Exhibit 4.2
EXHIBIT "A"
GUARANTY
TO: BANK ONE, NA, a national banking association, as Administrative Agent
for the Banks that are parties to the Second Amended and Restated
Credit Agreement dated as of July 30, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among
M.D.C. HOLDINGS, INC., a Delaware corporation, Banks, and
Administrative Agent, and to the Banks. Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Credit
Agreement.
FOR VALUABLE CONSIDERATION, RICHMOND AMERICAN HOMES OF
CALIFORNIA, INC., a Colorado corporation, RICHMOND AMERICAN HOMES OF MARYLAND,
INC., a Maryland corporation, RICHMOND AMERICAN HOMES OF NEVADA, INC., a
Colorado corporation, RICHMOND AMERICAN HOMES OF VIRGINIA, INC., a Virginia
corporation, RICHMOND AMERICAN HOMES OF ARIZONA, INC., a Delaware corporation,
RICHMOND AMERICAN HOMES OF COLORADO, INC., a Delaware corporation, RICHMOND
AMERICAN HOMES OF WEST VIRGINIA, INC., a Colorado corporation, RICHMOND AMERICAN
HOMES OF CALIFORNIA (INLAND EMPIRE), INC., a Colorado corporation, RICHMOND
AMERICAN HOMES OF UTAH, INC., a Colorado corporation, RICHMOND AMERICAN HOMES OF
TEXAS, INC., a Colorado corporation, M.D.C. LAND CORPORATION, a Colorado
corporation, RICHMOND AMERICAN CONSTRUCTION, INC., a Delaware corporation, RAH
TEXAS HOLDINGS, LLC, a Colorado limited liability company and RAH OF TEXAS, LP,
a Colorado limited partnership (hereinafter collectively called "Guarantors and
individually a "Guarantor"), whose address is set forth after their signatures
below, unconditionally, jointly and severally, guarantee and promise to pay to
Administrative Agent, for the benefit of Banks and their respective successors,
endorsees, transferees and assigns, or order, within one (1) business day after
demand, in lawful money of the United States, (i) the Notes, principal and
interest and all other sums payable thereunder, or at the election of
Administrative Agent any one or more installments thereof, in the event that
Borrower fails to punctually pay any one or more installments of the Note
(principal and/or interest), or any other sum payable thereunder at the time and
in the manner provided therein; and (ii) all other indebtedness of Borrower to
Administrative Agent or to any Bank arising under or in connection with the
Notes, the Credit Agreement or any Loan Documents (the indebtedness evidenced by
the Notes together with all other indebtedness specified above is hereinafter
collectively called the "Indebtedness").
1. The obligations of Guarantors hereunder are separate and independent
of the obligations of Borrower and of any other guarantor, and a separate action
or actions may be brought and prosecuted against any one or more of Guarantors
whether action is brought against Borrower or any other guarantor or whether
Borrower or any other guarantor is joined in any action or actions. The
obligations of Guarantors hereunder shall survive and continue in full force and
effect until payment in full of the Indebtedness is actually received by
Administrative Agent for the benefit of Banks and the period of time has expired
during which any payment made by Borrower or any Guarantor to Administrative
Agent for the benefit of Banks may be
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determined to be a Preferential Payment (defined below), notwithstanding any
release or termination of Borrower's or any other guarantor's liability by
express or implied agreement with Administrative Agent or any Bank or by
operation of law and notwithstanding that the Indebtedness or any part thereof
is deemed to have been paid or discharged by operation of law or by some act or
agreement of Administrative Agent or Banks. For purposes of this Guaranty, the
Indebtedness shall be deemed to be paid only to the extent that Administrative
Agent, on behalf of Banks, actually receives immediately available funds.
2. Guarantors agree that to the extent Borrower or any Guarantor makes
any payment to Administrative Agent or Banks in connection with the
Indebtedness, and all or any part of such payment is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid by
Administrative Agent or Banks or paid over to a trustee, receiver or any other
entity, whether under any bankruptcy act or otherwise (any such payment is
hereinafter referred to as a "Preferential Payment"), then this Guaranty shall
continue to be effective or shall be reinstated, as the case may be, and, to the
extent of such payment or repayment by Administrative Agent or Banks, the
Indebtedness or part thereof intended to be satisfied by such Preferential
Payment shall be revived and continued in full force and effect as if said
Preferential Payment had not been made.
3. Guarantors are providing this Guaranty at the instance and request
of Borrower to induce Administrative Agent and Banks to extend or continue
financial accommodations to Borrower. Guarantors hereby represent and warrant
that Guarantors are and will continue to be fully informed about all aspects of
the financial condition and business affairs of Borrower that Guarantors deem
relevant to the obligations of Guarantors hereunder and hereby waive and fully
discharge Administrative Agent and each Bank from any and all obligations to
communicate to Guarantors any information whatsoever regarding Borrower or
Borrower's financial condition or business affairs. Guarantors acknowledge that
Borrower owns, directly or indirectly, all of the issued and outstanding shares
of stock of each Guarantor, that Guarantors and Borrower are engaged in related
businesses, and that Guarantors will derive substantial direct and indirect
benefit from the extension of credit by Banks evidenced by the Indebtedness.
4. Guarantors authorize Administrative Agent and Banks, without notice
or demand and without affecting Guarantors' liability hereunder, from time to
time, to: (a) renew, modify, compromise, extend, accelerate or otherwise change
the time for payment of, or otherwise change the terms of the Indebtedness or
any part thereof, including increasing or decreasing the rate of interest
thereon; (b) release, substitute or add any one or more endorsers, or other
guarantors; (c) take and hold security for the payment of this Guaranty or the
Indebtedness, and enforce, exchange, substitute, subordinate, waive or release
any such security; (d) proceed against such security and direct the order or
manner of sale of such security as Administrative Agent in its discretion may
determine; and (e) apply any and all payments from Borrower, any Guarantor or
any other guarantor, or recoveries from such security, in such order or manner
as Administrative Agent in its discretion may determine.
5. Guarantors waive and agree not to assert: (a) any right to require
Administrative Agent or Banks to proceed against Borrower or any other
guarantor, to proceed against or exhaust any security for the Indebtedness, to
pursue any other remedy available to Administrative Agent and Banks, or to
pursue any remedy in any particular order or manner; (b)
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the benefit of any statute of limitations affecting Guarantors' liability
hereunder or the enforcement hereof; (c) demand, diligence, presentment for
payment, protest and demand, and notice of extension, dishonor, protest, demand,
nonpayment and acceptance of this Guaranty; (d) notice of the existence,
creation or incurring of new or additional indebtedness of Borrower to
Administrative Agent or any Bank; and (e) any defense arising by reason of any
disability or other defense of Borrower or by reason of the cessation from any
cause whatsoever (other than payment in full of all amounts demanded to be paid
by Guarantors under this Guaranty) of the liability of Borrower for the
Indebtedness. Guarantors hereby expressly consent to any impairment of
collateral, including, but not limited to, failure to perfect a security
interest and release collateral and any such impairment or release shall not
affect Guarantors' obligations hereunder. Until payment in full of the
Indebtedness, Guarantors shall have no right of subrogation and hereby waive any
right to enforce any remedy which Administrative Agent and Banks now have, or
may hereafter have, against Borrower, and waive any benefit of, and any right to
participate in, any security now or hereafter held by Administrative Agent on
behalf of Banks.
6. (a) If from time to time Borrower shall have liabilities or
obligations to any Guarantor, whether absolute or contingent, joint, several, or
joint and several, such liabilities and obligations (the "Subordinated
Indebtedness") and any and all assignments as security, grants in trust, liens,
mortgages, security interests, other encumbrances, and other interests and
rights securing such liabilities and obligations shall at all times be fully
subordinate to payment and performance in full of the Obligations. Guarantors
agree that such liabilities and obligations of Borrower to Guarantors shall not
be secured by any assignment as security, grant in trust, lien, mortgage,
security interest, other encumbrance or other interest or right in any property,
interests in property, or rights to property of such Borrower. Guarantors and,
by their acceptance of this Guaranty, Administrative Agent and each Bank agree
that (i) so long as no Event of Default has occurred and is continuing, payments
of principal and interest on the Subordinated Indebtedness may be made by
Borrower and accepted by Guarantors as such payments become due; and (ii) after
the occurrence and during the continuation of an Event of Default, Borrower
shall not make and Guarantor shall not accept any payments with respect to the
Subordinated Indebtedness. If, notwithstanding the foregoing, subsequent to an
Event of Default, any Guarantor receives any payment from Borrower, such payment
shall be held in trust by such Guarantor for the benefit of Administrative Agent
and Banks, shall be segregated from the other funds of such Guarantor, and shall
forthwith be paid by such Guarantor to Administrative Agent for the benefit of
Banks and applied to payment of the Obligations whether or not then due.
(b) In the event of any distribution, division, or
application, partial or complete, voluntary or involuntary, by operation of law
or otherwise, of all or any part of the assets of Borrower, or the proceeds
thereof, to creditors of Borrower, by reason of the liquidation, dissolution, or
other winding up of Borrower's business, or in the event of any receivership,
insolvency or bankruptcy proceedings by or against Borrower, or assignment for
the benefit of creditors, or of any proceedings by or against Borrower for any
relief under any bankruptcy or insolvency laws, or relating to the relief of
debtors, readjustment of indebtedness, reorganizations, arrangements,
compositions or extensions, or of any other event whereby it becomes necessary
or desirable to file or present claims against Borrower for the purpose of
receiving payment thereof, or on account thereof, then and in any such event,
any payment or distribution of any kind or character, either in cash or other
property, which shall be made or
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shall be payable with respect to any Subordinated Indebtedness shall be paid
over to Administrative Agent on behalf of Banks for application to the payment
of the Obligations, whether due or not due, and no payments shall be made upon
or in respect of the Subordinated Indebtedness unless and until the Obligations
shall have been paid and satisfied in full. In any such event, all claims of
Administrative Agent and Banks and all claims of Guarantors shall, at the option
of Administrative Agent and Banks, forthwith become due and payable without
demand or notice.
(c) In the event of any distribution, division, or
application, partial or complete, voluntary or involuntary, by operation of law
or otherwise, of all or any part of the assets of Borrower, or the proceeds
thereof, to creditors of Borrower, by reason of the liquidation, dissolution, or
other winding up of Borrower's business, or in the event of any receivership,
insolvency or bankruptcy proceedings by or against Borrower, or assignment for
the benefit of creditors, or of any proceedings by or against Borrower for any
relief under any bankruptcy or insolvency laws, or relating to the relief of
debtors, readjustment of indebtedness, reorganizations, arrangements,
compositions or extensions, or of any other event whereby it becomes necessary
or desirable to file or present claims against Borrower for the purpose of
receiving payment thereof, or on account thereof, each of the Guarantors
irrevocably authorizes and empowers Administrative Agent, or any person
Administrative Agent may designate, to act as attorney for such Guarantor with
full power and authority in the name of such Guarantor, or otherwise, to make
and present such claims or proofs of claims against Borrower on account of the
Subordinated Indebtedness as Administrative Agent, or its appointee, may deem
expedient and proper and, if necessary, to vote such claims in any proceedings
and to receive and collect for the benefit of Banks any and all dividends or
other payments and disbursements made thereon in whatever form they may be paid
or issued, and to give acquittance therefor and to apply same to the
Obligations, and Guarantors hereby agree, from time to time and upon request, to
make, execute and deliver to Administrative Agent such powers of attorney,
assignments, endorsements, proofs of claim, pleadings, verifications,
affidavits, consents, agreements or other instruments as may be requested by
Administrative Agent in order to enable Administrative Agent and Banks to
enforce any and all claims upon, or with respect to, the Subordinated
Indebtedness, and to collect and receive any and all payments or distributions
which may be payable or deliverable at any time upon or with respect to the
Subordinated Indebtedness.
(d) Except as otherwise permitted herein, should any payment
or distribution or security or proceeds thereof be received by any Guarantor
upon or with respect to the Subordinated Indebtedness prior to the
satisfaction of the Obligations, such Guarantor will forthwith deliver the
same to Administrative Agent on behalf of Banks in precisely the form as
received except for the endorsement or assignment of such Guarantor where
necessary for application on the Obligations, whether due or not due, and
until so delivered the same shall be held in trust by such Guarantor as
property of Administrative Agent on behalf of Banks. In the event of the
failure of any Guarantor to make any such endorsement or assignment,
Administrative Agent, or any of its officers or employees, on behalf of
Administrative Agent, is hereby irrevocably authorized to make the same.
(e) Each Guarantor agrees to maintain in its records notations
satisfactory to Administrative Agent of the rights and priorities of
Administrative Agent and Banks hereunder, and from time to time, upon request,
to furnish Administrative Agent for the benefit of Banks
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with sworn financial statements. Banks and Administrative Agent may inspect
the books of account and any records of Guarantors at any time during business
hours. Each Guarantor agrees that any promissory note now or hereafter
evidencing the Subordinated Indebtedness shall be nonnegotiable and shall be
marked with a specific statement that the indebtedness thereby evidenced is
subject to the provisions of this Guaranty.
7. (a) The provisions of this Guaranty are severable, and in any
action or proceeding involving any state corporate law, or any state, federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under this Guaranty
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of such Guarantor's liability under this Guaranty,
then, notwithstanding any other provision of this Guaranty to the contrary, the
amount of such liability shall, without any further action by the Guarantors,
the Administrative Agent or any Bank, be automatically limited and reduced to
the highest amount that is valid and enforceable as determined in such action or
proceeding (such highest amount determined hereunder being the relevant
Guarantor's "Maximum Liability"). This Paragraph 7(a) with respect to the
Maximum Liability of the Guarantors is intended solely to preserve the rights of
the Administrative Agent hereunder to the maximum extent not subject to
avoidance under applicable law, and neither the Guarantor nor any other person
or entity shall have any right or claim under this Paragraph 7(a) with respect
to the Maximum Liability, except to the extent necessary so that the obligations
of the Guarantors hereunder shall not be rendered voidable under applicable law.
(b) Each of the Guarantors agrees that the Guaranteed Obligations
may at any time and from time to time exceed the Maximum Liability of each
Guarantor, and may exceed the aggregate Maximum Liability of all other
Guarantors, without impairing this Guaranty or affecting the rights and remedies
of the Administrative Agent hereunder. Nothing in this Paragraph 7(b) shall be
construed to increase any Guarantor's obligations hereunder beyond its Maximum
Liability.
(c) In the event any Guarantor (a "Paying Guarantor") shall make any
payment or payments under this Guaranty or shall suffer any loss as a result of
any realization upon any collateral granted by it to secure its obligations
under this Guaranty, each other Guarantor (each a "Non-Paying Guarantor") shall
contribute to such Paying Guarantor an amount equal to such Non-Paying
Guarantor's "Pro Rata Share" of such payment or payments made, or losses
suffered, by such Paying Guarantor. For the purposes hereof, each Non-Paying
Guarantor's "Pro Rata Share" with respect to any such payment or loss by a
Paying Guarantor shall be determined as of the date on which such payment or
loss was made by reference to the ratio of (i) such Non-Paying Guarantor's
Maximum Liability as of such date (without giving effect to any right to
receive, or obligation to make, any contribution hereunder) or, if such
Non-Paying Guarantor's Maximum Liability has not been determined, the aggregate
amount of all monies received by such Non-Paying Guarantor from the Borrower
after the date hereof (whether by loan, capital infusion or by other
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means) to (ii) the aggregate Maximum Liability of all Guarantors hereunder
(including such Paying Guarantor) as of such date (without giving effect to any
right to receive, or obligation to make, any contribution hereunder), or to the
extent that a Maximum Liability has not been determined for any Guarantors, the
aggregate amount of all monies received by such Guarantors from the Borrower
after the date hereof (whether by loan, capital infusion or by other means).
Nothing in this Paragraph 7(c) shall affect any Guarantor's several liability
for the entire amount of the Guaranteed Obligations (up to such Guarantor's
Maximum Liability). Each of the Guarantors covenants and agrees that its right
to receive any contribution under this Guaranty from a Non-Paying Guarantor
shall be subordinate and junior in right of payment to all the Guaranteed
Obligations. The provisions of this Paragraph 7(c) are for the benefit of both
the Administrative Agent and the Guarantors and may be enforced by any one, or
more, or all of them in accordance with the terms hereof.
8. It is not necessary for Administrative Agent or any Bank to inquire
into the powers of Borrower or the officers, directors, members, managers,
partners, trustees or agents acting or purporting to act on its behalf, and any
of the Indebtedness made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
9. Each Guarantor agrees to deliver to Administrative Agent and Banks
financial statements and other financial information relating to such Guarantor
in form and level of detail, and containing certifications, as required pursuant
to Section 7.1 of the Credit Agreement. Each Guarantor further agrees to comply
all covenants, representations and warranties in the Credit Agreement relating
to Guarantor.
10. Guarantors agree to pay all attorneys' fees and all other costs and
expenses which may be incurred by Administrative Agent or any Bank in enforcing
this Guaranty.
11. This Guaranty sets forth the entire agreement of Guarantors,
Administrative Agent and Banks with respect to the subject matter hereof and
supersedes all prior oral and written agreements and representations by
Administrative Agent or any Bank to Guarantors. No modification or waiver of any
provision of this Guaranty or any right of Administrative Agent or any Bank
hereunder and no release of any Guarantor from any obligation hereunder shall be
effective unless in a writing executed by an authorized officer of
Administrative Agent and each Bank. There are no conditions, oral or otherwise,
on the effectiveness of this Guaranty.
12. This Guaranty shall inure to the benefit of Administrative Agent
and each Bank and their respective successors and assigns and shall be binding
upon each Guarantor and its successors and assigns. Administrative Agent and
each Bank may assign this Guaranty in whole or in part without notice.
13. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14. Subject to the provisions of this Paragraph 14, each Guarantor
agrees, and Banks and Administrative Agent by accepting this Guaranty agree,
that they shall submit to binding arbitration any and all claims, disputes and
controversies between or among them (and their respective employees, officers,
directors, attorneys, and other agents if permitted by law or a contract between
them and such persons) relating to this Guaranty and the Loan Documents and the
negotiation, execution, collateralization, administration, repayment,
modification, extension or collection thereof or arising thereunder. Such
arbitration shall proceed in Chicago, Illinois, shall be governed by Illinois
law and shall be conducted in accordance with the Commercial
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Arbitration Rules of the American Arbitration Association (the "AAA") as
modified in this Paragraph 14. Judgment upon the award rendered by each
arbitrator(s) may be entered in any court having jurisdiction.
(a) Nothing in the preceding paragraph, nor the exercise
of any right to arbitrate thereunder, shall limit the right of any party hereto
(1) subject to provisions of applicable law, to exercise self-help remedies such
as setoff or repossession or other self-help remedies provided in the Credit
Agreement or any other Loan Document; or (2) to obtain provisional or ancillary
remedies such as replevin, injunctive relief, attachment, or appointment of a
receiver from a court having jurisdiction, before, during or after the pendency
of any arbitration proceeding, or (3) to defend or obtain injunctive or other
equitable relief against the foregoing or assert mandatory counterclaims, if
any, prior to and during the pendency of a determination in arbitration of
issues of performance, default, damages and other such claims and disputes.
(b) Arbitration hereunder shall be before a three-person panel
of neutral arbitrators, consisting of one person from each of the following
categories: (1) an attorney who has practiced in the area of commercial real
estate law for at least ten (10) years; (2) a person with at least ten (10)
years' experience in real estate lending; and (3) a person with at least ten
(10) years' experience in the homebuilding industry. The AAA shall submit a list
of persons meeting the criteria outlined above for each category of arbitrator,
and the parties shall select one person from each category in the manner
established by the AAA.
(c) In any dispute between the parties that is arbitratable
hereunder, where the aggregate of all claims and the aggregate of all
counterclaims is an amount less than Fifty Thousand and No/100ths Dollars
($50,000.00), the arbitration shall be before a single neutral arbitrator to be
selected in accordance with the Commercial Rules of the American Arbitration
Association and shall proceed under the Expedited Procedures of said Rules.
(d) In any arbitration hereunder, the arbitrators shall decide
(by documents only or with a hearing, at the arbitrators' discretion) any
pre-hearing motions which are substantially similar to pre-hearing motions to
dismiss for failure to state a claim or motions for summary adjudication.
(e) In any arbitration hereunder, discovery shall be permitted
in accordance with the Illinois Code of Civil Procedure. Scheduling of such
discovery may be determined by the arbitrators, and any discovery disputes shall
be finally determined by the arbitrators.
(f) The Illinois rules of evidence shall control the admission
of evidence at the hearing in any arbitration conducted hereunder, provided,
however, no error by the arbitrators in application of the Rules of Evidence
shall be grounds, as such, for vacating the arbitrators' award.
(g) Notwithstanding any AAA rule to the contrary, the
arbitration award shall be in writing and shall specify the factual and legal
basis for the award, including findings of fact and conclusions of law.
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(h) Each party shall each bear its own costs and expenses and
an equal share of the arbitrators' costs and administrative fees of arbitration.
15. GUARANTORS, AND BANKS BY ACCEPTING THIS GUARANTY, HEREBY
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND ANY GUARANTOR,
AND BANKS BY ACCEPTING THIS GUARANTY, HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVE ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING IN THIS PARAGRAPH 15 SHALL LIMIT
THE RIGHT OF ADMINISTRATIVE AGENT OR ANY BANK OR ISSUING BANK TO BRING
PROCEEDINGS AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
SUBJECT TO THE PROVISIONS OF PARAGRAPH 14, UNLESS PROHIBITED BY LAW, ANY
JUDICIAL PROCEEDING BY ANY GUARANTOR AGAINST ADMINISTRATIVE AGENT OR ANY BANK OR
ISSUING BANK OR ANY AFFILIATE OF ADMINISTRATIVE AGENT OR ANY BANK OR ISSUING
BANK INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT SHALL BE
BROUGHT IN A COURT IN CHICAGO, ILLINOIS.
16. SUBJECT TO THE PROVISIONS OF PARAGRAPH 14, EACH GUARANTOR HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THE GUARANTY, ANY OTHER LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
17. Guarantors acknowledge that the rights and responsibilities of
Administrative Agent under this Guaranty with respect to any action taken by
Administrative Agent or the exercise or non-exercise by Administrative Agent of
any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Guaranty shall, as between
Administrative Agent and Banks, be governed by the Credit Agreement and by such
other agreements with respect thereto as may exist from time to time among them,
but, as between Administrative Agent and Guarantors, Administrative Agent shall
be conclusively presumed to be acting as agent for Banks with full and valid
authority so to act or refrain from acting, and Guarantors shall not be under
any obligation or entitlement to make any inquiry respecting such authority.
18. Pursuant to Section 7.11 of the Credit Agreement, additional
Subsidiaries shall become obligated as Guarantors hereunder (each as fully as
though an original signatory hereto) by executing and delivering to the
Administrative Agent a supplemental guaranty in the form of Exhibit A attached
hereto (with blanks appropriately filled in), together with such additional
supporting documentation required pursuant to Section 7.11 of the Credit
Agreement.
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IN WITNESS WHEREOF these presents are executed as of July 30, 2002.
GUARANTORS:
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RICHMOND AMERICAN HOMES OF
CALIFORNIA, INC.
By:
---------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF
MARYLAND, INC.
By:
---------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF
NEVADA, INC.
By:
---------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF
VIRGINIA, INC.
By:
----------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF
ARIZONA, INC.
By:
-----------------------------
Name: John J. Heaney
Title: Vice President
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RICHMOND AMERICAN HOMES OF
COLORADO, INC.
By:
-----------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF WEST
VIRGINIA, INC.
By:
------------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF
CALIFORNIA (INLAND EMPIRE), INC.
By:
-------------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF UTAH,
INC.
By:
------------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN HOMES OF TEXAS,
INC.
By:
-------------------------------
Name: John J. Heaney
Title: Vice President
10
M.D.C. LAND CORPORATION
By:
-------------------------------
Name: John J. Heaney
Title: Vice President
RICHMOND AMERICAN CONSTRUCTION,
INC.
By:
-------------------------------
Name: John J. Heaney
Title: Vice President
RAH TEXAS HOLDINGS, LLC
By:
-------------------------------
Name: John J. Heaney
Title: Vice President
RAH OF TEXAS, LP
By: RICHMOND AMERICAN HOMES OF
TEXAS, INC., its general partner
By:
--------------------------------
Name: John J. Heaney
Title: Vice President
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EXHIBIT A TO GUARANTY
FORM OF SUPPLEMENTAL GUARANTY
[Date]
Bank One, NA, as Administrative Agent
for the Banks
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Credit Agreement
dated as of July 30, 2002, among M.D.C. Holdings, Inc., the banks from time to
time parties thereto (the "Banks"), and Bank One, NA, as Administrative Agent
(the "Administrative Agent") for the Banks (as amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement") and (ii) that
certain Guaranty, dated as of July 30, 2002, executed and delivered by the
Guarantors parties thereto in favor of the Administrative Agent, for the benefit
of the Banks (as amended, restated, supplemented or otherwise modified from time
to time, the "Guaranty"). Terms not defined herein which are defined in the
Credit Agreement shall have for the purposes hereof the respective meanings
provided therein.
In accordance with Section 7.11 of the Credit Agreement and
Paragraph 18 of the Guaranty, the undersigned, [GUARANTOR] , a
---------------
corporation [limited partnership/limited liability company] organized under the
laws of , hereby elects to be a "Guarantor" for all purposes of the
----------
Credit Agreement and the Guaranty, respectively, effective from the date hereof.
Without limiting the generality of the foregoing, the
undersigned hereby agrees to perform all the obligations of a Guarantor under,
and to be bound in all respects by the terms of, the Guaranty, to the same
extent and with the same force and effect as if the undersigned were a direct
signatory thereto.
This Supplemental Guaranty shall be construed in accordance
with and governed by the internal laws of the State of Illinois (but otherwise
without regard to the conflict of laws provisions).
IN WITNESS WHEREOF, this Supplemental Guaranty has been duly
executed by the undersigned as of the day of , 200 .
-- ---- --
[GUARANTOR]
By:
------------------------------
Name:
Title:
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