Attached files
file | filename |
---|---|
8-K - FORM 8-K - HOVNANIAN ENTERPRISES INC | y89643e8vk.htm |
EX-5.4 - EX-5.4 - HOVNANIAN ENTERPRISES INC | y89643exv5w4.htm |
EX-4.29 - EX-4.29 - HOVNANIAN ENTERPRISES INC | y89643exv4w29.htm |
EX-4.24 - EX-4.24 - HOVNANIAN ENTERPRISES INC | y89643exv4w24.htm |
EX-4.27 - EX-4.27 - HOVNANIAN ENTERPRISES INC | y89643exv4w27.htm |
EX-99.1 - EX-99.1 - HOVNANIAN ENTERPRISES INC | y89643exv99w1.htm |
Exhibit 5.3
[Simpson Thacher & Bartlett Letterhead]
February 14, 2011
Hovnanian Enterprises, Inc.
110 West Front Street
P.O. Box 500
Red Bank, New Jersey 07701
110 West Front Street
P.O. Box 500
Red Bank, New Jersey 07701
K. Hovnanian Enterprises, Inc.
110 West Front Street
P.O. Box 500
Red Bank, New Jersey 07701
110 West Front Street
P.O. Box 500
Red Bank, New Jersey 07701
Ladies and Gentlemen:
We have acted as counsel to Hovnanian Enterprises, Inc., a Delaware corporation (Hovnanian),
and to K. Hovnanian Enterprises, Inc., a California corporation and a wholly-owned subsidiary of
Hovnanian (K. Hovnanian), and to certain other subsidiaries of Hovnanian (the Subsidiary
Registrants) in connection with the Registration Statement on Form S-3 (File No. 333-171349) (the
Registration Statement) filed by Hovnanian, K. Hovnanian and the Subsidiary Registrants with the
Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended
(the Securities Act), and the issuance thereunder (i) by Hovnanian of 13,512,500 shares (the
Shares) of Class A Common Stock, par value $.01 per share (the Common Stock), including
1,762,500 Shares issued by Hovnanian pursuant to the over-allotment option granted to the
underwriters, pursuant to the Underwriting Agreement dated as of February 3, 2011, among Hovnanian
and the underwriters named therein (the Common Stock Underwriting Agreement), (ii) by K. Hovnanian
of $155,000,000 aggregate principal amount of 117/8% Senior Notes due 2015 (the Senior Notes),
unconditionally guaranteed (each a Senior Note Guarantee, and collectively, the Senior Note
Guarantees) on a senior basis by Hovnanian and the Subsidiary Registrants (together, in such
capacity, the
Senior Notes Guarantors), pursuant to the Underwriting Agreement dated February 3, 2011,
among K. Hovnanian, the Senior Notes Guarantors and the underwriters named therein (the Senior
Notes Underwriting Agreement), and (iii) by Hovnanian and K. Hovnanian of 3,450,000 7.25% Tangible
Equity Units (the Units), including 450,000 Units issued by Hovnanian and K. Hovnanian pursuant
to the over-allotment option granted to the underwriters, pursuant to the Underwriting Agreement
dated as of February 3, 2011, among K. Hovnanian, the Amortizing Notes Guarantors (as defined
below) and the underwriters named therein (the Units Underwriting Agreement). Each Unit initially
consists of (i) a prepaid stock purchase contract (each a Purchase Contract, and collectively,
the Purchase Contracts) issued by Hovnanian which shall be settled by Hovnanian against delivery
of a number shares of Common Stock to be determined pursuant to the Purchase Contract Agreement (as
defined below) and (ii) a senior subordinated amortizing note (each an Amortizing Note, and
collectively, the Amortizing Notes) issued by K. Hovnanian and unconditionally guaranteed (each
an Amortizing Note Guarantee, and collectively, the Amortizing Note Guarantees) on a senior
subordinated basis by Hovnanian and the Subsidiary Registrants (together, in such capacity, the
Amortizing Notes Guarantors), which has an initial principal amount of $4.526049 per Amortizing
Note, bears interest at a rate of 12.072% per annum and has a final installment payment date of
February 15, 2014.
We have examined the Registration Statement as it became effective under the Securities Act;
Hovnanians and K. Hovnanians prospectus dated January 28, 2011 (the Base Prospectus), as
supplemented by the prospectus supplement relating to the offering of the Shares, dated February 3,
2011 (together with the Base Prospectus, the Common Stock Prospectus), filed by Hovnanian
pursuant to Rule 424(b) of the rules and regulations of the Commission under the Securities Act;
Hovnanians and K. Hovnanians prospectus supplement
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relating to the offering of the Senior Notes, dated February 3, 2011 (together with the Base
Prospectus, the Senior Notes Prospectus), filed by Hovnanian and K. Hovnanian pursuant to Rule
424(b) of the rules and regulations of the Commission under the Securities Act; Hovnanians and K.
Hovnanians prospectus supplement relating to the offering of the Units, dated February 3, 2011
(together with the Base Prospectus, the Units Prospectus and, together with the Common Stock
Prospectus and the Senior Notes Prospectus, the Prospectuses), filed by Hovnanian and K.
Hovnanian pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Securities Act; the Indenture dated as of February 14, 2011 (the Senior Notes Base Indenture),
among K. Hovnanian, Hovnanian, as Guarantor, and Wilmington Trust Company, as trustee (the Senior
Notes Trustee), as supplemented by the First Supplemental Indenture dated as of February 14, 2011,
among K. Hovnanian, the Senior Notes Guarantors and the Senior Notes Trustee (the Senior Notes
Supplemental Indenture and, together with the Senior Notes Base Indenture, the Senior Notes
Indenture); a duplicate of the global note representing the Senior Notes; a duplicate of the
Senior Notes Guarantees annexed to the Senior Notes; the Purchase Contract Agreement, dated as of
February 9, 2011 (the Purchase Contract Agreement), by and among Hovnanian, K. Hovnanian,
Wilmington Trust Company, as purchase contract agent (the Purchase Contract Agent), Wilmington
Trust Company, as Amortizing Notes Trustee (as defined below), and Wilmington Trust Company, as
attorney-in-fact for the holders of the Purchase Contracts from time to time; duplicates of the
global certificates representing the Units; duplicates of the registered certificates representing
the Purchase Contracts initially annexed to the Units; the Indenture, dated as of February 9, 2011
(the Amortizing Notes Base Indenture), by and among K. Hovnanian, Hovnanian, as guarantor, and
Wilmington Trust Company, as trustee (the Amortizing Notes Trustee), as supplemented by the First
Supplemental Indenture, dated as of February 9, 2011 (the
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Amortizing Notes Supplemental Indenture and, together with the Amortizing Notes Base
Indenture, the Amortizing Notes Indenture), by and among K. Hovnanian, the Amortizing Notes
Guarantors, and the Amortizing Notes Trustee; duplicates of the registered certificates
representing the Amortizing Notes and the Amortizing Notes Guarantees initially annexed thereto
annexed to the Units; a copy of a specimen certificate representing the Common Stock; the Common
Stock Underwriting Agreement; the Senior Notes Underwriting Agreement; and the Units Underwriting
Agreement. We also have examined the originals, or duplicates or certified or conformed copies, of
such corporate and other records, agreements, documents and other instruments and have made such
other investigations as we have deemed relevant and necessary in connection with the opinions
hereinafter set forth. As to questions of fact material to this opinion, we have relied upon
certificates or comparable documents or statements of public officials and of officers and
representatives of Hovnanian and K. Hovnanian.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us as duplicates or
certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations
stated herein, we are of the opinion that:
1. | The Shares issued and sold by Hovnanian pursuant to the Common Stock Underwriting Agreement have been duly authorized by Hovnanian and are validly issued, fully paid and nonassessable. | ||
2. | Assuming the Senior Notes have been duly authorized, executed and issued by K. Hovnanian and, assuming due authentication thereof by the Senior Notes Trustee, the Senior Notes constitute valid and legally binding obligations of K. Hovnanian enforceable against K. Hovnanian in accordance with their terms. | ||
3. | Assuming the Senior Notes Guarantees have been duly authorized, executed and issued by the Senior Notes Guarantors (other than Hovnanian), and assuming due authentication of the Senior Notes by the Senior Notes Trustee, the Senior Notes |
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Guarantees constitute valid and legally binding obligations of the Senior Notes Guarantors enforceable against the Senior Notes Guarantors in accordance with their terms. | |||
4. | Assuming that the Units have been duly authorized, executed and issued by K. Hovnanian, and assuming further (a) the due authentication thereof by the Purchase Contract Agent and the Amortizing Notes Trustee and (b) the due execution of the Purchase Contract Agreement by the Purchase Contract Agent, the Amortizing Notes Trustee and Wilmington Trust Company, as attorney-in-fact for the holders of the Purchase Contracts from time to time, the Units constitute valid and legally binding obligations of Hovnanian and K. Hovnanian, enforceable against Hovnanian and K. Hovnanian in accordance with their terms. | ||
5. | Assuming that the Amortizing Notes have been duly authorized, executed and issued by K. Hovnanian, and assuming due authentication thereof by the Amortizing Notes Trustee, the Amortizing Notes constitute valid and legally binding obligations of K. Hovnanian enforceable against K. Hovnanian in accordance with their terms. | ||
6. | Assuming the Amortizing Notes Guarantees have been duly authorized, executed and issued by the Amortizing Notes Guarantors (other than Hovnanian), and assuming due authentication of the Amortizing Notes by the Amortizing Notes Trustee, the Amortizing Notes Guarantees constitute valid and legally binding obligations of the Amortizing Notes Guarantors enforceable against the Amortizing Notes Guarantors in accordance with their terms. | ||
7. | Assuming (a) the due authentication of the Purchase Contracts by the Purchase Contract Agent and the due execution thereof by Wilmington Trust Company, as attorney-in-fact for the holders of the Purchase Contracts from time to time, and (b) the due execution of the Purchase Contract Agreement by the Purchase Contract Agent, the Amortizing Notes Trustee and Wilmington Trust Company, as attorney-in-fact for the holders of the Purchase Contracts from time to time, the Purchase Contracts constitute valid and legally binding obligations of Hovnanian, enforceable against Hovnanian in accordance with their terms and entitled to the benefits of the Purchase Contract Agreement. |
Our opinions set forth in paragraphs 2, 3, 4, 5, 6 and 7 above are subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and
fair dealing.
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For purposes of our opinions set forth in paragraph 4 and 7 above, we assume that the increase
in the Settlement Rate (as defined in the Purchase Contract Agreement) upon the occurrence of a
Fundamental Change (as defined in the Purchase Contract Agreement) pursuant to the provisions of
the Purchase Contract Agreement and any related provisions of the Units or Purchase Contracts
represents reasonable compensation of the lost option value of the Units as a result of the
Fundamental Change.
We do not express any opinion herein concerning any law other than the law of the State of New
York, the federal Law of the United States and the Delaware General Corporation Law (including the
statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial
decisions interpreting the foregoing).
We hereby consent to the filing of this opinion letter as Exhibit 5.3 to the Current Report on
Form 8-K of Hovnanian filed with the Commission in connection with the offer and sale of the
Shares, the Senior Notes and the Units and to the use of our name under the caption Legal Matters in the Prospectuses.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
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