Exhibit 5.1
Xxxxxxx Xxxxxxx & Xxxxxxxx
A PARTNERSHIP WHICH INCLUDES PROFESSIONAL CORPORATIONS
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X, 00000-0000
(000) 000-0000
_____
Direct Dial Number Facsimile: (000) 000-0000 E-mail Address
Telex: 129158
June 24, 1998
Hovnanian Enterprises, Inc.
00 Xxxxxxx 00
P.O. Box 500
Red Bank, New Jersey 07701
X. Xxxxxxxxx Enterprises, Inc.
00 Xxxxxxx 00
X.X. Xxx 000
Xxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), filed jointly by Hovnanian Enterprises,
Inc., a Delaware corporation ("Hovnanian"), and X. Xxxxxxxxx Enterprises,
Inc., a wholly owned subsidiary of Hovnanian and a New Jersey corporation
("X. Xxxxxxxxx"), which Registration Statement constitutes Amendment No. 1 to
Registration Statement No. 333-51991, which relates to (i) preferred stock of
Hovnanian, par value $.01 per share ("Preferred Stock"), common stock of
Hovnanian, par value $.01 per share ("Common Stock"), unsecured debt
securities of Hovnanian consisting of notes, debentures or other evidences of
indebtedness ("Hovnanian Debt Securities"), which may be senior, senior
subordinated or subordinated, and warrants to purchase Preferred Stock,
Common Stock or Hovnanian Debt Securities ("Hovnanian Warrants") and (ii)
unsecured debt securities of X. Xxxxxxxxx consisting of notes, debentures or
other evidences of indebtedness ("X. Xxxxxxxxx Debt Securities," and together
with the Hovnanian Debt Securities, the "Debt Securities"), which may be
senior, senior subordinated or subordinated and which will be fully and
unconditionally guaranteed by Hovnanian (the "Debt Guarantee"), and warrants,
which will be fully and unconditionally guaranteed by Hovnanian (the "Warrant
Guarantee") to purchase X. Xxxxxxxxx Debt Securities ("X. Xxxxxxxxx
Warrants," and together with the Hovnanian Warrants, the "Warrants"), to be
issued and sold by Hovnanian and/or X. Xxxxxxxxx from time to time pursuant
to Rule 415 under the Act for an aggregate initial offering price not to
exceed $300,000,000 together with any additional such securities that may be
sold pursuant to a Registration Statement filed under Rule 462 of the Act.
We have examined (i) the Registration Statement, (ii) the form
of Senior Indenture to be executed by Hovnanian and such trustee as shall be
named therein (the "Hovnanian Senior Debt Indenture"), (iii) the form of
Senior Subordinated Indenture to be executed by Hovnanian and such trustee as
shall be named therein (the "Hovnanian Senior Subordinated Debt Indenture"),
(iv) the form of Subordinated Indenture to be executed by Hovnanian and such
trustee as shall be named therein (the "Hovnanian Subordinated Debt
Indenture," and together with the Hovnanian Senior Debt Indenture and the
Hovnanian Senior Subordinated Debt Indenture, the "Hovnanian Indentures"),
(v) the form of Warrant Agreement relating to the purchase of Preferred Stock
or Common Stock and the form of Warrant Agreement relating to the purchase of
Hovnanian Debt Securities to be executed by Hovnanian and such warrant agent
as shall be named therein (the "Hovnanian Warrant Agreements"), (vi) the form
of Senior Indenture to be executed by X. Xxxxxxxxx, Hovnanian, as guarantor,
and such trustee as shall be named therein (the "X. Xxxxxxxxx Senior Debt
Indenture"), (vii) the form of Senior Subordinated Indenture to be executed
by X. Xxxxxxxxx, Hovnanian, as guarantor, and such trustee as shall be named
therein (the "X. Xxxxxxxxx Senior Subordinated Debt Indenture"), (viii) the
form of Subordinated Indenture to be executed by X. Xxxxxxxxx, Hovnanian, as
guarantor, and such trustee as shall be named therein (the "X. Xxxxxxxxx
Subordinated Debt Indenture," and together with the X. Xxxxxxxxx Senior Debt
Indenture and the X. Xxxxxxxxx Senior Subordinated Debt Indenture, the "X.
Xxxxxxxxx Indentures;" the X. Xxxxxxxxx Indentures together with the
Hovnanian Indentures are the "Indentures") and (ix) the form of Warrant
Agreement to be executed by X. Xxxxxxxxx, Hovnanian, as guarantor, and such
warrant agent as shall be named therein (the "X. Xxxxxxxxx Warrant
Agreement," and together with the Hovnanian Warrant Agreements, the "Warrant
Agreements"). In addition, we have examined, and have relied as to matters
of fact upon originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials
and of officers and representatives of Hovnanian and X. Xxxxxxxxx, and have
made such other and further investigations as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
We have also assumed that (i) the Registration Statement, and
any amendments thereto (including post-effective amendments) and any
additional Registration Statement filed under Rule 462, will have become
effective under the Act, (ii) a prospectus supplement (a "Prospectus
Supplement") will have been prepared and filed with the Commission describing
the Preferred Stock, Common Stock, Debt Securities and/or Warrants offered
thereby, (iii) all Preferred Stock, Common Stock, Debt Securities and
Warrants issued will be issued and sold in compliance with applicable federal
and state securities laws and solely in the manner stated in the Registration
Statement and the appropriate Prospectus Supplement and (iv) a definitive
purchase, underwriting or similar agreement with respect to any Preferred
Stock, Common Stock, Debt Securities and/or Warrants offered will have been
duly authorized and validly executed and delivered by Hovnanian, X. Xxxxxxxxx
and the other parties thereto.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to Preferred Stock, when (i) the
shares of Preferred Stock to be issued have been duly authorized by
the shareholders of Hovnanian, (ii) the Board of Directors of
Hovnanian (the "Hovnanian Board") has taken all necessary corporate
action to approve the issuance and terms of such Preferred Stock, the
terms of the offering thereof and related matters and (iii) such
shares of Preferred Stock have been issued and delivered in accordance
with the provisions of the applicable definitive purchase,
underwriting or similar agreement approved by the Hovnanian Board,
upon payment of the consideration therefor provided for therein, such
shares of Preferred Stock will be legally issued, fully paid and
nonassessable.
2. With respect to Common Stock, when (i) the shares
of Common Stock to be issued have been duly authorized by the
shareholders of Hovnanian, (ii) the Hovnanian Board has taken all
necessary corporate action to approve the issuance and terms of such
Common Stock, the terms of the offering thereof and related matters
and (iii) such shares of Common Stock have been issued and delivered
in accordance with the provisions of the applicable definitive
purchase, underwriting or similar agreement approved by the Hovnanian
Board, upon payment of the consideration therefor provided for
therein, such shares of Common Stock will be legally issued, fully
paid and nonassessable.
3. With respect to Debt Securities to be issued
under the Senior Debt Indentures, when (i) the Senior Debt Indentures
have been duly authorized and validly executed and delivered by
Hovnanian and/or X. Xxxxxxxxx to the trustee, (ii) the Senior Debt
Indentures have been duly authorized, executed and delivered by the
Trustee, (iii) the Senior Debt Indentures have been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), (iv) the Hovnanian Board and/or the Board of
Directors of X. Xxxxxxxxx (the "X. Xxxxxxxxx Board") have taken all
necessary corporate action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related matters
and (v) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Senior
Debt Indentures and the applicable definitive purchase, underwriting
or similar agreement approved by the Hovnanian Board and/or the X.
Xxxxxxxxx Board, upon payment of the consideration therefor provided
for therein, such Debt Securities will be legally issued by Hovnanian
and/or X. Xxxxxxxxx and will constitute valid and legally binding
obligations of Hovnanian and/or X. Xxxxxxxxx, enforceable against
Hovnanian and/or X. Xxxxxxxxx in accordance with their terms.
4. With respect to Debt Securities to be issued
under the Senior Subordinated Debt Indentures, when (i) the Senior
Subordinated Debt Indentures have been duly authorized and validly
executed and delivered by Hovnanian and/or X. Xxxxxxxxx to the
trustee, (ii) the Senior Subordinated Debt Indentures have been duly
authorized, executed and delivered by the Trustee, (iii) the Senior
Subordinated Debt Indentures have been duly qualified under the Trust
Indenture Act, (iv) the Hovnanian Board and/or the X. Xxxxxxxxx Board
have taken all necessary corporate action to approve the issuance and
terms of such Debt Securities, the terms of the offering thereof and
related matters and (v) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the provisions
of the Senior Subordinated Debt Indentures and the applicable
definitive purchase, underwriting or similar agreement approved by the
Hovnanian Board and/or the X. Xxxxxxxxx Board, upon payment of the
consideration therefor provided for therein, such Debt Securities will
be legally issued by Hovnanian and/or X. Xxxxxxxxx and will constitute
valid and legally binding obligations of Hovnanian and/or X.
Xxxxxxxxx, enforceable against Hovnanian and/or X. Xxxxxxxxx in
accordance with their terms.
5. With respect to Debt Securities to be issued
under the Subordinated Debt Indentures, when (i) the Subordinated Debt
Indentures have been duly authorized and validly executed and
delivered by Hovnanian and/or X. Xxxxxxxxx to the trustee, (ii) the
Subordinated Debt Indentures have been duly authorized, executed and
delivered by the Trustee, (iii) the Subordinated Debt Indentures have
been duly qualified under the Trust Indenture Act, (iv) the Hovnanian
Board and/or the X. Xxxxxxxxx Board have taken all necessary corporate
action to approve the issuance and terms of such Debt Securities, the
terms of the offering thereof and related matters and (v) such Debt
Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Subordinated Debt
Indentures and the applicable definitive purchase, underwriting or
similar agreement approved by the Hovnanian Board and/or the X.
Xxxxxxxxx Board, upon payment of the consideration therefor provided
for therein, such Debt Securities will constitute valid and legally
binding obligations of Hovnanian and/or X. Xxxxxxxxx, enforceable
against Hovnanian and/or X. Xxxxxxxxx in accordance with their terms.
6. With respect to the Warrants, when (i) the
Hovnanian Board and/or the X. Xxxxxxxxx Board have taken all necessary
corporate action to approve the creation of and issuance and terms of
the Warrants, the terms of the offering thereof and related matters,
(ii) the Warrant Agreements have been duly authorized and validly
executed and delivered by Hovnanian and/or X. Xxxxxxxxx and the
warrant agent appointed by Hovnanian and/or X. Xxxxxxxxx and (iii) the
Warrants or certificates representing the Warrants have been duly
executed, countersigned, registered and delivered in accordance with
the Warrant Agreements and the applicable definitive purchase,
underwriting or similar agreement approved by the Hovnanian Board
and/or the X. Xxxxxxxxx Board, upon payment of the consideration
therefor provided for therein, the Warrants will be duly authorized
and validly issued by Hovnanian and/or X. Xxxxxxxxx and will
constitute valid and legally binding obligations of Hovnanian and/or
X. Xxxxxxxxx, enforceable against Hovnanian and/or X. Xxxxxxxxx in
accordance with their terms.
7. With respect to the Debt Guarantee to be made
under the X. Xxxxxxxxx Indentures, when (i) the Hovnanian Board has
taken all necessary corporate action to approve the Debt Guarantee,
(ii) the X. Xxxxxxxxx Indentures have been duly authorized and validly
executed and delivered by X. Xxxxxxxxx to the trustee, (iii) the X.
Xxxxxxxxx Indentures have been duly qualified under the Trust
Indenture Act, (iv) the Debt Guarantee on the X. Xxxxxxxxx Debt
Securities has been endorsed and (v) such X. Xxxxxxxxx Debt Securities
have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the X. Xxxxxxxxx Indentures and the
applicable definitive purchase, underwriting or similar agreement
approved by the Hovnanian Board and the X. Xxxxxxxxx Board, upon
payment of the consideration therefor provided for therein, the Debt
Guarantee will constitute a valid and legally binding obligation of
Hovnanian, enforceable against Hovnanian in accordance with its terms.
8. With respect to the Warrant Guarantee to be made
under the X. Xxxxxxxxx Warrant Agreement, when (i) the Hovnanian Board
has taken all necessary corporate action to approve the Warrant
Guarantee, (ii) the X. Xxxxxxxxx Warrant Agreement has been duly
authorized and validly executed and delivered by X. Xxxxxxxxx and the
warrant agent appointed by X. Xxxxxxxxx and (iii) the X. Xxxxxxxxx
Warrants or certificates representing the X. Xxxxxxxxx Warrants have
been duly executed, countersigned, registered and delivered in
accordance with the Warrant Agreements and the applicable definitive
purchase, underwriting or similar agreement approved by the Hovnanian
Board and the X. Xxxxxxxxx Board, upon payment of the consideration
therefor provided for therein, the Warrant Guarantee will constitute a
valid and legally binding obligation of Hovnanian, enforceable against
Hovnanian in accordance with its terms.
Insofar as the opinions expressed herein relate to or are
dependent upon matters governed by the laws of the State of New Jersey, we
have relied upon the opinion of Xxxxx X. Xxxxxxxx, Esq., Senior Vice
President and General Counsel for Hovnanian.
Our opinions set forth in paragraphs 3, 4, 5, 6, 7 and 8 above
are subject to 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.
We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the law of the
State of New York, the Delaware General Corporation Law and, to the extent
set forth herein, the laws of the State of New Jersey.
We hereby consent to the filing of this opinion of counsel as
Exhibit 5.1 to the Registration Statement and to the use of our name under
the caption "Legal Matters" in the Prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ Xxxxxxx Xxxxxxx & Xxxxxxxx
XXXXXXX XXXXXXX & XXXXXXXX
