Exhibit 4.10
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HOVNANIAN ENTERPRISES, INC.
and
[WARRANT AGENT]
As Warrant Agent
______________
Warrant Agreement -- Debt Securities
Dated as of ____________________
______________
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TABLE OF CONTENTS
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES. . . . . . . . . 5
SECTION 1.1. Issuance of Warrants. . . . . . . . . . . . . . . 5
SECTION 1.2. Execution and Delivery of Warrant Certificates. . 5
SECTION 1.3. Issuance of Warrant Certificates. . . . . . . . . 6
SECTION 1.4. Temporary Warrant Certificate . . . . . . . . . . 6
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS. . . . . . . . . . . . 7
SECTION 2.1. Warrant Price . . . . . . . . . . . . . . . . . . 7
SECTION 2.2. Duration of Warrants . . . . . . . . . . . . . . 7
SECTION 2.3. Exercise of Warrants . . . . . . . . . . . . . . 7
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES . . . . . . . . 8
SECTION 3.1. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates . . . . . . . 8
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. . . . . . . . . . . . . . . . . . . 8
SECTION 3.3. Holder of Warrant Certificate May Enforce
Rights. . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.4. Consolidation, Merger, Sale or Conveyance . . . . 9
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES . . . . . . . . . . 9
SECTION 4.1. Exchange and Transfer of Warrant Certificates . . 9
SECTION 4.2. Treatment of Holders of Warrant Certificates. . . 10
SECTION 4.3. Cancellation of Warrant Certificates. . . . . . . 10
ARTICLE V.
CONCERNING THE WARRANT AGENT. . . . . . . . . . 11
SECTION 5.1. Warrant Agent . . . . . . . . . . . . . . . . . . 11
SECTION 5.2. Conditions of Warrant Agent's Obligations . . . . 11
(a) Compensation and Indemnification . . . . . . . 11
(b) Agent for the Company. . . . . . . . . . . . . 11
(c) Counsel. . . . . . . . . . . . . . . . . . . . 11
(d) Documents. . . . . . . . . . . . . . . . . . . 11
(e) Certain Transactions . . . . . . . . . . . . . 11
(f) No Liability for Interest. . . . . . . . . . . 12
(g) No Liability for Invalidity. . . . . . . . . . 12
(h) No Responsibility for Representations. . . . . 12
(i) No Implied Obligations . . . . . . . . . . . . 12
SECTION 5.3. Resignation and Appointment of Successor . . . 12
ARTICLE VI.
MISCELLANEOUS . . . . . . . . . . . . . 14
SECTION 6.1. Amendment. . . . . . . . . . . . . . . . . . . 14
SECTION 6.2. Notices and Demands to the Company and
Warrant Agent. . . . . . . . . . . . . . . . . 14
SECTION 6.3. Addresses . . . . . . . . . . . . . . . . . . . 14
SECTION 6.4. Applicable Law . . . . . . . . . . . . . . . . . 14
SECTION 6.5. Delivery of Prospectus . . . . . . . . . . . . . 14
SECTION 6.6. Obtaining of Governmental Approvals . . . . . . 14
SECTION 6.7. Persons Having Rights under Warrant Agreement . . 15
SECTION 6.8. Headings . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.9. Counterparts . . . . . . . . . . . . . . . . . . 15
SECTION 6.10. Inspection of Agreement . . . . . . . . . . . . . 15
HOVNANIAN ENTERPRISES, INC.
Form of Hovnanian Debt Warrant Agreement
THIS WARRANT AGREEMENT dated as of _________________
between Hovnanian Enterprises, Inc., a Delaware corporation (hereinafter
called the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to) and , as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture") dated as of [FOR
SENIOR DEBT: , between the Company and , as trustee
(the "Senior Trustee")] [FOR SENIOR SUBORDINATED DEBT: ,
between the Company and , as trustee (the "Senior
Subordinated Trustee") [FOR SUBORDINATED DEBT: , between the
Company and
, as trustee (the "Subordinated Trustee")], providing for the
issuance from time to time of its unsecured [senior] [senior subordinated]
[subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Senior Subordinated] [Subordinated] Debt Securities"), to be
issued in one or more series as provided in the [Senior] [Senior
Subordinated] [Subordinated] Indenture; [if Warrant Securities are not under
same Indenture as Debt Securities to which they are attached -- and an
Indenture (the "[Senior] [Senior Subordinated] [Subordinated] Indenture," the
Senior, Senior Subordinated and Subordinated Indentures being referred to
collectively as the "Indentures") dated as of between the
Company and , as trustee (the "[Senior] [Senior
Subordinated] [Subordinated] Trustee," (the Senior, Senior Subordinated and
Subordinated Trustees being referred to collectively as the "Trustee"),
providing for the issuance from time to time of its [senior] [senior
subordinated] [subordinated] debentures, notes or other evidences of
indebtedness (the "[Senior] [Senior Subordinated] [Subordinated] Debt
Securities," the [Senior] [Senior Subordinated] and [Subordinated] Debt
Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [ ]
Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Preferred Stock -- [title of Debt Securities or
Preferred Stock being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or individually
a "Warrant") representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the "Warrant Securities"), such
warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates;" and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant
Certificates and the terms and conditions on which they may be issued,
exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone --
Upon issuance, each Warrant Certificate shall evidence one or more Warrants.]
[If Offered Securities and Warrants -- Warrants shall be [initially] issued
in connection with the issuance of the Offered Securities [but shall be
separately transferable on and after (the "Detachable Date")]
[and shall not be separately transferable] and each Warrant Certificate shall
evidence one or more Warrants.] Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein,
to purchase a Warrant Security in the principal amount of . [If
Offered Securities and Warrants -- Warrant Certificates shall be initially
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence Warrants for each [
principal amount] [ shares] of Offered Securities included in such
unit.]
SECTION 1.2. Execution and Delivery of Warrant
Certificates. Each Warrant Certificate, whenever issued, shall be in
[registered] [bearer] form substantially in the form set forth in Exhibit A
hereto, shall be dated and may have such letters, numbers, or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrants may be listed, or to conform to usage. The
Warrant Certificates shall be executed on behalf of the Company by [the
Chairman of the Board, the President, any Senior Vice President or any Vice
President and by the Secretary or any Assistant Secretary] under its
corporate seal reproduced thereon. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced in the Warrant Certificates. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and
no Warrant evidenced thereby shall be exercisable, until such Warrant
Certificate has been countersigned by the manual signature of the Warrant
Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant
Certificates may be countersigned and delivered notwithstanding that the
person who signed such Warrant Certificates ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the
date of the execution of this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as
used herein shall mean [the bearer of such Warrant Certificate] [any person
in whose name at the time any Warrant Certificate shall be registered upon
the books to be maintained by the Warrant Agent for that purpose] [If Offered
Securities and Warrants are not immediately detachable -- or [the bearer]
[upon the register] of the Offered Securities prior to the Detachable Date.
[Prior to the Detachable Date, the Company will, or will cause the registrar
of the Offered Securities to, make available at all times to the Warrant
Agent such information as to holders of the Offered Securities with Warrants
as may be necessary to keep the Warrant Agent's records up to date]].
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount
not exceeding aggregate principal amount of Warrant Securities
(except as provided in Sections 1.4, 2.3(c), 3.2 and ) may be executed by
the Company and delivered to the Warrant Agent upon the execution of this
Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right
to purchase up to principal amount of Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such issuance of the Warrant Certificates, the Warrant Agent
shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and
deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificate in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Warrant Certificates may determine, as evidenced
by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company
will cause definitive Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Warrant
Certificates, the temporary Warrant Certificates shall be exchangeable for
definitive Warrant Certificates upon surrender of the temporary Warrant
Certificates at the corporate trust office of the Warrant Agent [or
], without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Warrant Certificates the Company shall execute and the
Warrant Agent shall authenticate and deliver in exchange therefor definitive
Warrant Certificates representing the same aggregate number of Warrants.
Until so exchanged, the temporary Warrant Certificates shall in all respects
be entitled to the same benefits under this Agreement as definitive Warrant
Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. During the period from
, through and including , the exercise price of each Warrant
shall be plus [accrued amortization of the original issue
discount] [accrued interest] from . During the period from
, through and including , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued
interest] from . [In each case, the original issue discount will
be amortized at a % annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day
months]. Such purchase price of Warrant Securities is referred to in this
Agreement as the "Warrant Price." [The original issue discount for each
principal amount of Warrant Securities is .]
SECTION 2.2. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [ ] and at or before 5:00 P.M., [New York City time], on
[or such later date as the Company may designate, by notice to the
Warrant Agent and the holders of Warrant Certificates mailed to their
addresses as set forth in the record books of the Warrant Agent] (the
"Expiration Date"). Each Warrant not exercised at or before 5:00 P.M., [New
York City time], on the Expiration Date shall become void, and all rights of
the holder of the Warrant Certificate evidencing such Warrant under this
Agreement shall cease.
SECTION 2.3. Exercise of Warrants. (a) During the period
specified in Section 2.2 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United States of
America [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds] the Warrant Price for each Warrant exercised, to the Warrant Agent at
its corporate trust office [or at ], provided that such exercise
is subject to receipt within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed [including any
applicable certifications if the Warrant Securities are issuable in bearer
form]. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the
Warrant Price in an account of the Company maintained with it and shall
advise the Company by telephone at the end of each day on which a [payment]
[wire transfer] for the exercise of Warrants is received of the amount so
deposited to its account. The Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company and the [Trustee under the Indenture
relating to the Warrant Securities] of (i) the number of Warrants exercised,
(ii) the instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to which
such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company or such Trustee
shall reasonably require.
(c) As promptly as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture relating to the
Warrant Securities, in authorized denominations to or upon the order of the
holder of the Warrant Certificate evidencing such Warrant, the Warrant
Securities to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder. If fewer
than all of the Warrants evidenced by such Warrant Certificate are exercised,
the Company shall execute, and an authorized officer of the Warrant Agent
shall manually countersign and deliver, a new Warrant Certificate evidencing
the number of such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the
event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Security until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that
no such tax or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificates or Warrant
evidenced thereby shall entitle the holder thereof to any of the rights of a
holder of Warrant Securities, including, without limitation, the right to
receive the payment of principal of, premium, if any, or interest on Warrant
Securities or to enforce any of the covenants in the Indenture relating to
the Warrant Securities.
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the Ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity
reasonably satisfactory to the Warrant Agent and the Company, and, in the
case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant
Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the
Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of
Warrants. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of
the Company, whether or not the lost, stolen or destroyed Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The provisions
of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
SECTION 3.3. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement, any holder
of a Warrant Certificate, without the consent of the Warrant Agent, the
Trustee, the holder of any Warrant Securities or the holder of any other
Warrant Certificate, may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company suitable to enforce, or otherwise in respect of, his right to
exercise the Warrants evidenced by his Warrant Certificate in the manner
provided in his Warrant Certificate and in this Agreement.
SECTION 3.4. Consolidation, Merger, Sale or Conveyance. If
at any time there shall be a consolidation merger, sale or conveyance to
which Article Nine of the Indenture relating to the Warrant Securities
applies, then in any such event the successor or assuming corporation
referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to such Indenture, as if it had been named herein
and in the Warrant as the Company; the Company shall thereupon be relieved of
any further obligation hereunder or under the Warrants, and the Company as
the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Warrants issuable hereunder which
theretofore shall not have been signed by the Company, and may execute and
deliver Warrant Securities in its own name pursuant to such Indenture, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though
all of such Warrants had been issued at the date of the execution hereof. In
any case of any such consolidation, merger, sale or conveyance, such changes
in phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance complies with the provisions of this Section 3.4 and such
Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.1. Exchange and Transfer of Warrant Certificates,
[If Offered Securities with Warrants which are immediately detachable --
Upon] [If Offered Securities with Warrants which are not immediately
detachable -- Prior to the Detachable Date a Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which the
Warrant Certificate was initially attached, and only for the purpose of
effecting or in conjunction with an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered
Security on the register of the Offered Securities shall operate also to
transfer the related Warrant Certificates. After the Detachable Date, upon]
surrender at the corporate trust office of the Warrant Agent [or ],
Warrant Certificates evidencing Warrants may be exchanged for Warrant
Certificates in other denominations evidencing such Warrants [or the transfer
thereof may be registered in whole or in part]; provided that such other
Warrant Certificates evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. [The Warrant Agent shall keep, at its
corporate trust office [and at ], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its
corporate trust office [or ] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall
be made for any exchange [or registration of transfer] of Warrant
Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed
in connection with any such exchange [or registration of transfer]. Whenever
any Warrant Certificates are so surrendered for exchange [or registration of
transfer], an authorized officer of the Warrant Agent shall manually
countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange [or registration of transfer] which will result in the issuance
of a Warrant Certificate evidencing a fraction of a Warrant or a number of
full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or registration of transfer] of Warrant Certificates shall
be the valid obligations of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange [or registration of transfer].
SECTION 4.2. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior
to the Detachable Date, the Company, the Warrant Agent and all other persons
may treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose or as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date,] [if registered Warrants -- and prior to due presentment of
a Warrant Certificate for registration of transfer,] [t]he Company, the
Warrant Agent and all other persons may treat the holder of a Warrant
Certificate as the owner thereof for any purpose and as the person entitled
to exercise the rights represented by the Warrants evidenced thereby, any
notice to the contrary notwithstanding.
SECTION 4.3. Cancellation of Warrant Certificates. Any
Warrant Certificates surrendered for exchange[, registration of transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Warrant Agent and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled
by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder
in exchange or in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time or otherwise dispose of cancelled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.1. Warrant Agent. The Company hereby appoints
as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and hereby
accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company
as the Company may hereafter grant to or confer upon it. All of the terms
and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.2. Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the
Warrant Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as Warrant Agent
hereunder, as well as the costs and expenses of defending against any claim
of such liability.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent
is acting solely as agent of the Company and does not assume any obligations
or relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing suffered by
it in reliance upon any Warrant Certificate, notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) Certain Transactions. The Warrant Agent and its officers,
directors and employees may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it
or they may engage or be interested in any financial or other transaction
with the Company and may act on, or as depositary, trustee or agent for, any
committee or body of holders of Warrant Securities or other obligations of
the Company as freely as if it were not the Warrant Agent hereunder. Nothing
in the Warrant Agreement shall be deemed to prevent the Warrant Agent from
acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies
at any time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have
no liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations herein or
in the Warrant Certificates (except as to the Warrant Agent's counter-
signature thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or obligations
shall be read into this Agreement or the Warrant Certificates against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained
herein or in the Warrant Certificates or in the case of the receipt of any
written demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any proceedings at
law or otherwise or, except as provided in Section 6.2 hereof, to make any
demand upon the Company.
SECTION 5.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided that such date shall not be less than three months after the date on
which such notice is given unless the Company otherwise agrees. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying
such removal and the date when it shall become effective. Such resignation
or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the acceptance of such
appointment by such successor Warrant Agent. The obligation of the Company
under Section 5.2(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or shall commence a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or under any
other applicable Federal or State bankruptcy, insolvency or similar law, or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order for
relief by a court having jurisdiction in the premises shall have been entered
in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or a decree or order
by a court having jurisdiction in the premises shall have been entered for
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant Agent or of its property or
affairs, or any public officer shall take charge or control of the Warrant
Agent or of its property or affairs for the purpose of rehabilitation,
conservation, winding up or liquidation, a successor Warrant Agent, qualified
as aforesaid, shall be appointed by the Company by an instrument in writing,
filed with the successor Warrant Agent. Upon the appointment as aforesaid of
a successor Warrant Agent and acceptance by the successor Warrant Agent of
such appointment, the Warrant Agent shall cease to be Warrant Agent
hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company
an instrument accepting such appointment hereunder, and thereupon such
successor Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities,
duties and obligations of such predecessor with like effect as if originally
named Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit
with or held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the
Warrant Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any corporation to which substantially all the assets and business
of the Warrant Agent have been transferred, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendment. (a) This Agreement may be amended
by the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein, or
making any other provisions with respect to matters or questions arising
under this Agreement as the Company and the Warrant Agent may deem necessary
or desirable; provided that such action shall not affect adversely the
interests of the holders of the Warrant Certificates.
(b) The Company and the Warrant Agent may modify or
amend this Agreement and the Warrant Certificates, with the consent of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided,
however, that no such modification or amendment that decreases or increases
the Exercise Price, shortens the period of time during which the Warrants may
be exercised or otherwise materially and adversely affects the exercise
rights of the Holders or reduces the percentage of outstanding Warrants the
consent of the holder of which is required for modification or amendment of
this Agreement or the Warrant Certificates, may be made without the consent
of each holder affected thereby.
SECTION 6.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions
of the Warrant Certificates, the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 6.3. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[Warrant Agent], , Attention: ,
and any communication from the Warrant Agent to the Company with respect to
this Agreement shall be addressed to Hovnanian Enterprises, Inc., ▇▇ ▇▇▇▇▇▇▇
▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇ ▇▇▇▇▇▇ (or
such other address as shall be specified in writing by the Warrant Agent or
by the Company).
SECTION 6.4. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued
hereunder and of the respective terms and provisions thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 6.5. Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a prospectus relating to
the Warrant Securities deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the
delivery of the Warrant Securities issued upon such exercise, a Prospectus.
The Warrant Agent shall not, by reason of any such delivery, assume any
responsibility for the accuracy or adequacy of such Prospectus.
SECTION 6.6. Obtaining of Governmental Approvals. The
Company will from time to time take all action which may be necessary to
obtain and keep effective any and all permits, consents and approvals of
governmental agencies and authorities and securities acts filings under
United States Federal and State laws (including, without limitation, a
registration statement in respect of the Warrants and Warrant Securities
under the Securities Act of 1933), which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Securities issued upon exercise of the Warrant Certificates, the exercise of
the Warrants, the issuance, sale, transfer and delivery of the Warrants or
upon the expiration of the period during which the Warrants are exercisable.
SECTION 6.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company,
the Warrant Agent and the holders of the Warrant Certificates any right,
remedy or claim under or by reason of this Agreement.
SECTION 6.8. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of
the provisions hereof.
SECTION 6.9. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed
to be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal
corporate trust office of the Warrant Agent for inspection by the holder of
any Warrant Certificate. The Warrant Agent may require such holder to submit
his Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, Hovnanian Enterprises, Inc. and [Warrant
Agent] have caused this Agreement to be signed by their respective duly
authorized officers, and their respective corporate seals to be affixed
hereunto, and the same to be attested by their respective Secretaries or one
of their respective Assistant Secretaries, all as of the date first above
written.
HOVNANIAN ENTERPRISES, INC.
By _________________________
Title:
Attest:
_________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
_________________________
Title:
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Prior to _______________ this
Securities with Warrants which Warrant Certificate cannot be
are not immediately detachable. transferred or exchanged unless
attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants are Prior to _______________,
not immediately exercisable. Warrants evidence by this Warrant
Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
HOVNANIAN ENTERPRISES, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5:00 P.M., [NEW YORK CITY TIME], ON _______________
No. __________ __________ Warrants
This certifies that [the bearer is the] [
or registered assigns is the registered] owner of the above
indicated number of Warrants, each Warrant entitling such owner [if Offered
Securities with Warrants which are not immediately detachable -- , subject to
the [bearer] [registered owner] qualifying as a "holder" of this Warrant
Certificate, as hereinafter defined] to purchase, at any time [after
5:00 P.M., [New York City time], on and] on or before
5:00 P.M., [New York City time], on ,
principal amount of [Title of Warrant Securities] (the "Warrant Securities")
of Hovnanian Enterprises, Inc. (the "Company"), issued and to be issued under
the Indenture (as hereinafter defined), on the following basis: during the
period from , through and including , the
exercise price of each Warrant will be plus [accrued amortization of
the original issue discount] [accrued interest] from ; during
the period from , through and including , the
exercise price of each Warrant will be plus [accrued amortization of
the original issue discount] [accrued interest] from ; [in
each case, the original issue discount will be amortized at a % annual
rate, computed on an annual basis using the "interest" method and using a
360-day year consisting of twelve 30-day months] (the "Warrant Price"). [The
original issue discount for each principal amount of Warrant
Securities is .] The holder may exercise the Warrants evidenced
hereby by providing certain information set forth on the back hereof,
including any applicable certifications if the Warrant Securities are
issuable in bearer form, and by paying in full in lawful money of the United
States of America [in cash or by certified check or official bank check or by
bank wire transfer, in each case,] [by bank wire transfer] in immediately
available funds, the Warrant Price for each Warrant exercised to the Warrant
Agent (as hereinafter defined) and by surrendering this Warrant Certificate,
with the purchase form on the back hereof duly executed, at the corporate
trust office of [Warrant Agent], or its successor as warrant agent (the
"Warrant Agent"), [or ] currently at the address specified on the
reverse hereof, and upon compliance with and subject to the conditions set
forth herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior to
(the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] [the bearer of this Warrant
Certificate] [the person in whose name at the time this Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 4.1 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered
form in denominations of and any integral multiples thereof.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an indenture (the "Indenture"), dated as of [FOR
SENIOR DEBT: , between the Company and ] [FOR
SENIOR SUBORDINATED DEBT: , between the Company and ]
[FOR SUBORDINATED DEBT: , between the Company and
], as trustee (the "Trustee"), and will be subject to the terms and
provisions contained in the Indenture. Copies of the Indenture and the form
of the Warrant Securities are on file at the corporate trust office of the
Trustee [and at ].
[If Offered Securities with Warrants which are not
immediately detachable -- Prior to , this Warrant Certificate may
be exchanged or transferred only together with the [Title of Offered
Securities] ("Offered Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security. After such date,
this] [if Offered Securities with Warrants which are immediately detachable
-- Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or ] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement] [effected by delivery, and the
Company and the Warrant Agent may treat the bearer hereof as the owner for
all purposes].
[If Offered Securities with Warrants which are not
immediately detachable -- Except as provided in the immediately preceding
paragraph, after] [If Offered Securities with Warrants which are immediately
detachable or Warrants alone -- After] countersignature by the Warrant Agent
and prior to the expiration of this Warrant Certificate, this Warrant
Certificate may be exchanged at the corporate trust office of the Warrant
Agent [or ] for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including,
without limitation, the right to receive payments of principal of, premium,
if any, or interest, if any, on the Warrant Securities or to enforce any of
the covenants of the Indenture.
This Warrant Certificate shall not be valid or obligatory
for any purpose until countersigned by the Warrant Agent.
Dated as of _____________________.
HOVNANIAN ENTERPRISES, INC.
By: _____________________
Attest:
_____________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: ___________________________
Authorized Signature
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must
pay in [U.S.] Dollars [in cash or by certified check or official bank check
or by bank wire transfer] [by bank wire transfer] [in immediately available
funds] the Warrant Price in full for Warrants exercised to [Warrant Agent],
[corporate trust department] [insert address of Warrant Agent], Attn.
[or ], which [payment] [wire transfer] must specify the name of
the holder and the number of Warrants exercised by such holder. In addition,
the holder must complete the information required below and present this
Warrant Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set forth below.
This Warrant Certificate, completed and duly executed, must be received by
the Warrant Agent within five business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase
principal amount of the [Title of Warrant Securities ] (the "Warrant
Securities") of Hovnanian Enterprises, Inc. and represents that he has
tendered payment for such Warrant Securities in [U.S.] Dollars [in cash or by
certified check or official bank check or by bank wire transfer, in each
case] [by bank wire transfer] in immediately available funds to the order of
Hovnanian Enterprises, Inc., c/o , [address of
Warrant Agent], in the amount of in accordance with the terms
hereof. The undersigned requests that said principal amount of Warrant
Securities be in the authorized denominations, registered in such names and
delivered all as specified in accordance with the instructions set forth
below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued
and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________
[If registered Warrant -- Signature_____________________
Signature Guaranteed [If registered Warrant --
_____________________________] (Signature must conform in all
respects to name of holder as
specified on face of this Warrant
Certificate and must bear a
signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchanges)]
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________
___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock Exchange)
Signature Guaranteed
______________________________
____________________
[FN]
Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.