HOVNANIAN ENTERPRISES, INC. 3,000,000 7.25% Tangible Equity Units UNDERWRITING AGREEMENT
Exhibit 1.6
HOVNANIAN ENTERPRISES, INC.
3,000,000 7.25% Tangible Equity Units
February 3, 2011
CREDIT SUISSE SECURITIES (USA) LLC
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES LLC
As Representatives of the Several Underwriters,
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES LLC
As Representatives of the Several Underwriters,
c/o CREDIT SUISSE SECURITIES (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. Hovnanian Enterprises, Inc., a Delaware corporation (the “Company”) and X.
Xxxxxxxxx Enterprises, Inc., a California corporation (“Hovnanian” and together with the Company,
the “Issuers”), propose to issue and sell to the several Underwriters named in Schedule A hereto
(the “Underwriters”) 3,000,000 7.25% Tangible Equity Units (“Units”) of the Company and Hovnanian
(“Underwritten Securities”) and also propose to issue and sell to the Underwriters, at the option
of the Underwriters, an aggregate of not more than 450,000 Units (“Optional Securities”) as set
forth below. The Underwritten Securities and the Optional Securities are herein collectively
called the “Securities”. Each Security has a stated amount of $25 (the “Stated Amount”) and
consists of (1) a prepaid stock purchase contract (each, a “Purchase Contract”) under which the
holder has purchased and the Company will agree to automatically deliver on February 15, 2014,
subject to acceleration in connection with any early settlement of such Purchase Contract pursuant
to the provisions thereof and of the Purchase Contract Agreement (the “Purchase Contract
Agreement”), to be dated as of the Closing Date (as defined herein), by and between the Company,
Hovnanian and Wilmington Trust Company, as purchase contract agent (the “Purchase Contract Agent”)
and as Trustee (as defined below), a number of shares of Class A common stock of the Company, par
value $0.01 per share (the “Common Stock”), determined pursuant to the terms of the Purchase
Contract and the Purchase Contract Agreement and (2) a senior subordinated amortizing note with a
final installment payment date of February 15, 2014 (each, an “Amortizing Note”) issued by
Hovnanian and to be guaranteed (collectively, the “Guarantees”) by the Company and the subsidiary
guarantors listed on Schedule B hereto (together with the Company, the “Guarantors”), each of which
will have an initial principal amount of $4.526049 and will pay equal quarterly cash installments
of $0.453125, which in the aggregate would be equivalent to 12.072% per year on the Stated Amount
per Security. All references herein to the Securities include references to the Purchase Contracts
and Amortizing Notes, comprising the Units, unless the context otherwise requires.
The Amortizing Notes will be issued pursuant to an indenture, dated as of the Closing Date
(the “Base Indenture”), among Hovnanian, the Company, as Guarantor, and Wilmington Trust Company,
as Trustee (the “Trustee”), as supplemented by that certain supplemental indenture, among
Hovnanian, the Guarantors and the Trustee, dated as of the Closing Date (the “Supplemental
Indenture” and, together with the Base Indenture, the
“Indenture”). The Units and the Purchase Contracts will be issued pursuant to the Purchase
Contract Agreement. This Agreement, the Securities, the Purchase Contract Agreement, the Base
Indenture and the Supplemental Indenture are referred to herein collectively as the “Securities
Documents.”
Each of the Company, Hovnanian and each Guarantor hereby agrees with the several Underwriters
as follows:
2. Representations and Warranties of the Company and Hovnanian. Each of the Company and
Hovnanian represents and warrants to, and agrees with the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-171349) relating to the
Securities, the Issuable Common Stock (as defined below), the Purchase Contracts and the
Amortizing Notes, including a base prospectus dated January 28, 2011 (the “Base
Prospectus”), has been filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Act”), and has been declared effective
under the Act. For purposes of this agreement (the “Agreement”), “Effective Date” means the
“effective date of the registration statement” (within the meaning of Rule 158(c) under the
Act) of the Registration Statement or the most recent post-effective amendment thereto (if
any) filed prior to the execution and delivery of this Agreement. Such registration
statement, as amended at the Effective Date, including the information, if any, deemed
pursuant to Rule 430B under the Act to be part of the registration statement at the time of
its effectiveness (“Rule 430 Information”), is hereinafter referred to as the “Registration
Statement.” The term “Preliminary Prospectus” means each preliminary prospectus supplement
to the Base Prospectus which is used prior to the filing of the Prospectus, together with
the Base Prospectus, and the term “Prospectus” means the prospectus supplement in the form
first used (or made available upon request of purchasers pursuant to Rule 173 under the Act)
in connection with confirmation of sales of the Securities, together with the Base
Prospectus. Any reference in this Agreement to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the effective date of the Registration Statement or the date of such
Base Prospectus, Preliminary Prospectus or the Prospectus, as the case may be and any
reference to “amend”, “amendment” or “supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “1934 Act”) that are deemed to be incorporated by reference therein. As
of the Effective Date, the Issuers were eligible to use Form S-3 under the Act. No stop
order suspending the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose or pursuant to Section 8A of the Act against the Issuers or
related to the offering shall have been instituted or, to the knowledge of the Company or
Hovnanian, shall be contemplated by the Commission.
(b) At or prior to 8:00 A.M. on February 4, 2011 (the “Time of Sale”), the Issuers had
prepared the following information (collectively, the “Time of Sale Information”): a
Preliminary Prospectus dated January 31, 2011, and each “free-writing prospectus” (as
defined pursuant to Rule 405 under the Act) listed on Schedule C hereto.
(c) The Time of Sale Information, when taken together as a whole, at the Time of Sale
did not, and at the Closing Date will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Issuers make no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to
the Company or Hovnanian in writing by such Underwriter through the Representatives
expressly for use in such Time of Sale Information.
(d) Other than the Preliminary Prospectus and the Prospectus, the Issuers (including
their agents and representatives, other than the Underwriters in their capacity as such)
have not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes
an offer to sell or solicitation of an offer to buy the Securities (each such communication
by the Company, Hovnanian or their agents and representatives (other than a communication
referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any
document not constituting a prospectus pursuant to Section
2
2(a)(10)(a) of the Act or Rule
134 under the Act or (ii) the documents listed on Schedule C hereto, each electronic road
show and other written communications approved in writing in advance by the Representatives.
Each such Issuer Free Writing Prospectus complied in all material respects with the Act,
has been filed in accordance with the Act (to the extent required thereby) and, when taken
together with the Time of Sale Information accompanying, or delivered prior to delivery of,
such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Issuers make no representation and warranty with respect
to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company
or Hovnanian in writing by such Underwriter through the Representatives expressly for use in
any Issuer Free Writing Prospectus.
(e) (i) On the Effective Date, the Registration Statement conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of 1939 (the “Trust
Indenture Act”) and the rules and regulations of the Commission under the Act (“Rules and
Regulations”) and did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein
not misleading and (ii) on the date of this Agreement, the Registration Statement conforms,
and at the time of filing of the Prospectus pursuant to Rule 424(b) under the Act, the
Registration Statement and the Prospectus will conform, in all material respects to the
requirements of the Act, the Trust Indenture Act, the Rules and Regulations and neither of
the Registration Statement or the Prospectus includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading except that the
foregoing does not apply to statements in or omissions from the Registration Statement or
the Prospectus based upon written information furnished to the Company or Hovnanian by any
Underwriter through the Representatives, if any, specifically for use therein, it being
understood and agreed that the only such information is that described as such in Section
8(b) hereof.
(f) The documents incorporated by reference in the Time of Sale Information and the
Prospectus, at the time they were or hereafter are filed with the Commission and except as
otherwise subsequently disclosed therein, complied and will comply in all material respects
with the requirements of the 1934 Act and, when read together and with the other information
in the Time of Sale Information and the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(g) Each of the Company and its subsidiaries has been duly incorporated or formed, as
the case may be, is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of its jurisdiction of
incorporation or organization and has the corporate power, or its equivalent in the case of
a limited partnership or limited liability company, and authority to carry on its business
as described in the Time of Sale Information and the Prospectus and to own, lease and
operate its properties, and each is duly qualified and is in good standing as a foreign
corporation, limited liability company or limited partnership, as the case may be,
authorized to do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”).
(h) All outstanding shares of capital stock of the Company and Hovnanian have been duly
authorized; the authorized equity capitalization of the Company is as set forth in the Time
of Sale Information; all outstanding shares of capital stock of the Company and Hovnanian
are validly issued and are fully paid, non-assessable and except, for the avoidance of
doubt, with respect to the Company’s Rights Plan, as disclosed in the Time of Sale
Information, not subject to any preemptive or similar rights.
3
(i) All of the outstanding shares of capital stock of each of Hovnanian’s direct and
indirect subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a “Lien”) other than Liens securing obligations under (A)
Hovnanian’s (as defined below) 105/8% Senior Secured Notes due 2016
issued pursuant to the indenture, dated as of October 20, 2009, by and among the Company,
Hovnanian and the other guarantors named therein and Wilmington Trust Company, as trustee,
(B) Hovnanian’s 111/2% Senior Secured Notes due 2013 issued pursuant to the indenture, dated
as of May 27, 2008, by and among the Company, Hovnanian, the other guarantors named therein
and Wilmington Trust Company (as successor to Deutsche Bank Trust Company), as trustee, (C)
Hovnanian’s 18% Senior Secured Notes due 2017 issued pursuant to the indenture, dated as of
December 3, 2008, by and among the Company, Hovnanian, the other guarantors named therein
and Wilmington Trust Company, as trustee and (D) “Permitted Liens” as defined in such
aforementioned indentures.
(j) This Agreement has been duly authorized, executed and delivered by the Company,
Hovnanian and each other Guarantor.
(k) Each of the Company, Hovnanian and each other Guarantor has all requisite corporate
power and authority to execute, deliver and perform all of its obligations under each of the
Securities Documents to which it is a party and to consummate the transactions contemplated
by each of the Securities Documents to which it is a party to be consummated on its part
and, without limitation, the Company, Hovnanian and each other Guarantor have all requisite
corporate power and authority to issue, sell and deliver the Securities, and the Company has
all requisite corporate power and authority to issue, sell and deliver the shares of Common
Stock to be issued and delivered by the Company pursuant to the Purchase Contract Agreement
and the Purchase Contracts (the “Issuable Common Stock”). Each of the Company, Hovnanian and
each other Guarantor has duly authorized the execution, delivery and performance of each of
the Securities Documents, to which it is a party. The Securities Documents conform in all
material respects to the descriptions thereof in the Time of Sale Information and the
Prospectus.
(l) The Purchase Contract Agreement, when duly executed and delivered by the Company
and Hovnanian (assuming the due authorization, execution and delivery thereof by the
Purchase Contract Agent and the Trustee), will be a legally binding and valid obligation of
each of the Company and Hovnanian, enforceable against each of the Company and Hovnanian in
accordance with its terms, except as the enforceability thereof may be limited by the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.
(m) The Indenture has been duly authorized by Hovnanian and each of the Guarantors;
when the Indenture has been duly executed and delivered by Hovnanian and each of the
Guarantors, and, assuming that the Indenture is a valid and binding obligation of the
Trustee, the Indenture will be a valid and binding agreement of Hovnanian and each
Guarantor, enforceable against Hovnanian and each Guarantor in accordance with its terms
except as the enforceability thereof may be limited by the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(n) The Indenture has been duly qualified under the Trust Indenture Act with respect to
the Amortizing Notes.
(o) The Units have been duly authorized and, on the Closing Date, will have been
validly executed and delivered by the Issuers. When the Units have been issued, executed
and authenticated in accordance with the provisions of the Purchase Contract Agreement and
delivered to and paid for by the Underwriters in accordance with the terms of this
Agreement, the Units will be entitled to the benefits of the Purchase Contract Agreement,
and will be valid and binding obligations of the Issuers, enforceable in accordance
4
with
their terms, except as the enforceability thereof may be limited by the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing. On the Closing Date, the Units will conform as to legal matters to
the description thereof contained in the Time of Sale Information and the Prospectus.
(p) The Amortizing Notes have been duly authorized and, on the Closing Date, will have
been validly executed and delivered by Hovnanian. When the Amortizing Notes have been
issued, executed and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture, and will be valid and binding
obligations of Hovnanian, enforceable in accordance with their terms except as the
enforceability thereof may be limited by the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing. On
the Closing Date, the Amortizing Notes will conform as to legal matters to the descriptions
thereof contained in the Time of Sale Information and the Prospectus.
(q) The Purchase Contracts have been duly authorized and, on the Closing Date, will
have been validly executed and delivered by the Company. When the Purchase Contracts have
been issued, executed and authenticated in accordance with the provisions of the Purchase
Contract Agreement and delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, the Purchase Contracts will be entitled to the benefits of the
Purchase Contract Agreement and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as the enforceability thereof may be
limited by the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally,
general equitable principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. On the Closing Date, the Purchase
Contracts will conform as to legal matters to the descriptions thereof contained in the Time
of Sale Information and the Prospectus.
(r) The Guarantee to be endorsed on the Amortizing Notes by each Guarantor has been
duly authorized by such Guarantor and, on the Closing Date, will have been duly executed and
delivered by each such Guarantor. When the Amortizing Notes have been issued, executed and
authenticated in accordance with the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, the Guarantee of each Guarantor
endorsed thereon will be entitled to the benefits of the Indenture and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor in accordance with
its terms, except as the enforceability thereof may be limited by the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing. On the Closing Date, the Guarantees to be endorsed on the Amortizing Notes
will conform as to legal matters to the description thereof contained in the Time of Sale
Information and the Prospectus.
(s) The maximum number of shares of Issuable Common Stock (calculated assuming
settlement of the Purchase Contracts at the “Maximum Settlement Rate,” as such term is
defined in the Time of Sale Information) have been duly authorized and reserved for issuance
by the Company and, when issued and delivered in accordance with the provisions of the
Purchase Contracts and the Purchase Contract Agreement, will be validly issued, fully paid
and nonassessable and not issued in violation of any preemptive or similar right.
(t) None of the Company or any of its direct or indirect subsidiaries is in violation
of its respective charter or by-laws or applicable organizational documents, as the case may
be, or in default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its
5
subsidiaries, taken as a whole, to which the Company
or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound.
(u) The execution, delivery and performance of this Agreement and each of the other
Securities Documents, the compliance by the Company, Hovnanian and each of the Guarantors,
as applicable, with all provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby, including the issuance of the Units by the
Company and Hovnanian, the issuance of the Purchase Contracts by the Company, the issuance
of the Amortizing Notes by Hovnanian, the issuance of the Guarantees by each of the
Guarantors and the issuance of the Issuable Common Stock by the Company upon settlement of
the Purchase Contracts in accordance with the terms of the Purchase Contracts and the
Purchase Contract Agreement, will not (i) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or agency (except such
consents as have been obtained under the Act and the Trust Indenture Act and except as may
be required under securities or Blue Sky laws of the various states and under the 1934 Act),
(ii) conflict with or constitute a breach of any of the terms or provisions of, or a default
under, the charter, by-laws or applicable organizational documents of the Company, Hovnanian
or any Guarantor or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company or any of its subsidiaries
or their respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, or (v) result in the termination,
suspension or revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or result in any other impairment of the rights of the holder of any such
Authorization.
(v) Except as disclosed in the Time of Sale Information and the Prospectus, there are
no legal or governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is or could be a party or to which any of their respective property is or
could be subject, which might result, singly or in the aggregate, in a Material Adverse
Effect.
(w) Except as disclosed in the Time of Sale Information and the Prospectus, neither the
Company nor any of its subsidiaries has violated (i) any foreign, federal, state or local
law or regulation relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) any provisions of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), or (iii) any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except, with respect to (i) and (ii) for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
(x) The Company and each of its subsidiaries maintains insurance covering their
properties, assets, operations, personnel and businesses, and, in the good faith estimate of
management, such insurance is of such type and in such amounts as is in accordance with customary industry practice in the
locations where the Company and each subsidiary conduct operations, taking into account the
costs and availability of such insurance.
(y) The Company and its officers and directors, in their capacities as such, are in
compliance in all material respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated thereunder.
(z) The Company maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the 0000 Xxx) that complies with the
requirements of the 1934 Act and has been designed by the Company’s principal executive
officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of the financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
6
principles; and the Company’s internal control over financial reporting is effective in all
material respects to perform the functions for which it was established and the Company is not
aware of any material weaknesses in its internal control over financial reporting.
(aa) The Company maintains “disclosure controls and procedures” (as such term is
defined in Rule 13a-15(e) under the 1934 Act); such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
(bb) The Company has not taken, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result in, under the 1934
Act or otherwise, stabilization or manipulation of the price of the Common Stock or any
“reference security” of the Company or Hovnanian (as defined in Rule 100 under the Act) to
facilitate the sale or resale of the Securities in connection with the offering contemplated
hereby.
(cc) Except as disclosed in the Time of Sale Information and the Prospectus, each of
the Company and its subsidiaries has such permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an “Authorization”) of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including without
limitation, under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where the failure
to have any such Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. Each such Authorization is valid and in full
force and effect and each of the Company and its subsidiaries is in compliance with all the
terms and conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder of any such
Authorization; except where such failure to be valid and in full force and effect or to be
in compliance, the occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a Material Adverse Effect.
(dd) Each of Deloitte & Touche LLP and Ernst & Young LLP, each of which has certified
financial statements incorporated by reference in the Time of Sale Information and the
Prospectus, is an independent registered public accounting firm with respect to the Company,
Hovnanian and the Guarantors as required by the Act and the 1934 Act.
(ee) The historical financial statements, together with related notes, incorporated by
reference from the Company’s Annual Report on Form 10-K/A in the Prospectus, Time of Sale
Information and the Registration Statement (and any amendment or supplement thereto) present
fairly the consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the documents
incorporated by reference in the Prospectus, Time of Sale Information and the Registration
Statement at the respective dates or for the respective periods to which they apply; such
statements and related notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data set forth or
incorporated by reference in the Prospectus, Time of Sale Information and Registration
Statement (and any amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with such financial statements and
the books and records of the Company; and the historical financial statements, together with
related notes incorporated by reference in the Prospectus, Time of Sale Information and
Registration Statement (and any amendment or supplement thereto) meet the requirements of
the Rules and Regulations and the 1934 Act.
(ff) Neither the Company nor Hovnanian is and, after giving effect to the offering and
sale of the Securities and the application of the net proceeds thereof as described in the
Time of Sale Information and
7
the Prospectus, neither will be, an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(gg) None of the Company, Hovnanian or any other Guarantor or any of their respective
subsidiaries or any agent thereof acting on their behalf has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the Securities
to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System.
(hh) No “nationally recognized statistical rating organization” as such term is defined
under Section 3(a)(62) under the 1934 Act has indicated to the Company or Hovnanian that it
is considering (i) the downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the possible change in, any rating
so assigned or (ii) any change in the outlook (other than a positive change) for any rating
of Hovnanian, any Guarantor or any securities of the Company or Hovnanian.
(ii) Since the respective dates as of which information is given in the Prospectus and
Time of Sale Information except as disclosed in the Prospectus and Time of Sale Information
(exclusive of any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there has not been any material adverse change or any development involving
a prospective material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries, and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or contingent.
(jj) Neither the Company nor Hovnanian is an ineligible issuer, as defined under the
Act, at the times specified in the Act in connection with the offering of the Securities.
The Company or Hovnanian has paid the registration fee for this offering as required under
the Act.
(kk) The Company is subject to Section 13 or 15(d) of the Exchange Act.
Any certificate signed by any officer of the Company or Hovnanian and delivered to the
Representatives or counsel for the Underwriters pursuant to the last sentence of Section
3(d) or Section 7 of this Agreement shall be deemed a representation and warranty by the
Company or Hovnanian, as applicable, as to matters covered thereby, to each Underwriter.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, the Company and Hovnanian agree to sell to the Underwriters the Underwritten Securities and
the Underwriters agree, severally and not jointly, to purchase from the Company and Hovnanian, the
respective number of Underwritten Securities set forth opposite such Underwriter’s name in Schedule
A hereto at a purchase price of $24.25 per Unit.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company and Hovnanian hereby grant an option to the several
Underwriters to purchase, severally and not jointly, up to 450,000 Units of Optional Securities at
the same purchase price per Unit as the Underwriters shall pay for the Underwritten Securities.
Said option may be exercised in whole or in part at any time on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by the Representatives to the Company
setting forth the number of Optional Securities as to which the several Underwriters are exercising
the option and the settlement date. The number of Optional Securities to be purchased by each
Underwriter shall be the same percentage of the total number of Optional Securities to be purchased
by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to eliminate any
fractional Units.
(c) Delivery of and payment for the Underwritten Securities and the Optional Securities (if
the option provided for in Section 3(b) hereof shall have been exercised on or before 4:30 P.M. on
the third business day
8
immediately preceding the Closing Date) shall be made on February 9, 2011 at 10:00 A.M. or at such
time on such later date not more than three business days after the foregoing date as the
Representatives shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several Underwriters in
such names and in such denominations as the Representatives shall request against payment by the
several Underwriters through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the Company.
Delivery of the Underwritten Securities and the Optional Securities shall be made through the
facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise
instruct. The certificates for the Securities will be made available for checking at the office of
Xxxxx Xxxx & Xxxxxxxx LLP at least 24 hours prior to the Closing Date or the time and date for
payment for the Optional Securities as the case may be
(d) If the option provided for in Section 3(b) hereof is exercised after 4:30 P.M. on the
third business day immediately preceding the Closing Date, the Company will deliver the Optional
Securities (at the expense of the Company) to the Representatives, at the offices of Xxxxx Xxxx &
Xxxxxxxx LLP, on the date specified by the Representatives (which shall be within three Business
Days after exercise of said option, unless said option is exercised after 4:30 P.M. in which case
such date shall be within four business days of said option) for the respective accounts of the
several Underwriters, against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. If settlement for the Optional Securities occurs
after the Closing Date, the Company will deliver to the Representatives on the settlement date for
the Optional Securities, and the obligation of the Underwriters to purchase the Optional Securities
shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as
of such date the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 7 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Securities for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company and Hovnanian. The Company and Hovnanian agree with the
several Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (2) of Rule 424(b) under the Act not later than the second
business day following the execution and delivery of this Agreement) (or, if applicable,
subparagraph (5)) and will file any Free Writing Prospectus pursuant to and in accordance
with Rule 433 under the Act within the required time period. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b) or Rule 433 under the
Act.
(b) The Company will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement, Time of Sale Information or the Prospectus and the
Issuers will not effect such amendment or supplement without the Representatives’ consent
(such consent not to be unreasonably withheld); and the Issuers will also advise the
Representatives promptly of the effectiveness of any amendment or supplement of the
Registration Statement, Time of Sale Information or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the Registration Statement, as it
may be amended or supplemented, proceeding under Section 8A of the Act, and will use its
reasonable best efforts to prevent the issuance of any such stop order or objection and to
obtain as soon as possible its lifting or withdrawal, if issued.
(c) Before preparing, using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time that the Registration
Statement becomes effective, the Company will furnish to the Representatives and counsel for
the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize,
9
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or
supplement to which the Representatives reasonably object.
(d) If, at any time when a prospectus relating to the Securities is required to be (or
but for the exemption in Rule 172 under the Act would be required to be) delivered under the
Act in connection with sales by any Underwriter or dealer, any event occurs as a result of
which the Time of Sale Information, Prospectus or any Free Writing Prospectus as then
amended or supplemented would include 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, or if it is necessary at any time
to amend the Time of Sale Information, Prospectus or any Free Writing Prospectus to comply
with the Act, the Company will promptly notify the Representatives of such event and will
promptly prepare and file with the Commission, at the Company’s own expense, an amendment or
supplement that will correct such statement or omission or an amendment that will effect
such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of,
any such amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 7 hereof.
(e) As soon as practicable, but not later than the Availability Date (as defined
below), the Company will make generally available to its securityholders an earnings
statement (which need not be audited) covering a period of at least 12 months beginning
after the Effective Date that will satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, “Availability Date” means the 40th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year,
“Availability Date” means the 60th day after the end of such fourth fiscal quarter.
(f) The Company will furnish to the Representatives copies of the Registration
Statement (two of which will be signed and will include all exhibits), if requested by the
Representatives, each related Preliminary Prospectus, and, so long as a prospectus relating
to the Securities is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements to such documents
and each Free Writing Prospectus, in each case in such quantities as the Representatives
reasonably request. The Prospectus shall be so furnished as soon as practicable but in no
event later than the second business day following the execution and delivery of this
Agreement. All other documents shall be so furnished as soon as available. The Company will
pay the expenses of printing and distributing to the Underwriters all such documents.
(g) The Company will cooperate with the Underwriters and counsel to the Underwriters in
connection with the qualification of the Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long as required for the
distribution; provided, however, that none of the Company, Hovnanian or any
Guarantor shall be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that would
subject it to general consent to service of process or taxation other than as to matters and
transactions relating to the Registration Statement and the Prospectus, in any jurisdiction
in which it is not now so subject.
(h) So long as any Securities remain outstanding, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of the annual report to stockholders
for such year; and so long as any Securities remain outstanding, the Company or Hovnanian
will furnish to the Representatives (i) during any period in which the Company is not
subject to Section 13 or 15(d) of the 1934 Act, as soon as practicable, a copy of each
report and any definitive proxy statement of the Company filed with the Commission under the
1934 Act or mailed to stockholders, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(i) The Company will pay or cause to be paid all expenses incident to the performance
of the obligations of the Company, Hovnanian and the Guarantors under the Securities
Documents, including any filing fees and other expenses (including fees and disbursements of counsel to the Company)
incurred in
10
connection with qualification of the Securities for sale under the securities or
blue sky laws of the various states, any fees charged by investment rating agencies for the
rating of the Securities, any travel expenses of the Company’s officers and employees and
any other expenses of the Company, Hovnanian or the Guarantors in connection with attending
or hosting meetings with prospective purchasers of the Securities and expenses incurred in
distributing the Prospectus, any Free Writing Prospectus and any Time of Sale Information
(including any amendments and supplements thereto) to the Underwriters.
(j) The Company will not, without the prior written consent of Credit Suisse Securities
(USA) LLC and X.X. Xxxxxx Securities LLC, offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the 1934 Act, any shares of Common Stock or any securities convertible
into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an
intention to effect any such transaction, until after 90 days from the date hereof, except
for (i) the registration of the Securities and the sales to the Underwriters pursuant to
this Agreement, (ii) the concurrent offering of the Company’s Common Stock as described in
the Time of Sale Information and the Prospectus, (iii) the issuance and sale of Common Stock
or options exercisable into Common Stock pursuant to any employee benefit or incentive plan,
stock ownership plan or dividend reinvestment plan of the Company in effect at the Time of
Sale and (iv) the issuance of Common Stock upon the conversion of securities or the exercise
of warrants outstanding at the Time of Sale.
(k) The Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the Commission in
accordance with Rule 433 under the Act.
(l) The Issuers will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in the form approved by the
Representatives and attached as Schedule D hereto and will file such term sheet pursuant to
Rule 433(d) under the Act within the time required by such Rule.
(m) The Company will reserve and keep available at all times, free of preemptive rights
(for the avoidance of doubt, other than those rights provided to holders of Common Stock
pursuant to the Company’s Rights Plan, as described in the Time of Sale Information), the
maximum number of shares of Issuable Common Stock issuable under the Purchase Contract
Agreement (calculated assuming settlement of the Purchase Contracts at the “Maximum
Settlement Rate,” as such term is defined in the Time of Sale Information).
(n) The Issuers will not, between the date hereof and the Closing Date, do or authorize
any act or thing that would result in an adjustment of the settlement rates of the Purchase
Contracts.
(o) The Issuers will use their reasonable best efforts to cause the Securities and the
Issuable Common Stock to be listed and admitted and authorized for trading on the New York
Stock Exchange within 30 days of the Closing Date, and to provide satisfactory evidence of
such actions to the Representatives.
6. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) Unless it has obtained the prior written consent of the Company, it has not made
and unless it will obtain the prior written consent of the Company, it will not make any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under
the Act) required to be filed by the Company with the Commission or retained by the Company
under Rule 433 under the Act, provided that the prior written
11
consent of the parties hereto shall be deemed to have been given in respect of the
information contained in any Free Writing Prospectus referred to in Schedule C hereto.
(b) It has not and will not distribute any Underwriter Free Writing Prospectus in a
manner reasonably designed to lead to its broad unrestricted dissemination. For purposes of
this Section 6(b), “Underwriter Free Writing Prospectus” shall mean a “free writing
prospectus” that contains no “issuer information” (as defined in Rule 433(h)(2) under the
Act) that was not included (including through incorporation by reference) in the Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus.
(c) It is not subject to any pending proceeding under Section 8A of the Act with
respect to the offering (and will promptly notify the Company if any such proceeding against
it is initiated during the Prospectus Delivery Period).
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Securities on the Closing Date will be subject to the
accuracy when made and on the Closing Date of the representations and warranties on the part of the
Company and Hovnanian herein, to the accuracy of the statements of the Company, Hovnanian and
Guarantor officers made pursuant to the provisions hereof, to the performance by the Company,
Hovnanian and each Guarantor in all material respects of their respective obligations hereunder and
to the following additional conditions precedent:
(a) The Representatives shall have received, on the date hereof and on the Closing
Date, a letter dated such date, in form and substance satisfactory to you, from each of
Deloitte & Touche LLP and Ernst & Young LLP, each an independent registered public
accounting firm with respect to the Company, containing the information and statements of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information contained in or incorporated
by reference into the Registration Statement, the Prospectus and the Time of Sale
Information.
(b) The Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that purpose or
pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the
Company, Hovnanian or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have
occurred (i) any change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of the Company
and its subsidiaries taken as one enterprise that, in the reasonable judgment of the
Representatives, is material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the Securities; (ii)
any downgrading in the rating of any debt securities of the Company or Hovnanian by any
“nationally recognized statistical rating organization” (as defined under Section 3(a)(62)
under the 1934 Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of Hovnanian or the Company (other
than an announcement with positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating) or any announcement that the Company or Hovnanian
has been placed on negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls as would,
in the reasonable judgment of the Representatives, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Securities, whether in the
primary market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of Hovnanian or the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or clearance services in
the United States if, in the reasonable judgment of the Representatives, the effect of such
disruption makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving, the Xxxxxx Xxxxxx,
00
any declaration of war by Congress or any other national or international calamity or emergency if, in the
reasonable judgment of the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for the
Securities.
(d) The Representatives shall have received an opinion of Xxxxx X. Xxxxxxxx, Esq.,
Senior Vice President and General Counsel of the Company, dated the Closing Date,
substantially to the effect as set forth in Exhibit A.
(e) The Representatives shall have received an opinion and a negative assurance
statement, dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Company, substantially to the effect as set forth in Exhibits B-1 and B-2, respectively.
(f) The Representatives shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for
the Underwriters, an opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(g) The Representatives shall have received a certificate, dated the Closing Date and
signed by J. Xxxxx Xxxxxx, in his capacity as Executive Vice President and Chief Financial
Officer of the Company (i) confirming the matters set forth in Sections 2(hh) and
2(ii), (ii) confirming that all the representations and warranties of the Company, Hovnanian
and their subsidiaries contained herein and in the Securities Documents are true and correct
on the Closing Date with the same force and effect as if made on and as of the Closing Date,
(iii) that, in all material respects, the Company and Hovnanian have complied with all of
the agreements and satisfied all of the conditions herein contained and required to be
complied with or satisfied by the Company and Hovnanian on or prior to the Closing Date,
(iv) to his knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose or pursuant to Section 8A
under the Act have been instituted or are contemplated by the Commission and (v) since the
date of the most recent financial statements incorporated by reference in the Time of Sale
Information and the Prospectus (exclusive of any supplement thereto), there has been no
material adverse effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, except as set forth in or
contemplated in the Time of Sale Information and the Prospectus (exclusive of any supplement
thereto).
(h) The Representatives shall have received lockup letters in the form of Exhibit D
hereto from each of the executive officers and directors of the Company.
(i) The Company, Hovnanian, the Purchase Contract Agent and the Trustee shall have
executed and delivered the Purchase Contract Agreement and the Underwriters shall have
received copies, conformed as executed, thereof.
(j) Hovnanian, the Guarantors and the Trustee shall have executed and delivered each of
the Base Indenture and the Supplemental Indenture and the Underwriters shall have received
copies, conformed as executed, thereof.
(k) An application for listing of the Units and the Issuable Common Stock shall have
been submitted to the New York Stock Exchange, and satisfactory evidence of such actions
shall have been provided to the Representatives.
The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request. The Representatives
may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder.
8. Indemnification and Contribution. (a) The Company, Hovnanian and each of the
Guarantors will jointly and severally indemnify and hold harmless each Underwriter, its
partners, directors and officers, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages
13
or liabilities, joint or several, to which any Underwriter may become subject, under the Act
or the 1934 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 the Registration Statement, the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any Time of Sale Information, or arise
out of or are based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein (in the case of
the Prospectus, any Issuer Free Writing Prospectus or any Time of Sale Information, in the light of
the circumstances under which they were made) not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company, Hovnanian and the Guarantors will 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 an untrue statement or alleged untrue statement in or omission or alleged omission from
any of such documents made in reliance upon and in conformity with written information furnished to
the Company or Hovnanian by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished by any Underwriter
through the Representatives consists of the information described as such in Section 8(b) hereof.
(b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company,
Hovnanian, each Guarantor and their respective directors and officers and each person, if any, who
controls the Company, Hovnanian or any Guarantor within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities to which the Company, Hovnanian or the
Guarantors may become subject, under the Act or the 1934 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 the Registration
Statement, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any Time of Sale Information, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, any Issuer Free Writing Prospectus or
any Time of Sale Information, in the light of the circumstances under which they were made) not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or Hovnanian by such Underwriter
through the Representatives specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter through the Representatives
consists of the following information in the Prospectus: the third sentence of the sixth paragraph
and the ninth through eleventh paragraphs under the caption “Underwriting”; provided, however, that
the Underwriters shall not be liable for any losses, claims, damages or liabilities arising out of
or based upon the Company’s or Hovnanian’s failure to perform its obligations under Section 5(f) of
this Agreement.
(c) Promptly after receipt by an indemnified party under this Section 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 Section 8(a) or 8(b) hereof, notify the indemnifying
party of the commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under Section 8(a) or 8(b) hereof 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 Section 8(a) or 8(b) hereof. 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 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 for any legal or other 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
14
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 Section 8(a) or 8(b) hereof, 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 Section 8(a) or 8(b) hereof (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, Hovnanian and the
Guarantors on the one hand and the Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by 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, Hovnanian and the Guarantors on the one hand and
the Underwriters on the other 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, Hovnanian and the Guarantors on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company, Hovnanian and the Guarantors
bear to the total underwriting discounts and commissions received by the Underwriters from the
Company under this Agreement. The relative fault 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, Hovnanian
and the Guarantors or the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this Section 8(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 that is the subject of this Section 8(d). Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this Section 8(d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company, Hovnanian and the Guarantors under this Section 8 shall be
in addition to any liability that the Company, Hovnanian and the Guarantors may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability that the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director and officer of the Company,
Hovnanian and each Guarantor and to each person, if any, who controls the Company, Hovnanian or any
Guarantor within the meaning of the Act or the 1934 Act.
9. Default of Underwriters. If any Underwriter or Underwriters default(s) in its or their
obligations to purchase Securities hereunder on the Closing Date and the aggregate amount of
Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the aggregate amount of Securities that the Underwriters are obligated to purchase on
the Closing Date, the Representatives may make arrangements satisfactory to the Company for the
purchase of such Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase the Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase on the Closing Date. If
any Underwriter or Underwriters so default(s) and the number of Securities with respect to which
such default or defaults occur(s) exceeds 10% of the number of Securities that the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to the Representatives, the
Company and Hovnanian for the purchase of such Securities by other persons are not made within 48
hours after such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company and Hovnanian, except as provided in Section 10
15
hereof.
As used in this Agreement, the term “Underwriter” includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
10. Survival of Certain Representations and Obligations. The respective
indemnities, contribution agreements, representations, warranties and other statements of the
Company, Hovnanian and the several Underwriters set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery of and payment for
the Securities, regardless of (i) any investigation, or statement as to the results thereof, made
by or on behalf of any Underwriter, the officers or directors of any Underwriter, any person
controlling any Underwriter, the Company or Hovnanian, the officers or directors of the Company or
Hovnanian or any person controlling the Company or Hovnanian, (ii) acceptance of and payment for
the Securities hereunder and (iii) termination of this Agreement. If for any reason the Securities
are not delivered by or on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 7(c)(iii), (iv) (only to the extent there is a
material suspension or material limitation of trading of securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange), (v), (vi) or (vii), the
Company and Hovnanian, jointly and severally, agree to reimburse the several Underwriters for all
out-of-pocket expenses (including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company and Hovnanian, jointly and
severally, shall be liable for all expenses which they have agreed to pay pursuant to Section 5(i)
hereof. The Company and Hovnanian, jointly and severally, also agree to reimburse the several
Underwriters, their directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees disbursements of counsel)
incurred by them in connection with enforcing their rights hereunder (including, without
limitation, their rights under Section 8 hereof).
11. Arm’s Length Relationship; No Fiduciary Duty. The Company and Hovnanian acknowledge and
agree that the Representatives are acting solely in the capacity of arm’s length contractual
counterparties to the Company with respect to the Securities (including in connection with
determining the terms of the offering contemplated by this Agreement) and not as a financial
advisor, agent or fiduciary to the Company and Hovnanian or any other person. Additionally, the
Representatives are not advising the Company or Hovnanian or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company or Hovnanian shall
consult with its own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated by this Agreement, and the
Representatives shall have no responsibility or liability to the Company or Hovnanian with respect
thereto. Any review by the Representatives of the Company, the transactions contemplated by this
Agreement or other matters relating to such transactions will be performed solely for the benefit
of the Representatives and shall not be on behalf of the Company or Hovnanian.
12. Notices. All communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to the Representatives c/o Credit Suisse
Securities (USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, fax no. 000-000-0000
and confirmation number 000-000-0000, Attention: Transactions Advisory Group, or, if sent to the
Company, Hovnanian or any Guarantor, will be mailed, delivered or telegraphed and confirmed to
Hovnanian Enterprises, Inc., 000 Xxxx Xxxxx Xxxxxx, X.X. Xxx 000, Xxx Xxxx, Xxx Xxxxxx 00000, fax
no. 000-000-0000 and confirmation number 732-747-7800, Attention: General Counsel; provided,
however, that any notice to an Underwriter pursuant to Section 8 hereof will be mailed, delivered
or telegraphed and confirmed to such Underwriter as set forth in Exhibit C.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. Representation of Underwriters. The Representatives will act for the several Underwriters
in connection with this financing, and any action under this Agreement taken by the Representatives
will be binding upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
16
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
17
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company, Hovnanian, the other Guarantors and the several Underwriters
in accordance with its terms.
| Very truly yours, HOVNANIAN ENTERPRISES, INC. |
||||
| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxx | ||||
| Title: Senior Vice President and General Counsel | ||||
| X. XXXXXXXXX ENTERPRISES, INC. |
||||
| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxx | ||||
| Title: Senior Vice President and General Counsel | ||||
| On behalf of each entity named in Schedule B hereto |
||||
| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxx | ||||
| Title: Senior Vice President and General Counsel | ||||
Accepted as of the date first above written
CREDIT SUISSE SECURITIES (USA) LLC
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES LLC
CREDIT SUISSE SECURITIES (USA) LLC
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES LLC
|
By: CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice Chairman | |||
| By: CITIGROUP GLOBAL MARKETS INC. |
||||
| By | /s/ Savir Xxxxxxx | |||
| Name: | Savir Xxxxxxx | |||
| Title: | Managing Director | |||
| By: X.X. XXXXXX SECURITIES LLC |
||||
| By | /s/ Xxx Oeljeschlaeger | |||
| Name: | Xxx Oeljeschlaeger | |||
| Title: | Vice President | |||
| Acting on behalf of themselves and the other several Underwriters. | ||||
Schedule A
| Number of | ||||
| Underwritten | ||||
| Securities to | ||||
| Underwriter | be Purchased | |||
Credit Suisse Securities (USA) LLC
|
700,000 | |||
Citigroup Global Markets Inc.
|
700,000 | |||
X.X. Xxxxxx Securities LLC
|
700,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
|
300,000 | |||
Deutsche Bank Securities Inc.
|
300,000 | |||
Xxxxx Fargo Securities, LLC
|
300,000 | |||
Total
|
3,000,000 | |||
