Contract
EXHIBIT 1.2
X. XXXXXXXXX ENTERPRISES, INC.,
as Issuer
HOVNANIAN ENTERPRISES, INC.
and Certain of its Subsidiaries,
as Guarantors
as Issuer
HOVNANIAN ENTERPRISES, INC.
and Certain of its Subsidiaries,
as Guarantors
10.625% Senior Secured Notes due 2016
April 29, 2011
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. X. Xxxxxxxxx Enterprises, Inc., a California corporation (the “Company”),
proposes to issue and sell $12,000,000 principal amount of its 10.625% Senior Secured Notes due
2016 (the “Securities”) to be unconditionally guaranteed on a secured basis as to the payment of
principal and interest (collectively, the “Guarantees”) by Hovnanian Enterprises, Inc., a Delaware
corporation (“Hovnanian”) and the subsidiary guarantors listed on Schedule A hereto (together, with
Hovnanian, the “Guarantors”) and issued under an indenture, dated as of October 20, 2009 (the “Base
Indenture”), among the Company, Hovnanian, the other guarantors named therein and Wilmington Trust
Company, as Trustee (the “Trustee”), as supplemented by that certain supplemental indenture, among
the Company, Hovnanian, the other Guarantors and the Trustee, dated as of the Closing Date (the
“First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). The
Securities and the Guarantees will be secured by a first-priority lien on the Collateral (as
defined in the Time of Sale Information referred to below). As used herein, the term “Security
Documents” has the meaning assigned to it in the Time of Sale Information.
The Company previously issued $785,000,000 in aggregate principal amount of its 10.625% Senior
Secured Notes due 2016 under the Base Indenture (the “Existing Securities”). The Securities
constitute an additional issuance of notes under the Indenture. The Securities will have identical
terms to the Existing Securities, except that interest will accrue on the Securities from their
date of issuance, and will be treated as a single class of notes for all purposes under the
Indenture.
The Company hereby agrees with the several Underwriters named in Schedule B hereto (the
“Underwriters”), for whom you are acting as Representatives (the “Representatives,” which term, to
the extent there are no additional Underwriters listed on Schedule B hereto other than you, shall
be deemed to mean you, as Underwriter, and the term Underwriters shall mean either the singular or
plural as the context requires), as follows:
2. Representations and Warranties of the Company and Hovnanian. Each of the Company and
Hovnanian represent and warrant to, and agree with, the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-173365) relating to the Securities,
including a base prospectus dated April 18, 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 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
filing of the Prospectus (as defined below), 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, 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 Company was 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 Company 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 11:45 A.M. on April 29, 2011 (the “Time of Sale”), the Company had
prepared the following information (collectively, the “Time of Sale Information”): a
Preliminary Prospectus dated April 29, 2011, and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Act) listed on Annex A hereto.
(c) The Time of Sale Information, 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 Company makes 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 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 Company (including
its agents and representatives, other than the Underwriters in their capacity as such) has
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 or its 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(a)(10)(a) of
the Act or Rule 134 under the Act or (ii) the documents listed on Annex A 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 Company makes no representation and
warranty with respect to any statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in
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conformity with information relating to any Underwriter furnished to the Company 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 and the Rules and Regulations, and neither
of such documents 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 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, Hovnanian 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 Hovnanian 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 and validly issued and are fully paid, non-assessable and except, for the
avoidance of doubt, with respect to the Rights Plan of Hovnanian, as described in the Time
of Sale Information, not subject to any preemptive or similar rights.
(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 Hovnanian, 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) the
Existing Securities, (B) the Company’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 trustee, (C) the Company’s 18%
Senior Secured Notes due 2017 issued pursuant to the indenture, dated as of December 3,
2008, by and among the Company, Hovnanian and the other guarantors named therein and
Wilmington Trust Company, as trustee and (D) “Permitted Liens” as defined in the Base
Indenture and such aforementioned indentures.
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(j) This Agreement has been duly authorized, executed and delivered by the Company,
Hovnanian and each other Guarantor.
(k) The Base Indenture has been duly authorized, executed and delivered by the Company
and each of the Guarantors and as of the Closing Date the First Supplemental Indenture will
have been validly executed and delivered by the Company and each of the Guarantors that is a
party thereto. When the First Supplemental Indenture has been duly executed and delivered
by the Company and each of the Guarantors that is a party thereto, and, assuming that the
Indenture is a valid and binding obligation of the Trustee, the Indenture will be, a valid
and binding agreement of the Company and each Guarantor that is a party thereto, enforceable
against the Company 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.
(l) The Indenture has been duly qualified under the Trust Indenture Act with respect to
the Securities; the Securities have been duly authorized and, on the Closing Date, will have
been validly executed and delivered by the Company. When the Securities 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 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 Securities will
conform as to legal matters to the descriptions thereof contained in the Time of Sale
Information and Prospectus.
(m) The Guarantee to be endorsed on the Securities 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 Securities 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 Securities will
conform as to legal matters to the description thereof contained in the Time of Sale
Information and Prospectus.
(n) Each of the Security Documents entered into prior to the date hereof, other than
any such Security Documents released in accordance with the terms of the Indenture (the
“Existing Security Documents”), has been duly authorized by the Company (if it is a party
thereto) and the applicable Guarantors that are parties thereto and has been duly executed
and delivered by the Company (if it is a party thereto) and each Guarantor that is a party
thereto, and constitutes a valid and binding obligation of such parties, enforceable 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 equity principles
(whether considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; the Existing Security Documents create valid and perfected security
interests or mortgage liens in the Collateral to which they relate, subject to no prior
liens other than Permitted Liens (as defined in the Indenture); and each of the
representations and warranties made by the Company and the Guarantors in each Security
Document to which it is a party is true and correct in all material respects as of the
Closing Date. On the Closing Date, the Security Documents will conform in all material
respects as to legal matters to the descriptions thereof in the Time of Sale Information.
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(o) None of the Company, Hovnanian or any of their 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, or Hovnanian and its subsidiaries, taken as a
whole, to which the Company, Hovnanian or any of its subsidiaries is a party or by which the
Company, Hovnanian or any of its subsidiaries or their respective property is bound.
(p) The execution, delivery and performance of this Agreement, the Securities, the
Guarantees and the First Supplemental Indenture (collectively, the “Additional Securities
Transaction Documents”) by the Company and each of the Guarantors, as applicable, compliance
by the Company and each of the Guarantors with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not, and the
performance of the Base Indenture and the Existing Security Documents (collectively, the
“Existing Transaction Documents” and, together with the Additional Securities Transaction
Documents, the “Transaction Documents”) by the Company and each of the Guarantors, as
applicable, and compliance by the Company and each of the Guarantors with all provisions
thereof and the consummation of the transactions contemplated by the Additional Securities
Transaction Documents does 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), (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 or any Guarantor or any
indenture, loan agreement, mortgage, lease or other agreement or instrument that is material
to the Company or Hovnanian and its subsidiaries, taken as a whole, to which the Company or
the Guarantors is a party or by which the Company or the Guarantors 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, Hovnanian 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, Hovnanian or any of
its subsidiaries is a party or by which the Company, Hovnanian or any of its subsidiaries or
their respective property is bound (except any filing or recording necessary to perfect the
interest in the Collateral pursuant to the Security Documents), or (v) result in the
termination, suspension or revocation of any Authorization (as defined below) of the
Company, Hovnanian or any of its subsidiaries or result in any other impairment of the
rights of the holder of any such Authorization.
(q) 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, Hovnanian
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.
(r) 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.
(s) 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.
(t) Hovnanian maintains a system of “internal control over financial reporting” (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by Hovnanian’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
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principles; and Hovnanian’s internal control over financial reporting is effective in all
material respects to perform the functions for which it was established and Hovnanian is not
aware of any material weaknesses in its internal control over financial reporting.
(u) Hovnanian maintains “disclosure controls and procedures” (as such term is defined
in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are
effective in all material respects to perform the functions for which they were established.
(v) Except as disclosed in the Time of Sale Information and the Prospectus, neither the
Company, Hovnanian 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.
(w) Except as disclosed in the Time of Sale Information and the Prospectus, each of the
Company, Hovnanian 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, Hovnanian 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.
(x) 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
and the Guarantors, as required by the Act and the 0000 Xxx.
(y) The historical financial statements, together with related notes, incorporated by
reference from Hovnanian’s Annual Report on 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 Hovnanian 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 Hovnanian; 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.
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(z) The Company and Hovnanian are not 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
the Prospectus, will not be, an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(aa) Neither the Company nor any Guarantor nor any of their respective subsidiaries nor
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 Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System.
(bb) No “nationally recognized statistical rating organization” as such term is defined
under Section 3(a)(62) of 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
the Company, any Guarantor or any securities of the Company or Hovnanian.
(cc) No debt of any subsidiary of Hovnanian (other than the Company) is rated by a
nationally recognized statistical organization.
(dd) 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, or Hovnanian 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, Hovnanian or any of its subsidiaries and (iii) neither the
Company, Hovnanian nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(ee) The Company is not 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 has
paid the registration fee for this offering as required under the Act.
(ff) Hovnanian is subject to Section 13 or 15(d) of the Exchange Act.
3. Purchase, Sale and Delivery of the Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters, the Guarantors agree to guarantee the
Securities and the Underwriters agree, severally and not jointly, to purchase from the Company, at
a purchase price of 103% of the principal amount thereof, the respective principal amounts of
Securities set forth opposite the names of the Underwriters in Schedule B hereto.
The Company will cause to be delivered against payment of the purchase price by the
Underwriters the Securities in the form of one or more permanent Global Securities in definitive
form (“Global Securities”) deposited with the Trustee as custodian for The Depository Trust Company
(“DTC”) and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent
Global Securities will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Securities shall be made by the
Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of X. Xxxxxxxxx Enterprises, Inc. or as the Company specifies at
the office of Xxxxx Xxxx & Xxxxxxxx LLP at 10:00 A.M., (New York time), on May 4, 2011, or at such
other time not later than three full business days thereafter as the Representatives and the
Company determine, such time being herein referred to as the “Closing Date,” against delivery to
the Trustee as custodian for DTC of the Global Securities representing all of the Securities. The
Global Securities will be made available for checking at the above office of Xxxxx Xxxx & Xxxxxxxx
LLP at least 24 hours prior to the Closing Date.
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4. Offering by Underwriters. (a) It is understood that the several Underwriters propose to
offer the Securities for sale to the public as set forth in the Prospectus.
(b) Each Underwriter, severally and not jointly, represents and warrants to the Company
and the Guarantors that, in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a “Relevant Member State”), with
effect from and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make
an offer of Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Securities to the public in that Relevant
Member State at any time: (A) to any legal entity which is a qualified investor as defined
in the Prospectus Directive; (B) to fewer than 100 or, if the Relevant Member State has
implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal
persons (other than qualified investors as defined in the Prospectus Directive), as
permitted under the Prospectus Directive, subject to obtaining the prior consent of the
Representatives for any such offer; or (C) in any other circumstances falling within Article
3(2) of the Prospectus Directive, provided that no such offer of Securities shall require
the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the
Prospectus Directive. For the purposes of this provision, the expression an “offer of
Securities to the public” in relation to any Securities in any Relevant Member State means
the communication in any form and by any means of sufficient information on the terms of the
offer and the Securities to be offered so as to enable an investor to decide to purchase or
subscribe for the Securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State, the expression “Prospectus
Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD
Amending Directive, to the extent implemented in the Relevant Member State), and includes
any relevant implementing measure in the Relevant Member State and the expression “2010 PD
Amending Directive” means Directive 2010/73/EU.
(c) Each Underwriter, severally and not jointly, represents and warrants to the Company
and the Guarantors that: (i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the FSMA) received by it in
connection with the issue or sale of the Securities in circumstances in which Section 21(1)
of the FSMA does not apply to the Company or the Guarantors; and (ii) it has complied and
will comply with all applicable provisions of the FSMA with respect to anything done by it
in relation to the Securities in, from or otherwise involving the United Kingdom. For
purposes of this provision, “FSMA” means the Financial Services and Markets Xxx 0000.
5. Certain Agreements of the Company and Hovnanian. The Company and Hovnanian agree with the
several Underwriters that:
(a) Hovnanian 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 Issuer Free Writing Prospectus pursuant to and in
accordance with Rule 433 under the Act within the required time period. The Company or
Hovnanian will advise the Representatives promptly of any such filing pursuant to Rule
424(b) or 433 under the Act.
(b) The Company or Hovnanian will advise the Representatives promptly of any proposal
to amend or supplement the Registration Statement, Time of Sale Information or the
Prospectus and will not effect such amendment or supplement without the Representatives’
consent (such consent not to be unreasonably withheld); and the Company or Hovnanian 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,
8
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, 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 or Hovnanian will promptly notify the Representatives of such
event and will promptly prepare and file with the Commission, at the Company’s or
Hovnanian’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 Hovnanian’s fiscal
year, “Availability Date” means the 75th day after the end of such fourth fiscal quarter.
(f) The Company or Hovnanian will furnish to the Representatives copies of the
Registration Statement (one 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 neither the Company nor 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 or Hovnanian 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
9
any period in which the Company and
the Guarantors are 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 Hovnanian filed
with the
Commission under the 1934 Act or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company or Hovnanian as the Representatives may reasonably
request.
(i) The Company or Hovnanian will pay or cause to be paid all expenses incident to the
performance of the obligations of the Company and the Guarantors under this Agreement and
the Transaction Documents, including any filing fees and other expenses (including fees and
disbursements of counsel to the Company and the Guarantors) incurred in connection with
qualification of the Securities for sale under the securities or blue sky laws of the
various states, the fees and expenses of the Collateral Agent (as defined in the Indenture)
and its professional advisers, any costs relating to the creation or perfection of the liens
under the Security Documents (including, to the extent that counsel paid by the Purchasers
performs work in connection with such creation or perfection of liens, the fees,
disbursements and expenses of such counsel in an amount not in excess of $50,000), any fees
charged by investment rating agencies for the rating of the Securities, any travel expenses
of the Company’s or any Guarantor’s officers and employees and any other expenses of the
Company 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) During the period beginning on the date hereof and continuing to and including the
date 10 days following the Closing Date, not to offer, sell, contract to sell or otherwise
transfer or dispose of any debt securities of the Company or any Guarantor or any warrants,
rights or options to purchase or otherwise acquire debt securities of the Company or any
Guarantor substantially similar to the Securities and the Guarantees (other than (A) the
Securities and the Guarantees or (B) debt facilities or commercial paper issued in the
ordinary course of business), without the prior written consent of Credit Suisse Securities
(USA) LLC.
(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) To deliver, or cause to be delivered, within the time period set forth in the
Indenture, any Security Document required pursuant to the Transaction Documents.
6. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Act
(which term includes use of any written information furnished to the Commission by the
Company and not incorporated by reference into the Registration Statement and any press
release issued by the Company) other than (i) 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, (ii) any Issuer Free Writing Prospectus listed on
Annex A or prepared pursuant to Section 2(e) or Section 5(d) above, or (iii) any free
writing prospectus prepared by such underwriter and approved by the Company in advance in
writing (each such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred
to in clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted
dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Securities unless such terms
have previously been included in a free writing prospectus filed with the Commission;
provided that Underwriters may use a term sheet substantially in the form of Annex B hereto
without the consent of the Company; provided further that any
10
Underwriter using such term
sheet shall notify the Company, and provide a copy of such term sheet to the Company, prior
to, or substantially concurrently with, the first use of such term sheet.
(d) 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 and Guarantor
officers made pursuant to the provisions hereof, to the performance by the Company and each
Guarantor in all material respects of its 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 Hovnanian, 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 Hovnanian
and its subsidiaries taken as one enterprise that, in the reasonable judgment of a majority
in interest of the Underwriters including 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 Hovnanian or the Company by any “nationally recognized statistical rating
organization” (as defined in Section 3(a)(62) of 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 Hovnanian or the Company 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 a majority in interest of the Underwriters including 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 a majority in
interest of the Underwriters including 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 United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the reasonable
judgment of a majority in interest of the Underwriters including 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.
11
(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 Hovnanian, (i) confirming the matters set forth in Sections 2(bb),
2(cc) and 2(dd), (ii) confirming that all the representations and warranties of the Company,
Hovnanian and its subsidiaries herein contained 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.
(h) The Representatives shall have received such evidence as they may reasonably
require of the effectiveness of the security contemplated by the Security Documents and the
perfection of the security interest created thereby.
(i) The Representatives shall have received a counterpart, conformed as executed, of
the First Supplemental Indenture which shall have been entered into by the Company,
Hovnanian, the other Guarantors and the Trustee.
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 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 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 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.
12
(b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company,
each Guarantor, their respective directors and officers and each person, if any, who controls the
Company or any Guarantor within the meaning of Section 15 of the Act, against any losses, claims,
damages or liabilities to which the Company 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 paragraph, the first and second sentences of the fifth paragraph, the ninth paragraph and
the tenth paragraph 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 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 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 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 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 and the Guarantors bear to the total underwriting
discounts
13
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 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 and the Guarantors under this Section 8 shall be in
addition to any liability that the Company 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 and each Guarantor
and to each person, if any, who controls the Company 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 principal amount
of Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the aggregate principal 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 aggregate principal amount
of Securities with respect to which such default or defaults occur(s) exceeds 10% of the aggregate
principal amount 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, the Company and
Hovnanian, except as provided in Section 10 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), (iv) 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
14
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 acknowledges and agrees 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 or any other person. Additionally, the Representatives are not advising the Company or
any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company 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 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.
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 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. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
15
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,
| X. XXXXXXXXX ENTERPRISES, INC. |
|||||
| By | /s/ Xxxxx X. Xxxxxxxxxxx | ||||
| Name: | Xxxxx X. Xxxxxxxxxxx | ||||
| Title: | Vice President Finance and Treasurer | ||||
| HOVNANIAN ENTERPRISES, INC. |
|||||
| By | /s/ Xxxxx X. Xxxxxxxxxxx | ||||
| Name: | Xxxxx X. Xxxxxxxxxxx | ||||
| Title: | Vice President Finance and Treasurer | ||||
| On behalf of each entity named in Schedule A hereto |
|||||
| By | /s/ Xxxxx X. Xxxxxxxxxxx | ||||
| Name: | Xxxxx X. Xxxxxxxxxxx | ||||
| Title: | Vice President Finance and Treasurer | ||||
[Signature page to Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
and accepted as of the date first above written.
By: CREDIT SUISSE SECURITIES (USA) LLC
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice Chairman | |||
[Signature page to Underwriting Agreement]
SCHEDULE A
Guarantors
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 NATIONAL TITLE AGENCY, LLC
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.
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 TEXAS LLC
HOVNANIAN LAND INVESTMENT GROUP OF VIRGINIA, L.L.C.
HOVNANIAN LAND INVESTMENT GROUP, L.L.C.
K. HOV INTERNATIONAL, INC.
K. HOV IP, INC.
K. HOV IP, II, INC.
X. XXXXXXXXX ACQUISITIONS, INC.
X. XXXXXXXXX AT 4S, LLC
X. XXXXXXXXX AT ACQUA VISTA, LLC
X. XXXXXXXXX AT ALISO, LLC
X. XXXXXXXXX AT ALLENTOWN, L.L.C.
K. HOVNANIAN AT ALMOND ESTATES, LLC
X. XXXXXXXXX AT ANDALUSIA, LLC
X. XXXXXXXXX AT ARBOR HEIGHTS, LLC
X. XXXXXXXXX AT AVENUE ONE, L.L.C.
K. HOVNANIAN AT BAKERSFIELD 463, L.L.C.
K. HOVNANIAN AT BARNEGAT I, L.L.C.
K. HOVNANIAN AT BARNEGAT II, L.L.C.
K. HOVNANIAN AT BELLA LAGO, LLC
X. XXXXXXXXX AT BENSALEM, LLC
X. XXXXXXXXX AT BERKELEY, L.L.C.
K. HOVNANIAN AT BERNARDS V, L.L.C.
K. HOVNANIAN AT BLUE HERON PINES, L.L.C.
K. HOVNANIAN AT BRANCHBURG, L.L.C.
K. HOVNANIAN AT BRIDGEPORT, INC.
X. XXXXXXXXX AT BRIDGEWATER I, L.L.C.
K. HOVNANIAN AT BROAD AND WALNUT, L.L.C.
K. HOVNANIAN AT CALABRIA, INC.
X. XXXXXXXXX AT CAMDEN I, L.L.C.
X. XXXXXXXXX AT XXXXXXX XXXXX, INC.
X. XXXXXXXXX AT CAMP HILL, L.L.C.
K. HOVNANIAN AT CAPISTRANO, L.L.C.
K. HOVNANIAN AT CARLSBAD, LLC
X. XXXXXXXXX AT CARMEL DEL MAR, INC.
X. XXXXXXXXX AT CARMEL VILLAGE, LLC
X. XXXXXXXXX AT CASTILE, INC.
X. XXXXXXXXX AT CEDAR GROVE III, L.L.C.
K. HOVNANIAN AT CEDAR GROVE V, L.L.C.
K. HOVNANIAN AT CHAPARRAL, INC.
X. XXXXXXXXX AT CHARTER WAY, LLC
X. XXXXXXXXX AT XXXXXXX I, L.L.C.
K. HOVNANIAN AT CHESTERFIELD, L.L.C.
K. HOVNANIAN AT CIELO, L.L.C.
K. HOVNANIAN AT XXXXXXX, L.L.C.
K. HOVNANIAN AT COASTLINE, L.L.C.
K. HOVNANIAN AT XXXXXX XXXX, LLC
X. XXXXXXXXX AT CRANBURY, L.L.C.
K. HOVNANIAN AT CRESTLINE, INC.
X. XXXXXXXXX AT CURRIES XXXXX, L.L.C.
K. HOVNANIAN AT DENVILLE, L.L.C.
K. HOVNANIAN AT DEPTFORD TOWNSHIP, L.L.C.
K. HOVNANIAN AT XXXXXXXXX HILLS, INC.
X. XXXXXXXXX AT DOVER, L.L.C.
K. HOVNANIAN AT EAST BRANDYWINE, L.L.C.
K. HOVNANIAN AT EASTLAKE, LLC
X. XXXXXXXXX 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 EL DORADO RANCH II, L.L.C.
K. HOVNANIAN AT EL DORADO RANCH, L.L.C.
K. HOVNANIAN AT ELK TOWNSHIP, L.L.C.
K. HOVNANIAN AT ENCINITAS RANCH, LLC
X. XXXXXXXXX AT EVERGREEN, L.L.C.
K. HOVNANIAN AT XXXXX, L.L.C.
K. HOVNANIAN AT XXXXX XX, L.L.C.
K. HOVNANIAN AT FAIR OAKS, L.L.C.
K. HOVNANIAN AT XXXXXXXXX RANCH, LLC
X. XXXXXXXXX AT FIFTH AVENUE, L.L.C.
K. HOVNANIAN AT XXXXXXXX I, L.L.C.
K. HOVNANIAN AT XXXXXXXX XX, L.L.C.
K. HOVNANIAN AT FOREST XXXXXXX, L.L.C.
K. HOVNANIAN AT FRANKLIN, L.L.C.
K. HOVNANIAN AT XXXXXXXX XX, L.L.C.
K. HOVNANIAN AT FREEHOLD TOWNSHIP, L.L.C.
K. HOVNANIAN AT FRESNO, LLC
X. XXXXXXXXX AT GASLAMP SQUARE, L.L.C.
K. HOVNANIAN AT GILROY, LLC
X. XXXXXXXXX AT GREAT NOTCH, L.L.C.
K. HOVNANIAN AT XXXXXXX, LLC
X. XXXXXXXXX AT XXXXXXXXXX, L.L.C.
K. HOVNANIAN AT HACKETTSTOWN II, L.L.C.
K. HOVNANIAN AT HAMBURG CONTRACTORS, L.L.C.
K. HOVNANIAN AT HAMBURG, L.L.C.
2
X. XXXXXXXXX AT HAWTHORNE, L.L.C.
K. HOVNANIAN AT HAZLET, L.L.C.
K. HOVNANIAN AT HERSHEY’S MILL, INC.
X. XXXXXXXXX AT HIGHLAND SHORES, L.L.C.
K. HOVNANIAN AT HIGHLAND VINEYARDS, INC.
X. XXXXXXXXX AT HILLTOP, L.L.C.
K. HOVNANIAN AT HOWELL, L.L.C.
K. HOVNANIAN AT XXXXXX POINTE, L.L.C.
K. HOVNANIAN AT XXXXXXX I, L.L.C.
K. HOVNANIAN AT XXXXXXX, L.L.C.
K. HOVNANIAN AT XXXXXX RANCH, LLC
X. XXXXXXXXX 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 LA COSTA GREENS, L.L.C.
K. HOVNANIAN AT LA COSTA, LLC
X. XXXXXXXXX AT LA HABRA KNOLLS, LLC
X. XXXXXXXXX AT LA LAGUNA, L.L.C.
K. HOVNANIAN AT LA PAZ, LLC
X. XXXXXXXXX AT LA TERRAZA, INC.
X. XXXXXXXXX AT LAFAYETTE ESTATES, L.L.C.
K. HOVNANIAN AT LAKE RANCHO VIEJO, LLC
X. XXXXXXXXX AT LAKE TERRAPIN, L.L.C.
K. HOVNANIAN AT LANDMARK, LLC
X. XXXXXXXXX AT LARKSPUR, LLC
X. XXXXXXXXX AT XXXXXXXX V, L.L.C.
K. HOVNANIAN AT XXX SQUARE, L.L.C.
K. HOVNANIAN AT XXXXXXX, 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 LIVE OAK II, LLC
X. XXXXXXXXX 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 XXXXXXXX I, L.L.C.
K. HOVNANIAN AT LOWER MORELAND II, L.L.C.
K. HOVNANIAN AT LOWER XXXXXXXX III, L.L.C.
K. HOVNANIAN AT MACUNGIE, L.L.C.
K. HOVNANIAN AT MAHWAH VI, INC.
X. XXXXXXXXX AT XXXXX PARK, L.L.C.
K. HOVNANIAN AT MANALAPAN III, L.L.C.
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 MANTECA, LLC
X. XXXXXXXXX AT MAPLE AVENUE, L.L.C.
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.
3
X. XXXXXXXXX AT MATSU, L.L.C.
K. HOVNANIAN AT XXXXXXX XXXXXXX, LLC
X. XXXXXXXXX AT MENDHAM TOWNSHIP, L.L.C.
K. HOVNANIAN AT MENIFEE, LLC
X. XXXXXXXXX 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 MILLVILLE I, L.L.C.
K. HOVNANIAN AT MILLVILLE II, L.L.C.
K. HOVNANIAN AT XXXXXX XX, INC.
X. XXXXXXXXX AT XXXXXX XX, L.L.C.
K. HOVNANIAN AT MONROE NJ, L.L.C.
K. HOVNANIAN AT MONTVALE, LLC
X. XXXXXXXXX AT MONTVALE II, L.L.C.
K. HOVNANIAN AT MOSAIC, LLC
X. XXXXXXXXX AT MT. OLIVE TOWNSHIP, L.L.C.
K. HOVNANIAN AT MUIRFIELD, LLC
X. XXXXXXXXX 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 XXXXXXXX II, L.L.C.
K. HOVNANIAN AT NORTH XXXXXXXX III, L.L.C.
K. HOVNANIAN AT NORTH XXXXXXXX IV, L.L.C.
K. HOVNANIAN AT NORTH XXXXXXXX, 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.
X. XXXXXXXXX AT NORTHFIELD, L.L.C.
K. HOVNANIAN AT NORTHLAKE, INC.
X. XXXXXXXXX AT OCEAN TOWNSHIP, INC.
X. XXXXXXXXX AT OCEAN WALK, INC.
X. XXXXXXXXX AT OCEANPORT, L.L.C.
K. HOVNANIAN AT OLD BRIDGE, L.L.C.
K. HOVNANIAN AT OLDE ORCHARD, LLC
X. XXXXXXXXX AT PACIFIC BLUFFS, LLC
X. XXXXXXXXX AT PARAMUS, L.L.C.
K. HOVNANIAN AT PARK LANE, LLC
X. XXXXXXXXX AT PARKSIDE, LLC
X. XXXXXXXXX AT PARSIPPANY, L.L.C.
K. HOVNANIAN AT PARSIPPANY-XXXX HILLS, L.L.C.
K. HOVNANIAN AT PERKIOMEN II, INC.
X. XXXXXXXXX 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 XXXXXX XXXXXX, 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 POSITANO, LLC
4
X. XXXXXXXXX AT XXXXX, L.L.C.
K. HOVNANIAN AT RANCHO 79, LLC
X. XXXXXXXXX AT RANCHO CRISTIANITOS, INC.
X. XXXXXXXXX AT RANCHO SANTA XXXXXXXXX, LLC
X. XXXXXXXXX AT XXXXXXXX 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 RIDGEMONT, L.L.C.
K. HOVNANIAN AT RIVERBEND, LLC
X. XXXXXXXXX AT RIVERCREST, LLC
X. XXXXXXXXX AT RODERUCK, L.L.C.
K. HOVNANIAN AT XXXXXXXX LANTANA, L.L.C.
K. HOVNANIAN AT XXXXXXX HEIGHTS, LLC
X. XXXXXXXXX AT SAGE, L.L.C.
K. HOVNANIAN AT SAN SEVAINE, INC.
X. XXXXXXXXX AT SANTA FE SPRINGS, LLC
X. XXXXXXXXX AT SANTA NELLA, LLC
X. XXXXXXXXX AT SARATOGA, INC.
X. XXXXXXXXX AT SAWMILL, INC.
X. XXXXXXXXX AT SAYREVILLE, L.L.C.
K. HOVNANIAN AT XXXXXXX XXXXX, LLC
X. XXXXXXXXX AT SHREWSBURY, LLC
X. XXXXXXXXX AT SCOTCH PLAINS, L.L.C.
K. HOVNANIAN AT SIERRA ESTATES, LLC
X. XXXXXXXXX AT SILVER SPRING, L.L.C.
K. HOVNANIAN AT SKYE ISLE, LLC
X. XXXXXXXXX AT SMITHVILLE III, L.L.C.
K. HOVNANIAN AT SMITHVILLE, INC
X. XXXXXXXXX AT XXXXXX POINT, L.L.C.
K. HOVNANIAN AT SOUTH BRUNSWICK, L.L.C.
K. HOVNANIAN AT SOUTH BRUNSWICK II, L.L.C.
K. HOVNANIAN AT SPARTA, L.L.C.
K. HOVNANIAN AT SPRINGCO, L.L.C.
K. HOVNANIAN AT XXXXXXX, LLC
X. XXXXXXXXX AT STATION SQUARE, L.L.C.
K. HOVNANIAN AT STONE CANYON, INC.
X. XXXXXXXXX AT SUNRIDGE PARK, LLC
X. XXXXXXXXX AT SUNSETS, LLC
X. XXXXXXXXX AT SYCAMORE, INC.
X. XXXXXXXXX AT TEANECK, L.L.C.
K. HOVNANIAN AT THE CLIFFS, LLC
X. XXXXXXXXX AT THE XXXXXX, LLC
X. XXXXXXXXX AT THE GABLES, LLC
X. XXXXXXXXX AT THE MONARCH, L.L.C.
K. HOVNANIAN AT THE PRESERVE, LLC
X. XXXXXXXXX AT XXXXXXXX RANCH, LLC
X. XXXXXXXXX AT THORNBURY, INC.
X. XXXXXXXXX AT TRAIL RIDGE, LLC
X. XXXXXXXXX AT TRENTON, L.L.C.
K. HOVNANIAN AT TROVATA, INC.
X. XXXXXXXXX AT UNION TOWNSHIP I, INC.
X. XXXXXXXXX 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.
5
X. XXXXXXXXX AT UPPER UWCHLAN II, L.L.C.
K. HOVNANIAN AT UPPER UWCHLAN, L.L.C.
K. HOVNANIAN AT VAIL RANCH, INC.
X. XXXXXXXXX AT XXXXX DEL SOL, LLC
X. XXXXXXXXX AT VERONA URBAN RENEWAL, L.L.C.
K. HOVNANIAN AT VICTORVILLE, L.L.C.
K. HOVNANIAN AT VINELAND, L.L.C.
K. HOVNANIAN AT VISTA DEL SOL, L.L.C.
K. HOVNANIAN AT WANAQUE, L.L.C.
K. HOVNANIAN AT XXXXXX TOWNSHIP, L.L.C.
K. HOVNANIAN AT WASHINGTON, L.L.C.
K. HOVNANIAN AT WATERSTONE, LLC
X. XXXXXXXXX AT XXXXX IX, L.L.C.
K. HOVNANIAN AT XXXXX, VIII, L.L.C.
K. HOVNANIAN AT WEST BRADFORD, L.L.C.
K. HOVNANIAN AT WEST VIEW ESTATES, L.L.C.
K. HOVNANIAN AT WEST WINDSOR, L.L.C.
K. HOVNANIAN AT WESTSHORE, LLC
X. XXXXXXXXX AT XXXXXXX RANCH, LLC
X. XXXXXXXXX AT WILDROSE, INC.
X. XXXXXXXXX AT WILDWOOD BAYSIDE, L.L.C.
K. HOVNANIAN AT WILLOW BROOK, L.L.C.
K. HOVNANIAN AT WINCHESTER, LLC
X. XXXXXXXXX AT WOODCREEK WEST, LLC
X. XXXXXXXXX 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 CLASSICS CIP, L.L.C.
K. HOVNANIAN CLASSICS, L.L.C.
K. HOVNANIAN COMMUNITIES, INC.
X. XXXXXXXXX COMPANIES METRO D.C. NORTH, L.L.C.
K. HOVNANIAN COMPANIES NORTHEAST, INC.
X. XXXXXXXXX COMPANIES OF CALIFORNIA, INC.
X. XXXXXXXXX COMPANIES OF MARYLAND, INC.
X. XXXXXXXXX COMPANIES OF NEW YORK, INC.
X. XXXXXXXXX COMPANIES OF PENNSYLVANIA, INC.
X. XXXXXXXXX COMPANIES OF SOUTHERN CALIFORNIA, INC.
X. XXXXXXXXX COMPANIES OF VIRGINIA, INC.
X. XXXXXXXXX COMPANIES, LLC
X. XXXXXXXXX CONNECTICUT ACQUISITIONS, L.L.C.
K. HOVNANIAN CONSTRUCTION II, INC
X. XXXXXXXXX CONSTRUCTION III, INC
X. XXXXXXXXX CONSTRUCTION MANAGEMENT, INC.
X. XXXXXXXXX CRAFTBUILT HOMES OF SOUTH CAROLINA, L.L.C.
K. HOVNANIAN DELAWARE ACQUISITIONS, L.L.C.
K. HOVNANIAN DEVELOPMENTS OF ARIZONA, INC.
X. XXXXXXXXX DEVELOPMENTS OF CALIFORNIA, INC.
X. XXXXXXXXX DEVELOPMENTS OF CONNECTICUT, INC.
X. XXXXXXXXX DEVELOPMENTS OF D.C., INC.
X. XXXXXXXXX DEVELOPMENTS OF DELAWARE, INC.
X. XXXXXXXXX DEVELOPMENTS OF GEORGIA, INC.
X. XXXXXXXXX DEVELOPMENTS OF ILLINOIS, INC.
X. XXXXXXXXX DEVELOPMENTS OF INDIANA, INC.
X. XXXXXXXXX DEVELOPMENTS OF KENTUCKY, INC.
6
X. XXXXXXXXX DEVELOPMENTS OF MARYLAND, INC.
X. XXXXXXXXX DEVELOPMENTS OF MICHIGAN, INC.
X. XXXXXXXXX DEVELOPMENTS OF MINNESOTA, INC.
X. XXXXXXXXX DEVELOPMENTS OF NEW JERSEY II, INC.
X. XXXXXXXXX DEVELOPMENTS OF NEW JERSEY, INC.
X. XXXXXXXXX DEVELOPMENTS OF NEW YORK, INC.
X. XXXXXXXXX DEVELOPMENTS OF NORTH CAROLINA, INC.
X. XXXXXXXXX DEVELOPMENTS OF OHIO, INC.
X. XXXXXXXXX DEVELOPMENTS OF PENNSYLVANIA, INC.
X. XXXXXXXXX DEVELOPMENTS OF SOUTH CAROLINA, INC.
X. XXXXXXXXX DEVELOPMENTS OF TEXAS, INC.
X. XXXXXXXXX DEVELOPMENTS OF VIRGINIA, INC.
X. XXXXXXXXX DEVELOPMENTS OF WEST VIRGINIA, INC.
X. XXXXXXXXX EASTERN PENNSYLVANIA, L.L.C.
K. HOVNANIAN FIRST HOMES, L.L.C.
K. HOVNANIAN FLORIDA REALTY, L.L.C.
K. HOVNANIAN FOUR SEASONS @ HISTORIC VIRGINIA, LLC
X. XXXXXXXXX FOUR SEASONS AT GOLD HILL, LLC
X. XXXXXXXXX GREAT WESTERN BUILDING COMPANY, LLC
X. XXXXXXXXX GREAT WESTERN HOMES, LLC
X. XXXXXXXXX HAMPTONS AT OAK CREEK II, L.L.C.
K. HOVNANIAN HOLDINGS NJ, L.L.C.
K. HOVNANIAN HOMES — DFW, L.L.C.
K. HOVNANIAN HOMES AT CAMERON STATION, LLC
X. XXXXXXXXX HOMES AT CAMP SPRINGS, 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 XXXXX STATION 1, L.L.C.
K. HOVNANIAN HOMES AT XXXXX STATION 2, L.L.C.
K. HOVNANIAN HOMES AT XXXXXXX PLACE, L.L.C.
K. HOVNANIAN HOMES AT XXXXX STREET, L.L.C.
K. HOVNANIAN HOMES AT RENAISSANCE PLAZA, L.L.C.
K. HOVNANIAN HOMES AT XXXXXXX, L.L.C.
K. HOVNANIAN HOMES AT THE HIGHLANDS, LLC
X. XXXXXXXXX HOMES NORTHERN CALIFORNIA, INC.
X. XXXXXXXXX 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.
X. XXXXXXXXX HOMES OF PENNSYLVANIA, L.L.C.
K. HOVNANIAN HOMES OF SOUTH CAROLINA, LLC
X. XXXXXXXXX HOMES OF VIRGINIA, INC.
X. XXXXXXXXX HOMES OF WEST VIRGINIA, L.L.C.
K. HOVNANIAN LIBERTY ON BLUFF CREEK, LLC
X. XXXXXXXXX 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.
7
X. XXXXXXXXX OSTER HOMES, L.L.C.
K. HOVNANIAN PA REAL ESTATE, INC.
X. XXXXXXXXX PENNSYLVANIA ACQUISITIONS, L.L.C.
K. HOVNANIAN PORT IMPERIAL URBAN RENEWAL, INC.
X. XXXXXXXXX PROPERTIES OF RED BANK, INC.
X. XXXXXXXXX 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 INVESTMENT, L.L.C.
K. HOVNANIAN T&C MANAGEMENT CO., L.L.C.
K. HOVNANIAN TIMBRES AT ELM CREEK, LLC
X. XXXXXXXXX VENTURE I, L.L.C.
K. HOVNANIAN WINDWARD HOMES, LLC
X. XXXXXXXXX’X FOUR SEASONS AT ASHBURN VILLAGE, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT XXXXXX’X XXXXX, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT BAKERSFIELD, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT BEAUMONT, LLC
X. XXXXXXXXX’X 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 HEMET, LLC
X. XXXXXXXXX’X 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 LOS BANOS, LLC
X. XXXXXXXXX’X FOUR SEASONS AT XXXXXX VALLEY, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT NEW KENT VINEYARDS, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT PALM SPRINGS, LLC
X. XXXXXXXXX’X FOUR SEASONS AT RENAISSANCE, L.L.C.
K. HOVNANIAN’S FOUR SEASONS AT RUSH CREEK II, LLC
X. XXXXXXXXX’X 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
X. XXXXXXXXX’X PARKSIDE AT TOWNGATE, L.L.C.
K. HOVNANIAN’S PRIVATE HOME PORTFOLIO, L.L.C.
KHIP, L.L.C.
LANDARAMA, INC.
M&M AT CHESTERFIELD, LLC
M&M AT CRESCENT COURT, L.L.C.
M&M AT WEST ORANGE, L.L.C.
M&M AT WHEATENA URBAN RENEWAL, L.L.C.
MATZEL & MUMFORD AT EGG HARBOR, 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.
8
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.
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
PINE AYR, LLC
RIDGEMORE UTILITY, L.L.C.
SEABROOK ACCUMULATION CORPORATION
STONEBROOK HOMES, INC.
TERRAPIN REALTY, L.L.C.
THE HIGHLANDS CONDOMINIUMS AT METROSQUARE, 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.
9
SCHEDULE B
| Principal | ||||
| Amount of | ||||
| Underwriter | Securities | |||
Credit Suisse Securities (USA) LLC |
$ | 12,000,000 | ||
Total |
$ | 12,000,000 | ||
