NOTES SHALL BE PAID DIRECTLY BY THE ISSUER THEREOF TO
THE AGENT AS A PREPAYMENT IN SUCH AMOUNT OF THE REVOLVING CREDIT LOANS AND SWING
LOANS, IF ANY, OUTSTANDING.
(C)
THE LOAN PARTIES, AGENT AND LENDERS, AS APPROPRIATE SHALL HAVE
EXECUTED AND DELIVERED REPLACEMENT PROMISSORY NOTES SUBSTANTIALLY IN THE FORM OF
EXHIBITS 1.1(R) AND 1.1(S)(2) (REFLECTING THE REVISED COMMITMENTS), AND AN
AMENDED AND RESTATED SECURITY AGREEMENT IN SUBSTANTIALLY THE FORM ATTACHED
HERETO AS EXHIBIT 1.1(S)(1).
(D)
THERE SHALL HAVE BEEN DELIVERED TO THE AGENT FOR THE BENEFIT OF EACH
LENDER WRITTEN OPINIONS OF (I) PETER REINHART, ESQUIRE, IN HOUSE COUNSEL TO THE
LOANS PARTIES AND (II) SIMPSON THACHER & BARTLETT LLP, NEW YORK COUNSEL TO THE
LOAN PARTIES, IN EACH CASE DATED AS OF THE DATE OF ISSUANCE OF THE SENIOR
SECURED FIVE YEAR NOTES SUBSTANTIALLY SIMILAR IN SCOPE TO THE OPINION LETTER
RECEIVED IN CONNECTION WITH THE CREDIT AGREEMENT, INCLUDING NO CONFLICT OF THIS
AMENDMENT WITH THE TERMS OF EXISTING OR NEW INDEBTEDNESS OF THE LOAN PARTIES AND
NO CONFLICT BETWEEN THE TERMS OF THE SENIOR SECURED FIVE-YEAR NOTES AND EXISTING
INDEBTEDNESS OF THE LOAN PARTIES, AND OTHERWISE IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE AGENT AND ITS COUNSEL AND COVERING SUCH MATTERS RELATING TO
THE LOAN PARTIES AND THE LOAN DOCUMENTS, INCLUDING THIS AMENDMENT, AS THE AGENT
SHALL REASONABLY REQUEST.
(E)
THE REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES CONTAINED IN
SECTION 5
14
[REPRESENTATIONS AND WARRANTIES] OF THE CREDIT AGREEMENT AS AMENDED HEREBY AND
IN THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES HAD BEEN MADE
ON AND AS OF THE EFFECTIVE SENIOR SECURED FIVE YEAR NOTES DATE (SUCH TERM BEING
USED IN THIS CLAUSE (E) AS DEFINED AT SECTION 1(E) HEREOF) (EXCEPT
REPRESENTATIONS AND WARRANTIES WHICH EXPRESSLY RELATE SOLELY TO AN EARLIER DATE
OR TIME, WHICH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE SPECIFIC DATES OR TIMES REFERRED TO THEREIN);
NO EVENT OF DEFAULT OR POTENTIAL DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING
OR SHALL EXIST; AND, BORROWER AND HOVNANIAN MAKE THE FOLLOWING ADDITIONAL
REPRESENTATIONS AND WARRANTIES EACH OF WHICH SHALL BE TRUE AND CORRECT AS OF THE
EFFECTIVE SENIOR SECURED FIVE YEAR NOTES DATE:
(i)
First Quarter Statements.
The Borrower
has delivered to the Agent copies of Hovnanian's consolidated financial
statements for and as of the end of the first fiscal quarter ended January 31,
2008 (the "First Quarter Statements").
The First Quarter Statements were
compiled from the books and records maintained by Hovnanian's management, are
correct and complete in all material respects and fairly represent in all
material respects the consolidated financial condition of Hovnanian and its
Subsidiaries as of their dates and the results of operations for the fiscal
period then ended and have been prepared in accordance with GAAP consistently
applied (subject to normal year-end audit adjustments).
The Historical
Statements accurately reflect the liabilities in