Exhibit 4.2
SECOND SUPPLEMENTAL INDENTURE
5.5% Senior Notes Due 2013
SECOND SUPPLEMENTAL INDENTURE, dated as of September 29, 2003, (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 Richmond American Homes of Florida L.P., a Colorado limited
partnership and a wholly owned subsidiary of the Company (the "Additional
Guarantor," and together with the Prior Guarantors, as defined below, the
"Guarantors").
WITNESSETH:
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WHEREAS, the Company and the Trustee executed a Senior Debt Securities
Indenture dated as of December 3, 2002 (the "Base Indenture"), to provide for
the issuance of the Company's Senior Debt Securities (the "Notes");
WHEREAS, the Company and the Trustee executed a Supplemental Indenture,
dated as of May 19, 2003 (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"): 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 Arizona, Inc., a Delaware corporation, Richmond American Homes of
California, Inc., a Colorado corporation, Richmond American Homes of California
(Inland Empire), 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, Richmond American Homes of Texas, Inc., a Colorado
corporation, Richmond American Homes of Utah, Inc., a Colorado corporation,
Richmond American Homes of Virginia, Inc., a Virginia corporation, and Richmond
American Homes of West Virginia, Inc., a Colorado corporation.
WHEREAS, concurrently with the execution and delivery of this Second
Supplemental Indenture, the Additional Guarantor is guaranteeing the obligations
of the Company under the Second Amended and Restated Credit Agreement dated as
of July 30, 2002, and is therefore obligated to guarantee the obligations of the
Company under the Notes pursuant to Section 4.03 of the First Supplemental
Indenture;
WHEREAS, the Additional Guarantor wishes 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 Base
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 the
Additional Guarantor.
NOW, THEREFORE, the Company and the Additional Guarantor covenant and
agree with the Trustee as follows:
ARTICLE I
GUARANTEE OF NOTES AND RELATED PROVISIONS
SECTION 1.01. Unconditional Guarantee. The Additional Guarantor shall
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execute and deliver to the Trustee the following Guarantee, and shall be jointly
and severally liable with any other Guarantor for its obligations under such
Guarantee.
(FORM OF GUARANTEE)
The undersigned (the "Guarantors") have fully and unconditionally
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guaranteed, jointly and severally (such guarantee by each Guarantor
being referred to herein as the "Guarantee") (i) the due and punctual
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payment of the principal of and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Notes,
to the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Six of the Supplemental
Indenture and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
No past, present or future stockholder, officer, director, employee or
incorporator, as such, of any of the Guarantors shall have any
liability under the Guarantee by reason of such person's status as
stockholder, officer, director, employee or incorporator. Each holder
of a Note by accepting a Note waives and releases all such liability.
This waiver and release are part of the consideration for the issuance
of the Guarantees.
Each holder of a Note by accepting a Note agrees that any Guarantor
named below shall have no further liability with respect to its
Guarantee if such Guarantor otherwise ceases to be liable in respect of
its Guarantee in accordance with the terms of the Supplemental
Indenture.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the
Supplemental Indenture by the manual signature of one of its authorized
officers.
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SECTION 1.02. Execution of Guarantee. To evidence the Guarantee
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specified in Section 1.01, the Additional Guarantor hereby agrees to execute the
Guarantee in substantially the form set forth above, and to deliver such
Guarantee to the Trustee, which shall deliver such Guarantee to each Holder as
an endorsement to the Notes held by such Holder, or alternatively hold such
Guarantee on behalf of each such Holder.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Confirmation of Indenture. The Indenture, as supplemented
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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.
SECTION 2.02. Concerning the Trustee. The rights and duties of the
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Trustee set forth in the Indenture shall not be modified by reason of this
Second Supplemental Indenture.
SECTION 2.03. Governing Law. This Second Supplemental Indenture, the
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Indenture, the Notes, and the Guarantee 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
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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
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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.
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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/ John J. Heaney
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Name: John J. Heaney
Title: Senior Vice President
and Treasurer
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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RICHMOND AMERICAN HOMES OF FLORIDA, L.P.
By: Richmond American Homes of California
(Inland Empire), Inc.,
its General Partner
By: /s/ John J. Heaney
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Name: John J. Heaney
Title: Senior Vice President
and Treasurer
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GUARANTEE
5.5% Senior Notes Due 2013
The undersigned (the "Guarantor") has fully and unconditionally
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guaranteed, jointly and severally (such guarantee by each Guarantor being
referred to herein as the "Guarantee") (i) the due and punctual payment of the
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principal of and interest on the Notes, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal and
interest, if any, on the Notes, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in Article Six of the
Supplemental Indenture and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
No past, present or future stockholder, officer, director, employee
or incorporator, as such, of any of the Guarantors shall have any liability
under the Guarantee by reason of such person's status as stockholder, officer,
director, employee or incorporator. Each holder of a Note by accepting a Note
waives and releases all such liability. This waiver and release are part of the
consideration for the issuance of the Guarantees.
Each holder of a Note by accepting a Note agrees that any Guarantor
named below shall have no further liability with respect to its Guarantee if
such Guarantor otherwise ceases to be liable in respect of its Guarantee in
accordance with the terms of the Supplemental Indenture.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Supplemental Indenture
by the manual signature of one of its authorized officers.
RICHMOND AMERICAN HOMES OF FLORIDA, L.P.
By: Richmond American Homes of California
(Inland Empire), Inc.,
its General Partner
By: /s/ John J. Heaney
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Name: John J. Heaney
Title: Vice President and Treasurer