participating Broker-Dealer delivering the Prospectus contained in the Exchange Offer Registration Statement in connection with its initial sale of any Exchange Notes received by it in the Exchange Offer, the Company and the Guarantors shall use their best efforts to furnish to each such Participating Broker-Dealer (i) an opinion of counsel of the Company and the Guarantors addressed to such Participating Broker-Dealer covering the matters set forth in Section 6(c)(xi)(A)(2) herein with such changes as are customary in connection with an Exchange Offer Registration Statement and (ii) a comfort letter, addressed to such Participating Broker-Dealer from the Company’s independent public accountants, in the customary form, covering the matters set forth in Section 6(c)(xi)(A)(3) herein, with appropriate date changes.
(b) Shelf Registration Statement. In connection with the Shelf Registration Statement, the Company and the Guarantors shall:
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(i) comply with all the provisions of Section 6(c) below and use their respective reasonable best efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (as indicated in the information furnished to the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company and the Guarantors will prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof within the time periods and otherwise in accordance with the provisions hereof.
(ii) issue, upon the request of any Holder or purchaser of Notes covered by any Shelf Registration Statement contemplated by this Agreement, Exchange Notes having an aggregate principal amount equal to the aggregate principal amount of Notes sold pursuant to the Shelf Registration Statement and surrendered to the Company for cancellation; the Company shall register Exchange Notes on the Shelf Registration Statement for this purpose and issue the Exchange Notes to the purchaser(s) of securities subject to the Shelf Registration Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and any related Prospectus required by this Agreement, the Company and the Guarantors shall:
(i) use their respective reasonable best efforts to keep such Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 or 4 of this Agreement, as applicable. Upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain an untrue statement of material fact or omit to state any material fact necessary to make the statements therein not misleading or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company and the Guarantors shall file promptly an appropriate amendment or supplement to such Registration Statement curing such defect, and, if Commission review is required, use their respective best efforts to cause such amendment to be declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and post-effective amendments to the applicable Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as the case may be; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as
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applicable, under the Act in a timely manner; and comply with the provisions of the Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or Prospectus;
(iii) in the case of a Shelf Registration Statement or if requested by a Participating Broker-Dealer, advise each Holder promptly and, if requested by such Holder, confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any applicable Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, and (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Company and the Guarantors shall use their respective reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
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(v) in the case of a Shelf Registration Statement, furnish (or, to the extent permitted by law, make available) to each Holder, before filing with the Commission, copies of any Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), which documents will be subject to the review and comment of such Holders in connection with such sale, if any, for a period of at least five Business Days, and the Company will not file any such Shelf Registration Statement or Prospectus or any amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents incorporated by reference) to which such Holders shall reasonably object within five Business Days after the receipt thereof. A Holder shall be deemed to have reasonably objected to such filing if such Shelf Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains an untrue statement of a material fact or omits to state any material fact necessary to make the statements therein not misleading or fails to comply with the applicable requirements of the Act;
(vi) in the case of a Shelf Registration Statement, promptly prior to the filing of any document that is to be incorporated by reference into a Registration Statement or Prospectus, provide (or, to the extent permitted by law, make available) copies of such document, if any, to each Holder, make the Company’s and the Guarantors’ representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such Holders may reasonably request;
(vii) in the case of a Shelf Registration Statement, make available, at reasonable times, for inspection by each Holder and any attorney or accountant retained by such Holders, all pertinent financial and other records and pertinent corporate documents of the Company and the Guarantors as shall be necessary to enable them to exercise any applicable due diligence responsibilities and cause the Company’s and the Guarantors’ officers, directors and employees to supply all information reasonably requested by any such Holder, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; provided that if any such information is identified by the Company or any Guarantor as being confidential or proprietary, each such Holder, attorney, accountant or any other person receiving such information shall take all actions as are reasonably necessary to protect the confidentiality of such information to the extent that such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of such Holder;
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(viii) if requested by any Holders, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Holders may reasonably request to have included therein, including, without limitation, information relating to the “Plan of Distribution” of the Transfer Restricted Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such Prospectus supplement or post-effective amendment;
(ix) in the case of a Shelf Registration Statement, furnish (or, to the extent permitted by law, make available) to each Holder, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference);
(x) in the case of a Shelf Registration Statement or if requested by a Participating Broker-Dealer, deliver (or, to the extent permitted by law, make available) to each Holder without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Person reasonably may request; the Company and the Guarantors hereby consent to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each selling Holder in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
(xi) in the case of a Shelf Registration Statement and upon the request of any Holder of Transfer Restricted Securities covered thereby and being sold pursuant thereto (the “Selling Holders”), enter into such customary agreements (including underwriting agreements) and make such customary representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any applicable Registration Statement contemplated by this Agreement as may be reasonably requested by any such Selling Holder in connection with any sale or resale pursuant to any applicable Registration Statement. In such connection, the Company and the Guarantors shall:
(A) upon request of any such Selling Holder, furnish (or in the case of paragraphs (2) and (3), use their best efforts to cause to be furnished) to each such Selling Holder, as the case may be:
(1) a certificate, addressed to such Selling Holders and underwriters, if any, named in an underwriting agreement entered into pursuant to this Section 6(c)(xi) (the “Shelf Underwriters”),
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signed on behalf of Hovnanian by the Chief Financial Officer, confirming, as of the date thereof, the matters set forth in Sections 2(aa) and 2(dd) of the Purchase Agreement, that all the representations and warranties of the Company and Hovnanian contained in the Purchase Agreement are true and correct on the date of the certificate with the same force and effect as if made on and as of such date, and such other similar matters as such Selling Holders and Shelf Underwriters, if any, may reasonably request;
(2) an opinion of counsel for the Company and the Guarantors, addressed to such Selling Holders and Shelf Underwriters, if any, which shall cover matters similar to those set forth in subsections (c) and (d) of Section 7 of the Purchase Agreement and such other additional matters as such Selling Holders and Shelf Underwriters, if any, may reasonably request; and
(3) a comfort letter, addressed to such Selling Holders and Shelf Underwriters, if any, from the Company’s independent accountants, in the customary form and covering matters of the type customarily covered in comfort letters addressed to underwriters in connection with underwritten offerings.
(B) deliver such other documents and certificates as may be reasonably requested by such Selling Holders and Shelf Underwriters, if any, to evidence compliance with the matters covered in clause (A) above and with any customary conditions contained in any agreement entered into by the Company and the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities, cooperate with the selling Holders and their counsel in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as the selling Holders may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration Statement; provided, however, that neither the Company nor any Guarantor shall be required to register or qualify as a foreign corporation or other entity, as applicable, where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities pursuant to a Shelf Registration Statement that will result in such securities no longer being Transfer Restricted Securities, cooperate with
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the Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and to register such Transfer Restricted Securities in such denominations and such names as the selling Holders may request at least two Business Days prior to such sale of Transfer Restricted Securities;
(xiv) use their respective reasonable best efforts to cause the disposition of the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of a Registration Statement covering such Transfer Restricted Securities; and provide the Trustee under the Indenture with printed certificates for the Transfer Restricted Securities which are in a form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use their respective reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders with regard to any applicable Registration Statement, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) covering a twelve-month period beginning after the effective date of the Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not later than the effective date of the first Registration Statement required by this Agreement and, in connection therewith, cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA; and execute and use their best efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; and
(xviii) provide (or, to the extent permitted by law, make available) promptly to each Holder, upon request, each document filed with the Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act.
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(d) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof (in each case, a “Suspension Notice”), such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until (i) such Holder has received copies of the supplemented or amended Prospectus contemplated by Section 6(c)(iv) hereof or (ii) such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and, in each case, has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus (in each case, the “Recommencement Date”). Each Holder receiving a Suspension Notice hereby agrees that it will either (i) destroy any Prospectuses, other than permanent file copies, then in such Holder’s possession which have been replaced by the Company with more recently dated Prospectuses or (ii) deliver to the Company (at the Company’s expense) all copies, other than permanent file copies, then in such Holder’s possession of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of the Suspension Notice. The time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by a number of days equal to the number of days in the period from and including the date of delivery of the Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company’s and the Guarantors’ performance of, or compliance with, this Agreement will be borne by the Company and the Guarantors, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses; (ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including printing certificates for the Exchange Notes to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees and disbursements of counsel for the Company, the Guarantors and, in the case of a Shelf Registration Statement, of one counsel for the Holders of Transfer Restricted Securities, such counsel to be selected by a majority of the aggregate principal amount of Transfer Restricted Securities being sold; and (v) all fees and disbursements of independent certified public accountants of the Company and the Guarantors (including the expenses of any special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors’ internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company or the Guarantors.
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(b) In connection with any Registration Statement required by this Agreement, the Company and the Guarantors will reimburse the Initial Purchasers and the Holders of Transfer Restricted Securities who are tendering Notes in the Exchange Offer and/or selling or reselling Notes or Exchange Notes pursuant to the “Plan of Distribution” contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Davis Polk & Wardwell, unless another firm shall be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared. Notwithstanding the foregoing, such Holders shall be responsible for any and all underwriting discounts and commissions and, prior to employing counsel in connection with an Exchange Offer, the Initial Purchasers will notify the Company and the Company’s counsel and provide them reasonable opportunity to discuss the need for separate counsel; provided, however, the Initial Purchasers shall at all times retain the sole right to employ separate counsel.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to indemnify and hold harmless each Holder of Transfer Restricted Securities, its partners, directors, officers, and each person, if any, who controls such Holder within the meaning of Section 15 of the Securities Act against any losses, claims, damages or liabilities, joint or several, to which such Holder may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in a Registration Statement, preliminary prospectus or Prospectus (or in any amendment or supplement thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, and shall reimburse each Holder of Transfer Restricted Securities for any legal or other expenses reasonably incurred by such Holder of Transfer Restricted Securities in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement in or omission or alleged omission from a Registration Statement, preliminary prospectus or Prospectus or in any amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company and the Guarantors by any such Holder of Transfer Restricted Securities or on behalf of such Holder of Transfer Restricted Securities specifically for inclusion therein; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and
17
the Guarantors may otherwise have to such Holder of Transfer Restricted Securities and their controlling persons named above.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors, their respective directors and officers and each person, if any, who controls the Company or any Guarantors within the meaning of Section 15 of the Securities Act against any losses, claims, damages or liabilities to which the Company or the Guarantors may become subject, under the Securities Act or the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in a Registration Statement, preliminary prospectus or Prospectus (or in any amendment or supplement thereto) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, but in each case only to the extent that such untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company and the Guarantors by or on behalf of such Holder specifically for inclusion therein; and, shall reimburse, as incurred, the Company, the Guarantors for any legal or other expenses reasonably incurred by the Company or the Guarantors in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which such Holder of Transfer Restricted Securities may otherwise have to the Company and the Guarantors or any of their controlling persons named above.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have under subsection (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other
18
expenses subsequently incurred by such indemnified party in connection with the defense thereof, other than reasonable costs of investigation. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Holders of Transfer Restricted Securities on the other from the sale of the Transfer Restricted Securities pursuant to a Registration Statement or the exchange of the Transfer Restricted Securities pursuant to the Exchange Offer, or (ii) if the allocation provided by the foregoing clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors on the one hand and the Holders of Transfer Restricted Securities on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Holders on the other shall be deemed to be in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors from the offering of the Transfer Restricted Securities pursuant to the Purchase Agreement and the securities to be issued in an Exchange Offer or pursuant to a Shelf Registration Statement, on the one hand, and by the Holders from receiving Transfer Restricted Securities or securities registered under the Securities Act pursuant to an Exchange Offer or a Shelf Registration Statement, on the other hand. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantors on the one hand or such Holder on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding any other provision of this Section 8(d), the
19
Holders of the Transfer Restricted Securities shall not be required to contribute any amount in excess of the amount by which the total proceeds received by such Holders from the sale of the Transfer Restricted Securities pursuant to a Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph (d), each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party and each person, if any, who controls the Company or the Guarantors within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Company and the Guarantors.
(e) The agreements contained in this Section 8 shall survive the sale of the Transfer Restricted Securities pursuant to a Shelf Registration Statement or the exchange of the Transfer Restricted Securities pursuant to an Exchange Offer and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
SECTION 9. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that any failure by the Company and/or the Guarantors to comply with their respective obligations under Sections 3 and 4 hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company’s and the Guarantor’s obligations under Sections 3 and 4 hereof. To the extent permitted by applicable law, the Company and the Guarantors further agree to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor will, on or after the date of this Agreement, enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company’s and the Guarantors’ securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless (i) in the case of
20
Section 5 hereof and this Section 9(c)(i), the Company has obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case of all other provisions hereof, the Company has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities (excluding Transfer Restricted Securities held by the Company or a Guarantor or their Affiliates). Notwithstanding the foregoing, a waiver or consent to a departure from the provisions hereof that relates exclusively to the rights of Holders whose Transfer Restricted Securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose Transfer Restricted Securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries to the agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent they may deem such enforcement necessary or advisable to protect their rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
c/o Hovnanian Enterprises, Inc.
110 West Front Street
P.O. Box 500
Red Bank, NJ 07701
Telecopier No.: 732-383-2945
Attention: General Counsel
with a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Ave.
New York, NY
10017
Telecopier No.: 212-455-2502
Attention: Vincent Pagano Jr., Esq.
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All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next business day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation, and without the need for an express assignment, subsequent Holders; provided, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of this Agreement, and, by taking and holding such Transfer Restricted Securities, such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. To the extent permitted by applicable law, in the event that any one or more of the provisions contained herein or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive
22
statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings other than those set forth or referred to herein with respect to the registration rights granted with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
K. HOVNANIAN ENTERPRISES, INC.
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By: |
/s/ PETER S. REINHART |
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Name: Peter S. Reinhart |
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Title: General Counsel |
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HOVNANIAN ENTERPRISES, INC.
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By: |
/s/ PETER S. REINHART |
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Name: Peter S. Reinhart |
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Title: General Counsel |
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On behalf of each entity named in
Schedule A hereto
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By: |
/s/ PETER S. REINHART |
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Name: Peter S. Reinhart |
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Title: General Counsel |
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24
Credit Suisse Securities (USA) LLC
Banc of America Securities LLC
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC,
as Representatives of the several Initial Purchasers
listed in Schedule A of the Purchase Agreement
By: Credit Suisse Securities (USA) LLC
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By: |
/s/ ERIC A. ANDERSON |
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Name: Eric A. Anderson |
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Title: Managing Director |
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25
SCHEDULE A
GUARANTORS
ALFORD, L.L.C.
AUDDIE ENTERPRISES, L.L.C.
BUILDER SERVICES NJ, L.L.C.
BUILDER SERVICES NY, L.L.C.
BUILDER SERVICES PA, L.L.C.
DULLES COPPERMINE, L.L.C.
EASTERN TITLE AGENCY, INC.
F&W MECHANICAL SERVICES, L.L.C.
FOUNDERS TITLE AGENCY OF MARYLAND, L.L.C.
FOUNDERS TITLE AGENCY, INC.
GOVERNOR’S ABSTRACT CO., INC.
GREENWAY FARMS UTILITY ASSOCIATES, L.L.C.
HOMEBUYERS FINANCIAL SERVICES, L.L.C.
HOVNANIAN DEVELOPMENTS OF FLORIDA, INC.
HOVNANIAN ENTERPRISES, INC.
HOVNANIAN LAND INVESTMENT GROUP OF CALIFORNIA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF FLORIDA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF GEORGIA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF MARYLAND, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF NEW JERSEY, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF NORTH CAROLINA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF PENNSYLVANIA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF TEXAS, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP OF VIRGINIA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP, L.L.C.
HUDSON POINTE JOINT DEVELOPMENT, L.L.C.
K. HOV I P, INC.
K. HOV INTERNATIONAL, INC.
K. HOV IP, II, INC.
K. HOVNANIAN ACQUISITIONS, INC.
K. HOVNANIAN AT 3 CHAPMAN, L.L.C.
K. HOVNANIAN AT 4S, LLC
K. HOVNANIAN AT ABERDEEN URBAN RENEWAL, L.L.C.
K. HOVNANIAN AT ACQUA VISTA, LLC
K. HOVNANIAN AT ALISO, LLC
K. HOVNANIAN AT ALLENBERRY, L.L.C.
K. HOVNANIAN AT ALLENDALE, L.L.C.
K. HOVNANIAN AT ALLENTOWN, L.L.C.
K. HOVNANIAN AT ARBOR HEIGHTS, LLC
K. HOVNANIAN AT AVENUE ONE, L.L.C.
K. HOVNANIAN AT BARNEGAT I, L.L.C.
K. HOVNANIAN AT BARNEGAT II, L.L.C.
K. HOVNANIAN AT BARNEGAT III, L.L.C.
K. HOVNANIAN AT BELLA LAGO, LLC
K. HOVNANIAN AT BERKELEY, L.L.C.
K. HOVNANIAN AT BERNARDS IV, INC.
K. HOVNANIAN AT BERNARDS V, L.L.C.
K. HOVNANIAN AT BLUE HERON PINES, L.L.C.
K. HOVNANIAN AT BRANCHBURG III, INC.
K. HOVNANIAN AT BRIDGEPORT, INC.
K. HOVNANIAN AT BRIDGEWATER I, L.L.C.
K. HOVNANIAN AT BRIDGEWATER VI, INC.
K. HOVNANIAN AT BRIDLEWOOD, L.L.C.
K. HOVNANIAN AT BROAD AND WALNUT, L.L.C.
26
K. HOVNANIAN AT BURLINGTON III, INC.
K. HOVNANIAN AT BURLINGTON, INC.
K. HOVNANIAN AT CALABRIA, INC.
K. HOVNANIAN AT CAMDEN I, L.L.C.
K. HOVNANIAN AT CAMERON CHASE, INC.
K. HOVNANIAN AT CAMP HILL, L.L.C.
K. HOVNANIAN AT CAPISTRANO, L.L.C.
K. HOVNANIAN AT CARMEL DEL MAR, INC.
K. HOVNANIAN AT CARMEL VILLAGE, LLC
K. HOVNANIAN AT CASTILE, INC.
K. HOVNANIAN AT CEDAR GROVE III, L.L.C.
K. HOVNANIAN AT CEDAR GROVE IV, L.L.C.
K. HOVNANIAN AT CHAPARRAL, INC.
K. HOVNANIAN AT CHESTER I, L.L.C.
K. HOVNANIAN AT CHESTERFIELD II, L.L.C.
K. HOVNANIAN AT CHESTERFIELD, L.L.C.
K. HOVNANIAN AT CIELO, L.L.C.
K. HOVNANIAN AT CLARKSTOWN, INC.
K. HOVNANIAN AT CLIFTON II, L.L.C.
K. HOVNANIAN AT CLIFTON, L.L.C.
K. HOVNANIAN AT COASTLINE, L.L.C.
K. HOVNANIAN AT CORTEZ HILL, LLC
K. HOVNANIAN AT CRANBURY, L.L.C.
K. HOVNANIAN AT CRESTLINE, INC.
K. HOVNANIAN AT CURRIES WOODS, L.L.C.
K. HOVNANIAN AT DENVILLE, L.L.C.
K. HOVNANIAN AT DEPTFORD TOWNSHIP, L.L.C.
K. HOVNANIAN AT DOMINGUEZ HILLS, INC.
K. HOVNANIAN AT DOVER, L.L.C.
K. HOVNANIAN AT EAST BRANDYWINE, L.L.C.
K. HOVNANIAN AT EAST WHITELAND I, INC.
K. HOVNANIAN AT EASTLAKE, LLC
K. HOVNANIAN AT EDGEWATER II, L.L.C.
K. HOVNANIAN AT EDGEWATER, L.L.C.
K. HOVNANIAN AT EGG HARBOR TOWNSHIP II, L.L.C.
K. HOVNANIAN AT EGG HARBOR TOWNSHIP, L.L.C.
K. HOVNANIAN AT ELK TOWNSHIP, L.L.C.
K. HOVNANIAN AT ENCINITAS RANCH, LLC
K. HOVNANIAN AT EVERGREEN, L.L.C.
K. HOVNANIAN AT EWING, L.L.C.
K. HOVNANIAN AT FIFTH AVENUE, L.L.C.
K. HOVNANIAN AT FLORENCE I, L.L.C.
K. HOVNANIAN AT FLORENCE II, L.L.C.
K. HOVNANIAN AT FOREST MEADOWS, L.L.C.
K. HOVNANIAN AT FORKS TWP. I, L.L.C.
K. HOVNANIAN AT FRANKLIN, L.L.C.
K. HOVNANIAN AT FREEHOLD TOWNSHIP I, INC.
K. HOVNANIAN AT FREEHOLD TOWNSHIP, L.L.C.
K. HOVNANIAN AT GALLOWAY, L.L.C.
K. HOVNANIAN AT GASLAMP SQUARE, L.L.C.
K. HOVNANIAN AT GREAT NOTCH, L.L.C.
K. HOVNANIAN AT GUTTENBERG, L.L.C.
K. HOVNANIAN AT HACKETTSTOWN II, L.L.C.
K. HOVNANIAN AT HACKETTSTOWN, INC.
K. HOVNANIAN AT HAMBURG CONTRACTORS, L.L.C.
K. HOVNANIAN AT HAMBURG, L.L.C.
K. HOVNANIAN AT HAWTHORNE, L.L.C
K. HOVNANIAN AT HAZLET, L.L.C.
K. HOVNANIAN AT HERSHEY’S MILL, INC.
K. HOVNANIAN AT HIGHLAND SHORES, L.L.C.
K. HOVNANIAN AT HIGHLAND VINEYARDS, INC.
K. HOVNANIAN AT HIGHWATER, L.L.C.
27
K. HOVNANIAN AT HILLTOP, L.L.C.
K. HOVNANIAN AT HOPEWELL IV, INC.
K. HOVNANIAN AT HOPEWELL VI, INC.
K. HOVNANIAN AT HOWELL TOWNSHIP, INC.
K. HOVNANIAN AT HUDSON POINTE, L.L.C.
K. HOVNANIAN AT JACKSON I, L.L.C.
K. HOVNANIAN AT JACKSON, L.L.C.
K. HOVNANIAN AT JERSEY CITY IV, L.L.C.
K. HOVNANIAN AT JERSEY CITY V URBAN RENEWAL COMPANY, L.L.C.
K. HOVNANIAN AT KEYPORT, L.L.C.
K. HOVNANIAN AT KING FARM, L.L.C.
K. HOVNANIAN AT KINGS GRANT I, INC.
K. HOVNANIAN AT LA COSTA GREENS, L.L.C.
K. HOVNANIAN AT LA COSTA, LLC
K. HOVNANIAN AT LA HABRA KNOLLS, LLC
K. HOVNANIAN AT LA TERRAZA, INC.
K. HOVNANIAN AT LAFAYETTE ESTATES, L.L.C.
K. HOVNANIAN AT LAKE HILLS, L.L.C.
K. HOVNANIAN AT LAKE RANCHO VIEJO, LLC
K. HOVNANIAN AT LAKE RIDGE CROSSING, L.L.C.
K. HOVNANIAN AT LAKE TERRAPIN, L.L.C.
K. HOVNANIAN AT LAKEWOOD, INC.
K. HOVNANIAN AT LAWRENCE V, L.L.C.
K. HOVNANIAN AT LINWOOD, L.L.C.
K. HOVNANIAN AT LITTLE EGG HARBOR CONTRACTORS, L.L.C.
K. HOVNANIAN AT LITTLE EGG HARBOR III, L.L.C.
K. HOVNANIAN AT LITTLE EGG HARBOR TOWNSHIP II, L.L.C.
K. HOVNANIAN AT LITTLE EGG HARBOR, L.L.C.
K. HOVNANIAN AT LONG BRANCH I, L.L.C.
K. HOVNANIAN AT LOWER MACUNGIE TOWNSHIP I, L.L.C.
K. HOVNANIAN AT LOWER MACUNGIE TOWNSHIP II, L.L.C.
K. HOVNANIAN AT LOWER MAKEFIELD TOWNSHIP I, L.L.C.
K. HOVNANIAN AT LOWER MORELAND I, L.L.C.
K. HOVNANIAN AT LOWER MORELAND II, L.L.C.
K. HOVNANIAN AT LOWER MORELAND III, L.L.C.
K. HOVNANIAN AT LOWER SAUCON, INC.
K. HOVNANIAN AT MACUNGIE, L.L.C.
K. HOVNANIAN AT MAHWAH II, INC.
K. HOVNANIAN AT MAHWAH VI, INC.
K. HOVNANIAN AT MAHWAH VII, INC.
K. HOVNANIAN AT MANALAPAN III, L.L.C.
K. HOVNANIAN AT MANALAPAN, INC.
K. HOVNANIAN AT MANSFIELD I, L.L.C.
K. HOVNANIAN AT MANSFIELD II, L.L.C.
K. HOVNANIAN AT MANSFIELD III, L.L.C.
K. HOVNANIAN AT MAPLE AVENUE, L.L.C.
K. HOVNANIAN AT MARLBORO II, INC.
K. HOVNANIAN AT MARLBORO TOWNSHIP III, INC.
K. HOVNANIAN AT MARLBORO TOWNSHIP IV, INC.
K. HOVNANIAN AT MARLBORO TOWNSHIP IX, L.L.C.
K. HOVNANIAN AT MARLBORO TOWNSHIP V, L.L.C.
K. HOVNANIAN AT MARLBORO TOWNSHIP VIII, L.L.C.
K. HOVNANIAN AT MARLBORO VI, L.L.C.
K. HOVNANIAN AT MARLBORO VII, L.L.C.
K. HOVNANIAN AT MATSU, L.L.C.
K. HOVNANIAN AT MENDHAM TOWNSHIP, L.L.C.
K. HOVNANIAN AT MENIFEE VALLEY CONDOMINIUMS, L.L.C.
K. HOVNANIAN AT MENIFEE, L.L.C.
K. HOVNANIAN AT MIDDLE TOWNSHIP II, L.L.C.
K. HOVNANIAN AT MIDDLE TOWNSHIP, L.L.C.
K. HOVNANIAN AT MIDDLETOWN II, L.L.C.
K. HOVNANIAN AT MIDDLETOWN, L.L.C.
28
K. HOVNANIAN AT MILLVILLE I, L.L.C.
K. HOVNANIAN AT MILLVILLE II, L.L.C.
K. HOVNANIAN AT MILLVILLE III, L.L.C.
K. HOVNANIAN AT MOCKINGBIRD CANYON, L.L.C.
K. HOVNANIAN AT MONROE II, INC.
K. HOVNANIAN AT MONROE III, L.L.C.
K. HOVNANIAN AT MONROE IV, L.L.C.
K. HOVNANIAN AT MONROE NJ, L.L.C.
K. HOVNANIAN AT MONTGOMERY I, INC.
K. HOVNANIAN AT MONTVALE, L.L.C.
K. HOVNANIAN AT MOSAIC, LLC
K. HOVNANIAN AT MT. OLIVE TOWNSHIP, L.L.C.
K. HOVNANIAN AT NEW BRUNSWICK URBAN RENEWAL, L.L.C.
K. HOVNANIAN AT NEW WINDSOR, L.L.C.
K. HOVNANIAN AT NORTH BERGEN, L.L.C.
K. HOVNANIAN AT NORTH BRUNSWICK VI, L.L.C.
K. HOVNANIAN AT NORTH CALDWELL II, L.L.C.
K. HOVNANIAN AT NORTH CALDWELL III, L.L.C.
K. HOVNANIAN AT NORTH CALDWELL, L.L.C.
K. HOVNANIAN AT NORTH HALEDON, L.L.C.
K. HOVNANIAN AT NORTH WILDWOOD, L.L.C.
K. HOVNANIAN AT NORTHAMPTON, L.L.C.
K. HOVNANIAN AT NORTHERN WESTCHESTER, INC.
K. HOVNANIAN AT NORTHFIELD, L.L.C.
K. HOVNANIAN AT NORTHLAKE, INC.
K. HOVNANIAN AT OCEAN TOWNSHIP, INC.
K. HOVNANIAN AT OCEAN WALK, INC.
K. HOVNANIAN AT OCEANPORT, L.L.C.
K. HOVNANIAN AT OLD BRIDGE, L.L.C.
K. HOVNANIAN AT OLDE ORCHARD, LLC
K. HOVNANIAN AT ORANGE HEIGHTS, L.L.C.
K. HOVNANIAN AT PACIFIC BLUFFS, LLC
K. HOVNANIAN AT PARAMUS, L.L.C.
K. HOVNANIAN AT PARK LANE, LLC
K. HOVNANIAN AT PARSIPPANY-TROY HILLS, L.L.C.
K. HOVNANIAN AT PEAPACK-GLADSTONE, L.L.C.
K. HOVNANIAN AT PERKIOMEN I, INC.
K. HOVNANIAN AT PERKIOMEN II, INC.
K. HOVNANIAN AT PHILADELPHIA II, L.L.C.
K. HOVNANIAN AT PHILADELPHIA III, L.L.C.
K. HOVNANIAN AT PHILADELPHIA IV, L.L.C.
K. HOVNANIAN AT PIAZZA D’ORO, L.L.C.
K. HOVNANIAN AT PITTSGROVE, L.L.C.
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL IV, L.L.C.
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL V, L.L.C.
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VI, L.L.C.
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VII, L.L.C.
K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VIII, L.L.C.
K. HOVNANIAN AT PRADO, L.L.C.
K. HOVNANIAN AT PRINCETON LANDING, L.L.C.
K. HOVNANIAN AT PRINCETON NJ, L.L.C.
K. HOVNANIAN AT RANCHO CRISTIANITOS, INC.
K. HOVNANIAN AT RANCHO SANTA MARGARITA, LLC
K. HOVNANIAN AT RANDOLPH I, L.L.C.
K. HOVNANIAN AT RAPHO, L.L.C.
K. HOVNANIAN AT READINGTON II, L.L.C.
K. HOVNANIAN AT RED BANK, L.L.C.
K. HOVNANIAN AT RESERVOIR RIDGE, INC.
K. HOVNANIAN AT RIDGEMONT, L.L.C.
K. HOVNANIAN AT RIDGESTONE, L.L.C.
K. HOVNANIAN AT RIVERBEND, LLC
K. HOVNANIAN AT RODERUCK, L.L.C.
29
K. HOVNANIAN AT ROSEMARY LANTANA, L.L.C.
K. HOVNANIAN AT ROWLAND HEIGHTS, LLC
K. HOVNANIAN AT SAGE, L.L.C.
K. HOVNANIAN AT SAN SEVAINE, INC.
K. HOVNANIAN AT SARATOGA, INC.
K. HOVNANIAN AT SAWMILL, INC.
K. HOVNANIAN AT SAYREVILLE, L.L.C.
K. HOVNANIAN AT SCOTCH PLAINS II, INC.
K. HOVNANIAN AT SCOTCH PLAINS, L.L.C.
K. HOVNANIAN AT SILVER SPRING, L.L.C.
K. HOVNANIAN AT SKYE ISLE, LLC
K. HOVNANIAN AT SMITHVILLE III, L.L.C.
K. HOVNANIAN AT SMITHVILLE, INC.
K. HOVNANIAN AT SOMERS POINT, L.L.C.
K. HOVNANIAN AT SOUTH BRUNSWICK V, INC.
K. HOVNANIAN AT SOUTH BRUNSWICK, L.L.C.
K. HOVNANIAN AT SPARTA, L.L.C.
K. HOVNANIAN AT SPRINGCO, L.L.C.
K. HOVNANIAN AT SPRINGFIELD, L.L.C.
K. HOVNANIAN AT STONE CANYON, INC.
K. HOVNANIAN AT STONY POINT, INC.
K. HOVNANIAN AT SUNSETS, LLC
K. HOVNANIAN AT SYCAMORE, INC.
K. HOVNANIAN AT TANNERY HILL, INC.
K. HOVNANIAN AT TEANECK, L.L.C.
K. HOVNANIAN AT THE BLUFF, INC.
K. HOVNANIAN AT THE CROSBY, LLC
K. HOVNANIAN AT THE GABLES, LLC
K. HOVNANIAN AT THE MONARCH, L.L.C.
K. HOVNANIAN AT THE PRESERVE, L.L.C.
K. HOVNANIAN AT THOMPSON RANCH, LLC
K. HOVNANIAN AT THORNBURY, INC.
K. HOVNANIAN AT TIERRASANTA, INC.
K. HOVNANIAN AT TRAIL RIDGE, LLC
K. HOVNANIAN AT TRENTON URBAN RENEWAL, L.L.C.
K. HOVNANIAN AT TRENTON, L.L.C.
K. HOVNANIAN AT TROVATA, INC.
K. HOVNANIAN AT TUXEDO, INC.
K. HOVNANIAN AT UNION TOWNSHIP I, INC.
K. HOVNANIAN AT UNION TOWNSHIP II, L.L.C.
K. HOVNANIAN AT UPPER FREEHOLD TOWNSHIP I, INC.
K. HOVNANIAN AT UPPER FREEHOLD TOWNSHIP II, L.L.C.
K. HOVNANIAN AT UPPER FREEHOLD TOWNSHIP III, L.L.C.
K. HOVNANIAN AT UPPER MAKEFIELD I, INC.
K. HOVNANIAN AT UPPER UWCHLAN II, L.L.C.
K. HOVNANIAN AT UPPER UWCHLAN, L.L.C.
K. HOVNANIAN AT VAIL RANCH, INC.
K. HOVNANIAN AT VERONA URBAN RENEWAL, L.L.C.
K. HOVNANIAN AT VINELAND, L.L.C.
K. HOVNANIAN AT WALL TOWNSHIP VI, INC.
K. HOVNANIAN AT WALL TOWNSHIP VIII, INC.
K. HOVNANIAN AT WANAQUE, L.L.C.
K. HOVNANIAN AT WARREN TOWNSHIP, L.L.C.
K. HOVNANIAN AT WASHINGTON, L.L.C.
K. HOVNANIAN AT WASHINGTONVILLE, INC.
K. HOVNANIAN AT WAYNE III, INC.
K. HOVNANIAN AT WAYNE IX, L.L.C.
K. HOVNANIAN AT WAYNE V, INC.
K. HOVNANIAN AT WAYNE VIII, L.L.C.
K. HOVNANIAN AT WEST BRADFORD, L.L.C.
K. HOVNANIAN AT WEST MILFORD, L.L.C.
K. HOVNANIAN AT WEST WINDSOR, L.L.C.
30
K. HOVNANIAN AT WILDROSE, INC.
K. HOVNANIAN AT WILDWOOD BAYSIDE, L.L.C.
K. HOVNANIAN AT WILLOW BROOK, L.L.C.
K. HOVNANIAN AT WINCHESTER, LLC
K. HOVNANIAN AT WOODHILL ESTATES, L.L.C.
K. HOVNANIAN AT WOOLWICH I, L.L.C.
K. HOVNANIAN CAMBRIDGE HOMES, L.L.C.
K. HOVNANIAN CENTRAL ACQUISITIONS, L.L.C.
K. HOVNANIAN CHESTERFIELD INVESTMENT, L.L.C.
K. HOVNANIAN CLASSICS CIP, L.L.C.
K. HOVNANIAN CLASSICS, L.L.C.
K. HOVNANIAN COMMUNITIES, INC.
K. HOVNANIAN COMPANIES METRO D.C. NORTH, L.L.C.
K. HOVNANIAN COMPANIES NORTHEAST, INC.
K. HOVNANIAN COMPANIES OF CALIFORNIA, INC.
K. HOVNANIAN COMPANIES OF MARYLAND, INC.
K. HOVNANIAN COMPANIES OF NEW YORK, INC.
K. HOVNANIAN COMPANIES OF PENNSYLVANIA, INC.
K. HOVNANIAN COMPANIES OF SOUTHERN CALIFORNIA, INC.
K. HOVNANIAN COMPANIES OF VIRGINIA, INC.
K. HOVNANIAN COMPANIES, LLC
K. HOVNANIAN CONNECTICUT ACQUISITIONS, L.L.C.
K. HOVNANIAN CONSTRUCTION II, INC
K. HOVNANIAN CONSTRUCTION III, INC
K. HOVNANIAN CONSTRUCTION MANAGEMENT, INC.
K. HOVNANIAN CRAFTBUILT HOMES OF SOUTH CAROLINA, L.L.C.
K. HOVNANIAN DELAWARE ACQUISITIONS, L.L.C.
K. HOVNANIAN DEVELOPMENTS OF ARIZONA, INC.
K. HOVNANIAN DEVELOPMENTS OF CALIFORNIA, INC.
K. HOVNANIAN DEVELOPMENTS OF CONNECTICUT, INC.
K. HOVNANIAN DEVELOPMENTS OF D.C., INC.
K. HOVNANIAN DEVELOPMENTS OF DELAWARE, INC.
K. HOVNANIAN DEVELOPMENTS OF GEORGIA, INC.
K. HOVNANIAN DEVELOPMENTS OF ILLINOIS, INC.
K. HOVNANIAN DEVELOPMENTS OF INDIANA, INC.
K. HOVNANIAN DEVELOPMENTS OF KENTUCKY, INC.
K. HOVNANIAN DEVELOPMENTS OF MARYLAND, INC.
K. HOVNANIAN DEVELOPMENTS OF MICHIGAN, INC.
K. HOVNANIAN DEVELOPMENTS OF MINNESOTA, INC.
K. HOVNANIAN DEVELOPMENTS OF NEW JERSEY II, INC.
K. HOVNANIAN DEVELOPMENTS OF NEW JERSEY, INC.
K. HOVNANIAN DEVELOPMENTS OF NEW YORK, INC.
K. HOVNANIAN DEVELOPMENTS OF NORTH CAROLINA, INC.
K. HOVNANIAN DEVELOPMENTS OF OHIO, INC.
K. HOVNANIAN DEVELOPMENTS OF PENNSYLVANIA, INC.
K. HOVNANIAN DEVELOPMENTS OF SOUTH CAROLINA, INC.
K. HOVNANIAN DEVELOPMENTS OF TEXAS, INC.
K. HOVNANIAN DEVELOPMENTS OF VIRGINIA, INC.
K. HOVNANIAN DEVELOPMENTS OF WEST VIRGINIA, INC.
K. HOVNANIAN EASTERN PENNSYLVANIA, L.L.C.
K. HOVNANIAN ENTERPRISES, INC.
K. HOVNANIAN FIRST HOMES, L.L.C.
K. HOVNANIAN FLORIDA REALTY, L.L.C.
K. HOVNANIAN FORECAST HOMES NORTHERN, INC.
K. HOVNANIAN FOUR SEASONS @ HISTORIC VIRGINIA, LLC
K. HOVNANIAN FOUR SEASONS AT GOLD HILL, LLC
K. HOVNANIAN FRANCISCUS HOMES, L.L.C.
K. HOVNANIAN GREAT WESTERN BUILDING COMPANY, LLC
K. HOVNANIAN GREAT WESTERN HOMES, LLC
K. HOVNANIAN HOLDINGS NJ, L.L.C.
K. HOVNANIAN HOMES - DFW, L.L.C.
K. HOVNANIAN HOMES AT BELMONT OVERLOOK, L.L.C.
31
K. HOVNANIAN HOMES AT CAMERON STATION, LLC
K. HOVNANIAN HOMES AT CAMP SPRINGS, L.L.C.
K. HOVNANIAN HOMES AT CIDER MILL, L.L.C.
K. HOVNANIAN HOMES AT FAIRWOOD, L.L.C.
K. HOVNANIAN HOMES AT FOREST RUN, L.L.C.
K. HOVNANIAN HOMES AT GREENWAY FARM PARK TOWNS, L.L.C.
K. HOVNANIAN HOMES AT GREENWAY FARM, L.L.C.
K. HOVNANIAN HOMES AT JONES STATION 1, L.L.C.
K. HOVNANIAN HOMES AT JONES STATION 2, L.L.C.
K. HOVNANIAN HOMES AT MAXWELL PLACE. L.L.C.
K. HOVNANIAN HOMES AT NASSAU GROVE, L.L.C.
K. HOVNANIAN HOMES AT PAYNE STREET, L.L.C.
K. HOVNANIAN HOMES AT PRIMERA, L.L.C.
K. HOVNANIAN HOMES AT RENAISSANCE PLAZA, L.L.C.
K. HOVNANIAN HOMES AT RUSSETT, L.L.C.
K. HOVNANIAN HOMES AT VICTORIA STATION, L.L.C.
K. HOVNANIAN HOMES OF D.C., L.L.C.
K. HOVNANIAN HOMES OF DELAWARE, L.L.C.
K. HOVNANIAN HOMES OF GEORGIA, L.L.C.
K. HOVNANIAN HOMES OF HOUSTON, L.L.C.
K. HOVNANIAN HOMES OF INDIANA, L.L.C.
K. HOVNANIAN HOMES OF MARYLAND, L.L.C.
K. HOVNANIAN HOMES OF MINNESOTA, L.L.C.
K. HOVNANIAN HOMES OF NORTH CAROLINA, INC.
K. HOVNANIAN HOMES OF PENNSYLVANIA, L.L.C.
K. HOVNANIAN HOMES OF SOUTH CAROLINA, LLC
K. HOVNANIAN HOMES OF VIRGINIA, INC.
K. HOVNANIAN HOMES OF WEST VIRGINIA, L.L.C.
K. HOVNANIAN HUDSON POINTE INVESTMENTS, L.L.C.
K. HOVNANIAN INTERNATIONAL, L.L.C.
K. HOVNANIAN INVESTMENTS II, L.L.C.
K. HOVNANIAN NORTH CENTRAL ACQUISITIONS, L.L.C.
K. HOVNANIAN NORTH JERSEY ACQUISITIONS, L.L.C.
K. HOVNANIAN NORTHEAST SERVICES, L.L.C.
K. HOVNANIAN OF HOUSTON II, L.L.C.
K. HOVNANIAN OHIO REALTY, L.L.C.
K. HOVNANIAN OSTER HOMES, L.L.C.
K. HOVNANIAN PA REAL ESTATE, INC.
K. HOVNANIAN PENNSYLVANIA ACQUISITIONS, L.L.C.
“K. HOVNANIAN POLAND, SP .Z.O.O.
LISTED AS: K. HOVNANIAN POLAND”
K. HOVNANIAN PORT IMPERIAL URBAN RENEWAL, INC.
K. HOVNANIAN PROPERTIES OF NORTH BRUNSWICK V, INC.
K. HOVNANIAN PROPERTIES OF RED BANK, INC.
K. HOVNANIAN SHORE ACQUISITIONS, L.L.C.
K. HOVNANIAN SOUTH JERSEY ACQUISITIONS, L.L.C.
K. HOVNANIAN SOUTHERN NEW JERSEY, L.L.C.
K. HOVNANIAN STANDING ENTITY, L.L.C.
K. HOVNANIAN SUMMIT HOLDINGS, L.L.C.
K. HOVNANIAN SUMMIT HOMES OF KENTUCKY, L.L.C.
K. HOVNANIAN SUMMIT HOMES OF MICHIGAN, L.L.C.
K. HOVNANIAN SUMMIT HOMES OF PENNSYLVANIA, L.L.C.
K. HOVNANIAN SUMMIT HOMES OF WEST VIRGINIA, L.L.C.
K. HOVNANIAN SUMMIT HOMES, L.L.C.
K. HOVNANIAN T&C HOMES AT FLORIDA, L.L.C.
K. HOVNANIAN T&C HOMES AT ILLINOIS, L.L.C.
K. HOVNANIAN T&C HOMES AT MINNESOTA, L.L.C.
K. HOVNANIAN T&C INVESTMENT, L.L.C.
K. HOVNANIAN T&C MANAGEMENT CO., L.L.C.
K. HOVNANIAN VENTURE I, L.L.C.
K. HOVNANIAN WINDWARD HOMES, LLC
K. HOVNANIAN’S FOUR SEASONS AT ASHBURN VILLAGE, L.L.C.
32
K. HOVNANIAN’S FOUR SEASONS AT BAILEY’S GLENN, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT BAKERSFIELD, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT BEAUMONT, LLC
K. HOVNANIAN’S FOUR SEASONS AT CHARLOTTESVILLE, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT DULLES DISCOVERY CONDOMINIUM, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT DULLES DISCOVERY, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT HAMPTONBURGH, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT HEMET, LLC
K. HOVNANIAN’S FOUR SEASONS AT HUNTFIELD, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT KENT ISLAND CONDOMINIUMS, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT KENT ISLAND, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT MENIFEE VALLEY, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT NEW KENT VINEYARDS, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT OLDE LIBERTY, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT PALM SPRINGS, LLC
K. HOVNANIAN’S FOUR SEASONS AT RENAISSANCE, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT RUSH CREEK, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT ST. MARGARETS LANDING, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT VINT HILL, L.L.C.
K. HOVNANIAN’S FOUR SEASONS, LLC
K. HOVNANIAN’S PARKSIDE AT TOWNGATE, L.L.C.
K. HOVNANIAN’S PRIVATE HOME PORTFOLIO, L.L.C.
KHC ACQUISITION, INC.
KHIP, L.L.C.
LANDARAMA, INC.
M & M AT KENSINGTON WOODS, L.L.C.
M & M AT LONG BRANCH, INC
M&M AT APPLE RIDGE, L.L.C.
M&M AT CHESTERFIELD, L.L.C.
M&M AT COPPER BEECH, L.L.C.
M&M AT CRESCENT COURT, L.L.C.
M&M AT EAST MILL, L.L.C.
M&M AT EAST RUTHERFORD, L.L.C.
M&M AT MORRISTOWN, L.L.C.
M&M AT SHERIDAN, L.L.C.
M&M AT SPINNAKER POINTE, L.L.C.
M&M AT SPRUCE HOLLOW, L.L.C.
M&M AT SPRUCE RUN, L.L.C.
M&M AT STATION SQUARE, L.L.C.
M&M AT TAMARACK HOLLOW, L.L.C.
M&M AT THE CHATEAU, L.L.C.
M&M AT THE HIGHLANDS, L.L.C.
M&M AT UNION, L.L.C.
M&M AT WEST ORANGE, L.L.C.
M&M AT WESTPORT, L.L.C.
M&M AT WHEATENA URBAN RENEWAL, L.L.C.
M&M INVESTMENTS, L.P.
MATZEL & MUMFORD AT EGG HARBOR, L.L.C.
MATZEL & MUMFORD AT MONTGOMERY, L.L.C.
MATZEL & MUMFORD AT SOUTH BOUND BROOK URBAN RENEWAL, L.L.C.
MCNJ, INC.
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF KENTUCKY, L.L.C.
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF MICHIGAN, L.L.C.
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF PENNSYLVANIA, L.L.C.
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF WEST VIRGINIA, L.L.C.
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES, L.L.C.
MILLENNIUM TITLE AGENCY, LTD
MMIP, L.L.C.
NATOMAS CENTRAL NEIGHBORHOOD HOUSING, L.L.C.
NEW LAND TITLE AGENCY, L.L.C.
PADDOCKS, L.L.C.
PARK TITLE COMPANY, LLC
33
PI INVESTMENTS II, L.L.C.
PINE AYR, LLC
RIDGEMORE UTILITY ASSOCIATES OF PENNSYLVANIA, L.L.C.
RIDGEMORE UTILITY L.L.C.
SEABROOK ACCUMULATION CORPORATION
STONEBROOK HOMES, INC.
TERRAPIN REALTY, L.L.C.
THE LANDINGS AT SPINNAKER POINTE, L.L.C.
THE MATZEL & MUMFORD ORGANIZATION, INC
WASHINGTON HOMES AT COLUMBIA TOWN CENTER, L.L.C.
WASHINGTON HOMES, INC.
WESTMINSTER HOMES OF ALABAMA, L.L.C.
WESTMINSTER HOMES OF MISSISSIPPI, LLC
WESTMINSTER HOMES OF TENNESSEE, INC.
WESTMINSTER HOMES, INC.
WH LAND I, INC
WH PROPERTIES, INC.
WH/PR LAND COMPANY, L.L.C.
WOODLAND LAKE CONDOMINIUMS AT BOWIE NEW TOWN, L.L.C.
34
Exhibit 5.1
September 19, 2008
K. Hovnanian Enterprises, Inc.
110 West Front Street
P.O. Box 500
Red Bank, New Jersey 07701
Ladies and Gentlemen:
We have acted as counsel to K. Hovnanian Enterprises, Inc., a California corporation (the “Company”), to Hovnanian Enterprises, Inc., a Delaware corporation (“Hovnanian”), and to certain subsidiaries of Hovnanian (together with Hovnanian, the “Guarantors”) in connection with the Registration Statement on Form S-4 (the “Registration Statement”) filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of $600,000,000 aggregate principal amount of 11½% Senior Secured Notes due 2013 (the “Exchange Securities”) and the issuance by the Guarantors of guarantees (the “Guarantees”) with respect to the Exchange Securities. The Exchange Securities and the Guarantees will be issued under an indenture dated as of May 27, 2008 (the “Indenture”) among the Company, the Guarantors and Wilmington Trust Company (successor to Deutsche Bank National Trust Company), as trustee (the “Trustee”). The Exchange Securities will be offered by the Company in exchange for $600,000,000 aggregate principal amount of its outstanding 11½% Senior Secured Notes due 2013.
We have examined the Registration Statement and the Indenture, which has been filed with the Commission as an exhibit to the Registration Statement. We also have examined the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents and other instruments and have made such other investigations as we
have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.
We have assumed further that (1) the Company and the Guarantors have duly authorized, executed and delivered the Indenture in accordance with the law of its jurisdiction of organization or formation and (2) execution, delivery and performance by the Company and the Guarantors of the Indenture and the Exchange Securities and the Guarantees do not and will not violate the law of the State of California or any other applicable law (excepting the law of the State of New York and the federal laws of the United States).
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
1. When the Exchange Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon the exchange, the Exchange Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
2. When (a) the Exchange Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture upon the exchange and (b) the Guarantees have been duly executed and issued, the Guarantees will constitute valid and legally binding obligations of the Guarantors enforceable against the Guarantors in accordance with their terms.
Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
We do not express any opinion herein concerning any law other than the law of the State of New York and the federal law of the United States.
We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus included in the Registration Statement.
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|
Very truly yours, |
|
|
|
|
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/s/ SIMPSON THACHER & BARTLETT LLP |
|
|
|
|
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SIMPSON THACHER & BARTLETT LLP |
Exhibit 12.1
RATIO OF EARNINGS TO FIXED CHARGES
|
|
|
Nine Months |
|
Actual Year |
|
Actual Year |
|
Actual Year |
|
Actual Year |
|
Actual Year |
|
||||||
|
(Dollars In Thousands) |
|
07/31/08 |
|
10/07 |
|
10/06 |
|
10/05 |
|
10/04 |
|
10/03 |
|
||||||
|
Net (loss) income |
|
$ |
(674,131 |
) |
$ |
(627,119 |
) |
$ |
149,533 |
|
$ |
471,847 |
|
$ |
348,681 |
|
$ |
257,380 |
|
|
Add: |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Federal and state income tax (benefit) provision |
|
(37,454 |
) |
(19,847 |
) |
83,573 |
|
308,738 |
|
201,091 |
|
154,138 |
|
||||||
|
Interest expensed |
|
110,290 |
|
141,754 |
|
111,944 |
|
89,721 |
|
75,042 |
|
63,658 |
|
||||||
|
Interest expensed mortgage and financing subsidiaries |
|
2,893 |
|
6,009 |
|
7,767 |
|
5,801 |
|
2,765 |
|
2,487 |
|
||||||
|
Distribution of earnings of unconsolidated joint ventures, net of income/(loss) from unconsolidated joint ventures |
|
14,187 |
|
32,221 |
|
(347 |
) |
(6,171 |
) |
(334 |
) |
— |
|
||||||
|
Amortization of bond prepaid expenses |
|
2,220 |
|
2,151 |
|
2,089 |
|
2,012 |
|
10,999 |
|
2,978 |
|
||||||
|
Amortization of bond discounts |
|
490 |
|
1,084 |
|
1,039 |
|
715 |
|
571 |
|
514 |
|
||||||
|
Total (loss) earnings |
|
$ |
(581,505 |
) |
$ |
(463,747 |
) |
$ |
355,598 |
|
$ |
872,663 |
|
$ |
638,815 |
|
$ |
481,155 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Fixed Charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Interest incurred |
|
$ |
137,390 |
|
$ |
194,547 |
|
$ |
166,427 |
|
$ |
102,930 |
|
$ |
87,674 |
|
$ |
66,332 |
|
|
Interest incurred mortgage and financing subsidiaries |
|
2,893 |
|
6,009 |
|
7,767 |
|
5,801 |
|
2,765 |
|
2,487 |
|
||||||
|
Amortization of bond prepaid expenses |
|
2,220 |
|
2,151 |
|
2,089 |
|
2,012 |
|
10,999 |
|
2,978 |
|
||||||
|
Amortization of bond discounts |
|
490 |
|
1,084 |
|
1,039 |
|
715 |
|
571 |
|
514 |
|
||||||
|
Total fixed charges |
|
$ |
142,993 |
|
$ |
203,791 |
|
$ |
177,322 |
|
$ |
111,458 |
|
$ |
102,009 |
|
$ |
72,311 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
Ratio of earnings to fixed charges |
|
(a) |
|
(a) |
|
2.0 |
|
7.8 |
|
6.3 |
|
6.7 |
|
||||||
(a) Earnings for the nine months ended July 31, 2008 and for the year ended October 31, 2007 were insufficient to cover fixed charges for such periods by $724.5 million and $667.5 million, respectively.
Exhibit 21.1
|
Legal Entity Name |
|
State of |
|
Westminster Homes of Alabama, L.L.C. |
|
AL |
|
K. HOVNANIAN DEVELOPMENTS OF ARIZONA, INC. |
|
AZ |
|
K. HOVNANIAN GREAT WESTERN BUILDING COMPANY, LLC |
|
AZ |
|
K. HOVNANIAN GREAT WESTERN HOMES, L.L.C. |
|
AZ |
|
New Land Title Agency, L.L.C. |
|
AZ |
|
Hovnanian Land Investment Group of California, L.L.C. |
|
CA |
|
JAEGER ROAD 530, L.L.C. |
|
CA |
|
K. HOV IP, II, INC. |
|
CA |
|
K. HOV IP, INC. |
|
CA |
|
K. HOVNANIAN AT 3 CHAPMAN, L.L.C. |
|
CA |
|
K. Hovnanian at 4S, L.L.C. |
|
CA |
|
K. Hovnanian at Acqua Vista, L.L.C. |
|
CA |
|
K. Hovnanian at Aliso, L.L.C. |
|
CA |
|
K. Hovnanian at Arbor Heights, LLC |
|
CA |
|
K. HOVNANIAN AT AVENUE ONE, L.L.C. |
|
CA |
|
K. Hovnanian at Bella Lago, L.L.C. |
|
CA |
|
K. Hovnanian at Bridgeport, Inc. |
|
CA |
|
K. HOVNANIAN AT BRIDLEWOOD, L.L.C. |
|
CA |
|
K. HOVNANIAN AT CALABRIA, INC. |
|
CA |
|
K. HOVNANIAN AT CAPISTRANO, L.L.C. |
|
CA |
|
K. HOVNANIAN AT CARMEL DEL MAR, INC. |
|
CA |
|
K. Hovnanian at Carmel Village, L.L.C. |
|
CA |
|
K. HOVNANIAN AT CASTILE, INC. |
|
CA |
|
K. HOVNANIAN AT CHAPARRAL, INC. |
|
CA |
|
K. HOVNANIAN AT CIELO, L.L.C. |
|
CA |
|
K. Hovnanian at Coastline, L.L.C. |
|
CA |
|
K. Hovnanian at Cortez Hill, L.L.C. |
|
CA |
|
K. Hovnanian at Crestline, Inc. |
|
CA |
|
K. HOVNANIAN AT DOMINGUEZ HILLS, INC. |
|
CA |
|
K. Hovnanian at Eastlake, LLC |
|
CA |
|
K. Hovnanian at Encinitas Ranch, L.L.C. |
|
CA |
|
K. Hovnanian at Evergreen, L.L.C. |
|
CA |
|
K. HOVNANIAN AT GASLAMP SQUARE, L.L.C. |
|
CA |
|
K. HOVNANIAN AT HIGHLAND VINEYARDS, INC. |
|
CA |
|
K. HOVNANIAN AT HIGHWATER, L.L.C. |
|
CA |
|
K. Hovnanian at La Costa Greens, L.L.C. |
|
CA |
|
K. Hovnanian at La Costa, L.L.C. |
|
CA |
|
K. Hovnanian at La Habra Knolls, LLC |
|
CA |
|
K. Hovnanian at La Terraza, Inc. |
|
CA |
|
K. Hovnanian at Lake Hills, L.L.C. |
|
CA |
|
K. Hovnanian at Lake Rancho Viejo, L.L.C. |
|
CA |
|
K. Hovnanian at Matsu, L.L.C. |
|
CA |
|
K. HOVNANIAN AT MENIFEE VALLEY CONDOMINIUMS, L.L.C. |
|
CA |
|
K. Hovnanian at Menifee, L.L.C. |
|
CA |
|
K. Hovnanian at Mockingbird Canyon, L.L.C. |
|
CA |
|
K. Hovnanian at Mosaic, LLC |
|
CA |
|
K. HOVNANIAN AT NORTHLAKE, INC. |
|
CA |
|
K. HOVNANIAN AT OCEAN WALK, INC. |
|
CA |
|
K. Hovnanian at Olde Orchard, LLC |
|
CA |
|
K. Hovnanian at Orange Heights, LLC |
|
CA |
|
K. Hovnanian at Pacific Bluffs, L.L.C. |
|
CA |
|
K. Hovnanian at Park Lane, L.L.C. |
|
CA |
|
K. Hovnanian at Piazza D’Oro, L.L.C. |
|
CA |
|
K. Hovnanian at Prado, L.L.C. |
|
CA |
|
K. HOVNANIAN AT RANCHO CRISTIANITOS, INC. |
|
CA |
|
K. Hovnanian at Rancho Santa Margarita, L.L.C. |
|
CA |
|
K. Hovnanian at Riverbend, L.L.C. |
|
CA |
|
K. HOVNANIAN AT ROSEMARY LANTANA, L.L.C. |
|
CA |
|
K. Hovnanian at Rowland Heights, L.L.C. |
|
CA |
|
K. Hovnanian at Sage, L.L.C. |
|
CA |
|
K. HOVNANIAN AT SAN SEVAINE, INC. |
|
CA |
|
K. HOVNANIAN AT SARATOGA, INC. |
|
CA |
|
K. Hovnanian at Skye Isle, L.L.C. |
|
CA |
|
K. HOVNANIAN AT STONE CANYON, INC. |
|
CA |
|
K. Hovnanian at Sunsets, L.L.C. |
|
CA |
|
K. HOVNANIAN AT SYCAMORE, INC. |
|
CA |
|
K. Hovnanian at The Crosby, L.L.C. |
|
CA |
|
K. Hovnanian at The Gables, L.L.C. |
|
CA |
|
K. Hovnanian at The Preserve, L.L.C. |
|
CA |
|
K. Hovnanian at Thompson Ranch, L.L.C. |
|
CA |
|
K. HOVNANIAN AT TIERRASANTA, INC. |
|
CA |
|
K. Hovnanian at Trail Ridge, L.L.C. |
|
CA |
|
K. Hovnanian at Trovata, Inc. |
|
CA |
|
K. Hovnanian at Vail Ranch, Inc. |
|
CA |
|
K. Hovnanian at Wildrose, Inc. |
|
CA |
|
K. HOVNANIAN AT WINCHESTER, L.L.C. |
|
CA |
|
K. Hovnanian Communities, Inc. |
|
CA |
|
K. Hovnanian Companies of California, Inc. |
|
CA |
|
K. Hovnanian Companies of Southern California, Inc. |
|
CA |
|
K. Hovnanian Companies, LLC |
|
CA |
|
K. Hovnanian Developments of California, Inc. |
|
CA |
|
K. HOVNANIAN DEVELOPMENTS OF NEW JERSEY II, INC. |
|
CA |
|
K. Hovnanian Developments of New Jersey, Inc. |
|
CA |
|
K. Hovnanian Enterprises, Inc. |
|
CA |
|
K. Hovnanian Forecast Homes Northern, Inc. |
|
CA |
|
K. HOVNANIAN INTERNATIONAL, L.L.C. |
|
CA |
|
K. HOVNANIAN T&C MANAGEMENT CO., L.L.C. |
|
CA |
|
K. HOVNANIAN’S FOUR SEASONS AT BAKERSFIELD, L.L.C. |
|
CA |
|
K. Hovnanian’s Four Seasons at Beaumont, L.L.C. |
|
CA |
|
K. Hovnanian’s Four Seasons at Hemet, LLC |
|
CA |
|
K. HOVNANIAN’S FOUR SEASONS AT MENIFEE VALLEY, L.L.C. |
|
CA |
|
K. Hovnanian’s Four Seasons at Palm Springs, L.L.C. |
|
CA |
|
K. Hovnanian’s Four Seasons, L.L.C. |
|
CA |
|
K. Hovnanian’s Parkside at Towngate, L.L.C. |
|
CA |
|
KHC Acquisition, Inc. |
|
CA |
|
Natomas Central Neighborhood Housing, L.L.C. |
|
CA |
|
SEABROOK ACCUMULATION CORPORATION |
|
CA |
|
STONEBROOK HOMES, INC. |
|
CA |
|
K. Hovnanian Connecticut Acquisitions, L.L.C. |
|
CT |
|
K. Hovnanian Developments of Connecticut, Inc. |
|
CT |
|
K. HOVNANIAN DEVELOPMENTS OF D.C., INC. |
|
DC |
|
K. Hovnanian Homes of D.C., L.L.C. |
|
DC |
|
77 HUDSON STREET JOINT DEVELOPMENT, L.L.C. |
|
DE |
|
BRIGHTON HOMES AT WALDEN MANAGEMENT, L.L.C. |
|
DE |
|
HOVNANIAN ENTERPRISES, INC (PARENT COMPANY) |
|
DE |
|
HOVSTONE HOLDINGS, L.L.C. |
|
DE |
|
HOVSTONE PROPERTIES FLORIDA, L.L.C. |
|
DE |
|
HOVSTONE PROPERTIES ILLINOIS, L.L.C. |
|
DE |
|
HOVSTONE PROPERTIES MINNESOTA, L.L.C. |
|
DE |
|
HUDSON POINTE JOINT DEVELOPMENT, L.L.C. |
|
DE |
|
K. Hovnanian at Bernards V, L.L.C. |
|
DE |
|
K. Hovnanian at Chester I, L.L.C. |
|
DE |
|
K. Hovnanian at Lawrence V, L.L.C. |
|
DE |
|
K. Hovnanian at Mansfield I, LLC |
|
DE |
|
K. Hovnanian at Mansfield II, LLC |
|
DE |
|
K. HOVNANIAN AT MIDDLETOWN, L.L.C. |
|
DE |
|
K. HOVNANIAN AT NORTH BRUNSWICK VI, L.L.C. |
|
DE |
|
K. HOVNANIAN AT WANAQUE, L.L.C. |
|
DE |
|
K. HOVNANIAN AT WAYNE VIII, L.L.C. |
|
DE |
|
K. HOVNANIAN AT WEST WINDSOR, L.L.C. |
|
DE |
|
K. HOVNANIAN CENTRAL ACQUISITIONS, L.L.C. |
|
DE |
|
K. HOVNANIAN DELAWARE ACQUISITIONS, L.L.C. |
|
DE |
|
K. HOVNANIAN DEVELOPMENTS OF DELAWARE, INC. |
|
DE |
|
K. Hovnanian Homes at Nassau Grove, L.L.C. |
|
DE |
|
K. HOVNANIAN HOMES OF DELAWARE, L.L.C. |
|
DE |
|
K. HOVNANIAN MORTGAGE FUNDING, L.L.C. |
|
DE |
|
K. Hovnanian North Central Acquisitions, L.L.C. |
|
DE |
|
K. HOVNANIAN NORTH JERSEY ACQUISITIONS, L.L.C. |
|
DE |
|
K. Hovnanian Shore Acquisitions, L.L.C. |
|
DE |
|
K. Hovnanian South Jersey Acquisitions, L.L.C. |
|
DE |
|
MSHOV HOLDING COMPANY, L.L.C. |
|
DE |
|
NORTH MANATEE, L.L.C. |
|
DE |
|
OLD CITY DELAWARE, L.L.C. |
|
DE |
|
OLD CITY DEVELOPMENT, INC. |
|
DE |
|
PI INVESTMENTS I, L.L.C. |
|
DE |
|
PI INVESTMENTS II, L.L.C. |
|
DE |
|
PRESTON PARKER, L. P. |
|
DE |
|
THOMPSON RANCH JOINT DEVELOPMENT, L.L.C. |
|
DE |
|
WASHINGTON HOMES, INC. |
|
DE |
|
WH/PR Land Company, LLC |
|
DE |
|
WINDWARD HOME MORTGAGE, L.L.C. |
|
DE |
|
WOODMORE RESIDENTIAL, L.L.C. |
|
DE |
|
WTC VENTURES, L.L.C. |
|
DE |
|
FIRST MORTGAGE LENDERS OF FLORIDA, L.L.C. |
|
FL |
|
HOVNANIAN DEVELOPMENTS OF FLORIDA, INC. |
|
FL |
|
HOVNANIAN LAND INVESTMENT GROUP OF FLORIDA, L.L.C. |
|
FL |
|
K. HOVNANIAN CAMBRIDGE HOMES, L.L.C. |
|
FL |
|
K. HOVNANIAN FIRST HOMES, L.L.C. |
|
FL |
|
K. Hovnanian Florida Realty, L.L.C. |
|
FL |
|
K. HOVNANIAN STANDING ENTITY, L.L.C. |
|
FL |
|
K. Hovnanian T&C Homes at Florida, L.L.C. |
|
FL |
|
K. HOVNANIAN WINDWARD HOMES, L.L.C. |
|
FL |
|
Hovnanian Land Investment Group of Georgia, L.L.C. |
|
GA |
|
K. Hovnanian Developments of Georgia, Inc. |
|
GA |
|
K. HOVNANIAN HOMES OF GEORGIA, L.L.C. |
|
GA |
|
K. Hovnanian Developments of Illinois, Inc. |
|
IL |
|
K. Hovnanian T&C Homes at Illinois, L.L.C. |
|
IL |
|
K. HOVNANIAN DEVELOPMENTS OF INDIANA, INC. |
|
IN |
|
K. HOVNANIAN HOMES OF INDIANA, L.L.C. |
|
IN |
|
K. HOVNANIAN POLAND, SP .Z.O.O. |
|
INT”L |
|
K. Hovnanian Developments of Kentucky, Inc. |
|
KY |
|
K. Hovnanian Summit Homes of Kentucky, L.L.C. |
|
KY |
|
Midwest Building Products & Contractor Services of Kentucky, L.L.C. |
|
KY |
|
Founders Title Agency of Maryland, L.L.C. |
|
MD |
|
Greenway Farms Utility Associates, L.L.C. |
|
MD |
|
Homebuyers Financial Services, L.L.C. |
|
MD |
|
HOVNANIAN LAND INVESTMENT GROUP OF MARYLAND, L.L.C. |
|
MD |
|
HOVNANIAN LAND INVESTMENT GROUP, L.L.C. |
|
MD |
|
INGLEWOOD NORTH, L.L.C. |
|
MD |
|
K. HOVNANIAN AT KING FARM, L.L.C. |
|
MD |
|
K. HOVNANIAN AT RODERUCK, L.L.C. |
|
MD |
|
K. HOVNANIAN AT WILLOW BROOK, L.L.C. |
|
MD |
|
K. HOVNANIAN COMPANIES METRO D.C. NORTH, L.L.C. |
|
MD |
|
K. HOVNANIAN COMPANIES OF MARYLAND, INC. |
|
MD |
|
K. HOVNANIAN DEVELOPMENTS OF MARYLAND, INC. |
|
MD |
|
K. Hovnanian Homes at Camp Springs, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Cider Mill, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Fairwood, L.L.C. |
|
MD |
|
K. HOVNANIAN HOMES AT FOREST RUN, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Greenway Farm Park Towns, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Greenway Farm, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Jones Station 1, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Jones Station 2, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Maxwell Place, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Primera, L.L.C. |
|
MD |
|
K. Hovnanian Homes at Renaissance Plaza, L.L.C. |
|
MD |
|
K. HOVNANIAN HOMES AT RUSSETT, L.L.C. |
|
MD |
|
K. Hovnanian Homes of Maryland, L.L.C. |
|
MD |
|
K. HOVNANIAN’S FOUR SEASONS AT KENT ISLAND CONDOMINIUMS, L.L.C. |
|
MD |
|
K. HOVNANIAN’S FOUR SEASONS AT KENT ISLAND, L.L.C. |
|
MD |
|
K. Hovnanian’s Four Seasons at St. Margarets Landing, L.L.C. |
|
MD |
|
NEW HOMEBUYERS TITLE COMPANY, INC. |
|
MD |
|
PADDOCKS, L.L.C. |
|
MD |
|
PINE AYR, L.L.C. |
|
MD |
|
RIDGEMORE UTILITY, L.L.C. |
|
MD |
|
WASHINGTON HOMES AT COLUMBIA TOWN CENTER, LLC |
|
MD |
|
WH LAND I, INC |
|
MD |
|
WH PROPERTIES, INC. |
|
MD |
|
WOODLAND LAKE CONDOMINIUMS AT BOWIE NEW TOWN, L.L.C. |
|
MD |
|
K. HOVNANIAN DEVELOPMENTS OF MICHIGAN, INC. |
|
MI |
|
K. Hovnanian Summit Homes of Michigan, L.L.C. |
|
MI |
|
Midwest Building Products & Contractor Services of Michigan, L.L.C. |
|
MI |
|
K. HOVNANIAN AT HIGHLAND SHORES, L.L.C. |
|
MN |
|
K. Hovnanian at Ridgestone, L.L.C. |
|
MN |
|
K. Hovnanian Developments of Minnesota, Inc. |
|
MN |
|
K. Hovnanian Homes of Minnesota, L.L.C. |
|
MN |
|
K. Hovnanian T&C Homes at Minnesota, L.L.C. |
|
MN |
|
K. Hovnanian’s Four Seasons at Rush Creek, L.L.C. |
|
MN |
|
Westminster Homes of Mississippi, LLC |
|
MS |
|
HERITAGE PINES, L.L.C. |
|
NC |
|
Hovnanian Land Investment Group of North Carolina, L.L.C. |
|
NC |
|
K. Hovnanian Developments of North Carolina, Inc. |
|
NC |
|
K. HOVNANIAN HOMES OF NORTH CAROLINA, INC. |
|
NC |
|
K. Hovnanian’s Four Seasons at Bailey’s Glenn, L.L.C. |
|
NC |
|
K. HOVNANIAN’S FOUR SEASONS AT OLDE LIBERTY, L.L.C. |
|
NC |
|
K. HOVNANIAN’S FOUR SEASONS AT RENAISSANCE, L.L.C. |
|
NC |
|
PRESTON GRANDE HOMES, INC. |
|
NC |
|
WESTMINSTER HOMES, INC. |
|
NC |
|
Auddie Enterprises, L.L.C. |
|
NJ |
|
Builder Services NJ, L.L.C. |
|
NJ |
|
EASTERN TITLE AGENCY, INC. |
|
NJ |
|
F&W MECHANICAL SERVICES, L.L.C. |
|
NJ |
|
HOVNANIAN LAND INVESTMENT GROUP OF NEW JERSEY, L.L.C. |
|
NJ |
|
K. HOV INTERNATIONAL, INC. |
|
NJ |
|
K. HOVNANIAN 77 HUDSON STREET INVESTMENTS, L.L.C. |
|
NJ |
|
K. Hovnanian Acquisitions, Inc. |
|
NJ |
|
K. HOVNANIAN AMERICAN MORTGAGE, L.L.C. |
|
NJ |
|
K. HOVNANIAN AT 77 HUDSON STREET URBAN RENEWAL COMPANY, L.L.C. |
|
NJ |
|
K. Hovnanian at Aberdeen Urban Renewal, L.L.C. |
|
NJ |
|
K. Hovnanian at Allendale, L.L.C. |
|
NJ |
|
K. Hovnanian at Barnegat I, L.L.C. |
|
NJ |
|
K. Hovnanian at Barnegat II, L.L.C. |
|
NJ |
|
K. HOVNANIAN AT BARNEGAT III, L.L.C. |
|
NJ |
|
K. Hovnanian at Berkeley, L.L.C. |
|
NJ |
|
K. Hovnanian at Bernards IV, Inc. |
|
NJ |
|
K. Hovnanian at Blue Heron Pines, L.L.C. |
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NJ |
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K. HOVNANIAN AT BRANCHBURG III, INC. |
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NJ |
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K. Hovnanian at Bridgewater I, L.L.C. |
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NJ |
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K. HOVNANIAN AT BRIDGEWATER VI, INC. |
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NJ |
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K. HOVNANIAN AT BURLINGTON III, INC. |
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NJ |
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K. HOVNANIAN AT BURLINGTON, INC. |
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NJ |
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K. Hovnanian at Camden I, L.L.C. |
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NJ |
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K. Hovnanian at Cedar Grove III, L.L.C. |
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NJ |
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K. Hovnanian at Cedar Grove IV, L.L.C. |
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NJ |
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K. Hovnanian at Chesterfield II, L.L.C. |
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NJ |
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K. Hovnanian at Chesterfield, L.L.C. |
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NJ |
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K. Hovnanian at Clifton II, L.L.C. |
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NJ |
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K. Hovnanian at Clifton, L.L.C. |
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NJ |
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K. Hovnanian at Cranbury, L.L.C. |
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NJ |
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K. Hovnanian at Curries Woods, L.L.C. |
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NJ |
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K. Hovnanian at Denville, L.L.C. |
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NJ |
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K. Hovnanian at Deptford Township, L.L.C. |
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NJ |
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K. Hovnanian at Dover, L.L.C. |
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NJ |
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K. Hovnanian at Edgewater II, L.L.C. |
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NJ |
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K. Hovnanian at Edgewater, L.L.C. |
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NJ |
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K. Hovnanian at Egg Harbor Township II, L.L.C. |
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NJ |
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K. Hovnanian at Egg Harbor Township, L.L.C. |
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NJ |
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K. Hovnanian at Elk Township, L.L.C. |
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NJ |
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K. Hovnanian at Ewing, L.L.C. |
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NJ |
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K. Hovnanian at Fifth Avenue, L.L.C. |
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NJ |
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K. Hovnanian at Florence I, L.L.C. |
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NJ |
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K. Hovnanian at Florence II, L.L.C. |
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NJ |
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K. Hovnanian at Forest Meadows, L.L.C. |
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NJ |
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K. Hovnanian at Franklin, L.L.C. |
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NJ |
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K. Hovnanian at Freehold Township I, Inc. |
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NJ |
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K. Hovnanian at Freehold Township, L.L.C. |
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NJ |
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K. Hovnanian at Galloway, L.L.C. |
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NJ |
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K. Hovnanian at Great Notch, L.L.C. |
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NJ |
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K. Hovnanian at Guttenberg, L.L.C. |
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NJ |
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K. Hovnanian at Hackettstown II, L.L.C. |
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NJ |
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K. Hovnanian at Hackettstown, Inc. |
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NJ |
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K. Hovnanian at Hamburg Contractors, L.L.C. |
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NJ |
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K. Hovnanian at Hamburg, L.L.C. |
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NJ |
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K. Hovnanian at Hawthorne, L.L.C. |
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NJ |
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K. Hovnanian at Hazlet, L.L.C. |
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NJ |
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K. Hovnanian at Hilltop, L.L.C. |
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NJ |
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K. Hovnanian at Hopewell IV, Inc. |
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NJ |
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K. Hovnanian at Hopewell VI, Inc. |
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NJ |
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K. Hovnanian at Howell Township, Inc. |
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NJ |
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K. HOVNANIAN AT HUDSON POINTE, L.L.C. |
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NJ |
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K. Hovnanian at Jackson I, L.L.C. |
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NJ |
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K. Hovnanian at Jackson, L.L.C. |
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NJ |
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K. Hovnanian at Jersey City IV, L.L.C. |
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NJ |
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K. HOVNANIAN AT JERSEY CITY V URBAN RENEWAL COMPANY, L.L.C. |
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NJ |
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K. Hovnanian at Keyport, L.L.C. |
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NJ |
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K. HOVNANIAN AT KINGS GRANT I, INC. |
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NJ |
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K. Hovnanian at Lafayette Estates, L.L.C. |
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NJ |
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K. Hovnanian at Lakewood, Inc. |
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NJ |
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K. Hovnanian at Linwood, L.L.C. |
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NJ |
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K. Hovnanian at Little Egg Harbor Contractors, L.L.C. |
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NJ |
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K. Hovnanian at Little Egg Harbor III, L.L.C. |
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NJ |
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K. Hovnanian at Little Egg Harbor Township II, L.L.C. |
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NJ |
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K. HOVNANIAN AT LITTLE EGG HARBOR, L.L.C. |
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NJ |
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K. HOVNANIAN AT LONG BRANCH I, L.L.C. |
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NJ |
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K. HOVNANIAN AT MAHWAH II, INC. |
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NJ |
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K. Hovnanian at Mahwah VI, Inc. |
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NJ |
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K. Hovnanian at Mahwah VII, Inc. |
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NJ |
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K. HOVNANIAN AT MANALAPAN II, L.L.C. |
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NJ |
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K. Hovnanian at Manalapan III, L.L.C. |
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NJ |
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K. HOVNANIAN AT MANALAPAN, INC. |
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NJ |
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K. Hovnanian at Mansfield III, L.L.C. |
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NJ |
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K. Hovnanian at Maple Avenue, L.L.C. |
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NJ |
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K. Hovnanian at Marlboro II, Inc. |
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NJ |
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K. Hovnanian at Marlboro Township III, Inc. |
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NJ |
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K. Hovnanian at Marlboro Township IV, Inc. |
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NJ |
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K. HOVNANIAN AT MARLBORO TOWNSHIP IX, L.L.C. |
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NJ |
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K. Hovnanian at Marlboro Township V, L.L.C. |
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NJ |
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K. Hovnanian at Marlboro Township VIII, L.L.C. |
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NJ |
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K. Hovnanian at Marlboro VI, L.L.C. |
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NJ |
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K. Hovnanian at Marlboro VII, L.L.C. |
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NJ |
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K. Hovnanian at Mendham Township, L.L.C. |
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NJ |
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K. Hovnanian at Middle Township II, L.L.C. |
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NJ |
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K. Hovnanian at Middle Township, L.L.C. |
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NJ |
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K. HOVNANIAN AT MIDDLETOWN II, L.L.C. |
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NJ |
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K. Hovnanian at Millville I, L.L.C. |
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NJ |
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K. Hovnanian at Millville II, L.L.C. |
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NJ |
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K. Hovnanian at Millville III, L.L.C. |
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NJ |
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K. Hovnanian at Monroe III, L.L.C. |
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NJ |
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K. Hovnanian at Monroe IV, L.L.C. |
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NJ |
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K. Hovnanian at Monroe NJ, L.L.C. |
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NJ |
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K. Hovnanian at Montvale, L.L.C. |
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NJ |
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K. Hovnanian at Mt. Olive Township, L.L.C. |
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NJ |
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K. HOVNANIAN AT NEW BRUNSWICK URBAN RENEWAL, L.L.C. |
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NJ |
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K. Hovnanian at North Bergen, L.L.C. |
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NJ |
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K. Hovnanian at North Caldwell II, L.L.C. |
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NJ |
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K. Hovnanian at North Caldwell III, L.L.C. |
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NJ |
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K. Hovnanian at North Caldwell, L.L.C. |
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NJ |
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K. Hovnanian at North Haledon, L.L.C. |
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NJ |
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K. Hovnanian at North Wildwood, L.L.C. |
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NJ |
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K. Hovnanian at Northfield, L.L.C. |
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NJ |
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K. Hovnanian at Ocean Township, Inc. |
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NJ |
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K. Hovnanian at Oceanport, L.L.C. |
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NJ |
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K. Hovnanian at Old Bridge, L.L.C. |
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NJ |
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K. Hovnanian at Paramus, LLC |
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NJ |
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K. Hovnanian at Parsippany-Troy Hills, L.L.C. |
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NJ |
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K. Hovnanian at Peapack-Gladstone, L.L.C. |
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NJ |
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K. Hovnanian at Pittsgrove, L.L.C. |
|
NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL II, L.L.C. |
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NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL III, L.L.C. |
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NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL IV, L.L.C. |
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NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL V, L.L.C. |
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NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VI, L.L.C. |
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NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VII, L.L.C. |
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NJ |
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K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL VIII, L.L.C. |
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NJ |
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K. Hovnanian at Princeton Landing, L.L.C. |
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NJ |
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K. Hovnanian at Princeton NJ, L.L.C. |
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NJ |
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K. Hovnanian at Randolph I, L.L.C. |
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NJ |
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K. Hovnanian at Readington II, L.L.C. |
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NJ |
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K. Hovnanian at Red Bank, L.L.C. |
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NJ |
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K. Hovnanian at Reservoir Ridge, Inc. |
|
NJ |
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K. Hovnanian at Ridgemont, L.L.C. |
|
NJ |
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K. Hovnanian at Sayreville, L.L.C. |
|
NJ |
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K. HOVNANIAN AT SCOTCH PLAINS II, INC. |
|
NJ |
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K. Hovnanian at Scotch Plains, L.L.C. |
|
NJ |
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K. Hovnanian at Smithville III, L.L.C. |
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NJ |
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K. Hovnanian at Smithville, Inc. |
|
NJ |
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K. HOVNANIAN AT SOMERS POINT, LLC |
|
NJ |
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K. Hovnanian at South Brunswick V, Inc. |
|
NJ |
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K. Hovnanian at South Brunswick, L.L.C. |
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NJ |
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K. Hovnanian at Sparta, L.L.C. |
|
NJ |
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K. Hovnanian at Springco, L.L.C. |
|
NJ |
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K. HOVNANIAN AT SPRINGFIELD, L.L.C. |
|
NJ |
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K. Hovnanian at Tannery Hill, Inc. |
|
NJ |
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K. Hovnanian at Teaneck, L.L.C. |
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NJ |
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K. Hovnanian at The Bluff, Inc. |
|
NJ |
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K. Hovnanian at The Monarch, L.L.C. |
|
NJ |
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K. Hovnanian at Trenton Urban Renewal, L.L.C. |
|
NJ |
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K. Hovnanian at Trenton, L.L.C. |
|
NJ |
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K. Hovnanian at Union Township I, Inc. |
|
NJ |
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K. Hovnanian at Union Township II, L.L.C. |
|
NJ |
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K. Hovnanian at Upper Freehold Township I, Inc. |
|
NJ |
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K. Hovnanian at Upper Freehold Township II, L.L.C. |
|
NJ |
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K. Hovnanian at Upper Freehold Township III, L.L.C. |
|
NJ |
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K. HOVNANIAN AT VERONA URBAN RENEWAL, L.L.C. |
|
NJ |
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K. HOVNANIAN AT VINELAND, L.L.C. |
|
NJ |
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K. Hovnanian at Wall Township VI, Inc. |
|
NJ |
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K. Hovnanian at Wall Township VIII, Inc. |
|
NJ |
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K. Hovnanian at Warren Township, L.L.C. |
|
NJ |
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K. Hovnanian at Washington, L.L.C. |
|
NJ |
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K. Hovnanian at Wayne III, Inc. |
|
NJ |
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K. Hovnanian at Wayne IX, L.L.C. |
|
NJ |
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K. Hovnanian at Wayne V, Inc. |
|
NJ |
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K. Hovnanian at West Milford, L.L.C. |
|
NJ |
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K. Hovnanian at Wildwood Bayside, L.L.C. |
|
NJ |
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K. Hovnanian at Woodhill Estates, L.L.C. |
|
NJ |
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K. Hovnanian at Woolwich I, L.L.C. |
|
NJ |
|
K. HOVNANIAN CHESTERFIELD INVESTMENT, L.L.C. |
|
NJ |
|
K. Hovnanian Classics CIP, L.L.C. |
|
NJ |
|
K. HOVNANIAN COMPANIES NORTHEAST, INC. |
|
NJ |
|
K. Hovnanian Construction II, Inc. |
|
NJ |
|
K. Hovnanian Construction III, Inc. |
|
NJ |
|
K. Hovnanian Construction Management, Inc. |
|
NJ |
|
K. Hovnanian Holdings NJ, LLC |
|
NJ |
|
K. HOVNANIAN HUDSON POINTE INVESTMENTS, L.L.C. |
|
NJ |
|
K. HOVNANIAN INVESTMENTS II, L.L.C. |
|
NJ |
|
K. HOVNANIAN INVESTMENTS, L.L.C. |
|
NJ |
|
K. HOVNANIAN MANALAPAN INVESTMENT, L.L.C. |
|
NJ |
|
K. Hovnanian Northeast Services, L.L.C. |
|
NJ |
|
K. Hovnanian Port Imperial Urban Renewal, Inc. |
|
NJ |
|
K. HOVNANIAN PROPERTIES OF NORTH BRUNSWICK V, INC. |
|
NJ |
|
K. Hovnanian Properties of Red Bank, Inc. |
|
NJ |
|
K. Hovnanian Southern New Jersey, L.L.C. |
|
NJ |
|
K. HOVNANIAN T&C INVESTMENT, L.L.C. |
|
NJ |
|
K. Hovnanian Venture I, L.L.C. |
|
NJ |
|
K. Hovnanian’s Private Home Portfolio, L.L.C. |
|
NJ |
|
KHIP, LLC |
|
NJ |
|
LANDARAMA, INC. |
|
NJ |
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M&M AT APPLE RIDGE, L.L.C. |
|
NJ |
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M&M at Chesterfield, LLC |
|
NJ |
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M&M AT Copper Beech, L.L.C. |
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NJ |
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M&M AT Crescent Court, L.L.C. |
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NJ |
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M&M AT EAST MILL, L.L.C. |
|
NJ |
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M&M at East Rutherford, L.L.C. |
|
NJ |
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M&M at Kensington Woods, LLC |
|
NJ |
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M&M at Long Branch, Inc. |
|
NJ |
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M&M AT MONROE WOODS, L.L.C. |
|
NJ |
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M&M AT MORRISTOWN, L.L.C. |
|
NJ |
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M&M AT SHERIDAN, L.L.C. |
|
NJ |
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M&M AT SPINNAKER POINTE, L.L.C. |
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NJ |
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M&M AT SPRUCE HOLLOW, L.L.C. |
|
NJ |
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M&M AT SPRUCE RUN, L.L.C. |
|
NJ |
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M&M at Station Square, L.L.C. |
|
NJ |
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M&M at Tamarack Hollow, L.L.C. |
|
NJ |
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M&M at The Chateau, L.L.C. |
|
NJ |
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M&M AT THE HIGHLANDS, L.L.C. |
|
NJ |
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M&M AT UNION, L.L.C. |
|
NJ |
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M&M at West Orange, L.L.C. |
|
NJ |
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M&M AT Westport, L.L.C. |
|
NJ |
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M&M at Wheatena Urban Renewal, L.L.C. |
|
NJ |
|
M&M INVESTMENTS, L.P. |
|
NJ |
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Matzel & Mumford at Egg Harbor, L.L.C. |
|
NJ |
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MATZEL & MUMFORD AT MONTGOMERY, L.L.C. |
|
NJ |
|
Matzel & Mumford at South Bound Brook Urban Renewal, L.L.C. |
|
NJ |
|
MCNJ, Inc. |
|
NJ |
|
MM-BEACHFRONT NORTH I, L.L.C. |
|
NJ |
|
MM-BEACHFRONT NORTH II, L.L.C. |
|
NJ |
|
MMIP, L.L.C. |
|
NJ |
|
Terrapin Realty, L.L.C. |
|
NJ |
|
THE LANDINGS AT SPINNAKER POINTE, L.L.C. |
|
NJ |
|
The Matzel & Mumford Organization, Inc. |
|
NJ |
|
TOWN HOMES AT MONTGOMERY, L.L.C. |
|
NJ |
|
K. Hovnanian Classics, L.L.C. |
|
NJ |
|
Builder Services NY, L.L.C. |
|
NY |
|
K. HOVNANIAN AT CLARKSTOWN, INC. |
|
NY |
|
K. HOVNANIAN AT MONROE II, INC. |
|
NY |
|
K. HOVNANIAN AT NEW WINDSOR, L.L.C. |
|
NY |
|
K. HOVNANIAN AT NORTHERN WESTCHESTER, INC. |
|
NY |
|
K. HOVNANIAN AT STONY POINT, INC. |
|
NY |
|
K. HOVNANIAN AT TUXEDO, INC. |
|
NY |
|
K. HOVNANIAN AT WASHINGTONVILLE, INC. |
|
NY |
|
K. HOVNANIAN COMPANIES OF NEW YORK, INC. |
|
NY |
|
K. HOVNANIAN DEVELOPMENTS OF NEW YORK, INC. |
|
NY |
|
K. Hovnanian’s Four Seasons at Hamptonburgh, L.L.C. |
|
NY |
|
K. HOVNANIAN DEVELOPMENTS OF OHIO, INC. |
|
OH |
|
K. HOVNANIAN OHIO REALTY, L.L.C. |
|
OH |
|
K. HOVNANIAN OSTER HOMES, L.L.C. |
|
OH |
|
K. HOVNANIAN SUMMIT HOMES, L.L.C. |
|
OH |
|
MARTIN’S RUN LIMITED PARTNERSHIP II |
|
OH |
|
MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES, L.L.C. |
|
OH |
|
MILLENNIUM TITLE AGENCY, LTD. |
|
OH |
|
Builder Services PA, L.L.C. |
|
PA |
|
Governor’s Abstract Co., Inc. |
|
PA |
|
Hovnanian Land Investment Group of Pennsylvania, L.L.C. |
|
PA |
|
K. Hovnanian at Allenberry, L.L.C. |
|
PA |
|
K. HOVNANIAN AT ALLENTOWN, L.L.C. |
|
PA |
|
K. HOVNANIAN AT BROAD AND WALNUT, L.L.C. |
|
PA |
|
K. Hovnanian at Camp Hill, L.L.C. |
|
PA |
|
K. Hovnanian at East Brandywine, L.L.C. |
|
PA |
|
K. Hovnanian at East Whiteland I, Inc. |
|
PA |
|
K. HOVNANIAN AT FORKS TWP. I, L.L.C. |
|
PA |
|
K. Hovnanian at Hershey’s Mill, Inc. |
|
PA |
|
K. Hovnanian at Lower Macungie Township I, L.L.C. |
|
PA |
|
K. Hovnanian at Lower Macungie Township II, L.L.C. |
|
PA |
|
K. Hovnanian at Lower Makefield Township I, L.L.C. |
|
PA |
|
K. Hovnanian at Lower Moreland I, L.L.C. |
|
PA |
|
K. Hovnanian at Lower Moreland II, L.L.C. |
|
PA |
|
K. Hovnanian at Lower Moreland III, L.L.C. |
|
PA |
|
K. Hovnanian at Lower Saucon, Inc. |
|
PA |
|
K. HOVNANIAN AT MACUNGIE, L.L.C. |
|
PA |
|
K. Hovnanian at Montgomery I, Inc. |
|
PA |
|
K. Hovnanian at Northampton. L.L.C. |
|
PA |
|
K. HOVNANIAN AT PERKIOMEN I, INC. |
|
PA |
|
K. Hovnanian at Perkiomen II, Inc. |
|
PA |
|
K. HOVNANIAN AT PHILADELPHIA I, L.L.C. |
|
PA |
|
K. Hovnanian at Philadelphia II, L.L.C. |
|
PA |
|
K. Hovnanian at Philadelphia III, L.L.C. |
|
PA |
|
K. Hovnanian at Philadelphia IV, L.L.C. |
|
PA |
|
K. HOVNANIAN AT RAPHO, L.L.C. |
|
PA |
|
K. Hovnanian at Sawmill, Inc. |
|
PA |
|
K. Hovnanian at Silver Spring, L.L.C. |
|
PA |
|
K. Hovnanian at Thornbury, Inc. |
|
PA |
|
K. Hovnanian at Upper Makefield I, Inc. |
|
PA |
|
K. HOVNANIAN AT UPPER UWCHLAN II, L.L.C. |
|
PA |
|
K. Hovnanian at Upper Uwchlan, L.L.C. |
|
PA |
|
K. Hovnanian at West Bradford, L.L.C. |
|
PA |
|
K. Hovnanian Companies of Pennsylvania, Inc. |
|
PA |
|
K. HOVNANIAN DEVELOPMENTS OF PENNSYLVANIA, INC. |
|
PA |
|
K. Hovnanian Eastern Pennsylvania, L.L.C. |
|
PA |
|
K. HOVNANIAN HOMES OF PENNSYLVANIA, L.L.C. |
|
PA |
|
K. Hovnanian PA Real Estate, Inc. |
|
PA |
|
K. Hovnanian Pennsylvania Acquisitions, L.L.C. |
|
PA |
|
K. Hovnanian Summit Homes of Pennsylvania, L.L.C. |
|
PA |
|
Midwest Building Products & Contractor Services of Pennsylvania, L.L.C. |
|
PA |
|
OLD CITY JOINT DEVELOPMENT, L.L.C. |
|
PA |
|
RIDGEMORE UTILITY ASSOCIATES OF PENNSYLVANIA, L.L.C. |
|
PA |
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K. HOVNANIAN CRAFTBUILT HOMES OF SOUTH CAROLINA, L.L.C. |
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SC |
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K. Hovnanian Developments of South Carolina, Inc. |
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SC |
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K. HOVNANIAN FOUR SEASONS AT GOLD HILL, L.L.C. |
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SC |
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K. Hovnanian Homes of South Carolina, LLC |
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SC |
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Westminster Homes of Tennessee, Inc. |
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TN |
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12TH* STREET RESIDENTIAL, LTD. |
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TX |
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BRIGHTBEACH DEVELOPMENT, LTD. |
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TX |
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BRIGHTCHASE, LTD. |
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TX |
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BRIGHTON HOMES AT WALDEN, LTD. |
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TX |
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HEXTER-FAIR LAND TITLE COMPANY I, INC. |
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TX |
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Hovnanian Land Investment Group of Texas, L.L.C. |
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TX |
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K. HOVNANIAN DEVELOPMENTS OF TEXAS, INC. |
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TX |
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K. Hovnanian Homes - DFW, L.L.C. |
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TX |
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K. Hovnanian Homes of Houston, L.L.C. |
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TX |
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K. Hovnanian of Houston II, L.L.C. |
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TX |
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PARK TITLE COMPANY, LLC |
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TX |
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RR HOUSTON DEVELOPERS, LLC |
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TX |
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RR HOUSTON DEVELOPMENT, L.P. |
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TX |
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RR HOUSTON INVESTMENT, L.P. |
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TX |
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RR HOUSTON INVESTORS, LLC |
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TX |
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Alford, L.L.C. |
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VA |
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COBBLESTONE SQUARE DEVELOPMENT, L.L.C. |
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VA |
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Dulles Coppermine, L.L.C. |
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VA |
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FOUNDERS TITLE AGENCY, INC. |
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VA |
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HOVNANIAN LAND INVESTMENT GROUP OF VIRGINIA, L.L.C. |
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VA |
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K. HOVNANIAN AT CAMERON CHASE, INC. |
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VA |
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K. HOVNANIAN AT LAKE RIDGE CROSSING, L.L.C. |
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VA |
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K. Hovnanian at Lake Terrapin, L.L.C. |
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VA |
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K. Hovnanian Companies of Virginia, Inc. |
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VA |
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K. HOVNANIAN DEVELOPMENTS OF VIRGINIA, INC. |
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VA |
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K. HOVNANIAN FOUR SEASONS @ HISTORIC VIRGINIA, L.L.C. |
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VA |
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K. Hovnanian Franciscus Homes, L.L.C. |
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VA |
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K. Hovnanian Homes at Belmont Overlook, L.L.C. |
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VA |
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K. Hovnanian Homes at Cameron Station, LLC |
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VA |
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K. HOVNANIAN HOMES AT PAYNE STREET, L.L.C. |
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VA |
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K. Hovnanian Homes at Victoria Station, L.L.C. |
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VA |
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K. Hovnanian Homes of Virginia, Inc. |
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VA |
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K. Hovnanian Summit Holdings, L.L.C. |
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VA |
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K. Hovnanian’s Four Seasons at Ashburn Village, L.L.C. |
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VA |
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K. Hovnanian’s Four Seasons at Charlottesville, L.L.C. |
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VA |
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K. Hovnanian’s Four Seasons at Dulles Discovery Condominium, L.L.C. |
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VA |
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K. Hovnanian’s Four Seasons at Dulles Discovery, L.L.C. |
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VA |
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K. Hovnanian’s Four Seasons at New Kent Vineyards, L.L.C. |
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VA |
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K. Hovnanian’s Four Seasons at Vint Hill, L.L.C. |
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VA |
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LAUREL HIGHLANDS, LLC |
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VA |
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NEW HOMEBUYERS TITLE CO. (VIRGINIA) L.L.C. |
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VA |
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WHI-REPUBLIC, LLC |
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VA |
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WRIGHT FARM, LLC |
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VA |
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K. Hovnanian Developments of West Virginia, Inc. |
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WV |
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K. Hovnanian Homes of West Virginia, L.L.C. |
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WV |
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K. HOVNANIAN SUMMIT HOMES OF WEST VIRGINIA, L.L.C. |
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WV |
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K. Hovnanian’s Four Seasons at Huntfield, L.L.C. |
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WV |
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MIDWEST BUILDING PRODUCTS & CONTRACTOR SERVICES OF WEST VIRGINIA, L.L.C. |
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WV |
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NEW HOMEBUYERS TITLE, L.L.C. (WV) |
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WV |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-4) and related Prospectus of Hovnanian Enterprises, Inc. (the “Company”), K. Hovnanian Enterprises, Inc. and certain subsidiaries of the Company for the registration of $600,000,000 aggregate principal amount of 11.5% Senior Secured Notes due 2013 and to the incorporation by reference therein of our reports dated December 24, 2007, with respect to the consolidated financial statements of Hovnanian Enterprises, Inc. and subsidiaries, and the effectiveness of the internal control over financial reporting of Hovnanian Enterprises, Inc. and subsidiaries included in its Annual Report (Form 10-K) for the year ended October 31, 2007, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
September 17, 2008
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) o
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
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Delaware |
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51-0055023 |
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(Jurisdiction of incorporation of organization if not a U.S. |
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(I.R.S. Employer Identification No.) |
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-1000
(Address of principal executive offices, including zip code)
Michael A. DiGregorio
Senior Vice President and General Counsel
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-8793
(Name, address, including zip code, and telephone number, including area code, of agent of service)
K. Hovnanian Enterprises, Inc.
(Exact name of obligor as specified in its charter)
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California |
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22-2423583 |
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(State or other jurisdiction or incorporation or organization) |
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(I.R.S. Employer Identification No.) |
110 West Front Street
P.O. Box 500
Red Bank, NJ 07701
(Address of principal executive offices, including zip code)
11½% Senior Secured Notes due 2013
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
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Federal Reserve Bank of Philadelphia |
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Ten Independence Mall |
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Philadelphia, PA 19106-1574 |
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State Bank Commissioner |
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555 East Loockerman Street, Suite 210 |
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Dover, Delaware 19901 |
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(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each affiliation:
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility and Qualification.
· A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the certificate of authority of Wilmington Trust Company to commence business (Exhibit 2) and the authorization of Wilmington Trust Company to exercise corporate trust powers (Exhibit 3).
· A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4).
· Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act (Exhibit 6).
· A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7).
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 19 day of September, 2008.
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[SEAL] |
WILMINGTON TRUST COMPANY |
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Attest: |
/s/ Geoffrey J. Lewis |
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By: |
/s/ Patrick J. Healy |
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Assistant Secretary |
Name: |
Patrick J. Healy |
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Title: Vice President |
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EXHIBIT 1*
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
*Exhibit 1 also constitutes Exhibits 2 and 3.
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General Assembly of the State of Delaware, entitled “An Act to Incorporate the Delaware Guarantee and Trust Company”, approved March 2, A.D. 1901, and the name of which company was changed to “Wilmington Trust Company” by an amendment filed in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act of Incorporation of which company has been from time to time amended and changed by merger agreements pursuant to the corporation law for state banks and trust companies of the State of Delaware, does hereby alter and amend its Charter or Act of Incorporation so that the same as so altered and amended shall in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is at Rodney Square North, in the City of Wilmington, County of New Castle; the name of its resident agent is Wilmington Trust Company whose address is Rodney Square North, in said City. In addition to such principal office, the said corporation maintains and operates branch offices in the City of Newark, New Castle County, Delaware, the Town of Newport, New Castle County, Delaware, at Claymont, New Castle County, Delaware, at Greenville, New Castle County Delaware, and at Milford Cross Roads, New Castle County, Delaware, and shall be empowered to open, maintain and operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the City of Wilmington, New Castle County, Delaware, and such other branch offices or places of business as may be authorized from time to time by the agency or agencies of the government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by this Corporation are to do any or all of the things herein mentioned as fully and to the same extent as natural persons might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law or equity and to make and use a common seal, and alter the seal at pleasure, to hold, purchase, convey, mortgage or otherwise deal in real and personal estate and property, and to appoint such officers and agents as the business of the Corporation shall require, to make by-laws not inconsistent with the Constitution or laws of the United States or of this State, to discount bills, notes or other evidences of debt, to receive deposits of money, or securities for money, to buy gold and silver bullion and foreign coins, to buy and sell bills of exchange, and generally to use, exercise and enjoy all the powers, rights, privileges and franchises incident to a corporation which are proper or necessary for the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or interests therein, and to guarantee the holder of such property, real or personal, against any claim or claims, adverse to his interest therein, and to prepare and give certificates of title for any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection, custody, investment and management of funds, and the purchase, sale, management and disposal of property of all descriptions, and to prepare and execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances, mortgages, bonds and legal papers of every description, and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds, bonds and any and all other personal property of every sort and kind, from executors, administrators, guardians, public officers, courts, receivers, assignees, trustees, and from all fiduciaries, and from all other persons and individuals, and from all corporations whether state, municipal, corporate or private, and to rent boxes, safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing, certificating, countersigning, transferring or underwriting the stock, bonds or other obligations of any corporation, association, state or municipality, and may receive and manage any sinking fund therefor on such terms as may be agreed upon between the two parties, and in like manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other instrument issued by any state, municipality, body politic, corporation, association or person, either alone or in conjunction with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or agreement, and the fidelity of persons holding places of responsibility or trust; to become surety for any person, or persons, for the faithful performance of any trust, office, duty, contract or agreement, either by itself or in conjunction with any other person, or persons, corporation, or corporations, or in like manner become surety upon any bond, recognizance, obligation, judgment, suit, order, or decree to be entered in any court of record within the State of Delaware or elsewhere, or which may now or hereafter be required by any law, judge, officer or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity in the receiving, holding, managing, and disposing of any and all estates and property, real, personal or mixed, and to be appointed as such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian or bailee by any persons,
2
corporations, court, officer, or authority, in the State of Delaware or elsewhere; and whenever this Corporation is so appointed by any person, corporation, court, officer or authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor, administrator, guardian, bailee, or in any other trust capacity, it shall not be required to give bond with surety, but its capital stock shall be taken and held as security for the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any of its powers hereby given, or for the performance of any of the duties which it may undertake or be called upon to perform, or for the assumption of any responsibility the said Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of capital stock, and other securities, obligations, contracts and evidences of indebtedness, of any private, public or municipal corporation within and without the State of Delaware, or of the Government of the United States, or of any state, territory, colony, or possession thereof, or of any foreign government or country; to receive, collect, receipt for, and dispose of interest, dividends and income upon and from any of the bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property held and owned by it, and to exercise in respect of all such bonds, mortgages, debentures, notes, shares of capital stock, securities, obligations, contracts, evidences of indebtedness and other property, any and all the rights, powers and privileges of individual owners thereof, including the right to vote thereon; to invest and deal in and with any of the moneys of the Corporation upon such securities and in such manner as it may think fit and proper, and from time to time to vary or realize such investments; to issue bonds and secure the same by pledges or deeds of trust or mortgages of or upon the whole or any part of the property held or owned by the Corporation, and to sell and pledge such bonds, as and when the Board of Directors shall determine, and in the promotion of its said corporate business of investment and to the extent authorized by law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and convey real and personal property of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the laws of the State of Delaware, it is hereby expressly provided that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation, and to pay for the same in cash, stock of this Corporation, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so purchased; to conduct in any lawful manner the whole or any part of any business so acquired, and to exercise all the powers necessary or convenient in and about the conduct and management of such business.
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(3) To take, hold, own, deal in, mortgage or otherwise lien, and to lease, sell, exchange, transfer, or in any manner whatever dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind with any person, firm, association or corporation, and, without limit as to amount, to draw, make, accept, endorse, discount, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations and businesses, without restriction to the same extent as natural persons might or could do, to purchase or otherwise acquire, to hold, own, to mortgage, sell, convey or otherwise dispose of, real and personal property, of every class and description, in any State, District, Territory or Colony of the United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers specified and clauses contained in this paragraph shall (except where otherwise expressed in said paragraph) be nowise limited or restricted by reference to or inference from the terms of any other clause of this or any other paragraph in this charter, but that the objects, purposes and powers specified in each of the clauses of this paragraph shall be regarded as independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the Corporation shall have authority to issue is forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00 per share (hereinafter referred to as “Preferred Stock”); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00 per share (hereinafter referred to as “Common Stock”).
(b) Shares of Preferred Stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors each of said series to be distinctly designated. All shares of any one series of Preferred Stock shall be alike in every particular, except that there may be different dates from which dividends, if any, thereon shall be cumulative, if made cumulative. The voting powers and the preferences and relative, participating, optional and other special rights of each such series, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding; and, subject to the provisions of subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of Directors of the Corporation is hereby expressly granted authority to fix by resolution or resolutions adopted prior to the issuance of any shares of a particular series of Preferred Stock, the voting powers and the designations, preferences and relative, optional and other special rights, and the qualifications, limitations and restrictions of such series, including, but without limiting the generality of the foregoing, the following:
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(1) The distinctive designation of, and the number of shares of Preferred Stock which shall constitute such series, which number may be increased (except where otherwise provided by the Board of Directors) or decreased (but not below the number of shares thereof then outstanding) from time to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which, dividends, if any, on Preferred Stock of such series shall be paid, the extent of the preference or relation, if any, of such dividends to the dividends payable on any other class or classes, or series of the same or other class of stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series to convert the same into or exchange the same for, shares of any other class or classes or of any series of the same or any other class or classes of stock of the Corporation and the terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to redemption, and the redemption price or prices and the time or times at which, and the terms and conditions on which, Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series upon the voluntary or involuntary liquidation, merger, consolidation, distribution or sale of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred Stock which may, without limiting the generality of the foregoing include the right, voting as a series or by itself or together with other series of Preferred Stock or all series of Preferred Stock as a class, to elect one or more directors of the Corporation if there shall have been a default in the payment of dividends on any one or more series of Preferred Stock or under such circumstances and on such conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the Preferred Stock (fixed in accordance with the provisions of section (b) of this Article Fourth), if any, shall have been met and after the Corporation shall have complied with all the requirements, if any, with respect to the setting aside of sums as sinking funds or redemption or purchase accounts (fixed in accordance with the provisions of section (b) of this Article Fourth), and subject further to any conditions which may be fixed in accordance with the provisions of section (b) of this Article Fourth, then and not otherwise the holders of Common Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors.
5
(2) After distribution in full of the preferential amount, if any, (fixed in accordance with the provisions of section (b) of this Article Fourth), to be distributed to the holders of Preferred Stock in the event of voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up, of the Corporation, the holders of the Common Stock shall be entitled to receive all of the remaining assets of the Corporation, tangible and intangible, of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of such resolution or resolutions as may be adopted by the Board of Directors pursuant to section (b) of this Article Fourth, each holder of Common Stock shall have one vote in respect of each share of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of options, warrants or other rights to purchase shares of any class or series of stock or of other securities of the Corporation shall have any preemptive right to purchase or subscribe for any unissued stock of any class or series or any additional shares of any class or series to be issued by reason of any increase of the authorized capital stock of the Corporation of any class or series, or bonds, certificates of indebtedness, debentures or other securities convertible into or exchangeable for stock of the Corporation of any class or series, or carrying any right to purchase stock of any class or series, but any such unissued stock, additional authorized issue of shares of any class or series of stock or securities convertible into or exchangeable for stock, or carrying any right to purchase stock, may be issued and disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations or associations, whether such holders or others, and upon such terms as may be deemed advisable by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred Stock in relation to the relative powers, preferences and rights of each other series of Preferred Stock shall, in each case, be as fixed from time to time by the Board of Directors in the resolution or resolutions adopted pursuant to authority granted in section (b) of this Article Fourth and the consent, by class or series vote or otherwise, of the holders of such of the series of Preferred Stock as are from time to time outstanding shall not be required for the issuance by the Board of Directors of any other series of Preferred Stock whether or not the powers, preferences and rights of such other series shall be fixed by the Board of Directors as senior to, or on a parity with, the powers, preferences and rights of such outstanding series, or any of them; provided, however, that the Board of Directors may provide in the resolution or resolutions as to any series of Preferred Stock adopted pursuant to section (b) of this Article Fourth that the consent of the holders of a majority (or such greater proportion as shall be therein fixed) of the outstanding shares of such series voting thereon shall be required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of Preferred Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of Directors of the Corporation shall determine and on such terms and for such consideration as shall be fixed by the Board of Directors.
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(h) The authorized amount of shares of Common Stock and of Preferred Stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be conducted and managed by a Board of Directors. The number of directors constituting the entire Board shall be not less than five nor more than twenty-five as fixed from time to time by vote of a majority of the whole Board, provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office, and provided further, that the number of directors constituting the whole Board shall be twenty-four until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the whole Board permits, with the term of office of one class expiring each year. At the annual meeting of stockholders in 1982, directors of the first class shall be elected to hold office for a term expiring at the next succeeding annual meeting, directors of the second class shall be elected to hold office for a term expiring at the second succeeding annual meeting and directors of the third class shall be elected to hold office for a term expiring at the third succeeding annual meeting. Any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the directors, may be filled by the Board of Directors, acting by a majority of the directors then in office, although less than a quorum, and any directors so chosen shall hold office until the next annual election of directors. At such election, the stockholders shall elect a successor to such director to hold office until the next election of the class for which such director shall have been chosen and until his successor shall be elected and qualified. No decrease in the number of directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of Incorporation or the By-Laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Charter or Act of Incorporation or the By-Laws of the Corporation), any director or the entire Board of Directors of the Corporation may be removed at any time without cause, but only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of Directors or by any stockholder entitled to vote for the election of directors. Such nominations shall be made by notice in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation not less than 14 days nor more than 50 days prior to any meeting of the stockholders called for the election of directors; provided, however, that if less than 21 days’ notice of the meeting is given to stockholders, such written notice shall be delivered or mailed, as prescribed, to the Secretary of the Corporation not later than the close of the seventh day following the day on which notice of the meeting was mailed to stockholders. Notice of nominations which are proposed by the Board of Directors shall be given by the Chairman on behalf of the Board.
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(e) Each notice under subsection (d) shall set forth (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of such nominee and (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agents and servants as may be provided in the By-Laws as they may from time to time find necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers, rights and privileges as may be conferred upon corporations organized under the Act entitled “An Act Providing a General Corporation Law”, approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the whole Board, may designate any of their number to constitute an Executive Committee, which Committee, to the extent provided in said resolution, or in the By-Laws of the Company, shall have and may exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly authorized to make, alter or repeal the By-Laws of the Corporation by a vote of the majority of the entire Board. The stockholders may make, alter or repeal any By-Law whether or not adopted by them, provided however, that any such additional By-Laws, alterations or repeal may be adopted only by the affirmative vote of the holders of two-thirds or more of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside of the State of Delaware at such places as may be from time to time designated by the Board, and the Directors may keep the
8
books of the Company outside of the State of Delaware at such places as may be from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law, and except as otherwise expressly provided in sections (b) and (c) of this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with or into (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder), which, after such merger or consolidation, would be an Affiliate (as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of related transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of related transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any similar transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder, or any Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, considered for the purpose of this Article Fifteenth as one class (“Voting Shares”). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that some lesser percentage may be specified, by law or in any agreement with any national securities exchange or otherwise.
(2) The term “business combination” as used in this Article Fifteenth shall mean any transaction which is referred to in any one or more of clauses (A) through (E) of paragraph 1 of the section (a).
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(b) The provisions of section (a) of this Article Fifteenth shall not be applicable to any particular business combination and such business combination shall require only such affirmative vote as is required by law and any other provisions of the Charter or Act of Incorporation or By-Laws if such business combination has been approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A “person” shall mean any individual, firm, corporation or other entity.
(2) “Interested Stockholder” shall mean, in respect of any business combination, any person (other than the Corporation or any Subsidiary) who or which as of the record date for the determination of stockholders entitled to notice of and to vote on such business combination, or immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years prior thereto was the beneficial owner, directly or indirectly, of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital stock of the Corporation which were at any time within two years prior thereto beneficially owned by any Interested Stockholder, and such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933.
(3) A person shall be the “beneficial owner” of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of the Corporation.
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(4) The outstanding Voting Shares shall include shares deemed owned through application of paragraph (3) above but shall not include any other Voting Shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options or otherwise.
(5) “Affiliate” and “Associate” shall have the respective meanings given those terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) “Subsidiary” shall mean any corporation of which a majority of any class of equity security (as defined in Rule 3a11-1 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1981) is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Investment Stockholder set forth in paragraph (2) of this section (c), the term “Subsidiary” shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine for the purposes of this Article Fifteenth on the basis of information known to them, (1) the number of Voting Shares beneficially owned by any person (2) whether a person is an Affiliate or Associate of another, (3) whether a person has an agreement, arrangement or understanding with another as to the matters referred to in paragraph (3) of section (c), or (4) whether the assets subject to any business combination or the consideration received for the issuance or transfer of securities by the Corporation, or any Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of Incorporation or the By-Laws of the Corporation (and in addition to any other vote that may be required by law, this Charter or Act of Incorporation by the By-Laws), the affirmative vote of the holders of at least two-thirds of the outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or Sixteenth of this Charter or Act of Incorporation.
Seventeenth:
(a) a Director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a Director of the Corporation existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification.”
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EXHIBIT 4
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on December 16, 2004
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE 1
Stockholders’ Meetings
Section 1. Annual Meeting. The annual meeting of stockholders shall be held on the third Thursday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President.
Section 3. Notice. Notice of all meetings of the stockholders shall be given by mailing to each stockholder at least ten (10) days before said meeting, at his last known address, a written or printed notice fixing the time and place of such meeting.
Section 4. Quorum. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholder’s name on the books of the Company on the record date for any such meeting as determined herein.
ARTICLE 2
Directors
Section 1. Management. The affairs and business of the Company shall be managed by or under the direction of the Board of Directors.
Section 2. Number. The authorized number of directors that shall constitute the Board of Directors shall be fixed from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Charter of the Company. No more than two directors may also be employees of the Company or any affiliate thereof.
Section 3. Qualification. In addition to any other provisions of these Bylaws, to be qualified for nomination for election or appointment to the Board of Directors, a person must have not attained the age of sixty-nine years at the time of such election or appointment, provided however, the Nominating and Corporate Governance Committee may waive such qualification as to a particular candidate otherwise qualified to serve as a director upon a good faith determination by such committee that such a waiver is in the best interests of the Company and its stockholders. The Chairman of the Board and the Chief Executive Officer shall not be qualified to continue to serve as directors upon the termination of their service in those offices for any reason.
Section 4. Meetings. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President.
Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors.
Section 6. Quorum. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction of business at any meeting of the Board of Directors.
Section 7. Notice. Written notice shall be sent by mail to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be mailed not less than two days before the time of holding such meeting.
Section 8. Vacancies. In the event of the death, resignation, removal, inability to act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director’s successor shall have been duly elected and qualified.
Section 9. Organization Meeting. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such committees as it may deem advisable. The Board of Directors may also elect at such meeting one or more Associate Directors. The Board of Directors, or a committee designated by the Board of Directors may elect or appoint such other officers as they may deem advisable.
Section 10. Removal. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed by it or any associate director or officer elected by it and may appoint or elect his successor.
Section 11. Responsibility of Officers. The Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable.
Section 12. Participation in Meetings. The Board of Directors or any committee of the Board of Directors may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board of Directors or such committee.
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ARTICLE 3
Committees of the Board of Directors
Section 1. Audit Committee.
(A) The Audit Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect to any other matters pertaining to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee’s members shall deem it to be proper for the transaction of its business. A majority of the Committee’s members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 2. Compensation Committee.
(A) The Compensation Committee shall be composed of not more than five (5) members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon all matters of policy concerning compensation, including salaries and employee benefits.
(C) The Compensation Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committee’s members shall deem it to be proper for the transaction of its business. A majority of the Committee’s members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 3. Nominating and Corporate Governance Committee.
(A) The Nominating and Corporate Governance Committee shall be composed of not more than five members, who shall be selected by the Board of Directors from its own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall provide counsel and make recommendations to the Chairman of the Board and the full Board with respect to the performance of the Chairman of the Board and the Chief Executive Officer, candidates for membership on the Board of Directors
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and its committees, matters of corporate governance, succession planning for the Company’s executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief Executive Officer, the President, or a majority of the Committee’s members shall deem it to be proper for the transaction of its business. A majority of the Committee’s members shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Section 4. Other Committees. The Company may have such other committees with such powers as the Board may designate from time to time by resolution or by an amendment to these Bylaws.
Section 5. Associate Directors.
(A) Any person who has served as a director may be elected by the Board of Directors as an associate director, to serve at the pleasure of the Board of Directors.
(B) Associate directors shall be entitled to attend all meetings of directors and participate in the discussion of all matters brought to the Board of Directors, but will not have a right to vote.
Section 6. Absence or Disqualification of Any Member of a Committee. In the absence or disqualification of any member of any committee created under Article III of these Bylaws, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
ARTICLE 4
Officers
Section 1. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him from time to time.
Section 2. Chief Executive Officer. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief Executive Officer conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall have the powers and duties of the Chairman of the Board.
Section 3. President. The President shall have the powers and duties pertaining to the office of the President conferred or imposed upon him by statute, incident to his office or as the Board of Directors may assign to him from time to time. In the absence of the Chairman of the Board and the Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board.
Section 4. Duties. The Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Board of Directors and shall at all times exercise general supervision over the interest, affairs and operations of the Company and perform all duties incident to his office.
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Section 5. Vice Presidents. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other powers and duties incident to their respective offices or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign to them from time to time.
Section 6. Secretary. The Secretary shall attend to the giving of notice of meetings of the stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material matters affecting the Company on a timely basis. In addition to the other notice requirements of these Bylaws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his office.
Section 7. Chief Financial Officer. The Chief Financial Officer shall have general supervision over all assets and liabilities of the Company. He shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He shall have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his office or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may assign to him from time to time.
Section 8. Controller. There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the general condition and internal operations of the Company and perform other duties incident to his office.
There may be one or more subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller.
Section 9. Audit Officers. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and such duties as may be prescribed by the officer in charge of the Audit Services Division.
Section 10. Other Officers. There may be one or more officers, subordinate in rank to all Vice Presidents with such functional titles as shall be determined from time to time by the Board of Directors, who shall ex officio hold the office of Assistant Secretary of the Company and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned.
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Section 11. Powers and Duties of Other Officers. The powers and duties of all other officers of the Company shall be those usually pertaining to their respective offices, subject to the direction of the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned.
Section 12. Number of Offices. Any one or more offices of the Company may be held by the same person, except that (A) no individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in Section 12(A).
ARTICLE 5
Stock and Stock Certificates
Section 1. Transfer. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned by him in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors.
Section 3. Record Date. The Board of Directors is authorized to fix in advance a record date for the determination of the stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change, conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent.
ARTICLE 6
Seal
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words “Wilmington Trust Company” within the inner circle the words “Wilmington, Delaware.”
ARTICLE 7
Fiscal Year
The fiscal year of the Company shall be the calendar year.
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ARTICLE 8
Execution of Instruments of the Company
The Chairman of the Board, the Chief Executive Officer, the President or any Vice President, however denominated by the Board of Directors, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements, bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors, and any and all such instruments shall have the same force and validity as though expressly authorized by the Board of Directors.
ARTICLE 9
Compensation of Directors and Members of Committees
Directors and associate directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings of the Board of Directors as the Board of Directors may from time to time determine. Directors and associate directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members of committees as the Board of Directors shall from time to time determine and directors and associate directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors.
ARTICLE 10
Indemnification
Section 1. Persons Covered. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or associate director of the Company, a member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors.
The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, or a person for whom he is the legal
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representative, is or was an officer, employee or agent of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advance of Expenses. The Company shall pay the expenses incurred in defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise.
Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a director, associate director, member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or a person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 4. Non-Exclusive. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Reduction of Amount. The Company’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.
Section 6. Effect of Modification. Any amendment, repeal or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification.
ARTICLE 11
Amendments to the Bylaws
These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office.
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ARTICLE 12
Miscellaneous
Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires otherwise and the use of either gender shall include both genders.
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EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
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WILMINGTON TRUST COMPANY |
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Dated: 9/19/2008 |
By: |
/s/ Patrick J. Healy |
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Name: Patrick J. Healy |
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Title: Vice President |
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EXHIBIT 7
NOTICE
This form is intended to assist state nonmember banks and savings banks with state publication requirements. It has not been approved by any state banking authorities. Refer to your appropriate state banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
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WILMINGTON TRUST COMPANY |
of |
WILMINGTON |
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Name of Bank |
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City |
in the State of DELAWARE, at the close of business on September 30, 2007.
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Thousands of dollars |
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ASSETS |
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Cash and balances due from depository institutions: |
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Noninterest-bearing balances and currency and coins |
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247,352 |
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Interest-bearing balances |
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0 |
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Held-to-maturity securities |
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1,171 |
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Available-for-sale securities |
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1,339,816 |
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Federal funds sold in domestic offices |
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128,500 |
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Securities purchased under agreements to resell |
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14,467 |
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Loans and lease financing receivables: |
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Loans and leases held for sale |
3,379 |
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|
|
Loans and leases, net of unearned income |
7,793,026 |
|
|
|
|
|
LESS: Allowance for loan and lease losses |
90,906 |
|
|
|
|
|
Loans and leases, net of unearned income, allowance, and reserve |
|
7,702,120 |
|
||
|
Assets held in trading accounts |
|
0 |
|
||
|
Premises and fixed assets (including capitalized leases) |
|
133,263 |
|
||
|
Other real estate owned |
|
199 |
|
||
|
Investments in unconsolidated subsidiaries and associated companies |
|
2,860 |
|
||
|
Intangible assets: |
|
|
|
||
|
a. Goodwill |
|
1,946 |
|
||
|
b. Other intangible assets |
|
3,315 |
|
||
|
Other assets |
|
317,940 |
|
||
|
Total assets |
|
9,896,328 |
|
||
2
|
LIABILITIES |
|
|
|
||
|
|
|
|
|
||
|
Deposits: |
|
|
|
||
|
In domestic offices |
|
6,994,751 |
|
||
|
Noninterest-bearing |
748,309 |
|
|
|
|
|
Interest-bearing |
6,246,442 |
|
|
|
|
|
Federal funds purchased in domestic offices |
|
1,014,834 |
|
||
|
Securities sold under agreements to repurchase |
|
434,190 |
|
||
|
Trading liabilities (from Schedule RC-D) |
|
0 |
|
||
|
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) |
|
315,797 |
|
||
|
Subordinated notes and debentures |
|
0 |
|
||
|
Other liabilities (from Schedule RC-G) |
|
248,973 |
|
||
|
Total liabilities |
|
9,008,545 |
|
||
|
|
|
|
|
||
|
EQUITY CAPITAL |
|
|
|
||
|
|
|
|
|
||
|
Perpetual preferred stock and related surplus |
|
0 |
|
||
|
Common Stock |
|
500 |
|
||
|
Surplus (exclude all surplus related to preferred stock) |
|
125,803 |
|
||
|
a. Retained earnings |
|
811,365 |
|
||
|
b. Accumulated other comprehensive income |
|
(49,885 |
) |
||
|
Total equity capital |
|
887,783 |
|
||
|
Total liabilities, minority interest, and equity capital |
|
9,896,328 |
|
||
3
QuickLinks -- Click here to rapidly navigate through this document
FORM OF LETTER OF TRANSMITTAL
K. HOVNANIAN ENTERPRISES, INC.
OFFER TO EXCHANGE
ALL OUTSTANDING PRIVATELY PLACED
111/2% SENIOR SECURED NOTES DUE 2013 FOR AN EQUAL AMOUNT OF ITS
111/2% SENIOR SECURED NOTES DUE 2013
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON [ ] , 2008 UNLESS THE OFFER IS
EXTENDED (the "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY
Delivery to: Wilmington Trust Company, Exchange Agent
| By Overnight Mail or Courier Delivery: | By Hand: | By Mail: | ||
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
||
For Facsimile Transmission: (302) 636-4139 |
||||
Confirm By Telephone: (302) 636-6181 |
||||
Information: (302) 636-4184 |
||||
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA A FACSIMILE NUMBER OTHER THAN THE ONE SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Holders of Outstanding Notes (as defined below) should complete this Letter of Transmittal either if Outstanding Notes are to be forwarded herewith or if tenders of Outstanding Notes are to be made by book-entry transfer to an account maintained by the Exchange Agent at The Depository Trust Company ("DTC") pursuant to the procedures set forth in "The Exchange Offer—Book-Entry Delivery Procedures" and "The Exchange Offer—Tender of Outstanding Notes Held Through The Depository Trust Company" in the Prospectus (as defined below) and an "Agent's Message" (as defined below) is
not delivered. If tender is being made by book-entry transfer, the Holder must have an Agent's Message delivered in lieu of this Letter of Transmittal.
Holders of Outstanding Notes whose certificates (the "Certificates") for such Outstanding Notes are not immediately available or who cannot deliver their Certificates and all other required documents to the Exchange Agent on or prior to the Expiration Date or who cannot complete the procedures for book-entry transfer on a timely basis, must tender their Outstanding Notes according to the guaranteed delivery procedures set forth in "The Exchange Offer—Guaranteed Delivery Procedures" in the Prospectus.
As used in this Letter of Transmittal, the term "Holder" with respect to the Exchange Offer (as defined below) means any person in whose name Outstanding Notes are registered on the books of K. Hovnanian Enterprises, Inc., a California corporation (the "Issuer"), or, with respect to interests in the Outstanding Notes held by DTC, any DTC participant listed in an official DTC proxy. The undersigned has completed, signed and delivered this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer. Holders who wish to tender their Outstanding Notes must complete this Letter of Transmittal in its entirety.
SEE INSTRUCTION 1. DELIVERY OF DOCUMENTS TO DTC DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
BENEFICIAL OWNERS OF OUTSTANDING NOTES SEE INSTRUCTION 10
(QUESTIONS AND REQUEST FOR ASSISTANCE OR ADDITIONAL COPIES).
The undersigned hereby acknowledges receipt of the Prospectus dated [ ], 2008 (as it may be amended or supplemented from time to time, the "Prospectus") of the Issuer, Hovnanian Enterprises, Inc., a Delaware corporation and the parent of the Issuer ("Hovnanian"), and certain subsidiaries of Hovnanian (together with Hovnanian, the "Guarantors," and each, a "Guarantor") and this Letter of Transmittal, which together constitute the offer (the "Exchange Offer") to exchange an aggregate principal amount of up to $600,000,000 of the Issuer's 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors, that were originally sold pursuant to a private offering (collectively, the "Outstanding Notes") for an equal principal amount of the Issuer's 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors, that have been registered under the Securities Act of 1933, as amended (the "Securities Act") (collectively, the "Exchange Notes"). The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this Letter of Transmittal, unless the context otherwise requires and whether so expressed or not, references to the "Exchange Offer" include the Guarantors' offer to exchange the New Guarantees for the Old Guarantees, references to the "Exchange Notes" include the related New Guarantees and references to the "Outstanding Notes" include the related Old Guarantees. Capitalized terms used but not defined herein have the meaning given to them in the Prospectus.
For each Outstanding Note accepted for exchange, the holder of such Outstanding Note will receive an Exchange Note having a principal amount equal to that of the surrendered Outstanding Note. The Exchange Notes will accrue interest at the rate of 111/2% per annum, from the most recent date to which interest has been paid on the Outstanding Notes or, if no interest has been paid on the Outstanding Notes, from commencing on May 27, 2008. Interest is payable semi-annually on May 1 and November 1 of each year.
2
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT, WHOSE ADDRESS AND TELEPHONE NUMBER APPEAR ON THE FRONT PAGE OF THIS LETTER OF TRANSMITTAL.
See Instruction 10 below.
The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action that the undersigned desires to take with respect to the Exchange Offer.
List below the Outstanding Notes to which this Letter of Transmittal relates. If the space below is inadequate, the Certificate or registration numbers and principal amounts of Outstanding Notes should be listed on a separately signed schedule affixed hereto.
All Tendering Holders Complete Box 1:
|
||||||
Name(s) and Address(es) of Registered Holder(s) |
Certificate or Registration Number(s) of Outstanding Notes* |
Aggregate Principal Amount Represented by Outstanding Notes |
Aggregate Principal Amount of Outstanding Notes Being Tendered** |
|||
|
||||||
| Total | ||||||
- *
- Need
not be completed by book-entry holders (see below).
- **
- The minimum permitted tender is $2,000 in principal amount. All tenders must be in integral multiples of $1,000 in principal amount in excess of the minimum tender of $2,000 in principal amount. The aggregate principal amount of all of the Outstanding Notes represented by the
3
Outstanding Notes identified in this column, or delivered to the Exchange Agent herewith, will be deemed tendered unless a lesser amount is specified in this column. See Instruction 4.
| Box 2 Book-Entry Transfer |
||||
o |
CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING: |
|||
Name of Tendering Institution: |
||||
DTC Account Number: |
||||
Transaction Code Number: |
||||
Holders of Outstanding Notes that are tendering by book-entry transfer to the Exchange Agent's account at DTC can execute the tender through DTC's Automated Tender Offer Program ("ATOP") for which the transaction will be eligible. DTC participants that are accepting the Exchange Offer must transmit their acceptances to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC will then send a computer-generated message (an "Agent's Message") to the Exchange Agent for its acceptance in which the holder of the Outstanding Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal, and the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Each DTC participant transmitting an acceptance of the Exchange Offer through the ATOP procedures will be deemed to have agreed to be bound by the terms of this Letter of Transmittal. Delivery of an Agent's Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agent's Message. DTC participants may also accept the Exchange Offer by submitting a Notice of Guaranteed Delivery through ATOP.
4
| Box 3 Notice of Guaranteed Delivery (See Instruction 2 below) |
||||
o |
CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: |
|||
Name(s) of Registered Holder(s): |
||||
Window Ticket Number (if any): |
||||
Date of Execution of Notice of Guaranteed Delivery: |
||||
Name of Institution which Guaranteed Delivery: |
||||
IF GUARANTEED DELIVERY IS TO BE MADE BY BOOK-ENTRY TRANSFER: |
||||
Name of Tendering Institution: |
||||
DTC Account Number: |
||||
Transaction Code Number: |
||||
| Box 4 Return of Non-Exchanged Outstanding Notes Tendered by Book-Entry Transfer |
||
o |
CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE. |
|
| Box 5 Participating Broker-Dealer |
||||
o |
CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OUTSTANDING NOTES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE TEN ADDITIONAL COPIES OF THE PROSPECTUS AND OF ANY AMENDMENTS OR SUPPLEMENTS THERETO, AS WELL AS ANY NOTICES FROM THE ISSUER TO SUSPEND AND RESUME USE OF THE PROSPECTUS. PROVIDE THE NAME OF THE INDIVIDUAL WHO SHOULD RECEIVE, ON BEHALF OF THE HOLDER, ADDITIONAL COPIES OF THE PROSPECTUS, AND AMENDMENTS AND SUPPLEMENTS THERETO, AND ANY NOTICES TO SUSPEND AND RESUME USE OF THE PROSPECTUS. |
|||
Name: |
||||
Address: |
||||
Telephone No.: |
||||
Facsimile No.: |
||||
5
If the undersigned is not a broker-dealer, the undersigned represents that it is acquiring the Exchange Notes in the ordinary course of its business, it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes. If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Outstanding Notes, it represents that the Outstanding Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Issuer the aggregate principal amount of the Outstanding Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the Outstanding Notes tendered hereby, the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Issuer all right, title and interest in and to such Outstanding Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as agent of the Issuer) with respect to the tendered Outstanding Notes, with full power of substitution and resubstitution (such power of attorney being deemed an irrevocable power coupled with an interest) to (1) deliver certificates representing such Outstanding Notes, or transfer ownership of such Outstanding Notes on the account books maintained by DTC, together, in each such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Issuer, (2) present and deliver such Outstanding Notes for transfer on the books of the Issuer and (3) receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Outstanding Notes, all in accordance with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that (1) the undersigned has full power and authority to tender, exchange, assign and transfer the Outstanding Notes tendered hereby, (2) when such tendered Outstanding Notes are accepted for exchange, the Issuer will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and (3) the Outstanding Notes tendered for exchange are not subject to any adverse claims or proxies when the same are accepted by the Issuer. The undersigned hereby further represents that any Exchange Notes acquired in exchange for Outstanding Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such Exchange Notes, whether or not such person is the undersigned, that neither the holder of such Outstanding Notes nor any such other person is engaged in, or intends to engage in, a distribution of such Exchange Notes within the meaning of the Securities Act, or has an arrangement or understanding with any person to participate in the distribution of such Exchange Notes, and that neither the holder of such Outstanding Notes nor any such other person is an "affiliate", as such term is defined in Rule 405 under the Securities Act, of the Issuer or any Guarantor.
The undersigned also acknowledges that this Exchange Offer is being made based on the Issuer's understanding of an interpretation by the staff of the United States Securities and Exchange Commission (the "SEC") as set forth in no-action letters issued to third parties, including Morgan Stanley & Co., Inc. (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC's letter to Shearman & Sterling (available July 2, 1993), or similar no-action letters, that the Exchange Notes issued in exchange for the Outstanding Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by each holder thereof
6
(other than a broker-dealer who acquires such Exchange Notes directly from the Issuer for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act or any such holder that is an "affiliate" of the Issuer or the Guarantors within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such holder's business and such holder is not engaged in, and does not intend to engage in, a distribution of such Exchange Notes and has no arrangement or understanding with any person to participate in the distribution of such Exchange Notes. If a holder of the Outstanding Notes is an affiliate of the Issuer or the Guarantors, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in, or intends to engage in, a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such holder (x) may not rely on the applicable interpretations of the staff of the SEC and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. If the undersigned is a broker-dealer that will receive the Exchange Notes for its own account in exchange for the Outstanding Notes, it represents that the Outstanding Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
The undersigned will, upon request, sign and deliver any additional documents deemed by the Issuer or the Exchange Agent to be necessary or desirable to complete the exchange, assignment and transfer of the Outstanding Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter of Transmittal and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Tendered Outstanding Notes may be withdrawn at any time prior to the Expiration Date in accordance with the procedures set forth in the "The Exchange Offer—Withdrawal Rights" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Registration Instructions" below, please deliver the Exchange Notes (and, if applicable, substitute certificates representing the Outstanding Notes for any Outstanding Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of the Outstanding Notes, please credit the account indicated above maintained at DTC. Similarly, unless otherwise indicated in the box entitled "Special Delivery Instructions" below, please send the Exchange Notes (and, if applicable, substitute certificates representing the Outstanding Notes for any Outstanding Notes not exchanged) to the undersigned at the address shown above in the box entitled "Description of Outstanding Notes Tendered".
7
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OUTSTANDING NOTES TENDERED" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OUTSTANDING NOTES AS SET FORTH IN SUCH BOX ABOVE.
| Box 6 Special Registration Instructions (See Instructions 1, 5 and 6 below) |
Box 7 Special Delivery Instructions (See Instructions 1, 5 and 6 below) |
|||||
To be completed ONLY if Certificates for the Outstanding Notes not exchanged and/or Certificates for the Exchange Notes are to be issued in the name of someone other than the registered holder(s) of the Outstanding Notes whose name(s) appear(s) above. |
To be completed ONLY if Certificates for the Outstanding Notes not exchanged and/or Certificates for the Exchange Notes are to be sent to someone other than the registered holder(s) of the Outstanding Notes whose name(s) appear(s) above, or to such registered Holder(s) at an address other than that shown above. |
|||||
Issue the Exchange Notes and/or the Outstanding Notes to: |
Deliver the Exchange Notes and/or the Original Notes to: |
|||||
Name(s) |
Name(s) |
|||||
|
(Please type or Print) |
(Please type or Print) |
|||||
Address: |
Address: |
|||||
|
|
|
|||||
|
|
|
|||||
|
(Include Zip Code) |
(Include Zip Code) |
|||||
|
(Taxpayer Identification or Social Security Number) |
(Taxpayer Identification or Social Security Number) |
|||||
8
| Box 8 PLEASE SIGN HERE Tendering Holder Signature In Addition, Complete Substitute Form W-9—See Box 9 |
||||||||
Signature of registered holder(s) or Authorized Signatory(ies): |
||||||||
|
|
||||||||
Date: |
||||||||
|
|
||||||||
Note: The above lines must be signed by the registered holder(s) of the Outstanding Notes as their name(s) appear(s) on the Outstanding Notes or on a security position listing as the owner of the Outstanding Notes or by person(s) authorized to become registered holder(s) by properly completed bond powers or endorsements transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below. See Instruction 5. |
||||||||
Name(s): |
||||||||
|
|
||||||||
| (Please Type or Print) |
||||||||
Capacity (full title): |
||||||||
|
|
||||||||
Address: |
||||||||
|
|
||||||||
| (Including Zip Code) |
||||||||
Area Code and Telephone Number: |
||||||||
|
|
||||||||
Tax Identification or Social Security Number: |
||||||||
|
|
||||||||
SIGNATURE GUARANTEE (IF REQUIRED BY INSTRUCTION 5) |
||||||||
Signature(s) Guaranteed by an Eligible Guarantor Institution: |
||||||||
|
|
||||||||
| (Authorized Signature) | ||||||||
(Title) |
||||||||
(Name and Firm) |
||||||||
(Address) |
||||||||
Date: |
||||||||
|
|
||||||||
Area Code and Telephone Number: |
||||||||
|
|
||||||||
Tax Identification or Social Security Number: |
||||||||
|
|
||||||||
9
| Box 9 PAYER'S NAME: Wilmington Trust Company |
||||
| SUBSTITUTE FORM W-9 Department of the Treasury Internal Revenue Service |
Part 1—PLEASE PROVIDE YOUR TIN IN THE BOX TO THE RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. | Name |
||
Payer's Request for Taxpayer Identification Number (TIN) |
Part 2 Certification—Under penalty of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) I am a U.S. person (including a U.S. resident alien). |
Social Security Number OR Employer Identification Number Part 3— o Awaiting TIN |
||
| CERTIFICATE INSTRUCTIONS—You must cross out item (2) above if you have been notified by the IRS that you are currently subject to backup withholding because of under reporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out such item (2). | ||||
| --> | The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding. | |||
SIGNATURE |
||||
Sign Here |
DATE |
|||
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF UP TO 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment 28% of all reportable payments made to me will be withheld.
| Signature | Date | , 20 | ||||||||
|
|
|
|
10
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number for the Payee (You) to Give the Payer.—Social security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employee identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer. All "Section" references are to the Internal Revenue Code of 1986, as amended. "IRS" is the Internal Revenue Service.
| For this type of account: |
Give the social security number of— |
|
|---|---|---|
1. Individual |
The Individual |
|
2. Two or more individuals (joint account) |
The actual owner of the account or, if combined pension trust funds, the first individual on the account(1) |
|
3. Custodian account of a minor (Uniform Gift to Minors Act) |
The minor(2) |
|
4. a. The usual revocable savings trust account (grantor is also trustee) |
The grantor-trustee(1) |
|
4. b. So-called trust account that is not a legal or valid trust under state law |
The actual owner(1) |
|
5. Sole proprietorship or disregarded entity owned by an individual |
The owner(3) |
|
| For this type of account: |
Give the employer identification number of— |
|
6. Disregarded entity not owned by an individual |
The owner |
|
7. A valid trust, estate, or pension trust |
The legal entity(4) |
|
8. Corporate |
The corporation |
|
9. Association, club, religious, charitable, educational, or other tax-exempt organization |
The corporation |
|
10. Partnership |
The partnership |
|
11. A broker or registered nominee |
The broker or nominee |
|
12. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments |
The public entity |
|
- (1)
- List
first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person's
number must be furnished.
- (2)
- Circle
the minor's name and furnish the minor's social security number.
- (3)
- You
must show your individual name, but you may also enter your business or "doing business as" name. You may use either your social security number or your
employer identification number (if you have one).
- (4)
- List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)
Note: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed.
11
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Obtaining a Number
If you don't have a taxpayer identification number or you don't know your number, obtain Form SS-5, Application for a Social Security Card, at the local Social Security Administration office, or Form SS-4, Application for Employer Identification Number, by calling 1 (800) TAX-FORM, and apply for a number.
Payees Exempt from Backup Withholding
Payees specifically exempted from withholding include:
- •
- An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account
under Section 403(b)(7), if the account satisfies the requirements of Section 401(f)(2).
- •
- The United States or a state thereof, the District of Columbia, a possession
of the United States, or a political
subdivision or instrumentality of any one or more of the foregoing.
- •
- An international organization or any agency or instrumentality thereof.
- •
- A foreign government and any political subdivision, agency or instrumentality thereof.
Payees that may be exempt from backup withholding include:
- •
- A corporation.
- •
- A financial institution.
- •
- A dealer in
securities or commodities required to register in the United States, the District of Columbia, or a possession
of the United States.
- •
- A real estate investment trust.
- •
- A common trust fund operated by a bank under
Section 584(a).
- •
-
An entity registered at all times during the tax year under the Investment Company Act of 1940.
- •
- A middleman known in the investment community as a nominee or custodian.
- •
- A futures commission merchant
registered with the Commodity Futures Trading Commission.
- •
- A foreign central bank of issue.
- •
- A trust exempt from tax under Section 664 or described in Section 4947.
Payments of dividends and patronage dividends generally exempt from backup withholding include:
- •
- Payments to nonresident aliens subject to withholding under Section 1441.
- •
- Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident
alien partner.
- •
- Payments of patronage dividends not paid in money.
- •
- Payments made by certain foreign
organizations.
- •
- Section 404(k) payments made by an ESOP.
Payments
of interest generally exempt from backup withholding include:
- •
- Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest
is $600 or more and you have not provided your correct taxpayer identification number to the payer.
- •
- Payments described in Section 6049(b)(5) to nonresident aliens.
- •
- Payments on tax-free covenant bonds under Section 1451.
- •
- Payments made by certain foreign organizations.
- •
- Mortgage interest paid to you.
Certain payments, other than payments of interest, dividends, and patronage dividends, that are exempt from information reporting are also exempt from backup withholding For details, see the regulations under Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N.
Exempt payees described above must file Form W-9 or a substitute Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND DATE THE FORM, AND RETURN IT TO THE PAYER.
Privacy Act Notice.—Section 6109 requires you to provide your correct taxpayer identification number to payers, who must report the payments to the IRS. The IRS uses the number for identification purposes and may also provide this information to various government agencies for tax enforcement or litigation purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold up to 28% of taxable interest, dividends, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply.
Penalties
(1) Failure to Furnish Taxpayer Identification Number.—If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding.—If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
(3) Criminal Penalty for Falsifying Information.—Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE
12
INSTRUCTIONS TO LETTER OF TRANSMITTAL FORMING PART OF
THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
General
Please do not send Certificates for Outstanding Notes directly to the Issuer. Your Certificates for Outstanding Notes, together with your signed and completed Letter of Transmittal and any required supporting documents, should be mailed or otherwise delivered to the Exchange Agent at the address set forth on the first page hereof. The method of delivery of Certificates, this Letter of Transmittal and all other required documents is at your sole option and risk and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, or overnight or hand delivery service is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
1. Delivery of this Letter of Transmittal and Certificates.
This Letter of Transmittal is to be completed by holders of Outstanding Notes (which term, for purposes of the Exchange Offer, includes any participant in DTC whose name appears on a security position listing as the holder of such Outstanding Notes) if either (1) Certificates for such Outstanding Notes are to be forwarded herewith or (2) tenders are to be made pursuant to the procedures for tender by book-entry transfer set forth in "The Exchange Offer—Book-Entry Delivery Procedures" in the Prospectus and an Agent's Message (as defined below) is not delivered. The term "Agent's Message" means a message, transmitted by DTC to, and received by, the Exchange Agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by, and makes the representations and warranties contained in, this Letter of Transmittal and that the Issuer may enforce this Letter of Transmittal against such participant. Certificates representing the tendered Outstanding Notes, or timely confirmation of a book-entry transfer of such Outstanding Notes into the Exchange Agent's account at DTC, as well as a properly completed and duly executed copy of this Letter of Transmittal, or a facsimile hereof (or, in the case of a book-entry transfer, an Agent's Message), a substitute Form W-9 and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at its address set forth herein on or prior to the Expiration Date, or the tendering holder must comply with the guaranteed delivery procedures set forth below. Outstanding Notes may be tendered in whole or in part in the principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
2. Guaranteed Delivery Procedures.
Holders who wish to tender their Outstanding Notes and (1) whose Outstanding Notes are not immediately available or (2) who cannot deliver their Outstanding Notes, this Letter of Transmittal and all other required documents to the Exchange Agent on or prior to the Expiration Date or (3) who cannot complete the procedures for delivery by book-entry transfer on a timely basis, may effect a tender by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in "The Exchange Offer—Guaranteed Delivery Procedures" in the Prospectus and by completing Box 3. Pursuant to these procedures, Holders may tender their Outstanding Notes if: (1) the tender is made by or through an Eligible Guarantor Institution (as defined below); (2) a properly completed and signed Notice of Guaranteed Delivery in the form provided with this Letter of Transmittal is delivered to the Exchange Agent on or before the Expiration Date (by facsimile transmission, mail or hand delivery), setting forth the name and address of the holder of Outstanding Notes, the registered number(s) of such Outstanding Notes and the amount of Outstanding Notes tendered, stating that the tender is being made thereby; and (3) the Certificates or a confirmation of book-entry transfer and a properly completed and signed Letter of Transmittal is delivered to the Exchange Agent within three New York Stock Exchange trading days after the
13
Expiration Date. The Notice of Guaranteed Delivery may be delivered by hand, facsimile or mail to the Exchange Agent, and a guarantee by an Eligible Guarantor Institution must be included in the form described in the notice.
Any Holder who wishes to tender Outstanding Notes pursuant to the guaranteed delivery procedures described above must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery relating to such Outstanding Notes prior to the Expiration Date. Failure to complete the guaranteed delivery procedures outlined above will not, of itself, affect the validity or effect a revocation of any Letter of Transmittal form properly completed and executed by a Holder who attempted to use the guaranteed delivery procedures.
The Issuer will not accept any alternative, conditional or contingent tenders. Each tendering holder of Outstanding Notes, by execution of a Letter of Transmittal (or facsimile thereof), waives any right to receive any notice of the acceptance of such tender.
Guarantee of Signatures
No signature guarantee on this Letter of Transmittal is required if:
- (i)
- this
Letter of Transmittal is signed by the registered Holder(s) (which term, for purposes of this document, shall include any participant in DTC whose name
appears on a security position listing as the owner of the Outstanding Notes) of Outstanding Notes tendered herewith, unless such Holder(s) has (have) completed either the box entitled "Special
Registration Instructions" (Box 6) or "Special Delivery Instructions" (Box 7) above; or
- (ii)
- such Outstanding Notes are tendered for the account of a firm that is an Eligible Guarantor Institution.
In all other cases, an Eligible Guarantor Institution must guarantee the signature(s) in Box 8 on this Letter of Transmittal. See Instruction 5.
Inadequate Space
If the space provided in the box captioned "Description of Outstanding Notes Tendered" (Box 1) is inadequate, the Certificate or registration number(s) and/or the principal amount of Outstanding Notes and any other required information should be listed on a separate, signed schedule and attached to this Letter of Transmittal.
3. Beneficial Owner Instructions.
Only a Holder of Outstanding Notes (i.e., a person in whose name Outstanding Notes are registered on the books of the registrar or, with respect to interests in the Outstanding Notes held by DTC, a DTC participant listed in an official DTC proxy), or the legal representative or attorney-in-fact of a Holder, may execute and deliver this Letter of Transmittal. Any beneficial owner of Outstanding Notes who wishes to accept the Exchange Offer must arrange promptly for the appropriate Holder to execute and deliver this Letter of Transmittal on his or her behalf through the execution and delivery to the appropriate Holder of the "Instructions to Registered Holder and/or DTC Participant from Beneficial Owner of 111/2% Senior Secured Notes due 2013" form accompanying this Letter of Transmittal.
4. Partial Tenders; Withdrawals.
Tenders of Outstanding Notes will be accepted only in the principal amount of $2,000 and integral multiples of $1,000 in excess thereof. If less than the entire principal amount of Outstanding Notes evidenced by a submitted Certificate is tendered, the tendering Holder(s) should fill in the aggregate
14
principal amount tendered in the column entitled "Aggregate Principal Amount of Outstanding Notes Being Tendered" in Box 1 above. A newly issued Certificate for the principal amount of Outstanding Notes submitted but not tendered will be sent to such Holder as soon as practicable after the Expiration Date, unless otherwise provided in the appropriate box on this Letter of Transmittal. All Outstanding Notes delivered to the Exchange Agent will be deemed to have been tendered in full unless otherwise indicated.
Outstanding Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Outstanding Notes are irrevocable. To be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Exchange Agent at the address set forth on the first page hereof. Any such notice of withdrawal must (1) specify the name of the person having deposited the Outstanding Notes to be withdrawn (the "Depositor"), (2) identify the Outstanding Notes to be withdrawn (including the registration number(s) and principal amount of such Outstanding Notes, or, in the case of Outstanding Notes transferred by book-entry transfer, the name and number of the account at DTC to be credited), (3) be signed by the Holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee with respect to the Outstanding Notes register the transfer of such Outstanding Notes in the name of the person withdrawing the tender, (4) specify the name in which any such Outstanding Notes are to be registered, if different from that of the Depositor and (5) include a statement that the Depositor is withdrawing its election to have such Outstanding Notes exchanged. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Issuer, whose determination shall be final and binding on all parties. Any Outstanding Notes so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offer and no Exchange Notes will be issued with respect thereto unless the Outstanding Notes so withdrawn are validly re-tendered. Any Outstanding Notes which have been tendered but which are not accepted for exchange for any reason will be returned to the Holder thereof without cost to such Holder (or, in the case of Outstanding Notes tendered by book-entry transfer into the Exchange Agent's account at the book entry transfer facility pursuant to the book-entry transfer procedures described above, such Outstanding Notes will be credited to an account with such book-entry transfer facility specified by the Holder) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Outstanding Notes may be retendered by following one of the procedures described under the caption "The Exchange Offer—Procedures for Tendering" in the Prospectus at any time prior to the Expiration Date.
Neither the Issuer, any affiliates or assigns of the Issuer, the Exchange Agent nor any other person will be under any duty to give any notification of any irregularities in any notice of withdrawal or incur any liability for failure to give such notification (even if such notice is given to other persons).
5. Signature on Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures.
If this Letter of Transmittal is signed by the registered Holder(s) of the Outstanding Notes tendered hereby, the signature must correspond exactly with the name(s) as written on the face of the Certificates without alteration, addition, enlargement or any change whatsoever. If this Letter of Transmittal is signed by a participant in DTC, the signature must correspond with the name as it appears on the security position listing as the owner of the Outstanding Notes.
If any of the Outstanding Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
15
If a number of Outstanding Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal (or facsimiles thereof) as there are different registrations of Outstanding Notes.
If this Letter of Transmittal is signed by the registered Holder(s) of Outstanding Notes (which term, for the purposes described herein, shall include a participant in DTC whose name appears on a security position listing as the owner of the Outstanding Notes) listed and tendered hereby, no endorsements of the tendered Outstanding Notes or separate written instruments of transfer or exchange are required. In any other case, the registered Holder(s) (or acting Holder(s)) must either properly endorse the Outstanding Notes or transmit properly completed bond powers with this Letter of Transmittal (in either case, executed exactly as the name(s) of the registered Holder(s) appear(s) on the Outstanding Notes, and, with respect to a participant in DTC whose name appears on such security position listing), with the signature on the Outstanding Notes or bond power guaranteed by an Eligible Guarantor Institution (except where the Outstanding Notes are tendered for the account of an Eligible Guarantor Institution).
If this Letter of Transmittal, any Certificates, bond powers or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Issuer, must submit proper evidence satisfactory to the Issuer, in its sole discretion, of such persons' authority to so act.
Endorsements on certificates for the Outstanding Notes or signatures on bond powers required by this Instruction 5 must be guaranteed by a firm that is a member of the Security Transfer Agent Medallion Signature Program or by any other "Eligible Guarantor Institution" within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
Signatures on this Letter of Transmittal need not be guaranteed by an Eligible Guarantor Institution, provided the Outstanding Notes are tendered: (i) by a registered holder of the Outstanding Notes (which term, for purposes of the Exchange Offer, includes any participant in the DTC system whose name appears on a security position listing as the owner of such Outstanding Notes) tendered who has not completed Box 6 entitled "Special Registration Instructions" or Box 7 entitled "Special Delivery Instructions" on this Letter of Transmittal or (ii) for the account of an Eligible Guarantor Institution.
6. Special Registration and Delivery Instructions.
Tendering Holders should indicate, in the applicable Box 6 or Box 7, the name and address in/to which the Exchange Notes and/or substitute certificates evidencing Outstanding Notes for principal amounts not tendered or not accepted for exchange are to be issued or sent, if different from the name(s) and address(es) of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification number or social security number of the person named must also be indicated and the tendering Holder should complete the applicable box. A holder tendering the Outstanding Notes by book-entry transfer may request that the Outstanding Notes not exchanged be credited to such account maintained at DTC as such Holder may designate hereof (See Box 4).
If no instructions are given, the Exchange Notes (and any Outstanding Notes not tendered or not accepted) will be issued in the name of and sent to the Holder signing this Letter of Transmittal or deposited into such Holder's account at DTC.
16
7. Transfer Taxes.
The Issuer will pay all transfer taxes, if any, applicable to the transfer and exchange of Outstanding Notes to it or its order pursuant to the Exchange Offer. If a transfer tax is imposed because Exchange Notes are delivered or issued in the name of a person other than the registered Holder or if a transfer tax is imposed for any other reason other than the transfer and exchange of Outstanding Notes to the Issuer or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder or any other person) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed to the tendering Holder by the Exchange Agent.
Except as provided in this Instruction 7, it will not be necessary for transfer tax stamps to be affixed to the Outstanding Notes listed in the Letter of Transmittal.
8. Waiver of Conditions.
The Issuer reserves the right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.
9. Mutilated, Lost, Stolen or Destroyed Outstanding Notes.
Any Holder whose Outstanding Notes have been mutilated, lost, stolen or destroyed should promptly contact the Exchange Agent at the address set forth on the first page hereof for further instructions. The Holder will then be instructed as to the steps that must be taken in order to replace the Certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen Certificate(s) have been completed.
10. Questions and Request for Assistance or Additional Copies.
Questions relating to the procedure for tendering as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number set forth on the first page hereof.
11. Validity and Form; No Conditional Tenders; No Notice of Irregularities.
All questions as to the validity, form, eligibility (including time of receipt), acceptance of tendered Outstanding Notes and withdrawal of tendered Outstanding Notes will be determined by the Issuer in its sole discretion, which determination will be final and binding. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of their Outstanding Notes for exchange. The Issuer also reserves the right, in its reasonable judgment, to waive any defects, irregularities or conditions of tender as to particular Outstanding Notes. The Issuer's interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Outstanding Notes must be cured within such time as the Issuer shall determine. Although the Issuer intends to notify Holders of defects or irregularities with respect to tenders of Outstanding Notes, neither the Issuer, the Exchange Agent nor any other person is under any obligation to give such notice nor shall they incur any liability for failure to give such notification. Tenders of Outstanding Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holder as soon as practicable following the Expiration Date.
17
Under U.S. federal income tax law, a Holder tendering Outstanding Notes whose Outstanding Notes are accepted for exchange may be subject to backup withholding unless the holder provides either (i) such Holder's correct taxpayer identification ("TIN") on the Substitute Form W-9 above, certifying (A) that the TIN provided on Substitute Form W-9 is correct (or that such Holder of Outstanding Notes is awaiting a TIN), (B) that the Holder of Outstanding Notes is not subject to backup withholding because (x) such Holder of Outstanding Notes is exempt from backup withholding, (y) such Holder of Outstanding Notes has not been notified by the Internal Revenue Service that he or she is subject to backup withholding as a result of a failure to report all interest or dividends or (z) the Internal Revenue Service has notified the Holder of Outstanding Notes that he or she is no longer subject to backup withholding and (C) that the Holder of Outstanding Notes is a U.S. person (including a U.S. resident alien); or (ii) an adequate basis for exemption from backup withholding. If such Holder is an individual, the TIN is his or her social security number. If the Exchange Agent is not provided with the correct TIN, the Holder may be subject to certain penalties imposed by the Internal Revenue Service and any payments that are made to such Holder may be subject to backup withholding (see below).
Certain Holders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. However, exempt Holders of Outstanding Notes should indicate their exempt status on Substitute Form W-9. For example, a corporation should complete the Substitute Form W-9, providing its TIN and indicating that it is exempt from backup withholding. In order for a foreign individual to qualify as an exempt recipient, that Holder must submit a statement, signed under penalty of perjury, attesting to that individual's exempt status (Form W-8BEN). Forms for such statements can be obtained from the Exchange Agent. Holders are urged to consult their own tax advisors to determine whether they are exempt from these backup withholding and reporting requirements.
If backup withholding applies, the Exchange Agent is required to withhold 28% of any payments to be made to the Holder or other payee. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service provided the required information is furnished. The Exchange Agent cannot refund amounts withheld by reason of backup withholding.
The Holder of Outstanding Notes is required to give the Exchange Agent the TIN (e.g., social security number or employer identification number) of the record owner of the Outstanding Notes. If the Outstanding Notes are in more than one name or are not in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional guidance on which number to report.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH OUTSTANDING NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
18
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
INSTRUCTIONS TO LETTER OF TRANSMITTAL FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
IMPORTANT TAX INFORMATION
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FORM OF LETTER TO DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND OTHER NOMINEES
K. HOVNANIAN ENTERPRISES, INC.
OFFER TO EXCHANGE
ALL OUTSTANDING PRIVATELY PLACED
111/2% SENIOR SECURED NOTES DUE 2013
FOR AN EQUAL AMOUNT OF ITS
111/2% SENIOR SECURED NOTES DUE 2013
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
[ ] , 2008
To
Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
As described in the enclosed Prospectus, dated [ ] , 2008 (as the same may be amended from time to time, the "Prospectus"), and Letter of Transmittal (the "Letter of Transmittal"), K. Hovnanian Enterprises, Inc. (the "Issuer"), Hovnanian Enterprises, Inc. ("Hovnanian") and certain subsidiaries of Hovnanian (together with Hovnanian, the "Guarantors") are offering (the "Exchange Offer") to exchange $2,000 principal amount and higher integral multiples of $1,000 principal amount of the Issuer's 111/2% Senior Secured Notes due 2013 that have been registered under the Securities Act of 1933, as amended, guaranteed by the Guarantors (collectively, the "Exchange Notes"), for each $2,000 principal amount and higher integral multiples of $1,000 principal amount of outstanding 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors (collectively, the "Outstanding Notes"), upon the terms and subject to the conditions of the enclosed Prospectus and the enclosed Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Notes for which they may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes are freely transferable by holders thereof. The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the "Exchange Offer" include the Guarantors' offer to exchange the New Guarantees for the Old Guarantees, references to the "Exchange Notes" include the related New Guarantees and references to the "Outstanding Notes" include the related Old Guarantees. The Issuer will accept for exchange any and all Outstanding Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.
WE URGE YOU TO PROMPTLY CONTACT YOUR CLIENTS FOR WHOM YOU HOLD OUTSTANDING NOTES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE OR WHO HOLD OUTSTANDING NOTES REGISTERED IN THEIR OWN NAMES. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON [ ], 2008 UNLESS THE ISSUER EXTENDS THE EXCHANGE OFFER (THE "EXPIRATION DATE").
The Issuer will not pay any fees or commissions to you for soliciting tenders of Outstanding Notes pursuant to the Exchange Offer. You will, however, upon request, be reimbursed by the Issuer for
customary mailing and handling expenses incurred by you in forwarding any of the enclosed materials to your clients. The Issuer will pay all transfer taxes, if any, applicable to the tender of Outstanding Notes to it or its order, except as otherwise provided in the Prospectus and the Letter of Transmittal.
Enclosed are copies of the following documents:
- 1.
- A
form of letter which you may send, as a cover letter to accompany the Prospectus and related materials, to your clients for whose accounts you hold
Outstanding Notes registered in your name or the name of your nominee, with space provided for obtaining the client's instructions regarding the Exchange Offer.
- 2.
- The
Prospectus.
- 3.
- The
Letter of Transmittal for your use in connection with the tender of Outstanding Notes and for the information of your clients, including a Substitute
Form W-9 and Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (providing information relating to U.S. federal income tax
backup withholding).
- 4.
- A form of Notice of Guaranteed Delivery.
Your prompt action is requested. Tendered Outstanding Notes may be withdrawn, subject to the procedures described in the Prospectus, at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
To participate in the Exchange Offer, certificates for Outstanding Notes, together with a duly executed and properly completed Letter of Transmittal or facsimile thereof, or a timely confirmation of a book-entry transfer of such Outstanding Notes into the account of Wilmington Trust Company, the Exchange Agent, at the Depository Trust Company, with any required signature guarantees, and any other required documents, must be received by the Exchange Agent by the Expiration Date as indicated in the Prospectus and the Letter of Transmittal.
If holders of the Outstanding Notes wish to tender, but it is impracticable for them to forward their Outstanding Notes prior to the Expiration Date or to comply with the book-entry transfer procedures on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus and in the Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the Exchange Agent at its address or telephone number set forth on the first page of the Letter of Transmittal.
Very truly yours,
K. Hovnanian Enterprises, Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF THE ISSUER OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS EXPRESSLY CONTAINED THEREIN.
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FORM OF LETTER TO CLIENTS
K. HOVNANIAN ENTERPRISES, INC.
OFFER TO EXCHANGE
ALL OUTSTANDING PRIVATELY PLACED
111/2% SENIOR SECURED NOTES DUE 2013
FOR AN EQUAL AMOUNT OF ITS
111/2% SENIOR SECURED NOTES DUE 2013
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
[ ], 2008
To Our Clients:
Enclosed for your consideration is a Prospectus, dated [ ], 2008 (as the same may be amended or supplemented from time to time, the "Prospectus"), and a Letter of Transmittal (the "Letter of Transmittal"), relating to the offer (the "Exchange Offer") by K. Hovnanian Enterprises, Inc. (the "Issuer"), Hovnanian Enterprises, Inc. ("Hovnanian") and certain subsidiaries of Hovnanian (together with Hovnanian, the "Guarantors") to exchange $2,000 principal amount and higher integral multiples of $1,000 principal amount of the Issuer's 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors (collectively, the "Exchange Notes") that have been registered under the Securities Act of 1933, as amended, for each $2,000 principal amount and higher integral multiples of $1,000 principal amount of the Issuer's outstanding 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors (collectively, the "Outstanding Notes"), upon the terms and subject to the conditions of the enclosed Prospectus and the enclosed Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Notes for which they may be exchanged pursuant to the Exchange Offer, except that the Exchange Notes are freely transferable by holders thereof. The Outstanding Notes are unconditionally guaranteed (the "Old Guarantees") by the Guarantors, and the Exchange Notes will be unconditionally guaranteed (the "New Guarantees") by the Guarantors. Upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal, the Guarantors offer to issue the New Guarantees with respect to all Exchange Notes issued in the Exchange Offer in exchange for the Old Guarantees of the Outstanding Notes for which such Exchange Notes are issued in the Exchange Offer. Throughout this letter, unless the context otherwise requires and whether so expressed or not, references to the "Exchange Offer" include the Guarantors' offer to exchange the New Guarantees for the Old Guarantees, references to the "Exchange Notes" include the related New Guarantees and references to the "Outstanding Notes" include the related Old Guarantees. The Issuer will accept for exchange any and all Outstanding Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.
This material is being forwarded to you as the beneficial owner of Outstanding Notes held by us for your account but not registered in your name. A tender of such Outstanding Notes may only be made by us as the registered holder and pursuant to your instructions. Therefore, the Issuer urges beneficial owners of Outstanding Notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee to contact such registered holder promptly if such beneficial owners wish to tender Outstanding Notes in the Exchange Offer.
Accordingly, we request instructions as to whether you wish to tender any or all such Outstanding Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. If you wish to have us do so, please so instruct us by completing, signing and returning to us the instruction form that appears below. We urge you to read the
Prospectus and the Letter of Transmittal carefully before instructing us as to whether or not to tender your Outstanding Notes.
Your instructions to us should be forwarded as promptly as possible in order to permit us to tender Outstanding Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m., New York City Time, on [ ], 2008, unless the Exchange Offer is extended by the Issuer. The time the Exchange Offer expires is referred to as the "Expiration Date." Tenders of Outstanding Notes may be withdrawn at any time prior to the Expiration Date.
IF YOU WISH TO HAVE US TENDER ANY OR ALL OF YOUR OUTSTANDING NOTES, PLEASE SO INSTRUCT US BY COMPLETING, SIGNING AND RETURNING TO US THE INSTRUCTION FORM BELOW.
The accompanying Letter of Transmittal is furnished to you for your information only and may not be used by you to tender Outstanding Notes held by us and registered in our name for your account or benefit.
If we do not receive written instructions in accordance with the below and the procedures presented in the Prospectus and the Letter of Transmittal, we will not tender any of the Outstanding Notes on your account.
Please carefully review the enclosed material as you consider the Exchange Offer.
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General: If you are the beneficial owner of 111/2% Senior Secured Notes due 2013 please read and follow the instructions under the heading "Instructions to Registered Holder and/or DTC Participant From Beneficial Owner of 111/2% Senior Secured Notes due 2013" below.
Instructions to Registered Holder and/or DTC Participant From Beneficial Owner of 111/2%
Senior Secured Notes due 2013
The undersigned beneficial owner acknowledge(s) receipt of your letter and the accompanying Prospectus dated [ ], 2008 (as the same may be amended or supplemented from time to time, the "Prospectus"), and a Letter of Transmittal (the "Letter of Transmittal"), relating to the offer (the "Exchange Offer") by K. Hovnanian Enterprises, Inc. (the "Issuer"), Hovnanian Enterprises, Inc. ("Hovnanian") and certain subsidiaries of Hovnanian (together with Hovnanian, the "Guarantors") to exchange $2,000 principal amount and higher integral multiples of $1,000 principal amount of the Issuer's 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors (the "Exchange Notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for each $2,000 principal amount and higher integral multiples of $1,000 principal amount of the Issuer's outstanding 111/2% Senior Secured Notes due 2013, guaranteed by the Guarantors (the "Outstanding Notes"), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. Capitalized terms used but not defined herein have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder, as to the action to be taken by you relating to the Exchange Offer with respect to the Outstanding Notes held by you for the account of the undersigned.
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- Unless otherwise indicated, the entire principal amount of Outstanding Notes held for the account of the undersigned will be tendered.
If the undersigned instructs you to tender the Outstanding Notes held by you for the account of the undersigned, it is understood that you are authorized (a) to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Outstanding Notes, including but not limited to the representations that (i) the undersigned is not an affiliate, as defined in Rule 144 under the Securities Act, of the Issuer or the Guarantors, (ii) the undersigned is not engaged in and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of Exchange Notes, (iii) the undersigned is acquiring the Exchange Notes in the ordinary course of its business, (iv) the undersigned is not a broker-dealer tendering Outstanding Notes acquired for its own account directly from the Issuer. If a Holder of the Outstanding Notes is an affiliate of the Company or the Guarantors, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding
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with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such Holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission relating to exemptions from the registration and prospectus delivery requirements of the Securities Act and must comply with such requirements in connection with any secondary resale transaction.
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| SIGN HERE | ||||
Dated: |
, 2008 |
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Signature(s): |
Print Name(s): |
Address: |
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Telephone Number: |
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Taxpayer identification or Social Security Number: |
My Account Number With You: |
INSTRUCTIONS
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FORM OF NOTICE OF GUARANTEED DELIVERY
K. HOVNANIAN ENTERPRISES, INC.
OFFER TO EXCHANGE
ALL OUTSTANDING PRIVATELY PLACED
111/2% SENIOR SECURED NOTES DUE 2013
FOR AN EQUAL AMOUNT OF ITS
111/2% SENIOR SECURED NOTES DUE 2013
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
This form, or one substantially equivalent hereto, must be used to accept the Exchange Offer made by K. Hovnanian Enterprises, Inc. (the "Issuer") and the Guarantors, pursuant to the Prospectus, dated [ ], 2008 (the "Prospectus"), and the enclosed Letter of Transmittal (the "Letter of Transmittal") if the certificates for the Outstanding Notes are not immediately available or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date of the Exchange Offer. Such form may be delivered or transmitted by facsimile transmission, mail or hand delivery to Wilmington Trust Company (the "Exchange Agent") as set forth below. Capitalized terms not defined herein have the meanings ascribed to them in the Letter of Transmittal.
Delivery to: Wilmington Trust Company, Exchange Agent
| By Overnight Mail or Courier Delivery: | By Hand: | By Mail: | ||
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, DE 19890-1626 Attn: Corporate Trust Operations |
For Facsimile Transmission:
(302) 636-4139
Confirm By Telephone:
(302) 636-6181
Information:
(302) 636-4184
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE NUMBER OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
Please read the accompanying instructions carefully.
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Upon the terms and subject to the conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to the Issuer the principal amount of the Outstanding Notes set forth below, pursuant to the guaranteed delivery procedures described in "The Exchange Offer—Guaranteed Delivery Procedures" section of the Prospectus. |
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Check this Box if the Outstanding Notes will be delivered by book-entry transfer to The Depositary Trust Company. |
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THE ACCOMPANYING GUARANTEE MUST BE COMPLETED.
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| GUARANTEE OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) |
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The undersigned, a participant in the Security Transfer Agents Medallion Program or an "Eligible Guarantor Institution", as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), hereby guarantees to deliver to the Exchange Agent, at its address set forth in the Notice of Guaranteed Delivery, the certificates representing all tendered Outstanding Notes, in proper form for transfer, or a book-entry confirmation (a confirmation of a book-entry transfer of the Outstanding Notes into the Exchange Agent's account at The Depositary Trust Company), together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof), with any required signature guarantees, and any other documents required by the Letter of Transmittal within three (3) New York Stock Exchange trading days after the Expiration Date. |
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Dated: 2008 |
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| NOTE: | DO NOT SEND CERTIFICATES FOR OUTSTANDING NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. ACTUAL SURRENDER OF CERTIFICATES FOR OUTSTANDING NOTES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. |
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INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery. A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any other documents required by this Notice of Guaranteed Delivery must be received by the Exchange Agent at its address set forth on the cover page hereof prior to the Expiration Date of the Exchange Offer. The method of delivery of this Notice of Guaranteed Delivery and any other required documents to the Exchange Agent is at the election and risk of Holders and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. Instead of delivery by mail, it is recommended that Holders use an overnight or hand delivery service. In all cases sufficient time should be allowed to assure timely delivery. For a description of the guaranteed delivery procedure, see Instruction 2 of the Letter of Transmittal. No Notice of Guaranteed Delivery should be sent to the Issuer.
2. Signatures on this Notice of Guaranteed Delivery. If this Notice of Guaranteed Delivery is signed by the registered Holder(s) of the Outstanding Notes referred to herein, the signatures must correspond with the name(s) written on the face of the Outstanding Notes without alteration, addition, enlargement, or any change whatsoever.
If this Notice of Guaranteed Delivery is signed by a person other than the registered Holder(s) of any Outstanding Notes listed, this Notice of Guaranteed Delivery must be accompanied by appropriate bond powers, signed as the name of the registered Holder(s) appear(s) on the Outstanding Notes without alteration, addition, enlargement, or any change whatsoever. If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or other person acting in a fiduciary or representative capacity, such person should so indicate when signing and, unless waived by the Issuer, evidence satisfactory to the Issuer of their authority so to act must be submitted with this Notice of Guaranteed Delivery.
3. Questions and Requests for Assistance or Additional Copies. Questions and requests for assistance and requests for additional copies of the Prospectus may be directed to the Exchange Agent at the address set forth on the cover hereof. Holders may also contact their broker, dealer, commercial bank, trust company, or other nominee for assistance concerning the Exchange Offer.
FORM OF NOTICE OF GUARANTEED DELIVERY