Exhibit 4.4
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of July 30, 2002, (this "Second
Supplemental Indenture"), by and among M.D.C. Holdings, Inc., a Delaware
corporation (the "Company"), U.S. Bank National Association, as Trustee (the
"Trustee"), and each of the following wholly owned subsidiaries of the Company
(collectively, the "Additional Guarantors," and together with the Prior
Guarantors, as defined below, the "Guarantors"): M.D.C. Land Corporation, a
Colorado corporation, RAH of Texas, LP, a Colorado limited partnership, RAH
Texas Holdings, LLC, a Colorado limited liability company, Richmond American
Construction, Inc., a Delaware corporation, Richmond American Homes of
California (Inland Empire), Inc., a Colorado corporation, Richmond American
Homes of Texas, Inc., a Colorado corporation, Richmond American Homes of Utah,
Inc., a Colorado corporation, and Richmond American Homes of West Virginia,
Inc., a Colorado corporation.
WITNESSETH:
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WHEREAS, the Company and the Trustee executed an Indenture dated as of
January 28, 1998 (the "Base Indenture"), to provide for the issuance of up to
$250,000,000 of the Company's 8 3/8% Senior Notes due 2008 (the "Notes");
WHEREAS, the Company and the Trustee executed a First Supplemental
Indenture, dated as of December 7, 2001 (the "First Supplemental Indenture," and
together with the Base Indenture, the "Indenture"), among themselves and each of
the following wholly owned subsidiaries of the Company (the "Prior Guarantors"):
Richmond American Homes of Arizona, Inc., a Delaware corporation, Richmond
American Homes of California, Inc., a Colorado corporation, Richmond American
Homes of Colorado, Inc., a Delaware corporation, Richmond American Homes of
Maryland, Inc., a Maryland corporation, Richmond American Homes of Nevada, Inc.,
a Colorado corporation, and Richmond American Homes of Virginia, Inc., a
Virginia corporation;
WHEREAS, concurrently with the execution and delivery of this Second
Supplemental Indenture, the Additional Guarantors are guaranteeing the
obligations of the Company under the Bank Credit Facility and are therefore
obligated to guarantee the obligations of the Company under the Notes pursuant
to Section 1.04 of the First Supplemental Indenture;
WHEREAS, the Additional Guarantors wish to guarantee the obligations of
the Company under the Notes on the same terms that the Prior Guarantors have
guaranteed the obligations of the Company under the Notes; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture pursuant to Section 9.01 of the Indenture,
and all
requirements necessary to make this Second Supplemental Indenture a valid
instrument in accordance with its terms have been performed and the execution
and delivery of this Second Supplemental Indenture have been duly authorized in
all respects by the Company and each of the Additional Guarantors;
NOW, THEREFORE, the Company and the Additional Guarantors covenant and
agree with the Trustee as follows:
ARTICLE I
GUARANTY OF NOTES AND RELATED PROVISIONS
SECTION 1.01. Unconditional Guaranty. Each Additional Guarantor shall
execute and deliver to the Trustee the following Guaranty, and shall be jointly
and severally liable with any other Guarantor for its obligations under such
Guaranty.
(FORM OF GUARANTY)
FOR VALUABLE CONSIDERATION, the undersigned Guarantor
unconditionally guarantees and promises to pay to the Holders of the
Notes upon which this Guaranty has been endorsed, in lawful money of
the United States of America, (i) the principal and interest and all
other sums payable under the Notes, and (ii) all other indebtedness of
the Company to the Holders of the Notes arising under or in connection
with the Notes or the Indenture referred to therein (the indebtedness
evidenced by the Notes together with all other indebtedness specified
above is hereinafter collectively called the "Guaranteed Obligations").
The obligations of the Guarantor hereunder are separate and
independent of the obligations of the Company and of any other
guarantor, and a separate action or actions may be brought and
prosecuted against the Guarantor whether action is brought against the
Company or any other guarantor or whether the Company or any other
guarantor is joined in any action or actions. The obligations of the
Guarantor hereunder shall survive and continue in full force and effect
until the earlier of (i) such time as the Guarantor may be released
from its obligations hereunder pursuant to the terms of the Indenture
dated as of January 28, 1998, between the Company and the Trustee, as
amended, or (ii) payment in full of the Guaranteed Obligations is
actually received by the Holders or the Trustee on behalf of the
Holders and the period of time has expired during which any payment
made by the Company or the Guarantor may be determined to be a
Preferential Payment (defined below), notwithstanding any release or
termination of the Company's or any other guarantor's liability by
express or implied agreement or by operation of law and notwithstanding
that the Guaranteed Obligations or any part thereof are
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deemed to have been paid or discharged by operation of law or by some
act or agreement. For purposes of this Guaranty, the Guaranteed
Obligations shall be deemed to be paid only to the extent that the
Holders, or the Trustee on behalf of the Holders, actually receive
immediately available funds.
The Guarantor agrees that to the extent the Company or any
other guarantor makes any payment to the Holders, or to the Trustee on
behalf of the Holders, in connection with the Guaranteed Obligations,
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 the Holders or the Trustee 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 the Holders or Trustee, the
Guaranteed Obligations 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.
Notwithstanding any contrary provision, the amount of the
Guaranteed Obligations guaranteed by the Guarantor under this Guaranty
shall be, but not in excess of, the maximum amount permitted by
fraudulent conveyance, fraudulent transfer or similar laws applicable
to the Guarantor. Accordingly, notwithstanding anything to the contrary
contained in this Guaranty or any other agreement or instrument
executed in connection with the payment of the Guaranteed Obligations,
the amount of the Guaranteed Obligations guaranteed by the Guarantor by
this Guaranty shall be limited to an aggregate amount equal to the
largest amount that would not render the Guarantor's obligations
hereunder subject to avoidance under any Bankruptcy Law.
Guarantor waives and agrees not to assert: (a) any right to
require the Holders or Trustee to proceed against the Company or any
other guarantor, to proceed against or exhaust any security for the
Guaranteed Obligations, to pursue any other remedy available to the
Holders or Trustee or to pursue any remedy in any particular order or
manner; (b) the benefit of any statute of limitations affecting
Guarantor's 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 the Company to the Holders; and (e) any
defense arising by reason of any disability or other defense of the
Company or by reason of the cessation from any cause whatsoever (other
than payment in full of all amounts demanded to be paid by the
Guarantor under this Guaranty) of the liability
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of the Company for the Guaranteed Obligations. Guarantor hereby
expressly consents 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
Guarantor's obligations hereunder. Until payment in full of the
Guaranteed Obligations, Guarantor shall have no right of subrogation
and hereby waives any right to enforce any remedy which the Holders or
the Trustee now have, or may hereafter have, against the Company, and
waives any benefit of, any right to participate in, any security now or
hereafter held on behalf of the Holders.
If from time to time the Company shall have liabilities or
obligations to 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 Guaranteed Obligations. Guarantor agrees
that such liabilities and obligations of the Company to Guarantor 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
the Company. Guarantor agrees 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 the Company and accepted
by Guarantor as such payments become due; and (ii) after the occurrence
and during the continuation of an Event of Default, the Company 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, Guarantor receives any payment from
the Company, such payment shall be held in trust by Guarantor for the
benefit of the Holders, and shall be segregated from the other funds of
Guarantor, and shall forthwith be paid by Guarantor to the Holders or
to the Trustee on behalf of the Holders and applied to payment of the
Guaranteed Obligations whether or not then due.
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 the Company, or the
proceeds thereof, to creditors of the Company, by reason of the
liquidation, dissolution, or other winding up of the Company's
business, or in the event of any receivership, insolvency or bankruptcy
proceedings by or against the Company, or assignment for the benefit of
creditors, or of any proceedings by or against the Company for any
relief under any bankruptcy or insolvency laws, or relating to the
relief of debtors, readjustment of indebtedness, reorganizations,
arrangements, compositions or extensions,
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or of any other event whereby it becomes necessary or desirable to file
or present claims against the Company 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 shall be payable with respect to
any Subordinated Indebtedness shall be paid over to the Holders or to
the Trustee on behalf of the Holders for application to the payment of
the Guaranteed Obligations, whether due or not due, and no payments
shall be made upon or in respect of the Subordinated Indebtedness
unless and until the Guaranteed Obligations shall have been paid and
satisfied in full. In any such event, all claims of the Holders and all
claims of Guarantor shall, at the option of the Trustee, forthwith
become due and payable without demand or notice.
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 the Company, or the
proceeds thereof, to creditors of the Company, by reason of the
liquidation, dissolution, or other winding up of the Company's
business, or in the event of any receivership, insolvency or bankruptcy
proceedings by or against the Company, or assignment for the benefit of
creditors, or of any proceedings by or against the Company 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 the
Company for the purpose of receiving payment thereof, or on account
thereof, Guarantor irrevocably authorizes and empowers the Trustee, or
any person the Trustee may designate, to act as attorney for Guarantor
with full power and authority in the name of Guarantor, or otherwise,
to make and present such claims or proofs of claims against the Company
on account of the Subordinated Indebtedness as the Trustee, 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 the Holders 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 Guaranteed
Obligations, and Guarantor hereby agrees, from time to time and upon
request, to make, execute and deliver to the Trustee such powers of
attorney, assignments, endorsements, proofs of claim, pleadings,
verifications, affidavits, consents, agreements or other instruments as
may be requested by the Trustee in order to enable the Trustee and the
Holders 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.
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Except as otherwise permitted herein, should any payment or
distribution or security or proceeds thereof be received by Guarantor
upon or with respect to the Subordinated Indebtedness prior to the
satisfaction of the Guaranteed Obligations, Guarantor will forthwith
deliver the same to the Trustee on behalf of the Holders in precisely
the form as received except for the endorsement or assignment of
Guarantor where necessary for application on the Guaranteed
Obligations, whether due or not due, and until so delivered the same
shall be held in trust by Guarantor as property of the Trustee on
behalf of the Holders. In the event of the failure of Guarantor to make
any such endorsement or assignment, the Trustee, or any of its officers
or employees, on behalf of the Trustee, is hereby irrevocably
authorized to make the same.
Guarantor agrees to maintain in its records notations
satisfactory to the Trustee of the rights and priorities of the Holders
hereunder, and from time to time, upon request, to furnish the Trustee
for the benefit of the Holders with sworn financial statements. The
Trustee may inspect the books of account and any records of Guarantor
at any time during business hours. 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.
This Guaranty shall be governed by the laws of the State of
New York.
IN WITNESS WHEROF, Guarantor has caused this Guaranty to be
executed in its corporate name.
SECTION 1.02. Execution of Guaranty.
To evidence the Guaranty specified in Section 1.01, each Additional
Guarantor hereby agrees to execute the Guaranty in substantially the form set
forth above, and to deliver such Guaranty to the Trustee, which shall deliver
such Guaranty to each Holder as an endorsement to the Notes held by such Holder,
or alternatively hold such Guaranty on behalf of each such Holder.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Confirmation of Indenture. The Indenture, as supplemented
and amended by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and the Indenture, this Second Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument.
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SECTION 2.02. Concerning the Trustee. The rights and duties of the
Trustee set forth in Article Seven of the Indenture shall not be modified by
reason of this Second Supplemental Indenture.
SECTION 2.03. Governing Law. This Second Supplemental Indenture, the
Indenture, the Notes, and the Guaranty shall be governed by the laws of the
State of New York.
SECTION 2.04. Separability. In case any one or more of the provisions
contained in this Second Supplemental Indenture shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Second
Supplemental Indenture, but this Second Supplemental Indenture shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
SECTION 2.05. Counterparts. This Second Supplemental Indenture may
be executed in any number of counterparts each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
M.D.C. HOLDINGS, INC.
By: /s/ Paris G. Reece III
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Name: Paris G. Reece III
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Title: Executive Vice President and
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Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Richard H. Prokosch
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Name: Richard H. Prokosch
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Title: Vice President
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M.D.C. LAND CORPORATION
By: /s/ Paris G. Reece III
--------------------------------------
Name: Paris G. Reece III
------------------------------------
Title: President
-----------------------------------
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RAH OF TEXAS, LP
By: Richmond American Homes of Texas, Inc., General Partner
By: /s/ Paris G. Reece III
----------------------------------
Name: Paris G. Reece III
--------------------------------
Title: Executive Vice President
-------------------------------
RAH TEXAS HOLDINGS, LLC
By: /s/ Paris G. Reece III
--------------------------------------
Name: Paris G. Reece III
------------------------------------
Title: President and Manager
-----------------------------------
RICHMOND AMERICAN CONSTRUCTION, INC.
By: /s/ Paris G. Reece III
---------------------------------------
Name: Paris G. Reece III
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Title: Executive Vice President
------------------------------------
RICHMOND AMERICAN HOMES OF CALIFORNIA (INLAND EMPIRE), INC.
By: /s/ Paris G. Reece III
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Name: Paris G. Reece III
-------------------------------------
Title: Executive Vice President
------------------------------------
RICHMOND AMERICAN HOMES OF TEXAS, INC.
By: /s/ Paris G. Reece III
---------------------------------------
Name: Paris G. Reece III
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Title: Executive Vice President
------------------------------------
RICHMOND AMERICAN HOMES OF UTAH, INC.
By: /s/ Paris G. Reece III
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Name: Paris G. Reece III
-------------------------------------
Tiitle: Executive Vice President
------------------------------------
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RICHMOND AMERICAN HOMES OF WEST VIRGINIA, INC.
By: /s/ Paris G. Reece III
-----------------------------------------
Name: Paris G. Reece III
---------------------------------------
Title: Executive Vice President
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